Wikotu and Minister for Immigration and Border Protection (Migration)

Wikotu and Minister for Immigration and Border Protection (Migration) [2017] AATA 2172 (15 November 2017)
Division:GENERAL DIVISION
File Number: 2017/5207
Re:Crete Wikotu
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Senior Member T. Tavoularis
Date:15 November 2017
Place:Brisbane

The decision under review is affirmed.
.........................[SGD].............................
Senior Member T. Tavoularis
MIGRATION – non-revocation of mandatory cancellation of visa – visa was cancelled under s 501(3A) because the Applicant did not pass character test and was serving a full-time term of imprisonment – whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – Considerations in Direction No. 65 – Applicant has minor children in Australia – considerations outweighed by nature and risk of re-offending and community expectation – decision under review affirmed.
Legislation
Migration Act 1958 (Cth), ss 499, 500, 501, 501CA
Cases
Ahori and Minister for Immigration and Border Protection [2017] AATA 601
Allan and Minister for Immigration and Border Protection [2016] AATA 1077
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
Secondary Materials
Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA (the “Direction”)
REASONS FOR DECISION
Senior Member T. Tavoularis
15 November 2017
INTRODUCTION

This matter relates to an application for review filed by Crete Wikotu (“the Applicant”) on 30 August 2017. The decision under review is the decision of a delegate of the Minister for Immigration and Border Protection (“the Minister” or “the Respondent”) dated 28 August 2017. The delegate’s decision, pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), was not to revoke the original cancellation decision.[1]
[1] The original decision being the mandatory visa cancellation by virtue of s 501(3A) of the Migration Act 1958 (Cth).
The Tribunal has jurisdiction to review the decision of the delegate under s 500(1)(ba) of the Act.
BACKGROUND
The Applicant is a 37 year old citizen of New Zealand. He arrived in Australia on

7 November 2009, aged 29 years. His movement records indicate that he has not left Australia since that time.[2] Upon arrival into Australia he was granted a Class TY Subclass 444 Special Category (Temporary) visa (“the visa”).[3]
[2] See Exhibit 3, G Documents, G16, p 124.
[3] Ibid.
The Applicant has been charged and convicted with a number of offences both in New Zealand and since being in Australia. I will elaborate on those later in my decision. Relevantly for this matter, on 7 June 2016, the Applicant was convicted of one count of ‘robbery with actual violence armed/in company/wounded/used personal violence’ in relation to an offence committed on 17 September 2015. He was sentenced by the District Court of Queensland on 7 June 2016 to four years and six months imprisonment, with a parole eligibility date of 16 March 2017.[4]
[4] See Exhibit 3, G10, p 108.
This matter concerns the circumstances surrounding the mandatory cancellation of the Applicant’s visa and the subsequent refusal of the Minister’s delegate to revoke that cancellation.
On 8 November 2016, the Minister cancelled the Applicant’s visa pursuant to s 501(3A) of the Act.[5] The mandatory cancellation power was enlivened because the Applicant failed the character test,[6] and he was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against Australian law.
[5] See Exhibit 3, G3.
[6] The Applicant had a substantial criminal record because he had been sentenced to a term of imprisonment of more than 12 months pursuant to ss 501(6)(a) and 501 (7)(c) of the Migration Act 1958.
On 18 November 2016, the Applicant made a request for the revocation of that mandatory visa cancellation.[7] Included in the Applicant’s request for revocation there was a personal circumstances form, copies of birth certificates for certain children, letters of support both from his partner and other interested parties, certain certificates of achievement and letters of referral from third parties such as the Uniting Care Community (Prison Ministry) and Drug Arm Australasia.
[7] See Exhibit 3, G19.
On 28 August 2017, a delegate of the Minister considered the matter and decided not to exercise the discretion in s 501CA(4) of the Act to revoke the mandatory cancellation of the Applicant’s visa.[8] The Applicant received notice of that decision on 29 August 2017.[9]
[8] See Exhibit 3, G8, pp 93 - 105.
[9] See Exhibit 3, G8, p 106.
On 30 August 2017, the Applicant lodged an Application for Review of that decision with this Tribunal.[10]
[10] See Exhibit 3, G2.
ISSUES
The issue I must consider is whether, in the circumstances of this case, the discretion in

