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

[2023] AATA 4246

Verrill and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4246 (16 November 2023)

Division:GENERAL DIVISION

File Number(s):2023/6254      

Re:David Verrill   

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member Lee Benjamin

Date:16 November 2023

Date of written reasons:        21 December 2023

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the Respondent’s delegate dated 23 August 2023 to not revoke the cancellation of the Applicant’s visa.

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

Member Lee Benjamin

Catchwords

MIGRATION – Mandatory visa cancellation – USA citizen - Class BF transitional (permanent) visa – section 501CA of the Migration Act 1958 (Cth) – failure to pass good character test – substantial criminal record – where offending includes serious violent offences, offences against public officers and domestic violence offences - whether “another reason” exists for Tribunal to revoke mandatory cancellation of visa under section 501CA of the Migration Act 1958 (Cth) – Ministerial Direction No. 99 applied – Respondent’s delegate’s decision affirmed.

Legislation

Migration Act 1958 (Cth)

Cases

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

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166

Minister for Home Affairs v HSKJ (2018) 266 FCR 591

Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA 47

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Secondary Materials

Direction No. 99 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Member Lee Benjamin

21 December 2023

WHAT IS THIS DECISION ABOUT?

1. Mr David Ronald Verrill arrived in Australia from the United States in March 1978 (aged around 6 years). He commenced committing crimes in June 1991 (aged around 19 years). Since then, he has been found guilty of around 43 offences, including violent offending (assault occasioning bodily harm; choking, suffocation and strangulation; and assault police officer); breaching Court orders; dangerous driving; property damage; and break and enter, among other offending. His visa was mandatorily cancelled in February 2023 because he has a substantial criminal record.[1] He requested revocation of the decision and it was refused.[2] In August 2023, the Applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the Respondent’s decision[3] not to revoke his visa cancellation. It is common ground between the parties that the Applicant fails the statutory character test for revocation.[4] Accordingly, the only question for the Tribunal to determine is whether there is “another reason” why the decision to cancel the Applicant’s visa should be revoked.[5] On balance, I find that the answer to this question is, no. 

   [1] Subsection 501(3A) of the Migration Act 1953 (Cth) (Act) requires the Respondent to cancel a visa if the person does not pass the character test because they have a substantial criminal record. The Applicant does not pass the character test (see below).

   [2] Subsection 501CA(4) of the Act.

   [3] The Tribunal has jurisdiction to review the decision under subsection 500(1)(BA) of the Act.

   [4] Subsection 501CA(4)(b)(i) of the Act.

   [5] Subsection 501CA(4)(b)(ii) of the Act.

   LEGAL FRAMEWORK

2. Mandatory visa cancellation revocation is governed by subsection 501CA(4) of the Act:

   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.

3. I am satisfied that the Applicant was invited to, and did, make the representations in support of the revocation of the visa cancellation required by subsection 501CA(4)(a) of the Act. 

   Does the Applicant Pass the Character Test?

4. The character test is defined in subsection 501(6) of the Act. Under subsection 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 subsection 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.” Failure of the character test arises as a matter of law.[6]

   [6] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA 47 at [63].

5. On 16 December 2022, the applicant was convicted in the Brisbane District Court of choking suffocation strangulation domestic relationship – domestic violence offence and assaults occasioning bodily harm – domestic violence offence. He was sentenced to imprisonment for 2 years and 6 months for these offences.

6. The parties contend,[7] and I find, that the Applicant does not pass the character test as defined by subsection 501(6). He therefore cannot rely on subsection 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

   [7] Transcript, p 96, lines 3-6.

   Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?

7. The central question in this review is whether the Tribunal, standing in the Respondent’s shoes, is satisfied that there is “another reason” why the cancellation decision should be revoked under subsection 501CA(4). I must “do over again” the task of the primary decision maker, making my own findings of fact, based on the material before me, undertaking my own assessment against the statutory criteria. This requires me to review the Applicant’s representations and the evidence put forward in support of them. Overall, I am required to examine the factors for and against revoking the cancellation.  

8. In considering whether to exercise the discretion in subsection 501CA(4), the Tribunal is bound by section 499 to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99 or the Direction) applies.[8]

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

9. 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 principles that must guide a decision-maker’s application of Part 2 of the Direction:

   (a) Australia has a sovereign right to determine whether non-citizens who are of character concern have a right to enter or remain in Australia. Being able to come 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 (paragraph 5.2(1)).

   (b) 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 (paragraph 5.2(2)).

   (c) The Australian community expects that the Australian Government can and should refuse entry to non-citizens or cancel their visas, if they engage 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 (paragraph 5.2(3)).

   (d) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding 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(paragraph 5.2(4).

   (e) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years (paragraph 5.2(5)).

   (f) 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 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community (paragraph 5.2(6)).

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.[9]

    [9] Direction, paragraph 6. See also Direction, paragraph 4(1) which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.

11. Paragraph 8 of the Direction sets out five 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 strength, nature and duration of ties to Australia;

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

    (5) expectations of the Australian community.

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

    (a) legal consequences of the decision;

    (b) extent of impediments if removed;

    (c) impact on victims; and

    (d) impact on Australian business interests.

13. I may also take into account other matters that are relevant to whether there is another reason to revoke the cancellation of the Applicant’s visa, such as the prospect of indefinite detention.

14. Paragraph 7(2) of the Direction 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. However, it is accepted that other considerations should not necessarily be seen as "secondary" and, in certain circumstances, it may be that other considerations may outweigh primary considerations.[10]

    [10] See also: Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [23] - [32]. Cf. Minister for Home Affairs v HSKJ (2018) 266 FCR 591, 601 - 602.

15. If the Tribunal is satisfied that another reason exists to revoke the cancellation decision, it must proceed to do so. There is no second step to the test where the Tribunal considers whether it ought to revoke the cancellation, following a decision that another reason to do so exists.[11]

    [11] Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, [38].

    WHAT HAPPENED?

16. The Applicant has a very extensive criminal history in Australia. He commenced offending in his early adulthood and has continued to offend, with some pauses, over his adult life. The Applicant’s offending is set out in the table below:[12]

    [12] Exhibit Tr1, G4, p 36 – 41.

Court	Conviction date	Offence	Outcome
Beenleigh Magistrates Court	06.03.1992	Wilful and Unlawful Damage to Property	Fined $150
		Obscene Language	Fined $60
		Assault Police	Fined $150
		Resist Police	Fined $60
Beenleigh Magistrates Court	21.04.1992	Aggravated Assault on a Female	Recognisance Order of $300 and to be of good behaviour for 12 months
Brisbane District Court	15.11.1996	Unlawful Use of Motor Vehicle	Probation: 3 years. Compensation: $2,579.50 to be paid within 3 years. (Order revoked by application of Applicant to the Brisbane District Court on 15.12.1999. Resentenced to compensation of $1,679.50.
		Dangerous Driving Whilst Adversely Affected by an Intoxicating Substance, namely alcohol	Imprisonment: 18 months, wholly suspended for a period of 3 years.
Cleveland Magistrates Court	19.01.2009	Commit Public Nuisance	Fine: $600. Restitution: $33.50.
	22.01.2009	Breach of Order	Fined: $300
	23.07.2009	Assault or Obstruct Police Officer	Probation: 18 months
	26.11.2009	Breach of Probation Order imposed on 23.07.2009 (regarding Assault or Obstruct Police Officer, Fail to supply roadside test, Drive UIL offences)	Conviction Recorded. Not further punished.
		Commit Public Nuisance
	10.06.2010	Commit Public Nuisance	Conviction Recorded. Not further punished.
		Serious Assault – Assault/Resist/Obstruct Police Officer	Imprisonment: 2 months concurrent Compensation: $500
		Serious Assault – Assault/Resist/Obstruct Police Officer	Imprisonment: 4 months concurrent Compensation: $1,000.
	03.03.2011	Breach of Order	Imprisonment: 6 months, suspended for 2 years, after serving 2 months concurrent. (suspended sentence fully invoked, concurrent, on 09.05.2013, with a parole release date of 09.05.2013).
	17.03.2011	Breach of Probation Order (imposed on 23.07.2009 regarding Assault/Obstruct Police offence)	Conviction Recorded. Not further punished.
	09.05.2013	Contravention of Domestic Violence Order	Imprisonment: 6 months concurrent
	17.03.2015	Commit Public Nuisance	Fined: $300
Wynnum Magistrates Court	09.01.2017	Assault or Obstruct Police Officer – Domestic Violence Offence	Community Service: 40 hours
		Wilful Damage to Property	Fined: $200
		Contravention of Release Conditions	Imprisonment: 3 months, suspended for 12 months, concurrent. (suspended sentence fully invoked, concurrently, on 25.07.2017)
	25.07.2017	Contravention of Domestic Violence Order	Imprisonment: 3 months Probation period: 18 months
Maroochydore Magistrates Court	07.09.2017	Breach of Community Service Order	Order(s) revoked Resentenced for original offences Conviction recorded Community Service: 40 hours, to be completed within 12 months.
Cleveland Magistrates Court	29.03.2019	Contravention of Police Protection Notice	Imprisonment: 16 months Restitution: $300 Compensation: $300
		Obstruct Police Officer
		Serious Assault Person Over 60
		Wilful Damage
	08.04.2019	Contravention of Domestic Violence Order (Aggravated Offence)	Community Service: 70 hours
	21.02.2021	Breach of Community Service Order	For breach of community service order: Conviction Recorded Fined: $300 Order(s) revoked Resentenced for original offences For all charges: Probation: 18 months
		Contravention of Domestic Violence Order (Aggravated Offence)
		Failure to Appear in Accordance with Undertaking
		Failure to Appear in Accordance with Undertaking
	03.08.2022	Failure to Appear in Accordance with Undertaking	Imprisonment: 1 month cumulative
		Failure to Appear in Accordance with Undertaking
		Breach of Probation Order	Fined: $300 Order revoked Resentenced for original offences
		Contravention of Domestic Violence Order (Aggravated Offence)	Imprisonment: 9 months, concurrent
		Contravention of Domestic Violence Order (Aggravated Offence)
		Contravention of Domestic Violence Order (Aggravated Offence)
Brisbane District Court	16.12.2022	Assaults Occasioning Bodily Harm – Domestic Violence Offence	Imprisonment: 18 months, concurrent
		Choking Suffocation Domestic Relationship – Domestic Violence Offence	Imprisonment: 2 years 6 months, concurrent

