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

VFLV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4375 (21 November 2022)
Division:GENERAL DIVISION
File Number(s): 2022/7188
Re:VFLV
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Mr S Evans, Member
Date:7 and 8 November 2022
Date of decision: 21 November 2022
Date of written reasons: 16 December 2022
Place:Sydney

For the reasons which follow, the decision of a delegate of the Respondent dated 26 August 2022 not to revoke the mandatory cancellation of the Applicant’s visa is set aside. In substitution it is decided that the mandatory cancellation of the Applicant’s visa is revoked.
..............................[Sgd]..........................................
Mr S Evans, Member
Catchwords
MIGRATION – Non-revocation of mandatory cancellation – Class TY Subclass 444 Special Category (Temporary) Visa – where the Applicant does not pass the character test by virtue of his “substantial criminal history” – whether there is “another reason” to revoke the mandatory cancellation – consideration of Ministerial Direction 90 – offences brought on by drug use – interests of minor children who are teenagers – interests of family members who suffers from mental illness – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
Suleiman and Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCAFC 185
Secondary Materials
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Mr S Evans, Member
16 December 2022

VFLV (the Applicant) seeks review of a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (the visa) pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act).
For the reasons which follow, the reviewable decision was set aside on 21 November 2022, and in substitution the mandatory cancellation of the Applicant’s visa was revoked.
Introduction
The Applicant is a 40 year old citizen of New Zealand who immigrated to Australia on 3 February 2003 when he was 20 years old.[1]
[1] G14/68
On 3 February 2021, the Applicant was convicted of burglary and commit indictable offence, for which he was sentenced to a period of 18 months imprisonment.[2] On 16 August 2021 the Applicant’s visa was cancelled under subsection 501(3A) of the Act as he did not pass the character test owing to having a ‘substantial criminal record’ (the mandatory cancellation decision).[3]
[2] G6/41
[3] G27/156
On 24 August 2021, the Applicant applied to the Respondent to have the mandatory cancellation decision revoked under section 501CA(4) of the Act.[4] On 5 May 2022, the Respondent invited the Applicant to comment on information it had received relating to the Applicant, including his offending in New Zealand and sentencing remarks for his offending in Australia.[5] The Applicant responded to the invitation with a statement on 9 May 2022.[6]
[4] G13/61
[5] G28/163
[6] G15/80
On 26 July 2022, the Respondent invited the Applicant to make further representations on information it had received,[7] including a parole revocation order from the Queensland Parole Board.[8] The Applicant responded to that invitation with a statement on 27 July 2022.[9]
[7] G29/166
[8] G29/169
[9] G17/128
On 26 August 2022, a delegate of the Respondent decided under subsection 501CA(4) of the Act not to revoke the mandatory cancellation of the visa (the non-revocation decision).[10] The Applicant was informed of the decision on the 29 August 2022 by email,[11] and on 1 September 2022 the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the non-revocation decision.[12]
[10] G5/39
[11] G3/12
[12] G2/3
ISSUE TO BE DETERMINED
The issue for the Tribunal to consider is whether to revoke the original decision to cancel the Applicant’s visa pursuant to subsection 501CA(4) of the Act.
Paragraph 501CA(4)(b) of the Act provides the Tribunal may revoke the original decision if the Tribunal is satisfied:
(a)that the Applicant passes the character test; or
(b)that there is another reason why the original decision should be revoked.
Paragraph 501(6)(a) provides that a person does not pass the character test defined in section 501 of the Act if they have a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person who has been sentenced to a term of imprisonment of 12 months or more has a substantial criminal record.
As the Applicant was sentenced to 18 months imprisonment on 3 February 2021 I am satisfied he does not pass the character test for the purpose of paragraph 501CA(4)(b)(i) of the Act.
As he does not pass the character test, the sole issue for determination is whether the Tribunal can be satisfied that there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked.
Relevant Law and ministerial direction no. 90
Section 501CA of the Act applies where the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test.
Paragraph 501(6)(a) of the Act provides that a person does not pass the character test if the person has a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 90).
Paragraph 5.2 of Direction 90 provides principles which I have considered when reviewing the Applicant’s application. It relevantly provides:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of the Direction identifies the considerations the Tribunal must have regard to when determining whether to exercise the discretion to revoke the mandatory cancellation of a visa. The primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be considered ‘secondary’ or of inherently less importance than primary considerations, and in certain circumstances one or more other considerations may outweigh primary considerations.[13]
[13] Suleiman and Minister for Immigration and Border Protection [2018] FCA 594, [23] per Colvin J
The primary considerations in the Direction are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) family violence committed by the non-citizen;
(3) best interests of minor children in Australia affected by the decision; and
(4) expectations of the Australian Community.
The other considerations set out in Direction 90 which must be taken into account where relevant include but are not limited to:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community.
Evidence
The Applicant’s evidence
The following account is based on oral evidence and written submissions of the Applicant.