s 501CA(4) of the Act should be exercised in favour of revoking the mandatory cancellation of the Applicant’s visa.
11.When making a decision on whether to exercise the revocation discretion in s 501CA(4) of the Act, there are two issues a decision maker must consider:
(i)whether the Applicant passes the “Character Test” as defined in s 501 of the Act; or
(ii)whether there is another reason why the mandatory cancellation decision should be revoked.
The Minister contends that the Applicant does not pass the character test and that there is not another reason to exercise the discretion to revoke the mandatory visa cancellation decision. Therefore, according to the Minister, the correct and preferable decision is to not revoke the mandatory cancellation of the Applicant’s visa.[11]
[11] See Exhibit 1, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”) at p 15, at [21], [22] and [51].
I will consider each of these issues in turn.
ISSUE 1: DOES THE APPLICANT PASS THE CHARACTER TEST?
It does not seem to be contentious that the Applicant does not pass the character test. For the sake of completeness, I will briefly address this issue.
Australian offending history
At the hearing, the Applicant agreed that his offending was serious. The full extent of his Australian offending is set out in the National Police Certificate.[12] It may be summarised thus:
[12] See Exhibit 3, G Docs, G10, p 108 – 110.
·7 June 2016 – Ipswich District Court – convicted pursuant to s 411(1) and (2) of the Criminal Code (Qld) 1899 for:
orobbery with actual violence armed/in company/wounded/used personal violence (offence committed on 17 September 2015). The Applicant was sentenced to a term of imprisonment of 4 years and 6 months with a declaration that the 264 days he had spent in custody up to the date of his sentence be deemed as “time already served” under this sentence. A conviction was recorded and a parole eligibility date was set at 16 March, 2017;
·7 June 2016 – Ipswich District Court – convicted of the following Magistrate Court matters:
opursuant to s 433(1) of the Criminal Code 1899 (Qld) of two charges of receiving tainted property;
opursuant to s 421(2) and (3) of the Criminal Code 1899 (Qld) of a charge of entering premises and committing an indictable offence by break;
opursuant to s 791(2) of the Police Powers and Responsibilities Act 2000 (Qld) of a charge of contravening a lawful direction or requirement;
opursuant to s 9 of the Drugs Misuse Act 1986 (Qld) for possessing dangerous drugs;
opursuant to s 10(2)(b) of the Drugs Misuse Act 1986 (Qld) for possession of utensils or pipes etc that had been used for the consumption of an unlawful substance;
ofor these summary offences, the Applicant was dealt with pursuant to s 651 of the Criminal Code 1899 (Qld) and a conviction was recorded for all charges but he was not further punished over and above the sentence he received for the abovementioned indictable offence for which he was punished on the same day;
·20 May 2013 – Kalgoorlie Magistrates Court – for:
ofailing to give way to an oncoming vehicle (1 count) - fined $150;
ounauthorised driving by a learner driver (1 count) – fined $200;
odrive unroadworthy vehicle (serviceable) (1 count) – fined $100;
·24 September 2012 – Kalgoorlie Magistrates Court – for:
ounlawful assault and thereby did bodily harm with circumstances of aggravation pursuant to s 317(1) Criminal Code Act Compilation Act 1913 (WA) (1 count) – punished by way of a nine month community based order.
New Zealand offending history
The Applicant has an extensive criminal and traffic history in New Zealand. It dates from 1997 and runs until 2008. As is the case with his Australian offending history, the New Zealand history makes for sombre reading. It is particularised in his New Zealand Police Report.[13] Stated in short compass, the criminal history can be summarised thus:
·robbery (by assault), burglary, unlawful taking of a motor vehicle, obstructing/ hindering Police (x 2), fighting in a public place, assaulting a female (x 3), breach of periodic detention (x 2), breach of a supervision order (x 2), possess offensive weapon, obtaining by false pretences, receiving tainted property with a value of over $5,000, theft of property having a value of over $5,000, common assault, burglary by night of property having a value exceeding $5,000 (x 2), threatening to kill/ do grievous bodily harm, and breach of community work order (x 2);
·for these range of offences, the Applicant received sentences ranging from small fines from as low as $50 to supervisory orders to community service orders and, ultimately, to term(s) of imprisonment.
[13] See Exhibit 3, G Documents, G12, pp 114 – 115.
The character test is defined in s 501(6) of the Act. It provides a number of circumstances in which someone will not pass the “character test”. Most relevant here is s 501(6)(a), under which a person does not pass the “character test” if they have a “substantial criminal record” as defined in s 501(7). According to s 501(7)(c), a person has a “substantial criminal record” if they have been sentenced to a term of imprisonment of 12 months or more. The wording of that provision is clear: it relates to the sentence imposed by a Court, not the amount of time a person has actually served.
Having regard to his criminal history, it is clear the Applicant has been sentenced to more than 12 months imprisonment. There is no doubt the Applicant has a “substantial criminal history” within the meaning of s 501(7)(c) of the Act, and as such, he does not pass the character test.
I must therefore move on to the next question: whether there is another reason why the discretion under s 501CA(4) of the Act, to revoke the mandatory cancellation of the Applicant’s visa, should be exercised.
ISSUE 2: IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 65 (“the Direction”) applies. The Direction provides guidance for decision makers on how to exercise the discretion. Relevantly, it states that:
“…a decision maker: must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.” [14]
