Winikerei and Minister for Immigration and Border Protection (Migration)

Winikerei and Minister for Immigration and Border Protection (Migration) [2017] AATA 2407 (9 November 2017)
Division:GENERAL DIVISION
File Number(s): 2017/5075
Re:Joshua Te Awhitu Winikerei
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Deputy President S Boyle
Date:9 November 2017
Date of written reasons: 28 November 2017
Place:Perth

The decision under review is affirmed
.........[Sgd].............................................
Deputy President S Boyle
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – best interests of the child – expectations of the Australian community – other considerations – strength, nature and duration of ties – extent of impediments if removed – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth) – s 499 – s 499(2A) – s 500(1)(ba) – s 501(3A) – s 501(6) –
s 501(6)(a) – s 501(7)(c) – s 501CA(3)(b) – s 501CA(4) – s 501CA(4)(a) –
s 501CA(4)(b)(ii)
CASES
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
SECONDARY MATERIALS
Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA – paras 6.1, 6.2, 6.3, 6.2(1), 7(1), 8, 13(2), 13.1(1), 13.1(2), 13.1.1(1), 13.1.2(1), 13.2(4), 13.3(1), 14(1), 14.2(1), 14.2(1)(a)(ii), 14.2(1)(b), 14.5(1) – Part C
REASONS FOR DECISION
Deputy President S Boyle
28 November 2017
THE APPLICATION

This is an application for the review of the decision of a delegate of the Respondent (the Minister) made on 17 August 2017 under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the decision of the Minister under s 501(3A) to cancel applicant’s visa.
The application is made pursuant to s 500(1)(ba) of the Act.
The application was heard on 2 November 2017. The applicant, who was self-represented, appeared by telephone from New Zealand and gave evidence. No other witnesses were called. The Minister was represented by Ms Tattersall instructed by Sparke Helmore Lawyers.
In addition to the oral evidence given by the applicant at the hearing, the material before the Tribunal consisted of:
·letter from Ms F dated 10 September 2017 (Exhibit 2);
·letter from Ms F’s daughter dated 10 September 2017 (Exhibit 3);
·210 page bundle of G documents (Exhibit 1);
·Respondent’s Statement of Facts, Issues and Contentions (Minister’s SFIC) (Exhibit 4); and
·156 page bundle of documents produced under summons by Western Australian Police, including criminal and traffic offences history, detective incident reports, victim and witness statements, statements of material facts and various photographs (Exhibit 5).
BACKGROUND
The applicant had held a Class TY Subclass 444 visa (the visa). The visa was issued on 16 June 2012.
The visa was cancelled by the Minister in accordance with s 501(3A) of the Act on the basis that;
(a)the Minister was satisfied that the applicant did not pass the character test; and
(b)the applicant was serving a sentence of imprisonment on a full time basis for an offence against the law of the Commonwealth, a State or Territory.
The applicant was duly advised of the cancellation of the visa by letter dated 30 November 2016 (G4).
By a request dated 1 December 2016 (G17) the applicant requested revocation of the cancellation of the visa and made submissions to that effect.
By decision dated 17 August 2017 the delegate of the Minister decided under

s 501(CA)(4) of the Act not to revoke the Minister’s decision to cancel the visa under

