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

Wikaira and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 175 (16 February 2023)
Division:GENERAL DIVISION
File Number(s): 2022/9675
Re:Lucus Donald Wikaira
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:The Hon. Dennis Cowdroy AO KC, Deputy President
Date:16 February 2023
Place:Sydney

The Tribunal finds that the correct and preferable decision is that the decision under review be affirmed.
....................................[SGD]...................................
The Hon. Dennis Cowdroy AO KC, 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 – offending whilst on liberty by conditional release order – remote prospects of rehabilitation – best interests of minor children – expectations of the Australian community – impediments to removal – links to the Australian community – strength, nature and duration of ties to Australia – decision under review affirmed.
Legislation
Crimes Act 1900 (Cth)
Crimes (Sentencing Procedure) Act 1999 (Cth)
Migration Act 1958 (Cth)
Cases
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
Falzon v Minister for Immigration and Border Protection [2018] HCA 2
FYBR v Minister for Home Affairs [2019] FCAFC 185
Labi and Minister for Immigration and Border Protection (Migration) [2016] AATA 316
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affair [2021] FCA 1235
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
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
The Hon. Dennis Cowdroy AO KC, Deputy President
16 February 2023

The Applicant seeks review of a decision of a delegate of the Respondent (the Minister) made on 24 November 2022 (the decision under review) not to exercise the discretion under subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act) to revoke the original decision made under subsection 501(3A) of the Act on 24 May 2022 to cancel the Applicant’s Class TY subclass 444 Special Category (Temporary) Visa (the visa) (the original decision).
The 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 and was serving a sentence of imprisonment on a full time basis in a custodial institution for an offence against a law of the Commonwealth, a State or Territory (subsection 501(3A) and paragraphs 501(6)(a) and 501(7)(c))
On 24 May 2022, 26 May 2022 and 6 June 2022, the Applicant sought revocation of the mandatory cancellation of the visa under subsection 501CA(4) of the Act (that is, the original decision).
On 24 November 2022, a delegate of the Minister decided not to revoke the original decision (that is, the decision under review). On 26 November 2022, the Applicant applied to the Tribunal for review of that decision. The hearing before the Tribunal was held on 6 February 2023 using the Microsoft Teams platform.
relevant law and policy: DIRECTION no. 90
Section 501CA of the Act applies if the Minister decides under subsection 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).
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) 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.
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 a written direction pursuant to section 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 section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’ or Direction 90 or Direction No. 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:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
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 39 years of age, was born in New Zealand and is a citizen of New Zealand. He arrived in Australia on 18 December 2004 and departed on 13 May 2005. The Applicant returned to Australia 4 February 2012 and has not departed since that date.
evidence
Oral Evidence
The Tribunal heard oral evidence from the Applicant by way of cross-examination. The Applicant provided no materials to the Tribunal in support of his application despite the fact that the Tribunal had reminded the Applicant to do so by emails dated 16, 19, 24 January 2023 and 2 February 2023.
In addition, the Tribunal attempted to contact the Applicant by telephone on 24 and 27 January 2023. On 30 January 2023 the Applicant was spoken to by an officer of the Tribunal and the Applicant was specifically informed of the requirements concerning the provision of material, his representation, witnesses and evidence.
In the absence of material, the Tribunal has a paucity of detail before it concerning the application.
Medical Evidence
The Tribunal has been provided with a report of Dr Sharon Klamer, consultant forensic psychologist dated 4 April 2022 addressed to the Sydney District Court.
The Tribunal notes the reference of Glenys Waddell, retired psychologist, dated 27 August 2022.
Applicant’s Criminal History
As a consequence of his convictions, the Applicant received sentences as referred to in the schedule above.
Sentencing Observation
Before the District Court of New South Wales Criminal Jurisdiction on Thursday, 14 April 2022, His Honour Judge Lerve sentenced the Applicant in respect of the offence committed on 15 March 2022 arising out of his sexual touching without consent upon a female contrary to s 61KC(a) of the Crimes Act 1900 (NSW). Such offence carries a maximum penalty of five years imprisonment. The Applicant had pleaded guilty before the Local Court on 11 November 2021.
His Honour observed that the applicant was 37 years of age at the time of the offence and his victim was 31. The offence occurred when the Applicant forced himself upon a woman who lived in the same three-storey unit complex whilst she was in a bathroom. The offence occurred at about 11.30PM at night. Relevantly, His Honour said:
The offender lunged forward and grabbed the victim on both her hips. He pushed her up against the wall. The victim was scared as the bathroom window was open and she was scared that she was going to be pushed out of the window. The victim was leaning back so far that she was almost horizontal.