[14] Direction No 65, paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three primary considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision makers must take into account the primary and other considerations relevant to the individual case.
The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Paragraph 6.3 of the Direction sets out at a number of principles that should inform the decision maker’s consideration. Briefly stated, they are summarised as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(2) The Australian community expects that the Australian government can and should refuse entry to non-citizens or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3) A non-citizen who has committed a serious crime, including a violent or sexual crime, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4) In some circumstances, the criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any future risk of similar conduct in the future is unacceptable. Notably, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa;
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia;
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
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. Paragraph 13.1(2) of the Direction further provides that decision makers should also give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1 of the Direction specifies that decision-makers must have regard to a number of factors. Relevantly (for present purposes), amongst those factors are: (i) violent crimes are viewed seriously; (ii) the sentence imposed by the courts for a crime or crimes; (iii) the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness; (iv) the cumulative effect of repeated offending; and (v) whether the non-citizen provided false or misleading information to the department, including by not disclosing prior offending.
The Applicant’s conduct to date is clearly of a serious nature. As mentioned earlier, he conceded as much at the hearing. His criminal history, not just in Australia but when viewed in totality with his history in New Zealand, is appalling. His offending has continued in circumstances where one would have expected the behaviour to lessen or disappear because of his two serious personal relationships which have yielded three biological children and one step-child. Despite the responsibility that comes with being a family man, his offending has continued.
As also mentioned earlier, he first arrived in this country in 2009 for the express purpose of establishing a home here. He was no adolescent or misguided youth when he came here. He was 29 years of age. Yet between 2012 and 2016, he has contrived to be convicted of 11 offences sentenced by courts in Queensland and Western Australia. I have no hesitation in finding that he has a persistent disregard for the laws of this country.
The offending seems to have the following three major themes: (1) a refusal to follow lawful authority; (2) a refusal to respect the personal rights of others (in particular, women) and (3) a refusal to respect the property rights of others. Of concern is the reality that his offending has increased in severity since first coming here. It began in September 2012, less than three years after his arrival here, with a conviction for unlawful assault causing bodily harm, with circumstances of aggravation. There followed some relatively minor traffic offences in May 2013. His offending then reached a crescendo when he was sentenced at the Ipswich District Court in June 2016 for armed robbery with personal violence. On any reasonable view, this is very serious offending containing, as it does, sheer disregard for lawful authority and sheer disregard for both the personal and property rights of others. The imposed sentence of imprisonment for four and a half years surely gives an indication of just how seriously the sentencing Court found the offending to be. It is also notable that the relevant section of the Queensland Criminal Code pursuant to which the Applicant was charged carries a maximum penalty of life imprisonment.
It is difficult to find any justification for restoring a visa to a non-citizen who takes it upon himself to enter an IGA supermarket carrying a curved garden pruning saw one foot long, to then walk behind the cash register and threaten the store attendant with that saw and then demand that the store attendant open the till for him so that he could remove all of the store’s cash before fleeing.
This extraordinary conduct required Police intervention – specifically, the deployment of Police Officers and a tracking dog that ultimately located him in a nearby unit complex. The Applicant became argumentative with the arresting Police Officers in their initial attempts to apprehend him. The offence was subsequently proved by way of DNA profiling and high quality colour CCTV footage of the actual robbery. While declining to participate in a Police interview, the Applicant, no doubt seeing the writing on the wall, pleaded guilty to the offending conduct.
An early indication of what a reasonably minded member of the Australian community would expect about restoring any visa to this Applicant appears in the sentencing Judge’s remarks:
“You are not an Australian citizen. The sentence I am about to impose will no doubt be taken into account by the Immigration Department in due course.”[15]
[15] See Exhibit 3, PG11, p 113.
As alluded to earlier, the sentence imposed by the Court (four and a half years) is, in itself, indicative of just how seriously the sentencing Court regarded that offending. It is well known that sentences involving terms of imprisonment are the last resort in the hierarchy of punishments available to a sentencing Court. After reciting the circumstances of the robbery, the sentencing Judge noted “The maximum penalty for that offence is life imprisonment.” In the final analysis, a head sentence of four and a half years was imposed with the balance of that term suspended for an operative period of two-thirds of that head sentence.

