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

[2024] AATA 1054

Wright and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1054 (14 March 2024)

Division:GENERAL DIVISION

File Number:          2023/9775

Re:Jeremy Wright

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Wayne Pennell

Date of decision:                   14 March 2024

Date of written reasons:        14 May 2024

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made on 21 December 2023 by a delegate of the Respondent and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s Class BF Transitional (Permanent) visa.

......................[SGD]......................

Senior Member Wayne Pennell

Catchwords

MIGRATION – non-revocation of mandatory cancellation of a visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – where the Applicant has been in Australia since he was five- where the Applicant’s criminal history is lengthy – where Tribunal is satisfied that the Applicant’s recidivist risk is acceptable – Tribunal finding Applicant has strong familial and social ties in Australia - factors in favour of revocation outweigh factors against revocation- Tribunal finding there is another reason to revoke the mandatory cancellation decision- decision under review set aside and substituted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases

Blair and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 4154
PNLB v Minister for Immigration and Boarder Protection (Migration) [2018] AATA 162
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Re TAA [2006] QCST 11

Walker v Minister of Home Affairs [2020] FCA 909

Secondary Materials

Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)

REASONS FOR DECISION

Senior Member Wayne Pennell

14 May 2024

INTRODUCTION

1. The Applicant is a 47 year old citizen of the Philippines who first arrived in Australia as a very young child. It has been described that his father is an Australian citizen and his mother is from the Philippines. His parents met in the Philippines and before the Applicant was born, his father retuned to Australia. His mother later arrived with the Applicant when he was a baby, she stayed for a short time and then returned home to the Philippines.

2. The Applicant has returned to the Philippines twice, first in 1981 and later in 1991. In 1991 he and his paternal grandmother travelled to the Philippines in search of his mother and other maternal family members. He arrived back in Australia on 25 May 1991 and since then has remained onshore. 

3. The most recent visa held by the Applicant was a Class BF Transitional (Permanent) visa ('the Applicant’s Visa’) granted to him on 1 September 1994. Initially, on 2 August 2013 the Respondent notified the Applicant of their intention to consider the cancellation of his visa,[1] however the Respondent later notified the Applicant on 4 December 2013 of a decision not to cancel his visa.[2]

   [1] Subject to Migration Act 1958 (Cth), s 501(2).

   [2] G8, pages 64 – 65.

4. On 30 November 2022, the Respondent mandatorily cancelled the Applicant’s Visa pursuant to section 501(3A) of the Migration Act 1958 (Cth) (‘the Act’).[3] At the time of the Visa cancellation decision, the Applicant had a substantial criminal history[4] consisting of a number of entries over a 22 year period, with the most recent entry relating to him being convicted in the District Court of Queensland on 18 May 2022 for a number of offences, including a domestic violence related ‘choking’ offence. He was sentenced to three years and six months imprisonment.

   [3] G55, pages 183 – 169.

   [4] G6, pages 46 – 50. 

5. As a result of the above Visa cancellation decision, the Applicant was invited to make representations to the Respondent’s Department to get his Visa cancellation decision revoked. The Respondent’s Department received the relevant representations from the Applicant on 21 December 2022.[5]

   [5] G3, pages 17 – 18.

6. On 21 December 2023, a delegate of the Respondent refused to revoke the earlier mandatory Visa cancellation decision pursuant to section 501CA(4) of the Act. For the purposes of these reasons, the decision made on 21 December 2023 will be referred to as the ‘Decision Under Review’.[6]

   [6] R1, pages 17 – 46.

   LEGISLATIVE FRAMEWORK

7. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this 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.

8. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act.[7] There are therefore two issues presently before the Tribunal:

   (a)whether the Applicant passes the character test; and if not

   (b)whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.

   [7] See generally G10 - G13.

   Does the Applicant pass the character test?

9. I am satisfied that the Applicant’s incapacity to pass the character test arises as a matter of law.[8] This is because this Applicant has a ‘substantial criminal record’ due to him being sentenced to a term of imprisonment of 12 months or more on 18 May 2022.[9] Accordingly, it can be safely found that he does not pass the character test and, as a consequence, cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his Visa to be revoked.

   [8] Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].

   [9] R1, p 47 and pursuant to ss 501(6)(a) and 501(7)(c) of the Act.

   Is there another reason why the decision to cancel the Applicant’s Visa should be revoked?

10. Section 499(2A) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about either the performance of those functions or the exercise of those powers. For present purposes in reviewing a non-revocation decision pursuant to section 501CA(4) of the Act, the Tribunal must have regard to the ‘Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (‘the Direction’).

11. For the purposes of deciding whether or not to revoke the mandatory cancellation of a

    
    

    non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:

    1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    4Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    6

    Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the

    
    

    non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

12. Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:

    (1)protection of the Australian community from criminal or other serious conduct;

    (2)whether the conduct engaged in constituted family violence;

    (3)the strength, nature and duration of ties to Australia:

    (4)the best interests of minor children in Australia; and

    (5)expectations of the Australian community.

13. Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:

    (a)legal consequences of the decision;

    (b)extent of impediments if removed;

    (c)impact on victims; and

    (d)impact on Australian business interests.

    PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

14. In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by

    
    

    non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

15. In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:

    (a)the nature and seriousness of the non-citizen’s conduct to date; and

    (b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

16. I will consider each in turn.

    The nature and seriousness of the Applicant’s conduct to date

17. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:

    (a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

    (i)     violent and/or sexual crimes;

    (ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;

    (iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

    (b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    (i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

    (ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

    (iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));

    (iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

    (c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

    (d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

    (e)the cumulative effect of repeated offending;

    (f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

    (g)whether the non-citizen has re-offended 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 (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

    (h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

    Summary of the Applicant’s offending

18. The Applicant has a number of entries on his criminal history spanning a period from 2000 through to 2022 for convictions recorded in various courts in Queensland, New South Wales and Victoria. The nature and the seriousness of the Applicant’s conduct over that time is recorded in a lengthy criminal history summarised below as:

DATE and COURT	OFFENCE/S	PUNISHMENT
16/11/2000 Local Court Sutherland NSW	Accessory before the fact Larceny as a servant	Placed on a bond for 12 months, fined $500 and ordered to pay courts costs of $56.
17/07/2006 Magistrates Court Mareeba QLD	Breach bail condition Fail to appear in court	On each offence, sentenced to 14 days imprisonment.
08/09/2006 District Court Southport QLD	Unlawful Use of a Motor Vehicle Robbery with actual violence	7 months imprisonment 3½ years imprisonment, suspended after 9 months with the suspension period operational period of 4 years. Sentences to be served concurrently and convictions recorded.
14/04/2008 Supreme Court Brisbane    QLD	Possess Dangerous Drug (Sch 2), quantity exceeding Schedule 3 2 x Possess Dangerous Drug (Sch 1) Possess Dangerous Drug (Sch 2) Possess Thing[10]	On all charges, convicted and sentenced to 9 months imprisonment, wholly suspended for a period of 2 years.
26/09/2012 Magistrates Court Dandenong VIC	Possess prohibited weapon	Convicted and fined $300.
03/12/2012 Magistrates Court Dandenong VIC	Possess amphetamines (2 charges) Traffic methylamphetamines Drive motor vehicle whilst disqualified Fraudulently used motor vehicle Use amphetamines Unlicensed driving Wound an animal Possess controlled weapon Receive stolen property Carry loaded firearm in populous place Unlicensed possession of a weapon Possess ammunition Possess prohibited weapon Use unregistered vehicle Fail to provide fluid test within 3 hours of driving a motor vehicle	On each charge, aggregated sentence 12 months imprisonment Drivers licence cancelled and dis disqualified for 3 months
25/11/2013 Magistrates Court Dandenong VIC	Traffic methylamphetamines Possess prohibited weapon (3 charges) Possess controlled weapon	On each charge aggregate concurrent sentences of 8 months imprisonment, partially suspended after 2 months for an operational period of 2 years.
08/12/2016 Ringwood Magistrates Court VIC	Possess prohibited weapon Possess controlled weapon Theft Dishonest assist in retention of stolen goods (3 charges). Disqualified Driving Possess Dangerous Article Negligently deal with proceeds of crime	Aggregate 91 days concurrent imprisonment. Convictions recorded and Community Correction Order for 12 months. Unpaid 100 community work.
17/01/2019 Kyogle Magistrates Court NSW	Drive motor vehicle during disqualification period	Fined $800. Community Correction Order for 12 months
12/06/2019 Ringwood Magistrates Court VIC	Theft of a motor vehicle Drive whilst disqualified Fail to answer bail Contravene community correction order Breach of offences convicted on 08/12/2016 in Ringwood Magistrates Court	12 month community correction order. Unlaid 50 hours community Work. Licence cancelled for 3 months. 12 month community correction order. Unlaid 50 hours community Work. For breach offences, original order varied. Convicted and given Community Correction Order for 12 months, and 100 hours unpaid community work.
05/10/2021 Ringwood Magistrates Court VIC	Disqualified driving, fail to provide oral fluid test and unlicenced driving Possess prohibited weapon Contravene community correction order (CCO) Breach of sentences imposed on 12/06/2019 Breach of sentences given on 12/06/2019 regarding theft of motor vehicle and disqualified driving.	Convicted and fined $1,200                   Convicted and fined $1,200 Convicted and fined $1,500 for breaching CCO For breach of sentences imposed on 12/06/2019, aggregate sentence of 91 days imprisonment
18/05/2022 Brisbane District Court QLD	Choking / suffocation domestic violence offence Assault occasioning bodily harm – domestic violence offence Threatening violence -domestic violence offence Wilful damage – domestic violence offence Summary offences Possess dangerous drugs Possess property suspected of having been used in connection with a drug offence Possess ammunition Possess drug utensils	Convicted and sentenced to 3 years imprisonment Convicted and sentenced to 2 years imprisonment Convicted and sentenced to 18 months imprisonment Convicted and sentenced to 18 months imprisonment Concurrent sentences to be suspended for 3½ years after serving 16 months imprisonment On all offences, convictions recorded and sentenced to 1 month imprisonment. Conviction recorded, sentenced to 14 days imprisonment. 60 days pre-sentence custody declared as time served.