The Applicant was born in New Zealand in July 1982 and raised by his mother.[14] From age 6 ‘or perhaps earlier’ the Applicant was sexually and physically abused by a relative, which led to him heading down ‘a very destructive path’ and using drugs ‘to escape’. From age 9, the Applicant began experimenting with substance use,[15] beginning with cigarettes and alcohol and then marijuana. When he was approximately 13 years old he began smoking methamphetamine and engaging in criminal activity with older relatives and local gangs.[16]
[14] G14/67
[15] G15/80
[16] G15/80
The Applicant continued to be abused until his teens when he was able to defend himself.[17]
[17] G15/80
In 1999, when he was 17 years old he was arrested in New Zealand and sentenced to 3 months corrective training for a series of offences including common assault, disorderly behaviour, aggravated assault (firearm) and assaulting the police.[18] In his evidence the Applicant admitted to ‘stealing clothes and food’ and assault, but denied the offending included the use or possession of a firearm. He stated that on the day of the offending he had travelled to visit his family whilst high on marijuana, and stole from the warehouse because he was homeless at the time and under the influence of drugs.[19]
[18] G8/47
[19] G15/80
In 2003 the Applicant immigrated to Australia in the hope of leaving behind the gangs, drugs and alcohol abuse which had ‘taken over his life’. Upon arriving in Australia, he continued to struggle with substance abuse which had transitioned from a way of coping with his difficult childhood into an addiction.[20]
[20] G15/80
Soon after arriving in Australia the Applicant met RF.[21] The couple married and had four daughters together before separating in 2017.[22] At the beginning of their relationship RF and the Applicant would drink alcohol together. RF stopped using alcohol and encouraged the Applicant to quit using drugs and alcohol. The Applicant’s continued substance use contributed to the volatility and deterioration of their relationship.[23]
[21] Transcript of proceedings dated 7 November 2022, 33
[22] G14/70
[23] Transcript of proceedings dated 7 November 2022, 33
In 2018 the Applicant began a relationship with JR, who he plans to marry ‘as soon as possible’ should he be returned to the community. JR suffers from depression and anxiety and the Applicant’s absence has been detrimental to her mental health.[24]
[24] G14/69
Should the cancellation of his visa be revoked, the Applicant plans to return to Queensland, where he will initially reside with his sister LE.[25] He has a standing offer of employment from Breakout Scaffolding - a company he had a part in founding[26] - and his cousin has offered him a vehicle and financial support to re-establish himself.[27]
[25] Transcript of proceedings dated 8 November 2022, 59
[26] Letter offering employment from George Jnr McDonald dated 31 October 2022
[27] Transcript of proceedings dated 7 November 2022, 39
His intention is to save money and move to a place of his own so that his two eldest daughters can live with him. The Applicant is concerned about the welfare of his children and particularly his two eldest daughters who report having a volatile and unstable relationship with RF.[28] He is particularly concerned about his eldest daughter ML, who has been diagnosed with borderline personality disorder.[29]
[28] Transcript of proceedings dated 7 November 2022, 27
[29] Transcript of proceedings dated 7 November 2022, 43
CK – the Applicant’s sister
The Applicant’s older sister CK has prepared two written statements in support of the Applicant. In her statement dated 26 January 2022,[30] CK acknowledges the Applicant ‘is not a saint’, but claims that ‘the last couple of years have been a major turning point.’ She believes the Applicant now has the support he requires to get his life on track.
[30] G23/142-145
CK details the dysfunctional circumstances she and the Applicant experienced as children, including abuse. She writes in part:
While I make no excuse for his actions and the decisions he has made, I would like to emphasize that my brother has a story that has led him to where he is now. It is important for you to know his story when considering his fate and making a decision that would have the most significant impact on his life.
In telling his story I will also have to share mine, which is not something I would usually care to divulge to anyone. But the importance of his plight far outweighs my dignity. My brother and I are survivors of long-term child abuse and neglect. We were grossly neglected by our mother and due to this were vulnerable to what we would sustain throughout our childhood and early teens. We were both subjected to sexual abuse by a male relative from young ages. I was 5 years old when the abuse began. At the age of 14, I found out that my brother was also being abused by the same person from the age of 9 years old. For years, we both suffered in silence until we spoke up to each other about it. We also found out that an older female relative who had also been sexually abusing both of us, was abused by the same male from an early age. We learnt to protect ourselves by physically attacking the male as we got older but that didn’t always work. The female moved away to another town when we were 10 and 12, and on top of this I was being physically abused by my mother. She was an alcoholic at the time. My brother suffered psychologically. The abuse we both suffered was frequent and enduring. I tried in vain to tell the adults around us. They dismissed our claims. Due to the denial our adult family members lived in we were never able to talk to anyone who could help us. As children, we never received any type of counselling or therapy to help us through the psychological trauma that we would carry on into adulthood. We did have each other but as I got older the physical abuse from my mother worsened. I just wanted to escape. Eventually our lives took different paths, and we would reunite again when we were in our 20s.[31]
[emphasis added]
[31] G15/142-143
CK recalls that when he was a teen the Applicant began to ‘associate with troubled kids’ and engage in criminal behaviour.[32]
[32] G15/143
Shortly after the Applicant and RF met, they started a family. They married following the birth of their second child. However, CK observed their relationship ‘was growing tumultuous and toxic’, which she attributes to their different backgrounds and RF’s inability to understand the Applicant’s trauma or how to support him. She writes that the Applicant ‘turned to alcohol and became very depressed’, which contributed to RF becoming frustrated and feeling unsupported. She writes:
[RF’s] frustrations grew due to having no support from him to take care of their 2 young babies. He went to work, drank a lot and was absent from the home for days at a time. They had fights and arguments where his wife would become so frustrated that she would scream the neighborhood [sic] down. He would take off when the yelling escalated and would disappear for days before returning. And this was the beginning of the toxic pattern their relationship became, with each year getting worse and worse. They became very toxic for each other, and their relationship became on and off for years.[33]
[33] G15/143
CK maintains that to her knowledge, the Applicant had never violently attacked or abused RF. She contends that RF would use their children as ‘weapons’ against him, and that the Applicant was often arrested or charged with domestic violence offences without cause. [34]
[34] G15/143-144
In a second statement dated 9 October 2022, CK writes that should the Applicant be allowed to remain in Australia, she will allow him to stay with her in her home until he can get back on his feet. She had also contacted several employment agencies to assist the Applicant in finding employment as soon as he is released.[35]
[35] Second statement of CK dated 9 October 2022, 2
JR – Applicant’s partner
In an undated statement JR confirms that she and the Applicant have been in a committed relationship since June 2018. They have been in regular contact with each other since, including during the Applicant’s imprisonment and subsequent detention.
