WZKB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 2659

WZKB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2659 (3 August 2020)
Division:GENERAL DIVISION
File Number: 2020/2997
Re:WZKB
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member C. J. Furnell
Date:3 August 2020
Place:Melbourne

The Tribunal affirms the decision under review.
....................[sgd]....................................................
Senior Member
Catchwords
MIGRATION – mandatory cancellation of Class BF Transitional (Permanent) visa – section 501 of the Migration Act – applicant does not pass character test – substantial criminal record - whether another reason to revoke mandatory cancellation – direction 79 – primary and other considerations - decision affirmed
Legislation
Migration Act 1958
Cases
DPP v Payne [2017] VCC 1342
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
FYBR v Minister for Home Affairs (2019) 374 ALR 601
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Mayes v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1036
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
Tuimalatu and Minister for Home Affairs (Migration) [2019] AATA 719
Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409
XRXL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 813
Secondary Materials
Convention Relating to the Status of Refugees, opened for signature 28 July 1951,189 UNTS 150 (entered into force 22 April 1954)
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member C. J. Furnell
3 August 2020

In this proceeding the issue before the Tribunal is whether a power conferred by the Migration Act 1958 (the Act) to revoke a decision to cancel WZKB’s Class BF Transitional (Permanent) visa ought to be exercised.
On 12 June 2018, WZKB’s visa was subject to mandatory cancellation[1] under s 501(3A) of the Act.
[1]
The cancellation was mandatory because a delegate of the Minister was satisfied that:
(a)WZKB did not pass the character test set out in s 501 of the Act because he had a substantial criminal record,[2] having been sentenced to a term of imprisonment of 12 months or more;[3] and
(b)WZKB was then serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of an Australian State.
[2] As defined in the Act, s 501(7).
[3] The Act, s 501(7)(c).
WZKB made representations about revocation of that visa cancellation decision in response to, and in accordance with, the requisite invitation to do so.[4]
[4] G6.
As a result, the Respondent would have had to revoke the decision to cancel WZKB’s visa if satisfied that he passed the character test (as defined by s 501 of the Act) or that there was another reason why the visa cancellation decision should be revoked.[5]
[5] The Act, s 501CA(4).
On 5 May 2020, however, a delegate of the Respondent decided not to do so.[6] WZKB has applied to the Tribunal for review of that decision.
[6] G2,10 - delegate’s letter, incorrectly dated 12 June 2018.
In conducting that review, the Tribunal performs the same function and exercises the same power as the primary decision-maker.[7] As such, in this proceeding, the task for the Tribunal is to decide whether it is satisfied that WZKB passes the relevant character test or that there is another reason why the visa cancellation decision should be revoked.[8]
[7] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [14][15][51]
[8] I note that, if I were to be so satisfied, the decision would have to be revoked. I would not have any residual discretion to nevertheless refuse revocation - Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38]; MHA v Buadromo [2018] FCAFC 151 at [21]
For the reasons which follow, I am not satisfied about either of those things.
MATERIAL BEFORE ME
In arriving at that state of non-satisfaction, I have had regard not only to the submissions made and evidence adduced at the hearing of this proceeding but also to documentary material lodged with the Tribunal prior to the hearing.
That documentary material comprised:
(a)a binder of documents (and a binder of supplementary documents) provided by the Respondent under s 501G of the Act (which I refer to as the “G” and “SG” documents, respectively);
(b)a letter of 18 September 2018 from a regional director of the Department of Education and Training;
(c)a letter of 6 March 2020 from Heinz and Partners, lawyers;
(d)a letter of 9 August 2019 from a Mr Wagland, a Salvation Army prison chaplain;
(e)a Department of Justice and Regulation work report of 10 February 2020;
(f)a Department of Justice and Regulation work report of 11 February 2020;
(g)an undated submission apparently made by WZKB;
(h)a letter of 29 June 2020 from WZKB;
(i)a letter of 14 July 2020 from WZKB;
(j)a statutory declaration made by WZKB on 17 July 2020;
(k)a Victoria Police Sub Incident Summary Report of 12 July 2014;
(l)a Victoria Police Sub Incident Summary Report of 10 August 2014; and
(m)a response from WZKB of 17 July 2020 in relation to family violence reports.
BACKGROUND FACTS
WZKB was born in 1958. He is a citizen of Greece. He first arrived in Australia in July 1981 when he was 23 years old. He returned to Greece for around four years in 1990.[9]
[9] G9-submission of 8/5/2019.
He has three children, two daughters in their late 20’s (born 1984 and 1982) from the same mother, and a son aged 15. While his daughters reside in Australia WZKB has had no contact with them for a number of years.
He had a relationship with the mother of his son (who I will refer to as Ms K) for around 12 years, commencing in 2004 and ending in March 2016. Their son was born in May 2005. WZKB has not had any contact with his son since May 2016.
At least one family violence intervention order (or analogous order) has been made against him in relation to each of the three women with whom WZKB has had a long-term relationship while living in Australia.[10] Around nine intervention orders were made in the course of his roughly 12 year relationship with Ms K.
[10] See SG27 concerning WZKB’s contravention in 1994 of an intervention order pertaining to his wife. An intervention order (or analogous order) was apparently obtained in Queensland in relation to another former partner of WZKB, known as “Deborah”.
WZKB has been in custody since 9 May 2016.
He is currently the subject of an intervention order which would, apparently, preclude him visiting his son on release into the community.
I turn now to WZKB’s history of offending.[11] On:
(a)4 July 1994 WZKB was convicted of two charges of breaching an intervention order relating to WZKB’s former wife and for which he was fined.[12]
(b)13 July 1994 he was convicted of a charge of breaching an intervention order (involving WZKB’s former partner) for which he was fined.[13]
(c)6 February 1998 he was convicted of a charge of obtaining financial advantage by deception and a charge of obtaining property by deception for which he was sentenced, in relation to each charge, to a term of imprisonment of one month, to be served concurrently and suspended. This conduct is said to have involved WZKB’s former partner[14] and him having written cheques on accounts he knew were closed.[15]
(d)11 November 2014 he was convicted of contravening a family violence final intervention order for which he was required to make a contribution to a court fund.[16] This conviction is said to have resulted from conduct in August 2014 involving WZKB abusing and pushing Ms K (albeit that an unlawful assault charge was withdrawn).[17]
(e)3 February 2015 WZKB appeared in court on a charge of contravening a family violence final intervention order and unlawful assault, a matter adjourned on a good behaviour bond without conviction. This appearance resulted from incidents which took place in July 2014 and which were said to involved WZKB grabbing Ms K and dragging her onto a bed.[18]
[11] G3, Criminal Intelligence Commission check status report of 25 March 2019.
[12] WZKB appears to submit that this occurred when he took presents to his daughters-G8-see SG5,67.
[13] G4,34-S1.
[14] G4, 34.
[15] SG26.
[16] SG3 -see also G3 and ST2,10 which indicates that WZKB was convicted on 11/11/14. Note the summary of his criminal history found in Judge Pullen’s sentencing remarks suggests WZKB was not then convicted.
[17] SG4,37.
[18] G4.
On 27 July 2017 WZKB was convicted of:
(a)Contravening a family violence intervention order for which he was sentenced to three months imprisonment (two to be served concurrently).
(b)Criminal damage for which he was sentenced to four months imprisonment (two to be served concurrently).
(c)Persistent contravention of family violence intervention order for which he was sentenced to four months imprisonment (two to be served concurrently).
(d)Recklessly causing injury for which he was sentenced to five months imprisonment (three to be served concurrently).
(e)Two charges of intentionally causing injury for which he was sentenced to 11 months imprisonment (six of which were to be cumulative on the sentence in respect of the aggravated burglary conviction).
(f)Aggravated burglary for which he was sentenced to four years imprisonment.
The circumstances of the offending addressed in WZKB’s July 2017 convictions are described in the sentencing remarks of Her Honour Judge Pullen.[19] Set out below are extracts from those remarks (with my emphasis and footnotes, and with references to “Chapman,” “Andy” and “Kent” being references to Ms K, WZKB’s son and a man known socially to both Ms K and WZKB, respectively).
[19] [2017] VCC 1342-G4.
9 On 16 March 2016, during the afternoon, you and Chapman argued. You punched her to the left-hand side of her body with a closed fist, causing her to fall to the ground (Charge 1). While Chapman was on the ground, you kicked her in the back. She left the premises, walked to the police station in Landsborough and reported your assault upon her. You were charged, and a Family Violence Notice was served on you, forcing you to leave the premises. On 23 March 2016, a full intervention order was taken out by Chapman, naming herself and Andy as the AFM’s. The order was for a period of twelve months and was served on you at 1.35pm that day.
…

