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

[2021] AATA 73

WSRV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 73 (2 February 2021)

Division:GENERAL DIVISION

File Number(s):      2020/7528

Re:WSRV

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr Rob Reitano, Member

Date:2 February 2021

Place:Sydney

I set aside the delegate’s decision and substitute in its place a decision revoking the decision to cancel WSRV’s Class BB Subclass 155 Five Year Resident Return Visa.  

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

Mr Rob Reitano, Member

CATCHWORDS

MIGRATION – cancellation of Applicant’s Class BB Subclass 155 Five Year Resident Return Visa – Applicant is a citizen of the United Kingdom – failure of the character test – whether there is another reason to revoke the visa cancellation – Direction No. 79 – protection of the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties – extent of impediments if removed – decision under review set aside and substituted

LEGISLATION

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

Uniform Civil Procedure Rules 2005 (NSW)

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

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

SECONDARY MATERIALS

Direction no. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Mr Rob Reitano, Member

2 February 2021

1. In April 1982, when he was a little over two years of age, WSRV arrived in Australia from the United Kingdom with his mother, father, sister and brother. Other than for a four-week period during late 2000 and early 2001 when he visited the United Kingdom, he has lived in Australia. His mother, father, brother, sister, children and friends all live in Australia. As a result of his criminal offending, he faces nearly 40 years later, the prospect of being sent back to the United Kingdom where he has no immediate family and no friends, and where he will have no prospect of direct personal regular contact with his seven children. This case is about whether there is a reason why he should be permitted to remain in Australia.

   BACKGROUND

2. On 22 April 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) was required by s.501(3A) of the Migration Act 1958 (Cth) (Act) to cancel WSRV’s Class BB Subclass 155 Five Year Resident Return Visa (visa) because he failed the character test in s.501 as a result of him being sentenced to serve 16 months in prison and because he was serving that sentence at the time (visa cancellation decision).

3. On the same day, the delegate invited WSRV to make representations in accordance with the regulations made under the Act to the Minister about why the visa cancellation decision should be revoked. WSRV made representations in accordance with the regulations to the Minister. In so doing WSRV enlivened the power available to the Minister, and subsequently this Tribunal, under s.501CA(4) to revoke the visa cancellation decision if WSRV either passed the character test in the Act or there was ‘another reason’ to revoke the visa cancellation decision.

4. On 10 November 2020, after considering WSRV’s representations, a delegate of the Minister decided under s.501CA(4) not to revoke the visa cancellation decision because the delegate was not satisfied that WSRV passed the character test in the Act or that there was ‘another reason’ to revoke the visa cancellation decision.

5. The practical effect of the delegate’s decision is that WSRV will no longer be able to remain in Australia and will need to return to the United Kingdom.

6. On 17 November 2020, WSRV asked the Tribunal to review the delegate’s decision refusing to revoke the visa cancellation decision with a view to having it set aside and substituted with a decision revoking the visa cancellation decision which, self-evidently, would allow WSRV to remain in Australia.

7. I have decided to set aside the delegate’s decision refusing to revoke the visa cancellation decision and to substitute in its place a decision revoking the visa cancellation decision. I set out my reasons for that decision.

   ISSUE

8. The issue is whether the Tribunal is satisfied that there is ‘another reason’ to revoke the visa cancellation decision. This is because WSRV made representations to the Minister within the time and in the manner provided for by the regulations seeking revocation of the visa cancellation decision which, as I have already said, is the prerequisite to the exercise of the power to revoke that decision.[1]

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

9. The only other ground on which the visa cancellation decision could be revoked is under s.501CA(4)(a)(i) which requires that the Tribunal can be satisfied that WSRV passes the character test, but as WSRV conceded, he cannot satisfy the Tribunal of that because he has a ‘substantial criminal record’ having been sentenced to a term of imprisonment of 12 months or more.[2]

   [2] s.501(7).

   FACTS

10. WSRV came to Australia in April 1982 when he was only two years of age. He was accompanied by his mother, father and his older sister and brother. He, his parents and his siblings, have lived in Australia ever since.

11. WSRV completed his schooling up to School Certificate level at a school in suburban Newcastle. He played cricket and football at grade and intra state representative levels as a youth. He is a trained metal fabricator. He is also a ‘self-taught’ mechanic. He has worked as a painter in his father’s painting business and I apprehend it on his own account for many years. WSRV has not been in regular paid employment since about 2013, for most, of that time he has been in receipt of Centrelink benefits although he has done some occasional painting work.

12. WSRV commenced a relationship with his de facto partner, Ms T, in 2013. Ms T is an Australian citizen. WSRV stayed with Ms T a lot but ‘never actually lived with her with [his] stuff’. Even though he had a lot of arguments with Ms T, he considered that he remained close to her: ‘I’m her rock, she’s my rock’. He attributed his arguments with Ms T to his and her drug use. Ms T did not give evidence in the hearing. WSRV said she was currently in rehabilitation and had been for about five weeks. WSRV understood that she was in rehabilitation because it was a condition of her children being returned to her.

13. WSRV and Ms T are the parents of four children: JGM who is seven years old, AM who is four years old, JSM who is two years old and CM who is five months old. All of the children are Australian citizens. WSRV also has three children to a previous relationship: TM who is 18 years old, SM who is 17 years old and KM who is 13 years old. SM and KM live with their mother. They stayed with WSRV on weekends and during school holidays before he was sent to prison.

14. JGM is in the care of WSRV’s sister Ms Z because orders were made in 2015 that JGM be placed in her care until he is 18 years of age. CM also lives with WSRV’s sister. JGM spent time on weekends and at times throughout weekdays and school holidays with WSRV before WSRV was sent to prison. AM and JSM lived with WSRV, his mother and father, before he was sent to prison. WSRV’s parents have responsibility for AM and JSM as a result of orders that were made in 2019 placing them in their care until further order. They continued to live with his parents after WSRV was sent to prison. The children are said to have a close relationship with WSRV. WSRV said that the children were not in the care of either parent because of both parents’ use of methamphetamine.

15. Before his imprisonment WSRV regularly picked up KM and JSM from school. He used to take KM to sport most Saturdays. He would feed AM and change her nappy and undertake general parenting every day. Much the same applied to JSM so far as daily care was concerned. He has not met CM because she was born after he went to prison. He proposes to resume a role in his children’s lives as their father if he can stay in Australia. His objective is to be the primary carer for all his children although he appears to accept that cannot happen immediately upon his release into the community because of his history of substance abuse.

16. While in prison none of his children visited him. Whilst in immigration detention TM, AM, JSM and CM each visited him on one occasion shortly before Christmas. Nonetheless he has maintained contact with his children by telephone, speaking to them on the phone or by using social media at least ‘every other day’ since his imprisonment. This included speaking to CM.

17. WSRV says if he is required to leave Australia it would have a major impact on his children. He says that they would not have their father in their life because they would not be able to travel to the United Kingdom and he does not think his partners would agree to them visiting. I will deal with some other facts concerning the children later when I come to consider the matters that are relevant to their best interests.