s 501(3A) of the Act (G10).
This application to review that decision of the delegate was lodged with the Tribunal on 24 August 2017.
THE FACTS
The applicant is a New Zealand citizen who was born in 1983. According to his application for revocation of the cancellation of the visa, the applicant first came to Australia on 5 June 2008 (G18, p 103). The visa was issued on 16 June 2012.
In his application for revocation of the cancellation of his visa (G18), the applicant identified that he was the biological father of three children then aged 8, 6 and 5 (G18 at 106). The Tribunal notes that the applicant’s counsel in submissions made at the time of his sentencing in the Perth Magistrates Court in January 2016 (G13 at 79) stated that the applicant also has a child in New Zealand who was at that time 12 years old. It is not clear why that child is not referred to in the applicant’s application for revocation of cancellation of the visa.
The three youngest children were born in Australia and live with their mother in Australia. Although it is a little unclear, it is the Tribunal’s understanding from what is set out in G18 at page 107, and from what was said by the applicant at the hearing, that he has no contact with his biological children. It is also the Tribunal’s understanding that the mother of those children, has remarried (applicant’s hand-written note in G18 at 106).
On 16 January 2015 the applicant was convicted of:
·stealing – fine $500;
·common assault – sentence: intensive supervision order 18 months concurrent;
·common assault in circumstances of aggravation – sentence: intensive supervision order 18 months concurrent;
·common assault in circumstances of aggravation – sentence: intensive supervision order 18 months concurrent; and
·threats to injure or harm a person – sentence: intensive supervision order 18 months concurrent.
On 6 October 2016 the applicant was convicted of:
·breach of bail – sentence: imprisonment 6 months concurrent;
·breach of intensive supervision order of January 2015 – sentence: imprisonment 4 months cumulative;
·breach of bail – sentence: 6 months imprisonment 6 months concurrent;
·breach of conditional release order or community order without reasonable excuse – fine $100;
·breach of bail – sentence: 6 months concurrent;
·common assault – sentence: imprisonment 6 months concurrent;
·breach of intensive supervision order of January 2015 – sentence: imprisonment 6 months concurrent;
·possession of a prohibited drug – sentence: imprisonment 3 months concurrent;
·breach of community release order or community order without reasonable excuse – fine $100;
·aggravated burglary and commit offence in dwelling – sentence: 1 year imprisonment concurrent;
·breach of intensive supervision order of January 2015 – sentence: imprisonment 6 months concurrent; and
·steal motor vehicle – no penalty under Sentencing Act 1995 (WA) s 11.
The applicant also has the following convictions in New Zealand:
·wilful damage (2003) – sentence: community works 60 hours;
·common assault (2005) – sentence: reparation and imprisonment 3 months concurrent;
·injure/intent to injure (2005) – sentence: reparation imprisonment 9 months concurrent; and
·fighting in public (2007) – fine $200.
The circumstances leading to the convictions in January 2015 are summarised in the submissions made by respective counsel and the sentencing remarks of the magistrate. These included comments by the prosecutor Ms Murphy referring to the assault in January 2014 (from the transcript G14 at 88–9) as follows:
Whilst driving along the freeway another verbal argument has occurred, during which the victim [Ms F] stopped the vehicle on the side of the freeway. The accused grabbed the victim around the neck with one hand and applied pressure to her throat. …And then the threats with the victim being [Ms B]. The victim and the accused had been in a relationship for approximately nine months and live at the same address in [removed].
…
The victim told the accused to drop her back home if he was going to argue. The accused then started driving erratically at speed and began to accuse the victim of destroying his life and killing him emotionally. The accused hit the victim. He also threatened the victim for destroying his life, causing her to become extremely frightened.
The latter assault referred to above was in September 2014.
On the same day as the second assault, the one on Ms B, the applicant also assaulted a male friend of the Ms B who had, at the request of Ms B, come to pick her up. The applicant was also convicted of assaulting that person.
The applicant’s counsel made the following comments at that sentencing hearing in January 2015 (G14 at 90):
It is evident that there are issues at play here that Mr Winikerei needs to get on top of. He has been unacceptably physical with three separate victims … I don’t doubt that high emotion, coupled with amphetamine issues, do not help him, but there are steps here that need to be taken.
Magistrate Atkins in sentencing the applicant said (G14 at 91):
Well, if I were to return Mr Winikerei to prison in relation to these matters, it is clear from the content of the report that there is a possibility – a high likelihood of further offending unless Mr Winikerei learns that ladies with whom he’s in relationships are not punching bags.
In response the applicant’s counsel said (G14 at 91):
I’ve highlighted to Mr Winikerei also – not that it’s ever appropriate – Mr Winikerei is a powerfully built man, and what may seem minimal involvement and force from him would not be that way for anyone else involved in the situation.
In sentencing the applicant Magistrate Atkins also said (G14 at 92):
I’ve read the pre-sentence report and as far as you’re concerned it would be very simple to send you straight back to prison to serve a considerable length of time. But if I do that then the likelihood of you committing further offences, particularly in the domestic violence arena, appears to be high. What I am going to do stat (sic) is place you on an intensive supervision order. This intensive supervision order is intended to help you realise that behaving in that way towards ladies with whom you have relationships, in particular, is not going to be acceptable.
The community do (sic) not accept domestic violence, and what you’ve done in relation to these two ladies is shameful, to say the least.
In May 2015 the applicant, in company with another person, broke into a residential property, stole property from the dwelling and stole a Jeep valued at around $50,000. A high speed police chase followed in which the stolen vehicle crashed into other cars and was written off.
In the sentencing hearing in January 2016 for these offences committed in May 2015 and for breaches of bail and the intensive supervision orders made in January 2015, the applicant’s counsel submitted to the court (G13 at 79):
He says that he only went twice, and he did miss some reporting. Basically that was the illicit drug use that impacted on his ability to comply with that. He says that he just wasn’t in a great frame of mind, and he was using every day. In regards to the recent – more recent offending, again, he – this is during times of heavy use of methamphetamine – I would submit the aggravated burglary is the most serious matter, especially as that resulted in a steal motor vehicle, and the car was damaged to the point of having to be written off, and there was a police chase.
At that time in January 2016, presiding Magistrate Campione handed down indicated sentences and ordered the applicant to undertake certain programs. When sentencing the applicant in October 2016 following the applicant’s failure to comply with those orders made in January 2016, Magistrate Campione noted that (G12 at 73-74) :