[10] Drug implement, described in Applicant’s criminal history as anything used in the commission of a drug offence.

1. The Applicant’s offending commenced in 2000 when he was aged 24 and over the course of the next two decades, he accumulated what I consider to be a substantial criminal history comprising of convictions in Queensland, New South Wales and Victoria. Arising from those convictions, he has served terms of imprisonment in Queensland and Victoria.

1. When looking more closely at the charges he was convicted of, his criminal history is punctuated by offences involving violence, drugs, dishonesty offences and other charges associated with firearms and or weapons.

2. In my view, the recorded convictions which are more serious in nature relate to his 2006 conviction in the District Court at Southport for robbery with actual violence and his most recent conviction in the District Court at Brisbane in 2022 the domestic violence offences of choking, threatening violence and assault occasioning body harm.

3. In regard to the 2006 robbery conviction, the District Court accepted that although the Applicant was intrinsically involved in the commission of the offence which occurred about eight years prior to him being sentenced. His involvement was initially the organisation of the robbery; however the organisation was later taken over by another of his co-accused. The benefit for him was to clear a drug debt with another of the principal offenders. Along with clearing his drug debt, he was also paid $200 in cash. It was noted by the sentencing Judge that: (1) the Applicant was not involved in the unlawful taking of the vehicle;(2) the Applicant did plead guilty to the unlawful use of the motor vehicle used in the robbery;

   
   

   (3) the Applicant did not leave the vehicle during the commission of the robbery; and (4) the Applicant did not himself use actual violence, although his other co-accused did. His Honour, Dearden DCJ further said that this was clearly a foreseeable consequence of the planning of the robbery of which the Applicant was a party.  

4. Turning to the 2022 convictions which are the most recent offences recorded on his criminal history. The material and the evidence before the Tribunal relating to those convictions concern domestic violence related offences which the Applicant committed against his then partner. The circumstances and the particulars of those offences were laid bare by the sentencing Judge in his sentencing remarks.

   ‘You had been involved in a turbulent relationship and you had four children together, ranging between 10 years and five months of age. Your partner suspected infidelity on your part; she found something while you were out which, in her mind, confirmed it. She asked you to leave, there was an argument. She had packed your suitcase, telling you to leave. You then involved your children in what is only ever an adult argument. You told them that:

   “Mummy is going crazy again. She is kicking me out.”

   You held up your five month old and said:

   “See, your mum is a dog. She wants to keep me locked up.”

   When she indicated she was going to call the authorities, you tried to grab the phone and there was more arguing, there was more scuffling. There were more damning comments made by you. At one stage, you placed both of your hands around her throat, said:

   “You’re a fucking dog. You’re going to get me locked up. I knew you were a dog.”

   You applied pressure to her throat for about a minute. She was unable to breathe. She felt as though she was going to vomit. She frothed at the mouth; she was making choking noises. On four to five occasions, you loosened your grip to allow air to go in before re-tightening it so she could not breathe. I take the view that that was not a benevolent act on your part, but an effort to make her suffer for longer. Not unnaturally, she believed she was going to die. You threw her onto the bed. You placed a hand across her throat, another hand was covering her mouth and a forearm against her chest so she could not move.

   Your children were shouting to you:

   “She cannot breathe. You are going to kill her.”

   You went and got her a drink of water, telling her that she needed that. She wanted her phone and there was an argument about that which resulted, ultimately, in you punching her four to five times in the chest. I beg your pardon, she punched you four to five times in the chest in an effort to get you to release her from the hold you had her in. Ultimately, you pushed her head down and in an uppercut motion, punched her twice in the face, causing her mouth and nose to bleed. You pushed her onto the bed, you punched her in the back of the head two or three times. All of that is count 2, the assault occasioning bodily harm.

   The children, again, were telling you to get off her, that she was bleeding. You tried  to tell her that she was laughing, not crying. Ultimately, you said that you were leaving. You again called her a dog. Told her that:

   “If you call the police on me, you will get me locked up.”

   Ultimately, you returned to the bedroom; you were holding a machete. The children were screaming:

   “Don’t kill us. Don’t kill us.”

   You, again, called your partner a dog and said:

   “I am going to kill you.”

   But you then turned and ran away. You took off. Later, there was found to be a hole in the windscreen of the car, a hole in the bonnet, and police located a different machete, that is, a second one, and photographs have been tendered of each of those weapons. You pleaded guilty on the basis that you used the machete to damage the car. When police turned up, they found a backpack that you had taken with you interstate; it contained .5 grams gross weight of methylamphetamine, a smoking pipe, electric scales, 21 shotgun shells and two syringes. A warrant was issued for your apprehension, you surrendered in February of 2018. I have outlined the history of the listing of 5 the pre-recording and of the date that you entered your plea of guilty and the fact that you again absconded.

   Domestic violence is a scourge on our community. It is the unfortunate experience of the Courts that it often happens over minor and relatively inconsequential matters. The fact that you brought your children front and centre into this is a complete and utter disgrace on you. It is, as the Prosecutor submitted, a particularly aggravating feature.

   You have considerable previous entries on your criminal history, most of them relating to property or drug offending. There are no prior entries for domestic violence, I take that into account. However, your history in Victoria shows that you continued to offend after you had absconded on bail on the present matters. The passage of time which has passed since the offending cannot be put to your advantage to suggest that you have reformed yourself or that there are good prospects of rehabilitation in your case.’[11]

   [11] R1, pp 52-54.

5. In respect to the numerous other offences recorded within the Applicant’s criminal history, there are a number of drug offences including trafficking in methamphetamines when he served terms of imprisonment in Victoria in 2012 and 2013, and he was convicted in the Queensland Supreme Court in 2008 for possession of dangerous drugs for which he also received a term of imprisonment.    

6. Also included in the Applicant’s convictions are offences relating to him unlawfully possessing items such as weapons, firearms and ammunition. Those weapons included sharp bladed instruments such as a machete, flick knife and swords. In the hearing before me the Applicant accepted that those weapons were for his own protection as a result his involvement in using and dealing in drugs.[12] I accept his explanation on that point as his criminal offending shows that the only incident whereby a weapon was used by him to threaten anyone was during the domestic violence incident with his former partner.

   [12] Transcript, Day 2, p 22, lines 1-14.

7. In summarising the extent of the Applicant’s recorded criminal history, it is a history which spans from November 2000 through to May 2022 which is a period of about 21 and a half years. His first conviction was recorded when he was aged 24, and his last when he was aged 45.

8. The pattern of his offending behaviour during that time is punctuated by drug offences. Further there appears to be an underlying suggestive pattern of someone who possessed a predisposition in not being able to control his behaviour through the abuse of illicit substances such as dangerous and unlawful drugs. As it was confirmed in his own evidence, the Applicant accepted that he has a long standing drug addiction and he had experienced unresolved difficulties with abusing those substances. He has been convicted of approximately 60 offences and has been before various courts in three separate states on 12 occasions. Those offences included property offences, breaches of bail, robbery with violence, unlawful use of a motor vehicle, possession of dangerous drugs, traffic in dangerous drugs, possess utensils or things used in connection with a drug offence, fail an oral fluid test (driving offence), use unregistered vehicle, drive a motor ,vehicle whilst disqualified, possession of prohibited or unlicensed firearms and ammunition, contravene a Community Correction Order, wilful damage (domestic violence offence), assault occasioning bodily harm (domestic violence offence) and choking (domestic violence offence).

9. His recorded criminal history shows that when convicted of those offences, there has been a rage of penalties imposed upon him including a bond, orders for him to perform unpaid community work, Community Correction Orders, fines and multiple terms of custody where there was concurrent sentences imposed.    

   Paragraph 8.1.1(1)(a) considerations

10. Paragraph 8.1.1(1)(a) of the Direction contains three categories of offending which, if committed by a non-citizen seeking restoration of a visa, are said to compel a merits-based decision-maker to find such offending to be ‘very serious’. The three categories are (1) violent and/or sexual crimes;[13] (2) violent offending against women or children;[14] and (3) domestically violent conduct regardless of whether or not a sentence was imposed.[15]

    [13] Paragraph 8.1.1(1)(a)(i) of the Direction.

    [14] Paragraph 8.1.1(1)(a)(ii) of the Direction.

    [15] Paragraph 8.1.1(1)(a)(iii) of the Direction.