The circumstances of the Applicant’s offending in 2012 are similarly very concerning. To repeat, the offending behaviour was charged as “Unlawfully assault and thereby did bodily harm with circumstances of aggravation”. The circumstances of this offending require discussion. The circumstances are indeed appalling because the offending was perpetrated by this Applicant upon his then de facto spouse. He sought to impose his idea of domestic order by grabbing her by the hair, dragging her to the ground and then, after being restrained by a third party, grabbing the victim by the hair and the jumper she was wearing, he then lifted the victim off the ground slamming her body back into the ground. Then, while still holding her hair, the Applicant pulled her head up and kneed her in the region of her left eye. This caused her head to wrench backwards and, in turn, causing her to collapse to the ground.[16]
[16] See Exhibit 2, QPS Summonsed records, pp 5-6.
Apart from this cowardly and disgraceful attack on the woman who had given birth to his first two children, the timing of this appalling conduct could not have been worse: it occurred one month after the victim had undergone a cornea transplant in her eye. This procedure required the insertion of over 350 stitches. In administering this horrible attack, the Applicant must have surely been aware of the cornea transplant the Applicant would have undergone the month before, yet he saw fit to attack her in the way he did.
The direction as to how the Tribunal is to regard this type of very violent offending is clear: paragraph 13.1.1(1)(a) of the Direction stipulates that “…violent... crimes are viewed very seriously.” No-one would cavil with the Respondent’s contention in this regard. It is entirely consistent with what the Tribunal has had to say, on previous occasions. In the matter of Ahori and Minister for Immigration and Border Protection, the Tribunal pronounced:
“Domestic violence is a very serious matter. In no way can violence in a domestic situation by one partner against another be trivialised or downplayed. The implications of such violence on the children, broader family and friends of the parties involved can be serious and long lasting.”[17]
[17] Ahori and Minister for Immigration and Border Protection [2017] AATA 601 at [53] per Senior Member Sosso (as he then was).
Having regard to the totality of the Applicant’s criminal history both in New Zealand and Australia, we are talking about something in the order of 34 offences. Between 1997 and 2008, the Applicant received sentences for 23 offences in New Zealand culminating in a six month term of imprisonment in 2003 for two counts of burglary. The sheer consistency in the pattern of offending, both in Australia and New Zealand, ignoring, as it does, lawful authority and the personal and property rights of others, to my mind, confirms two things: (1) the nature of this Applicant’s offending conduct to date is very serious, and (2) I cannot be convinced that it is at an end.
In considering the nature and seriousness of the Applicant’s conduct, I must also consider whether he has provided false or misleading information to the Department overseen by the Respondent. Unfortunately for the Applicant, he has. On his arrival in Australia in November 2009, the Applicant provided a false declaration on his incoming passenger card by declaring that he had no criminal convictions, thereby intentionally concealing his criminal history.[18]
[18] See Exhibit 3, G17, p 125.
In these circumstances recourse must be had to paragraph 13.1.1(1)(f) of the Direction which relevantly provides that provision of false or misleading information to the Department, including non-disclosure of prior criminal offending, is a factor pointing to the seriousness of an applicant’s conduct in an application such as this.
The Applicant’s conduct, for the purposes of this primary consideration is therefore very serious. In the final analysis, there was little or no resistance to such a finding from the Applicant. He conceded the seriousness of his offending at the hearing and purported to demonstrate remorse.
I therefore have little difficulty in agreeing with the Minister’s delegate in finding that the Applicant’s offending can only be viewed as very serious in terms of its overall impact on the community.
(b) The risk to the Australian community should the Applicant continue to commit further offences or engage in other serious conduct
Paragraph 13.1.2(1) provides that a decision maker should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. In assessing the risk, the Tribunal must have regard to the two factors in paragraph 13.1.2(2). They are:
(i)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The Nature of Potential Future Harm
The Applicant has committed a number of offences involving serious transgressions against the personal and property rights of others. In Australia, he has committed two particularly serious offences. The first involved an unlawful assault resulting in bodily harm to another in circumstances of aggravation. The second is the robbery offence involving, as it did, a direct physical threat to the store attendant at the supermarket. In New Zealand, his offences involving the infliction of physical harm on others number something in the order of seven offences ranging from fighting in a public place, to assaulting a female, to threatening to kill or to do grievous bodily harm.[19]
[19] See Exhibit 3, G 12, pp 114-115.
I find there is a clear and obvious consistency in this Applicant’s offending, both in terms of its escalating severity and his refusal to respect and/or submit to lawful authority. His criminal history is suggestive of an overall demeanour involving him getting his own way and forcibly removing any impediment to that objective. He will no doubt have received warnings from sentencing Courts in the past. It appears all of those warnings have been ignored and now, as a 37 year old, he purports to tell this Tribunal that his offending days are behind him.
At the hearing, the Applicant sought, rather tepidly, to explain his offending on the basis of unresolved issues with abuse of illicit substances. His evidence was to the effect that the basis of his offending was due to: (1) a need to meet an addiction for illegal drugs and (2) certain personal factors that apparently had taken a major toll on his life. He told the hearing that he wanted a second chance to get on with his life in a more responsible way. The problem with that submission is that there is next to no evidence from an independent medical or other expert to justify that his asserted factors behind the offending have been, in some way, addressed or resolved. There is nothing from a treating medical practitioner to confirm the Applicant has been under his/her care and control and that such medical practitioner has overseen the Applicant’s completion of a recognised programme of rehabilitation. Similarly, there is nothing from a practitioner with psychological or psychiatric expertise to indicate that this Applicant’s issues with anger management – particularly in his inter-personal relationship with females – are resolved.
There is evidence of his completion of a “Short Substance Intervention” Program while in custody,[20] but there is no evidence of the type to which I have referred in the immediately preceding paragraph. I therefore agree with the Applicant’s contention that there is simply insufficient evidence to convince a decision maker that this Applicant has rehabilitated such that he is not an unacceptable risk to the Australian community.
[20] Exhibit 3, G21, p 141.
His protestations of wanting to stay here so that he can “find help” necessary to assist him with both his substance abuse and other issues are, in my view, well out of time. Such “help” should have been found earlier or, at the very least, he should be well and truly in the midst of any such rehabilitative (or similar) program or course of treatment. There is no evidence of that and for him to tell the Tribunal that he wants his visa restored to him so that he can then attend to management of the issues behind his offending is disingenuous and takes the trust of the Australian community for granted.
Having regard to the nature of his past conduct, were this Applicant to re-offend in a similar manner, I am of the view that he would pose a grave risk to individuals in the Australian community. He has offended against the personal rights of others, the property rights of others and the escalating nature of his offending – if repeated – could result in members of the Australian community suffering anything from financial loss, serious physical and/or psychological injuries to, conceivably, death.
Though I recognise the Applicant contends that he is a changed man with his offending days behind him and that he poses no risk of future harm, that contention is unsubstantiated. Having regard to the nature of his previous offending, I consider that the potential future harm he may cause to members of the Australian community is great.
Likelihood of engaging in further criminal or other serious conduct
The Applicant contends that he no longer wants to offend or to otherwise engage in serious criminal conduct. He told the Tribunal of his remorse and that he wants to come out of detention and prove that the version of himself represented by his criminal history no longer exists. He talks of taking steps to rehabilitate himself but in the absence of any convincing expert report(s), one has difficulty in being convinced that his issues with illicit substances and self-control have been resolved such that he will not offend in future.
