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

[2020] AATA 3951

Wilson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3951 (8 October 2020)

Division:General Division

File Number(s):      2020/4328

Re:Andrew Dylon Wilson

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr Rob Reitano, Member

Date:8 October 2020

Place:Sydney

I affirm the decision refusing to revoke the mandatory cancellation of Andrew Dylon Wilson’s Class TY Subclass 444 Special Category (Temporary) Visa.

..............................[sgd]..........................................

Mr Rob Reitano, Member

CATCHWORDS

MIGRATION – subclass 444 special category visa – citizen of New Zealand – failure to pass character test – substantial criminal record – drug-related offences – domestic violence offences – Applicant received a warning of visa cancellation on character grounds –  whether discretion to revoke mandatory cancellation should be exercised – considerations under Direction No. 79 – primary considerations – other considerations – decision under review affirmed

LEGISLATION

Crimes (Domestic Personal Violence) Act 2007 (NSW) – s.13(1)

Migration Act 1958 (Cth) – ss 499, 501, 501CA

CASES

Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385

FYBR v Minister for Home Affairs [2019] FCAFC 185

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

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – paragraphs 6, 7, 8, 13, 14

REASONS FOR DECISION

Mr Rob Reitano, Member

8 October 2020

INTRODUCTION

1. On 9 November 2018, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) was required to cancel Andrew Dylon Wilson’s (Mr Wilson) Class TY Subclass 444 Special Category (Temporary) Visa (Visa) which was issued to Mr Wilson on 15 November 2003 because he had failed the character test under s.501(3A) of the Migration Act 1958 (Cth) (Act) following Mr Wilson being sentenced to a term of 18 months imprisonment.

2. On 20 December 2018, the Minister, after receiving representations from Mr Wilson, wrote to Mr Wilson telling him that he had decided to revoke the original decision to cancel Mr Wilson’s Visa. In the same correspondence, the Minister, in bold typeface, warned Mr Wilson that if he engaged in further criminal or other serious conduct, his Visa might be cancelled again on character grounds.

3. On 26 February 2019, only a little over two months after receiving the Minister’s warning letter, Mr Wilson sent two text messages to his former partner with the words ‘this time jess…make sure you are bra you’ll be 6 feet under cunt!! wat have i got to loose bra fucken nothing cunt!!’ and ‘go u think im scared cunt keep my misses name out of ur fucken mouth too cunt or ill punch your teeth i to the back of ur throat fuckwit.’

4. On 18 June 2019, Mr Wilson was convicted of an offence against s.13(1) of the Crimes (Domestic Personal Violence) Act 2007 (NSW) (Crimes Act) and sentenced to nine months imprisonment for the offence of stalk and intimidate with the intention of causing fear of physical or mental harm because of the text messages he had sent on 26 February 2019.

5. On 5 August 2019, the other consequence of the text messages came home when the Minister again cancelled Mr Wilson’s Visa because he failed the character test. Mr Wilson again made representations to the Minister about why the Minister should revoke the cancellation of his Visa, but on this occasion, those representations failed to persuade the Minister that there was another reason to support the revocation of the cancellation of the Visa.

6. On 20 July 2020, Mr Wilson applied to the Tribunal to have the decision refusing to revoke the Visa cancellation set aside.

7. I have decided to affirm the Minister’s decision. I set out the reasons for my decision below.

   ISSUE

8. The issue is whether the Tribunal is satisfied that there is ‘another reason’ under ss.501CA(4)(b)(ii) to revoke the decision cancelling Mr Wilson’s Visa. This is because Mr Wilson made representations to the Minister seeking revocation of the decision to cancel the Visa which is the prerequisite to the exercise of the power to revoke that decision.[1] The only other basis on which the Visa could be restored is if Mr Wilson passes the character test, which he cannot do because he has been sentenced to imprisonment for more than 12 months which means he has a ‘substantial criminal record’ which dictates that he fails the character test.

   [1] ss.501CA(4)(a).

9. Whether there is ‘another reason’ to revoke the mandatory cancellation of Mr Wilson’s Visa is a discretionary matter which is assisted by consideration of ‘Direction No 79 – Visa Refusal and Cancellation under s.501 and Revocation of a Mandatory Cancellation of a Visa under s.501CA’ (Direction) which I will address later in these reasons.

   FACTS

10. On 30 December 1995, when he was four years of age, Mr Wilson came to Australia from New Zealand. He came to Australia with his mother, father, older brother and older sister. They were all citizens of New Zealand. He has lived in Australia since then.

