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

Viljoen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1252 (13 May 2021)
Division:General Division
File Number(s): 2021/1146
Re: Bradley Viljoen
APPLICANT

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

DECISION
Tribunal:The Hon. Dennis Cowdroy AO QC, Deputy President
Date:13 May 2021
Place:Sydney

The decision under review is set aside and substituted with a decision to revoke the mandatory cancellation of the Applicant’s visa.
..........................[sgd]..............................
The Hon. Dennis Cowdroy AO QC, Deputy President
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 90 – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – family violence committed by the non-citizen – best interests of minor child – expectations of the Australian community – strength, nature and duration of ties to Australia – impediments to removal – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
The Hon. Dennis Cowdroy AO QC, Deputy President

13 May 2021

The Applicant seeks review of a decision of a delegate of the Respondent (“the Minister”) made on 18 February 2021 (“the decision under review”) not to exercise the discretion under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) to revoke the original decision made under s 501(3A) of the Act, on 24 March 2020, to cancel the Applicant’s Child (Migrant) (Class AH) (subclass 101) visa (“the visa”) (“the original decision”).
A delegate of the Minister was satisfied that the Applicant did not pass the character test on the basis that he had a “substantial criminal record” as a result of being sentenced to a term of imprisonment for 12 months or more: section 501(3A)(a)(i) of the Act.
On 25 May 2020, the Applicant sought revocation of the mandatory cancellation of the visa under subsection 501CA(4) of the Act (that is, the original decision). The Applicant provided a statement from his ex-partner (referred to in this decision as “Ms X”) and several character references. The Applicant also provided medical evidence in relation to his mental health issues and in relation to his son’s health issues.
On 18 February 2021, a delegate of the Minister decided not to revoke the original decision (that is, the decision under review). On 26 February 2021, the Applicant applied to the Tribunal for review of that decision. The hearing before the Tribunal was held on 3 May 2021 using the Microsoft Teams platform.
RELEVANT LAW AND POLICY: DIRECTION NO. 90
Section 501CA of the Act applies if the Minister decides under s 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act states that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7).
Section 501(6)(a) of the Act provides that a person does not pass the “character test” if the person has a “substantial criminal record”. Section 501(7)(c) also 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.
Section 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 a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction” or “Direction 90”).
The Direction sets out a number of preliminary matters, general guidance, and principles for decision-makers. In particular, paragraph 5.2 of the Direction sets out a number of principles that the Tribunal has considered. It relevantly provides:
1Australia 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.
2Non-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.
3The 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.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
5Decision-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 type 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 sets out primary and other considerations that must be considered by the decision-maker, where relevant, when deciding whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa. 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 viewed as “secondary” as, in certain cases, other considerations may outweigh primary considerations. In applying either type of the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
The primary considerations (paragraph 8 of the Direction) are:
(a)protection of the Australian community from criminal or other serious conduct (“Primary Consideration A”);
(b)whether the conduct engaged in constituted family violence (“Primary Consideration B”);
(c)best interests of minor children in Australia (“Primary Consideration C”); and
(d)expectations of the Australian community (“Primary Consideration D”).
The Tribunal must also consider various other considerations (paragraph 9 of the Direction), where relevant. The other considerations 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: including the strength, nature and duration of ties to Australia and the impact on Australian business interests.
FACTS
The Applicant, who is 24 years of age, was born in South Africa. The Applicant is a citizen of the United Kingdom. The Applicant resided with his parents until he was 10 years of age. His parents divorced and the Applicant remained living with his mother in the United Kingdom until he was 18 years of age. The evidence, including a statement from the Applicant’s mother, establishes that he had a very unhappy childhood due to his parents’ separation.