I do note that you have only breached your bail since you’ve been in the Drug Court. It’s good to see that there’s no further offending. That indicated sentence also incorporated a 25 per cent discount for your early pleas of guilty under section 9AA of the Sentencing Act. Of course the fresh offending is aggravated. It’s made worse by the fact that you were in breach of an ISO which was set up by the courts to specifically give you help, the intervention, that you required.
Your performance on the orders was almost non-existent and out of 100 hours that you were ordered to complete you only completed one hour.
…
You were due to graduate from the program at the end of March, but unfortunately you were exited prior to that due to use of cannabis. But to your credit you disclosed that, you were honest about that. You handed yourself in to the Drug Court and were given another chance, but you did not really engage well in Drug Court after that time. Numerous arrest warrants issued. You received a custody sanction.
There was an abject failure for you to engage in continuous and routine urinalysis, and it couldn’t be said that you got on top of things.
…
The whole point of a pre-sentence order is to give someone an opportunity to engage in some intervention, some treatment, so that changes can be made and so that a term of immediate imprisonment can be averted. Given your conduct since you left residential and you failure to engage solidly with Drug Court it’s really difficult to identify any evidence of gains, you taking on board the strategies that we had hoped to invest in you.
In addition to the matters for which the applicant has been convicted, there do appear to be a further incidents involving violence against women. Police records produced under summons indicate that police were called to a domestic disturbance on 27 June 2012 in which the accused had refused to leave the house occupied by his then former partner and his biological children (Exhibit 5 at 14). While the Detected Incidents Report records that the complainant (the applicant’s former partner) said that no physical violence had occurred, she “wished to seek a VRO against the POI [the applicant] as his behavious (sic) is becoming increasingly more violent due to intake of drugs.” Under cross-examination at the hearing the applicant conceded the accuracy of the Detected Incidents Report
In May 2013 police were called to an incident involving the applicant and a woman who in her statement given to police (Exhibit 5 at 24 – 33) described herself as the applicant’s then “recent partner”.
According to that statement the woman (Ms S) and the applicant were driving at around 1:00 am in suburbs around the South Perth area when according to Ms S, they got into an argument and the applicant “started driving erratically” and “doing hand brake turns around corners”,. Ms S claimed that she asked the applicant to slow down but that he said “Nut, I’m gunna kill us both”. Ms S claims that the applicant then took $480 from her purse and told her to get out of the car. When she failed to do so, the applicant came around to the passenger’s door and grabbed her seat belt and wrapped it around her neck and pulled on the belt to the point where Ms S claims that she struggled to breath.
Ms S says in her statement given to police that the applicant then dragged her out of the car, told her that he was going to make her dig her own grave and placed her over his shoulder and carried her towards nearby bushland. She claims that she broke away from him and ran and hid under a car in the driveway of a nearby house. While under the car she called the police.
When spoken to by police the applicant said that he had made Ms S get out of his car but denied any assault (Exhibit 5 at 35). At the hearing, when cross-examined on this incident, the applicant agreed that he had pushed the complainant out of his car and claimed that she had wrapped the seat belt around her own throat. He did concede that he had assaulted Ms S.
In January 2014 the assault on his then partner Ms F, for which the applicant was convicted, occurred. As noted earlier, that assault involved the applicant hitting Ms F and placing his hands around her throat and applying pressure causing her to nearly lose consciousness (Exhibit 5 at 38).
In September 2014 the applicant assaulted his then partner Ms B. The applicant was convicted of that assault. During that assault the applicant also made a number of threats of physical harm to Ms B. When interviewed by police that applicant is reported to have said “[Ms B] ruined my life and was having an affair. I wanted to scare her to freak her out because of what she has done to me” (Exhibit 5 at 39).
Ms F and Ms B are the two victims referred to by counsel for the prosecution in her comments at the hearing on 16 January 2015 cited at paragraph 17 above.
A Detected Incidents Report in March 2015 (Exhibit 5 at 112–4) indicates that police were called to a domestic violence incident involving the applicant and Ms B on 19 March 2015. Significantly, in the Tribunal’s view, this occurred after the applicant had already been convicted of assaulting Ms B and Ms F and had, in clear and unequivocal terms in Magistrate Atkins’ directive on 16 January 2015, been told of the need for him to address his issues of violence and not to treat his partners as “punching bags”.
The Detected Incidents Report of March 2015 stated that Ms B, the victim of the applicant’s assault in September 2014, had advised police that:
Winikerei has a $400/day meth-amphetamine (sic) habit and he just flipped out in a drug rage and struck her in the face.
That report also advised that Ms B “did present to police with a small bruise and cut above her eyebrow”. In cross-examination at the hearing the applicant conceded the Detected Incidents Report was accurate
At around 1:00 am on 30 July 2016 police were called to another incident involving the applicant, this time at the house of Ms B. The Detected Incidents Report of that date (Exhibit 5 at 145) stated:
In this instance, police were called to respond to a report of a male becoming aggressive and damaging the house. The caller was the victim’s daughter [name removed].
Police attended and when let into the house by [the daughter] who showed them the damage caused by the POI [the applicant]. She stated that the POI had asked to come in, but seemed intoxicated or on drugs. [The daughter] let him in at which point he started to throw things around the house damaging both the property and the furniture in the kitchen, the bedroom and wardrobe looking for the victim.
A search of the address found the victim hiding under the bed in the spare room.
…
Winikerei had already left the scene prior to police arrival.
Under cross-examination at the hearing the applicant conceded the accuracy of that report.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act is a mandatory cancellation power, requiring that:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) ...; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Act sets out eleven sets of circumstances in which a person does not pass the character test. The first, set out at section 501(6)(a), is where a person has a substantial criminal record. In the applicant’s case, he has been sentenced to a term of imprisonment of 12 months or more and therefore has a substantial criminal record as defined at section 501(7)(c) of the Act.
Section 501CA applies if the Minister has made a decision, known as the ‘original decision’, under section 501(3A) to cancel a visa that has previously been granted to a person. Section 501CA(4) provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.