11. Mr Wilson has three children who are 9, 6 and 4 years of age. Mr Wilson is separated from their mother who was his partner for many years. Mr Wilson says he has a close relationship with his children although as at the date of giving his evidence, he had not seen them for about 18 months. Nor had he spoken to them in that time because of what he understood about the effect of the apprehended violence order that operated in respect of his partner. Mr Wilson said he saw the children daily before the commencement of his most recent period of incarceration in February 2019. He told a community corrections officer who prepared a pre-sentence report in September 2018 (Pre-Sentence Report) that before September 2018, he saw his children twice a month. Mr Wilson says until his most recent relationship commenced, which has also now come to an end, his former partner had permitted him to see his children as much as possible. Mr Wilson provided a number of statements from his mother and father and others that attested to his devotion to his children which I do not doubt.

12. Mr Wilson had been in a relationship for a short time in late 2018 with Ms Taylor who had a young daughter who called him ‘daddy’. The relationship with Ms Taylor continued for a matter of months before Mr Wilson was incarcerated in early 2019. He had hoped to rekindle that relationship with Ms Taylor again upon his release from custody and detention but that is no longer his plan. He remains good friends with Ms Taylor who has visited him about 10 times whilst he has been in custody. Her child has visited him on one of those occasions.

13. Mr Wilson said in his representations to the Minister that he has 17 nieces and nephews and has a strong relationship with them. The numbers changed from what he said at other times, but it is fair to say that he has something like that number of nieces and nephews. In his evidence during the hearing, he said that his brother had 10 children, his sister had five children and his other brother had three children. He said in total there were “26 grandchildren and great grandchildren” in the family. He saw his nieces and nephews at least once a week, possibly twice a week, at his parent’s place for a family barbeque before his incarceration. He has many relatives in Australia.

14. Mr Wilson has worked as a concreter and asphalter in civil construction and building. He has been promised full time employment with his father upon his release from detention if he is permitted to stay in Australia.

15. Mr Wilson has no family or friends in New Zealand although I note, when he was 12 years of age, he visited his grandmother in New Zealand.

16. Mr Wilson has a lengthy criminal record extending back to 31 March 2011 although most of his criminal offending appears to have taken place after 2016. Mr Wilson attributes his offences to his ‘drug habit’. Three of his offences, including the most recent one, involve domestic violence against his former partner. The others relate to the supply of illegal drugs. One offence concerns driving whilst suspended and another, breach of bail conditions. I will deal with some of the detail of the more serious offences.

17. On 31 March 2011, Mr Wilson was convicted of the offence of assault occasioning actual bodily harm (domestic violence). The circumstances briefly stated were that he lifted his then partner who fell onto a lounge before he grabbed her by the legs and dragged her towards him across the lounge causing her pain and a scratch on her back. The offence was aggravated by the fact that his partner was pregnant at the time and, so it would seem, also there was a young child (although not Mr Wilson’s) present. Mr Wilson received as his sentence the benefit of a bond to be of good behaviour for 10 months.

18. On 30 June 2016, Mr Wilson was convicted of the offence of common assault of his then partner for which he was fined $1000, ordered to enter a good behaviour bond for 18 months and subjected to an apprehended violence order (AVO). The incident took place in front Mr Wilson’s three children and involved him striking his partner across her face with his right forearm. Mr Wilson pleaded guilty to facts which said he was affected by methamphetamine at the time although, there was some issue about that in the sentencing remarks with Mr Wilson telling the Court that he was affected by alcohol.

19. On 18 June 2019, Mr Wilson was convicted of the offence of stalk and intimidate with the intention of causing fear of physical or mental harm in contravention of s.13(1) of the Crimes Act. I have referred to the details of this offence earlier in these reasons. I should add that in his evidence, Mr Wilson said that he felt he was provoked by his partner into sending the text messages. He also said in his evidence that he did not consider that the words ‘you’ll be 6 feet under’ constituted a threat to kill his partner. He agreed, however, that calling a woman who was the mother of his children a ‘cunt’ was not a particularly appropriate thing to say. He received a sentence of nine months’ imprisonment for the offence. That offence was committed whilst Mr Wilson was on parole for his drug related offences and, as I have said, at a time when the Minister had warned him that his migration status would be in jeopardy if he were to engage in further criminal or other serious conduct.

20. On 4 October 2018, Mr Wilson was convicted of three drug related offences the most serious of which was when on 20 October 2017, he supplied 16.19gms of methamphetamine which was greater than an indictable amount. Mr Wilson claimed in his evidence that the methamphetamine with which he was caught was for his own use. The sentencing remarks of Judge Herbert in the District Court refer to facts (text messages on Mr Wilson’s phone and large amounts of cash in his pockets) which were found to be consistent with the supply of drugs. Judge Herbert found Mr Wilson’s level of involvement was that of a “street level dealer who [was] facilitating his own drug consumption by selling drugs at a substantial level”. Judge Herbert found the offence to be at the lower range of offending, closer to a mid-level offence.