11. I observe that the Applicant’s offending does not involve crimes of a sexual nature as outlined in paragraph 8.1.1(1)(a)(i), however they do involve offences of a violent nature. Additionally, in respect to paragraphs 8.1.1(1)(a)(ii) and 8.1.1(1)(a)(iii), I also observe that the offences involve crimes of a violent nature against women or children; and they were acts of family violence as provided for in paragraph 8.1.1(1)(a)(ii) and 8.1.1(1)(a)(iii).

12. Regarding paragraph 8.1.1(1)(a)(i), it cannot be cavilled with that his conviction for robbery with violence involved circumstances where violence was used in the commission of the offence. Although, he did not leave the vehicle when his co-accused committed the robbery, he was instrumental in the initial planning of the robbery, he was present when it was carried out and he derived a direct benefit from the proceeds of that crime.  

13. In respect to the circumstances arising from his conviction in the District Court at Brisbane on 18 May 2022, the offences are clearly such that they involved actual violence committed against a woman, during which children were present and who were subjected to associated domestic violence. His conviction gave rise to the making of a domestic violence order against the Applicant on three conditions.[16] Firstly, that he be of good behaviour and not commit domestic violence against his partner. Secondly, although there were no children formerly named as ‘named persons’ in the order, the Court put in place a condition that the Applicant have no contact with his partner and all of her children whether the Applicant was the father or not. Thirdly, he was not to approach within 100 metres of his partner’s home address or place of work. The order is in force until 18 May 2027.

    [16] R1, p 142.

14. During the hearing the Applicant did not complain that the offences engaged the provisions of paragraph 8.1.1(a) of the Direction and to my mind, I am satisfied the nature and seriousness of the Applicant’s convictions for those domestic violence offences must be found to be very serious offending pursuant to paragraph 8.1.1(1)(a) of the Direction.

    Paragraph 8.1.1(1)(b)

15. Without any particular limitation, the phraseology of this paragraph categorises certain unlawful conduct that the Australian Government and the Australian community consider as being serious.

16. When applying the Applicant’s circumstances against this paragraph, what is known is that the Applicant has never been convicted for any offence arising out of causing a person to enter into or otherwise being party to a forced marriage,[17] and nor has he been convicted of a crime committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties.[18]

    [17] Paragraph 8.1.1(1)(b)(i) of the Direction.

    [18] Paragraph 8.1.1(1)(b)(ii) of the Direction.

17. As a matter of law, the Applicant has failed the character test, and therefore, I am not required to make any finding about whether his conduct forms the basis that he does not pass an element of the character test that is dependent upon my opinion.[19] Furthermore, the material contains no reference to any crime committed by the Applicant during his time in immigration detention.[20] For the present purposes, this paragraph should be put to one side and rendered neutral.   

    [19] Paragraph 8.1.1(1)(b)(iii) of the Direction; Migration Act 1958 (Cth), s 501(6)(c).

    [20] Paragraph 8.1.1(1)(b)(iv) of the Direction.

    Paragraph 8.1.1(1)(c)

18. In applying this particular paragraph, I am precluded from taking into account sentences imposed on this Applicant for:

    (i)any violent offending he may have committed against women and children;[21]

    (ii)acts of family violence;[22] and

    (iii)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[23]

    [21] Paragraph 8.1.1(1)(a)(ii) of the Direction.

    [22] Paragraph 8.1.1(1)(a)(iii) of the Direction.

    [23] Paragraph 8.1.1(1)(b)(i) of the Direction.

19. That having been said, the Applicant does have a number of other convictions for a wide range of offences, some of which he was punished by custodial terms of imprisonment for the following:

    ·17/07/2006. Mareeba Magistrates Court. Sentenced to 14 days imprisonment for two charges relating to him failing to appear in court and breaching his bail conditions.

    ·08/09/2006. Southport District Court. Sentenced to a head custodial sentence of three years and three months, suspended after the Applicant had served seven months imprisonment, with the operational period of the suspended sentence being four years.

    ·14/04/2008. Brisbane Supreme Court. Sentenced to nine months imprisonment for drugs related offences. Sentence wholly suspended with an operational period of the suspension being two years.

    ·03/12/2012. Dandenong Magistrates Court. Convicted of firearm related charges, drug offences and motor vehicle related charged. Sentenced to a head custodial sentence of 12 months imprisonment.

    ·25/11/2013. Dandenong Magistrates Court. Convicted of trafficking in methylamphetamines and firearm charges. Aggregate custodial sentence of eight months imprisonment for all charges.

    ·08/12/2016. Ringwood Magistrates Court. Convicted of dishonesty offences, driving offences and firearm offences. Aggregate custodial sentence of 91 days.

20. When examining those sentences imposed above, his criminal offending has attracted the imposition of a cumulative sentence of almost six years. This includes the head and other custodial terms or imprisonment which were imposed upon him. A well-established principle in the sentencing of offenders is that the imposition of any term of imprisonment upon an offender is considered by the courts as representing the last resort within the sentencing hierarchy,[24] and the imposition of a custodial term reflects the seriousness of the offences involved.

    [24] PNLB v Minister for Immigration and Boarder Protection (Migration) [2018] AATA 162, [22].

21. When taking these custodial sentences into account, which totals almost six years, I am, satisfied (and so find) that they reflect the very serious nature of his offending.

    Paragraph 8.1.1(1)(d)

22. This paragraph firstly compels an inquiry into the frequency of the Applicant’s offending and/or whether there was an increasing trend to the seriousness of his offending. I do not feel there is a need to repeat the specifics of his level of offending which has already been outlined above. I am satisfied that the Applicant’s criminal offending history shows that his criminal behaviour spanned almost 22 years, during which he appeared in courts on 12 occasions resulting in him being convicted of approximately 60 offences across three separate states. Therefore, I am satisfied that during those 22 years, the frequency (on average) of him appearing in court is slightly less than once every two years, however when taking into account that there were a number of occasions when he spent actual time in custody, I am satisfied (and so find) that his offending has been frequent.

23. Secondly, consideration is to be given to whether the Applicant’s offending contains any trend of increasing seriousness. His criminal history commences in New South Wales when in 2000 he was given a bond and a fine imposed for a property related offence. His next appearance relates to him failing to appear in court and breaching his bail condition for which he was sentenced to 14 days imprisonment. His very next appearance was in the Southport District Court where he was sentenced to a term of imprisonment for robbery with violence. Although this was the third such appearance of the Applicant in Court, I note that the offence date predates his very first conviction, with the robbery taking place in 1998.

24. Since that robbery conviction, his criminal history has been punctuated with numerous entries relating to his drug use, property offences, offences relating to him driving a motor vehicle without a licence or whilst disqualified from driving, and the possession of prohibited or unlicensed firearms, although I observe that in regard to the firearm and weapon offences entered onto his history, there is nothing to indicate or suggest any violence was associated with those offences.

25. The Applicant’s drug convictions in 2008 for possession of drugs carried a term of nine months’ imprisonment.; The 2012 conviction he received for trafficking drugs attracted a term of imprisonment of 12 months. In 2013, the Applicant was again convicted for trafficking in drugs for which he received eight months imprisonment. I do note that the 2012 and 2013 drug offences were dealt with by the Magistrates Court in Dandenong, whereas the 2008 conviction was imposed by the Supreme Court.  

26. I also note that his criminal history shows that apart from the matters finalised in the superior courts of the Southport District Court in 2006 and the Brisbane Supreme Court in 2008, all of the other matters predating his final conviction for the offences discussed about in reference to paragraph 8.1.1(a) of the Direction, were dealt with by way of a summary conviction in the Magistrates or Local Courts.

27. In conclusion, I am satisfied that the above pattern displays an increasing trend of seriousness. This increasing trend of seriousness in the Applicant’s offending together with the totality of his custodial terms he received for the abovementioned offending leads me to a finding that the Applicant’s offending by its very nature is to be classified as very serious. 

    Paragraph 8.1.1(1)(e)

28. This paragraph refers to the cumulative effect of the Applicant’s repeated offending. In my view, the Applicant’s almost 21 and a half years of recorded criminal behaviour alludes to a number of points in respect to cumulative effects. Firstly, the large number of repeated offences committed during that period, in particular offences such as: (1) breaches of bail; (2) motor vehicle related offences involving driving without a licence or when disqualified ; (3) the unlawful carriage or possession of  weapons and firearms; and (4) possession and trafficking of  dangerous drugs, along with implements associated with drug use shows that the effect of the sentencing regimes imposed upon him over that time has clearly failed to deter him from having a penchant to offend. This was evident in the sentencing remarks relating to his conviction for the domestic violence related offences on 18 May 2022.[25]

    [25] G7, page 54.