The Applicant has received a number of custodial terms for his offending, both here and in New Zealand. However, this has had no discernible impact on his pattern of offending or his behaviour more generally. I do not think that either: (1) the possibility of further detention, or (2) the possibility that he may be removed from his family, is a sufficient catalyst for the Applicant to change his ways. The Applicant has received leniency and fair treatment from previous sentencing Courts here and in New Zealand that have sentenced him to non-custodial punishments for his offending. Yet even after being sentenced by courts both here and in New Zealand, he has continued to offend.
In addition, there is nothing from an independent expert to tell the Tribunal about: (1) control and management of his illicit substance abuse issues; (2) his psychological/ psychiatric symptoms causing him to have a propensity towards violence; and (3) his likelihood of re-offending. Taken in total, I think this reveals that even if the Applicant thinks he is a changed man, it is more likely than not that he will eventually return to his offending ways.
There are four keys characteristics of this Applicant’s criminal history and conduct to date that further point towards the likelihood of his re-offending.
First, his pattern of offending has clearly continued over a long period of time. In New Zealand, it ran from October 1997 until April 2008.[21] In Australia, it has run from September 2012 until September 2015, when he was incarcerated. Further to that, the offending, both in Australia and New Zealand, has been at fairly consistent, indeed increasing, levels of seriousness.
[21] See Exhibit 3, G12, pp 114 - 115.
Second, I have misgivings about the Applicant’s refusal to accept and respect lawful authority. In considering matters like this, one must, of course, have regard to the nature and severity of the offending. The type of violent and serious conduct apparent from the Applicant’s criminal history could, possibly, be understood where it derives from a dispute between two private citizens or, alternatively, an offender’s addiction to illicit substances. What concerns me about this Applicant’s offending history in this country is its very serious nature. His two more serious offences here (2012 and 2015) are such as to give the impression that this Applicant does not respect lawful authority and has demonstrated a marked refusal to submit to it. This very serious offending has occurred in circumstances where courts, no doubt, would have previously warned him about the consequences of such behaviour. He has failed to take any notice of those warnings. In those circumstances, such offending, to my mind, is more likely to be repeated. This is because the offender does not fear retribution by lawful authority for his offending. I think that in those circumstances the risk of re-offending is higher.
Third, the Applicant talks about wanting to “get help” to try and rehabilitate himself. He expresses remorse and embarrassment for what he has done. He says he wants to devote his life to his new family with his new partner. Even though he spoke of these matters at the hearing, they remain unproven and unverified. As mentioned, there is nothing by way of a forensic report from a suitably qualified expert to tell the Tribunal about the Applicant’s issues with illicit substances and his propensity to violence – especially against women. Aside from a single page certificate verifying completion of a “Short Substance Intervention” Program, there is no further evidence that he has addressed his issues with illicit substance abuse or undergone professional psychological/ psychiatric treatment.
His assault of a former partner in 2012 was truly horrendous. There are at least three references to “male assault female (manually)” type of offences in his New Zealand history. He obviously has a difficulty in dealing with domestic issues between himself and his given domestic partner. I do not know the nature of his assaults on females in New Zealand, but this difficulty in resolving domestic disputes has, in Australia at least, resulted in a potentially catastrophic and life-ending attack on a female in circumstances where she had only recently emerged from a surgical procedure. Yet the Applicant saw fit to not only grievously assault this individual but to specifically focus the point of his physical attack at or near the sight of that surgical procedure on the victim’s eye. No reasonably minded decision maker would accept that the unresolved nature of both the substance abuse and psychological issues in any way lessen the likelihood of this Applicant re-offending.
Finally, the Applicant sought to downplay and minimise the circumstances of his past offending. He sought to blame most, if not all, of his offending on: (1) his illicit substance dependence,[22] and (2) physical and sexual abuse he says he suffered as a child.[23] These matters were, to an extent, ventilated at the hearing. However, this was done on the basis of the Applicant’s self-reporting and was not corroborated by any forensic analysis about the extent to which the asserted trauma has conditioned or affected this Applicant’s behaviour. In these circumstances, only minimal, if any, weight can be afforded to this evidence. I have seen this on numerous occasions in matters of this type and what continually surprises the Tribunal is that even though an applicant talks about how these factors have materially contributed to his history of offending, they do not feature anywhere else – such as, for example, in medical notes or other medical records. I therefore have misgivings about these types of factors raised, as they are, at “death’s door”, when applications like this come before Tribunals or courts for determination. As I have previously observed, an applicant’s silence and absence of complaint about these factors throughout his life thus far and the sudden emergence of these factors at these types of hearings, does not lend much, if any, credibility to such evidence.
[22] See Exhibit 3, PG20, p 137.
[23] See Exhibit 3, G28, pp 164, 166 and 167.
Having regard to the extent of the Applicant’s criminal history and the absence of any probative evidence of rehabilitation, one cannot be convinced that he is sufficiently (or at all) rehabilitated such that he is not at any risk of re-offending. I therefore consider that the nature of any harm presented to the community should the Applicant engage in such further serious conduct would be significant and palpable. I am not convinced that presented with: (1) similar temptations and compulsions towards illicit substances, and (2) domestic challenges and difficulties, the Applicant is now somehow immune from the risk of re-offending.
I therefore determine that on the totality of the material available to me, primary consideration A weighs heavily in favour of not revoking the mandatory cancellation of the Applicant’s visa.
Primary Consideration B: The Best Interests of Minor Children in Australia Affected by the Decision
The Applicant has two biological children from his previous relationship, a daughter aged 16 years and a son aged 15 years. With his new partner, he has one biological child (a son aged three years) and a step-son (aged 10 years).[24]
[24] See Exhibit 3, G20, p 134.
Paragraph 13.2(1) of the Direction provides that a decision maker must make a determination about whether revocation is, or is not, in the best interests of the child. This consideration only applies if the child is under 18 years old at the time of the decision.[25] I am satisfied that the Applicant’s three biological children and one step-child are relevant to this consideration. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.[26]
[25] See Direction No. 65 at paragraph 13.2(2).
[26] See Direction No. 65 at paragraph 13.2(3).
Paragraph 13.2(4) of the Direction sets out a number of factors that must be taken into account when assigning weight to this consideration. Relevantly, some of the factors include:
·(a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where …. there have been long periods of absence, or limited meaningful contact;
·(b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18…;
·(c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·(d) The likely effect that any separation from the non-citizen would have on the child, taking into account other ways they could maintain contact;
·(e) Whether there are other persons who already fulfil a parental role in relation to the child.
As mentioned, the children are aged 16, 15, 10 and three respectively. The nature and duration of the relationship between the Applicant and his children has, on any reasonable view, been overwhelmingly conditioned by one of two things: (1) either separation from his first spouse (for the two eldest children) and (2) his absence from the lives of his youngest biological child and step-son by virtue of him being in custody for just over two years during his time in Australia. There is evidence of active and hands-on involvement by the Applicant as the primary carer for his children, specifically his younger biological son and step-son prior to his going into custody in September 2015. However, it is difficult to make a finding that he has played any meaningful parental role in the lives of either: (1) his 16 and 15 year old biological children or (2) his three year old biological son and step-child, since his incarceration. Accordingly, only limited weight can devolve to this primary consideration B as a result of this factor.
The two older children