21. Mr Wilson sought to cavil with the findings of Judge Herbert concerning his supply of the methamphetamine. That has obvious repercussions for any questions associated with remorse. That finding about supply was made having regard to the criminal onus of proof: beyond reasonable doubt. I should act upon it in preference to Mr Wilson’s most recent version which suggested he was not trafficking or supplying drugs at all.[2] Even if there were discretion about that question, the evidence in this case is not sufficient to displace the strong prima facie evidence that exists by reason of the conviction and sentence for the offence.

    [2] Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385 at [41] – [44].

22. On the same day, Mr Wilson was convicted of two earlier offences, on 6 June 2017 when he supplied less than an indictable quantity of cannabis and greater than an indictable quantity of cocaine. He received a conditional release order for 9 months for the former offence and 6 months term of imprisonment for the latter. He also had an offence of dealing with the proceeds of crime which was taken into account when he was sentenced. Before he was sentenced for these offences, a pre-sentence report was prepared that put Mr Wilson’s risk of re-offending in the medium range. That report also said that Mr Wilson accepted full responsibility for his offences, but that does not seem to have been reflected in his evidence before me.

23. I should note that whilst incarcerated, and before his most recent period of incarceration, Mr Wilson undertook a number of courses in drug and alcohol rehabilitation and domestic violence. Mr Wilson expressed some remorse for his conduct as well as some insight into its causes, namely his substance abuse. That remorse and insight is tempered by his attempt to deflect attention from his most recent offence, referring to it as the result of provocation and to his attempts to minimise the seriousness of what he said to his partner by suggesting it did not involve a threat to kill her. It is also diminished to some extent so far as his drug related offences are concerned by his denial of his role in supplying drugs which was proven beyond reasonable doubt before Judge Herbert.

24. I have already referred to the previous cancellation of Mr Wilson’s Visa, the revocation of that decision and to the warning in bold that he received about the possibility of cancellation of his Visa should he offend again.

25. I will refer to some of the other facts below as is necessary.

    IS THERE ANOTHER REASON FOR REVOCATION?

26. Subsection 499(2A) of the Act requires the Tribunal, in exercising its functions and powers under the Act, to comply with any written directions given by the Minister under ss.499(1). I am required, to comply with the Direction in considering whether ‘there is another reason why the original decision should be revoked’. The Direction is ‘to guide decision-makers performing functions or exercising powers under section 501 of the Act…to revoke a mandatory cancellation under section 501CA of the Act’.[3] Its object is to provide ‘a framework within which decision-makers should approach their task of deciding whether…to revoke a mandatory cancellation under section 501CA’. The Direction identifies the ‘relevant factors that must be considered in… making a revocation decision’.[4]

    [3] Cl.6.1(4).

    [4] Cl.6.2(3).

    The principles

27. The principles listed in the Direction ‘inform’ a decision-maker about the matters that must be considered in determining whether the mandatory cancellation of a visa will be revoked.[5] It is useful to say some things generally about the principles in order to understand how they are relevant and are to be applied.

    [5] Cl.7(1).

28. The first of the principles records the sovereign right of Australia to determine whether non-citizens of ‘character concerns’ are allowed to ‘remain in Australia’.[6] It records the fact that being in Australia is a privilege that is conferred in the expectation that non-citizens are ‘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’. The principle is about the fact that it is Australia who decides who can be in Australia and that Australia permits people to be here on the express basis that they will abide with Australian law.

    [6] Cl.6.3(1).

29. The second principle refers to the expectation of the Australian community 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.’[7] This principle is reiterated later in the factors that must be considered, but it is the ‘expectation’ of the Australian community that is relevant. The expectation referred to in the principle is normatively established by the principle itself like one of the factors to be considered to which I will refer later.

    [7] Cl.6.3(2).

30. The third principle refers to ‘a non-citizen who has committed a serious crime of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to… forfeit the privilege of staying in, Australia.’[8] This operates on the premise of a ‘general’ expectation or rule and not one that is either to be applied in every case, or more importantly, in specific circumstances. This principle has particular relevance in this case as three of Mr Wilson’s offences are against his former partner who is a woman.

    [8] Cl. 6.3(3).

31. The fourth principle opens with the words ‘[i]n some circumstances’, indicating that there will be specific cases that attract its attention.[9] The ‘some circumstances’ are those where ‘criminal offending or other conduct… may be so serious, that any risk of similar conduct in the future is unacceptable’ and it is ‘[i]n these circumstances’ that ‘even other strong countervailing considerations may be insufficient to justify not cancelling… the visa.’ This principle leaves open two possibilities relevant to not cancelling a visa. The first is where criminal offending or other conduct is not so serious that ‘strong countervailing considerations’, or even countervailing considerations alone, might justify not cancelling a visa. The second is where ‘strong countervailing considerations’ may be, in any event, sufficient to justify not cancelling a visa.