She describes the Applicant as intelligent, thoughtful, understanding and loving.[36] When JR met the Applicant, she had recently given birth to her daughter, TA. JR states that as a first time parent, the Applicant was instrumental in assisting her to raise TA and he has been a positive influence on the child.[37]
[36] G24/148
[37] G24/147-148
JR considers herself an important part of the Applicant’s support network. She states that she suffers from separation anxiety and fear of abandonment, which the Applicant has been able to alleviate through his devotion and commitment to their relationship.[38]
[38] G24/147
JR remains in contact with the Applicant’s daughter AF and believes that the possibility of his deportation is unbearable for her. The thought is distressing for AF who fears having to move to New Zealand, start at a new school and leave her sisters behind.[39]
[39] G24/149-150
She writes of the Applicant’s difficult relationship with his ex-wife RF and the struggle he has had to go through to see his daughters. She also confirms that the Applicant’s sister CK will suffer should the Applicant be removed.[40]
[40] G24/151

Should the Applicant be deported to New Zealand, JR writes that she would not be able to go with him. She fears his deportation would exacerbate her depression and anxiety.[41]
[41] G24/152
Jared Stennett – the Applicant’s bible study teacher
Jared Stennett is a member of the Jehovah’s Witnesses congregation which the Applicant has participated in since January 2022. In a statement dated 11 May 2022,[42] he writes that the Applicant has regularly studied with he and his wife. Mr Stennett has found the Applicant to be a genuine and honest individual who is determined to learn and to live to God’s high standards for living.[43] In a subsequent statement dated 12 October 2022, Mr Stennett confirms that the Applicant has continued to progress in his studies and to participate actively and consistently in the weekly study sessions in addition to online religious services.[44]
[42] G24/153
[43] G24/153
[44] Letter of Support from Jared Stennett dated 12 October 2022
DISCUSSION
Primary consideration 1 – protection of the Australian community from criminal or other serious conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. When considering the protection of the Australian community, the Direction requires decision makers to have regard to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
The Applicant’s criminal and traffic offending history is set out in the Respondent’s Statement of Facts, Issues and Contentions (Respondent’s SFIC).
Offending in New Zealand
Before immigrating to Australia the Applicant had been convicted of 12 offences in New Zealand. A New Zealand Police History Report details offences between December 1999 and June 2001 including Burgles (Oth Prop) (Under $500) by day, for which he was sentenced to 4 months of non-residential periodic detention, and Common Assault and Assault Police (Manual). It is also recorded that on 10 April 2000 he was convicted of Aggravated Assault (Firearm). As a consequence of the offending the Applicant was sentenced to a custodial sentence of three months corrective training.[45] There are no further details of his offending in New Zealand before the Tribunal, but I note the Applicant’s oral evidence denying any of his offending involved firearms.
[45] G8/47
Traffic and other offending
As detailed in the Applicant’s Australian National Criminal History Check report, the Applicant received fines for a number of traffic and public order offences between February 2003 and March 2019.[46]
[46] Respondent’s SFIC, [13]; See also Respondent’s Supplementary Tender Bundle (RTB), S58/191-193
March 2019 convictions
On 15 March 2019 the Applicant was convicted of offences including driving without a licence disqualified by a court order,[47] three counts of failing to appear in accordance with undertaking, and contravention of domestic violence order (aggravated offence), contravention of domestic violence order, possess utensils or pipes etc for use and possessing dangerous drugs.[48] He was sentenced by the Richlands Magistrates Court to 12 months imprisonment for each failure to appear suspended for 3 years, fined $1200 and had his license suspended.[49]
[47] G10/52
[48] G6/41-42
[49] G10/52, see also G6/41-42
In sentencing the Applicant Magistrate Shearer observed that the Applicant was on his ‘last legs’ having demonstrated over the years, particularly in relation to traffic offences, that he ‘couldn’t care less about the law’. He observed that the more serious offence was the driving disqualified offence in the ‘context of [the Applicant’s] horrendous traffic history and the fact that the offence was either the first or the second offence of disqualified driving that day’. [50]
[50] G10/52
January 2020 conviction - contravention of domestic violence order
On 10 January 2020 the Applicant appeared in the Ipswich Magistrates Court where he was sentenced to 18 months probation and had his suspended sentence extended by 3 months in relation to one count of contravention of domestic violence order (aggravated offence).[51]
[51] G6/41
In total, the Applicant has been convicted of breaching a DVO on 8 occasions.