I must also have regard to whether there are other persons who already fulfil a parental role in relation to the children. There clearly are. The Applicant’s first partner and mother of the 16 and 15 year old children appears to be the primary carer for both of them. The former partner resides interstate with the two older children. On his own equivocal evidence given at the hearing, the Applicant spoke of periodic telephone contact with his two older children but little contact beyond that. There was little evidence or discussion at the hearing about the parenting arrangements for the eldest two children. It can fairly be inferred that the Applicant’s first partner and/or her family fulfil the parenting role in relation to the two older children.
I note the provisions of paragraph 13.2(4)(h) of the Direction which directs a decision maker to take into account any evidence that a child has suffered or experienced any physical or emotional trauma arising from this Applicant’s conduct. Perhaps luckily for the Applicant, I do not have before me any independent evidence of such trauma being occasioned to the eldest two children as a result of the dreadful attack on the Applicant’s first partner in 2012. However, the police material speaks for itself. The Applicant’s partner placed the four children[27] in the car in a bid to escape the Applicant’s rage. She never got the chance to drive off because he caught up with her and administered his appalling attack on her in front of the children, seated as they were in the car.[28]
[27] That is, the Applicant’s eldest two children, plus his partner’s two nieces, whom she was babysitting.
[28] See Exhibit 2, Bundle of summonsed police records, pp 5-6.
Therefore, having regard to the totality of the above evidence, I do not consider the best of interests of the two older children will be adversely affected by any refusal to revoke the mandatory cancellation of the Applicant’s visa. Accordingly, only minimal, if any, weight can devolve to this primary consideration B as it relates to the Applicant’s two older children.
The two younger children
With reference to his youngest biological child and his step-child, I again am of the view that his current partner seems to fulfil the parenting role in relation to both of those children. At the hearing, there was minimal evidence about what type of care the Applicant has provided to either or both of those children. The Applicant has been in custody since September 2015. His youngest biological child was born in November 2014. That child has just turned three years old. Save and except for the first 10 months of his life, the Applicant has been in one form of custody or another for the balance of that child’s life. Given the consistent presence of the Applicant’s current partner as the primary carer of these two children, I consider that there are other persons – aside from the Applicant – who already fulfil a parental role in relation to the two younger children. Again, only limited weight can devolve to this primary consideration B as a result of this factor.
I must also consider whether the Applicant is likely to play a parental role in the future taking into account the length of time until the children turn 18. I am of the view that the best interests of the two younger children are served by them living with and being raised by both of their ‘parents’. The Applicant’s current partner frankly and honestly told the hearing that if the Tribunal’s decision was not to reinstate the Applicant’s visa, she and the two youngest children would relocate to New Zealand with the Applicant. She is to be commended for her honesty, frankness and for her stoicism in the face of dreadfully difficult circumstances for her and the children, bearing in mind that she and the children have done absolutely nothing to bring about these difficult circumstances.
Given the current partner’s concession of a relocation to New Zealand, I am of the view that the best interests of the two youngest children would thus be served. The geographical location of where the Applicant and his partner do their parenting is surely a matter of secondary importance to that of ensuring that both of them are present, on a full-time basis, to parent their children. The further point is that the youngest two children are of an age (10 and 3 respectively) where they can more readily make the adjustment to a new country and community. The situation would, of course, be different if the children were of a more mature age, at a more pivotal point in their schooling or about to sit for examinations involving entry to tertiary study or the undertaking of some other course of study or qualification. I therefore find that the Applicant, even if he were compelled to return to New Zealand, would do so with his current partner and their two children such that he could resume and play a positive role as a partner and father. For this reason, I am of the view that only limited weight can devolve to this primary consideration B as a result of this factor.
I must also have regard to any evidence that any of the four children/ step-child have been traumatised by their father/step-father being incarcerated as a result of his conduct. There was nothing in the form of independent evidence about the effect of the Applicant’s absence from the lives of the children/step-child as a result of his incarceration. It seems the two eldest children are well-settled with their mother in Western Australia. Whatever level of telephone contact he has had with the Western Australian-based children can no doubt continue were the Applicant to be relocated to New Zealand. Such contact could continue by telephone and/or other digital platforms.
It would seem that the Applicant, while in custody, has not had any measure of regular face-to-face contact with his current partner and their children. The Sentence Management Services section of the Woodford Correctional Centre[29] noted in a communication with the Respondent Department on 4 January 2017 that the Applicant did not have regular contact with his family.[30] At that time, the current partner resided at Ipswich which is a distance of some 120 kilometres from the Woodford facility. It is somewhat surprising that the youngest biological child and the step-child did not visit the Applicant while he was detained at the Woodford facility. To be fair to the Applicant, it should be noted that his current partner does not own a motor vehicle and for her to rely on public transport to a cumulative distance of about 240 kilometres (with two infant children) is onerous. His further evidence is that he has maintained relatively frequent telephone contact with them.[31]
[29] This is a correctional facility in south-east Queensland where the Applicant served his custodial sentence for the armed robbery offence for which he was sentenced by the Ipswich District Court on 7 June 2016.
[30] See Exhibit 3, G Documents, G14, p 118.
[31] See Exhibit 3, PG30, p 167.
In the final analysis, my view is that both the youngest biological child and the step-child are of a sufficiently young age such as to be readily malleable to adapting to life in New Zealand were they required to relocate there with their mother and father/step-father. All of the emotional aspects detailing each child’s love and nostalgia for their father will be remediated by both parents being available for their continued upbringing. At the risk of repeating myself, I consider this element considerably more important and in the best interests of the children[32] than the geographical location of where the family unit is located.
[32] That is, the two younger children.
For the reasons outlined above, I am of the view that although primary consideration B may, at first blush, present in favour of revoking the Applicant’s visa cancellation, it only attracts minimal weighting.
Primary Consideration C: Expectations of the Australian Community
I turn now to the final primary consideration: the expectations of the Australian community. In making this assessment, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to the Government’s views in this respect. Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of this Applicant’s offending is such that the Australian community would expect that he should not hold a visa.
The essential question with respect to this Primary Consideration C is surely whether the Australian community, as a whole, would expect that a non-citizen with the Applicant’s history of offending should retain the right to remain in Australia. Each offender’s criminal history and circumstances of offending is different. This broadly stated question must be broken down into a series of components so that it is properly understood.
The question may be stated thus - would the Australian community expect this Applicant to hold a visa to remain here in circumstances where:
·in September 2012, at the Kalgoorlie Magistrates Court, he was convicted on his own plea to the quite horrendous and aggravated assault on his former partner;
·in June 2016, at the Ipswich District Court, he was convicted on his own plea of a very serious armed robbery of a local IGA supermarket involving the use of personal violence against the store attendant, then fleeing the scene with the resulting requirement for emergent intervention by Police to forcibly apprehend him;
·he arrived in Australia in November 2009 yet committed his first serious offence less than three years after coming here and has been in custody on a continuous basis since September 2015 and has remained in one form of custody or another since that time;