    [9] Cl.6.3(4).

32. The fifth principle is that: ‘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. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age’.[10] So far as this principle is concerned, sight should not be lost of the fact that living in the Australian community for most of their life, or from a very young age, is not at all qualified by the words ‘participating in, and contributing to’ as applies in the case with those who have only been in Australia for a short time. Although it is not expressed to be the case, these are likely to be amongst the ‘countervailing considerations’ that are relevant to the fourth principle. It is also important to note that living in Australia for ‘most of their life’ or ‘from a very young age’ is not something that is to be regarded as an automatic exception to the general position of ‘low tolerance’; the word ‘may’ suggests that the issue is an open one presumably dependant on other principles, the relevant factors that must be considered and, naturally enough, the circumstances of the particular case.

    [10] Cl.6.3(5).

33. The sixth principle refers to Australia’s ‘low tolerance of any criminal or other serious conduct’ such that those who hold a limited stay visa can have no expectation that they may remain here permanently.[11]

    [11] Cl.6.3(6).

34. The seventh principle, like the fifth, refers that the ‘length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa…cancellation for minor children and family members’ are considerations.[12] The use of the conjunction ‘and’ suggest that positive contribution is not relevant to the issue of consequences for minor children and family members so that, so far as consequences for minor children and family members are considered, time is immaterial. Again, these are likely to be among the countervailing considerations referred to in other principles.

    [12] Cl.6.3(7).

    The primary and other considerations

1. The Direction requires that the principles inform the decision-maker’s consideration of the matters referred to in Part C.[13] Part C contains ‘primary considerations’ and ‘other considerations.’ Both classes of considerations may weigh in favour of or against revocation of the mandatory cancellation of a visa;[14] rationally, some of them in particular cases, might be entirely neutral or even irrelevant.

   [13] Cl.7(1)(b).

   [14] Cl.8(3).

2. Primary considerations should ‘generally be given greater weight than the other considerations.’[15] Again, the use of the word ‘generally’ suggests that there may be circumstances where that is not so. The inquiry is ‘whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.’[16] That raises a question about what ‘the circumstances that generally apply’ might be. That issue as to when special consideration should be given to a factor or other factors is reasonably left to the good sense of the decision-maker in weighing the relevant matters.

   [15] Cl.8(4).

   [16] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23].

3. The ‘primary considerations’ are the protection of the Australian community from criminal or other serious conduct,[17] the best interests of minor children in Australia,[18] and the expectations of the Australian community.[19] The ‘other considerations’ include, noting that the class of other considerations is not closed, international non-refoulment obligations,[20] the strength, nature and duration of ties,[21] the impact upon Australia business interests,[22] the impact on victims,[23] and the extent of impediments if a non-citizen is removed from Australia.[24] I note that international non-refoulement obligations, impact on victims and the impact upon Australian business interests (although the Minister had something to say about this last consideration, it did not seem to have any relevance having regard to the facts advanced by him) are not relevant considerations in this case.

   [17] Cl.13.1.

   [18] Cl.13.2.

   [19] Cl.13.3.

   [20] Cl.14.1.

   [21] Cl.14.2.

   [22] Cl.14.3.

   [23] Cl.14.4.

   [24] Cl.14.5.

4. It is necessary to consider each of the considerations informed by the principles referred to earlier. It is convenient to record, consider and deal with each of the primary and other considerations in turn, dealing with the facts relevant to each of them as they are considered.

   Protection of the Australian community

5. I am directed to give consideration to ‘the principle 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’; that ‘[r]emaining in Australia is a privilege that Australia confers on non-citizens’ in the expectation that they will obey the law, will respect Australia’s institutions and will not cause or threaten harm to individuals of the community.[25] Specifically, I must consider the nature and seriousness of the conduct and the risk to the Australian community should further offences or others serious conduct be committed[26].

   [25] Cl.13.1(1).

   [26] Cl.13.1(2).

6. The principles and matters that I must consider as relevant here are: ‘without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously’ (cl.13.1.1(1)(a)); ‘crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed’ (cl13.1.1(1)(b)); ‘crimes committed against vulnerable members of the community (such as the elderly and the disabled)… are serious’ (cl.13.1.1(1)(c); ‘the sentence imposed by the Court for a crime or crimes’ (cl.13.1.1(1)(d)); ‘the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness’ (cl13.1.1(1)(e)), ‘the cumulative effect of repeated offending’ (cl.13.1.1(1)(f)) and ‘whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (cl13.1.1(1)(h)). I have considered the other matters in this part of the Direction and they are not relevant in this case.