February 2021 conviction - Burglary stealing, wilful damage and trespass
On 3 February 2021 the Beenleigh Magistrates Court sentenced the Applicant to 18 months imprisonment for Burglary and commit indictable offence. He was also given a 6 month sentence to be served concurrently for Wilful Damage and Threatening Violence – By Words or Conduct.[52]
[52] G6/41
In sentencing the Applicant Magistrate Shepherd stated that the most serious offending was the burglary on the 10 April 2020 for which he was handed an 18-month sentence:
The most serious matters relate to your conduct on the 10th of April 2020. On that occasion you were suffering the influence of methylamphetamines. Mr Elliot tells me that you had really spiralled through the separation of your – the breakdown of your relationship and the fact that you – there were issues around you having contact with your children. There was a protection order in place at the time which you have been breaching by having contact with the aggrieved outside the parameters of the order. Those breaches are before me also.[53]
[53] G9/49
Her Honour described the details of the burglary which occurred whilst the Applicant was under the influence of methamphetamines:
In that context you went on a bender, it would seem. Mr Elliot tells me you hadn’t slept for days, and the events occurred. Neighbours woke – awoke to banging to find you on top of a shed. You made threats to damage their neighbour’s home. You then entered underneath the – that home. These are people unknown to you. The family, including young children, were present. They awoke also, again to the noise you were making. You – your actions then troubling and outlined in exhibit 1. You entered underneath the dwelling. You threatened that you were going to set yourself and the house on fire. The witness pleaded with you not to do that, advised you there were – there was a family with children at the address. You then poured fuel from a fuel container around the dwelling and then, as Mr Elliot points out, you then picked up a fire extinguisher and discharged that over the floor. The white staining and the fuel damage is the wilful damage charge.
The family, as I have said, awoke to the noise coming from beneath their house. They became aware of the fact that you poured fuel around and the threats that you had made, and they immediately evacuated the address with their five young children aged one year through to 14 years. Police arrived a short time later. I don’t think it is difficult to imagine that it would have been a terrifying experience for that family. o hospital where you remained for a number of days.[54]
[54] G9/49
On 3 February 2021 the Applicant was released from prison on parole.[55] On 28 June 2021 the Applicant’s parole was suspended indefinitely after testing positive to amphetamine and methamphetamine on 24 June 2021.[56] He has been held in prison and then immigration detention since 12August 2021.[57]
[55] RTB, S93/280
[56] RTB, S94/283
[57] RTB, S126/491
In considering the nature and seriousness of the Applicant’s offending I take into account that the offending began soon after he arrived in Australia when he was fined for Commit public nuisance and Obstruct police officer on 31 August 2004.[58] His offences include multiple breaches of DVOs including one instance where he was verbally abusive and clenched his fists at his ex-partner.[59] Crimes of a violent nature against women and acts of family violence are considered very serious.
[58] G6/42
[59] RTB, S6/28
Taken together, his offending shows a frequency which demonstrates a continuing disregard for the law and a trend of increasing seriousness.
The Applicant also provided false information when completing his incoming passenger cards on 29 July 2003 and 15 July 2013 where he failed to disclose that he had been convicted of an offence when he returned to Australia from New Zealand.[60]
[60] G26/154-155
In considering the totality of the Applicant’s offending and having regard to the Direction, the Applicant’s conduct must be regarded as very serious.
The risk to the Australian community
Paragraph 8.1.2 of Direction 90 provides that in considering the protection of the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases. In assessing the risk posed by a non-citizen to the Australian community, I should consider, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending and evidence of rehabilitation achieved by the time of decision, with weight to be given to the time spent in the community since the non-citizen’s most recent offending.
The nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct
Based on the Applicant’s criminal history, I am satisfied that if the Applicant were to engage in further similar offending, the Australian community would be exposed to significant physical, psychological and financial harm.
The likelihood of the Applicant engaging in further criminal or other serious conduct
The Applicant has expressed remorse for his offending and acknowledges the harm his offending has caused to his family[61] and the potential harm which his driving offences may have caused other road users.[62]
[61] G14/81; see also Transcript of Proceedings dated 7 November 2022, 2
[62] G17/129
A Queensland Corrective Services assessment dated 16 January 2020 rates the Applicant’s risk of reoffending as being 10 out of 20, with 20 being the highest risk of reoffending.[63] The report recommended the Applicant receive treatment from a psychologist, undertake the Men’s Domestic Violence Offender Program and develop a drug relapse prevention plan.[64]
[63] RTB, S81/247
[64] RTB, S123/485
The Applicant in his own statements recognises that most of his offending occurred whilst he was under the influence of substances, primarily alcohol or methamphetamine.[65]
[65] G14/75
Having come to understand the role that substance abuse played in his offending, the Applicant claims to have begun his recovery in 2017 following a motor vehicle accident which resulted in him being disqualified from driving for driving under the influence. In 2019 he ceased using marijuana and cigarettes.[66] However, he continued to use methamphetamines, which was central to the 10 April 2020 burglary offence.
[66] G15/81
In relation to the burglary offence the Applicant gave evidence of having smoked methamphetamines at a house and lost track of time, which he said was common when using methylamphetamine. He says that others who were present in the house ‘sort of almost forced me to shoot ice…with needles’, which he had not done before.[67]
[67] Transcript of Proceedings dated 7 November 2022, 3
He recalled a chaotic situation in which he was being pursued by drug dealers who were seeking money from him.[68] A corrective services parole board report records that he had consumed 3.5 grams of methamphetamine[69] ‘triggering drug induced psychosis’ requiring him to spend approximately two weeks in the Logan Mental Health Unit.[70] The Applicant did not use drugs after the burglary offence until June 2021, when he returned a positive drug test which resulted in his parole being revoked on 28 June 2021.