1. The Applicant also has an extensive and adverse traffic infringement and driver licence suspension history.[13]

   [13] Exhibit R2, TB1, p 1-9.

   PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

2. 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.

3. In determining the weight applicable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires me to give consideration to:

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

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

4. I will now consider each in turn.

   The Nature and Seriousness of the Applicant’s Conduct

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

   (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;

   (ii) crimes of a violent nature against women or children, regardless of the sentence imposed;

   (iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

   (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:

   (ii) crimes committed against vulnerable members of the community (such as the elderly…), or …government representatives or officials due to the position they hold, or in 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;

   …

   (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…

   …

6. I have already set out the Applicant’s offending history and do not propose to recite it here. It suffices to say that it can be summarised as involving:

   ·Violent offending (assault occasioning bodily harm;  choking, suffocation and strangulation; and assault police officer)

   ·Breaching Court orders;

   ·Dangerous driving;

   ·Property damage; and

   ·Break and enter offending.[14]

   [14] Exhibit R1, p 2, para 6.

7. In relation to the most recent offending involving choking suffocation strangulation – domestic violence offence and assaults occasioning bodily harm – domestic violence offence, the sentencing remarks of 12 December 2022 reveal the extent of the Applicant’s conduct:

   All domestic violence offending is serious. Yours is no exception. You had, for a short time, formed a sexual relationship with a woman on one of the islands in the bay. You had returned from the mainland drunk. She suggested that you stay with friends and come back the next day. You did not want to, but, in any event, to cut the story short, you ended up coming into the house without warning.

   You grabbed her and threw her into a television set, causing her to strike her head. You grabbed her by the hair, forced her into the kitchen and slammed her head into the kitchen bench at least twice. This caused pain. She noticed one of her teeth had been broken. You punched her in the stomach. It was a completely irrational reaction to what had occurred and might be inexplicable until one looks at your criminal history.

   In any event, you grabbed her by the leg, dragged her into the lounge room, kicked her two or three times and told her that you were going to stomp her head in. You laid down on the ground beside her. You wrapped your legs around her hips and legs, your arms around her body and grabbed her neck with one of the hands, squeezing with force, causing her difficultly to breath. She thought she was going to pass out but you did let go before she lost consciousness. You then grabbed her neck with one hand and used your other hand to cover her mouth and nose, squeezing her neck, again restricting her breathing. There are two counts of strangulation as a result.[15]

   [15] Exhibit R1, p 7, para 29.

1. The Respondent contends that the Applicant’s offending is of a “very serious” nature.[16] In my view, this submission can be easily accepted. The Applicant has been found guilty of offending that has been violent and sexual in nature, and has been of a violent nature against three different women (including his Mother and two female intimate partners – Ex-partner 1 and Ex-partner 2). It has also involved acts of family violence against the same victims as well as the Applicant’s brother. In relation to the same, the Respondent says:

   In this case, the applicant has been convicted of seven crimes involving violence, being choking suffocation strangulation – domestic violence offence and assaults occasioning bodily harm on 16 December 2022; serious assault person over 60 and obstruct police officer on 29 March 2019; serious assault – assault/ resist/ obstruct police office/ person acting in aid of police officer on 10 June 2010; aggravated assault on a female on 21 April 1992; and assault police on 6 March 1992.[17]

   [16] Exhibit R1, p 6, para 25.

   [17] Exhibit R1, p 6, para 27.

2. The Respondent’s submissions are well and truly not contested by the Applicant. Accordingly, my finding is that the Applicant’s offending engages sub-paragraph 8.1.1(1)(a)(i), (ii) and (iii) in favour of a finding that the nature of the Applicant’s conduct is “very serious”.

3. Separately, the following sub-paragraphs are also relevant in the instant case, reflecting that the Applicant’s offending has been of a “serious” nature.

4. Paragraphs 8.1.1(1)(b)(ii) looks at crimes committed against vulnerable members of the community (such as the elderly), or government representatives or officials due to the position they hold, or in performance of their duties:

   ·The Applicant has been found guilty of multiple offences involving acts of violence and other offending against his elderly mother:

   oThe Respondent points, firstly, to the sentencing remarks of 29 March 2019 that reveal the following details of the serious assault person over 60 and contravention of police protection order offences:

   You’ve done this before, going in, smashing up your house while you’re drunk. So a lot of this, as you say, is when you’re drunk you become a bit of a Dr Jekyll and Mr Hyde sort of person. This is your own 74 year old mother who’s terrified of you and its really, really sad…[18]

   [18] Exhibit R1, p 8, para 30.

   oThe Respondent points, secondly, to the relevant statement of facts in relation to the charge of serious assault person over 60 offence:

   The defendant in this matter is David Ronald VERRILL.

   The victim of the assault is [Redacted] the defendants 74-year- old mother.

   …

   About 11:00pm on Wednesday the 28^th November 2018 police were called out to attend a disturbance at the address after the informant rang triple 000 and stated the defendant had threatened to kill her and was trying to force his way into the dwelling.

   …

   Police then entered the dwelling…and observed several smashed windows, both upstairs and downstairs.

   Police then spoke to the victim…who stated that she had been pushed over by the defendant after he became extremely aggressive and she has locked him outside the dwelling at which point he began to smash several windows with what the victim described as either a large metal or wood pole…

   …

   The victim received a large graze to her left arm and strained her shoulder from being pushed into the ground.[19]

   [19] Exhibit R1, p 8, para 31.

   oThe Respondent points, thirdly, to the relevant statement of facts in relation to the contravention of police protection order offence:

   The defendant in this matter is David Ronal VERRILL.

   The aggrieved in this matter is [Redacted] (defendants brother)

   The named person in this matter is [Redacted] (defendants mother).

   …

   The conditions of this notice included the mandatory condition that the defendant be of good behaviour towards the aggrieved and must not commit domestic violence against the aggrieved…

   …

   About 11pm on Wednesday the 28^th November 2018 the named person has contacted triple 000 and requested police assistance stating that the defendant was violent and intoxicated and making threats to kill her…

   The aggrieved has further contacted Police advising that the defendant is at the address (aggrieved and named residence), is drink and trying to bash the front door in, the aggrieved advised Police (over the phone) that the defendant is threatening to “bash him up.”[20]

   ·On 10 June 2010, the Applicant was found guilty of two counts of serious assault – assault/ resist/ obstruct police officer/ person acting in aid of police officer, for which he was sentenced to a total of 6 months imprisonment (concurrent). According to the Respondent, these offences occurred at a time where the Applicant was located on a bench seat with injuries to his face and a dislocation or break to his right ankle. He was abusive to the police that approached him and to the paramedics which attempted to treat him:

   On arrival and entry into the Hospital police could hear the defendant yelling obscenities such as “fuck off”, towards hospital staff. Police have spoken to security at which point the defendant has sighted police and kicked a pillow into the corridor towards their direction.

   Police have approached the defendant who has verbally abused Constable SINGH repeatedly calling him a, “Punjab Prick” and telling him to “fuck off” and “get fucked”. The defendant was then informed that he was under arrest for committing a public nuisance offence.