11 On 7 May 2016, arrangements had been made between Chapman and yourself for Andy, to spend the weekend with you.
…
15 At approximately 9.00pm, Kent arrived at the address where Chapman was living, as he had concerns you would turn up and annoy her.
16 Approximately ten minutes later, Chapman saw headlights near the front of her premises. She knew it was you as she recognised the car.
…
21 You could not find Kent in the house, so got back in your car and left. A few minutes later you returned to the premises. When you returned, you pulled up in the back yard and Kent went over to you. Kent saw Andy behind you. You grabbed Kent and started throwing punches at him, one hitting Kent in the left eye.
…
23 You went back inside the house and up the stairs screaming at Chapman that she was ‘a dog, cunt and low-life slut’. At that time, Andy was with Chapman, still crying and screaming.
24 Chapman told you to get out. In response you punched her with your right fist to her left cheekbone. That stunned her and caused her to fall backwards, landing on a table. You grabbed her by the hair, forcing her neck and head backwards, then grabbed her arms and tried to put them behind her back, which caused her extreme pain (Charge 4).
25 You pulled the phone cables out of the wall, preventing Chapman from using the landline to contact police from the downstairs phone (Charge 5).
26 Chapman tried to leave the house, but when she tried to do so Andy pleaded for her not to go. Chapman left and headed out of the house towards the golf course where she hid behind a tree.
….
30 A full intervention order was in place at the time these offences.
…
34 On 9 May 2016 you were released from Ararat Hospital and conveyed to the Ballarat Police Station where a record of interview was conducted. In that interview, amongst other things, you said you followed Andy into the house, that Chapman was half naked and that she started punching you. You did not know why you broke the window or pulled it out, as you entered the house through the door. You had a confrontation with ‘Kent’ and you had started it. You said you punched Chapman and she dropped and got hurt, and you only did this after she hit you, and that had occurred outside. You no longer maintain your account of Chapman being half naked and starting the assault.
35 You told police you understood the terms of the Intervention Order and knew you had breached it by going to the property and into the house.[20] You did not think you said that you were going to kill ‘Kent’. You said it was Andy that went through the window and not you, and you said you pulled the cables of the phone out of the wall because the phone was playing up (neither now maintained).
…
37 On 16 May 2016, a VARE was conducted with Andy, who said you hit the front door of Chapman’s house, broke the window, got into the house, and that he had seen you fight with Kent.
38 Between 23 June and 4 August 2016 you sent letters[21] from Port Phillip Prison to Andy and one to M. Chapman/Andy Payne, care of Carol Treloar, in breach of the intervention order (Charge 6). Those letters in general terms were to your son and expressing your sorrow at not seeing him. None contained threats by you, however the sending of this correspondence repeatedly breached the Order.”
[20] I note that an agreement was in place at the time with Ms K which altered the intervention order but the agreement [at G13-21/4/16] did not permit WZKB to attend at the house.
[21] Apparently, five letters were sent - SG2.
WZKB now seeks to challenge facts on which Her Honour relied.
In his undated submission (much of which is repeated in his submission of 8 July 2020) WZKB says Judge Pullen’s handling of the case was shameful. He suggests he only pleaded guilty based on legal advice about the likely sentence, advice that proved to be incorrect. In his letter of 14 July 2020 WZKB claimed that Judge Pullen made significant errors and accepted as fact matters which had not been tested and for which there was no evidence. According to WZKB, at no time was there a proper examination of the facts, that factual findings made by Her Honour were as to matters not conceded by him and that many of them were denied. He says he is proposing to seek leave to “have the entire sentence set aside,” with material relating to that application said to have been filed with the Victorian Supreme Court shortly before the hearing of this proceeding.
WZKB had difficulty in identifying precisely the factual findings of Her Honour with which he disagreed. In the end, however, it seemed that he did not accept that:
(a)he had punched and kicked Ms K on 16 March 2016 but had, instead, pushed her;
(b)he had punched Ms K on 7 May 2016 or that he had grabbed her hair and arms so as to cause her extreme pain but had, instead, pushed her;
(c)he had sent letters in breach of a family violence intervention order;
(d)he had engaged in criminal damage by pulling telephone cables out of a wall;
(e)he knew “Kent” was in Ms K’s house when he approached it on 7 May 2016; and
(f)he had grabbed “Kent” and started throwing punches but, instead, was simply defending himself when he hit “Kent”.
As for Her Honour’s findings concerning:
(a)WZKB having punched and kicked Ms K on 16 March 2016, it underpinned WZKB’s conviction in relation to what was characterised in the sentencing decision as charge 1 (recklessly causing injury) and the resultant sentence of five months imprisonment;
(b)WZKB having punched Ms K on 7 May 2016 and having grabbed her hair and arms so as to cause her extreme pain, it underpinned WZKB’s conviction in relation to what was characterised in the sentencing decision as charge 4 (intentionally causing injury) and the resultant sentence of four months imprisonment;
(c)the sending of letters in breach of a family violence intervention order, it underpinned WZKB’s conviction in relation to what was characterised in the sentencing decision as charge 6 (persistent contravention of family violence intervention order) and the resultant sentence of four months imprisonment;
(d)the pulling of telephone cables out of a wall, it underpinned WZKB’s conviction in relation to what was characterised in the sentencing decision as charge 5 (criminal damage) and the resultant sentence of four months imprisonment; and
(e)the circumstances of WZKB’s altercation with “Kent” on the evening of 7 May 2016 (and the implicit rejection of any defence of self-defence), it underpinned WZKB’s conviction in relation to what was characterised in the sentencing decision as charge four (intentionally causing injury) and the resultant sentence of four months imprisonment.
I accept and adopt all of Her Honour’s findings in relation to these matters. They were all necessary to,[22] or at least an important part of the process leading up to,[23] one or more of the convictions and sentences arrived at by Her Honour. As such, I am not at liberty to go behind them by entertaining evidence by which WZKB might have sought to impugn Her Honour’s findings.[24] According to Colvin J in HZCP “…a person who makes representations to revoke the cancellation of a visa cannot advance a factual position that undermines the relevant convictions and sentences as ‘another reason’ why the original decision to cancel should be revoked.”[25]
[22] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 at [194].
[23] XRXL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 813 [17].
[24] HZCP at [79] per McKerracher J.
[25] HZCP at [195]
While it may be that the Tribunal is able to examine findings as to facts “surrounding, but not essential to, those necessarily supporting the conviction and sentence,”[26] it would only do so if the findings were as to facts of relevance to the questions in issue before it. Any finding concerning WZKB’s state of knowledge concerning “Kent’s” presence in Ms K’s house when WZKB approached it on 7 May 2016 is not such a finding.
[26] Mayes v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1036 at [79].
DOES WZKB PASS THE CHARACTER TEST?
I am not satisfied that WZKB passes the character test outlined in s 501 of the Act.
Under s 501 a person does not pass the character test if, amongst other things, the person has a substantial criminal record.[27] WZKB has such a record. He has been sentenced to a term of imprisonment of 12 months or more.[28]
[27] The Act, s 501(6)(a).
[28] The Act, s 501(7)(c).
In particular, and as I outlined earlier, on 27 July 2017 WZKB was sentenced to an aggregate term of imprisonment of five years and one month with respect to charges of aggravated burglary (person present), recklessly causing injury, intentionally causing injury (two charges), criminal damage, contravention of a family violence intervention order and persistent contravention of a family violence intervention order.[29]
[29] G4, 46.
ANOTHER REASON WHY CANCELLATION DECISION SHOULD BE REVOKED?