7. All of Mr Wilson’s offending so far as it is concerned with violence against his partner is objectively serious. The offences of assault occasioning actual bodily harm and of stalk and intimidate with intent to cause fear of physical or mental harm both carry with them maximum penalties of five years imprisonment. The fact that the legislature has provided such long periods of imprisonment as maximum penalties suggests that they are considered to be serious. They are both offences involving violence albeit the former involves physical violence and the latter psychological violence. The fact that they were committed against a woman, and in the case of the first offence, a pregnant woman, makes them all the more serious regardless of the sentence imposed. The third offence committed against his partner involved a significant custodial sentence of nine months which reflects the objective seriousness associated with the offence involving as it did, despite Mr Wilson’s suggestion otherwise, the threat to kill someone.

8. The seriousness of the offending against his partner does not appear to have escalated and does not appear to have occurred ‘frequently’ or with increasing frequency. Each offence was separated by a period of years. Nonetheless, the repeated nature of the offending, even if it were every four or five years, is concerning. And even if substance abuse was somehow to be regarded as a mitigatory matter, that does not explain the first and the last offences which occurred when Mr Wilson was not abusing anything. The last of those offences was committed whilst Mr Wilson was on parole and only a little over two months after Mr Wilson was warned that his migration status could well be in jeopardy in the case of further criminal or other offending. Those matters point to objectively serious offending.

9. So far as his substance related offences are concerned, again the maximum penalty for each of the supply related offences is 15 years imprisonment. That too speaks of a serious offending. The sentence of 18 months imprisonment imposed for the most serious of the offences, the supply of more than an indictable quantity of methamphetamine, tells of a serious offence. Those offences all occurred within a fairly short time (during a matter of months in the latter half of 2017).

10. There does not appear to be much of a pattern about them or any increase in seriousness but given the number of offences relating to different substances such as cannabis, cocaine, and methamphetamine, the offences are a little qualitatively different. The fact that they are all supply related offences is relevant even though Mr Wilson was regarded as a fairly low level supplier, supplying to support his own addiction. Mr Wilson claimed the substances were all for his consumption (albeit he was prepared to share them with others), but I do not accept that in light of Judge Herbert’s findings.

11. It is not in any way significant that these offences were committed before Mr Wilson received the formal warning from the Minister in December 2018, given that his offending was sufficient then, and now, to warrant his failing of the character test and the prospect of visa cancellation. The offences, irrespective of the warning, are objectively serious offences.

12. The nature of Mr Wilson’s criminal offending must be considered in the context as being towards the high end of seriousness involving as it did, offences of violence against a woman, the mother of his three children, and the supply of large (indictable) quantities of illicit substances and in particular, methamphetamine.

13. Next, I must consider the risk to the Australian community should further offences or other serious conduct be committed. I am required to have regard to, ‘cumulatively’, ‘the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct’ [27] and ‘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 re-offending’.[28]

    [27] cl.13.1.2(a).

    [28] cl.13.1.2(b).

14. The nature of the harm should the offences be repeated falls into two categories. The kind of violence done to Mr Wilson’s partner involves both physical violence and psychological violence. Repetition of those offences against her, or others, is likely to have much the same and possibly more serious effects upon the recipients. Physical violence of the kind associated with Mr Wilson’s two assaults on his partner usually does not come with a volume control that regulates precisely its outcome. The threats to put someone ‘six feet under’ and ‘punch your teeth i to the back of ur throat fuckwit’ is of indeterminate effect in most cases but its damaging effect on the recipient because of its terrifying nature should not be underestimated. The nature of the damage wrought to the community by distributing and supplying drugs, even at a street level, is significant. The grave social and personal effects of methamphetamine do not need to be recorded again here. They are notorious. The harm associated with any reoffending is of a serious nature.

15. The risk of Mr Wilson reoffending so far as his substance abuse is concerned, is difficult to ascertain because of his considerable time in custody and detention since his conviction. The Pre-Sentence Report put the risk as being medium. That is probably, at least so far as drug related offending is concerned, the most reliable indicator of the risk of reoffending. The fact that Mr Wilson has undertaken courses whilst in custody and was able to remain drug free whilst in custody suggest that that assessment is a fair one. One matter that concerns me about the risk of Mr Wilson reoffending is the nature of his remorse and, in particular, acceptance of responsibility for his offending. Although the Pre-Sentence Report  said he had accepted full responsibility for his offences, his evidence before me, especially so far as it concerned the supply related offences, indicated he did not accept that level of responsibility at all. His denial of being involved in supply or trafficking is a cause to pause, but nonetheless I consider that the risk of his reoffending is both because of his long record, the professional opinion expressed in the Pre-Sentence Report and the nature of his offending as drug related to be medium.