   Constable SINGH and Constable CASH have then attempted to place the defendant in handcuffs due to his aggressive manner towards them and the hospital staff. The defendant whilst lying on the hospital bed has pulled his arms into his abdomen area to avoid being handcuffed. Constable CASH has then grabbed hold of one of the defendants arms and attempted to place the handcuffs on him. As a result of the struggle Constable CASH has sustained a cut from the handcuffs to her left hand.

   The defendant has then began to bite in the direction of and spit towards both Constable CASH and Constable SINGH. The defendant at this time had blood on his face and in his mouth. The defendant has then consciously spat blood at both officers on several occasions leaving blood splatter stains on their shirts. At this time Constable CASH has also had the defendant’s blood come into contact with her left hand of which sustained the cut.

   To stop the defendant spitting at police the defendants head was secured by security. The defendant has then raised his knees to his chest and kicked Constable CASH in the abdomen.[21]

   [20] Exhibit R1, p 8, para 32.

   [21] Exhibit R1, p 9, para 33.

5. Paragraph 8.1.1(1)(c) looks to sentencing of certain non-precluded offending. In particular, when assessing the nature and seriousness of an applicant’s offending, regard must be had to the fact that the Applicant has been sentenced to terms of imprisonment for his offending. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy. Where a Court has sentenced an offender to a term of custodial imprisonment, this should be viewed as a reflection of the objective seriousness of the offences involved. In the instant case, the Applicant has been sentenced to more than 10 separate terms of imprisonment (including a mix of sentences being served cumulatively and concurrently, and at least one suspended sentence).

6. Sub-paragraph 8.1.1(1)(d) looks to the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness. The Applicant has committed more than 40 offences over a period of more than 30 years. The Applicant concedes that his offending has been both frequent and with an increasing trend of seriousness.[22]

   [22] Transcript, p 69, lines 26-30.

7. Sub-paragraph 8.1.1(1)(e) looks to the cumulative effect of repeated offending. The totality of the Applicant’s offending can easily be viewed cumulatively as having had a deleterious impact on the Australian community. In my view, some of the cumulative effects of the Applicant’s offending include:

   ·First, a demonstrated failure to comply with, or otherwise meet the requirements of lawful Australian authority;

   ·Second, that the progressive evolution of the sentencing regime imposed on the Applicant demonstrates that he failed to experience any deterrent or dissuading effect of the progressively more severe sentences (including imprisonment) that have been imposed on him;

   ·Third, that his regular use of, and predilection for, illicit substances and alcohol have distorted his moral compass, occasioning in family violence and other serious offending;

   ·Fourth, that he does not seem to have formed a definitive understanding of the necessary level of responsibility and lawful compliance in the operation of a motor vehicle on Australian roads;

   ·Fifth, that his offending must, on any reasonable analysis, be found to have caused financial suffering, and emotional distress and inconvenience for the individuals and families in his local community and beyond that have been touched directly or indirectly by his offending; and

   ·Sixth, that his offending has tied up considerable law enforcement and judicial resources.

8. Paragraphs 8.1.1(1)(g) looks to 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. In this case, the Applicant was formally warned in writing on 27 March 2020 with a notice of intention to consider cancelling his visa.[23] Notwithstanding that he has been warned, the Applicant continued to offend in Australia as is evidenced by his criminal history set out above. 

   [23] Exhibit Tr1, G18, p 143.

   Conclusion about the nature and seriousness of the Applicant’s offending

9. I have applied each of the relevant sub-paragraphs in paragraph 8.1.1(1) of the Direction. With reference to the same, I am of the view that the totality of this Applicant’s unlawful conduct in Australia can be readily characterised as “very serious”.

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

10. Paragraph 8.1.2(1) provides that, 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 of it being repeated may be unacceptable.

11. Paragraph 8.1.2(2) provides that, in considering the risk to the Australian community, 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;

    (b)  the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    (i) information and evidence on the risk of the non-citizen re-offending; and

    (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence…

    Paragraph 8.1.2(1) & (2)(a) - The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct

12. Sub-paragraph 8.1.2(2)(a) requires an assessment of the nature of harm to an individual or the Australian community were the Applicant to engage in further criminal or other serious conduct. The Respondent contends that the Applicant’s criminal history is such that a broad range of harm may befall members of the Australian community if he were to reoffend:

    Of primary concern is the consequences of further violent crimes by the applicant, which could include physical and psychological harm to members of the Australian community. If the applicant were to reoffend by committing further property- related offences, the harm that may result includes financial, physical and psychological harm.[24]

    [24] Exhibit R1, p 12, para 39.

13. The Respondent’s submits that the nature of the harm inflicted, if the Applicant were to reoffend in a similar manner to his past offending, would be unacceptable.

14. In my view (and I find) that the type of the harm posed, and the type of the harm already visited, is so serious that any material risk that the Applicant may again commit similar offending is one which is completely unacceptable.

    Paragraph 8.1.2(2)(b) - The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account: (i) Information and evidence on the risk of the Applicant reoffending and (ii) evidence of rehabilitation achieved by the time of the decision

15. In the Applicant’s personal circumstances form (PCF), the Applicant states that he has no risk of re-offending [sic] as feel am in better headspace + want to focus on my children + a better life.[25]

    [25] Exhibit Tr1, G15, p 124.

16. At the hearing, the Applicant adopted a similar submission and contended that he has a “zero” risk of reoffending: 

    MEMBER: So you’ve said in your personal circumstances form – I’m looking in particular at page 101 of the G documents?

    APPLICANT: Yes.

    MEMBER: And on page 101 of the G documents, in response to the question:  ‘Please provide information on what you believe to be the risk of you reoffending in the future, and your supporting reasons,’ you’ve written that:  ‘My risk of reoffending has been dramatically’. I think, ‘reduced’ – ‘to zero’?

    APPLICANT: ‑‑‑M’mm.

    MEMBER: So do you say – or is it your evidence – that you pose a zero risk of reoffending?

    APPLICANT: After today, yes…. I know it’s hard to believe and to be honest from where I’m sitting I can – I can kick along with your thoughts and assumptions that, ‘he’s just full of it’.  But, yes, with having to relive these things and have it pointed out again, the – yes, is – and the possibility of having to leave my whole life and family is enough of a motivation to succeed with my goal of not putting myself under the influence of alcohol, because it seems to be my downfall quite – quite dramatically, as we can see.

    MEMBER: So would it be fair to say that – well, let me ask it this way – do you maintain that you have a zero chance of offending?

    APPLCIANT: In my head I do.[26]

    [26] Transcript, p 70, lines 6 - 26.

17. In the Applicant’s PCF, the Applicant states that his offending has mainly been caused by alcoholism:

    Have had alcohol problem which is now not an issue after councelling + AA.[27]

    [27] Exhibit Tr1, G15, p 124.

18. The Applicant’s submissions before the Tribunal unpack the connection between his substance abuse and his offending in the following terms:

    I acknowledge that my substance abuse of drugs and alcohol contributed to my offending outside the law. I recognize that my addiction has not only harmed myself, but also negatively impacted others and society as a whole. My actions were inexcusable, and I take full responsibility for them. I am committed to addressing my substance abuse issues and seeking the necessary help and treatment to overcome my addiction. I am aware that it will take time and effort to regain the trust of those whom I have hurt and society as a whole.[28]

    [28] Exhibit Tr1, G11, p 85.

19. The Applicant has also, at some considerable length, explained some other additional background to his offering, which includes his dysfunctional childhood and family life: 

    Although it is not an excuse for my actions this next paragraph is a significant contributor to the unfortunate situation in which I find myself.

    I grew up in a single-parent household within the Eagleby Housing Commission area, where crime, drugs, and a lack of functional equivalence to mainstream society were prevalent. This challenging environment shaped my upbringing and influenced my perception of the world. I witnessed firsthand the struggles faced by my family and neighbors, constantly exposed to the adverse effects of criminal activities and substance abuse. Living in such circumstances presented numerous obstacles, but it also taught me resilience and the importance of perseverance. Despite the limitations imposed by my surroundings, I endeavored to rise above the adversity and make the most of the opportunities that came my way…[29]

    … Growing up in a single-parent household, in a housing commission area with limited economic resources, surrounded by drugs and crime, presented significant challenges that were out of my control. The absence of a father figure deprived me of a nurturing environment and guidance, and the prevalence of drugs and crime in the area exposed me to a harmful lifestyle from a young age. I was denied the chance to experience a normal childhood and was constantly exposed to circumstances that were counterproductive to my development. I acknowledge that the environment I grew up in had a significant impact on my decision-making, and I take responsibility for my actions. However, I urge the authorities to consider the root causes that led me to make the choices I did.[30]

    [29] Exhibit Tr1, G16, p 129-130.

    [30] Exhibit Tr1, G11, p 89.