I am not satisfied that there is another reason why the decision to cancel WZKB’s visa should be revoked.
In arriving at that state of non-satisfaction I am required by s 499 of the Act to have complied with a written direction of the Respondent found in a document entitled “Direction No 79 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79).
Compliance with Direction 79 requires that I consider whether to revoke the visa cancellation decision “given the specific circumstances of the case.”[30]
[30] Direction 79, cl 6.1(3) and 13(1).
It also requires that I take certain considerations (where relevant)[31] into account, informed by certain principles.[32]
[31] Direction 79, cl 8(1).
[32] Direction 79, cl 7(1).
Those principles are:[33]
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
[33] Direction 79, cl 6.3.
These principles not only inform the process by which I take the relevant considerations into account, they also provide a framework within which I should approach the Tribunal’s task in this proceeding.[34]
[34] Direction 79, cl 6.2(3).
I turn now to the considerations which I am required by Direction 79 to take into account.
CONSIDERATIONS - OVERVIEW
The relevant considerations are those set out in Part C of Direction 79. Part C is divided into primary considerations and other considerations.
The primary considerations are protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia, and expectations of the Australian community.[35]
[35] Direction 79, cl 13(2).
The other considerations include (but are not limited to) international non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims, and extent of impediments if removed.[36]
[36] Direction 79, cl 14(1).
The primary considerations are generally to be given more weight than the other considerations[37] and one or more primary considerations may outweigh other primary considerations.[38]
PRIMARY CONSIDERATIONS
[37] Direction 79, cl 8(4).
[38] Direction 79, cl 8(5).
Protection of the Australian community
The protection of the Australian community from criminal or other serious conduct consideration is one that requires that regard be had to the Australian government’s commitment to the protection of the Australian community from harm as a result of such conduct by non-citizens.[39]
[39] Direction 79, cl 13.1(1).
Taking this primary consideration into account requires that regard also be had to two subsidiary considerations being, in the circumstances, the nature and seriousness of WZKB’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious conduct.[40]
[40] Direction 79, cl 13.1(2).
Nature and seriousness of conduct
WZKB’s offending has been serious. As Her Honour Judge Pullen said in her sentencing remarks with respect to WZKB’s offending in 2016, it was “most serious and disturbing.”[41]
[41] G4, 28.
Direction 79 requires that a number of factors be taken into account in considering the nature and seriousness of a person’s conduct. They include:
(a)“The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously.”
(i)In WZKB’s case, he has been convicted of crimes of a violent nature, at least two of which involved violence against Ms K (and I refer, in particular, to the recklessly causing injury and intentionally causing injury charges of which WZKB was convicted in July 2017).
(ii)Put shortly, his offences involved (or at least included) crimes of violence. As such, they are required by Direction 79 to be, and are, viewed very seriously.
(iii)As some of WZKB’s offences are very serious, two expectations arise under the second and third general principles that form part of the framework within which I should, under Direction 79, approach my task.
(iv)The first is of the Australian community and it is that the Australian government should cancel the visa of a non-citizen if the non-citizen commits serious crimes. The second is of non-citizens such as WZKB. It is that they should generally expect to forfeit the privilege of staying in Australia if they commit a serious crime of a violent nature, “particularly against women”.
(b)“The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.”
(i)Given that WZKB’s offending included crimes of a violent nature against Ms K, this principle reinforces both the requirement to regard those crimes as very serious (which I do) and application of the general expectations to which the commission of serious crimes gives rise.
(c)“The principle that 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, are serious.”
(i)It is not clear whether this principle is engaged in the circumstances. It may well be, however, given that Ms K was prone to epileptic fits and her condition was such as to apparently warrant the making of carer payments to WZKB for around 12 years.
(ii)Insofar as the principle is engaged it would simply, again, reinforce the requirement to treat WZKB’s offending as serious.
(d)“Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes.”
(i)In terms of this factor, the sentence imposed for a crime can provide objective guidance as to the seriousness of the conduct involved (such as might be the case where a conviction is not accompanied by a sentence of imprisonment or fine).[42]
[42] NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38 at [202]. The sentence imposed for a crime can provide objective guidance as to the seriousness of the conduct involved (such as might be the case where a conviction is not accompanied by a sentence of imprisonment or fine).
(ii)Here, the guidance provided by the sentences of imprisonment imposed on WZKB is to the effect that his offending was serious. This is because the imposition of any term of imprisonment reflects a view that the offence concerned was serious; “…[c]ustodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence(s)….”,[43] noting that sentences “…involving terms of imprisonment are the last resort in the sentencing hierarchy…”.[44]
[43] Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409 at [34].
[44] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
(e)“The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness.”
(i)While intermittent, WZKB’s offending has been sustained and repetitive.
(ii)As the Respondent contended, between 1994 and 2017, WZKB faced seven charges of having breached family violence intervention orders, six of which resulted in convictions.
(iii)Those convictions reveal at least three trends or patterns.
(iv)First, they reveal a preparedness by WZKB to accord to his concerns a pre-eminence over the concerns of his partners (or former partners), even where the latter concerns are legally protected.
(v)Second, contrary to the first general principle to which I referred earlier, they reveal a fundamental lack of respect for both Australia’s law enforcement framework and for commitments binding WZKB and imposed in the context of that framework.
(vi)That this is so is reflected in Her Honour Judge Pullen’s comment on WZKB’s conduct after the incident in March 2016. “Having committed the offence on 16 March 2016, and then being made subject to a Family Violence Intervention Order you, nevertheless, offended in the way before me, and arguably an escalation of the violence.”[45]
[45] G4, 42.
(vii)As for the third trend or pattern, while it does not arise from offending, it is nevertheless revealed by:
- at least one family violence intervention order (or analogous order) having been made against WZKB in relation to each of the three women with whom he has had a long-term relationship while living in Australia; and
- around nine intervention orders having been made in the course of WZKB’s roughly 12-year relationship with Ms K.
(viii)The trend or pattern so revealed is of relationships entered into by WZKB degenerating into conflict and volatility.[46]
[46] Ibid.
(f)“The cumulative effect of repeated offending.”