·put another way, he has spent more than two of his eight years in this country thus far in actual custody. It should also be borne in mind that two-thirds of his head sentence of 4 years and six months for the armed robbery offence was suspended for the balance of that term. Therefore, were he to remain here, the Applicant would still be subject to strict observation of the balance two-thirds of that head sentence;
·if allowed to remain here, the suspended two-thirds of the head sentence (four years, six months) would expire in or about December 2019. This would mean that by his theoretical tenth year in this country (ie. from the end of 2009 to the end of 2019) he will have spent half of those 10 years in the corrective services system, by way of: (1) being subject to community based orders, (2) serving a term in actual custody and (3) subject to parole-based orders.
I am mindful of the aspects required to be balanced in any proper consideration and application of this Primary Consideration C to a given factual matrix. One must look to the expectations of “… the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[33]
[33] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] per Deputy President Block.
The application of paragraph 13.3(1) of the Direction has recently been the subject of consideration by Deputy President Forgie of this Tribunal in ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103]:
“102. …I considered this paragraph in some detail. I will not repeat my analysis but adopt its conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects noncitizens to obey Australia’s laws while in Australia but leaves open, for example, what is an “unacceptable risk” that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa.
…..
103. Although ultimately a matter for judgment, the facts on which that judgment is made must be made on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgment that is ultimately made by a decision-maker must be able to be explained.”
The resulting question is whether an informed and reasonable member of the Australian community would consider that the Applicant has been adequately punished by serving a term of imprisonment of 18 months for his criminal offending (in Australia) such that he should now be allowed to remain in this country.
I cannot come to that conclusion in light of my findings as to:
(i)the nature of the harm presented to the Australian community were this Applicant to re-offend;
(ii)his likelihood of re-offending; and
(iii)the comments of the learned Deputy President Forgie in ETWK regarding the more circumscribed expectations of the community.
I am therefore of the view that the Australian community, especially with reference to this Applicant’s horrendous assault on his former spouse in 2012, his armed robbery offence in 2015 and his unresolved illicit substance abuse issues:
(i)would expect this Applicant to obey Australian laws while he is in Australia; and
(ii)would, in the circumstances of the Applicant’s very serious breaches of the trust behind that expectation, consider it appropriate that he does not continue to hold a visa.
At the hearing, the Applicant spoke of being given a “second chance”. Does he deserve it? This depends on the circumstances of his case to be considered in light of the overriding purpose of the legislation.[34]
[34] See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.
The Applicant arrived in Australia eight years ago when he was 29 years of age. He committed the first very serious offence less than three years after arriving here. It would be surprising for him not to be aware of consistent government and local community campaigning against domestic violence. He would surely have received a stern warning from the Court that sentenced him for that offending in 2012 yet he saw fit to graduate that offending up to armed robbery necessitating emergent Police involvement to pursue him around the streets of a suburban locality with a sniffer dog to apprehend him.
He has only participated in the Australian community for a relatively short time. Paragraph 6.3(5) of the Direction tells a decision maker that the Australian community has an understandably low tolerance for any criminal or other serious conduct by visa holders who have been here for a short period of time. I consider that the community has an expectation that the government should cancel a non-citizen’s visa if serious crimes have been committed in this country such as those committed by this Applicant in 2012 and 2015.
His offending in this country (and, indeed, New Zealand) is clearly of a very serious nature. Were he to re-offend, the risk of harm he would present to the Australian community would be quite significant. I am of the view that the Australian community would consider that this Applicant represents an unacceptable risk of breaching the trust of the Australian community it reposed in him when he first came here.
I therefore do not consider that the Australian community would be prepared to give this Applicant “a second chance”.
Having regard to this primary consideration C, I find that the community’s expectations in respect of this Applicant would endorse a finding of non-revocation of the mandatory visa cancellation. Accordingly, I find that this consideration weighs heavily in favour of non-revocation.
Other Considerations
It is necessary to look at the other considerations listed at paragraph 14 of the Direction. I have considered each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e). I will address each in turn.
With reference to other consideration (a) – International Non-refoulement obligations – There has been no submission that this consideration is relevant in this case.
With reference to other consideration (b) – Strength, nature and duration of ties – the Applicant has been in Australia on a continuous basis since the end of 2009. He has an Australian indigenous partner with whom he has a biological son (aged three) and a step-son (aged 10). However, any weight attributable to this factor (including the partner and their children’s heritage) is tempered by his partner’s evidence that were he compelled to return to New Zealand, she and the children would relocate to New Zealand with him. While the children have lived in this country thus far, as outlined earlier, they are of an age where they can be readily introduced and become accustomed to life in another community.
I agree with the Respondent’s concession that the Applicant has family members living in Australia comprising his partner, four children, mother, step-father, three brothers, two sisters, 12 uncles/aunts, 14 nieces/nephews, 10 cousins and two grandparents-in-law.[35] Further, any relocation by the Applicant to New Zealand may well involve a physical separation from those family members. Cost issues aside, there is little or no evidence as to why his family would not be able to visit him in New Zealand or relocate there. Alternatively, the Applicant can maintain contact with his family members via telephone or electronic means.
[35] See Exhibit 3, G20, p 136.
Consideration must also be given to the Applicant’s two older children who reside in Australia with their mother. At the risk of repeating myself, the parental responsibility for those two children seems to be the exclusive province of the Applicant’s former partner. Contact between him and those two older children seems limited to telephonic means. There seems no impediment to such contact continuing were he to relocate to New Zealand, nor is there any impediment on such contact graduating into contact via electronic means. Similarly, either or both of the older children could visit him there.
Consistent with paragraph 14.2(1)(a) of the Direction, less weight should be given to this other consideration (b) in circumstances where the Applicant commenced offending less than three years after arriving in Australia.
While this other consideration (b) may weigh in favour of revocation, it is outweighed by the primary considerations and the other considerations which favour non-revocation.
With reference to other consideration (c) – Impact on Australian business interests – there was no suggestion that any Australian business interests would be impacted if the Applicant’s visa cancellation is not revoked. This particular other consideration is of no weight to my consideration.
With reference to other consideration (d) – Impact on victims – there is no specific evidence about the impact on any victims of the Applicant’s offending. However, I am mindful that at least two of the Applicant’s victims reside in Australia. His former partner resides interstate with his two older children and, presumably, the store attendant who was the subject of the armed robbery offending in 2015 still resides in Queensland. The sentencing Judge at the Ipswich District Court, while not making reference to any victim impact statements in his sentencing remarks, nevertheless noted: “The incident was captured on high quality CCTV footage which was shown in court. It must have been a frightening experience for the complainant.”[36] Similarly, the statement of material facts and graphic images of the physical harm occasioned to the Applicant’s first partner in the 2012 domestic violence assault also makes for sombre viewing.[37]
[36] See Exhibit 3, PG11, p 112, lines 19-20.
[37] See Exhibit 2, summonsed police records, pp 5-8.