20. Based on the materials before the Tribunal, the Applicant appears to have sought out a range of community organisations for counselling and education across drug and alcohol abuse, domestic violence, healthy relationships and related matters, among other topics while in immigration detention:    

Date	Organisation	Engagement Type	Course details	Outcome
04/04/23 to 14/05/23	Universal Class	Online modules	Titles of completed courses: Anger Management 101 Building Self Esteem Critical Thinking Developing Great Social Skills Domestic Violence 101 Drug and Alcohol Abuse 101 Effective Communication Skills Emotional Intelligence Healthy Relationships How to Be your Own Life Coach Personality Development Stress Management Understanding Addictions Wellness Coaching Weight Training 101	Complete Grade for “Wellness Coaching” noted as 76% Grade for “Weight Training 101” being 86%
25/09/23 to 04/09/23	Lives Lived Well	Telephone and video-conference sessions	Online questionnaires, telephone counselling sessions, and video-conference counselling and psycho-education sessions	Final video session on 04/09/2023 Applicant noted as considering 3-week “Day Rehabilitation” program and exhibited information flyer
-	IHMS, internal to BITA	In-person (one on one) counselling sessions	Weekly counselling sessions regarding drugs, alcohol, and anger management Applicant separately submitted a relapse prevention plan with respect to alcohol.	Complete
-	Sane Australia	Telephone conferences	Weekly telephone sessions with peer support worker	Complete
12/03/23 to  07/05/23	Serco	In-person reviews and sessions	Classes and lessons provided within detention centre Individual Management Review Plan confirms reviews occurred on 12/03/2023, 27/03/2023, 08/04/2023, 24/04/2023, and 07/05/2023 Reviews stipulated Applicant attending sessions including online mental health platform “INSANE”, a “Book Club”, and “P&A re-integration sessions”	Complete

1. The Applicant has indicated to the Tribunal that he is on several waiting lists for rehabilitation services. Relevantly, the Tribunal received a form entitled “Wellness Recovery Action Plan” with St Vincent’s Melbourne, information from the Applicant that he was completing counselling and AA meetings, “Bi-weekly Re-integration lessons”, and “CBT Reprogramming with weekly group sessions”. The Applicant further stated he is on the waiting list for courses and programs including Drug Arm, Respectful Man, Relationships Australia, Circuit Breaker AA and “other relevant studies”, and that he was participating in Alcohol Management, Anger Management and “other relevant studies” provided by a Wellness and Engagement “(P&A) Authority”.[31]

   [31] Exhibit Tr1, G11, p 87, 107, 171.

1. In reflecting on his rehabilitative steps and activities to-date, the Applicant says they have helped him to undergo a significant transformation in his attitude and approach to life:

   Through these resources, I have gained a wealth of knowledge about correct actions, effective communication, and healthy relationships, allowing me to better understand my role in society and as a family member. I have come to terms with my past mistakes and developed a newfound sense of accountability and responsibility for my actions. By acknowledging my faults and taking steps to address them, I have become a normal, constructive part of society, actively working to build healthy relationships with those around me. I am committed to using my newfound knowledge and skills to make positive contributions to my community and to be a positive influence on my family. Through this journey of self-discovery and personal growth, I have developed a greater sense of purpose and meaning in my life, and I am excited about the possibilities that lie ahead.

   Continuing my self-improvement journey through the counseling and self-help education that I have received will be an ongoing process. I understand the importance of maintaining and building upon the progress that I have made and I am committed to continuing to develop my personal and interpersonal skills.[32]

   [32] Exhibit Tr1, G11, p 87.

2. Notwithstanding the Applicant’s rehabilitative efforts; concerningly, he contends that he is still in the early stages of rehabilitation:

   MEMBER:…thinking about a rehabilitation journey for…domestic and family violence [ and drugs and alcohol]…one being at the beginning, 10 being at the end, where would you say you are on that (indistinct)?

   APPLICANT: I think I’m about…three.[33]

   [33] Transcript p 71, lines 11 – 14; p 72, lines 11-16.

3. The Respondent contends that the Applicant has an unacceptable risk of reoffending, and highlights the following reasons for this position:

   There is no expert evidence in respect of why the applicant has offended in the past and/or what the likelihood is of him offending in the future.

   The Tribunal is “entitled to speculate as to what might happen in the future by reference to evidence of what had occurred in the past”. To this end, the applicant has a lengthy and diverse criminal history, and has demonstrated a flagrant disregard for Court orders. His claim that he will not offend in the future needs to be viewed in the context of the frequency with which he has done so in the past and the fact that past punishments imposed on him by the criminal justice system, including periods of incarceration, have not apparently had any rehabilitative effect on him.

   …

   The applicant has acknowledged that alcohol has the prospect of being a “daily battle,” given that it is “almost available on every street corner, most shopping centres and such an accepted and integral part of society and celebration of events nowadays”. His rehabilitation efforts to date have not been tested in an uncontrolled, unsupervised environment.

   The applicant’s family members have not acted as a protective factor in the past, nor has stable employment. In those circumstances, the Tribunal could have little faith that these factors would act as sufficient deterrents now. Further, given that the applicant remains the subject of a domestic violence order listing his mother as the aggrieved, the extent to which she will be able to provide support to the applicant is questionable.[34]

   [34] Exhibit R1, p 12, para 40.

4. The Tribunal received some limited written lay evidence from the Applicant’s friends, including support letters from Alfred Davis, Conway Burns, Daniel Cann, Dave Elder and Karen Elder.[35] These letters, generally, address some background to the Applicant’s offending (without specifically setting out the nature of the offending) and speak to his good nature and character but provided little to no insight into the Applicant’s reoffending risk – I give these letters some weight in relation to the Applicant’s character.

   [35]Exhibit Tr1, G26, p 179 – G29, P 184.

5. The Tribunal also received evidence and support letters from the Applicant’s family, including his sons – Zachery Verrill and Corey Verrill, have pledged future support to the Applicant, including offers of employment and accommodation.[36] It should be said that both the Applicant’s sons appeared to be largely unaware about the full extent of the Applicant’s offending.

   [36] Exhibit Tr1, G30, p 185 – G31, p 186; A4; A5.

   Conclusions about risk  

6. Based on the relevant information before me, I draw the following conclusions:

   ·the type of the harm posed by the Applicant, and the type of the harm already visited, is so serious that any material risk that the Applicant may again commit similar offending is one which is completely unacceptable;

   ·while I accept that the Applicant genuinely believes that he poses a zero risk of reoffending based on what he sees as considerable efforts to engage in (and seek to engage in) therapy, counselling and education about, or in relation to, the causes underlying his offending, there is limited credible independent evidence of his reoffending risk;

   ·given the seriousness of the Applicant’s offending over a number of years, I do not accept that undertaking limited duration therapy, counselling and education, over a compressed time period while in a controlled environment, constitutes sufficient and durable evidence of rehabilitation by the time of this decision – on the Applicant’s own evidence, he remains at an early stage of rehabilitation;

   ·the Applicant’s rehabilitation has not been tested in the uncontrolled environment within the community with the added daily pressures of living, or in a new relationship; and  

   ·overall, in the absence of tested evidence of rehabilitative progress and in the context of his repeated very serious offending over many years, I find that the Applicant has a high risk of reoffending.

   Conclusion: Primary Consideration 1

7. With reference to the weight attributable to this Primary Consideration 1:

   (a)  I have found that the nature and seriousness of the Applicant’s conduct to date has been, “very serious”;

   (b)  I repeat my finding that were the Applicant to reoffend, the nature of the harm to individuals or the Australian community would be substantial and would involve physical and psychological harm to the victim; and

   (c)   I have assessed the Applicant’s recidivist risk of engaging in further criminal or other serious conduct (upon return to the community) as high by taking into account (1) available information and evidence before me informative of such risk and (2) the dearth of any expert and independent clinical written evidence speaking to the levels of rehabilitation achieved by this Applicant by the time of this decision.

8. My analysis of the material before the Tribunal leads me to the finding that this Primary Consideration 1 carries a heavy level of weight against revocation of the mandatory cancellation of the Applicant’s visa.

   PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

9. Paragraph 8.2 of the Direction provides:

   (1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

   (2) This consideration is relevant in circumstances where:

   a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

   b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

   (3) In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:

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

   b) the cumulative effect of repeated acts of family violence;

   c) rehabilitation achieved at time of decision since the person’s last known act of family violence, including:

   i. the extent to which the person accepts responsibility for their family violence related conduct;

   ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

   iii. efforts to address factors which contributed to their conduct; and

   d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status, should the non-citizen engage in further acts of family violence.

10. Paragraph 4(1) of Direction 99 defines family violence to mean violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member) or causes the family member to be fearful. Paragraph 4(1)(b) of Direction 99 provides examples of family violence relevantly including sexual assault or other sexually abusive behaviour.

11. The Applicant declined to make specific submissions on the totality of this Primary Consideration 2:

    MEMBER:  …So, in relation to family violence…     

    APPLICANT:  Don't really have an answer for that one.