As noted at paragraph 8 above, on 1 December 2016, responding to an invitation extended to him under section 501CA(3)(b) of the Act, the applicant made representations seeking revocation of the Minister’s decision. He therefore satisfied the requirement of section 501CA(4)(a) of the Act.
ISSUES BEFORE THE TRIBUNAL
As it is clear that the applicant does not pass the character test, the sole issue before the Tribunal, standing in the shoes of the Minister, is whether under section 501CA(4)(b)(ii) of the Act, ‘there is another reason why the original decision should be revoked’. In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, North ACJ elaborated on how to approach this discretion (at [38]):
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.
The existence or otherwise of ‘another reason’ should be established on the balance of probabilities.
Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that the person or body must comply with the directions. The Tribunal is such a body and accordingly must comply with any relevant direction when exercising the discretion under s 501CA of the Act (Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J).
The Minister has made a direction under s 499 of the Act, namely Ministerial Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65). Direction 65 applies to the visa cancellation decision affecting the applicant.
Paragraph 6.1 of Direction 65 sets out the objectives of the Act, with the following relevant to the applicant’s case:
6.1 Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2) ...
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against the law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. When the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
(4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2) of the Act, such decision-makers must comply with a direction made under section 499.
By way of general guidance, paragraph 6.2 of Direction 65 provides:
6.2 General Guidance
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once the decision-maker is satisfied that a person does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
The “principles” referred to in the General Guidance to be applied by decision-makers, including the Tribunal, are set out in paragraph 6.3 of Direction 65 as follows:
6.3 Principles
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)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 of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing a 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. 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.
(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 should 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 or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) of Direction 65 sets out how the discretion under s 501CA(4) to revoke the cancellation of a visa under s 501(3A) of the Migration Act is to be exercised:
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
(a) ...
(b) 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.
Paragraph 8 of Direction 65 further states:
8. Taking the relevant considerations in account
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. ...
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of the visa.
(4)Primary considerations should generally be given more weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
Part C of Direction 65 (paragraphs 13 and 14) sets out considerations that are relevant when determining whether to exercise the discretion in s 501CA(4) of the Migration Act.
Primary Considerations
Pursuant to paragraph 13(2) of Direction 65, the following are “primary considerations” that the Tribunal must take into account in deciding whether to revoke the cancellation of an applicant’s visa:
(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.
(a) Protection of the Australian community
Paragraph 13.1(1) of Direction 65 provides that decision-makers considering the protection of the Australian community should have regard to the principle in paragraph 6.2(1) (set out above). Paragraph 13.1(2) then identifies two other factors to which consideration should also be given:
(a) The nature and seriousness of the person’s conduct to date; and
(b)The risk to the Australian community should the person commit further offences or engage in other serious conduct. [Emphasis added]
(i) Nature and seriousness of the conduct
Paragraph 13.1.1(1) of Direction 65 gives a non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of a person's criminal conduct. Relevantly, these include:
13.1.1 The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the person's criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c) the sentence imposed by the court for a crime or crimes;
(d)the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(e) the cumulative effect of repeated offending;
…
The evidence before the Tribunal establishes that the applicant has a substantial criminal record both in Australia and New Zealand. In addition, from the police records produced under summons, it appears that the applicant has been involved in other acts of domestic violence for which he has not been charged. (see paragraphs 27 to 39 above)
The Minister submits that the applicant’s conduct should be viewed as serious for the following reasons:
32.In considering the nature and seriousness of the applicant’s conduct to date, the protection of the Australian community weighs heavily against a favourable exercise of the discretion in s 501CA(4) of the Act. The applicant’s violent crimes should be viewed as serious crimes for the following reasons:
a.The principle that, without limiting the range of offences that may be considered serious, violent crimes are viewed very seriously: A number of the applicant’s offences have involved violence (13.1.1(1)(a)).
b.The principle that crimes committed against vulnerable members of the community… are serious. The applicant has been convicted of numerous ‘common assaults in circumstances of aggravation’, where the aggravating factor was that the offence were offences of domestic violence committed against his female partners. The Minister contends that women that are subject to domestic violence are vulnerable members of the community (13.1.1(1)(b)).