Since 26 August 2015, when he was aged 18 years of age, the Applicant has resided with his father in Australia, following his father’s migration to Australia. The Applicant’s mother remains in the United Kingdom. The Applicant has remained in Australia since his arrival, subject to two brief holidays.
The Applicant’s father has established a painting and decorating business in a regional city of New South Wales. The applicant commenced a three-year apprenticeship in a painting and decorating course at a TAFE within his first year of being relocated to Australia. He concluded his apprenticeship in November 2019.
During his second-year apprenticeship he met his future partner; his now ex-partner, Ms X. At that stage, the Applicant was still living with his father but thereafter both the Applicant and Ms X resided together in the Applicant’s father’s house. At about this time, the Applicant demonstrated symptoms of deep depression and anxiety.
After that, the Applicant and Ms X moved out of the Applicant’s father’s house and found accommodation which they occupied together. As a result of this relationship, a male child was born on August 2018. There is no issue that the Applicant is the father of the child. From the birth of the Applicant’s son, serious complications arose which involved resuscitating the son. After the son could be taken home, difficulties continued with the health of the son. As a consequence, medical advice was obtained, and the child was required to remain in hospital for 11 days while tests were undertaken. The Applicant and Ms X were informed that the child had sustained severe brain damage which could result in the child being blind and having learning and other difficulties.
As a result of the stress, the relationship between the Applicant and Ms X became strained. Ms X developed postnatal depression and the Applicant found himself being unable to cope due to his depression. The Applicant’s depression was exacerbated because the Applicant did not have the financial resources to support himself and his family. The stress and anger which the Applicant felt resulted in a turbulent period during which a violent domestic episode occurred where the Applicant attacked Ms X and caused damage to her motor vehicle. At about this time, the Applicant first attempted suicide (and the Tribunal heard from Ms X that there were other attempts) and was taken to hospital by ambulance for psychological evaluation. The applicant was diagnosed with Borderline Personality Disorder.
EVIDENCE
Statements
The Tribunal has had regard to the various character references and statements before it.
Oral evidence
The Tribunal heard oral evidence from the Applicant and one witness, Ms X.
Ms X’s evidence
Ms X has provided a statement and oral evidence. She stated that she had been concerned about the Applicant’s mental health at about the time she fell pregnant in late 2017. She stated that there had been almost 10 occasions when she and the applicant presented at a hospital because of the Applicant’s suicide attempts. Ms X states on all occasions the Applicant was turned away from the hospital and she considers that it was the lack of care that caused or contributed to his behaviour that led to the Applicant’s convictions. She states that she had attempted to support him in accessing mental care but due to financial considerations, they could not seek the help they needed. Ms X states that she acknowledges that his conduct was “wrong” and that she was a target of his anger and depression. However, she considers that it would be in the interest of her child and herself if the Applicant’s visa was not cancelled.
Ms X was an impressive witness. She had a full understanding of the Applicant’s mental condition and remained highly supportive of him. She stated that she had no fears for her safety nor for her son. She expressed confidence that the Applicant would be an essential father figure for her son. She stated that although her son is not yet three years of age, he became excited if he was able to speak to the Applicant by telephone. In view of the future problems which are anticipated with the son’s health, Ms X considered that the Applicant’s involvement with his son was of the utmost importance.
Ms X stated that she did not believe that the Applicant was likely to reoffend, however she was concerned that if he were to breach the law in any way, such as a speeding fine, he would be in jeopardy of returning to jail because of a breach of his parole conditions. However, she did not have any concern that he posed a danger to the public or to her.
Medical evidence regarding the Applicant
A report of Dr Alexander Richardson dated 17 October 2019 confirms that the Applicant had consulted his medical practitioner in September 2019 and had been assessed by the Lake Macquarie Community Mental Health Team in February 2019. He was diagnosed with Borderline Personality Disorder, Intermittent Explosive Disorder and possible Cyclothymia. He was placed on sodium valproate.