16. So far as his offences of violence are concerned, I do not accept that they are solely or even substantially attributable to Mr Wilson’s substance abuse problems. As I have already noted, his first and third offences of this kind appear to have taken place when those forces were not in play. Again, in respect of these offences, Mr Wilson’s inclination to the prospect that he was provoked casts very real doubt in my mind as to whether his remorse is genuine at all. The fact that he did not acknowledge that his third offence involved a death threat, as it so obviously did, suggests something of a gap in his level of remorse. The fact that there are three such offences, and as I have been at pains to point out, one after a formal warning that repeat offending might put his migration status in jeopardy, suggests to me that the likelihood of repetition is real. I would assess the risk of reoffending as being a distinct and real probability.

17. The fact that Mr Wilson has the support of his family especially his mother and father and has the prospect of full time employment should he be released from detention are factors that count against his likelihood of reoffending but those things did not seem to count in February 2019 when he reoffended by committing a further fairly serious criminal offence. It is difficult to put much weight on those factors when the evidence is that once released, Mr Wilson offended again very soon afterwards.

18. I consider the nature and seriousness of Mr Wilson’s criminal offences to be very serious and that there is a real risk of harm to the Australian community posed by the prospect that he is likely to reoffend. I consider that given the repeated nature of Mr Wilson’s serious criminal offending, this factor weighs significantly in favour of not revoking the decision to cancel Mr Wilson’s Visa.

    Best interests of minor children in Australia affected by the decision

19. Next, I am required to consider the best interests of children who may be affected by the decision to either revoke or not revoke the cancellation of the Visa. Clause 13.2(2) requires that I only consider minor children, that is children under the age of 18 years, when I make my decision. Clause 13.2(3) requires that I consider the interests of any such children individually to the extent that their interests may differ.

20. This consideration does not at all focus on Mr Wilson’s interests such as his desire to walk his daughter down the aisle or  to have a relationship with his children. The question focuses directly upon the best interests of the children.

21. Again, like with cl.13.1.1(1), cl.13.2(4) requires that in considering the best interests of minor children, I consider a list of matters. Those which are relevant here are: ‘the nature and duration of the relationship between the child and the non-citizen’ noting ‘that less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact’ (cl.13.2(4)(a)); ‘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…’ (cl.13.2(4)(b)); ‘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’ (cl.13.2(4)(c)); ‘the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways’ (cl.13.2(4)(d)); ‘whether there are other persons who already fulfil a parental role in relation to the child’ (cl.13.2(4)(e)); and ‘any known views of the child (with those views being given due weight in accordance with the age and maturity of the child’ (cl.13.2(4)(f)).

22. Again, I have reproduced these factors so that the observations I make below can be understood in their context. The ones I have reproduced are the ones that could possibly have relevance here. I should, before addressing those matters, observe that there was not a great deal of evidence about any of the minor children, in particular Mr Wilson’s three children, such that it is very difficult to assess many of the matters I am required to consider. There was far less evidence about the current position of Mr Wilson’s children, perhaps because they were, and currently are, in the care of their mother. That significantly affects my assessment as to the weight that I am able to give to this consideration. There was also some material before the delegate that was simply wrong (and Mr Wilson was as baffled about that material as anyone else) such as that concerning the sex of his three children and the attitude of his former partner towards this matter.

23. The three most relevant children in this case are Mr Wilson’s two sons and his daughter. The relationship is parental. It appears Mr Wilson has not been the primary care giver of his children at least since some time in 2016. Mr Wilson has had at least two long periods of absences from his children’s lives; more recently he has not seen or spoken to them for about 18 months whilst he has been in custody and then in detention; and in 2018 he was absent from their lives for about ten months when he was incarcerated. In those times, he obviously had limited meaningful contact with them. The position before then is a little unclear because, although he said in his evidence that he had daily contact with them, the Pre-Sentence Report records that he was seeing them twice a month. I am prepared to accept that prior to his incarceration in 2018, he had regular contact with his children although, given that this is now two years ago, it is not as important as it might be if that kind of contact were more recent.

24. The prospect of Mr Wilson playing a positive role in his children’s future largely depends upon him not engaging in further criminal conduct and him taking on an active role in their lives. If he were able to be in their lives, I incline to the view, especially having regard to the testimonials provided by his mother and others about his devotion to his children, that he would play a reasonably constructive role in his children’s development.