18. WSRV’s brother, Mr M, and his sister, Ms Z are both married and live with their respective spouses. Both live with their families in the same suburb in Newcastle as their parents. WSRV has a close relationship with his sister.

19. WSRV has six other nieces and nephews who are the sons and daughters of his sister and brother: KD and MD, LM, EM, RM and BM. All of them live with their parents and other than LM and EM, are Australian citizens. WSRV is said to have a close relationship with KD. He saw all of his nieces and nephews before his imprisonment mainly at family gatherings and sporting events.

20. All of WSRV’s family live in Australia. In fact, all of them live in the same suburb in Newcastle. His only family in the United Kingdom are his maternal aunt, his paternal aunt and her husband and three cousins. He has only met those cousins once. He has no friends and knows nobody else in the United Kingdom.

21. WSRV has a record of criminal offending which started in early 2000 involving his possession of a prohibited drug. That offence and its circumstances appear reasonably unimportant given that it attracted a small fine of $250 and was at least temporally isolated from WSRV’s other offending.

22. Likewise, his next two offences in 2009 involved him driving with a low range prescribed concentration of alcohol and driving so that the wheels of his motor vehicle lost traction for which he received a 12 month bond and a $500 fine. All of those offences were very much at the low end of seriousness so far as criminal offending is concerned which was reflected in the sentences. They were, at least at the time, very much out of character because WSRV had only one earlier criminal offence.

23. WSRV’s more serious offending commenced in March 2013 when he was convicted for two offences involving breaching an apprehended violence order. The offences followed the breakdown of WSRV’s marriage. WSRV says that was about the time he started using drugs. WSRV attributes his drug use to hanging around the ‘wrong crowd’. Although at times he stopped taking drugs, he attributes starting to take them again to having or resuming relations with the ‘wrong crowd’.

24. In early March 2013, an interim apprehended violence order was made prohibiting WSRV going within 100 metres of his then wife’s house and from threatening or intimidating her. This was because of some offensive remarks WSRV had made outside his wife’s mother’s house. The circumstances of the offence broadly involved WSRV going to his wife’s mother’s house, which was where his wife was residing, sounding the horn on his motor bike, calling out from the front door for his wife and daughter by name and yelling for about five minutes. He left only to return five minutes later and made some further offensive comments about his wife’s mother. For the first offence he was convicted with no further penalty and for the second he was convicted and fined $500. A final apprehended violence order was made for a period of two years.

25. On 2 July 2013, WSRV was convicted of eight offences involving breaches of restrictions or prohibitions in an apprehended violence order, seven of which occurred in March 2013 and one on 24 May 2013. The offences committed on 24 May 2013 was committed whilst WSRV was on bail for one of the earlier offences. Those offences involved the sending of text messages to his wife, some of which were offensive and others of which were threatening. In one message he threatened to slit his wife’s companion’s throat. For all of the offences committed in March 2013, he received good behaviour bonds with supervision conditions of varying durations up to two years.

26. For the offences committed on 24 May 2013, he was sentenced to three months imprisonment, but that sentence was suspended. On the same day, WSRV was also convicted of a further offence committed on 24 May 2013 involving his use of a carriage service to menace, harass or offend by saying the words ‘I will not rest until you’re buried’ for which he received a sentence of 3 months imprisonment, but was released on entering into a recognisance to be of good behaviour in the amount of $1500. That offence occurred whilst he was on bail for the last of the March offences.

27. In August 2013, a further apprehended violence order was made against WSRV, but this time it was to protect Ms T. The order was made after an incident that involved an argument between WSRV and Ms T concerning Ms T’s proposal to travel to Queensland to collect a dog. WSRV left Ms T’s house with a saddle only to return a short time later to smash a window adjacent to the front door.

28. On 12 November 2013, WSRV was convicted and fined for two driving offences involving drinking whilst he was driving and operating a motor vehicle so that the wheels lost traction. He was fined $1000. It is important to bear in mind that WSRV was not convicted or penalised for any offence that involved being intoxicated whilst he was driving.

29. On 17 October 2014, another apprehended violence order was made following a disagreement between Ms T and WSRV concerning the child JGM. WSRV threatened Ms T and her mother. JGM was present and crying at the time. An apprehended violence order was made to protect Ms T, her mother and JGM.

30. On 10 June 2015, WSRV was dealt with for two offences of contravening a prohibition or restriction in an apprehended violence order in November and December 2014 and an offence of having a knife in a public place. He first contravened the apprehended violence order on the first occasion by having contact with Ms T and JGM. This was a result of Ms T and JGM visiting WSRV at his home so that JGM could spend some time with his father. An argument ensued about the two staying. The police were called, and WSRV was charged with an offence of contravening the apprehended violence order.

31. The second contravention occurred when WSRV entered a hotel where Ms T was staying with JGM and refusing to leave. WSRV took JCM away with him in the circumstances described below where I deal with the driving offences committed on the same day. He was placed on a good behaviour bond for 12 months for those offences. Not a great deal is known about the offence of possessing the knife beyond the fact that two knives were found in WSRV’s car following a police search of his car. He was placed on a good behaviour bond for six months for that offence.

32. On 10 June 2015, WSRV was also convicted of three driving offences: two of driving whilst his licence was suspended and one of driving recklessly or furiously or in a manner dangerous. The latter offence involved him driving at speed in excess of 110km per hour in a 90km per hour zone and merging into the left hand lane in front of Ms T’s car when he was only a short distance in front of her car. He was seen to be waving in and out. At the time JGM was in WSRV’s car. He was disqualified from driving and placed on a good behaviour bond for 12 months for the first two offences and was sentenced to undertake 50 hours of community service and disqualified from driving for the latter offences.

33. On 18 June 2015, WSRV was convicted of an offence of driving whilst suspended that occurred in May 2015, fined $800 and suspended from driving for 12 months.

34. On 15 October 2015, WSRV was dealt with in relation to another contravention of an apprehended violence order that occurred on 8 September 2015 when he was at Ms T’s house where he was prohibited from being. There was an argument about JGM although JGM was never in any danger of physical harm. WSRV was convicted and received a four month term of imprisonment which was suspended.

35. On 1 May 2018, WSRV was convicted and sentenced for two driving offences involving his driving a vehicle in a class for which he was not licenced and driving recklessly or furiously or in a manner dangerous. He was fined $400 for the former offence and received 150 hours community service and was disqualified from driving for 3 months for the latter offence.

36. On 18 December 2018, WSRV was convicted and sentenced to a 12 month conditional release order for the offence of common assault (domestic violence). The offence was committed on 24 August 2018. The circumstances of the offence involved an argument between WSRV and Ms T outside a grocery store. WSRV tried to remove Ms T’s rings. He grabbed her by her shirt and pushed her backwards. He followed her into a nearby barber shop and grabbed her by the shirt and pushed her into a counter. At the outset of the incident WSRV was holding one of his children but had eventually handed the child to someone standing nearby. An ambulance was called because the child was thought to have been injured but he was not. Ms T did not suffer any injuries.