The recitation continues:
The [agreed] facts then recite that the offender had one hand on the victim’s thighs and with the other jabbed forcefully with his fingers at the exterior of the victim’s vagina. The victim was fighting back and trying to break free from the offender’s grip, but the offender held onto her and [continued] to keep his fingers on her vagina and the victim was screaming and yelled out [redacted], which was the name of the neighbour.
His Honour continued:
The offender has a criminal history which in my view does not entitle him to any particular leniency. Whilst to use the expression of counsel for the offender it is not extensive, there is [a] conviction recorded in 2018 for assault occasioning actual bodily harm and 2020 convictions for stalk, intimate [sic – intimidate], resist police and peep and pry. He was fined in respect of the resist police but placed on a conditional release order for 12 months in respect of the stalk intimidate. Having read the facts which are part of exhibit B with unfeigned respect to the Local Court, a conditional release order was in my view a particularly lenient disposition of that charge. The fact that he was on conditional liberty enlivens the factor of statutory aggravation provided for by s 21A(2)(j) of the Crimes (Sentencing Procedure) Act.
Issues for determination
The Tribunal may revoke the original decision if the Tribunal is satisfied that:
(a)the Applicant passes the character test as defined by s 501 of the Act: subparagraph 501CA(4)(b)(i); or
(b)there is another reason why the original decision should be revoked: subparagraph 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:
When considering protection of the Australian community, decision-makers should 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. In this respect, decision-makers should 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 repeated offending.
The Tribunal notes significant matters relative to the consideration of the protection of the Australian community:
(a)the Applicant commenced offending seven months after his arrival in Australia and has engaged in repeated offending involving potential or actual violence towards females.
(b)such offending involved the use of alcohol and drugs.
(c)at the time that the Applicant committed the offence for which he pleaded guilty on 11 November 2021, the applicant coming was the subject of a conditional release order.
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 Tribunal notes the content of the report the psychologist. Dr Klamer.
Report of Dr Klamer, Psychologist
Dr Klamer provided a report which was considered by His Honour Judge Lerve when imposing a sentence upon the Applicant on 14 April 2022. Such report does not disclose any significant psychological reason for the offending. The Applicant acknowledged that he had been under the influence of alcohol during the day as he was not working. The report states that the Applicant appeared to be accepting responsibility for the offence albeit reluctant to talk about it. In fact, the sentencing judge expressly noted that whilst the Applicant expressed regret, he was unconvinced that he was remorseful, observing:
I am not prepared in all the circumstances to find on balance that the offender is remorseful.
The reference of Ms Waddell (referred to in [20]) refers to the Applicant’s caring personality. But it also states that the referee has provided repeated references for court appearances for the Applicant and notes the Applicant’s concerning relationship with alcohol. It relevantly states:
I am a retired psychologist and older woman and I have been mentoring Lucus for some 5 years. He has made a lot of progress in those 5 years moving from homelessness to doing introductory TAFE courses and holding down a full time job and I have written support documents for his previous court appearances naming these achievements but also asking that he be helped with his alcohol problem. With this offence I have only now learnt of the details.
I have only seen him as a reserved caring person, hard working and wanting to live a better life but also with difficulty in social skills. In my professional capacity I believe he has a serious alcohol problem and when intoxicated his behaviour obviously changes. From his first court appearance I wrote reports that unless he did an intensive alcohol rehab program his behaviour would not change. His alcoholism is the underlying problem.
I can only hope that his time in prison will have given him time to reflect and that he now accepts he has a very serious problem with alcohol and can never afford to drink again.
There is both the likelihood of further offences being committed by him, with possible serious consequences. These factors together render unacceptable risk of the applicant remaining in Australia as considered in Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [77] per Mortimer J, Moshinsky J agreeing.
Finding on Primary Consideration A
Given the factors discussed above, the Tribunal finds that this consideration weighs against 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 (subparagraph 8.2(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 (subparagraph 8.2(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 (subparagraph 8.2(3)(a));
(b)the cumulative effect of repeated acts of family violence (subparagraph 8.2(3)(b));
(c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (subparagraph 8.2(3)(c)):
(i)the extent to which the person accepts responsibility for their family violence related conduct (subparagraph 8.2(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 8.2(3)(c)(ii));
(iii)efforts to address factors which contributed to their conduct (sub paragraph 8.2(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 (subparagraph 8.2(3)(d)).
Finding on Primary Consideration B