Dr Richardson noted that his symptoms were reportedly improving and that he was seeing a registered psychologist for his condition. Following a consultation with a medical practitioner, he was prescribed antidepressants. It was noted that cannabis misuse and dependence played a role in the Applicant’s mental health. To address this issue the Applicant had agreed to consult the drug and alcohol team.
APPLICANT’S CRIMINAL HISTORY
On 29 October 2019 in the Local Court of New South Wales at Toronto, the Applicant was convicted of the following offences:
·destroying or damaging property less than $2000;
·contravene prohibition/restriction in AVO (domestic);
·common assault (two counts).
The Applicant continued to suffer from mental ill health between this offending. Although he and Ms X sought assistance for his condition, it was not available to them for financial reasons.
On 24 February 2020 in the Local Court of New South Wales at Newcastle the Applicant pleaded guilty and was convicted of further offences:
·destroying or damaging property less than $2000;
·common assault (three separate counts);
·contravene an apprehended violence order (AVO) (two separate counts);
·stalking or intimidation with intent to cause fear of physical or mental harm;
·sexually touch another person without consent.
As a consequence, the Applicant received an aggregate sentence of 14 months, with a non-parole period of eight months, in respect of the convictions referred to in the above paragraphs.
Sentencing observations
The Tribunal has considered sentencing observations in relation to these convictions. When the Applicant was sentenced on 29 October 2019, in the Local Court of New South Wales at Toronto, the penalties imposed did not indicate that the breach of the AVO and the other charges were regarded as objectively serious. There is no evidence before this Tribunal that the mental health of the Applicant was raised as an issue during that hearing.
On 24 February 2020, before the Local Court of New South Wales at Newcastle, Magistrate Miller referred to the evidence before the Court and stated inter alia:
“it is clear from the material that the defendant is ordinarily held in high esteem by those who know him; his family; his friends, his work colleagues. He is normally described as empathetic, caring and nature, protecting people from bullying; things that are totally antithetical to what he did on this particular day”.
The Magistrate noted the Applicant’s mental health issues and accepted that there was a contribution to the offences and the offending behaviour and that there was accordingly “a reduction in [the Applicant’s] moral culpability to some extent”. His Honour also took into consideration the Applicant’s “significant need for rehabilitation” and referred to a treatment plan that could be implemented during the Applicant’s parole and also noted that:
There is evidence that he had put in place some steps prior to this offending to start to address that particular offending behaviour. It is clear also from the evidence before me that since the birth of the child in an unplanned pregnancy, there had been an escalation in the psychological condition of the defendant. There is no doubt from the material that there is a significant need for assistance for the defendant, particularly in the area of emotional regulation and violence.
The Magistrate considered that, with respect to the breach of the AVO, the offence fell within the mid-range of object of seriousness. Regarding the charges of stalk and intimidate, the Magistrate noted that conduct occurred in the home of Ms X and in a motor vehicle. The Magistrate considered such conduct to be below the mid-range of seriousness. As to the common assault charges, namely grabbing onto the arms of Ms X, although serious, the Magistrate considered it was not “the highest order of assaults and that would fall toward the lower end of the range”.
As to the sexual assault, the Magistrate considered that the circumstances in which it occurred constituted a mid-range of objective seriousness.
ISSUES FOR DETERMINATION
The Tribunal may revoke the original decision if the Tribunal is satisfied that:
(e)the Applicant passes the character test as defined by subsections 501(6)(a) and 501(7)(c) of the Act: section 501CA(4)(b)(i); or
(f)there is another reason why the original decision should be revoked: section 501CA(4)(b)(ii).
The Applicant does not pass the character test because he has a substantial criminal record as defined by the Act. Therefore, the sole issue for determination by the Tribunal is whether there is another reason why the original decision should be revoked.
The Tribunal now turns to assess the primary considerations as relevant.
PRIMARY CONSIDERATIONS
PRIMARY CONSIDERATION A: 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. Under paragraph 8.1(1) of the Direction, it is stated that decision-makers should:
When considering protection of the Australian community, keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should also have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