37. On 13 March 2019 and 4 April 2019, WSRV was convicted and fined $400 and $500 for two offences of possessing a prohibited drug.

38. On 29 May 2019, an incident occurred whilst WSRV was living with his parents. Someone came to collect his daughter. WSRV’s mother told him about the person who had come to collect his daughter. A loud and aggressive argument ensued between WSRV and his mother. WSRV swore at his mother. WSRV pushed or bumped into, the evidence is not clear which it was, his mother as he tried to pass her. He threatened and challenged his father to a fight. He left. As he left, he kicked his mother’s car. The whole time WSRV was holding his son JSM. WSRV returned about 20 minutes later. The police were present. An apprehended violence order was made to protect WSRV’s parents.

39. On 6 October 2019, WSRV committed four offences: contravening a prohibition or restriction in an apprehended violence order, stalk and intimidate with intent to cause physical or mental harm, remaining in a building with intent to commit an indictable offence and possessing a prohibited drug. WSRV and Ms T had an arrangement in place because they had shared custody of the children. WSRV had sent some text messages to Ms T on 4 and 5 October 2019 asking if he could come to the house. On 5 October 2019, WSRV went to Ms T’s home, he was angry and yelled at Ms T. He tried to enter the house knocking on doors and windows, climbing to a first story window and removing a security screen. He eventually entered the house. He took the two children and left on foot. He was later found; the children were returned unharmed and WSRV arrested. He was in possession of a small amount of cannabis when he was arrested.

40. On 1 December 2019, WSRV committed another four offences: common assault, contravening a prohibition or restriction in an apprehended violence order, stalk and intimidate with intent to cause physical or mental harm and destroying or damaging property. The circumstances of those offences involved WSRV having an argument with his mother about his mother not wishing to care for his children until the following Monday. WSRV’s mother tried to have WSRV leave the house and ushered him out. WSRV reacted to this by pushing his mother who fell to the ground and injured her knee. Her knee became bruised and swollen. WSRV continued to level abuse at his mother and threatened that he would return to the house and burn it down. He collected his children and proceeded to leave. As he did, he kicked a panel in a window and it broke.

1. On 8 April 2020, he was convicted of all of the offences committed on 6 October 2019 and 1 December 2019. He pleaded guilty to all of those offences. He was sentenced to an aggregate sentence of 16 months imprisonment with a non-parole period of eight months. The offence of common assault was considered the most serious offence and for that WSRV received an indicative sentence of six months imprisonment. The indicative sentences for each of the other offences was three months imprisonment other than the possession of cannabis for which no penalty other than a conviction was imposed.

2. In the course of sentencing WSRV, the Magistrate expressed the view that WSRV’s prospect of rehabilitation were ‘reasonable’ but immediately after saying that said ‘yes, so his prospects of rehabilitation are not so glowing and are of some significant concern’ and that it was necessary to take that into account in sentencing. The Magistrate’s concerns about rehabilitation appear to have been aroused because of a sentencing assessment report that had been prepared and provided to the Court that recorded, amongst other things, that WSRV claimed to have used ‘ice and cannabis “all day every day” for an extensive period of time’. It also assessed WSRV as being of Medium-High risk of re-offending on the Level of Service Inventory-Revised (LSI-R). That report also assessed WSRV as suitable to undertake community service work.

3. WSRV gave evidence in the hearing, and I have no reason to doubt, that at the time he committed the offences in October and December 2019, he was ‘misusing drugs’ and that he and Ms T were methamphetamine users ‘for many years’. He says that since he commenced his term of imprisonment, he has not used any drugs and that it is his intention not to use drugs again in the future.

4. WSRV says he is ashamed of his offending, acknowledges he did the wrong thing and wants an opportunity to demonstrate that he has changed. WSRV says that going to prison was a ‘wakeup call’ for him. He says that whilst he had given up drugs for various periods in the past, he had not been in prison before and had not been prevented from seeing his children, which was now his motivation for now giving up drugs for good.

5. After he was imprisoned, WSRV has completed some courses associated with domestic violence. The course was seven-week course that required attendance one day a week for one hour. He had undertaken similar courses in 2014 and 2016. He believed that the third course he did was the one that he got more out of because he was not taking drugs.

6. If permitted to remain in Australia, WSRV expressed an intention to undertake drug and anger management counselling and to undertake parenting courses. He has booked into some courses that he will do if he is able to stay in Australia. He has lined up a job as a painter with a gentleman who he knew through his father’s painting business on his release. He did this by contacting him on a social media platform known as messenger.

7. WSRV proposed initially that if he is permitted to remain in Australia that he will live with his parents again although it became apparent during the course of the hearing that this would not be possible as a result of conditions that would be imposed by the Department of Community Services. This would preclude him from living with his sister which was another proposal that was put during the hearing. Ultimately it was suggested he would live with his daughter TM and her partner. In any event, it was common ground in the hearing that if WSRV were released into the community he would in all likelihood be looked after by members of his family so far as accommodation was concerned.

   THE EXPERT EVIDENCE

8. Mr N, a Forensic and Clinical Psychologist, prepared a psychological report about WSRV. Mr N was retained as an expert witness. Mr N in his report agreed to be bound by the ‘Expert Witness Code of Conduct’ which I understand to be a reference to Schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW) (Code). Mr N did not include in his report an acknowledgment in terms of that required by the Administrative Appeals Tribunal Guideline for Persons Giving Expert and Opinion Evidence (Guideline).

9. His agreement to be bound by the Code carried with it, at least by implication, his agreement not to be an advocate for a party and to assist the Tribunal impartially on matters relevant to his area of expertise in the same way as is contemplated by the Guideline. The Minister proceeded, correctly in my view, on the basis that the intention was despite the omission of the acknowledgment required by the Guideline or any reference to it, that Mr N’s evidence was offered as that of an impartial expert within the meaning of the Guideline. Having proceeded on that basis the Minister submitted that for various reasons dealt with below Mr N was in fact an advocate for WSRV and not an impartial expert.

10. Mr N has an impressive curriculum vitae having a Master of Psychology (Forensic) and a Master of Health Science (Drug & Alcohol). He is registered as a clinical and forensic psychologist. He has worked in a residential alcohol and drug rehabilitation centre for 30 years although not the whole time as a psychologist. He has worked in private practice for about 13 years.

11. Mr N expressed the opinion that overall WSRV’s risk of re-offending was low. He identified the main risk associated with WSRV as ‘his illicit drug addiction’. He identified his protective factors, that is the factors that would keep him away from use of illegal drugs and criminal offending, as ‘his dedication to his children, insight into his offending, good family support, and his fear of deportation, isolation and loss of his children’. Mr N expressed the opinion that WSRV’s prospects were enhanced because of WSRV’s expressed desire to undertake further future treatment under the supervision of Mr N which was at WSRV’s suggestion.