1. A further, or second, cumulative effect is the substantially high number of offences committed by the Applicant which I accept are as a direct result of his drug use. He does not shy away from a concession that he had a long standing issue with the use of illicit drugs since he was a young child. He said that he was about 10 years of age when he was introduced by cannabis.[26] At that time he was aware that his father grew his own cannabis and was also a user of that drug. He said that apart from cannabis, there were a number of different types of drugs that he experimented with during his life including MDMA, heroin, prescription opioids, methylamphetamines and LSD. [27]He went on to add that he also abused alcohol as well. When looking at all those different types of drugs and weighing that against his drug convictions, I accept that he struggled for quite some time with a drug addiction and his ‘moral compass’ waned to the point where his offending became quite unregulated. I will return later in these reasons and have more to say about his obvious long and difficult relationship with illicit drugs. However, for the purposes of paragraph 8.1.1(1)(e), there can in my view be no cavilling with the suggestion that the Applicant’s seemingly unresolved difficulties associated with his use of illicit drugs has attributed to a cumulative effect of his repeated offending.

   [26] Transcript, Day 1, p 76, lines 31-35.

   [27] Transcript, Day 1, p 75, lines 20-42.

2. In conclusion, I am satisfied that the cumulative effect of the Applicant’s offending in this country leads me to a finding that the Applicant’s offending by its very nature is to be classified as serious. 

   Paragraph 8.1.1(1)(f)

3. This paragraph refers to whether the Applicant has provided false or misleading information to the Department, including by not disclosing any prior criminal offending. The Applicant first arrived in Australia as an infant with his mother.  Since his initial arrival he has departed from and entered into Australia on two occasions. His latest arrival into Australia since when he has remained onshore was in May 1991 when he was 15 years old.[28] His first criminal conviction in Australia was in November 2000, some nine years later since his arrival in Australia on May 1991. Therefore, it can be safely concluded that the Applicant did not have any criminal convictions to disclose at the time of his arrival in Australia in May 1991. Further there is no evidence before the Tribunal that he has recorded criminal offending outside Australia. Thus, this paragraph should be put to one side and rendered neutral for present purposes.

   [28] G2, Attachment O, page 180.

   Paragraph 8.1.1(1)(g)

4. This paragraph requires the decision-maker to have regard to whether the Applicant has

   
   

   re-offended since being formally warned in writing about the consequences of further offending in terms of his migration status to remain in Australia.

5. The material before the Tribunal shows that on 2 August 2013, the Respondent wrote to the Applicant and notified him that his visa may be liable for cancellation on character grounds. At a later time, on 4 December 2013, the Department again wrote to the Applicant and informed him that a delegate for the Department had made a decision to not cancel his visa at the time and the Applicant (in this notification) was given a formal warning. He was warned that the cancellation of his visa may be reconsidered if he committed further offences or that he otherwise breached the character test in the future.

6. During the hearing, the Applicant initially said that he did not receive a warning.[29] However after contemplating that response overnight, he told the Tribunal that he his response to the question relating to the warning was not correct, but he had reflected on this issue overnight and he had forgotten that he had in fact received a warning from the Department.[30] He said that he accepted that he had been warned by the Department and when asked what he thought that the Department was trying to tell him when that warning was given to him, he said that he understood that he should have ‘pulled up’, and stopped acting the way that he had been acting and committing criminal offences. When asked why he did not stop, he said that his life was a mess for a few years.[31]

   [29] Transcript, Day 1, p 10, lines 32-43.

   [30] See generally, Transcript, Day 2, p 33, lines 29-45.

   [31] See generally, Transcript, Day 2, p 34, lines 1-7.

   Paragraph 8.1.1(1)(h)

7. This paragraph requires a decision-maker to have regard to the Applicant’s offending in another country and whether that offence or conduct is classified as an offence in Australia. There is no evidence of any overseas offending by this Applicant. This sub-paragraph should be put to one side and rendered neutral for present purposes.

   Conclusion about the nature and seriousness of the Applicant’s conduct

8. I have applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction and the relevant paragraphs applicable to the instant facts safely lead me to the conclusion (and finding) that the totality of this Applicant’s unlawful conduct in this country can be readily characterised as ‘very serious’.

   The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

9. Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to:

   ·the Government’s view that acceptance of the Australian community’s tolerance to any risk of future harm becomes lower as the seriousness of the potential harm increases; and

   ·some conduct and the harm that would be caused from that conduct, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.

10. Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:

    (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;

    (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    (i)     information and evidence on the risk of the non-citizen re-offending; and

    (ii)    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and

    (c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

    The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct

11. Any assessment of the nature of harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct is drawn from the knowledge of the nature of his offending to date. This assessment is derived from the Direction which provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.[32]

    [32] Paragraph 8.1.2(1) of the Direction.

12. When giving regard to the nature of the Applicant’s index offending conduct I have found that his offending was ‘very serious’ and if he was to re-commit any of his past violent offences, in particular the domestic violence offences, such conduct could result in very serious physical, psychological and possibly catastrophic harm to a victim(s). Therefore, in my mind, any re-commission of the ‘very serious’ index offending and the harm that it would cause would be so serious that any risk of its re-commission would be unacceptable to the Australian community.

    The likelihood of the non-citizen engaging in further criminal or other serious conduct

    Sentencing remarks

13. Made available to the Tribunal were two separate sentencing remarks. The first related to the Applicant being sentenced for his involvement in a 1998 robbery offence and an associated unlawful use of a motor vehicle offence.  For this offence the Applicant was sentenced in a Queensland District Court at Southport in 2006. The second sentencing remarks relate to his conviction for the domestic violence related offences when he was sentenced in the District Court at Brisbane in 2022.

14. In regard to the 2006 sentencing episode, it was accepted by Judge Dearden that the Applicant was not being sentenced as the main principal offender for that offence. It seems to me that at the time of his sentence for those offences, the other offenders had been dealt with by the courts and it was noted by the sentencing Judge that the Applicant, although present during the robbery, had remained inside the motor vehicle used during the commission of that offence.

15. In discussions about the commission of those offences, the Applicant told the Tribunal that he had known the victim of robbery offence and that at that time he was in a significant debt to his drug suppliers. To help pay off the debt he was complicit in providing his other co-accused with the specific information about the victim and the money, that was ultimately stolen. The benefit that he derived from that unlawful enterprise was to pay off his debt to his drug supplier and he received a small amount of cash from the proceeds.[33]

    [33] See generally, Transcript, Day 1, pp 10-12.

16. Turning now to the most recent convictions recorded against the Applicant, the sentencing remarks of Judge Byrne in the District Court at Brisbane laid bare the circumstances and the particulars of those offences when he said:

    ‘You had been involved in a turbulent relationship and you had four children together, ranging between 10 years and five months of age. Your partner suspected infidelity on your part; she found something while you were out which, in her mind, confirmed it. She asked you to leave, there was an argument. She had packed your suitcase, telling you to leave. You then involved your children in what is only ever an adult argument. You told them that:

    “Mummy is going crazy again. She is kicking me out.”

    You held up your five month old and said:

    “See, your mum is a dog. She wants to keep me locked up.”

    When she indicated she was going to call the authorities, you tried to grab the phone and there was more arguing, there was more scuffling. There were more damning comments made by you. At one stage, you placed both of your hands around her throat, said:

    “You’re a fucking dog. You’re going to get me locked up. I knew you were a dog.”

    You applied pressure to her throat for about a minute. She was unable to breathe. She felt as though she was going to vomit. She frothed at the mouth; she was making choking noises. On four to five occasions, you loosened your grip to allow air to go in before re-tightening it so she could not breathe. I take the view that that was not a benevolent act on your part, but an effort to make her suffer for longer. Not unnaturally, she believed she was going to die. You threw her onto the bed. You placed a hand across her throat, another hand was covering her mouth and a forearm against her chest so she could not move.

    Your children were shouting to you:

    “She cannot breathe. You are going to kill her.”

    You went and got her a drink of water, telling her that she needed that. She wanted her phone and there was an argument about that which resulted, ultimately, in you punching her four to five times in the chest. I beg your pardon, she punched you four to five times in the chest in an effort to get you to release her from the hold you had her in. Ultimately, you pushed her head down and in an uppercut motion, punched her twice in the face, causing her mouth and nose to bleed. You pushed her onto the bed, you punched her in the back of the head two or three times. All of that is count 2, the assault occasioning bodily harm.

    The children, again, were telling you to get off her, that she was bleeding. You tried to tell her that she was laughing, not crying. Ultimately, you said that you were leaving. You again called her a dog. Told her that:

    “If you call the police on me, you will get me locked up.”

    Ultimately, you returned to the bedroom; you were holding a machete. The children were screaming:

    “Don’t kill us. Don’t kill us.”

    You, again, called your partner a dog and said:

    “I am going to kill you.”

    But you then turned and ran away. You took off. Later, there was found to be a hole in the windscreen of the car, a hole in the bonnet, and police located a different machete, that is, a second one, and photographs have been tendered of each of those weapons. You pleaded guilty on the basis that you used the machete to damage the car. When police turned up, they found a backpack that you had taken with you interstate; it contained .5 grams gross weight of methylamphetamine, a smoking pipe, electric scales, 21 shotgun shells and two syringes. A warrant was issued for your apprehension, you surrendered in February of 2018. I have outlined the history of the listing of 5 the pre-recording and of the date that you entered your plea of guilty and the fact that you again absconded.

    Domestic violence is a scourge on our community. It is the unfortunate experience of the Courts that it often happens over minor and relatively inconsequential matters. The fact that you brought your children front and centre into this is a complete and utter disgrace on you. It is, as the Prosecutor submitted, a particularly aggravating feature.