[68] Transcript of Proceedings dated 7 November 2022, 3
[69] RTB, S81/246
[70] RTB, S93/280
During the hearing the Applicant was questioned about the circumstances which led to his taking methamphetamine having not done so since the burglary offence on 10 April 2020. He explained that whilst on parole he attended the funeral of a family friend’s partner. He was aware that the funeral would likely be attended by people with whom he had a history of drug use and it was at the funeral that he relapsed. When asked why he chose to attend the funeral having understood the risk, he told the Tribunal he thought he had the strength not to take drugs and that he regretted doing so immediately after.[71]
[71] Transcript of Proceedings dated 7 November 2022, 10
He gave evidence that his drug use the day of the funeral was his only relapse in two and a half years. He claims to have subsequently identified techniques to make sure it does not happen again and points to his subsequent abstinence as evidence of his resolve. When it was put to him that he had not been in the community for most of that time, he argued that drugs are readily available in both prison and detention.[72]
[72] Transcript of Proceedings dated 7 November 2022, 14
Through his involvement in rehabilitation programs the Applicant has come to understand that there is a ‘is a 99 percent chance’ of relapsing at least once when recovering from addiction. Having made that mistake, he does not wish to repeat the experience and has sought to learn from it. He now has a more realistic understanding of what he needs to do in order to stay sober.[73] When it was put to him that many people with similar addictions do not maintain their recovery, he told the Tribunal:
I see people that won’t go the course. This is not my first time doing this either so, you know, a lot of people – you might not succeed the first time or the second time, but if you condition to do it, you just get a little bit more stronger each time and you learn more every time. And I honestly think that I have the strength now and the ability to be able to walk away from my past life easily. It doesn’t even cross my mind anymore.[74]
[73] Transcript of Proceedings dated 7 November 2022, 22
[74] Transcript of Proceedings dated 7 November 2022, 24
At the beginning of the year the Applicant began attending SMART recovery meetings which he has found beneficial. The 60 to 90-minute meetings are held weekly and conducted by a group facilitator with up to 20 participants.[75] An email from Keren Johnstone of SMART Recovery dated 3 August 2022 confirms that he had attended 9 meetings between May and August 2022. Subsequent emails from Ms Johnstone also support the Applicant’s claim to have continued regularly attending the meetings.[76]
[75] Transcript of Proceedings dated 7 November 2022, 15-16
[76] See Emails from Keren Johnstone dated 9 August and 26 October 2022, stating the Applicant attended SMART Recovery meetings regularly over a period of 10 months in 2022.
Ms Johnstone has identified the Applicant as a potential SMART Recovery facilitator and has offered to recommend to her manager that he obtain the training required to become a facilitator.[77] He says he is enthusiastic about the prospect because he enjoys helping people.[78]
[77] Transcript of Proceedings dated 7 November 2022, 17
[78] Transcript of Proceedings dated 7 November 2022, 40
The Applicant has been attending weekly counselling with a psychologist or mental health nurse since February 2022.[79] On 29 July 2022 psychiatrist Alexander Van Hatten diagnosed the Applicant with ‘Complex Post Traumatic Stress Disorder due to [being] repeatedly sexually abused by grandfather as a child’.[80]
[79] Transcript of Proceedings dated 7 November 2022, 18-19
[80] Undated list of Applicant’s appointments with psychologists and psychiatrist Alexander Van Hatten from February to October 2022
The Applicant submits that his work with a psychologist has helped him develop techniques to cope with the disorder.[81]
[81] Transcript of Proceedings dated 7 November 2022, 19
Following his transfer into immigration detention, the Applicant made contact with the Jehovah’s Witness congregation which RF had been a member of. He currently works with members of the congregation through video-calls twice a week, and undertakes bible study sessions both individually and with Mr Stennett and his wife.[82] He gave evidence that his goal of being baptised into the Jehovah’s Witness faith is a significant motivating factor in him to continue to strengthen his recovery.[83]
[82] G16/84-127
[83] Transcript of Proceedings dated 7 November 2022, 24
Conclusion as to the protection of the Australian community
I found the Applicant to be a credible witness who did not seek to downplay the seriousness of his offending or provide inconsistent or self-serving evidence.
The evidence supports a conclusion that the Applicant’s offending is serious and consistently involved the use of drugs or alcohol. The Applicant’s oral evidence demonstrated a genuine and realistic appreciation of the causes of his offending and a sophisticated understanding of the nature of his addictions. Most importantly, he appreciates the challenges he will continue to face in order to remain sober and has set in place strategies to do so. He has accessed comprehensive support through SMART recovery, counselling and the Church, albeit relatively recently. Nonetheless, I accept that the Applicant is committed to his recovery and is accessing the support he requires to ensure continued progress.
However, given the persistent nature of his offending behaviour, the risk of reoffending remains, albeit one which is trending towards low. As such, this primary consideration is afforded significant weight against revocation.
PRIMARY CONSIDERATION 2 - Family violence committed by the non-citizen
The second primary consideration is relevant in circumstances where a non-citizen has engaged in conduct which constitutes family violence.
Family violence is defined in Part 4 of the Direction to include violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes that family member to be fearful.
Direction 90 subparagraph 8.2(3)(a) to 8.2(3)(d) provides that in considering the seriousness of the family violence engaged in by the non-citizen, factors such as the frequency of the conduct, any trend of increasing seriousness, the cumulative effect of repeated acts of violence, rehabilitation achieved and whether the non-citizen has reoffended since being formally warned are relevant factors.