12. Mr N applied the Inventory of Offender Risk, Needs and Strengths (IORNS) which assisted him in his overall conclusion. Mr N considered that test more useful than the LSI-R because it did not simply use past behaviour as a predictor of future behaviour, but also looked at ‘protective strengths’ to predict risk of reoffending. It also contained what he described as inbuilt validity checks to detect invalid responses. No relevant responses suggested WSRV’s responses were invalid. Mr N said that ‘Overall, [WSRV]’s overall risk of recidivism was assessed as low’.

13. There are, as the Minister submitted, aspects of Mr N’s report that are problematic: he appears to have approached the issue as whether WSRV was ‘of good character despite his 16 month gaol sentence’; he prepared the report with haste given the short time frame that he had to prepare it and the sheer volume of material (which he frankly conceded he had not read in its entirety) and especially aspects of the detail of WSRV’s drug use and criminal offending; and that he got some of the facts wrong about various matters including whether WSRV was employed during the period of his offending and the views of the sentencing judge about WSRV’s prospects of rehabilitation. He also did not recognise Ms T as a problem for WSRV in dealing with his drug use. It was suggested that based on some of these matters Mr N became an advocate for one party, that is a person who was acting partially and for a one party despite their expertise,  rather than a person who was impartial and took on the role of impartially assisting the Tribunal because of their expertise.

14. I do not consider that Mr N placed himself in the position of an advocate for WSRV because of his failure to identify Ms T as a longer term problem for WSRV or by referring to only that part of the sentencing magistrate’s observations about rehabilitation that were favourable to WSRV. The first matter was a glaring omission when the whole of the material was considered, and the second was something that would only be detected by those familiar with criminal sentencing proceedings. Both probably had more to do with the fact that the report was something that needed to be prepared quickly because the hearing was looming.

15. I do consider that the matters identified by the Minister lead to a conclusion that Mr N’s evidence should be approached very carefully and critically. This is especially so given his frank concession that he had not read all of the material and because of some of his factual errors. This means, for example, his conclusions so far as they refer to psychological testing such as the use of the Hare Psychopathy Checklist; screening version questionnaire and the use of IORNS that are not affected by the omissions identified should be weighed in the balance as they deal with matters that are relevant to the likelihood of reoffending. His general conclusions about the association between WSRV’s criminal offending and his illicit drug addiction is another matter which is reasonably apparent without reference to the omissions identified. It seems very much to be a matter of common sense. There is other evidence that confirms that association. His observation that the criminal offending did not involve acts of depravity and wickedness to the extent that it is relevant to his expressed conclusions is correct having regard to the circumstances of the conduct involved.

16. His opinion about what he identifies as ‘protective factors’ against a resumption of illicit drug addiction which he identifies as dedication to his children, insight into his offending, good family support, and his fear of deportation, isolation and loss of his children, is generally not reliant upon what might be identified as the shortcomings of his report. Of course, WSRV’s insight into his offending is not entirely assessable without a proper understanding of the offending itself. And naturally enough a resumption of an association with his children’s mother, Ms T, needs to be factored into the equation. 

17. I also consider that Mr N’s assessment of the likely ‘psychological and physical hardship’ to WSRV should he be deported and the likelihood of him suffering Major Depression to be capable of assessment despite the identified shortcomings in his report. It is a conclusion that I do not consider is affected by the identified errors and omissions.

    IS THERE ANOTHER REASON FOR REVOCATION?

18. I am required, by s.499(2A) of the Act to comply with Direction no. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction) in considering whether ‘there is another reason why the original decision should be revoked’.

19. The Direction provides guidance in exercising the power under s.501CA of the Act. The Direction identifies principles that should be applied and relevant factors that must be considered in deciding whether there is another reason to revoke a decision cancelling a visa.

    The principles

20. The principles ‘inform’ a decision-maker about the matters that must be considered in determining whether the mandatory cancellation of a visa will be revoked.[3] It is useful to say some things generally about the principles in order to understand how they are relevant and are to be applied.

    [3] Cl.7(1).

21. The first of the principles records the sovereign right of Australia to determine whether non-citizens of ‘character concern’ are allowed to ‘remain in Australia’.[4] It records the fact that being in Australia is a privilege that is conferred in the expectation that non-citizens are ‘law abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community’. The principle is about the fact that it is Australia who decides who can be in Australia and that Australia permits people to be here on the express basis that they will abide with Australian law.

    [4] Cl.6.3(1).

22. The second principle refers to the expectation of the Australian community that ‘the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.’[5] This principle is reiterated later in the factors that must be considered, but it is important that it is the ‘expectation’ of the Australian community that is relevant. The expectation referred to in the principle is normatively established by the principle itself like one of the factors to be considered to which I will refer later.

    [5] Cl.6.3(2).

23. The third principle refers to ‘a non-citizen who has committed a serious crime of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to… forfeit the privilege of staying in, Australia.’[6] This is premised on a ‘general’ expectation or rule and not one that is either to be applied in every case, or more importantly, in specific circumstances. The word ‘generally’ probably refers to the character test found in the first limb of s.501CA(4)(b) because the product of failing the character test based on the commission of serious criminal offending produces that outcome. In any event, the word ‘generally’ suggests that in a given set of circumstances, the ‘general’ will, or might, give way to the specific.

    [6] Cl.6.3(3).

24. The fourth principle opens with the words ‘[i]n some circumstances’, indicating that there will be specific cases that attract its attention.[7] The ‘some circumstances’ are those where ‘criminal offending or other conduct… may be so serious, that any risk of similar conduct in the future is unacceptable’ and it is ‘[i]n these circumstances’ that ‘even other strong countervailing considerations may be insufficient to justify not cancelling… the visa.’ This principle leaves open two possibilities relevant to not cancelling a visa. The first is where criminal offending or other conduct is not so serious that ‘strong countervailing considerations’, or even countervailing considerations alone, might justify not cancelling a visa. The second is where ‘strong countervailing considerations’ may be, in any event, sufficient to justify not cancelling a visa.

    [7] Cl.6.3(4).

25. The fifth principle is that ‘Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age’.[8]

    [8] Cl.6.3(5).

26. So far as this principle is concerned, sight should not be lost of the fact that living in the Australian community for most of their life, or from a very young age, is not at all qualified by the words ‘participating in, and contributing to’ as applies in the case with those who have only been in Australia for a short time. Although not expressed to be the case, these are likely to be amongst the ‘countervailing considerations’ that are relevant to the fourth principle. It is also important that living in Australia for ‘most of their life’ or ‘from a very young age’ is not something that is to be regarded as an automatic exception to the general position of ‘low tolerance’; the word ‘may’ suggest that the issue is an open one presumably dependant on other principles, the relevant factors that must be considered and, naturally enough, the circumstances of the particular case. This principle as will be seen has particular relevance to the circumstances of this case.

27. The sixth principle refers to Australia’s ‘low tolerance of any criminal or other serious conduct’ such that those who hold a limited stay visa can have no expectation that they may remain here permanently.[9]

    [9] Cl.6.3(6).