The Tribunal finds that this consideration is neutral as there is no evidence that the Applicant has engaged in any family violence as referred to in paragraph 8.2 of Direction No. 90.
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).
The Applicant is the father of the child who he believes resides in Perth with the child’s mother. The Applicant had a relationship with the child’s mother in New Zealand but has never cohabited with her in Australia. That child is either 12 or 15 years of age. The Applicant did not know her birthdate and was uncertain of her age. The Personal Circumstances form, signed by the Applicant as being correct, states the child was born in February 2009 (approximately 12 years of age) and resided in Brisbane but before the Tribunal the Applicant stated that such information was incorrect. The Applicant stated he was unaware who provided such information.
The material establishes that the Applicant has had virtually no role to play as a parent in the upbringing of the child. He states that he paid maintenance for the child while he was working but has had no contact with her for at least two years. The child’s mother is apparently fulfilling the parental role. Accordingly little weight is provided to this consideration.
The evidence further establishes that the applicant has an adult son and two infant children residing in New Zealand. He did not know their birthdates and has never provided maintenance for them.
Finding on Primary Consideration C
This consideration is neutral.
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;
(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 this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
(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 (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 (paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion and is 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. 65, 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]. Her Honour said, referring to the primary consideration:
It is a kind of deeming provision by the Minister about he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief.
Finding on Primary Consideration D
In Labi and Minister of Immigration and Border Protection (Migration) [2016] AATA 316 at [60], McCabe DP said:
The Direction points out the Australian Community expects non-citizens will obey Australian laws while they remain in this country. But the Direction implicitly acknowledges the community is not completely intolerant of risk: rather, it will have regard to the nature of the character concerns or offences and make a reasonable judgment. In short, one can rely on the Australian community, when fully informed of the facts, to demonstrate some perspective and settle on an outcome that is proportionate.
In this case, the repeated offending of the Applicant and the increasing seriousness of the nature of his offending leads to the conclusion that the Applicant should not remain in Australia. Whether the cause is drugs or alcohol, the fact remains that the applicant has been unable to comply with the laws of this country. His Honour Judge Lerve considered the prospects of rehabilitation but found as follows:
“However having read those papers and the Burwood Local Court relating to the breach of the community release order and upon further reflection which was indicated to counsel in the course of taking submissions, I am not prepared to find at this point in time there are good prospects of rehabilitation.
The Tribunal finds that the Australian community’s expectations would weigh against revocation of the decision under review.
Other considerations
The Tribunal now turns to assess the other considerations (paragraph 9 of the Direction) as relevant.
International Non-Refoulement Obligations
The Tribunal is required to consider international non-refoulment obligations as provided by paragraph 9.1. The Applicant asserted in his Personal Circumstances form that he was brutalised by gangs in New Zealand who stole his possessions and assaulted him. He asserted that such gangs seek people out relentlessly even after long periods away. Further, the Applicant had made representations regarding a potential breach of Australia’s international non-refoulment obligations based on such claims.
However, at the Tribunal hearing, the Applicant resiled from such claims and he acknowledged that such assertions were false. He could not explain how such claims were made in his Personal Circumstances Form.
In view of the above facts, the Tribunal is not satisfied that cancellation of the Applicant’s visa would give rise to a breach of Australia’s non-refoulement obligations.
The Tribunal considers that such consideration is neutral in respect of revocation.
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:
(a)the non-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 has resided in Australia for 10 years. The Applicant may face some impediment if returned to New Zealand whilst he re-establishes himself. However the Applicant’s mother, four siblings and three of his children reside in New Zealand. The Applicant’s sister who previously lived in Australia with whom the Applicant first resided when he came to Australia is now living in New Zealand.