(i)While the Respondent contended that I needed to have regard to this factor, no specific submissions were made as to it by either party.
(ii)Nevertheless, I consider it likely that the aspect of WZKB’s offending which entailed repeated intervention order breaches reflected conduct likely to have been deleterious not only to Ms K but also to Ms K’s and WZKB’s son.
(iii)As for Ms K, “she has suffered considerably”.[47] I note that some seven months after the incidents in 2016 Ms K was complaining that her cheekbone was still painful, her sight and eating had been adversely affected, she was restless, she feared for her safety, was always on edge in public and suffered with anxiety, nerves and stress.
(iv)As for the son, according to Ms K, his behaviour had “become concerning in that he was rough with his school mates…had interrupted sleep, jitters and shakes.”[48]
(v)As at February 2020, Ms K was still keen not to have any contact with WZKB.[49]
(g)“Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending.” It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
(h)“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).” It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
(i)“Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act.” It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
[47] G4, 35.
[48] G4, 36.
[49] SG4, 59.
The risk to the Australian community
I turn now to the second matter to which consideration ought be given in the context of the protection of the Australian community consideration. As I mentioned earlier, this is the risk to the community should WZKB commit further offences or engage in other serious conduct.
In considering that risk I am required by Direction 79 to have regard, cumulatively, to the nature of harm to individuals or the Australian community should WZKB engage in such conduct and the likelihood of him doing so (taking into account available information and evidence on the risk of the non-citizen re-offending).[50]
[50] Direction 79, cl 13.1.2(1).
As to the nature of harm to individuals or the Australian community should WZKB commit further offences or engage in other serious conduct, I refer to the comments I made earlier in the context of considering the cumulative effect of his repeated offending. Further, if WZKB were to again engage in offending of the type engaged in by him in the past:
(a)individuals (particularly women with whom WZKB had entered into a relationship) might well become concerned as to their safety and greatly inconvenienced by steps taken to address those concerns (like Ms K has in having moved home apparently consequent upon the cessation of her relationship with WZKB).[51]
(b)The community might well be severely inconvenienced due to the need to devote extensive police and judicial resources in seeking to guard against offending of that type (and I refer to my comments later concerning various incidents involving WZKB and the police since 2005).
[51] G4, 36.
As to the likelihood of WZKB committing further offences or engaging in other serious conduct, on the material before me I not satisfied that it is likely but nor am I satisfied that it is unlikely. I am, however, satisfied that the risk of him re-offending is significant.
In this regard, I note the rather pessimistic assessment of WZKB’s rehabilitation prospects made by Pullen J in her 2017 sentencing remarks. Her Honour stated that:
[r]egarding your rehabilitation prospects, I have some concerns given your troubling criminal history for offending in the context of domestic relationships, as in your offending before me. The report of …[a psychologist] also raises concerns regarding your limited insight and rigid views. You are yet to address these matters.[52]
[52] G4, 45.
The patterns of offending which I described earlier degrade the prospects of rehabilitation and enhance WZKB’s risk of re-offending, as does WZKB’s lack of adequate insight. Lacking insight, he is unlikely to see a need to change his ways. This enhances the risk of repetition of past conduct, particularly conduct in which he has revealed a propensity to engage.
That WZKB lacks insight (or at least adequate insight) is evident from his denial of facts found by Her Honour Judge Pullen (as previously outlined) and in his suggestion that he had only pleaded guilty in 2017 to the offences with which he was then charged based on legal advice about the likely sentence.[53]
[53] For instance, see G1,7.
It is also evident from comments apparently made in the psychologist’s report considered by Her Honour. In that report it was noted that WZKB’s insight was limited and that he "had a tendency to gloss over or deny major issues.”[54]
[54] G4, 41.
While Her Honour accepted that WZKB appreciated that his actions were illegal and inappropriate, that appreciation did not seem (at least as at the time of the hearing of this proceeding) to give rise to an acceptance by WZKB of a significant degree of personal responsibility for his offending.
When asked to comment on that offending during the hearing, WZKB’s response generally descended into commentary on Ms K’s conduct, her troubled upbringing in foster homes, the removal of children from her care, her difficulties with alcohol and her consequent violent behaviour. According to WZKB, if he had slapped Ms K, it was only in an endeavour to stop her violence towards him. Hence, his contentions that he had been provoked by Ms K,[55] that most incidents had been sparked by Ms K’s violent and erratic behaviour[56] and that Ms K was the principal problem.
[55] See, for instance, G7.
[56] Submission of 14 July 2020.
WZKB’s tendency to gloss over issues might explain his otherwise delusional contention that there were “no incidents” for a period of nearly 20 years after his offence of gaining financial advantage by deception[57] (for which he was convicted in 1998). In this regard, WZKB’s history of offending does not do justice to his extensive interaction with police. For instance:
(a)in November 2016 a charge against WZKB of assault and contravening a family violence protection order was withdrawn or struck out.[58]
(b)in November 2015 a charge against WZKB of contravening a family violence protection order was withdrawn.[59]
(c)in June 2009 WZKB was reported to the police for conduct said to have involved dragging Ms K by the hair.[60] When this incident was put to him at the hearing of this proceeding, WZKB’s response was to deny its occurrence.
(d)in June 2008 WZKB was reported to the police for conduct said to have involved pushing Ms K to the ground.[61] When this incident was put to him at the hearing of this proceeding, WZKB’s response was to the effect that he could not recall the incident but that it could have occurred.
(e)in November 2007 WZKB was reported to the police for conduct said to have involved pushing Ms K into a wall.[62] When this incident was put to him at the hearing of this proceeding, WZKB’s response was to admit it, albeit in a context of general statements to the effect that he only engaged in violent conduct with Ms K when endeavouring to stop her hitting him.
(f)In January 2005 WZKB was reported to the police for conduct said to have involved twisting Ms K’s arm and slapping her.[63] When this incident was put to him at the hearing of this proceeding, WZKB’s response was that charges were dropped and he denied that he had then hit Ms K.
(g)In December 2004 WZKB was reported to the police for conduct said to have involved scuffling with Ms K.[64]
[57] Undated submission of WZKB.
[58] SG4, 24.
[59] SG4, 21.
[60] SG4, 46.
[61] SG4, 50.
[62] SG4, 52.
[63] SG4, 53.
[64] SG4, 54.
It is not necessary to accept that WZKB engaged in the conduct the subject of the foregoing charges and police reports for it nevertheless to be patently clear that his contention that there had been no incidents for almost 20 years is factually inaccurate.