28. The seventh principle, like the fifth, refers to the ‘length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa… cancellation for minor children and other immediate family members’ are considerations.[10] The use of the conjunction ‘and’ suggest that positive contribution is not relevant to the issue of consequences for minor children and family members so that, so far as consequences for minor children and family members are considered, time is immaterial. Again, these are likely to be among the countervailing considerations referred to in other principles. And like the fifth principle this principle has particular relevance in the circumstances of this case.

    [10] Cl.6.3(7).

    The primary and other considerations

29. The Direction requires that the principles inform the decision-maker’s consideration of the matters referred to in Part C.[11] Part C contains ‘primary considerations’ and ‘other considerations.’ Both types of considerations may weigh in favour of or against revocation of the mandatory cancellation of a visa.[12] Rationally, some of them in particular cases, might be entirely neutral or even irrelevant.

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

    [12] Cl.8(3).

30. Primary considerations should ‘generally be given greater weight than the other considerations.’[13] Again, the use of the word ‘generally’ suggests that there may be circumstances where that is not so. The inquiry is ‘whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.’[14] That raises a question about what ‘the circumstances that generally apply’ might be. That issue as to when special consideration should be given to a factor or other factors is reasonably obviously left to the good sense of the decision-maker in weighing the relevant matters.

    [13] Cl.8(4).

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

31. The ‘primary considerations’ are the protection of the Australian community from criminal or other serious conduct,[15] the best interests of minor children in Australia,[16] and the expectations of the Australian community.[17] The ‘other considerations’ include international non-refoulement obligations,[18] the strength, nature and duration of ties,[19] the impact on Australian business interests,[20] the impact on victims,[21] and the extent of impediments if a non-citizen is removed from Australia.[22]. The class of other considerations is not closed.

    [15] Cl.13.1.

    [16] Cl.13.2.

    [17] Cl.13.3.

    [18] Cl.14.1.

    [19] Cl.14.2.

    [20] Cl.14.3.

    [21] Cl.14.4.

    [22] Cl.14.5.

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

    Protection of the Australian community

33. I am directed to give consideration to ‘the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens’; that ‘remaining in Australia is a privilege that Australia confers on non-citizens’ in the expectation that they will obey the law, will respect Australia’s institutions and will not cause or threaten harm to individuals or the community.[23] Specifically, I must consider the nature and seriousness of the conduct and the risk to the Australian community should further offences or other serious conduct be engaged in.[24]

    [23] Cl.13.1(1).

    [24] Cl.13.1(2).

34. The matters relevant to this case are: ‘[t]he principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously’ (cl.13.1.1(1)(a)); ‘[t]he principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed’ (cl.13.1.1(1)(b)); ‘[t]he principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled)… are serious’ (cl.13.1.1(1)(c)); ‘the sentence imposed by the courts for a crime or crimes’ (cl.13.1.1(1)(d)); ‘[t]he frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness’ (cl.13.1.1(1)(e)) and ‘[t]he cumulative effect of repeated offending’ (cl.13.1.1(1)(f)). I have considered the other matters this part of the Direction and they do not appear relevant.

1. First, the offences against Ms T on 24 August 2018 and against WSRV’s mother on 1 December 2019 involved actual physical violence. I am required by clauses 13.1.1(1)(a) and 13.1.1(1)(b) to treat those offences as very serious. That those offences were very serious is confirmed by the fact that for the first of them, WSRV was sentenced to a 12 month conditional release order, a period of imprisonment that is served in the community, and for the second he received an indicative sentence of six months imprisonment although it was eventually included in an aggregate sentence of 16 months imprisonment.

2. Second, clauses 13.1.1(1)(a) and 13.1.1(1)(b) of the Direction are not restricted to physical violence so that threats of violence such as those made against his former partner in March and May 2013 should also be treated as very serious. A threat that ‘I will not rest until you are buried’ involves violence. It too is a very serious offence.

3. Third, the other offences for which WSRV was convicted are not as serious as the offences against Ms T and WSRV’s mother especially when regard is had to the sentences imposed. The use of sentences involving fines, good behaviour bonds, suspended terms of imprisonment and community service orders are indicative that many of WSRV’s other offences were not at the high end of seriousness. They are serious offences.

4. That is not to say that driving dangerously or disobeying the terms of apprehended violence orders, for example, are not serious offending: both are objectively serious. Driving dangerously attracts a maximum penalty of a fine of $3,300 and 12 months imprisonment and contravening an apprehended violence order attracts a maximum penalty of a $5,500 fine and two years’ imprisonment.

5. Fourth, the offending is more serious because of the cumulative effect having continued over about six years, albeit with a period of about two and a half years of no offences having been committed between September 2015 and March 2018. The repetition of the same offence of breaching apprehended violence orders demonstrates no regard for the authority of the law which is a serious matter.

6. Fifth, the nature of the offences increased in seriousness over the six years with two offences of actual physical violence in August 2018 and December2019.

7. I find the nature and seriousness of the conduct involved in WSRV’s criminal and other offending to be very serious.

8. Next, I must consider the risk to the Australian community should further offences or other serious conduct be engaged in. I am required to have regard to, ‘cumulatively’, ‘[t]he nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct’[25] and ‘[t]he likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending’.[26]

   [25] Cl.13.1.2(1)(a).

   [26] Cl.13.1.2(1)(b).

9. The harm should the offences be repeated involves several different aspects. First, there is the obvious harm to members of the Australian community occasioned by verbal abuse, threats of violence and actual physical violence.

10. One feature of WSRV’s criminal offending so far as it involved actual physical violence, the two offences involving assault, is that the harm to both women was not serious or permanent. There was, so it would seem, no lasting physical damage to his partner as a result of the altercation outside the grocery store and in the barber shop, and his mother suffered a bruised and swollen knee as a result of the second offence. So far as the verbal abuse and threats of violence are concerned, there was no evidence about a consequence to any particular person. There was evidence about two offences involving broken windows but it was no clear on the evidence that any harm could have been occasioned to anyone as a result of their being broken. It is reasonable to presume that such threats are capable of resulting in mental and emotional harm to those on the receiving end. The nature of the harm to individuals is serious, but certainly not at the high end of seriousness.

11. To the extent that many of the offences involved or occurred in the presence of WSRV’s children, there was no actual physical harm being inflicted upon them. There was certainly no premeditated or deliberate harm to them. It is difficult to assess any actual harm to them such as mental or emotional harm, but again it is fair to say the likelihood is they will have been adversely affected. The fact that each of them on the evidence continue to enjoy a relationship with WSRV at least to some extent suggests that have not suffered any significant harm by reason of his conduct to date.

12. So far as WSRV’s driving offences are concerned driving dangerously is a serious criminal offence because it places, in most cases, other drivers and pedestrians at risk of serious injury. That risk is manifest every day in the serious consequences often which involve death or serious injury. The Minister did not place ‘great reliance’ on the harm resulting from these offences probably because the evidence did not really allow for any assessment of the likely harm given what was known about the circumstances of the driving offences so far as the presence of other road users and pedestrians was concerned.