The Applicant submits that there would be little work for him in New Zealand and fears resorting to alcohol and drugs. Nevertheless, the Applicant has skills from his employment as a gardener having undergone a horticultural course at TAFE, which should be of use in New Zealand. The Applicant has also worked as a cleaner, handyman, and worked in the construction industry as a labourer. No other details of the Applicant’s work history have been provided.
Whilst in prison the Applicant has undertaken various courses. At the John Morony Correctional Centre he undertook courses in Orientation, Health Survival Tips and was reported as being polite and respectful during such courses. A reference from the Wayside Chapel dated 18 November 2021 states that on release from prison the Applicant would have access to programs and medical assistance provided by such chapel.
The Applicant completed a course sponsored by the Salvation Army entitled ‘Positive Lifestyle Program’.
A letter from NSW Justice Corrective Services dated 7 July 2021 recorded the Applicant ‘has shown motivation towards a positive change’. No disrespectful behaviour was demonstrated.
A Statement of Attainment dated 23 June 2021 refers to vocational courses completed by the Applicant.
A NSW Justice Corrective Services letter dated 8 June 2021 records attendance at 20 sessions of courses involving studies of modules entitled ‘Understanding Change’, ‘Urges and Cravings’, ‘Problem Solving’, ‘Better Living’ and ‘Self-Management Planning’.
The Tribunal acknowledges that the Applicant has undertaken courses as outlined above. The knowledge gained will be of benefit to him in New Zealand. There is no evidence of any relationship or strong family ties which the Applicant has in Australia.
There are no language or cultural barriers which would prevent the Applicant’s return, especially as he is of Māori heritage. There is no evidence to support his claim that the Applicant would be subjected to violence and the Tribunal takes notice that New Zealand has an effective police force.
The Tribunal finds that this consideration weighs against revocation of the decision under review.
Impact on Victims
Paragraph 9.3(1) of the Direction provides:
Decision-makers must consider the impact of the section 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.
A victim statement provided to the District Court has been provided to the Tribunal and graphically illustrates the impact of the applicant’s offending in 2021. The victim recorded her thoughts relevantly as follows:
My mind was racing through what might happen – I thought I was going to be thrown out the window. I thought I was going to be hurt to a point I couldn’t come back from. I knew I couldn’t fight him off because he was stronger than me, so as he forced me against the wall, the only thing I thought I could do was go limp until it was over. I’m so lucky that my neighbour heard me screaming, and helped me out of the bathroom, otherwise I don’t know what would have happened.
When you’re a woman you’re very used to being looked at and spoken to in ways that make you feel uncomfortable when you’re out in public. You’re used to it and you find ways to deal with it. But things are supposed to be different when you’re at home. You shouldn’t have to think about being intimidated, gripped, shoved or groped. And because this happened to me at home, I feel unsafe in places no one should feel unsafe. A year on, I still can’t go to the bathroom without getting recurring visions of someone coming in.
Sometimes recovering from trauma can be silent. It’s hard to express how you feel and it’s hard to even know how you feel. For the first few months I was asked so many questions about where I was going to live, whether to quit my job, what to do about the court proceedings. I could hardly answer any of them, because my brain wasn’t working properly. I couldn’t really make decisions because I actually just felt fractured and numb.
Per PGDX v Minister for Immigration, Citizenship, Migrant Servicesand Multicultural Affairs [2021] FCA 1235 at [79] – [80], the Tribunal is required to give consideration to the impact on the victim. In the circumstances the Tribunal finds that this consideration weighs against revocation of the decision under review.
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’s father resides in Australia but the Applicant does not know when his father migrated to Australia. He has not seen his father since 2020 but has approximately monthly contact by telephone with him.
Other than his father, the Applicant has no other family members living in Australia other than his child who is said to live in either Brisbane or Perth.