    You have considerable previous entries on your criminal history, most of them relating to property or drug offending. There are no prior entries for domestic violence, I take that into account. However, your history in Victoria shows that you continued to offend after you had absconded on bail on the present matters. The passage of time which has passed since the offending cannot be put to your advantage to suggest that you have reformed yourself or that there are good prospects of rehabilitation in your case.’[34]

    [34] R1, p 52, lines 32-48; p 53; p 54, lines 1—20.

17. The sentencing remarks displayed above clearly outline what were the facts the Applicant pleaded guilty to in the District Court on that occasion. Arising from those court proceedings was an order being made by the court putting in place a domestic violence protection order nominating the Applicant as the respondent and his partner as the aggrieved. As it has already been explained earlier in these reasons, apart from the standard conditions which were imposed upon him, there were additional conditions that the Applicant was not to approach his former partner and all her children.

18. The Applicant told the Tribunal that notwithstanding the domestic violence incident which took place, he had fled interstate soon thereafter. He later returned to Queensland where he assisted his partner and their children in relocating to Western Australia where they remained together for some time. He said that the relocation was facilitated by him in the form of him driving his partner and the children in a motor vehicle from Queensland to Western Australia. He said that he did this because she wanted to relocate to Western Australia. When discussing this, he said:

    ‘Senior Member: You moved her over to Western Australia?

    Applicant: Yes. She rang me to move her. So, yes, I moved her to Western Australia. I helped financially set herself up there and got her into a house and whatnot. I was supporting them while – and then – then I went to stay there for a little bit. Not, I wouldn’t say permanent, I don’t really call it, myself staying in Western Australia because it would be like a week at a time maybe.  And then I started working in Queensland.

    Senior Member: And how long were they in Western Australia for?

    Applicant: About a year or so. I don’t know exactly. They moved to Queensland while I was in custody.

    Senior Member: Did they – did you go across to Western Australia with them at all?

    Applicant: When you say with them, I drove them to Western Australia. I helped move them to Western Australia. So yes.

    Senior Member: How long did it take you to go?

    Applicant: We did it in, the first drive, sorry, excuse me. The first drive was from Hervey Bay to – I met her in Brisbane. She drive [sic] from Hervey Bay. I met her in Brisbane, (indistinct) the airport.  She picked me up from the airport.  We drove down to – there’s a goldmining town or something across the border in New South Wales and South Australia.

    Senior Member: Lightning Ridge?

    Applicant: Around there. Broken Hill? Is it Broken Hill? Yes, Broken Hill. We did a bit of a touristy thing there with the family, took photos and whatnot.  The next stop was just before the big drive across the desert, where it’s all a straight line for days, it seems like.  We stopped a night at a town there, and recuperated.  And then left early in the evening.  Got to Western Australia.  Stopped at Western Australia and then she wanted to push on through. So our stop there was cut short.  We only stopped for six hours or something.  And then, yes Western Australia, so three and a half days, four days.  So – in a Captiva, four kids and everything packed to the roof.’[35]

    [35] Hearing transcript, Day 2, pages 46 – 47.

19. The Applicant was then asked about the current status of his relationship with his partner, and whether they had a good relationship, and why had they not given evidence at the hearing. He said:

    ‘Applicant: Because of NAPLAN.  That was their – Child A had an exam yesterday.

    Senior Member: We could have done evidence by phone?

    Applicant: I wasn’t aware of that. Sorry, I didn’t know that. I thought they had to be here.  And she cancelled on me on Sunday.  So yes. I was not aware that we could do evidence by phone or by video.  I didn’t even know that the people here were witnesses.  Like, it wasn’t until yesterday morning when they said, ‘Is your wife coming in or staying out?  Is she going to be a witness?  She’s got to stay outside’.  I wasn’t aware of that procedure.

    Senior Member: Well, your wife came in yesterday?

    Applicant: Yes.  Because I said, no I won’t call her as a witness.  So yes, as far as I knew.

    Senior Member: When did you speak to [Ms AB] last?

    Applicant: On Sunday, on Child AT’s birthday.’[36]

    [36] Hearing transcript, Day 2, page 47.

20. When assessing what the Applicant told the Tribunal about his relationship with his partner in the period following the 2016 domestic violence incident, and the current relationship between them, I accept that there appears to be a reconciliation of the relationship between the Applicant and his partner over that period of time. I do note that on the morning of the first day of the hearing his wife was present in the Tribunal room for the hearing, she did not stay very long and did not return after leaving

    Applicant’s statement made on 8 February 2024

21. Within an email provided by the Applicant, he stated that:[37]

    [37] A1.

    ‘At the time of my offending in 2016. Please let me start by saying if there was one day in my life that I could change it would be that one. [Ms AB] is the mother of 4 of my wonderful children, Tichondrius, [Child A], [Child E]  and [Child AT].. [Ms AB]  has always been a big part of my life regardless of our marital status. What transcribed on that day due to my actions was and still is inexcusable. There will never be enough words to express how utterly disgusted and remorseful I am . It was and still is the lowest point in my life . Even now I have so much trouble writing about what happened and how it effected [Ms AB]  and the children .  [Ms AB] and I have spoken at length and both firmly agree that if we want our children to have the best chance of growing to their fullest potential then we will need to heal together as friends , family and parents. As well as learning from my mistakes . I was advised to write about my abusive childhood and drug usage history from a young age but honestly there are no excuses good enough to justify my behaviour. Even tho [sic]  [Ms AB] and the children have forgiven me, I will never forget or forgive myself.

    I entered into a [sic] early Guilty plea to avoid putting [Ms AB]  and the children through the hardships of reliving that day again in a court setting . While I was at Woodford cc I was on the waiting list for a number of domestic violence related courses . Unfortunately I became eligible to relocate to Palen Creek open camp before I was able to do any of the courses. During my time at Woodford until now I have stayed incident free. During my time at Pinkenbah [sic]  Detention centre I have become a PAC representative for Fraser yard as well as being a peer for fellow detainees. I also attend weekly drug and alcohol counselling sessions . Although my methadone was stopped when I came into prison I started the Ostp program which involves maintaining monthly injections and have made contact with Inala community health centre so I can continue managing my monthly injections.

    Although at the time of writing this the DVO order between [Ms AB]  and myself has not been revoked we do have a hearing on the 23rd of February to have it removed as its been 7+ years now and I have not breached it.

    I enjoy monthly visits from [Ms AB]  and our four children as well as Kim my wife and our two children. [Ms AB]  and Kim are close and our 6 children get along very well and communicate with each other via Facebook messenger.

    I speak to all of my children regularly either on a daily or weekly basis via Facebook

    messenger or via video calls . I try to be a big part of their life and always let them know they are loved and I am always there if they need me regardless the reason .

    My biggest fear in being deported is not for my own welfare but not being able to be there for my children in there time of need . My father was never there for me emotional or financially. Even now that I am in here he still wouldn't write a statement to say I am his only son .

    In regards to work in the future My last employer could not provide a stat deck [sic] stating he has work for me if I am released due to me being a sub-contractor not a paid employee.

    I understand the position I am in is due to my own actions and no one else's. I am deeply remorseful extremely ashamed of my actions as well as the impact on my family's lives I only hope and pray I can make it up to [Ms AB] , the children as well as my family and the Australian community. They all deserve for me to be a better version of myself.

    Hopefully my time in prison and detention has shown that I have tried to become a better person as well as a better father.

    Attached are witnessed letters from Tichondrius , [Child A]  , [Child E]  and [Child T]

    As well as my certificate in domestic violence and pictures from monthly visits.’

1. In examining that statement, I observed that he speaks of his relationship with his partner and his children. He also goes on to explain, which I accept, to be a display of remorse on his behalf in relation to his involvement in being domestically violent to his partner and children in 2016. He says that he cannot find enough words to express how “utterly disgusted and remorseful” he is for his behaviour on that occasion, and it was as he described, “the lowest point in my life”. He accepts in his statement that the unfortunate aspects of his childhood and upbringing are not excuses to justify his behaviour, and he would never forget or forgive himself for what happened. He pointed out that at the time of writing his statement it had been over seven years since that incident took place and there have been no further reports or concerning incidents involving the Applicant displaying violent or domestically violent behaviour.

2. Within a further handwritten document, the Applicant discussed a number of aspects of which I paid attention to. In discussing his goals for his drug use he said that those goals are not to use or consume any drugs not to have any contact with those people who may participate freely in drug use. He acknowledged that his drug use and related behaviour has caused issues with regard to his relationship, his finances, his health is life skills and personal and mental health. He acknowledged that it has lead him committing criminal offences and he wants, and needs to change this behaviour to learn new skills. He said that the benefits of that change is a better lifestyle and health, the ability to enjoy simple things in life and to be able hold down steady employment and maintain some stability for building a foundation for his future. He acknowledged that one way to achieve this was to avoid relationship with drug users and associating with criminals.

3. He went on to discuss what were the triggers that caused him to turn towards drug use, and part of that was his association with other people who use drugs and crime he recognised that he would have to go in a different direction to what those former associates undertook. He recognised in his writings that if that did occur, he would need to seek help immediately and seek advice and support from others. He went on to say that a positive method would be to maintain strong self-awareness and establish trusting and loving relationship with his partner his children and family, as well as his friends.[38]

   [38] G29, pages 101 – 113.