    MEMBER:  You don't want to make any further submissions on that?

    APPLICANT:  No, we'll leave that one alone.[37]

    [37] Transcript, p 96, lines 41-47.

12. The Respondent contends that the following offences clearly constitute family violence as defined: [38]

    (a)  Choking suffocation strangulation – domestic violence offence directed against Ex-partner 1 on 16 December 2022;[39]

    (b)  Assaults occasioning bodily harm – domestic violence offence against Ex-partner 1 on 16 December 2022;[40]

    (c)   Four counts of Contravention of domestic violence order (aggravated offence); against his Mother and Brother on 21 February 2021 and 3 August 2022, against Ex-partner 2 on 21 February 2021;[41] and

    (d)  Serious assault person over 60 against his Mother on 29 March 2019.[42]

    [38] Exhibit R1, p 14, para 43.

    [39] Exhibit R2, TB4, p 189.

    [40] Ibid.

    [41] Exhibit R2, TB3, p 95-106; 115-136.

    [42] Exhibit R2, TB3, p 96.

13. The Respondent’s submissions are based on the above offending being perpetrated against each of Ex-partner 2, Ex-partner 1, Mother and Brother as family members of the Applicant:

    The first and second offences [above] were committed against a person with whom the applicant had a short sexual relationship. To this end, paragraph 4(1) of Direction 99 provides that a “member of the person’s family for the purposes of the definition of the definition [sic] of family violence, includes a person who has, or has had, an intimate personal relationship with the relevant person.” Accordingly, the victim of this offending can safely be found to be a member of the applicant’s family for the purposes of this primary consideration.

    The remainder of the applicant’s family violence offences were perpetrated against his mother and brother, who are clearly members of his family.

    The applicant has been the subject of numerous domestic violence orders since 2008 and remains the subject of two domestic violence orders:

    -    The first was issued in relation to the choking suffocation strangulation – domestic violence offence and assaults occasioning bodily harm – domestic violence offence and remains in force until 16 December 2027;

    -    The second was issued in relation the serious assault person over 60 offence and remains in force until 3 August 2027.[43]

    [43] Exhibit R1, p 14, para 44, p 15, para 46.

14. The Applicant readily concedes that he was in an intimate relationship with each of Ex-partner 2[44] and Ex-partner 1.[45] Separately, there can be no doubt that the Applicant’s mother and brother are family members for the purpose of the Direction. Accordingly, and overall, the Respondent’s submissions must be accepted.

    [44] Transcript, p 13, lines 33-46; p 14, lines 1–18.

    [45] Transcript, p 14, lines 20-24.

15. I will address each of the factors in the relevant sub-paragraphs in paragraph 8.2(3) in turn.

16. Paragraph 8.2(3)(a) requires me to consider the frequency of the Applicant’s family violence conduct and/or whether there is any trend of increasing seriousness to it. The Applicant readily concedes[46] (and I find) that, it is evident from the Applicant’s offending set out earlier, that the Applicant’s family violence conduct can readily be described as frequent. The Applicant also concedes[47] (and I find) that his conduct has also clearly increased in seriousness, from exposing his partner and child to self-harm to threatening to kill his mother to punching his partner in the stomach and slamming her head into a kitchen bench.[48] It is significant that the Applicant’s criminal record indicates repeated offending, despite prior formal rebukes. It is also significant that the Applicant has kept offending against his mother and brother on multiple occasions over multiple years, and against different partners.

    [46] Transcript, p 73, lines 8-11.

    [47] Transcript, p 73, lines 13-14.

    [48] Exhibit R1, p 15, para 47.

17. Paragraph 8.2(3)(b) requires me to address the cumulative effect of repeated acts of family violence. The Applicant committed family violence over almost a decade. In my view, any one of these offences would be considered serious if in isolation. However, such offending must be considered especially serious when viewed together, particularly in the context of multiple ex-partners and family members being the subject of very violent offending over many years.[49] In my view, this offending very heavily weighs in the context of this Primary Consideration 2.

    [49] Transcript, p 105, lines 44-46.

18. Paragraph 8.2(3)(c) requires me to consider the nature and extent of rehabilitation achieved by the time of my decision since the Applicant’s last known act of family violence. In particular, I must consider (1) the extent to which the Applicant accepts responsibility for his family violence related conduct; (2) the extent to which the Applicant understands the impact of his behaviour on the abused, and the witnesses of that abuse (particularly children); and (3) efforts to address factors which contributed to his conduct.

19. The Applicant appears to have accepted responsibility for his actions:

    I accept full responsibility for my actions in relation to the criminal charges brought against me. I understand the gravity of the situation and the harm that my actions have caused. I take full responsibility for the consequences of my actions and acknowledge that they were unacceptable and in violation of the law. I deeply regret the pain and harm that I have caused to others and the damage that my actions have inflicted on society as a whole.[50]

    [50] Exhibit Tr1, G16, p 130.

20. The Applicant has also expressed sentiments of remorse and insight into his family violence conduct, including the impact on victims:

    I am deeply sorry for my past actions and the harm they have caused.[51]

    I want to express my honest and profound remorse for the actions I have committed…I am fully aware of the harm I have caused to my victims, the law court system, and the wider Australian community. I deeply regret the pain, suffering and inconvenience I have inflicted upon those directly affected by my actions.[52]

    [51] Exhibit Tr1, G11, p 86.

    [52] Exhibit Tr1, G16, p 130.

21. I have already set out the Applicant’s substance abuse and family violence rehabilitative activities. I will not recite them again. It suffices to say that the Applicant has recently engaged in some rehabilitative activities. However, his progress remains untested outside a controlled environment, or in a new relationship. Separately, there is limited independent evidence about the extent of the Applicant’s rehabilitation.   

22. Notwithstanding the Applicant’s rehabilitative efforts; concerningly, he contends that he is still in the early stages of rehabilitation:

    MEMBER:…thinking about a rehabilitation journey for…domestic and family violence…one being at the beginning, 10 being at the end, where would you say you are on that (indistinct)?

    APPLICANT: I think I’m about…three.[53]

    [53] Transcript, p 72, lines 11-16.

23. Based on the materials before me:

    ·I find that, for the purposes of this Primary Consideration 2, the Applicant has perpetrated family violence, against his Mother, Brother, Ex-partner 1 and Ex-partner 2;

    ·I consider (and find) that the Applicant’s family violence offending must be characterised as “very serious” family violence conduct; and

    ·While the Applicant has engaged in some recent rehabilitative activities in relation to substance abuse (a key element in his offending) and domestic violence, he is (on his own admission) at an early stage in his rehabilitation journey. It remains to be seen whether the Applicant’s steps in these regards will be effective in an uncontrolled environment and/or in a new relationship. To this end, I repeat what I have already said, given the very serious nature of the Applicant’s offending over many years, I do not accept that his undertaking of limited rehabilitative activities, over a compressed time period while in a controlled environment, constitutes sufficient and durable evidence of rehabilitation by the time of this decision.

    ·The Respondent’s overall submission that this Primary Consideration 2 should attract heavy weight in favour of non-revocation must be accepted.

    Conclusion: Primary Consideration 2

24. I find that this Primary Consideration 2 weighs heavily against revocation of the mandatory cancellation of the Applicant’s visa.

    PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

25. The Direction requires decision-makers to have regard to the strength, nature and duration of an Applicant’s links to the Australian community. The requisite considerations to be addressed are contained in paragraph 8.3:

    (1) Decision-makers must consider any impact of the decision on the non-citizen’s

    immediate family members in Australia, where those family members are

    Australian citizens, Australian permanent residents, or people who have a right

    to remain in Australia indefinitely.

    (2) In considering a non-citizen’s ties to Australia, decision-makers should give

    more weight to a non-citizen’s ties to his or her child and/or children who are

    Australian citizens, Australian permanent residents and/or people who have a

    right to remain in Australia indefinitely.

    (3) The strength, duration and nature of any family or social links generally with

    Australian citizens, Australian permanent residents and/or people who have a

    right to remain in Australia indefinitely.

    (4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

    (a) the length of time the non-citizen has resided in the Australian community, noting that:

    i. considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and

    ii. more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and

    iii. less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.

1. The Applicant arrived in Australia when he was around 6 years old, and has lived here for around 45 years. There is no dispute between the parties that the Applicant has spent a portion of his formative years in Australia.[54] After taking up residence in Australia, he undertook schooling here. He says he has completed some formal post-school training, a Diploma in IT Management and a Certificate III and IV in Hotel Operations.[55] The Applicant claims to have worked in various jobs including as a store person from 1988 to 1992, as a removalist from 2012 to 2015,[56] and as a hotel management employee.[57] The Applicant also appears to have worked as a roofing contractor.[58]  

   [54] Exhibit R1, p 16, para 57.