The Applicant’s offending includes 8 instances where he was convicted of breaching a DVO. To impose a DVO, a court must be satisfied that the person has committed domestic violence.
In relation to one of the breaches, Queensland Police Records detail that on 19 February 2020:
…the aggrieved [RF] has returned home [from] work at 3:30pm and found all her children were home at her address… The aggrieved has talked to their children who said that the respondent had meet them at McDonalds …. and then driven them home. The aggrieved has spoken to a neighbour who confirmed that the respondent did drop the children home. The aggrieved has reported this to police and provided a statement. The independent neighbour who knows both the aggrieved and the respondent has also provide a statement outlining how she observed a vehicle drop the child off at the aggrieved’s address and that she observed the respondent to be driving the vehicle.[84]
[84] RTB, S19/93
The details of a breach which occurred on 20 November 2019 are recorded in a Queensland Police Brief.[85] Police were called to attend regarding a domestic violence incident from one of his daughters who stated that her father was ‘pushing around her mother’ and smashing property in the house and stated that RF had locked herself into a bedroom and the Applicant was attempting to get into the room. Police attended and located RF and children in the driveway of the address. RF stated that she wanted the Applicant to leave the address and that he was refusing. When police spoke to the Applicant he told them that RF had become involved in a heated verbal argument over cake. The Applicant stated that RF told him to leave the address. He told police that RF took his phone and smashed it. He then grabbed RF to get the phone back and he and her became involved in a wrestle over the phone. When taken to this report during the hearing the Applicant told the Tribunal that RF had locked herself in the room to go through his phone and he was trying to get the phone back from her.[86]
[85] RTB, S14/68
[86] Transcript of Proceedings dated 7 November 2022, 7

A Queensland Police Service court brief states that on 14 February 2020 the Applicant sent an email to RF which read:
Can we please talk. I want to see my babies. Why do you choose to be so difficult. Just to hurt me?[87]
[87] RTB, S18/89
A second email in similar terms was sent on the same day, and on 23 February 2020 RF provided a statement to police. Police spoke to the Applicant and informed him that he was not allowed to contact RF without permission. The police noted that ‘whilst the severity is minor’ it was a breach and was ‘causing significant stress and anxiety’.[88]
[88] RTB, S18/89
The Applicant has regularly breached the non-contact conditions of DVOs imposed against him and in several instances he has behaved aggressively towards RF, either verbally or in writing. As such he has engaged in family violence.
In considering the seriousness of the family violence engaged in by the Applicant, I am mindful that there is very limited evidence of the Applicant having engaged in physical abuse. The Applicant conceded during the hearing that he on occasion ‘man-handled’ his ex-wife but denied having engaged in actual violence.[89] The 16 January 2020 corrective services risk of reoffending assessment notes in relation to his domestic violence offending that:
The index offending portrays a verbal altercation between [VFLV] and the aggrieved. The nature of the Domestic Violence exhibited in [VFLV]'s offences are verbally abusive and manipulative. Whilst the severity of the offences are minor, [VFLV] attempts to contact his ex-partner and children continuously breach his Domestic Violence order. It is assessed [VFLV] will benefit from a Domestic Violence program to address his history of un-stable relationships and how to reduce risk of future Domestic Violence offending.[90]
[89] Transcript of Proceedings dated 7 November 2022, 38
[90] RTB, S123/483
While the children were present and witnessed the acts of aggression exhibited by the Applicant, they were not the targets of the Applicant’s behaviour. I also take into account that the Applicant concedes the impact of his conduct and particularly the pain it has caused his daughters. I find his expressions of remorse genuine.[91] He has also undertaken a Family Violence Foundations course[92] and a separate course on Anger Management[93] to address the factors which contributed to his conduct.
[91] Transcript of Proceedings dated 8 November 2022, 55
[92] G19/135
[93] Applicant’s Certificate for Anger Management 101 dated 13 October 2022
The Applicant and RF are now divorced and he plans to seek access to his two youngest daughters though appropriate means.
Taking into account the evidence in relation to this primary consideration, I am satisfied that the nature of the family violence engaged in by the Applicant was at the lower end of the spectrum in terms of its seriousness. Heated arguments and threatening behaviour, whilst serious, fall at the lower end of the spectrum of such conduct. As such, whilst this primary consideration weighs against revocation, it is accorded less weight than would otherwise be the case.
primary consideration 3 - BEST INTERESTS of MINOR children in australia
Direction 90 sets out a number of factors to be considered in assessing the best interests of minor children. These include the nature and duration of the relationship between the child and the person, the extent to which the person is likely to play a positive parental role in relation to the child, the likely effect that any separation from the person would have on the child, whether there are any other people who fulfil parental roles with the child, any known wishes of the child, and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person’s actions including through exposure to family violence.