4. I have given careful consideration to the contents of the Applicant’s statement, and the handwritten document. I accept that within those documents he has displayed insight into the impact of his behaviour upon others.  Further I am also satisfied that by him acknowledging the impact of his behaviour upon his ex-partner and his children during the domestic violence event, he has shown a degree of acceptable insight in recognising that his behaviour was not only unacceptable and unlawful, but it also had a detrimental effect upon the members of his family. I recognise that when a person has insight into the consequences of their actions and is aware of the impact of those actions on others, it not only shows contrition and empathy towards those others which were impacted, but it is also an indication that they are less likely to re-offend than a person who has no insight into the effect their actions on others.[39]

   [39]Re TAA [2006] QCST 11, [97].

   Supporting statements

5. Ms Kim Hanh Ty is the Applicant’s wife. She did not give oral evidence in the Tribunal hearing before me. However, I do note that she arrived at the hearing on the morning of the first day of proceedings, although she did not stay for very long. In her statutory declaration, she said:[40]

   ‘I have been married to [the Applicant] since 25th of March 2019 as the attached document of a marriage certificate is visible to see.

   We have a child together named [Child R] born on 12 Oct 2019 and is a male. I’ve also attached his birth certificate.

   I am Australian citizen and a copy of the document is also attached on my birth certificate which I was born in Sydney, Liverpool Hospital on 30th of March 1987.

   My daughter [Child HT] is not Jayden’s biological daughter but he treats her like it and vice versa she loves him more than anyone else I [sic] calls him dad. Her birth certificate is also attached. I have also printed a letter from the kids.

   I have visited Jayden [the Applicant] a few times while in custody though I would really like to see him every week but Woodford is too far for me to travel every week, and have had one virtual visit and will continue to book and have more virtual visit.

   What I do know that our kids were [sic] extremely be sad if Jayden [the Applicant] got deported back to the Philippines, they asked for him every single day it wouldn’t be fair as [Child R] is still very young, does not get the chance to spend any time with his father if he gets deported.

   I need to know that I have made a very big impact being the Jayden [the Applicant] he is a happy man ever since married to him he hasn’t really played up got into trouble with the law much and I think that should be taken into consideration, without him by my side I honestly don’t know what I would do.’ 

   [40] Attached was a marriage certificate showing the marriage of the Applicant to his wife, copies of the [Child R] birth certificate and a copy of Kim Ty’s birth certificate.

6. Also included within the material provided to the Tribunal was a statutory declaration from Ms AB (the Applicant’s former partner), dated 28 April 2023.  In that document, she said:

   ‘I’m write this letter on my behalf and my children’s behalf for Jayden Ty [the Applicant] father of my children’s stay in Australia as I need him to help me raise our children’s and to support me raising our children’s. As a single parent with two jobs and work as Medical Administration and support worker it would be very difficult for me to raise our four children on my own and without Jayden Ty [the Applicant] I could not manage on my own as I am already struggling on my own. Jayden Ty [the Applicant] and I had our own differences, but we do try our best to be good coparenting for our children and we always make sure our children’s needs always come first. Jayden Ty [the Applicant] has always been a good father and a loving father to all his children’s and my children has always had strong bond relationship with their father, especially our oldest son who was 17 years old as mother could not teach him the value of being man specially at his aged, I cannot have man-to-man talk with my son why he could with his own father. My son has always had trouble opening up with me about his feeling other thing that is going on with his life and this is why you need Jayden Ty to [the Applicant] stay in Australia and be around his son life and our other children’s life. As a mother I could feel and see in my son’s eyes ever since she found out that his father was in prison son has developed anxiety separation form his father and this has had affected his on schooling and socializing. As growing up as a young child my father’s life is taken away from my and my sibling and growing up without a father in my life and it was very difficult for me as to cope and as a mother I don’t want my children to go through this experience being separated from their father and it worries me if Jayden Ty [the Applicant] was to be deported this will create so much emotional grief, trauma and anxiety to our children’s life and upbringing and this experience could developed to depression and Mental health issue later on in their life. Especially our two youngest children who are 7 and 8 years old, I don’t want their childhood memories to be imaged of their father be deported and being separated from their life this worries me as it brings stresses to my life and this experience could extended to depression, guilt, anxious and trauma for our children’s life. I pledge to you that you would reconsider your decision and would see the greats risk and effect this will bring upon our children’s life if Jayden Ty [the Applicant] was to be deported. Thank you so much.’

7. The Applicant’s wife and former partner have provided written statements which explain what support they can offer him upon his return to the community. I also pay particular attention to a photograph was taken on Christmas Day 2023 of a family gathering of the Applicant’s children along with his wife and his former partner, Ms AB. His wife says that she has made a big impact on him, and he is now happy man since I have been married whereas Ms AB spoke about the loss their children will experience did not return community.

   Letter of support – Gerry Gerrard

8. Gerry Gerrard is a drug and alcohol counsellor from International Health and Medical Services (‘IHMS’) in Brisbane. No formal CV was provided from him in regard to his qualifications, although I do note that he does not purport in his letter that he had conducted any examination or assessment of the Applicant. He outlined in his letter that the Applicant had engaged with IHMS since he had been placed in immigration detention and that the Applicant receives all of his medical and mental health support services from IHMS. He went on to explain that the Applicant is engaging, motivated and has developed great insight into his life and his previous maladaptive behaviours that led to his incarceration and subsequent detention. This, in my view goes in some way to support what the Applicant had said in his own statement about his insight into his previous offending behaviour. Mr Gerrard went on to say that the Applicant poses a very low risk of reoffending in the community, and he has got a job to return to upon his release and also has stable accommodation, although I do note that there is no indication by Mr Gerrard as to what that accommodation or employment is.

   Letter of support – Loretta Evans

9. In a letter dated 8 June 2023, Loretta Evans from BUSY Ability wrote that the Applicant had commenced a pre-employment program whilst at the Palen Creek Correctional Centre. That involved preparation skills workshop, career guidance, resume writing, cover letters, work motivation and interview preparation aligned with the Applicant’s skill set. This all points to the Applicant taking necessary steps to better prepare himself in regard to him seeking future employment.

10. Included within the material provided to the Tribunal were some statements provided by

    
    

    Ms AB[41] and Ms EH[42] who is Ms AB’s mother. Both of those statements were dated in September 2006 and so were the statements from Ivan Diaz[43] and Helen Marginalise[44] which also dated in September 2006. When looking at the timeline of the Applicant’s record of criminal history, those statements were made just prior to his sentence in the Southport District Court for the offences of robbery with violence and unlawful use of a motor vehicle. Each of the statements provide a positive reference in regard to the character of the Applicant at that time, however I do note that there has been a passing of almost 16 years since then. Further there have been numerous other criminal acts committed by the Applicant including the very serious domestic violence incident in 2016. In that regard I place no weight on these documents and place them to one side for the purposes of the determination of this matter.

    [41] R3, pp 18-19.

    [42] R3, pp 20-21.

    [43] R3, p 23.

    [44] R3, p 22.

11. I also observed that there is a further letter within the material from Ms AB dated

    
    

    30 September 2013. This was in the period leading up to the Applicant’s conviction in the Dandenong Magistrates Court on charges relating to possession of weapons and traffic in a dangerous drug. This statement provides positive reference in favour of the Applicant and speaks to his role as a father and as a partner. Likewise, to my earlier comments about the 2006 references, I place no weight on this reference in regard to the determination of this matter having regard given the domestic violence incident between the Applicant and Ms AB since that time.

12. Other support letters, which I consider to be dated were made in 2000 by Ruchell Hutton and Paul Larjus. Those references appeared to have been made in preparation for the Applicant’s appearance in a court. Doing the best I can in regard to collating those documents with a court appearance in the Applicant’s criminal history, it would appear to me that these were documents which are relevant to the very beginning of the Applicant’s criminal offending. Although I do acknowledge their existence so far as the positive comments made in them at that time, I am satisfied that they should be given no weight in respect to the determination of this matter.

    MHARS MENTAL HEALTH REPORT AND IHMS REPORTS

    MHARS

13. Within the material provided to the Tribunal was a mental health report undertaken by the Mental Health Advice and Response Service (MHARS) regarding an assessment of the Applicant on 12 June 2019. This report was presented to the Ringwood Magistrates Court (Victoria) in preparation for the Applicant’s sentence in that court for offences which have been indicated on his criminal history. The report outlined that the Applicant reported a diagnosis of ADHD by a psychiatrist in 2006 whilst the Applicant was serving a term of imprisonment. It was noted that he was not on any medication at the time of the report for ADHD. The Report indicates that the Applicant suggested that he managed his medication and well-being and though stressors related to his physical pain arising out of a motorbike accident that occurred in January 2019. He denied any history of suicide attempts or deliberate self-harm or of any current plan or intent to harm himself. He described at that time that his children and his family acted as a protective factor for him.

14. He disclosed to the report writer of an extensive history of polysubstance abuse, of which he started using cannabis at the age of 10 and that he has been using various forms of drugs including MDMA, ecstasy, speed, heroin and Ice. He also described to the report writer that he had a history of drug abuse and his preferred drug of choice was heroin which he gave up a few months previously and he was now on a methadone program. He acknowledged to the report writer that his drug abuse history had impacted negatively upon his life and he acknowledged that his offending behaviour related to his drug use.[45]

    [45] R3, pages 102 – 104.