c.The sentence imposed, specifically in relation to the sentences of imprisonment (13.1.1(1)(c)).
d.The applicant has a significant, and frequent, history of disregard for Australian law, in circumstances where, shortly after arriving in Australia he started offending, and offences have increased in seriousness since arriving: (13.1.1(1)(d)).
While the applicant expresses remorse for his previous conduct, particularly for his conduct towards women and points to his methylamphetamine use as being the main contributing factor, the fact is that the repeated offending against vulnerable members of the Australian community must be viewed as serious. The regularity of these assaults against women over an extended period must be viewed with concern by the Tribunal.
It is of concern to the Tribunal that while the applicant may now express remorse for his violent conduct and drug abuse, he has expressed such remorse in the past, has been given repeated opportunities to address his conduct and drug use but has failed to do so. At the hearing he conceded that although he had gone through rehabilitation previously – “As soon as I went back I’d get back into drugs”.
While some of the applicant’s offences, looked at in isolation, might not be considered to be serious, the repeated violence towards women coupled with the applicant’s seeming inability or unwillingness to control his drug use, in particular methylamphetamine, must be treated as serious.
It is also of concern to the Tribunal that the seriousness of the offences committed by the applicant seems to be on an upward trend. The aggravated burglary in May 2015 with the damage done to the dwelling, the theft of the motor vehicle and the reckless conduct in the police pursuit that followed with the associated serious risk to the public, as well as the numerous breaches of bail and the orders made in January 2015 meant to give the applicant a second chance and a chance at rehabilitation, indicate a disregard for the law and the rights and safety of the community. His conduct also demonstrates an inability or unwillingness to rehabilitate.
The above factors weigh against the revocation of the cancellation of the visa.
(ii) The risk to the Australian community should further offences be committed
Paragraph 13.1.2(1) of Direction 65 sets out the principles and factors to which the Tribunal should have regard in assessing whether a non-citizen represents an unacceptable risk of harm to members of the Australian community. It provides:
13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers 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. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In his Personal Circumstances Form (G18) at page 110 of the G documents, in answer to the question “What do you think is the likelihood that you may re-offend now? Please give reasons for your answer” the applicant responded to the following effect:
I believe in myself (that) I won’t. I don’t want to be in prison anymore. I took the little things for granted. Now I have the only person (that) I care about in my life again. I don’t want to lose her.
In that same form, in response to the question:
Have you completed any courses or programs that will help you to avoid further offending and to make a positive contribution to the community?
The applicant responded to the following effect:
I have been through drug court completed rehab, doing AA classes, meditation classes even going to church here but it is so hard to do anything in here due to so many prisoners and not enough classes but I am really trying now I’m doing full time. I will do everything I can do possible.
In relation to that issue the Minister submits:
34.In assessing whether the applicant represents an unacceptable risk of harm to the Australian community, regard must be had to paragraph 13.1.2 of Direction 65, which provides that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. In considering the risk to the Australian community, decision- makers must 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; 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 Applicant re-offending.
35.The respondent contends that the applicant is a repeat offender with a lengthy and serious criminal history.
The Tribunal agrees with the Minister’s assessment. In effect what we have are, on the one hand, the applicant’s statements of intent made now in the context of potential cancellation of his visa and deportation to New Zealand compared, on the other hand, to the applicant’s history of failed rehabilitation and reoffending.
The end result is that the Tribunal has little more than another assertion by the applicant that because he is now in a new relationship and does not want to lose that, he will not re-offend. That claim must be assessed in light the applicant’s track record. It seems from the material before the Tribunal that the applicant has been in a number of relationships since arriving in Australia, including the relationship with his original partner, the mother of his three children and his children. None of those relationships prevented the applicant’s frequent and serious offending.
The relationship with the mother of his children appears to have been followed by other relationships with a number of women. At the time of his appearance in the Magistrates Court in January 2015 on the charges of assaulting Ms F and Ms B, assurances were given by the applicant’s counsel that the applicant understood the consequences if he were to re-offend and that he was committed to not doing so. As his counsel at that time put it, somewhat prophetically as it turned out (G14 at 91):
It’s going to be challenging for Mr Winikerei. He professes, as so many do, that he will make a success of it and apply himself.
Notwithstanding that statement from the applicant’s counsel, presumably on the applicant’s instructions, and notwithstanding Magistrate Atkins’ comments to the applicant at that time as to the consequences of the applicant re-offending, he did within five months commit a series of serious crimes being the aggravated burglary, stealing and car theft involving a high speed police pursuit.