Pursuant to paragraph 8.1(2), that consideration requires an assessment of the nature and seriousness of the Applicant’s conduct and the risk that the Applicant presents to the community.
Nature and seriousness of the conduct
The Tribunal has had regard to paragraph 8.1.1(1)(a) of the Direction. The crimes for which the Applicant was convicted were violent and were sexual crimes committed against a woman in a domestic violence context. There is no doubt that such conduct is serious.
As set out in the Applicant’s criminal history above, the Applicant was convicted and sentenced of numerous offences involving violence.
It is correct, as the Respondent submits, that the offences for which the Applicant was convicted in February 2020 were of a more serious nature than the previous offences, but the sentencing remarks by the Magistrate provide an insight into the overall seriousness of the offences.
The Tribunal notes significant matters relative to the consideration of the protection of the Australian community:
(a)the Applicant has no prior criminal record of any kind before the offences in 2019;
(b)other than Ms X, there is no member of the Australian community who has been subjected to any of the Applicant’s violent conduct. There is little indication that any other member of the Australian community is likely to be at risk;
(c)the Applicant’s aggressive conduct has arisen solely out of the turbulent relationship between Ms X and the Applicant in circumstances where the Applicant has been affected by mental health issues;
(d)the offending has occurred within the space of six months. It occurred at a time when the Applicant needed mental health support which the Applicant was denied because of his inability to pay for such services;
(e)Ms X states that she does not feel threatened and has asked that consideration be given to revoking the cancellation of the visa;
(f)during the period that the Applicant has been incarcerated, namely from January 2020 to September 2020, and during his period of detention from September 2020 to the present, there is no evidence to suggest that the Applicant has demonstrated violence to any other person;
(g)the Applicant is subject to a Community Corrections Order until February 2023. As a consequence, the Applicant will have some level of supervision during this period should he remain in Australia, and will be able to access mental health services, support and treatment outside of his family.
Risk to the Australian community should the Applicant reoffend or engage in other serious conduct
The Tribunal has had regard to paragraph 8.1.2 of the Direction.
The evidence before the Tribunal does not suggest that there is a high risk of further offending now that the mental condition of the Applicant has been recognised and he is pursuing treatment of it.
The expectations of the Australian community, as referred to in paragraph 8.4 of the Direction, must be considered. However, having been informed of the reasons and of the circumstances of the criminal offending, the Tribunal is of the opinion that the Australian community would support such a conclusion regarding the prospect of the Applicant being a risk to the community at large.
Whilst the Tribunal notes the requirements of the Direction, paragraph 8.1.1, and the consideration of the risk to the Australian community, should there be a repetition as set out in the consideration below in respect of paragraph 8.1.2, the Tribunal considers that, weighing up all the evidence and the extenuating circumstances, particularly the Applicant’s circumstances of mental illness which previously existed, and which is now recognised, the balance weighs in favour of revocation of the original decision under this primary consideration, as below.
On the evidence before the Tribunal, the only person who would be likely to be at risk of harm would be Ms X. However the evidence indicates that, as they have now separated, and have reached an amicable arrangement in respect of the Applicant’s access to their child, the Tribunal considers that the risk of further harm while still a possibility is unlikely.
As considered above, the Tribunal is of the opinion that the risk of further criminal or other serious conduct is not high. The evidence establishes that the Applicant received minimal assistance while serving his prison sentence due to the fact that he was relocated on nine different occasions to various facilities, sometimes being returned to the same facility. Such disruption had the consequence that he had no opportunity to be given a meaningful course of treatment. However, in detention, he has been diagnosed and provided medication for his mental condition and has undertaken anger management and domestic violence courses while in prison and detention. The Applicant appears committed to pursuing further treatment.
The Applicant also gave evidence and satisfied the Tribunal that he has an insight into his condition and is aware of the necessity to control his anger.
Finding on Primary Consideration A
Given the factors discussed above, the Tribunal finds that this consideration weighs moderately in favour of revocation of the original decision.
PRIMARY CONSIDERATION B: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