With reference to other consideration (e) – Extent of impediments if removed – as noted by the Respondent, the Applicant may experience some short-term hardship in re-establishing himself in New Zealand. This short-term hardship is tempered by his current partner’s intention to relocate to New Zealand with him if his visa cancellation is not revoked. As well, the Applicant has spent the vast majority of his life in New Zealand and would almost certainly suffer no language or other cultural barriers if compelled to return there. In Tera Euna and Minister for Immigration and Border Protection, the Tribunal commented that:
“New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the Applicant if he returns to New Zealand…..(He has previously lived there and visited on occasions) … New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The Applicant will have access to those services as a New Zealand citizen.”[38]
[38] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.
I agree with the contention of the Respondent. To the extent that any of these other considerations may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C which weigh in favour of non- revocation.
CONCLUSION
There is no doubt that on the basis of his offending, the Applicant does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in Direction No. 65.
Primary Considerations A and C weigh heavily in favour of non-revocation. They both outweigh Primary Consideration B, to which I have assigned limited weight. I do not consider that any of the Other Considerations, alone or combined, assist the Applicant to any sufficient degree, certainly not to the extent they would outweigh the Primary and Other Considerations which favour non-revocation.
DECISION
For the reasons outlined above, I affirm the decision under review.

I certify that the preceding 102 (one hundred and two) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

...........................[sgd].................................
Associate
Dated: 15 November 2017

Date of hearing: Tuesday, 7 November 2017

Applicant: Appeared by video

Advocate for the Applicant: T. Watterson (relative/friend)

Solicitor for the Respondent: M. Hawker, Sparke Helmore Lawyers

[2017] AATA 2172

15 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Remedies

Statutory Construction

Date of hearing:	Tuesday, 7 November 2017
Applicant:	Appeared by video
Advocate for the Applicant:	T. Watterson (relative/friend)
Solicitor for the Respondent:	M. Hawker, Sparke Helmore Lawyers