25. I do not have any direct evidence about the wishes of the children (and some of the material before me about that is unreliable and does not appear to relate to this case at all). It is not possible to say much about the impact on the children of Mr Wilson’s past conduct, especially so far as their witness to the assault on their mother in 2016, because the evidence is far from complete. Likewise, beyond the general assumption that it cannot be in the best interests of the children to grow up without their father in their lives on a daily basis, it is not possible to gauge the effects of separation from their father in the future. The evidence does not really assist in making any meaningful finding about those things. It no doubt will be possible for Mr Wilson to remain in contact with his children by telephone and other means such as video calls should he return to New Zealand, although that it far from what might be considered to be best for any child.

26. In my view, given the fairly long absence in more recent years of Mr Wilson from his children’s lives and the lack of any extant relationship, this factor weighs only moderately in favour of revocation so far as Mr Wilson’s own children are concerned.

27. So far as Mr Wilson’s nieces and nephews, which were apparently between 17 and 26 in number, are concerned, again, although there is Mr Wilson’s own evidence that his relationship with them is strong, it is not possible to say a great deal more about the effect of revocation upon them. The relationship is not parental. There was no evidence about Mr Wilson’s contact with them whilst he has been incarcerated or in detention. Other than attending weekly barbecues at his mother’s house with them, the evidence is fairly sparse about his role in their lives. I do consider that the interest of those children weighs in favour of revocation but not significantly so.

28. I do not accord any weight to Ms Taylor’s child who had been in Mr Wilson’s life for only a few months prior to his incarceration and who has only seen him once since he has been in custody and detention. The lack of any future prospect of a relationship with Ms Taylor also counts against giving any weight to this consideration so far as that child is concerned.

29. There was some reference in the evidence of Mr Wilson’s mother to Mr Wilson’s younger sister who is 17 years of age who, according to Mrs Wilson, is close to Mr Wilson and would be devastated by him having to leave Australia. There was really not much other information about her position such that it is difficult to give any meaningful consideration to her best interests. I do not know anything about the details of her relationship with her brother.  Nonetheless the relationship of brother and sister, and what Mrs Wilson has said, leads me to conclude that I should not ignore her position. Her best interests also weigh slightly in favour of revocation.

30. In my view, the best interest of minor children, especially of Mr Wilson’s own children, weighs moderately in favour of revocation.

    Expectations of the Australian community

1. The third primary consideration is that found in cl.13.3 and says that ‘[t]he Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the non-citizen should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect’.

2. This primary consideration imputes to the Australian community the expectation that those who have permission to remain in Australia will obey Australian laws. I am not required to consider what or what not the Australian community expects because that is normatively expressed in the consideration itself. Rather, the relevant inquiry is whether ‘it is appropriate to give more or less weight to a deemed community expectation of’ non-revocation of mandatory cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[29]

   [29] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [77] (per Charlesworth J).

3. This consideration generally carries weight in favour of non-revocation. I do not agree that in the circumstances of this case, they mean that this consideration weighs heavily in favour of cancellation. The fifth principle, which I mentioned earlier refers to the fact that having ‘lived in the Australian community for most of their, or from a very young age’ as being factors that mean the Australian community may extend more tolerance to a non-citizen. The seventh principle which is relevant to the consideration of visa cancellation refers to the length of time a person has been making positive contributions to the Australian community and the consequences for minor children and other immediate family members.

4. These two principles have application here where Mr Wilson has been in Australia since he was four years of age and where there are significant impacts upon his children and other immediate family members such as his mother, father, brothers and sisters. For some years through paid employments, Mr Wilson has made a positive contribution to the Australian community. These factors are countervailing considerations that suggest that the Australian community may be more tolerant in relation to Mr Wilson.

5. I also consider that the expectations of the Australian community so far as its tolerance of Mr Wilson’s conduct is concerned, would also be adversely affected by the fact that he continued to offend after he was warned that his migration status might be in jeopardy. That circumstance would suggest that Australian community may not be so tolerant of Mr Wilson’s repeat offending, having been given a chance. Balancing this consideration against the low tolerance that Australia has of any criminal or others serious conduct, leads me to conclude that this factor should be accorded a little more than moderate weight.

   Strength, nature and duration of ties

6. The Direction requires that attention be paid to the strength, nature and duration of ties in Australia.[30] I am required to address the issue of how long Mr Wilson has resided in Australia, by giving it ‘less weight’ where the offending started ‘soon after’ arrival in Australia[31] and ‘more weight’ where ‘time has [been] spent contributing positively to the Australia community’.[32] Second, I must consider the strength, duration and nature of familial and social links with Australian citizens, permanent residents and others entitled to remain in Australia indefinitely.[33]

   [30] Cl.14.2.