   [55] Exhibit Tr1, G15, p 125.

   [56] Exhibit Tr1, G15, p 125; Transcript, p 11, lines 13-42.

   [57] Transcript, p 72, lines 39-40.

   [58] Transcript, p 78, lines 27-37.

2. The Applicant says that his ties to Australia include:

   …my entire family here from Mother down to two…Daughters aged 15 and 13, two Adult sons 30 and 29, 3 Granddaughters 6, 8 and 9 months old with a new arrival later this year and multiple extended family members aunts uncles cousins etc.[59]

   …Australia has become the foundation of my social life, friendships, cultural experiences, and daily routines. Every aspect of my existence has been built within the vibrant tapestry of this country. The connections I have formed with friends and acquaintances, the bonds I have forged with members of the local community, and the immersion in the Australian way of life have shaped who I am today. The cultural fabric that surrounds me, from the festivals and traditions to the local customs and values, has become an integral part of my identity. Australia has provided me with opportunities, friendships, and a sense of belonging that cannot be replicated elsewhere.[60]

   [59] Exhibit Tr1, G16, p 135.

   [60] Exhibit Tr1, G16, p 132.

3. The Applicant’s two sons –Zachery Verrill and Corey Verrill provided written and oral evidence to the Tribunal:

   ·Zachery Verrill indicated that if his father left Australia, it would not only result in the loss of a valued member of their extended family, but it would also rob his children of having their grandfather in their lives. He also says that his father’s deportation would have a major impact on the emotional well-being of Mr Zachery Verrill’s children, as well as himself and his partner. Mr Zachery Verrill fears that they would struggle to cope with this sudden loss.[61]

   ·Corey Verrill says that he would be deeply devastated by the deportation of his father as he has been a solid support throughout his life, even being the sole caregiver for a period of time in his growing years due to his mother's struggles with life. Mr Corey Verrill says that to not have him in his life due to deportation would be emotionally unsettling – especially in the context of normal interactions at birthdays, anniversaries and Christmas etc.[62]

   [61] Exhibit A4, p 1-2.

   [62] Exhibit A5, p 2.

4. Separately, the Tribunal has before it support letters from the Applicant’s friends, which generally attest to the Applicant’s relationships with family members and friends in Australia,[63] evidencing strong social ties in Australia.

   [63] Tr1, G26, p 179 – G29, p 184.

5. The Respondent acknowledges that the Applicant's relationships with family members and friends in Australia represent ties to the Australian community.[64] The Respondent also accepts that, as per paragraphs 8.3(1) and (2) of Direction 99, the Applicant has family members in Australia, including minor-children.[65] On the other hand, the Respondent submits that the Applicant would be able to maintain contact with his family members via electronic means in the event he was to return to the United States. Further, given the Applicant claims to share a strong bond with these family members, there is also the possibility of them travelling to the United States to spend time with him in person.[66]

   [64] Exhibit R1, p 16, para 54 & 56.

   [65] Exhibit R1, p 16, para 54.

   [66] Exhibit R1, p 16, para 55.

6. In respect of the Applicant’s positive contributions to the Australian community (paragraph 8.3(4)(a)(ii) of Direction 99), the Respondent contends that the Applicant has declared some employment in Australia but points out that there is no claim, and no evidence to suggest, that the Applicant has been involved in any volunteer work in the community.[67]

   [67] Exhibit R1, p 16, para 58.

7. The Applicant[68] and the Respondent[69] both contend that this Primary Consideration 3 weighs in the Applicant’s favour. The Applicant says that it weights determinatively.[70] The Respondent submits that it does not outweigh the first, second and fifth primary considerations.[71]

   [68] Transcript, p 97, lines 1-16.

   [69] Exhibit R1, p 16, para 59.

   [70] Transcript, p 97, lines 1-16.

   [71] Exhibit R1, p 16, para 59.

8. Overall, there is no dispute between the parties that the Applicant has strong ties to Australia. In my view, the materials before the Tribunal point to the following findings:

   ·the Applicant has ties to Australia due to the fact that he has family and friends who reside in Australia. In this regard, the Applicant’s two sons, Mr Corey Verrill and Mr Zachery Verrill (his family including their partners and children), would be adversely impacted if the Applicant were removed from Australia – this is a factor that weighs heavily in the Applicant’s favour;

   ·the Applicant has been ordinarily resident in Australia for most of his formative years and beyond - that obviously must carry very considerable weight; and

   ·the Applicant has demonstrated engagement with the Australian community (evidenced by employment).

   Conclusion: Primary Consideration 3

9. In weighing the applicable factors, I find that Primary Consideration 3 weighs heavily, but not determinatively, in favour of revoking the decision to mandatorily cancel the Applicant’s visa.

   PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

10. The Direction requires decision-makers to make a determination about whether a non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision. The obligatory considerations to be addressed are contained in paragraph 8.4:

    (2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.

    (3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

    (4) In considering the best interests of the child, the following factors must be considered where relevant:

    (a) 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);

    (b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

    (c) 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;

    (d) 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;

    (e) whether there are other persons who already fulfil a parental role in relation to the child;

    (f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child)

11. The Applicant nominated two minor-aged children in his PCF: N1 (born 2008) and S1 (born 2009), his biological daughters.[72] Separately, the Applicant also has three minor-aged grandchildren in Australia: L1 (born 2014), S2 (born 2016) and M1 (born 2021).[73] The Direction requires me to consider the interests of these minor children. Overall, the Applicant says that the revocation would be in the best interests of these five minor children, and that this weighs strongly in favour of him getting his visa back.[74]

    [72] Exhibit Tr1, G15, p 119.

    [73] Exhibit R1, p 18, para 63.

    [74] Transcript, p 97, line 46-47; p 98, line 1.

12. In describing his relationship with his daughters, the frequency of contact and the role he plays in their lives, the Applicant says that he sees them “quite frequently/ weekends + holidays from school. Fortnightly/visitation when in stable accommodation”.[75] The Applicant has further stipulated as follows: 

    “Although I don't live with my daughters, [N1] and [S1], our bond remains strong and our relationship is healthy. Despite the physical distance between us, we make a conscious effort to maintain frequent contact whenever it is feasible given our circumstances. Whether it's through phone calls, video chats, or regular visits, we prioritize staying connected and involved in each other's lives. Our love for one another transcends the limitations of distance, and we cherish the moments we get to spend together. Though it may not be the ideal situation, we have found ways to navigate and make the most out of our unique circumstances, fostering a deep and meaningful connection that withstands the test of time.”[76]

    [75] Exhibit Tr1, G15, p 120.

    [76] Exhibit Tr1, G16, p 131.

13. The Applicant contends that incarceration has prevented him from being in his daughters’ lives, but that he is hoping to rebuild his involvement in their lives to where it was in the past.[77]

    [77] Transcript, p 97, lines 22-26.

14. The living arrangements for, and the Applicant’s relationship with, his two minor-aged daughters were explored during cross-examination:

    MR WEST: I might just move on and ask you about some of the minor children that you’ve listed in some of your material?

    APPLICANT: Yes.

    MR WEST: I’ll start with your daughters first. So who do they live with?

    APPLICANT: They live with Ex-partner 1.

    MR WEST: Where are they living?

    APPLICANT: [Redcated].

    MR WEST: When was the last time you spoke to your daughters?

    APPLICANT: On the phone, about April/May [2023]. 

    MR WEST: When was the last time you saw them in person?

    APPLICANT: …It would've been, say, the Christmas time, actually, 2021.

    MR WEST: As you said earlier, your plans are to move to Mackay?

    APPLICANT: Yes…

    MR WEST: and your daughters are in [Redacted].  So that distance is going to be a bit of an issue in seeing them face-to-face regularly if your visa’s returned to you?

    APPLICANT: A much lesser distance than the United States. Yes, you’re correct, but still within the same country and able to have holidays and visits.

    MR WEST: If it were the case that you were returned to the US…you would still keep in touch with your daughters virtually, by phone or by FaceTime?

    APPLICANT: That’d be correct, yes.

    MR WEST: Given that distance between Mackay and [Redacted], and while it’s not as large as the US, your relationship with them would still mostly be on the phone or by video call with them?

    APPLICANT: Yes.[78]

    [78] Transcript, p 19, lines 38-47; p 20, lines 1-21.

15. The Applicant says that his daughters “would be devastated + heart broken” in the event of a non-revocation decision because he “would be in a different country + unable to spend time + watch them grow up”.[79] He also claims that non-revocation would do “untold damage to their psychological well being”. [80] The Applicant has further particularised:

    The prospect of my deportation would have devastating consequences, not only for myself but especially for my daughters as they transition from their informative teenage years to young adulthood. Separating a parent from their children during such a crucial developmental phase can have far-reaching and detrimental effects on their emotional well-being, identity formation, and overall life trajectory. The bond between a father and his children is essential for their growth and stability, and removing me from their lives would strip away a vital source of guidance, support, and love. The implications of this forced separation would be profound and could potentially shape the trajectory of their lives in a negative way, impacting their mental health, education, and future prospects. It is imperative to consider the long-term consequences before making decisions that could irreparably harm the lives of my daughters and disrupt the foundation of our familial bond.[81]

    [79] Exhibit Tr1, G15, p 120.