WZKB contends that there is no risk of him re-offending as he is no longer in a relationship with Ms K.[65] This contention reflects a failure to acknowledge:
(a)That the difficulties WZKB has had have not been confined to Ms K. An intervention order has been made in relation to each woman with whom he has had a long-term relationship. As I said earlier, relationships entered into by WZKB would appear to have a tendency to degenerate into conflict.
(b)The fact that WZKB clearly wishes to maintain some relationship with Ms K, albeit if only to facilitate him obtaining access to his son (despite the currently subsisting intervention order) and to recover the debt which he alleges she owes to him (and in respect of which he has, apparently, instituted proceedings in the Queensland Civil and Administrative Tribunal). Indeed, I note that WZKB was said to have tried to contact Ms K on the day that an earlier intervention order expired in September 2019.[66]
[65] G7.
[66] SG4, 59.
In coming to the view that the risk of WZKB re-offending is significant, I have taken into account the potential for amelioration of that risk by WZKB having:
(a)Apparently reconnected with his Christian faith.[67] Indeed, in a letter of 9 August 2019 the Salvation Army chaplain for both the Loddon and Middleton prisons expressed his support for WZKB’s application in these proceedings. I note, however, that, apart from expressing that support, the chaplain made no comment about WZKB’s risk of re-offending. All that was said is that WZKB has a positive outlook and it would be good for him to be given an opportunity to assimilate back into the community.
(b)Engaged in certain behavioural change programs while incarcerated.[68] In this regard, I note his participation and completion of programs said by WZKB to be of relevance in mitigating the risk of domestic violence, comprising a two hour managing loss program apparently conducted on 2 June 2017, a six week “change on the inside” program completed on 23 March 2018, a “talking change” program apparently conducted on 25 February 2019 and a “change about” program apparently conducted on 7 May 2019. (As to the latter two programs, WZKB contended that they were each of three months duration. This is, however, difficult to reconcile with the documentary material before the Tribunal which indicates that they each were conducted on a single day.)[69]
[67] Undated submission of WZKB.
[68] I note that the potential for prison programs to improve WZKB’s prospects of rehabilitation risk was identified by Judge Pullen at G4, 45.
[69] G14, 95-96.
WZKB has engaged in a number of other programs while incarcerated but these appear designed to enhance employment prospects rather than dealing more directly with offending conduct. I accept, however, that a person fully engaged in employment may well be less likely to offend than a person not so engaged.
In this regard, in:
(a)2016 he achieved competency in two modules of a Kangan Institute Certificate III in micro business operations program;
(b)2016 he achieved competency in two modules of a Kangan Institute Certificate II in cleaning operations program;
(c)2016 he achieved competency in a module of a Kangan Institute Certificate II in construction pathways program;
(d)2017 he achieved competency in a module of a Kangan Institute Certificate I in general education for adults program;
(e)2017 he achieved competency in a module of a Kangan Institute Certificate III in kitchen operations program;
(f)2017 he achieved competency in six modules of a Kangan Institute Certificate III in micro business operations program; and
(g)2017 he completed a blood spill training session.
Despite his participation in these courses I am doubtful about the prospects of WZKB engaging in full time employment when released into the community. WZKB submits that he is “recognised” as law-abiding and hard-working; that he has been a hard-working citizen and that he has “worked consistently during my time in Australia”.[70] In fact, WZKB has not engaged in paid employment since 2004. His evidence was that as soon as he started living with Ms K he ceased work and, instead, took on the role as her carer, receiving carer payments from the Commonwealth.[71]
[70] Statutory declaration of WZKB.
[71] I note in SG4, 54 it is said that as at December 2004 WZKB was on unemployment benefits.
WZKB contends that he has good experience in floor installation and has contacts that would enable him to take advantage of that experience, as a sub-contractor. No evidence of contacts that would be prepared to engage WZKB upon his release into the community was before the Tribunal. Indeed, WZKB accepted that his contacts were gained when he worked in Victoria more than 20 years ago.
WZKB contended that, if he was removed to Greece, his prospects of obtaining work there were limited because he is now aged 62. Insofar as his age is an impediment to gaining work in Greece it is not clear why it would not equally be such an impediment in Australia.
Conclusion
I have found that WZKB has committed serious crimes and that his offending has been repetitive, sustained and indicative of a lack of respect for Australia’s’ law enforcement framework and a disregard of commitments binding him and imposed in the context of that framework.
I have also found that there is a significant risk of his re-offending.
The result of this is that the protection of the Australian community consideration weighs heavily against me being satisfied that there is another reason to revoke the decision to cancel WZKB’s visa.
The best interests of minor children in Australia
The second primary consideration which I am required by Direction 79 to take into account is the best interests of minor children in Australia. I am required to determine in relation to each relevant child whether revocation of the visa cancellation decision is in his or her best interests.
In this proceeding, the only child whose best interests the Tribunal was being asked to take into account is WZKB’s and Ms K’s son (currently aged 15), who I will refer to as “Andy”.
In taking his best interests into account Direction 79 requires that certain factors be considered, where relevant. They are:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact).
(i)I accept that, for around the first 10 years of Andy’s life, he had a close relationship with WZKB. WZKB was not then in paid employment and, I infer, was able to (and did) spend significant time with Andy. For instance, given that Ms K did not drive, it would appear that it was WZKB who dropped Andy off to, and picked Andy up from, primary school (as reflected in an access agreement of 21 April 2016).[72]
[72] G13.
(ii)As WZKB might be said to have implicitly acknowledged in saying (as he did)[73] that he and Andy “were close”, this is in the past. As he accepted at the hearing of this proceeding, WZKB has not seen or had any contact with Andy since May 2016.
[73] G7.
(iii)Given this lack of recent contact, I reject WZKB’s submission that he “has maintained a close relationship with his son whilst incarcerated.”[74] It may well be that WZKB does not currently have any relationship with Andy, let alone a close or parental relationship.
[74]Undated submission of WZKB.
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements.
(i)As things stand, WZKB is unlikely to play a parental role in the next three years of Andy’s life (given that he is 15).
(ii)Given his intention not to live with Andy on his release into the community[75] I infer that WZKB accepts that Ms K will remain as his son’s primary carer.
[75] G7, 61.
(iii)Moreover, according to WZKB, he is precluded from contacting Andy under a subsisting intervention order. WZKB expressed confidence in his ability promptly to procure a change to the order so as to facilitate his access to Andy. I note, however, that at least as at February this year, Ms K’s attitude to WZKB appeared to be such as to make it unlikely that she would be supportive of any changes to the order.[76]
[76] SG4, 59.
(iv)WZKB contends that a role he is needed to play entails him acting as a buffer, protecting Andy from Ms K’s more erratic, dangerous, irresponsible and destructive behaviours. He says that he stayed with Ms K in order to protect Andy. While incarcerated, he has corresponded with government agencies in an effort to have them investigate Ms K’s treatment of Andy.
(v)Apart from bald assertions, WZKB has not made any material available on the basis of which I could be satisfied of there being a need for someone to protect Andy from Ms K, let alone that someone being WZKB.