15. The assessment at that time of the Applicant was that he did not require immediate, or emergency mental health follow-up. However, it was noted that although the Applicant denied any acute psychiatric issues or imminent risk, it was identified that he remained at that time susceptible to relapse of drug use. The assessment further acknowledged that the Applicant appeared to have a reasonable insight into his drug use and was able to seek help if required.

    IHMS clinical notes

16. During his cross examination at the hearing, an entry made into the IHMS clinical records by a nurse on 2 September 2023 was brought to the Applicant’s attention.[46] The report suggests that the Applicant told the nurse that he had been shot by bullet while dealing drugs.[47] His response was “No, but I’ve been shot by a bullet, yes, that's correct, but not while dealing drugs. I don't know when that happened. That was just in an X-ray that they found it stuck in my lower left clavicle”. He went on to say that the bullet when it had been discovered was all news to him, he was just as surprised as the next person. There was no scar and had been discovered only when he had been x-rayed following a traffic accident in 2019.[48] The reference to that injury and the bullet inside the Applicant is the only reference within the material provided to the Tribunal. I accept that he did tell the nurse about being shot during a drug deal, however the actual date and circumstances behind it remain unknown.

    [46] A2, page 68 of 109.

    [47] A2, page 68.

    [48] Hearing transcript, Day 1, page 72; Day 2, page 36.

17. The IHMS material contained further references in regard to assessments and comments specifically on the issues that loomed large in the Applicant’s history so far as his drug use and any adaption of coping mechanisms. On 3 January 2024, clinical notes were made by psychiatrist Dr Jillian Spencer in respect to her consultation with the Applicant. In respect to the Applicant’s forensic history, Dr Spencer noted that the Applicant first tried alcohol at the age of 10 and he drank a lot of alcohol as a teenager. He disclosed that he used to “wipe myself out on weekends” and when in his 20’s he drank alcohol heavily. He said that he cut back his alcohol consumption in his 30’s and in the last 10 years he has drunk far less alcohol and he only drinks socially, three to five drinks every fortnight.

18. In respect to his illicit substance use, the Applicant described that he first tried cannabis at the age of 10 and regularly used cannabis on a daily basis through to his mid-20’s. He started using amphetamines (speed) at the age of 15, and he described using it

    
    

    twice-weekly as a teenager. He then moved into a fire heavy use of methamphetamines in his early 20’s and described that he would stop using the drug in his mid-20’s. Although I did disclose that he uses the drug recreationally in the last 10 years as a “pick me up”. In respect to opioids, the Applicant explained that he started using heroin at the age of 13 or 14 through until about 2018. After 2018 he went on to a methadone program.

19. The Applicant’s first contact with mental health services was in 2002 when he was in a physical rehabilitation facility after a car accident from which he had suffered severe injuries. He spent about six months in rehabilitation learning how to walk again and during that time he saw a counsellor throughout the process. The Applicant further described that in 2003, he was staying at a backpacker [motel] in New South Wales where a Japanese tourist went crazy stabbed a man 16 times in the throat and neck. He described that he attempted to save this person’s life by placing his hands around the injuries, however, the person died.

20. The Applicant described his father lives in Melbourne, and he is a retired school principal. He has been married to the Applicant’s stepmother since the Applicant was a child, and that they have no other children. He disclosed that his father was alcoholic and was violent to him. He further explained to the psychiatrist his evidence about limited education and that he had dropped out of school at a very young age. He also discussed that he had moved to Queensland at the age of 15 to live with his grandmother. During his time in Queensland, he worked as a plasterer and as a shop fitter. He further explained that the COVID-19 pandemic impacted upon his business that he was operating at time.

21. The psychiatrist assessed that the Applicant suffered no delusions or psychotic symptoms, he was not suicidal and had no perceptual disturbances. In her view he was currently doing well although he was stressed in regard to his Visa situation. She discovered no mood, anxiety or psychotic symptoms and that she assessed him as having a low risk of

    
    

    self-harm/suicide.

22. When looking at the more recent IHMS records, what that tells me is that the Applicant himself has come to the realisation that his past penchant and weakness towards illicit substance abuse can only be addressed by a strictly observed adherence to OSTP therapy and otherwise consistent engagement with clinicians or other allied health professional who provide the appropriate therapy and counselling. In my assessment of the facts of this matter, if the Applicant was not involved in OSTP therapy during his detention, then it would have been more likely than not that he would have found a way to relapse into what can be described as a very unhelpful and unfortunate pattern of illicit substance abuse. On my very careful assessment of the evidence surrounding the Applicant’s rehabilitation, I am satisfied that he has understood that OSTP therapy does get his cravings and addiction for illicit drugs under a reliable measure of control. The significance has not been lost on me that since he has been in custody and detention following his conviction in May 2022, he has no history of offending or reportable conduct during that time.

    Findings about risk of engaging in further criminal or other serious conduct

1. Therefore, I am of the view that these two sub-paragraphs should both be put to one side and rendered neutral for present purposes.

   Conclusion: Primary Consideration 4

2. I have assessed and allocated weight to the best interests of children by reference to each of the relevant sub-paragraphs at 8.3(4) of the Direction. When consideration is given to the cumulative weight which I have allocated to the best interests of children pursuant to the relevant sub-paragraphs of 8.4(4) of the Direction, I am satisfied the most appropriate finding relevant to this Primary Consideration 4 must be found to be of strong weight in favour of revocation of the mandatory cancellation of the Applicant’s Visa.

   PRIMARY CONSIDERATION 5:  EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

3. The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[67] The Direction further explains:

   ‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[68]

   [67] Paragraph 8.5(3) of the Direction.

   [68] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.

4. With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:

   (1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

5. This Applicant has breached the Australian community’s expectations by his criminal offending in this country which is evidenced by his criminal history record check appearing in the material. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.

6. The Direction also states that visa cancellation or refusal, or non-revocation of a mandatory cancellation of a visa, 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 or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:[69]

   (a)acts of family violence; or

   (b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

   (c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

   (d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

   (e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

   (f)worker exploitation.

   [69] Paragraph 8.5(2) of the Direction.

7. I have earlier found that the Applicant has committed offences that engage the operative effect of the abovementioned sub-paragraphs (a) and (c). The most serious of those offences relate to his 2016 domestic violence incident, which constitutes the commission of acts of family violence[70] and the commission of a serious crime against a woman (his former partner, Ms AB).[71] The commission of these offences means the Australian community expects that the Australian Government can and should refuse to set aside the mandatory cancellation of the Applicant’s Visa.

   [70] Paragraph 8.5(2)(a) of the Direction.

   [71] Paragraph 8.5(2)(c) of the Direction.

8. The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4), (5) and (6) of the Direction, and in summary these are:

   (a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;

   (b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[72]

   (c)Australia will generally afford a higher level of tolerance towards criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age;[73]

   (d)the community’s level of tolerance will rise based on the length of time a non-citizen has spent in this country and, in particular, whether their formative years were spent here;[74]

   (e)the nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen;[75] and

   (f)if a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f)(inclusive) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[76]

   [72] Paragraph 5.2(4) of the Direction.

   [73] Paragraph 5.2(5) of the Direction.

   [74] Paragraph 5.2(5) of the Direction.

   [75] Paragraph 5.2(6) of the Direction.

   [76] Paragraph 5.2(6) of the Direction.

9. In relation to sub-paragraph (a) of the immediately preceding paragraph [185], the term ‘limited stay visa’ is not defined in the Act. In this case, the Applicant held a Class BF Transitional (Permanent) visa which was granted to him on 1 September 1994. He held that visa until it was cancelled on 30 November 2022. It can also be concluded that if his Visa was not mandatorily cancelled, then he would have continued to hold the Visa and therefore remain in Australia indefinitely. Because the Visa permitted him to remain in Australia without any limit on the duration of his stay, it could not have been classified as a limited stay visa.[77] Therefore this sub-paragraph (a) is not relevant for present purposes.

   [77] Walker v Minister of Home Affairs [2020] FCA 909 at [29].

10. In relation to sub-paragraph (b) of the abovementioned paragraph [185], the Applicant has resided in Australia on a permanent basis from 1981 when he was about five years old . He is currently aged 47 years with a noticeable a history of remunerative employment in Australia. He has fathered seven biological children and is a stepfather to one child in Australia. Whatever participation in, and contribution to, the Australian community he may have made during his time here cannot be safely found to have been ‘short’. Therefore, the Australian community’s tolerance is not lowered by this part of the principles in 5.2(4) of the Direction.

11. In relation to sub-paragraph (c) of the abovementioned paragraph [185], I have already identified above that from 1981 he has resided in Australia since he was five years old. He is now aged 47. I consider (and so find) that he has spent almost all of his life in Australia since his 1981. This means that the Australian community has a higher than usual tolerance of criminal or other serious conduct by this Applicant.

12. In relation to sub-paragraph (d) of the abovementioned paragraph [185] I am of the view that the 41 years that the Applicant has spent here in Australia enables a slight raising of the community’s level of tolerance for his offending. This finding can be strengthened due to him having spent his formative years in this country.