The Applicant is father to four daughters. His eldest child, ML, is currently 18 years old and no longer a minor. AF is 16, TA is 11 and AM is 8 years old.[94]
[94] Transcript of Proceedings dated 7 November 2022, 25
The Applicant claims to have a strong relationship with AF, who he proposes living with or close to should he remain in Australia. The Applicant gave evidence, which I accept, that his children have an unstable home environment and that he is a stabilising influence.[95] AF clashes with her mother and sought to emancipate herself from her, but the Applicant ‘managed to talk her out of that’, telling the Tribunal that he did not think it was healthy for his daughter.[96]
[95] Transcript of Proceedings dated 7 November 2022, 27
[96] Transcript of Proceedings dated 7 November 2022, 28
AF provided two statements to the Tribunal. In a statement dated 19 May 2022 she writes that her father is like her best friend, but is also ‘protective and caring…respectful and loving’. She writes of having a ‘rocky’ relationship with her mother, who she claims was abusive towards her. After being ‘kicked out’ of home by her mother, AF moved in with the Applicant, who ‘was never abusive’ and with whom she felt safe. However, due to her age and ‘legal reasons put in place’ by her mother, she was not able to stay with him all the time. She writes that she will be significantly affected should the Applicant not be allowed to remain in Australia.[97]
[97] G22/141
In a separate statement AF writes that should the Applicant return to New Zealand she would have no choice but to accompany him given the unstable relationship she has with her mother. She also acknowledges ML’s mental health issues and states the Applicant is ‘the only one that can calm [ML] down and get through to her when she has explosive episodes.’ She also confirms that her two younger sisters, who are in the care of RF, maintain a desire to see the Applicant.
The Applicant acknowledges that he has not seen his two youngest children for 2 years,[98] but claims to speak to them often on the phone and they also write to him and draw pictures.[99] Mindful of the terms of the DVO that remains in force, the Applicant has sought help in obtaining access to the children for visitation through Family Relationships Australia.[100]
[98] Transcript of Proceedings dated 7 November 2022, 25
[99] G14/71
[100] Transcript of Proceedings dated 7 November 2022, 25
In her written statement, the Applicant’s current partner JR describes how her daughter sees the Applicant as her father despite him not being her biological father. JR writes that the Applicant played a major role in looking after her daughter prior to his incarceration,[101] Should the Applicant be allowed to remain in Australia, she and the Applicant plan to marry and build a ‘blended family’.[102]
[101] G24/147
[102] G24/148
The evidence before the Tribunal strongly supports the conclusion that the Applicant is committed to his children and to continuing to supporting them. It is to the Applicant’s credit that this extends to encouraging his children to maintain and build the relationships they have with their mother.
Overall, I find that the best interests of the children are served by revocation. The evidence of the Applicant’s two eldest children is that he is an important source of support and stability for them. I accept that should the Applicant be physically distant from his two youngest children, it will make it more difficult to re-establish and maintain a relationship with him. I accept as genuine the Applicant’s stated intention of seeking access to TA and AM through mediation with RF and Family Relationships Australia.[103]
[103] Transcript of Proceedings dated 7 November 2022, 25
The evidence strongly supports the Applicant having a close relationship with AF and I accept his desire to maintain an active role in the lives of TA and AM is genuine. Should the Applicant not remain in Australia, he will be unable to make good his offer of a safe and stable home for his daughters, the two eldest of whom report an unstable and volatile relationship with their mother. It will also be difficult for him to maintain a relationship with TA and AM given their age if he is in New Zealand. I also accept that the Applicant’s intention to continue supporting JR in raising her daughter.
For these reasons, this primary consideration weighs very heavily in favour of revocation.
primary consideration 4 - Expectations of the australian community
Paragraph 8.4 of the Direction requires me to consider the expectations of the Australian community. Subparagraph 8.4(1) relevantly states:
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.
In FYBR v Minister for Home Affairs[104] (FYBR) the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration. That is, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to paragraph 8.4 of Direction 90.
[104] [2019] FCAFC 185
The Direction lists specific conduct which the Australian community as a whole expects would raise serious character concerns and an expectation that the person would not hold an Australian visa. Having regard to the provisions of Direction 90 and the Applicant’s criminal offending, the Australian community would expect that the Applicant should not continue to hold a visa.
Observing the norm and the principles outlined in in paragraph 5.2 of Direction 90, I am satisfied that the expectations of the Australian community would normally weigh against revoking the visa cancellation on account of the Applicant’s criminal conduct.
Other considerations
I now turn to considering the other relevant considerations set out in the Direction.
Extent of Impediments if removed
I am required to consider the extent of any impediments that the Applicant may face if removed from Australia in establishing himself and maintaining basic living standards in New Zealand.
Should he be returned to New Zealand the Applicant intends to continue his rehabilitation. He acknowledges that his ongoing recovery would face additional pressures in New Zealand as he would be isolated from his support network and anticipates being financially disadvantaged in New Zealand due in part to difficulty finding employment as a ‘501 deportee’.[105]
[105] Transcript of Proceedings dated 7 November 2022, 23-24
The Applicant ‘s mother and one of his sisters continue to live in New Zealand.[106] I note that his sister CK states that should the Applicant be removed from Australia, he faces having no community support in New Zealand, as his mother lives in a ‘family village’, and the Applicant’s Maori family in New Zealand has turned away from him due to his conversion to the Jehovah’s Witness faith.[107] Similarly, the Applicant gave evidence that he has been banned from his ‘ancestral lands’ due to his religious conversion.[108]
[106] G14/74
[107] Second Statement of CK dated 9 October 2022, 2
[108] Transcript of Proceedings dated 8 November 2022, 49
The Respondent accepts that the Applicant has experienced mental health conditions and would be expected to continue treating his substance abuse,[109] but submits that as a New Zealand citizen he would be eligible for social housing, which he is unable to access in Australia.[110] Whilst he may be eligible for housing assistance, the Applicant submits he would not be able to access social security support on behalf of his daughter in New Zealand as she is an Australian citizen.[111] In all, I accept that the Applicant would be entitled to comparable standards of healthcare and social welfare in New Zealand but he would not have the support network he has established here, which includes most of his family, his partner, sister and Church.