(vi)The likelihood of WZKB playing a positive role depends, in part, on whether he re-offends. If he were to be released into the community and then re-offend, I see it as unlikely that he would play such a role. In this regard, I note my earlier finding that there is a significant risk of WZKB re-offending.
(vii)While WZKB is content to raise a concern about the need to protect Andy from Ms K’s conduct he says little about the effect his own conduct has had on Andy. I address this more fully later. I do note, however, that, at least on the night of 7 May 2016 when WZKB took Andy to Ms K’s house in breach of an intervention order and engaged in violence in Andy’s presence, WZKB was apparently content to sublimate Andy’s interests to WZKB’s own concerns. As was said or noted in Her Honour Judge Pullen’s sentencing remarks, WZKB was then oblivious to the needs and welfare of Andy which showed a lack of compassion towards him.
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child.
(i)Insofar as it relates to prior conduct, I seek to address this issue later in response to the issue raised by paragraph (h).
(ii)As for the impact of WZKB’s likely future conduct, it depends very much on whether he is released into the community, re-establishes meaningful contact with Andy and then re-offends. If all three of these conditions are met, the impact on Andy would be negative.
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways.
(i)I accept that, as a general proposition, separating a child from his or her parent (by, for example, having the parent removed from Australia) may well adversely affect the child especially where, as here, the child had a close and seemingly loving relationship with the parent.
(ii)There are, however, two qualifications to the application of that general proposition in the circumstances insofar as the issue now under consideration is directed to separation resulting from a non-citizen’s removal from Australia.
(iii)First, given the total absence of any contact with Andy for at least four years, WZKB’s removal from Australia and the consequent reinforcement of Andy’s current separation from WZKB is unlikely to affect the status quo, from Andy’s perspective.
(iv)Second, if, rather than the status quo, the comparison was made between the situation that would obtain were WZKB released into the community and that which would obtain were he to be removed from Australia, there would appear to be no material difference, at least in terms of WZKB’s separation from Andy. Even if WZKB were now to be released into the community he would be separated from Andy. As I mentioned earlier, apparently WZKB is precluded from approaching Andy under a subsisting intervention order. Ms K may well not be supportive of any changes to the order given the attitude she expressed earlier this year[77](albeit recognising that her support may not be necessary to procure a change and that WZKBmay be able to otherwise procure access rights).
[77] SG4, 59.
(e)Whether there are other persons who already fulfil a parental role in relation to the child.
(i)Little is known about Andy’s current circumstances other than that he lives with his mother, Ms K, who WZKB suggested at the hearing of this proceeding had re-partnered.
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
(i)The gist of WZKB’s submission in this regard was that Andy wants to re-establish his relationship withWZKB. According to WZKB, Andy is continually asking when he can see his father again.[78]
[78] Statutory declaration of WZKB.
(ii)While I do not reject this submission, I do not attribute significant weight to it. Andy neither gave evidence nor lodged any material with the Tribunal. WZKB has had no contact with Andy for over four years. It would seem that WZKB bases his submission on what a friend or friends of his have told him. The Tribunal had nothing before it from any such friend.
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect
(i)There is no evidence of this before me.
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
(i)As I stated earlier, according to Ms K, Andy’s behaviour had “become concerning in that he was rough with his school mates…had interrupted sleep, jitters and shakes.”[79]
(ii)As the issue of Andy’s behaviour was raised by Judge Pullen in Her Honour’s 2017 sentencing remarks in the context of discussing the impact on victims of WZKB’s offending, I infer that what was being said was that Andy’s behavioural difficulties arose as a result of WZKB’s conduct and its consequences.
(iii)I note that WZKB also suggests that there have been issues with Andy’s behaviour and appears to attribute them to Andy being separated from his father.[80]
(iv)As I see it, both Andy’s parents appear to be contending that Andy has experienced difficulties as a result of WZKB’s conduct. Ms K is more direct in doing so. Albeit seemingly unwittingly, WZKB indirectly does so given that Andy’s separation from WZKB is a consequence of WZKB’s conduct.
[79] G4, 36.
[80] G9.
Conclusion
Overall, my determination is that revocation of the visa cancellation decision made in relation to WZKB is in Andy’s best interests.
Accordingly, the consideration concerning the best interests of minor children in Australia weighs in favour of me being satisfied that there is another reason to revoke the decision to cancel WZKB’s visa. The weight I attribute to this consideration is, however, not significant.
Little is known about Andy’s current circumstances or the behavioural issues to which both his parents refer.
Considered only in the context of the status quo, there would appear to be little, if any, adverse effect on him were the visa cancellation decision not revoked. The adverse effect which I have determined to exist, however, is one that essentially arises only when assessed against the circumstances likely to obtain were WZKB to be released into the community and then only if he manages to obtain changes to the currently subsisting intervention order (or otherwise obtains access rights) and does not re-offend. Andy’s interests are better served by a decision that does not operate as a bar to those circumstances occurring.
Expectations of the Australian community
The third primary consideration which I am required by Direction 79 to take into account is “expectations of the Australian community”.
In Direction 79 it is said that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of the non-citizen.
Essentially, and having regard (in particular) to what are said to be community expectations in certain of the framework principles to which I previously referred, this reflects “a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused.”[81]
[81] FYBR v Minister for Home Affairs (2019) 374 ALR 601 (FYBR) at [75]. See also at [96] where it is suggested that the expectation is consistent with the framework principle that the “Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere”.
In the result:
…community expectations are simply, and informally, expressed as follows: ‘If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.… It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be. That is why the decision-maker must assess what is “appropriate” in the particular circumstances.[82]
[82] FYBR at [101]-[102].
Direction 79 does not leave determination of the community’s expectations up to the idiosyncratic tastes of the relevant decision-maker. The enquiry which this consideration engenders does not concern what the Australian community expects in fact but, rather, concerns what the government deems the community’s expectations to be. The content of the deemed expectation is to be discerned by construing the relevant clause of Direction 79 (cl 13.3) itself.[83]
[83] FYBR at [68].
As WZKB has engaged in what is regarded in Direction 79 as serious criminal offending, the expectation which the Australian community is deemed to have in the circumstances is that the decision to cancel his visa not be revoked. Hence, this consideration weighs against me being satisfied that there is another reason to revoke the decision to cancel WZKB’s visa.
As recognised in FYBR however, the weight to be attached to this consideration may vary, depending on what is appropriate in the circumstances. As such, that weight might be said to “undulate significantly according to the context of the non-citizen’s offending and the broader landscape of the non-citizen’s general conduct in Australia.”[84]
[84] Tuimalatu and Minister for Home Affairs (Migration) [2019] AATA 719 at [108].
Here, WZKB’s serious criminal offending has occurred in a context where he has caused harm to individuals, engaged in conduct that necessitated the use of significant police and judicial resources and shown a lack of respect for Australia’s law enforcement framework and a disregard of commitments binding him and imposed in the context of that framework.