13. In relation to sub-paragraph (e) of the abovementioned paragraph [185], I am not of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant recommitting his criminal offending of the same type and magnitude already committed and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the nature and extent of the Applicant’s offending, particularly in regard to his domestically violent conduct towards a woman, and the harm resulting from it has been of such a significant and serious magnitude as to potentially dispel any applicable countervailing considerations.

14. In relation to sub-paragraph (f) of the abovementioned paragraph [185], I have found that at least part of the Applicant’s offending is captured by sub-paragraphs 8.5(2)(a) and (c) of the Direction. Given that finding, even strong countervailing considerations in his favour may not assist him. Therefore, my finding must be that the nature of his offending effectively impedes any countervailing considerations working in his favour.

15. Having regard to the above discussion around sub-paragraphs (a)–(f) (inclusive) referenced in paragraph [185] of these Reasons, I am of the view that the Australian community’s expectations are not modified such that the community does not have a higher than usual tolerance of criminal conduct by the Applicant. Because of the very serious nature of the Applicant’s offending, this Primary Consideration 5 compels a finding that the community expects that the Australian Government can and should refuse to set aside the mandatory cancellation of the Applicant’s Visa.

    Conclusion: Primary Consideration 5

16. Primary Consideration 5 confers a heavy level of weight in favour of this Tribunal affirming the Decision Under Review.

    OTHER CONSIDERATIONS

    Other Considerations (a): Legal consequences of the decision; and (d): Impact on Australian business interests

17. With initial reference to Other Consideration (a), I accept that the Applicant does not claim to be owed non-refoulement obligations. To whatever extent he may contend that a legal consequence of this decision may cause him to become the subject of indefinite detention, it is safe to find that he is not a person covered by a protection finding. Consequently, were this Tribunal to affirm the Decision Under Review the Applicant would be liable to removal from Australia as soon as reasonably practical.

18. In addition to the above, no submissions were made in relation to Other Consideration (d) being a relevant consideration in this matter. Accordingly, I allocate a neutral weight to this Other Consideration (d).

    Other Consideration (b): Extent of impediments if removed

    The Applicant’s evidence

19. A common theme in the evidence is that the Applicant says (and it was also said on his behalf) he has an unfamiliarity with the Philippines and, more particularly, how to live his life in the Philippines if he were to be compelled to return there. His unfamiliarity with the Philippines is derived from the extraordinary length of time he has spent in Australia, having lived in Australia on a permanent basis since 1981.He has only left the country once, and that when he was about 15 years of age when he and his grandmother travelled to the Philippines to seek out his biological mother. Although he suggests that he has some distant relatives living in the Philippines, he does not profess to have any meaningful relationship with them.

    Factors to be taken into account

20. Paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and

    (c)any social, medical and/or economic support available to that non-citizen in that country.

21. Paragraph 9.2(1)(a): the Applicant is 47 years of age and, in physical terms, can be safely considered to be reasonably fit. There is no reference to him suffering from debilitating physical illnesses, and nor is he experiencing any diagnosable mental health issues, apart from being anxious about his pending fate in this matter. However, there is his underlying propensity to lean towards using illicit drugs and abuse alcohol. In my assessment of the evidence, the most significant health issue for him is the requirement that he remain constantly engaged with an OSTP therapy program that addresses his addiction to illicit opioid substances. I am of the view that the evidence contained within the IHMS records points to this issue being crucial to his welfare moving into the future.

22. The Applicant’s age is not an impediment to his return and re-settlement in the Philippines, however his predisposition to abuse illicit drugs most certainly is. This specific impediment causes this sub-paragraph 9.2(1)(a) in my view to be allocated a heavy level of weight to this Other Consideration (b) in favour of the Applicant.

23. Paragraph 9.2(1)(b): There is no reference within the evidence from the Applicant about any substantial language barriers which may exist upon his re-settlement in the Philippines. However, I do accept that the English language is his primary and only language. In the Philippines, both Filipino and English languages are used in government, education, print, broadcast media, and business, with third local languages often being used at the same time. Therefore, I am loath to accept that there would be any impediment in his re-settlement in the Philippines because of the languages. Therefore, I am satisfied (and so find) that he would not be impeded by any language upon a return to Philippines, however I do accept that he would be experience some impediment in respect to the culture in that country given the time he has been away from that country. This specific impediment causes this sub-paragraph 9.2(1)(b) in my view to be allocated a moderate level of weight to this Other Consideration (b) in favour of the Applicant.

24. Paragraph 9.2(1)(c): This paragraph looks at any social, medial and/or economic support available to the Applicant in the Philippines. Firstly, I am not satisfied that there would be any benefit in regard to the social support which the Applicant would have from family members in the Philippines. For 46 or more years, he has essentially been estranged from his family there, and the evidence does not support any hypothesis that he would be supported.

25. In terms of economic support available to the Applicant in the Philippines, he referred to himself in his evidence as a “jack of all trades”, and that being so, it is in my view not beyond the realm of possibility of him securing employment. His skillset within the workforce spans across a number of different areas. Notwithstanding those comments, I am also of the view that his generalised skill set within the work force will allow him to have very good prospects of employment within the Australian community, and I am mindful that his prospects of securing employment in Australia are significantly greater than his prospects in the Philippines where he is entirely devoid of any contacts or any other means of securing employment.  

26. In my view, these social, medical and economic support factors cumulatively cause this sub-paragraph 9.2(1)(c) to persuade me to allocate a strong weight to this Other Consideration (b) in favour of the Applicant.

    Findings about impediments

27. Given the respective weights I have allocated to the sub-paragraphs (a), (b) and (c) of paragraph 9.2(1) of the Direction, I am of the view that this Other Consideration (b) confers a heavy level of weight in favour of this Tribunal setting aside the Decision Under Review.

    Other Consideration (c): Impact on victims

28. Ordinarily in these applications, this Other Consideration (c) weighs either neutrally or against an Applicant. It weighs neutrally if there is no statement/ evidence from a victim in which that victim talks about how they would be impacted in the event this Tribunal made a favourable decision for the applicant whose visa was cancelled. It weighs against an applicant where there is statement/ evidence before the Tribunal from a victim saying how they would be adversely impacted by a decision of this Tribunal allowing the applicant to return back to the Australian community.

29. Here, we have the Applicant’s formed partner, Ms AB[78] who has provided a statement in which she talks about the Applicant’s parenting skills and how the Applicant is able to relate more appropriately as a father with their teenage son. She further explains that she needs the Applicant to be in Australia to assist with raising their children in a co-parenting environment. She also mentions that the Applicant provides emotional support to the children which is important in their lives.

    [78] R1, p 94.

30. There is authority for the proposition that the evidence of a victim who is supportive of an applicant remaining in Australia can be taken into account and can work in favour of an applicant. This was explained by His Honour Justice Kerr in PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235. When discussing two other relevant authorities, His Honour noted:

    ‘57 I am satisfied that nothing in CGX20 as has settled the construction to be given to cl 14.4[236] requires, contrary to that guidance, a victim to be heard only as to such impacts as weigh in favour of the cancellation of a visa. I reject that DKN20 requires it.

    58 It can be accepted that usually such impacts will weigh in favour of the cancellation of an offender’s visa.

    Usually, but not always.’ [237]

31. Considering Ms AB’s abovementioned written evidence and the authority of PGDX, I find that this Other Consideration (c) weighs strongly in the Applicant’s favour.

    Findings: Other Considerations

32. The allocation of weight to the Other Considerations in the present matter can be summarised as follows:

    ·legal consequences of the decision: is of neutral weight;

    ·extent of impediments if removed: is of heavy weight in favour of revocation;

    ·impact on victims: is of strong weight in favour of revocation ;

    ·impact on Australian business interests: is of neutral weight.

    CONCLUSION

33. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted (and found) previously in these reasons, the Applicant does not pass the character test.

34. In considering whether there is another reason to exercise the power afforded by s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s Visa, I have had regard to the considerations referred to in the Direction. I find as follows:

    ·Primary Consideration 1: carries a certain but not determinative level of weight in favour of affirming the Decision Under Review;

    ·Primary Consideration 2: carries a certain but not determinative level of weight in favour of affirming the Decision Under Review;

    ·Primary Consideration 3: is of a heavy weight in favour of setting aside the Decision Under Review;

    ·Primary Consideration 4: is of strong weight in favour of setting aside the Decision Under Review;

    ·Primary Consideration 5: carries a heavy weight in favour of affirming the Decision Under Review.

1. I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to Primary Considerations 3, 4 and Other Considerations (b) and (c) are sufficient to outweigh the combined weights I have allocated to Primary Considerations 1, 2 and 5.

2. A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding that there is another reason to revoke the mandatory cancellation of the Applicant’s Visa.

   DECISION

3. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made on 21 December 2023 by a delegate of the Respondent and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s Class BF Transitional (Permanent) visa.

I certify that the preceding 214 (two hundred and fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Wayne Pennell

.............[SGD]..........

Associate

Dated: 14 May 2024

Dates of hearing:	4 and 5 March 2024
Representation for the Applicant:	Self-represented litigant
Solicitor for the Respondent:	Ms Elle Tattersall (Special Counsel)
Minter Ellison Lawyers