   [31] Cl.14.2(a)(i).

   [32] Cl.14.2(a)(ii).

   [33] Cl.14.2(b).

7. Mr Wilson’s offending started after he had been in Australia for about 16 years and even if he were a child and an adolescent for much of that time, it cannot be said that his offending started soon after he arrived. His contribution to the Australian community by way of paid employment is interrupted by his periods in custody but nonetheless has made some positive contributions that need to be considered. That contribution must be moderated by the years in which Mr Wilson was offending and, of course, the time he has spent in custody.

8. There was not a great deal of evidence about the ties Mr Wilson has to the community and in particular, to Australian citizens, permanent residents and others entitled to be in Australia. The identification of people in those classes was absent, but presumably Mr Wilson’s mother, father, siblings, nieces, nephews and his great nieces and nephews fall into those classes. There was some evidence from some of his friends as well. In my view, given the long period of time Mr Wilson has lived in Australia and his extensive familial ties, it is safe to conclude that Mr Wilson has reasonably strong social and family ties in Australia extending back to his early childhood. The evidence supports a conclusion that non-revocations will affect those who provided evidence adversely as it is their wish that Mr Wilson remain in their lives in Australia.

9. In my view, this consideration is one that weighs moderately in favour of revocation of the mandatory cancellation of Mr Wilson’s Visa.

   The extent of impediments if removed

10. Clause 14.5 requires me to consider the extent of any impediments that exist for a non-citizen in establishing and maintaining a basic living standard for themselves in the country to which they are returning. I am required to consider age, health, language and cultural barriers and social, medical and economic support that may be available.

11. Mr Wilson is 29 years of age. There was no evidence that he was suffering from any diagnosed medical condition. There was reference to his feelings of depression, no doubt associated with him being in detention and facing the prospect of having to leave Australia. He appeared to be fit and healthy which is no doubt because he goes to the gym twice a day in detention. His appearance was of a healthy young man. He is fluent in English and engaging. He has a transferable skill in concreting and asphalting and cement that would permit him to seek employment in quite a number of aspects of the building and civil construction sectors.

12. New Zealand is a country remarkably like Australia in terms of its social welfare, medical, legal, and economic system. No doubt, adjusting to life in New Zealand will present difficulties to Mr Wilson in the short term, but I do not consider that there are any impediments to him establishing and maintaining a basic standard of living in New Zealand. I accept that he does not have any significant family ties or network of friends in New Zealand and that this will create some difficulty for him in adjusting to life in New Zealand. These are all matters that are, as the Minister submitted, unlikely to be long term in duration. I do not consider that there is any material difference between New Zealand and Australia so far as the Covid-19 pandemic is concerned such that it at all weighs in the equation.

13. This factor weighs only slightly in favour of revocation of mandatory cancellation of the Visa.

    Other ‘other considerations’

14. I have considered the other considerations in the Direction: namely Australia’s non-refoulment obligations, the impact on businesses, the impact on victims and other matters and do not consider that any of them are relevant to my assessment of whether there is another reason to revoke the mandatory cancellation of Mr Wilson’s Visa. Neither Mr Wilson nor the Minister suggested that any other considerations were relevant.

    CONCLUSION

15. I have found that the protection of the Australian community, significantly weighs in favour of the non-revocation of the mandatory cancellation of Mr Wilson’s Visa. I also consider that the expectations of the Australia community weigh a little more than moderately in favour of non-revocation. The best interests of minor children, in particular, Mr Wilson’s own children, weigh moderately against mandatory cancellation. Mr Wilson’s ties in Australia also weigh moderately against mandatory cancellation and the impediments to him re-establishing himself weigh slightly in favour of revocation.

16. The weight I have ascribed to the protection of the Australian community and its expectations, both of which are primary considerations  and are to be accorded more weight than other considerations, is significant. Those two factors hold considerably more weight than the primary consideration concerning the best interests of minor children. Even when combined with the weight ascribed to the best interests of Mr Wilson’s children, the weight attached to the ties Mr Wilson has to Australia and the impediments confronting him upon return to New Zealand do not outweigh the other primary considerations.

17. It follows that I am unable to find that there is another reason why the mandatory cancellation of Mr Wilson’s Visa should be revoked.

18. I affirm the decision refusing to revoke the mandatory cancellation of Andrew Dylon Wilson’s Class TY Subclass 444 Special Category (Temporary) Visa.

I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Member Reitano.

..............................[sgd]..........................................

Associate

Dated: 8 October 2020

Date(s) of hearing:	21 September 2020
Applicant:	By Microsoft Teams
Solicitors for the Respondent:	Ms G Allen, Minter Ellison