Offset against this is the fact that WZKB has lived most of his life in Australia, suggestive of the community having a higher level of tolerance for his criminal conduct than if he had been living in Australia for a relatively short period of time.
Conclusion
The consideration concerning the expectations of the Australian community weighs against a finding that there is another reason to revoke the decision to cancel WZKB’s visa and, in the circumstances and despite the offsetting effect of his long term presence in Australia, it does so to a significant extent.
OTHER CONSIDERATIONS
The considerations which I am required by Direction 79 to take into account are, as mentioned earlier, divided into primary and other considerations.
Having addressed the primary considerations I turn now to the other considerations which, paraphrased, entail a consideration of Australia’s international non-refoulement obligations; the strength, nature and duration of WZKB’s ties to Australia; the impact of non-revocation of WZKB’s visa on Australian business interests; the impact of non-revocation of WZKB’s visa on victims and the extent of impediments if WZKB is removed from Australia.
International non-refoulement obligations
While WZKB does submit that he would face various impediments were he to return to Greece, he has expressed no concerns or fears about what would happen to him were he to do so of a type that would engage non-refoulement obligations. For example, it is not contended that he would face on return to Greece any risk for a “convention reason” (reasons of race, religion, nationality, membership of a particular social group or political opinion).[85]
[85] Article 1A(2) of the Convention relating to the Status of Refugees.
As such, this consideration does not weigh in favour of a conclusion that there is another reason to revoke the decision to cancel WZKB’s visa.
Strength, nature and duration of ties
In the context of this consideration Direction 79 requires that regard be had to two further considerations. Firstly:
a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community
WZKB did not immigrate to Australia until he was 23 years old.
Given his return to Greece for around four years in 1990, he had spent roughly nine years in Australia before being convicted of his first offence.
While he did not expressly direct himself to this consideration, as I mentioned earlier, WZKB submits that he is “recognised” as law-abiding and hard-working; that he has been a hard-working citizen and that he has “worked consistently during my time in Australia”.[86]
[86] Statutory declaration of WZKB.
As I see it, WZKB has not made a positive contribution while imprisoned over the last four years. It might also be the case that he has not made a positive contribution since 2004 when Ms K became his partner. After that time WZKB ceased paid employment and became a carer for Ms K.[87] A positive contribution is made by carers. In WZKB’s case, however, the positive contribution he so made needs to be weighed against his offending and the intensive use of police and judicial resources attracted by his conduct since 2004.
[87] I note in SG4,54 it is said that as at December 2004 WZKB was on unemployment benefits.
Secondly, the Direction requires that regard be had to:
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
WZKB’s family and social links in Australia do not appear to be significant, apart from his link to Andy (with whom he has had no contact since May 2016).
Conspicuous by its absence is material from family and friends supportive of WZKB’s application.
WZKB has, apparently, been distant from his two adult daughters (both of whom live in Victoria) since 2004.
As I have mentioned, intervention orders have been made with respect to each of his three long term partners in Australia.
WZKB contends that he has good friends in Australia that have supported him “all the way.”[88] WZKB also contends that he has offers of support from friends. There is nothing in the material before me, however, that reflects any such offers. Moreover, I note that no friend has visited WZKB in prison over the last four years.[89] WZKB’s response to this is that he speaks to his good friend Darren on the telephone, Darren being reluctant to visit the prison as he is subject to a community corrections order.
[88] G9.
[89] SG6, 73.
WZKB contends that he is a churchgoer but there is nothing before me suggestive of any link between him and any particular church, let alone any strong link.
WZKB contends that he worked at a football club but, again, there is nothing before me suggestive of any link between him and any particular club, let alone any strong link.
As for the effect of non-revocation of the decision to cancel WZKB’s visa on his immediate family in Australia, I have canvassed that issue in terms of his son earlier.
As for his daughters and former partners, there is nothing before me suggestive of the effect on them being negative.
Overall, I conclude that the strength, nature and duration of WZKB’s ties to Australia weigh in favour of a conclusion that there is another reason to revoke the decision to cancel his visa but do not do so to any great extent, particularly given the absence of any established strong family or social links to Australia.
Impact on Australian business interests
Direction 79 requires that I consider the impact on Australian business interests if WZKB’s visa cancellation decision is not revoked but noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Given the absence of material before me of relevance to this consideration it neither weighs in favour nor against a conclusion that there is another reason to revoke the decision to cancel WZKB’s visa.
Impact on victims
Direction 79 requires that I consider the impact of a decision not to revoke the decision to cancel WZKB’s visa on members of the Australian community, including victims of his criminal behaviour, and the family members of the victim or victims where that information is available and WZKB has been afforded procedural fairness.
While there is material before me concerning the impact of WZKB’s offending in 2016 on Ms K and on Andy, there is no information before me about the impact of a decision not to revoke the decision to cancel WZKB’s visa on either the Australian community or any particular individuals.
As such, this consideration neither weighs in favour nor against a conclusion that there is another reason to revoke the decision to cancel WZKB’s visa.[90]
[90] There is material before me concerning the impact of WZKB’s offending in 2016 on Ms K and on Andy.
Extent of impediments if removed
In the circumstances, Direction 79 requires that I consider the extent of any impediments that WZKB may face if removed from Australia to Greece, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of Greece), taking into account his age and health, whether there are substantial language or cultural barriers and any social, medical and/or economic support available to him in Greece.