13. I consider having regard to the harm caused by WSRV’s offending to date, the likely harm to individuals and members of the Australian community should WSRV re-offend is likely to be much the same as that which has been caused in the past. That harm although serious is certainly not at the high end of seriousness. This moderates the weight to be given to the protection of the Australian community.

14. Next, I must consider the likelihood of WSRV engaging in further criminal or other serious offences or conduct. This is the most difficult aspect of this matter especially having regard to what I have already said about Mr N’s evidence. There are several factors that are relevant to the assessment to be made about the likelihood of WSRV reoffending.

15. First, the sentencing assessment report prepared in April 2020 placed WSRV’s likelihood of re-offending on the LSI-R at the Medium-High level. Mr N’s assessment applying the IORNS suggests that WSRV’s risk of re-offending was overall low. The different tests are indicators of likely re-offending, but they place the risk at different levels. It is not necessary to prefer one over the other, but it is relevant that the assessments are different as a result of the different matters that each consider relevant. As I understood Mr N’s evidence at the hearing, both tests have some validity. The matter, so it would seem is one upon which reasonable minds might disagree. One matter which slightly inclines me towards Mr N’s assessment is its recency and the fact that it was undertaken after WSRV had served his only significant term of imprisonment.

16. Second, it is fairly obvious that there is a strong correlation between WSRV’s substance abuse and his record of criminal offending. I do not put any significant weight upon WSRV’s reliance on his having been ‘drug free’ since he was imprisoned and placed in detention because it is simply not possible to determine how WSRV will fare in the unstructured environment in which he will enter as against the custodial environment from which he is to be released. The fact that he has been able to remain drug free whilst in prison and in immigration detention is not a bad starting point for assessing his likely resumption of his use of illegal drugs.

17. Third, WSRV’s stated desire to Mr N to seek treatment directed at rehabilitation is another indicator of a genuineness about engaging in rehabilitation. These matters need to be assessed against the failures that have accompanied his past engagement in courses and his failure to complete (or even start other courses). The impetus to undertake those courses may be different now given the stark reality he confronts as a result of time in prison and the prospect of being deported.

18. Fourth, WSRV’s determination to remain drug free also needs to be weighed against the prospect of WSRV continuing his association with Ms T if he is released into the community. That factor I accept is likely to pull in the direction of further offending because of her association with illicit substance use, but on balance and trying not to repeat what I have already said I think the familial support, the fact of his having served eight months in prison and the fact of his likely deportation should he re-offend is likely to be more significant. There is some prospect, although I know little about it, that Ms T will benefit from her current rehabilitation efforts. I weigh this as a factor that does, nonetheless, weigh in the direction that WSRV is likely to reoffend.

19. Fifth, it is true, as the Minister submitted, that WSRV had claimed to be ‘drug free’ before: in July 2013 when he told a sentencing magistrate he had stopped using cannabis, in June 2015 when he claimed to be ‘clean for 12 weeks’, in October 2015 when he claimed to have been ‘off the methamphetamine… for 6 weeks’ and in 2018 when he said on an Offender Intake Form that he ‘no longer had any problems with ice or cannabis and that he last used 3 years ago’. In my assessment, the last statement was obviously false and the first three even if true were not statements made in the context of prolonged abstinence over about 12 months that accompanied a custodial sentence of eight months with the prospect of deportation. The context of the statements made is important.

20. Sixth, there are the strong protective features that are associated with WSRV’s rehabilitation such as the support of his immediate family, his dedication to his children and the fear of deportation. In my assessment, especially having seen WSRV give his evidence, these factors weigh heavily on WSRV and he has a genuine understanding of the magnitude of the consequences should he reoffend. It is true that WSRV was warned time and time again over the years of his offending and about the risk to him of being imprisoned should he reoffend; he has only once been subject to a custodial sentence which was the result of his most recent offending. The fact of serving a lengthy custodial sentence is likely to have weighed on WSRV when compared to the judicial warning he received time and time again about that possibility.

21. Seventh, whilst on the one hand imprisonment is the sentence of final resort, sight should not be lost of at least one of its objectives: to specifically deter someone from re-offending. The sentencing magistrate naturally enough referred to that objective in his sentencing remarks when he sentenced WSRV in April 2020. To suggest that the fact of a period of eight months in prison would have no deterrent effect ignores one of the very important objects of criminal sentencing.

22. Eighth, there was an acceptance by the sentencing magistrate that WSRV was entitled to ‘the benefit of the doubt’ when it came to the question of contrition and remorse despite the opinion expressed in the sentencing assessment report to the contrary. Mr N expressed the view that WSRV was remorseful and contrite for his offending. I also had the benefit of seeing and hearing WSRV give his evidence. I accept that he is remorseful for his criminal offending. That factor is relevant to the likelihood that he will not reoffend.

23. One matter that was suggested that weighed against remorse and in favour of further offending was WSRV’s lack of awareness of his claimed non-compliance with conditions associated with some of his bonds. This was said to evidence his failure to engage in ‘meaningful intervention’. Again, even if I accept that evidence and there was only the material in the documents of which WSRV had no recollection, things have changed very much since then, most notably WSRV has spent eight months in prison and has faced the real prospect of, as he put it, ‘losing his children’. Those factors have not been present in the past.

24. Taking these matters into account, I incline to the view that WSRV’s likelihood of reoffending is somewhere below the medium range of likelihoods.

25. I consider the nature and seriousness of WSRV’s criminal and related offending to be very serious, that the consequences of his reoffending should he do so are unlikely to be at the high level of seriousness having regard to the consequences of his conduct and that there is low to medium likelihood that WSRV will reoffend. The protection of the Australian community weighs generally in favour of not revoking the decision to cancel WSRV’s visa but not heavily so.

    Best interests of minor children in Australia affected by the decision 

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

27. Again, like with clause 13.1.1(1), clause 13.2(4) requires that in considering the best interests of minor children I consider a list of matters. Those which are relevant here are: ‘[t]he nature and duration of the relationship between the child and the non-citizen’ noting that ‘[l]ess weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact’ (cl.13.2(4)(a)); ‘[t]he extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18…’ (cl.13.2(4)(b)); ‘[t]he impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child’ (cl.13.2(4)(c)); ‘[t]he likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways’ (cl.13.2(4)(d)); ‘[w]hether there are other persons who already fulfil a parental role in relation to the child’ (cl.13.2(4)(e)); and ‘[a]ny known views of the child (with those views being given due weight in accordance with the age and maturity of the child’ (cl.13.2(4)(f)).

28. I have reproduced these factors so that the observations I make can be understood in their context. The ones I have reproduced are the ones that could possibly have relevance here.

29. WSRV’s children are TM, SM, KM, JGM, AM, JSM and CM. TM is not relevant here because she is older than 18 years of age, but I will have something to say about her when I deal with other considerations concerning WSRV’s ties to Australia. In each case, the relationship is one of father and daughter or of father and son. The relationship is parental.