The Tribunal also notes that at the time of his appearance before the Magistrates Court in January 2015 on the stealing charge and the charges for the assaults on Ms F and Ms B, his counsel advised the court that (G14 at 91);
He and Ms B are back together again. She’s at the rear of the court with him today
Based on the material before the Tribunal, within 3 months the applicant had again assaulted Ms B (Exhibit 5 at 112) and within 5 months he had committed the aggravated burglary, stolen a motor vehicle and been involved in a police chase.
Unfortunately the applicant’s word in the past has been of little value. The applicant must be assessed on the basis of what he has done in the past, not on what he says he will do now.
In the circumstances, the Tribunal finds that there is a significant risk that the applicant will engage in harmful behaviour if released into the community despite his assertions to the contrary. Given the seriousness and nature of his prior conduct, this is an unacceptable risk to the community and weighs against any revocation of the decision to cancel the applicant’s visa.
(b) Best interests of minor children in Australia
As noted above, the applicant has three biological children living with their mother in Australia and, although not identified by the applicant in his Personal Circumstances Form (G18), the Tribunal understands that he has a fourth biological child living in New Zealand. The applicant concedes that he has no contact with his biological children and does not provide any support to them.
The applicant’s current partner, who has been with the applicant for just over one year, has four children aged 8, 10, 15 and 17 (as at 2 December 2016). The father of those children lives in Western Australia and has regular contact with them. There is no evidence that these children are reliant in any way on the applicant for material support. Similarly there is no evidence that the applicant’s current partner is reliant on the applicant for financial or other material support.
Letters have been provided by the applicant’s current partner (Exhibit 2, G21, G22 and G43), the applicant’s current partner’s children (Exhibit 3, G2, G25, G26, G27, G28, G29, G41, G44 and G45) and the mother of the applicant’s current partner (G23 and G24).
As outlined in paragraph 13.2 of the Ministerial Direction, the Tribunal must make a determination about whether revocation of a decision to cancel a visa is in the best interests of affected children.
Paragraph 13.2(4) of Direction 65 sets out the factors the Tribunal must consider if relevant. They are:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is not existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts 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, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that contact 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 the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are any other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect;
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
In his Personal Circumstances Form (G18, p 107), in response to the question “Please describe your relationship with each child including when it began, how often you contact/see the child/ren and the role you play in their lives” the applicant wrote to the effect (English corrected):
Because of my problem I have lost contact with my kids. I plan to re-acquaint with them upon release. Now while in prison I don’t believe that it is the appropriate time. My partner’s kids I love them like my own. We hope to get past all this and be together as a family. I miss them all so, so much. They come to visit me when they can. I wish to be there for them again and be a happy family.
I want to be a role model for my kids and my partner’s kids. All I want is to be a better man and be a father because my dad was never there for me. I don’t want that for them.
In response to the question “Please describe the impact the cancellation of your visa would have, or has had, on the child/ren listed” the applicant wrote:
Devastating impact. Will have detrimental, long-lasting affects [on] my children. They are suffering substantial heartbreak.
My partner’s girls have typed a letter with [partner’s] help.
The Minister’s SFIC on this issue submits:
39.Notwithstanding that the applicant has minor children in Australia, the respondent contends that this, of itself, does not warrant the discretion being exercised in the applicant’s favour in circumstances where:
a.the children’s mothers currently fulfil a parenting role for the children: 13.2(4)(e) of Direction 65.
b.The applicant is separated from the mother of his biological children and has no contact with them: 13.2(4)(a) of Direction 65
c.The applicant has had a limited relationship with the step children, given that the relationship was only rekindled in September 2016 13.2(4)(e) of Direction 65.
d.It is arguable that the applicant is unlikely to play a positive parenting role in the future: 13.2(4)(b) of Direction 65.
e.There is no independent evidence of the effect of any separation from the applicant and there is an ability for the applicant to maintain contact with the children in other ways (i.e. telephone/video communication and/or the child travelling to New Zealand to visit the father): 13.2(4)(d) of Direction 65.
In relation to each of the factors (a) to (h) listed in paragraph 13.2(4) of Direction 65 set out in paragraph 80 above, the Tribunal finds:
(a)The applicant has no contact with his biological children in Australia and would appear not to have had any contact since he split with their mother which the Tribunal understands was in 2012. It appears that the applicant plays no role in his biological children’s lives. The Tribunal was not assisted in this regard by the applicant’s failure to provide the information specifically required by the question on the Personal Circumstances Form referred to at paragraph 81 above. Based on the limited information that the Tribunal has, however, it is hard to see that the cancellation of the applicant’s visa would have any impact on his biological children in Australia with whom he appears to have no contact.
In relation to the children of the applicant’s current partner, according to his current partner’s letter G21, she and the applicant only re-commenced their relationship shortly before she wrote that letter on 31 October 2016. The phrase that she used was that “we have recently reconciled our relationship”. She says that she has known the applicant for 6 years and that they “were together for 2 years, separated for 3 but always kept in contact”.
The applicant was imprisoned in October 2016. It is not clear on what date in October 2016 the applicant was imprisoned, however, his sentencing was on 6 October 2016 (G12) and the prison telephone records show calls being made by the applicant from 18 October 2016 onwards. Again, the Tribunal was not assisted by the applicant’s failure to provide the information requested in the Personal Circumstances Form (G18). In that regard the applicant failed to provide the information specifically requested in G18 at page 105 of the G documents. The applicant also failed to answer the question “Are you living with that person now?”
What is clear, however, is that the duration of the applicant’s relationship with his current partner’s children would have been extremely short prior to him going to prison. Also, given that the applicant’s relationship with their mother only commenced at around the time that the applicant went to prison, there would obviously only have been very limited meaningful contact between the applicant and these children. In these circumstances it is difficult to see how the applicant could have developed any meaningful, in any long-term sense, relationship with these children. While the letters provided by the children express their fondness for the applicant, in terms of the factor in paragraph 13.2(4)(a), the Tribunal does not consider much weight is to be given to the relationship or the impact on these children that the applicant’s visa being cancelled would have.
The Tribunal also notes that, not only has any relationship with his current partner’s children been for a very short period, but it appears that not long before the applicant and his current partner resumed their relationship around the time that the applicant went to prison, the applicant was in what was supposedly a meaningful relationship with another woman and her child who, it is claimed he supported. In this regard the Tribunal refers to G47, a letter written on 13 February 2017 by Jeff Govorko, a former work supervisor of the applicant, who refers to the support that the applicant was giving to his partner “who has recently beaten cancer”. The letter also says that “since splitting up with his partner [mother of his children] he has taken on the responsibility of another partner (with a small child)”. In a hand-written note on that letter (G47 at 163) the applicant notes that “Jeff … didn’t know that I left [partner] and have met my new partner.” The new partner that he identifies is his current partner.