    [80] Exhibit Tr1, G15, p 118.

    [81] Exhibit Tr1, G16, p 131.

16. The Respondent accepts that revocation would be in the best interests of N1 and S1, but contends that limited weight should be given to this primary consideration in circumstances where:

    The applicant’s relationship with these children has been marked by a lengthy absence by reason of his incarceration and subsequent detention (paragraph 8.4(4)(a) of Direction 99). Even prior to his incarceration and subsequent detention, the applicant was not the primary care giver for these children. Further, N1 will turn 18 in less than three years, and S1 will turn 18 in four years and two months.

    It is unlikely that the applicant would play a positive parenting role in the future given his criminal history (paragraph 8.4(4)(b) of Direction 99).

    Any future exposure to negative conduct of the kind previously engaged in by the applicant would no doubt have an adverse impact on the children (paragraph 8.3(4)(c) of Direction 99).

    There is no independent evidence of the effect that any separation would have on these children, nor is there any obvious impediment to the applicant having contact with him via electronic means if he were to return to the USA. It would also be open for the children to travel to the USA to visit the applicant. If the children’s mother is unwilling to consent to such travel, it is open for the applicant to commence Court proceedings in this regard (paragraphs 8.3(4)(d) and (f) of Direction 99).

    The children live with their biological mother, who fulfils a parental role and there is no suggestion that she does so inadequately (paragraph 8.4(4)(e) of Direction 99).[82]

    [82] Exhibit R1, p 17, para 62.

17. It is difficult for the Tribunal to assess the Applicant’s claims about N1 and S1 in circumstances where the Applicant chose not to adduce any direct evidence from them. In my view, there appears to be a degree of unreality about the Applicant’s contentions and evidence about his daughters’ views, and the outcomes for them, in the event of a non-revocation decision. It is difficult for me to reconcile the notion that N1 and S1 will face “devastating consequences” if the Applicant’s visa is not returned to him. I reach this view on the basis that the Applicant appears to have been physically and otherwise absent from their lives for extended periods, and does not appear to be playing a true parental role, let alone a positive parental role, in their lives, given his criminal history, and substance misuse and abuse. The Applicant’s former partner appears to be playing the primary parental role for N1 and S1. On the Applicant’s evidence, he is willing to maintain some contact with N1 and S1 via electronic means (in the same way as for recent years). For these reasons, overall, I prefer the Respondent’s submissions on this Primary Consideration 4 in relation to N1 and S1; that is that revocation would be in the best interests of N1 and S1, but limited weight should be given to this primary consideration in relation to the same.

18. Separately, in relation to the Applicant’s minor-aged grandchildren in Australia (L1, S2, and M1), the Applicant says that:

    …As the girls have grown from toddlers into young children who recognize and remember me, our relationship has flourished and become significant in their lives. Not only do I cherish the opportunity to be a part of their lives, but they also eagerly anticipate our time together. Breaking this connection through a separation would not be beneficial to their upbringing or emotional growth. It is vital to recognize the value of intergenerational relationships and to ensure that these young children have the opportunity to experience the love, guidance, and shared experiences that only a grandparent can provide.[83]

    [83] Exhibit Tr1, G16, p 132.

19. The Applicant’s contentions in relation to his minor-aged grandchildren are supported by his son’s evidence[84] and support letter.[85]

    [84] Transcript, p 79, lines 46-47; p 80, lines 1-2.

    [85] Exhibit A4.

20. The Respondent says that it appears that the minor-aged grandchildren live with their biological parents and the Applicant’s role is that of a grandparent, not a parent. They contend that the Applicant’s relationship with these children has been marked by a lengthy absence and there is no obvious impediment to the Applicant maintaining contact with these children by electronic means. Accordingly, they say that revocation would be in the best interests of L1, S2, and M1, but limited weight should be given to this primary consideration in relation to the same.[86]

    [86] Exhibit R1, p 18, para 63.

21. Overall, on the materials before me, I accept the parties’ submissions that revocation would be in the best interests of N1, S1, L1, S2, and M1. That being said, in the circumstances, I consider that limited weight should be given to this Primary Consideration 4 for the reasons proffered by the Respondent.

    Conclusion: Primary Consideration 4

22. I find that this Primary Consideration 4 has limited weight in the instant case.

    PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

23. The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

24. The Direction makes clear that the Australian community’s expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The Direction further explains:

    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 [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.[87]

    [87] Paragraph 8.5(4) of the Direction.

25. With reference to the propositions in paragraph 8.5(1) of the Direction, the sub-paragraph’s architecture, to my mind, can be expressed thus:

    (a)the Australian community expects non-citizens to obey Australian laws while in Australia; and

    (b)as a norm, where a non-citizen has either:

    ·breached the expectation in the immediately preceding sub-paragraph (a); or

    ·there is an unacceptable risk that the non-citizen will breach the expectation in the immediately preceding sub-paragraph (a);

    then, the Australian community expects that the Australian Government will not allow such a non-citizen to enter or remain in Australia.

26. In addition to the guidance provided by paragraph 8.5(1) of the Direction, paragraph 8.5(2) of the Direction directs that a non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following relevant kind:

    (a)  acts of family violence; or

    …

    (c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

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

    …

1. 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.  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.[88]

   [88] Paragraph 8.5(4) of the Direction.

2. In this case, as already set out herein, the Applicant has a very extensive offending career. He has been convicted of repeated acts of family violence, as well as the commission of serious crimes against women and police in performance of their duties.[89]  

   [89] Exhibit Tr1, G4, p 36-41.

3. The Respondent contends that, observing the norm stipulated in paragraph 8.5(1), and in accordance with the guidance provided by the principles set out at paragraph 5.2 of Direction 99, the Australian community would expect that the Applicant should not continue to hold a visa on account of the serious nature of his past offending.[90]

   [90] Exhibit R1, p 18, para 67.

4. The Applicant concedes that his conduct did not meet the expectations of the Australian community.[91] The Respondent contends,[92] and the Applicant accepts[93] that Primary Consideration 5 weighs heavily against revoking the decision to mandatorily cancel the Applicant’s visa.

   [91] Transcript, p 98, lines 19-20; Exhibit Tr1, G16, p 134.

   [92] Exhibit R1, p 19, para 68.

   [93] Transcript, p 98, lines 19-20.

5. I accept and agree with the parties’ submissions on this Primary Consideration 5. Accordingly, I am of the view (and I find):

   ·the Applicant has breached the Australian community’s expectations by his extensive criminal record, evidencing repeated breaches of Australian laws. Therefore, the Australian community, “as a norm” expects the Australian government not to allow him to remain in Australia; and

   ·the Applicant’s conduct engages the principle in paragraph 8.5(2), because he has committed repeated acts of family violence, as well as the commission of serious crimes against women and police in performance of their duties. The Australian community expects that the Australian government can and should cancel the Applicant’s visa.

   Conclusion: Primary Consideration 5

6. In weighing the applicable factors, I find that Primary Consideration 5 weighs heavily against revoking the decision to mandatorily cancel the Applicant’s visa.

   OTHER CONSIDERATIONS

7. In making a decision under subsection 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

   (a)legal consequences of the decision;

   (b)extent of impediments if removed;

   (c)impact on victims; and

   (d)impact on Australian business interests.

   Other Consideration (a): Legal consequences of decision under section 501 or 501CA

8. Direction 99 provides that decision-makers must “be mindful” that unlawful non-citizens are liable to removal from Australia as soon as practicable, and in the meantime, detention.  Accordingly, the Tribunal is required to have regard to these legal consequences in reviewing an application.

9. Australia owes certain non-refoulement obligations under international treaties and covenants. Paragraph 9.1(3) of Direction 99 provides that international non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim, as is the case in the instant application.

10. The Applicant has made no non-refoulement claims in this application. In any case, as the Respondent contends, no non-refoulement obligations appear to apply to the Applicant, nor does the information before the Tribunal indicate that non-refoulement obligations arise in relation to the Applicant. It follows that this consideration is not relevant to the instant case.

11. While not raised by the Applicant as “another reason” for why the cancellation decision should be revoked, it is accepted that a consequence of the Tribunal affirming the decision under review is that the Applicant will be liable to removal from Australia to the United States as soon as reasonably practicable (see section 189 and 198 of the Act), and will not be able to apply for another visa while in Australia (with the exception of a protection visa) in accordance with section 501E of the Act.