[109] RSFIC, [71]
[110] RSFIC, [72]
[111] Transcript of Proceedings dated 8 November 2022, 57
Overall, I find this consideration weighs in favour of revocation, and afford it moderate weight.
Links to the Australian community
I am required to consider the strength, nature and duration of the Applicant’s ties to Australia. The Applicant has been residing in Australia since he arrived in 2003 as a 20 year old.
In Australia, the Applicant has made a contribution to the community through consistent employment for which he is entitled to some weight under subparagraph 9.4.1(2) of the Direction.[112]
[112] G14/78
The Applicant has strong and enduring ties to Australia, most significantly through his family, most of whom reside in Australia. His sister CK has expressed considerable support for the Applicant and they have supported each other in coming to terms with the abuse they suffered as children. It is accepted that his removal would be to her detriment.[113]
[113] See G15/142-145 and Second Statement of CK dated 9 October 2022
The Applicant met his partner JR three years ago and plans to marry her as soon as he can. He submits that being apart from JR has had ‘a massive negative impact’ on her and he fears that she would be severely depressed should the cancellation of his visa not be revoked.[114]
[114] G14/69
The Applicant’s 18 year old daughter ML states that she is dependent on him for support. She acknowledged her mental health conditions in her written statements.[115] The Applicant told the Tribunal she had now received a diagnosis for her condition and had begun treatment. He told the Tribunal:
[ML] has borderline personality disorder and she doesn’t deal with stress and that very well and she has anger problems as well. So her and my sister, they get into big arguments, heated arguments, and my daughter ends up getting kicked out. And the same is with her and her mother and the same is with her and her grandmother.[116]
[115] G21/140
[116] Transcript of Proceedings dated 7 November 2022, 28
The Applicant was able to arrange help for his daughter through his treating psychologist whilst in detention. The psychologist advised the Applicant how to speak to his daughter about seeking help. He explained:
Applicant: And that psychologist gave me numbers that live in the same area as where my daughter is staying, they’re based in the same area, for psychologists and also they bulk bill which was a good fact.
…Yes, and she also told me how to speak with her when trying to get her to actually go ahead and make the appointment and then follow through. Yes, she gave me some really good advice and it worked.
Member: What was the advice; do you remember?
Applicant: It was just about how to not tell my daughter that she has to do this but give her reasons on why I would like her to do these things and how important it is for me, to let her make her own mind up to do it. [117]
[117] Transcript of Proceedings dated 7 November 2022, 29
The evidence supports a conclusion that the Applicant plays an important role in the lives of others, notably his partner and his eldest daughter. The care and emotional support he provides to ML is particularly important and I accept that he is a stabilising force who is able to help her effectively manage her condition. The fact that he has been able to help arrange for ML to receive suitable psychiatric care from immigration detention leads me to conclude that he will be best placed to continue to help her manage her condition in the future. He may also be able to provide a stable home environment, which is particularly important given ML’s volatile relationship with her mother, aunt and grandmother.
The Applicant has a job offer from George McDonald who is the state manager for Breakout Scaffolding. In his statement dated 31 October 2022he writes the Applicant offered him employment and taught him skills and knowledge relating to the construction industry when he first moved to Australia from New Zealand in 2017. He states that the skills the Applicant taught him helped further his career and opened opportunities for him and his family’s future, and the Applicant has his full support in being given a fresh start in the industry.
Taking into account his ties to the Australian community through his work and his family, and in particular the interests of the Applicant’s sister, partner and eldest daughter, I find that this consideration weighs very heavily in favour of revocation of the mandatory cancellation decision.
Conclusion
The Applicant appears to have made genuine progress in coming to terms with his own issues and demonstrated considerable insight into his offending, which I find reduces the risk he may reoffend. Nonetheless, the risk remains and the protection of the Australian community weighs against revocation of the cancellation decision, as do the primary considerations of family violence and the expectations of the Australian community.
The Applicant has demonstrated a capacity to make a positive difference to others and notably was able to assist his eldest daughter through a practical and meaningful intervention whilst being held in immigration detention. His continued recovery would be more difficult in New Zealand in the absence of his support network – most notably his sister, children and his partner JR – and for this reason I give some weight in favour of revocation owing to the impediments he would face upon his return to New Zealand. The impact of his removal on his adult daughter, his sister and his partner would be significant, and weighs in favour of revocation accordingly.
The evidence strongly supports the Applicant having an important role to play in the lives of the four minor children identified above. AF in particular would be significantly affected by the removal of the Applicant and this primary consideration weighs heavily in favour of revoking the cancellation decision.
In weighing up these considerations and having considered all the circumstances, I have decided that there is another reason to revoke the cancellation of the Applicant’s visa and the mandatory cancellation should be revoked.
Decision
For the reasons stated above, the decision of a delegate of the Respondent dated 26 August 2022 not to revoke the mandatory cancellation of the Applicant’s visa, is set aside. In substitution it is decided that the mandatory cancellation of the Applicant’s visa is revoked.

I certify that the preceding 127 (one hundred and twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

...............................[Sgd].........................................
Associate
Dated: 16 December 2022

Date(s) of hearing: 7 and 8 November 2022

Applicant: In person

Solicitors for the Respondent: Mr M. Hopkins, Minter Ellison

[2022] AATA 4375

21 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Remedies

Date(s) of hearing:	7 and 8 November 2022
Applicant:	In person
Solicitors for the Respondent:	Mr M. Hopkins, Minter Ellison