The concern that this information raises for the Tribunal is that considerable weight is placed by the applicant on the relationship that he has with his current partner and the relationship that he has with her children and the impact that his being deported would have on them. It seems, however, that very shortly before the commencement of the relationship with his current partner he was in a supposedly close relationship with another woman with a small child, who apparently, relied on his support. According to the information from Ms B (the victim) in the Detected Incidents Report (Exhibit 5 at 145) Ms B only separated from the applicant in May or June 2016. The applicant commenced his current relationship some time shortly before October 2016. This again causes the Tribunal to place little weight on the applicant’s claims of a meaningful and beneficial (to the children) relationship with his current partner’s children.
(b)Dealing firstly with the applicant’s biological children, as he has had no contact with them for some 5 years and, it would seem, has not been involved in their upbringing, it is difficult to see how the applicant will play a positive parental role in the future. Similarly, while it does seem that the applicant’s current partner’s children are fond of the applicant and he expresses fondness for them, his involvement with those children prior to his going to prison was so short that it is difficult to draw any conclusion on whether he would be likely to be a positive role model in the future. Certainly his previous conduct would indicate otherwise. These children have a father who, as far as the material before the Tribunal indicates, has regular contact with them.
(c)The Tribunal has formed the view that given the applicant’s history of repeat offending notwithstanding previous undertakings that things will change, the potential for the applicant to re-offend is significant. The applicant’s history of assaults against women and his apparent inability to deal with his drug problem, despite being given several chances, is discouraging. Clearly if the applicant were to return to offending of the type that he has in the past, that would have a clear negative impact on his partner’s children.
(d)The phrasing of this consideration, namely “the effect that any separation … would have”, suggests that there is not presently a separation. If the applicant and the children have in effect never been toghether, it is difficult to see what application this consideration would have. As noted above, at best the applicant came into the children of his partner’s lives very shortly before he went into prison in October 2016. This is not a situation where these children have lived with or been part of a family unit with the applicant before he was imprisoned. For the purposes of this consideration it is difficult to see that continued separation would have any relevant impact.
In relation to his biological children living in Australia, as the applicant is and has been for many years, separated from his children, the Tribunal cannot see that there would be any impact on those children for the purposes of this consideration.
(e)The applicant has never fulfilled a parental role with his partner’s children. That role, or those roles, as far as the evidence indicates, have and continue to be fulfilled by the applicant’s partner and the children’s father. The applicant has not fulfilled the role of parent to his biological children for some several years. The Tribunal assumes that the parenting roles are being carried out by their mother.
(f)The views of the applicant’s biological children are unknown. The common theme that emerges from the letters that the applicant’s current partner’s children have provided (noting that there was reference to the applicant’s partner helping with the letters – G18 at 107) is that the applicant is caring towards them, that their mother and the applicant are caring towards each other and that they want the applicant to stay and become a part of their family. This factor would be in favour of a revocation of the cancellation of the visa. The obvious caveat, however, is that the children are expressing these views without the benefit of ever having lived with the applicant and their relationship with the applicant being very short and very limited.
(g)There is no evidence that the applicant has ever abused or neglected his biological children or those of his current partner. The Tribunal does note that the applicant apparently owes some $60,000 in child support to, presumably, the mother of his children (G7 at 39).
(h)There is no evidence that any of the relevant children has suffered any emotional or physical harm by the applicant’s conduct.
The Tribunal finds that there is no evidence that any children would be harmed or be any worse off if the cancellation of the applicant’s visa were to be revoked. However, the Tribunal also finds that there is only marginal evidence to suggest that any relevant children would be materially benefited by the applicant staying in Australia and that would then only be if the applicant were to stay in a relationship with his current partner and not reoffend. In that regard the applicant’s history of re-offending and his recent history in relationships is not encouraging.
(c) Expectations of the Australian community
The third consideration listed in Direction 65 is the expectations of the Australian community. In this regard, paragraph 13.3(1) of Direction No. 65 states:
The 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 cancel the visa held by such a person. Visa cancellation may be appropriate simply because 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. Decision-makers should have due regard to the Government’s views in this respect.
In analysing this third and primary consideration, the Tribunal again refers to the stated principles in paragraph 6.3 of Direction 65 and, in particular, the principles that:
·the Australian community expects the Australian Government to cancel the visas of non-citizens who commit serious crimes; and
·non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia.
The Minister’s SFIC submits:
40.The Direction indicates, at paragraph 13.3(1), that 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 person should not be granted a visa. It further notes that decision makers should have due regard to the government’s views in this respect.
41.The Australian community would expect that the applicant, being a visa holder who has serious convictions for violence, domestic violence and burglary would not have his visa reinstated.
42. This primary consideration heavily weighs in favour of refusal.
As noted at the outset, the applicant was not represented. Probably the closest to a submission in relation to this issue on behalf of the applicant were the statements by his current partner and his current partner’s mother in their letters to the effect that he realises that the choices that he has made in the past have been poor ones and that his criminal behaviour has been largely caused by his drug abuse, in particular his problem with methylamphetamine. The applicant’s partner’s mother put it in terms of “everyone deserves a second chance” (G24).
The question therefore is whether, taking into account the expectation identified in paragraph 13.3(1) of Direction 65, which this Tribunal must do, the Tribunal is of the view that the Australian community would expect someone who has committed the offences that the applicant has, with his history of violent conduct and whose personal circumstances are akin to those of the applicant should have his visa cancellation revoked.
With respect to the sentiments expressed by the applicant’s partner and her mother, who are obviously well-intentioned, while people may deserve a second chance, and potentially even a third chance, the Tribunal is of the view that the expectation of the Australian community is that if a person has, over an extended period, committed serious crimes, including crimes of violence against vulnerable members of the community and has already been given several chances, the point is reached where that person is no longer welcome in the Australian community.
In the Tribunal’s view that point has been reached in respect of this applicant. He came to Australia with a criminal record in New Zealand involving violence and sentences of imprisonment. Within a relatively short period of arriving in Australia he commenced committing increasingly serious offences. As set out above, by January 2015 when he appeared before the Mandurah Magistrates Court, he had already been charged with stealing and two assaults against current partners. It also seems that by that time he had also assaulted another “recent partner”, Ms S in May 2013. In January 2015 the applicant promised the court that he would “make a success of it and apply himself” if given another chance by the Court. The Court gave him that chance. In response the applicant treated the supervision orders made by the Court with contempt and within 3 months had again assaulted his female partner and within 5 months had committed an aggravated burglary, stolen a motor vehicle and been involved in a police chase.