Paragraph 8.2(1) of the Direction provides that 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 are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Paragraph 4(1) 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".
This primary consideration is relevant in circumstances where (paragraph 8.2(2)):
a)a non-citizen has been convicted of an offence, found guilty of offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.1.2(2)(a)); 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 has been afforded procedural fairness (sub-paragraph 8.1.2(2)(b)).
Paragraph 8.2(3) of the Direction also provides that, in considering the seriousness of 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 in increasing seriousness (sub-paragraph 8.1.2(3)(a));
b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.1.2(3)(b));
c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.1.2(3)(c)):
(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.1.2(3)(c)(i));
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.1.2(3)(c)(ii));
(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.1.2(3)(c)(iii)); 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 (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.1.2(3)(d)).
The conduct of the Applicant towards Ms X constitutes crimes of a violent nature, involving family violence. It is conduct within the scope of family violence. It involved 13 convictions in 2019 and 2020 for domestic violence and related matters and has resulted in an aggregate sentence of 14 months imprisonment.
That offending occurred in a context where an AVO was granted for the protection of Ms X, however she states that the AVO was not sought by Ms X but possibly as a result of concern by her neighbours. Ms X states she tried to negotiate for less stringent conditions or for no AVO to be made at all. She has since applied to have the AVO varied to allow the Applicant to have access to his son. Such variation has been granted. The AVO will expire on 28 October 2021.
Ms X states that she did not wish the Applicant to receive a sentence of imprisonment. She states that she also has Borderline Personality Disorder and understands the Applicant’s conduct. Ms X did not express any concern for her own safety if the Applicant were to remain in Australia. There is no evidence that the repeated acts of family violence have caused any significant harm – in a cumulative sense – to Ms X or any other person.
The Applicant has expressed deep remorse for his conduct and accepts responsibility for his actions. The Applicant states that he now has an insight into the reasons giving rise to his violent actions. The Applicant has undertaken courses directed to anger management, domestic abuse and domestic violence. The Applicant has informed the Tribunal that he now appreciates the necessity to conduct himself in a manner that does not result in violence and is aware of the necessity to control himself when placed in a situation of potential conflict.
The Tribunal found the Applicant to be a truthful witness. The Applicant accepted responsibility for his violent conduct. The Tribunal accepts that he understands the impact of his behaviour on Ms X and is satisfied that he has made efforts to address factors which contributed to his conduct. The convictions and sentence appear to have deeply impressed upon the Applicant the necessity to avoid any criminal conduct in the future. The Applicant also understands the seriousness of his conduct and the necessity to avoid family violence.
Finding on Primary Consideration B
The Tribunal finds that this consideration weighs minimally in favour of the Applicant, given the extent to which the Applicant accepts responsibility for his conduct, understands the impact of his behaviour, and his rehabilitative efforts to address that behaviour.
PRIMARY CONSIDERATION C: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 8.3(1) of the Direction provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision (where that child is, or would be, under 18 years old at the time of the decision to revoke or not revoke the mandatory cancellation decision is expected to be made).
Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:
a)the nature and duration of the relationship between the child and Applicant. 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) (sub-paragraph 8.3(4)(a));
b)the extent to which the Applicant 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 (sub- paragraph 8.3(4)(b));
c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));
d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways (sub-paragraph 8.3(4)(d));
e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).
The Applicant has one son who was born in August 2018. At the time of the son’s birth, he experienced neonatal hypoglycaemia which has resulted in severe brain damage to the back of his brain. According to the Applicant, there is the prospect of the son being blind and having learning difficulties and there is a very high chance of his son having continuing seizures as he gets older.