The Applicant has resided continuously in Australia since 2012. He worked as a part-time cleaner in 2018 at a theatre in Sydney. The Applicant has engaged in sporadic employment as a gardener or as a labourer on building sites in and around Sydney. He was unemployed between 2016 and 2018 and received social services benefits in this period. The Applicant, by such works, has made a minimal positive contribution to the community (see subparagraph 9.4.1(2)(a)(ii) of Direction 90).
There are no coherent details of his work history and no records to support such work. He states that he worked with a municipal council as a gardener for about two years until he was incarcerated.
The Tribunal considers the strength, nature and duration of the ties to Australia are such as to weigh against the revocation of the decision under review.
Impact on Australian Business Interests
This consideration is not relevant in this matter is there is no evidence that the Applicant is involved in any business which would be detrimentally affected if the Applicant were removed. (See paragraph 9.4.2(3) of Direction 90).
Conclusion
In weighing the competing considerations and the weight to be given to all relevant considerations, the Tribunal considers that it is unable to find another reason to revoke the decision under review
The Applicant does not satisfy the character test. Accordingly, the Tribunal must determine whether there is ‘another reason’ why the original mandatory cancellation decision should be revoked. The evidentiary test is to be established on the balance of probabilities and the Full Court of the Federal Court of Australia in Viane v Minister for Immigration andBorder Protection [2018] FCAFC 116 per Colvin J at [64] stated relevantly:
It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carry sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens a statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
The Tribunal is aware that the task of its assessment is to essentially look forward. The Applicant has already been punished for his criminal offending and the purpose of cancellation of the visa is not intended to be punishment, rather is made in the protection of the Australian community. That is the Tribunal must determine whether the continued presence of the Applicant ‘would be opposed to the safety and welfare of the nation…’: see Nettle J in Falzon v Minister for Immigration and Border Protection [2018] HCA 2 at [94].
All of the Applicant’s serious offending has been directed at women. The Applicant has continued to blame his victim for the 2021 offence, stating to the Tribunal that it ‘it takes two to tango’, suggesting the victim was also to blame for the conduct. Such an attitude is inconsistent with contrition or remorse.
The criminal record of the Applicant and the sentencing remarks of Judge Lerve demonstrates that his prospects of rehabilitation are not good. He has committed to offences which has brought him before the courts. The level of criminality has shown an increase in seriousness. Further, the police records refer to numerous prior incidents in which the applicant has been involved from 2013. The nature of the Applicant’s conduct suggests disregard for Australian institutions and for observance of the legal requirements. For example on 1 September 2012 he was found to have urinated on a Sydney War Memorial. Other incidents refer to the applicant being suspected of graffiti attacks; drunkenness, and suspected drug consumption. In April 2018 the police records record that he slapped a woman on the face and this matter resulted in his arrest. It is not clear whether this is related to the matters referred to in the schedule of criminal convictions. An apprehended violence order was issued on 11 November 2021 against the Applicant arising out of the 2021 offence.
The Conditional Release Order issued on 18 August 2020 required the Applicant to undergo alcohol rehabilitation. The Applicant states he attended sessions of counselling but he continued to consume alcohol in this period. The Applicant breached the Order, thereby indicating a disregard for the requirements of the law.

The Tribunal reiterates the observations of Ms Glenys Waddell that the Applicant has a serious alcohol problem and that unless he undertook an intensive alcohol rehabilitation program, his behaviour would not change. There is no evidence that such rehabilitation has been effected with a consequence that the risk of reoffending exists.
For the above reasons, the Tribunal is satisfied that the Applicant’s continued presence would be opposed to the safety of the welfare and of the nation. Accordingly there is no other 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 affirmed.

I certify that the preceding 92 (ninety-two) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy AO KC, Deputy President

................................[SGD]........................................
Associate
Dated: 16 February 2023

Date(s) of hearing:

6 February 2023

Applicant:

Self-Represented

Solicitor for the Respondent:

Ms C Lewis, AGS

[2023] AATA 175

16 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Remedies

Date(s) of hearing:	6 February 2023
Applicant:	Self-Represented
Solicitor for the Respondent:	Ms C Lewis, AGS