The Tribunal thinks that the Australian community would consider that the applicant has been given his chances and has not taken those chances. He has breached the trust of the Australian community and, given his past conduct, there is an unacceptable risk that he may do so again. In these circumstances the Australian community would not expect that the automatic cancellation of the applicant’s visa effected by operation of s 501(3A) should be revoked.
Other considerations
Paragraph 14(1) of Direction 65 provides:
14.      Other considerations – revocation requests
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)       International non-refoulement obligations;
(b)       Strength, nature and duration of ties;
(c)       Impact on Australian business interests;
(d)       Impact on victims;
(e)       Extent of impediments if removed.
Based on the evidence currently available, the only other considerations that may be relevant in the present case are:
·strength, nature and duration of ties; and
·extent of impediments if removed.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction 65 requires the Tribunal to consider the applicant’s ties to Australia as follows:
14.2 Strength, nature and duration of ties
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
The applicant has been in Australia for 9 years. He was 25 years old when he arrived. It would seem from the material before the Tribunal that the applicant did not get into any trouble with the law, other than driving offences, for the first four or five years that he was in Australia. The first incident that the Tribunal is aware of is the domestic disturbance involving his then partner and mother of his children in June 2012 (see paragraph 27 above).
The Tribunal also understands, although the evidence on this issue was sparse, that the applicant was employed for at least some of his time in Australia. Again, the Tribunal is not assisted by the applicant’s failure to provide details sought in the Personal Circumstances Form (G18 at 108). Part of that form required the applicant to identify each of his employers in Australia, the occupation in which he worked and the periods of employment. The applicant identified three employers and the suburbs in which they operated (apparently) but did not identify the periods of employment or what he did.
It is, accordingly, hard for the Tribunal to assess the positive contribution that the applicant has made for the purposes of considering the matters identified in paragraph 14.2(1)(a)(ii). As noted in paragraph 84 (a) above, G47 is a letter of reference from Mr Jeff Govorko, who signed the letter as production manager of Autex Pty Ltd which, from that company’s web page, appears to be a supplier or manufacturer of acoustic ceiling panelling. Mr Govorko states that he has known the applicant for 9 years, 2 of which he had been the applicant’s manager and direct supervisor. The Tribunal accepts this letter as being evidence of a positive contribution that the applicant has made to the community by way of employment.
In relation to the consideration identified in paragraph 14.2(1)(b) of Direction 65, apart from his three children living with their mother in Australia, the applicant appears to have no relatives, or at least close relatives, living in Australia. In his Personal Circumstances Form (G18 at 109), the applicant, in response to the request to “List all living parents, step-parents, brothers, sisters, and adult children” listed his parents, two brothers and three sisters. He identified all of them as being resident in New Zealand.
The Tribunal has already considered the strength, duration and nature of the applicant’s links with his current partner and her children elsewhere in this decision. The applicant has no contact with his biological children or, apparently, their mother.
Based on the above, the Tribunal is of the view that nothing of any significance arises from a consideration of the matters identified in paragraph 14.2 of Direction 65 which would weigh in favour of a revocation of the cancellation of the applicant’s visa.
Extent of impediments if removed
Paragraph 14.5(1) of Direction 65 requires the Tribunal to consider the extent of any impediments if an applicant is removed from Australia as follows:
14.5     Extent of impediments if removed
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)       The non-citizen’s age and health
(b)       Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
The Tribunal does not see that there are significant impediments to the applicant being removed to New Zealand in circumstances where the language and culture in that country are similar to that of Australia. The applicant spent the first 25 years of his life in New Zealand. He is a New Zealand citizen and will have access to basic social, medical and economic support in that country.
The applicant, in his Personal Circumstances Form (G18 at 111), in response to the question “Do you have any concerns or fears about what would happen to you on return to your country of citizenship?” said:
Trouble with gangs. I have nowhere to live. No work. No caring family members. May face getting bashed by Mongrel Mob for not agreeing to join.
As noted above, at the time of the hearing of this matter the applicant was in New Zealand with his current partner. The circumstances of him being in New Zealand were tragic. His brother’s partner and two children were apparently killed in a car accident. At the hearing he advised the Tribunal that he had returned to New Zealand to support his brother.
Although the circumstances in which the applicant finds himself back in New Zealand are tragic, it is the case that his family is in New Zealand. He is clearly not estranged from them. He has no family in Australia.
Further, at the hearing of this matter the applicant advised that he was in the New Zealand equivalent of a job centre applying to register for employment or unemployment benefits. This is indicative of relevant support services being available in New Zealand.
New Zealand is a sophisticated country with a developed system of law and law enforcement. In that regard it is effectively the same as Australia and there is no reason to believe that, if there were truly a threat to the applicant’s safety posed by members of an outlaw motor cycle gang like the Mongrel Mob, the New Zealand police would not be able to provide protection. In any event, the only evidence that the Tribunal has as to any threat to the applicant’s safety is his statement in his Personal Circumstances Form (G18 at 111) that he “may be bashed by the Mongrel Mob”. The Tribunal is unable to put any significant weight on an unsubstantiated claim of that sort.
CONCLUSION
Having received a sentence of a term of imprisonment of 12 months, the applicant has a “substantial criminal record” and does not, as a result, pass the character test in s 501(6) of the Act. Further, as the applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution, he was liable for mandatory cancellation of his visa pursuant to s 501(3A) of the Act. His visa was mandatorily cancelled on 30 November 2016.
In determining whether there is any reason why the decision to cancel the applicant’s visa should be revoked, the Tribunal has attached significant weight to the applicant’s lengthy criminal record and the fact that his offending was serious in nature. The Tribunal has also taken into account the various other violent incidents that the applicant was involved in for which he has not been convicted but which he does not dispute. In particular applicant’s extensive history of violence against women and methylamphetamine use must be viewed seriously.
In this regard, the Tribunal has taken account of the following factors detailed in paragraph 13.1.1 of Direction 65:
(a)the repeated violence against women;
(b)the frequency of the offending conduct – noting that the offending has continued to escalate since 2014; and
(c)the cumulative effect of repeated offending – noting that the cumulative effect of the offences demonstrates a disregard for the laws of Australia and the harm caused to the community.
The Tribunal also finds that there remains an unacceptable risk that the applicant may engage in further criminal conduct if he remains in Australia and that the Australian community will, as a consequence, be at risk. In making this assessment the Tribunal has considered the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct and the likelihood of further criminal or other serious conduct, taking into account relevant information and evidence on the risk of the applicant re-offending based on his history.
The applicant’s prospects of avoiding further offending would appear, in part at least, to be dependent on his ability to deal with his issues with methylamphetamine. While some steps may have been taken to address the methylamphetamine use while the applicant was in prison, the success of those efforts has not been tested in the community. As the applicant conceded at the hearing, he has found it difficult not to go back to drugs following previous efforts at going straight. On the evidence, the Tribunal finds that, based on his conduct to date, he has failed to recognise the gravity of or been unable to address his offending and the consequences of continued methylamphetamine use. This poses an unacceptable risk to the Australian community as there is a risk that he will reoffend. Given the nature of his crimes and his behaviour towards women in the past, this is an unacceptable risk to the community and weighs heavily against any revocation of the decision to cancel the applicant’s visa.
Given the nature of the crimes committed and the prospect of future offending, the Tribunal is also of the view that the Australian community would expect that the applicant’s visa would remain cancelled.
Overall, the Tribunal finds that having regard to all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction 65 the correct and preferable decision is to refuse to revoke the cancellation of the applicant’s visa.
DECISION
For the reasons outlined above, the decision under review is affirmed.

I certify that the preceding 117 (one hundred and seventeen) paragraphs are a true copy of the reasons for the decision herein of Deputy President S Boyle

........[Sgd]......................................................
Administrative Assistant – Legal
Dated: 28 November 2017

Date of hearing: 2 November 2017

Applicant: By telephone

Advocate for the Respondent: Mr A Burgess

Solicitors for the Respondent: Sparke Helmore Lawyers

[2017] AATA 2407

9 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Jurisdiction

Date of hearing:	2 November 2017
Applicant:	By telephone
Advocate for the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers