XCHQ and Minister for Home Affairs (Migration)

XCHQ and Minister for Home Affairs (Migration) [2018] AATA 4280 (19 November 2018)
Division:GENERAL DIVISION
File Number(s): 2018/4974
Re:XCHQ
APPLICANT

Minister for Home AffairsAnd
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:19 November 2018
Place:Sydney

The Reviewable Decision made on 24 August 2018, being the decision of the delegate of the Minister for Home Affairs and Minister for Immigration and Border Protection not to revoke the cancellation of the Applicant’s Class BB Subclass 155 (Five Year Resident Return) visa, is set aside.
In substitution, the decision to cancel the Applicant’s Class BB Subclass 155 Five Year Resident Return visa, made on 13 December 2017, is revoked.
.....................[sgd]...................................................
Senior Member Linda Kirk
CATCHWORDS
MIGRATION - mandatory cancellation of visa – substantial criminal record - discretion to revoke cancellation of visa - whether there is another reason why the mandatory cancellation should be revoked - Ministerial Direction No. 65 - protection of the Australian community - nature and seriousness of conduct - possession of prohibited drug - possession of unauthorised firearm - assault - driving offences - resist officer in execution of duty - offences in prison - risk to the Australian community should conduct be repeated - best interests of minor children - expectations of the Australian community - strength, nature and duration of ties to Australia - extent of impediments if removed from Australia - decision set aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
Candemir and Minister for Immigration and Border Protection [2017] AATA 531
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Marzono v Minister for Immigration and Border Protection [2017] FCAFC 66
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013)
Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, 22 December 2014
REASONS FOR DECISION
Senior Member Linda Kirk
19 November 2018
BACKGROUND

The Applicant (XCHQ) in this matter was born in Germany in 1993.[1] He came to Australia in 1997 when he was four years old following the separation of his parents.[2] Prior to its cancellation, the Applicant held a Class BB Subclass 155 Five Year Resident Return visa granted 28 August 2013.[3]
[1] Exhibit R1 at 15.
[2] Exhibit R1 at 44.
[3] Exhibit R1 at 44.
The Applicant is the father of an Australian citizen child, who was born on 4 July 2015.[4]
[4] Exhibit R1 at 75.
The Applicant has a history of criminal offending with his first conviction being in January 2011 when he was 17 years old. On 21 December 2017 he was convicted in the Central Local Court for the offences Assault occasioning bodily harm and Possess unauthorised firearm and sentenced to imprisonment for 18 months with a non-parole period of 12 months.[5]
[5] Exhibit R1 at 29.
On 13 December 2017, the Applicant was issued with a Notice of Visa Cancellation (the Mandatory Visa Cancellation Decision) under s 501(3A) of the Migration Act 1958 (Cth) (the Act) on the basis that he did not satisfy the character test in s 501(6) of the Act by virtue of the term of imprisonment referred to above.[6] On this date the Applicant was serving a sentence of full-time imprisonment at John Morony Correctional Centre in New South Wales.
[6] Exhibit R1 at 94.
On 29 December 2017, the Applicant made a request for revocation of the Mandatory Visa Cancellation Decision and made representations to the Minister in support of his revocation request.[7]
[7] Exhibit R1 at 39-40.
On 24 August 2018, a delegate of the Minister decided not to revoke the Mandatory Visa Cancellation Decision under section 501CA(4) of the Act (‘the Reviewable Decision’).[8] The Applicant’s representative was notified of the decision on 27 August 2018.[9]
[8] Exhibit R1 at 15.
[9] Exhibit R1 at 10.
On 30 August 2018, the Applicant lodged an application with the Administrative Appeals Tribunal (‘the Tribunal’) seeking a review of this decision.[10]
[10] Exhibit R1 at 1.
The matter was heard in Sydney on 1 and 2 November 2018. The Applicant attended the hearing in person and was legally represented.
LEGISLATION
Section 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A)     The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)    …; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Subsection 501(6)(a) relevantly provides that a person does not pass the character test if the person has a substantial criminal record. Relevantly, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
Subsection 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: s 501CA(1).
Subsection 501CA(4) confers on the Minister the discretion to revoke the original cancellation decision under s 501(3A), termed the original decision. Section 501CA(4) provides:
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 65
When considering whether to revoke the cancellation decision, the Tribunal is required under s 499(2A) to have regard to the Minister’s Direction relevant to s 501CA, Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’).
The Preamble to the Direction provides a framework for the guidance of decision-makers considering cancellation of a visa. Paragraph 6.1 of the Direction begins with a statement of Objectives, the first of which is as follows:
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.[11]
[11] Direction No. 65 at [6.1(1)].
The Objectives are followed by paragraphs 6.2 and 6.3 described as General Guidance and Principles respectively. The latter set the framework within which the individual considerations set out in Parts A, B and C of the Direction are set.
The first paragraph of the General Guidance provides:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
The following Principles are set out in paragraph 6.3:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or 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.
Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
(a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
(b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
In the Applicant’s case, Part C is applicable as it is directed to revocation requests made in relation to mandatory visa cancellation decisions made under s 501(3A).
In applying any of the Parts, including Part C, paragraph 8 of the Direction sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case.[12] The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
… Separating the considerations for visa holders and visa Applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa Applicant should have no expectation that a visa application will be approved.
[12] Direction No. 65 at [8(1)].
Part C of the Direction provides more specific considerations in determining whether to revoke a mandatory cancellation of a non-citizen’s visa. These include Primary considerations and Other considerations. The Primary considerations are:
(a)Protection of the Australian community from criminal and other serious conduct;
(b)The best interests of minor children in Australia affected by the decision; and
(c)Expectations of the Australian community.
Other considerations are:
(a)      International non-refoulement obligations
(b)      Strength, nature and duration of ties [to Australia];
(c)      Impact on Australian business interests;
(d)      Impact on victims
(e)      Extent of impediments if removed.
Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[13] Paragraph 8(3) provides that “[b]oth primary and other considerations may weigh in favour of, or against… cancellation of the visa.” Generally, primary considerations should be given greater weight than other considerations and one or more primary consideration may outweigh other primary considerations.[14]
[13] Direction No. 65 at [8(2)].
[14] Direction No. 65 at [8(4)] and [8(5)].
ISSUES FOR DETERMINATION
Before the power in subsection 501CA(4) to revoke the original decision is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
It is not in dispute that the Applicant does not pass the character test in subparagraph (b)(i) of the subsection. It is, therefore, necessary to decide whether, in accordance with subparagraph (b)(ii) of the subsection, “there is another reason why the original decision should be revoked.”[15]
[15] Marzono v Minister for Immigration and Border Protection [2017] FCAFC 66 at [31].
Subsection 501CA(4)(b)(ii) has been interpreted by North ACJ in Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.[16]
[16] Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38].
Therefore, the sole issue before the Tribunal is whether there is ‘another reason’, pursuant to subsection 501CA(4)(b)(ii), why the Mandatory Visa Cancellation Decision should be revoked. This requires consideration of any mitigating or extenuating factors favouring the Applicant which might militate against the cancellation of his visa.
EVIDENCE BEFORE THE TRIBUNAL
Criminal History
A National Police Certificate dated 12 April 2018[17] issued in respect of the Applicant shows that he has been convicted of a number of offences in Australia. In his representations to the Department and the Tribunal, the Applicant did not dispute the charges and convictions in the National Police Certificate regarding his criminal convictions and sentences or that he does not satisfy the character test.
[17] Exhibit R1 at 29-31.
The Applicant first commenced criminal offending in January 2011. His offences range from relatively minor offences to more serious offences involving violence, most notably Assault occasioning bodily harm.
Train fare evasion
On 5 April 2012 and 12 April 2012 the Applicant was convicted in the Sutherland Local Court for two offences of Not pay train fare and hold valid ticket which were committed at Miranda railway station on 21 February 2012 and 23 February 2012.[18]
[18] Exhibit R2 at 626,628, 640 and 642.