According to the medical evidence of Dr Clark, the development of the son remains uncertain. He may require ongoing developmental support and may suffer further cognitive issues which may not be apparent until he starts school. Ms X states that it is likely that the son will need more parental support because of his difficult commencement in life.
The evidence establishes that the Applicant and Ms X lived together for several months prior to the breakup of their relationship. Even following the relationship, the Applicant has remained actively involved with his son, having arranged to see him every two days. Ms X describes the Applicant as a “great father” who supported her physically, mentally and financially until his arrest. After the separation, the Applicant returned to live with his father which is about an hour’s drive from the home of Ms X. However, the Applicant saw his son after work every second day and cared for him overnight every second weekend. The Applicant showed great affection for his son.
Ms X has no concerns concerning the Applicant caring for his son and states that she is “entirely comfortable” with the Applicant caring for their son. Ms X states that the Applicant has financially supported her, contributing to her rent and paying for groceries. She has suffered financial difficulty since his incarceration. She believes it would be in the best interests of the son if the Applicant remained in Australia. In her oral evidence, Ms X stated that she is barely coping financially without the support of the Applicant. Her mother lives in Darwin and her father is deceased. Accordingly, she has the full responsibility of caring for her son without assistance. She is currently receiving social security payments.
The Tribunal also notes that Ms X’s mother has provided two statements which are strongly supportive of the Applicant’s participation in the life of her grandson.
The Applicant’s mother also provided a statement acknowledging the Applicant’s difficult life in the United Kingdom as a child.
The Tribunal is satisfied that it is in the best interests of the son for the original decision to be revoked so as to enable the Applicant to provide support for his son, especially in view of the unknown further problems that may arise in the course of his son’s early development. It appears that Ms X alone is struggling to provide the necessary support for her son. The support of a natural father is clearly in the child’s best interests especially in view of the child’s uncertain future in relation to his health and development. Ms X told the Tribunal that her son has had meaningful telephone conversations with the Applicant while the Applicant has been incarcerated or in detention, and that such contact has been beneficial for both the son and the Applicant. The Applicant could play a vital role in supporting the child, and the Applicant has expressed a fervent desire to do so.
Finding on Primary Consideration C
The Tribunal considers that the best interests of the child weighs heavily in favour of the revocation of the original decision.
PRIMARY CONSIDERATION D: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.4(1) of the Direction provides that:
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 not to allow such a non- citizen to enter or remain in Australia.
Paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)   acts of family violence; or
(b)   causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in the context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;
(d)   commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)   involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)    worker exploitation.
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 (sub- paragraph 8.4(3)).
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 (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion and ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J). That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4. Although these principles are discussed in relation to the former Direction No. 79, those principles are relevantly analogous in principle with respect to Direction 90.
It has further been held that the consideration is “in substance … adverse to any applicant”: see Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76]. The Respondent contends that the Australian community would consider the Applicant’s offending, being acts of family violence, to be very serious offending that weighs against revocation of the original decision.
It is important to note that the episodes of family violence took place in circumstances where the mental condition of the Applicant deteriorated from the beginning of 2017 when Ms X fell pregnant. At this time, the Applicant found that he could not afford to pay for his rent and support Ms X and the future child. The pregnancy had not been planned and caused significant financial and other stress to the Applicant which led to his severe depression and attempted suicides. The Applicant had sought the assistance of a general practitioner on numerous occasions before he was referred to a psychologist but, due to financial constraints, the Applicant could not afford ongoing treatment. Ms X and the Applicant both sought help from the psychiatric unit of a hospital but were not provided with any assistance.