12. In my view (and I find), it follows that Other Consideration (a) carries neutral weight in the instant case.

    Other Consideration (b): Extent of impediments if removed

13. Paragraph 9.2 of the Direction guides 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.

14. In the Applicant’s PCF, in response to a question about his concerns about being returned to the United States, the Applicant said:

    - No family or support base

    - Unfamiliarity to the country + its ways of working/society socially financially. A total unknown of daily operations + culture

    - Australia has always been my home…[94]

    [94] Exhibit Tr1, G12, p 104.

15. Also in the Applicant’s PCF, in response to a question about other problems the Applicant would face on return to the United States, the Applicant indicated:

    Total isolation, unfamiliarity, Financially & Accommodation are null & void for me to return.[95]

    [95] Exhibit Tr1, G12, p 104.

16. In the Applicant’s submission to the Department, he contended that he has “no family in the United States…The USA is a foreign land, with nothing familiar from family to culture and aspects of society whatsoever”.[96]

    [96] Exhibit Tr1, G16, p 135.

17. At the hearing, the Applicant’s submissions on impediments were configured thus:

    MEMBER:  … What do you say about the extent of these impediments having regard to your age and your health…whether there are any language or cultural barriers and whether there are any social, medical or economic support available to you in the United States?

    APPLICANT:  As far as social and economic support, I am unaware of anything really pertaining to me like the Centrelink system here or the healthcare card for medications and so forth.  I am aware it's a lot less than the Australian society.  That's not why I want to stay in Australia.  But it's a much more – I don't know, it's a sort of pay to play type scenario.  I don't feel that – I have investigated a little bit and if I go to America I don't think I qualify for any social benefits as I have not previously worked, as it stated on the internet, six months of the previous year to qualify for certain – like I'm not saying I want to go there and live on the dole.  But it is a bit of a concern to think that if I do have difficulties finding employment straight away I don't have any safety net.

    But by saying that, I'm not planning on just living on the beach or whatever.  I do have plans – well, I shouldn't say I have plans – but I know I have to get up and go find work.  That's the way the world works.  It's the way the world works here as well.  And then also it relates to healthcare over there as well.  If you don't work, you don't have healthcare.

    MEMBER:  …is…your age and health, your state of health… are impediments or that they are not impediments?

    APPLICANT:  I think they could be impediments.  I'm 51 now.  I'm not a young fellow that can run around like young people.  As you get older health issues are starting to creep up with just joints and just not manoeuvrable like I used to be.  And I do have – although it's a minor issue I do have psoriasis.  Yes, I do have a health issue.

    MEMBER:  Right.

    APPLICANT:  And in saying that I understand it's a first world country as well.  And African people have gone there and made a million dollars, so I'm not saying it's not possible.  But it is an impediment and it is a bit of a worry.  Yes, definitely a worry with my age and – yes.

    MEMBER:  And do you say that there are any substantial language or cultural barriers?

    APPLICANT:  No.  It's an English-speaking country.[97]

    [97] Transcript, p 98, lines 35-47; p 99, lines 1-32.

18. The Respondent’s submissions may be summarised as follows:

    ·the Applicant is taking medication for psoriasis and is attending mental health appointments, “there is no suggestion that he will be unable to access the same, or equivalent, medication and treatment in the USA”;[98]

    ·the Applicant spent the first part of his life in the USA and would not face any language or cultural barriers on return there. As a citizen of the USA, he would have the same access to social, medical and economic support as other citizens should he require those services;[99]

    ·while the Applicant says that he had no family in the USA, this does not mean that he will be unable to re-establish himself there;[100]

    ·the Applicant has an employment history in Australia, “including as a store person and a removalist, and there is nothing to suggest that he would be unable to find the same or similar employment in the USA.” The Applicant says he has been awarded “a Diploma in IT Management and a Certificate III and IV in Hotel Operations, which may open up other employment options for him in the USA”;[101]

    ·notwithstanding that the Applicant “may face some emotional and psychological hardship if he were to return to the USA, any such hardship would not be insurmountable and he would not face any substantial impediments to removal”. However, in all of the circumstances, it is likely that the Applicant will succeed in re-establishing himself in the USA and in maintaining basic living standards.[102]

    [98] Exhibit R1, p 20, para 73.

    [99] Exhibit R1, p 20, para 74.

    [100] Exhibit R1, p 20, para 75.

    [101] Exhibit R1, p 20, para 76.

    [102] Exhibit R1, p 20, para 77.

19. Overall, the Respondent contends that this Other Consideration (b) does not weigh in the Applicant’s favour and is neutral. In the alternative, the Respondent says that in the event that the Tribunal considers that this Other Consideration (b) weighs in favour of the Applicant, then, at most, only minimal weight ought to be given in favour of revocation.[103]

    [103] Exhibit R1, p 20, paras 78-79.

20. Based on the parties’ submissions, I am of the view that:

    ·Sub-paragraph 9.2(1)(a): The Applicant is in his early 50s. I do not consider his age to be a significant impediment to him re-establishing his life in the United States. The evidence before the Tribunal indicates that the Applicant suffers psoriasis and takes medication in respect of the same. He also declared some joint issues.  I consider (and find) that his health issues are likely insubstantial, and on balance do not present material resettlement impediments in the United States.

    ·Sub-paragraph 9.2(1)(b): The Applicant was born in the United States. There are no claims that he will face language barriers. The Applicant contends that he will face some cultural issues, which will adversely impact his capacity to reintegrate into life in the United States. I can readily accept that the Applicant may face some “culture shock” initially on return to the United States, and these may present some short-term impediments. That being said, I do not accept that such issues will persist over the medium to long-term.       

    ·Sub-paragraph 9.2(1)(c): I have earlier found that the Applicant’s state of health will not be an impediment to his return and resettlement to the United States. Despite the Applicant’s contentions, there is limited credible evidence that the Applicant will not have the same access to social, medical and economic support as other citizens should he require those services. The Applicant appears to have already started to investigate the same, as well as options for work. On his own submission, he will “go find work”.   

21. Overall, I am of the view (and find) that Other Consideration (b) confers minimal weight in favour of revocation of the decision under review.

    Other Consideration (c): Impact on victims

22. There is no evidence as to the impact a revocation or non-revocation decision may have on the victims of the Applicant’s offending. Overall, I find that this Other Consideration (c) is of neutral weight.

    Other Consideration (d): Impact on Australian business interests

23. The Applicant does not claim, and there is otherwise nothing on the material to suggest, that a non-revocation decision would significantly compromise the delivery of a major project or important service in Australia. Overall, I find that this Other Consideration (d) is of neutral weight.

    Findings: Other Considerations

24. I now summarise the respective weights I have allocated to each of the Other Considerations relevant to the present matter:

    (a)legal consequences of the decision: neutral weight;

    (b)extent of impediments if removed: minimal weight in favour of revocation;

    (c)impact on victims: neutral weight; and

    (d)impact on Australian business interests: neutral weight.

    CONCLUSION

25. Is there another reason to revoke the cancellation of the Applicant’s visa?

26. Under subsection 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.

27. In considering whether there is another reason to exercise the discretion afforded by subsection 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:

    ·Primary Consideration 1: carries a heavy weight against revocation;

    ·Primary Consideration 2: carries a heavy weight against revocation;

    ·Primary Consideration 3: carries a heavy, but not determinative, weight in favour of revocation;

    ·Primary Consideration 4: carries limited weight in favour of revocation;

    ·Primary Consideration 5: carries a heavy weight against revocation;

    ·I have outlined the weight attributable to the Other Considerations above. I am of the view (and I find) that the combined weights I have allocated to each of Primary Considerations 1, 2 and 5 are sufficient to determinatively outweigh the combined weight I have allocated to Primary Considerations 3 and 4, and Other Consideration (b), respectively; and

    ·A holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel the Applicant’s visa.

28. Consequently, I cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    DECISION

29. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 23 August 2023 to not revoke the cancellation of the Applicant’s visa.

    I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin.

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

    Associate

    Dated: 21 December 2023

    “ANNEXURE 1”

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
Tr1.	Section 37 G-Documents (G1-G34, pp 1-223)	-	-	06.09.2023
R1.	Respondent Statement of Facts, Issues and Contentions	R	13.10.2023
R2.	Respondent Tender Bundle
A1.	Applicant Summary of Hearing	A	27.09.2023	27.09.2023
A2.	Lives Well Lived Support Letter		26.09.2023
A3.	Caboolture Day Rehabilitation Program Flyer		-
A4.	Support Letter of Zachery R Verrill		03.10.2023	25.10.2023
A5.	Support Letter of Corey Verrill		20.10.2023
A6.	Stoddart Group SE Qld Employment Confirmation	A	-	25.10.2023
A7.	Universal Course correspondence and information
A8.	Relationships Australia correspondence and information
A9.	Serco correspondence and information