30. SM is 17 years of age. She lived with her father and her mother until she was about eight years of age. When her parents separated, she lived with her father for a few months, but then returned to live with her mother. She has remained in contact with her father, seeing and staying with him on weekends, during school holidays and other occasions. It is fair to say she has maintained regular and close contact with her father over a period of years.

31. KM is 13 years of age. She lives with her mother. She remains in contact with her father in much the same way as SM. She too is close to their father. WSRV would pick her up from school every day as he lived close by.

32. JGM is seven years of age. He lives with WSRV’s sister Z. He has lived with her at least since some time in 2015. Before WSRV was imprisoned, JGM visited him on weekends and sometimes during the week. WSRV also picked him from school each day. JGM was present during some of the domestic violence incidents between WSRV and Ms T, causing the magistrate in 2015 to comment about JGM’s exposure to that violence as ‘ruining this poor child’s life’. There is no evidence about the consequence for JGM of this conduct, but it is fair to say it is likely to have had some detrimental effect.

33. AM is four years of age. She is currently in the care of WSRV’s mother and father and subject to an interim children’s care order placing her in the care of the relevant Minister until further order. It is important to keep in mind that WSRV lived with his parents, and therefore AM in the years leading up to his imprisonment. He said in his evidence he was 90 per cent responsible for her care before he was imprisoned. She is close to her father and WSRV described her as always being a ‘daddy’s girl’. She constantly asks about when her father is coming home. WSRV has maintained contact with AM whilst in prison and immigration detention by telephoning her every day or at least ‘every other day’

34. JSM is two years of age and like AM lives with WSRV’s mother and father. His care arrangements appear to be the same as AM’s, that is WSRV was responsible for 90 per cent of his care before he was imprisoned. He has spent limited time with his father by reason of WSRV’s imprisonment in December 2019. WSRV has also maintained contact with JSM whilst in prison and immigration detention by telephoning him every day.

35. CM was born whilst WSRV was in prison. She currently lives with WSRV’s sister Ms Z.

36. WSRV has a close relationship with all of his children. The evidence supports the conclusion that all of the children have a close emotional bond with their father despite no doubt what they have been through. In the case of AM, WSRV’s relationship with her appears unsurprisingly a little stronger because of her age and because she lived with her father until December 2019. The younger children have many years of childhood in front of them. I consider it would be in their best interests to have their father in their lives in a personal way and on a daily basis.

37. SM and AM have in effect both expressed the view that they would like their father to remain in Australia. In the case of SM this was expressed in a letter she wrote. In the case of AM this is a result of the things that she has said to WSRV and his mother and father. The younger children have asked when their father is coming home and it is fair to treat that as expressing their desire that he play a part in their lives.

38. There is evidence that some of the children have been exposed to aspects of WSRV’s criminal offending such as being exposed to arguments between WSRV and Ms T, being present in the car when he was driving dangerously and when he broke windows at Ms T’s house and at his mother’s house. They have also been at the centre of his conduct where he has sought to take them away from Ms T at various times. There were some other instances where they were involved in aspects of his criminal offending.

39. There is no evidence of any actual harm to any of the children from any of the offences. There is a risk of harm but that of course depends very much on matters to do with WSRV remaining drug free and not offending again. I am able to conclude that the children’s involvement in some of WSRV’s offending could not have been good for them but beyond that I am unable to measure its detrimental effect on them.

40. The question as to whether WSRV will play a positive role in his children’s lives in the future is a vexed one. Like his likelihood of criminal reoffending, whether WSRV will play a positive parental role in the future relies upon a consideration of his likely continued substance abuse. I have already expressed the opinion that I consider the likelihood of criminal reoffending to be somewhere below the middle of the range of likelihoods. If he is able to deal with his substance abuse, I am confident he will play a positive part in his children’s lives.

41. Further, to focus too sharply on WSRV’s criminal offending and related conduct to which some of his children have been exposed is to ignore, or to be distracted from, the positive part that WSRV has played in all of his children’s lives to date. That part involved living with his older children up until 2013 when he separated from his then wife, to more recently spending time with them on weekends, school holidays and on other occasions, picking them up from school and the like. In the cases of AM and JSM, it has included significant time in caring for them each day before he went to prison. The evidence about his close emotional attachment to his children strengthens my view about the positive part he has played in his children’s lives and is likely to play in their lives if he is to remain in Australia. It is in his children’s best interests that he continues to play that role.

1. I accept that WSRV if removed to the United Kingdom may be able to maintain contact with his children by phone and social media. However, it goes without saying that would not involve the same quality of relationship that he has maintained to date. It would not be something that is in their best interests at least compared against having WSRV more actively involved in their lives on a day to day basis.

2. So far as SM and KM are concerned, their mother is capable of fulfilling a parental role and in the case of JGM and CM, WSRV’s sister and brother in law are capable of fulfilling a parental role. The question is more difficult in the case of AM and JSM given WSRV’s mother’s age and illness and his father’s age. The question of whether Ms T can fulfil that role is equally uncertain given her own substance abuse problem. In any event, the availability of people to fulfil a parental role for the children is but one consideration which I am directed to consider. I incline to the view, especially in the case of AM and JSM that there are probably not other people available who can occupy a parental role into the future.

3. WSRV is the uncle of six other children who as I have noted are the children of his brother and sister. There was not a great deal of evidence of the relationship he has with them but there was evidence that he sees them on family occasions and that the family is quite close. He has played a role in their lives especially so far as watching them participate in sporting events. He sees them mainly at family gatherings. Given that there was not much evidence about the effect on any of those children, I am unable to express an opinion about the likely effect on them of non-revocation or revocation although in the case of KD there was evidence that he was particularly close to WSRV.

4. In my view, the best interests of WSRV’s minor children weighs firmly in favour of revocation.

   Expectations of the Australian community

5. The third primary consideration is in clause 13.3 and it imputes to the Australian community the expectations that those who have permission to remain in Australia will obey Australian laws and that ‘[w]here a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the non-citizen should not hold a visa’.[27]

   [27] Cl.13.3(1).

6. I am not required to consider what or what not the Australian community expects because that is normatively expressed in the consideration itself. Rather, the inquiry is whether it is appropriate to give more or less weight to a deemed community expectation of non-revocation of mandatory cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[28]

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

7. This consideration generally carries weight in favour of non-revocation. I do not agree that in the circumstances of this case that this consideration weighs heavily in favour of non-revocation. This is because even though the criminal and other offending is to be regarded as very serious, the principles to which I have referred to earlier suggest that the Australian community’s expectations might be moderated in the circumstances of this case.

8. The fifth principle which I referred to earlier says that having ‘lived in the Australian community for most of their life, or from a very young age’ is a factor that means the Australian community may extend more tolerance to a non-citizen.

9. The seventh principle refers to the length of time a person has been making a positive contribution to the Australian community and the consequences for minor children and other immediate family members as being consideration relevant to visa cancellation. These principles in the circumstances of this case are factors that lead me to give ‘less weight to a deemed community expectation of visa refusal that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offence’.[29]

   [29] Ibid.