Following his first offending in 2019, the Applicant sought access to a mental health program but again due to financial constraints, ceased such involvement. The Applicant appeared to be happier in himself but in January 2020 another incident occurred between himself and Ms X, arising out of the stresses, which led to his second appearance before the Local Court of New South Wales at Newcastle.
Finding on Primary Consideration D
In this case, the Tribunal accepts that due to the seriousness of the Applicant’s offending, particularly the acts of family violence, the Australian community’s expectations would prima facie weight against the Applicant.
OTHER CONSIDERATIONS
The Tribunal now turns to assess the other considerations (paragraph 9 of the Direction) as relevant.
International non-refoulement obligations
This consideration is not relevant in this matter.
Extent of impediments to the applicant if removed from Australia
Paragraph 9.2(1) of the Direction provides that decision-makers must consider the extent of any impediments that the noncitizen 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:
thenon-citizen's age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
The Applicant is a young adult man who appears to be in good physical health but not in good mental health.
While there may be short-term disadvantage in the Applicant establishing himself in the United Kingdom, there would appear to be no substantial language or cultural barriers and any social, medical and/or economic support would be available to the Applicant and comparable to those existing in Australia. The Applicant lived with his mother and sister in the United Kingdom until he was 18 years of age and has their support. They remain in the United Kingdom. Whilst concern has been expressed by the Applicant if he were relocated, the Tribunal is satisfied that the Applicant could find sufficient support and establish himself in United Kingdom and receive assistance for his mental health.
The Tribunal notes that the Applicant has vocational skills as a painter and decorator which could be utilised in the United Kingdom.
The Tribunal finds that this consideration weighs minimally in the Applicant’s favour.
Impact on victims
Paragraph 9.3(1) of the Direction provides:
Decision-makers must consider the impact of the s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
To the extent that this consideration is relevant, the only victim of the Applicant’s conduct is Ms X. If the child of the Applicant were present during any of the turbulent exchanges between the Applicant and Ms X, it would be unlikely that the child would have any appreciation of the conduct.
As already mentioned, Ms X does not fear the Applicant and is highly supportive of him remaining in Australia.
Links to the Australian community
The Tribunal must have regard to the Direction at paragraphs 9.4.1 (strength, nature and durations of ties to Australia) to 9.4.2 (impact on Australian business interests).
Strength, nature and duration of ties to Australia
Under paragraph 9.4.1 of the Direction:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has resided in Australia for approximately six years. His father, who is now an Australian citizen and his father’s partner and his father’s stepchildren and son all reside in Australia. The ex-partner of the Applicant, Ms X, resides in Australia.
The Applicant’s immediate family in Australia will experience emotional hardship if the original decision is not revoked. Further, Ms X would suffer practical and financial hardship as well as the loss of support in bringing up their son. The father and stepmother of the Applicant are unable to support Ms X in the upbringing of the Applicant’s son.
The Applicant did not commence to offend when he first came to Australia. He lived with his father upon his arrival in Australia aged 18 years of age. He successfully completed his TAFE course and had been employed for several years. He formed a relationship with Ms X which appears to have been happy until it became known that Ms X was to give birth to their son. From this time, it appears that the Applicant found it difficult to cope financially and emotionally. It appears that these stressors gave rise to the mental issues which have affected the Applicant.
Several references have been provided in support of the Applicant. They indicate the Applicant’s good nature and relationships. There would be emotional hardship to such persons and to the Applicant if these associations ceased.
The Applicant has contributed to the Australian community in the following way: the Applicant has completed a painter and decorating course at TAFE and is therefore equipped to engage in worthwhile employment. He has made financial contributions to a charity supporting persons with cerebral palsy. He has had employment of several years. His contribution has been positive during his period in Australia. While the Applicant has been in prison and detention, the Applicant has completed several courses to assist him in his future relations, namely a course in domestic violence, anger management and remand domestic abuse courses.
Further, he has developed relationships with persons who strongly support his remaining in Australia. A significant consideration is the fact that the victim of his criminal conduct, Ms X, wishes the applicant to remain in Australia. Ms X has relied on the support, both financial and moral, of the Applicant.
Taking these factors into consideration, the Tribunal considers the strength, nature and duration of the ties to Australia are such as to weigh strongly in favour of the revocation of the original decision.
Impact on Australian business interests
This consideration is not relevant in this matter.
CONCLUSION
In weighing the competing considerations and the weight to be given to all relevant considerations, the Tribunal has also taken into account the fact that the entirety of the Applicant's behaviour should be viewed against a background of his mental illness.
Despite the nature and seriousness of the Applicant’s criminal conduct, on balance there are extenuating circumstances surrounding the offending, namely the Applicant’s mental health; the best interests of the Applicant’s child and the extent and nature of the ties that have been formed with the Applicant’s family in Australia that overall weigh in favour of revocation of the original decision to cancel the Applicant’s visa.
For these reasons, the Tribunal is satisfied that there is another reason why the original decision to cancel the Applicant’s visa should be revoked.
DECISION
The Tribunal finds that the correct and preferable decision is that the decision under review be set aside and in substitution a decision be made that the original decision to cancel the Applicant’s visa be revoked.

I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy AO QC, Deputy President

...........................[sgd]...........................
Associate
Dated: 13 May 2021

Date of hearing: 4 May 2021

Solicitors for the Applicant: Amelia Klein, Navado Lawyers & Solicitors

Solicitors for the Respondent: Jennifer Strugnell, MinterEllison

[2021] AATA 1252

13 May 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Natural Justice

Date of hearing:	4 May 2021
Solicitors for the Applicant:	Amelia Klein, Navado Lawyers & Solicitors
Solicitors for the Respondent:	Jennifer Strugnell, MinterEllison