While there might be (and, I suspect, would be) some initial difficulties faced by WZKB in establishing himself in Greece and maintaining basic living standards, I note that there ought be no substantial language or cultural barriers to WZKB doing so. He spent a substantial part of his life in Greece, having left there as an adult when he was 23.
WZKB would have at least some social and possibly economic support network available to him on return to Greece. According to a personal circumstances form completed by WZKB,[91] living in Greece he has a:
(a)Sister (albeit that WZKB says that he does not speak to her as he does not get on with his brother-in-law).
(b)Three cousins. At the hearing WZKB indicated his cousins were unlikely to be of assistance as they were older than him. When it was pointed out that the dates of his cousins’ birth specified in the form indicated they were younger than him, WZKB said he had been referring to cousins on his paternal side. As for there being other cousins, WZKB said that there were but he initially indicated that he was unclear where they lived. In response to a direct question on this point, WZKB acknowledged that one cousin not identified in the form did live in Greece, one with whom he was relatively close as they had both served in Greece’s armed forces together.
(c)Three nieces or nephews.
[91] G7.
In terms of economic support more specifically, WZKB submitted that he would receive no financial support were he to be returned to Greece. Nothing was before me, however, suggestive of WZKB receiving less by way of economic support (or, indeed, any other form of support) than what is generally available to other citizens of Greece.
In terms of employment, WZKB contended that his prospects were non-existent in Greece given the economic situation there, his age and lack of contacts.
Nothing was before me, however, suggestive of WZKB’s employment prospects in Greece being adverse relative to those of other Greek citizens or (apart from WZKB’s unsupported assertion concerning the economic situation in Greece) relative to that which he would have were he to remain in Australia. As to the latter point, WZKB did not suggest Australian and Greek attitudes to his age would differ. As for work contacts, WZKB conceded that his Australian contacts for employment of the type he wished to pursue (flooring installation sub-contractor) dated back to work he had done in Victoria more than 20 years ago.
WZKB also raised at the hearing of this proceeding potential regulatory preconditions to him being able to obtain employment in Greece. WZKB did not, however, identify any specific precondition. Indeed, there is no apparent impediment to his capacity to utilise in Greece the skills he professes to have in floor installation.
In terms of medical support, while in his personal circumstances form he indicated that he did not have any serious health issues, he later stated that he suffers high blood pressure, high cholesterol and anxiety.
WZKB accepts that treatment for these conditions would be available in Greece.
As for his anxiety, however, WZKB contends that it would be made significantly worse were he to be removed to Greece. As he sees it, removal and the resultant separation from his son and daughters would have profound, adverse psychological effects.
No material was before me supportive of WZKB’s contention in this regard. I do accept, however, that WZKB would be likely to suffer emotional hardship by reason of being separated from (and being precluded from being physically proximate to) his Australian resident family (i.e. his son) and support network (such as it is).
I find that this consideration as to impediments to be faced by WZKB on removal to Greece weighs in favour of a conclusion that there is another reason to revoke the decision to cancel his visa, but not significantly.
CONCLUSION AS TO ANOTHER REASON FOR REVOCATION
In considering whether there is another reason for revocation of the decision to cancel WZKB’s visa, my conclusions in relation the considerations to which Direction 79 requires that I have regard do not point in a uniform direction.
In particular, in the circumstances of this matter:
(a)The primary consideration as to the best interests of minor children in Australia and the “other considerations” offer support for concluding that there is another reason for revocation of the decision to cancel WZKB’s visa.
(b)The primary considerations as to protection of the Australian community from criminal or other serious conduct and as to expectations of the Australian community offer support for concluding that there is not another reason for revocation of the decision to cancel WZKB’s visa.
In the result, however, I am not satisfied that there is another reason for revocation of the decision to cancel WZKB’s visa.
This state of non-satisfaction is consistent with my findings in relation to two of the three primary considerations. In this regard, the general position under Direction 79 which has the primary considerations being given greater weight than the other considerations is not displaced in the circumstances of this proceeding.
Further, this proceeding is not one in which the one primary consideration supportive of there being another reason for revocation of the visa cancellation decision (the best interests of minor children in Australia) outweighs the other two primary considerations.[92] In this matter, the weight which I have attributed to the former primary consideration is not significant while the weight attributed to the latter two primary considerations is significant.
[92] Direction 79, cl 8(5).
DECISION
As I stated at the beginning of these reasons, in this proceeding the task for the Tribunal is to decide whether it is satisfied that WZKB passes the relevant character test or that there is another reason why the decision to cancel his visa should be revoked.
I am not satisfied that WZKB passes the character test.
I am also not satisfied that that there is another reason why the decision to cancel his visa should be revoked.
For these reasons the decision under review is affirmed.

I certify that the preceding 128 (one hundred and twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell

..............[sgd]..........................................................
Associate
Dated: 3 August 2020

Dates of hearing: 27 July 2020

Applicant: By videoconference

Advocate for the Respondent: Mr Michael Palfrey

Solicitors for the Respondent: HWL Ebsworth Lawyers

G18- references to “G” in the footnotes are references to documents provided by the Respondent under

s 501G of the Act.

Dates of hearing:	27 July 2020
Applicant:	By videoconference
Advocate for the Respondent:	Mr Michael Palfrey
Solicitors for the Respondent:	HWL Ebsworth Lawyers