10. WSRV has been in Australia since he was two years of age. He is now 41 years of age. His offending, if that is relevant here, commenced when he was about 33 years of age when he had been in Australia for very many years. He has lived in Australia for most of his life and from a very young age. In those circumstances, the Australian community would afford more tolerance to his criminal offending such that the weight given to this consideration should be moderated.

11. Further, until sometime in 2013, WSRV made a positive contribution to the Australian community through work and participation in the community in various ways such as in his youthful sporting endeavours. He also made some positive contributions after then through work, like the painting job he did for his former solicitor even though he was not permanently employed after 2013. The consequences for his immediate family members being his mother, father, brother, and sister are dealt with later. They are also factors which lead to giving less weight to this consideration than it might otherwise be accorded.

12. These matters need to be weighed against the fact that in the six years before he was imprisoned, he committed a large number of offences, several of which considered alone were themselves very serious and all when considered together demonstrated very serious criminal offending. Against those factors is the fact that none of the offences resulted in serious actual physical or other harm. That too is a matter that operates to moderate the weight that should be given to this consideration.

13. In my view, this consideration should be accorded moderate weight because of the matters I have identified. The expectations of the Australian community weigh moderately in favour of not revoking the visa cancellation decision.

    Strength, nature and duration of ties

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

    [30] Cl.14.2.

    [31] Cl.14.2(1)(a)(i).

    [32] Cl.14.2(1)(a)(ii).

    [33] Cl.14.2(1)(b).

15. WSRV’s offending started after he had been in Australia for about 33 years. It cannot be said that his offending started ‘soon after’ he arrived in Australia. His contribution to the Australian community by way of paid employment and participation in the community must be considered a positive contribution to the community as should his sporting achievements in his youth, the role he played in contributing to the lives if his children and to others. Mr D, his former solicitor, for example, referred to WSRV as ‘a man who puts his hand up to assist anyone who asks’. This kind of statement was re-iterated by Mr H who had known WSRV for about 30 years. A number of references appeared in the evidence before the Tribunal, such as that which appeared in his daughter’s evidence that WSRV was the ‘go to person when something was broken and needed to be fixed’.

16. The Minister accepted that WSRV has significant ties to Australia, pointing to the fact that his mother, father, sister, brother, nieces and nephews, seven children and his brother and sister’s spouses all live in Australia. To that list may be added his former solicitor, Mr D, Mr A and Mr H who all have known WSRV for some considerable time. There are no doubt many other ties to the community that WSRV has built up over his 39 years in Australia, but the ones that were the subject of evidence are both long standing and close ones.

17. I do not consider that the existence of apprehended violence orders at various times protecting some of these people from WSRV detracts from the strength or nature of the bonds he has with them. In this regard, and by way of example only, WSRV’s mother gave evidence which I accept without reservation that she and her son are very close. Her evidence was to the effect that the police took out the apprehended violence order however she did not consider that she had been assaulted.

18. I accept that the nature of WSRV’s relationship with his partner, Ms T, is problematic so far as this consideration is concerned but that does not detract from the fact that he has, on his evidence, a close relationship with her. In any event, the familial and other social relationships which WSRV has, their nature strength and duration are significant without considering Ms T’s position.

19. Given the age at which WSRV came to Australia, how long he has been in Australia and the close personal ties he has with his family members and those who provided letters of support to him, I consider that this consideration weighs firmly in favour of revocation of the visa cancellation decision.

    The extent of impediments if removed

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

21. I do not consider that culturally and linguistically WSRV would face any impediments to adjusting to life in the United Kingdom should he be returned. I also consider that the kinds of social, economic and medical support available to him would be at least equal to that available in Australia. He will also have some, albeit limited, support from the aunts and cousins he has in the United Kingdom although it is to be kept in mind he does not know any of them very well and much will depend on arrangements that his mother and father make.

22. I consider that the range of skills that WSRV has would serve him well in obtaining gainful employment although the Minister quite correctly pointed out that he may need to obtain some further qualifications to advance his career there.

23. The more significant issue is whether or not WSRV would be equipped mentally and health wise to adjust to life in the United Kingdom especially given the likely sense of social isolation he will experience given that everyone he knows and has had relations with in the last 39 years will be removed from him. The aunts and cousins he has there are people he has had limited interactions with during his life.

24. There was also some evidence that he had been diagnosed with depression. WSRV has a history of self-harm. Mr N in his report expressed the opinion that if WSRV was to return to the United Kingdom ‘it is likely [he] would suffer a depth of loneliness and despair that would cause him to suffer Major Depression’. There was some evidence in a form generated by Justice Health & Forensic Mental Health Network prepared in April 2020 that said under the heading ‘Signs symptoms to look for in the inmate’, ‘nil significant health issues’. That form concerned WSRV’s condition at that time. Mr N’s evidence had regard to what might be the effect if WSRV were returned to the United Kingdom. The fact that WSRV has suffered depression and has a history of self-harm gives some credence to the prospect of what Mr N opined.

25. In view of these considerations, this factor weighs moderately in favour of revocation of the visa cancellation decision.

    Other ‘other considerations’

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

    CONCLUSION

27. The protection of the Australian community weighs in favour of the non-revocation of the visa cancellation decision, but the strength of this consideration is qualified by both the nature of the harm that will result from re-offending and the likelihood of repeat offending which I have assessed as being below the middle of the range. The best interests of minor children, WSRV’s own children, strongly weighs in favour of revoking the visa cancellation decision. Their best interests are served by permitting the father who they love to remain in their lives on a day to day basis. I consider that the expectations of the Australian community weigh moderately in favour of non-revocation in view of the long time that WSRV has been in Australia, the fact that he has been in Australia since he was two years of age, the fact that his offending did not start in any serious way until he had been in Australia for about 30 years contributing to the community and the lack of any very serious consequences as a result of his offending to date when balanced against the very serious nature of some of his criminal offending and the frequency of it. On balance, the primary considerations weigh only slightly in favour of revocation of the visa cancellation decision.

28. So far as the other considerations are concerned, the strength, nature and duration of the ties WSRV has to Australia weigh strongly in favour of revocation. The impediments confronting him upon return to United Kingdom weigh slightly in favour of revocation.

29. As the primary considerations when weighed with the other considerations weigh in favour of revocation of the visa cancellation decision, there is another reason why the discretion to undo the visa cancellation decision should be exercised.

30. I set aside the delegate’s decision and substitute in its place a decision revoking the cancellation of WSRV’s Class BB Subclass 155 Five Year Resident Return Visa.

I certify that the preceding 145 (one hundred and forty-five) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

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

Associate

Dated: 2 February 2021

Dates of hearing:	14 and 15 January 2021
Solicitors for the Applicant:	Mr T Mwilambwe, Armstrong Legal
Solicitors for the Respondent:	Mr J Hutton, Australian Government Solicitor