Drug offences
On 3 February 2012, the Applicant was searched by police and found to be in possession of half a kilogram of cannabis.[19] On 29 March 2012, he was convicted in the Downing Centre Local Court for Possess prohibited drug. He was made subject to a s 10 bond and was required to pay court fees.
[19] Exhibit R2 at 71-73.
On 19 July 2015, the Applicant was convicted of the offence Possess prohibited drug in the Newtown Local Court. This offence was committed on 9 July 2015 when the Applicant was stopped and searched by police while he was driving. He was found with 0.2 grams of cannabis in his wallet.[20]
[20] Exhibit R2at 546-549.
On 17 December 2017, the Applicant was convicted of the offence Bring/attempt bring thing into place of detention without authority. He was fined $1,000. This offence was committed when he went to visit a friend at Bathurst prison and was carrying a pouch of tobacco which he intended to give to his friend.
Common Assault and Affray
In July 2012 he was convicted of two counts of Affray in the Downing Centre Local Court and sentenced to 10 months imprisonment with a five month non-parole period.[21] This offence was committed on 21 January 2012 during a fight at Kings Cross station.[22]
[21] Exhibit R1 at 30.
[22] Exhibit R2at 56-57.
Driving offences
On 21 May 2013, the Applicant was convicted in the Kogarah Local Court of Drive with low range prescribed concentration of alcohol and was made subject to a s 10 bond order for a duration of eight months. At the time of the offence on 22 February 2013 the Applicant was on parole. He had been granted his licence two weeks before the offence but his P plates were not displayed at the time of the offence.[23]
[23] Exhibit R1 at 30; Exhibit R2at 610.
The Applicant’s licence was suspended on four occasions on 5 December 2013, 10 April 2014, 9 December 2014 and 14 April 2015.[24] He attended a Serious Traffic Offenders Program in Nowra on 27 April 2013.[25]
[24] Exhibit R2 at 607-608.
[25] Exhibit R2 at 582.
On 20 May 2015, the Applicant was convicted in the Downing Centre Local Court of Drive motor vehicle while licence suspended. He was made subject to a section 9 bond for two years.[26]
[26] Exhibit R1 at 30.
On 4 October 2016, the Applicant was convicted in the Sutherland Local Court for the offence Licence expired – less than two years before and fined $600. This offence was committed on 22 August 2015 when the Applicant was driving and he was pulled over by police and asked to undergo a RBT. His licence was checked and it was found to have expired on 15 February 2016.[27]
[27] Exhibit R2 at 712-713.
The Applicant was charged with exceeding the speed limit on 13 occasions in three years. On 31 December 2014, he was charged with exceeding the speed limit by 45 km/hour.[28]
[28] Exhibit R2 at 608.
On 6 December 2017, the Applicant was convicted in the Central Local Court of Drive motor vehicle while licence suspended and fined $750.[29]
[29] Exhibit R1 at 29.
Enter enclosed land without lawful excuse
On 28 May 2015 the Applicant was convicted in the Sutherland Local Court of Enter inclosed [sic] land not presc premises w/o lawful excuse. This offence was committed on 22 March 2015 when he accompanied a friend to a flat occupied by his friend’s relative to obtain some non-prescription Valium.[30] The occupant of the flat called the police and the Applicant was arrested and charged.
Stalk/intimidate intend fear physical harm (domestic) and Resist officer in execution of duty
[30] Exhibit R2at 663-665.
On 5 January 2016, the Applicant was convicted of the offences Stalk/intimidate intend fear physical harm domestic and Resist officer in execution of duty in the Sutherland Local Court. He was sentenced to serve a total period of imprisonment of ten months with a non-parole period of four months.
This incident occurred on 9 September 2015 when he met his former partner at Westfield in Miranda to have lunch at the Miranda Hotel.[31] At the time, his daughter was seven weeks old. The Applicant was subject to an AVO imposed on 22 October 2014 in relation to his former partner. However, this did not prevent him from seeing her. During the lunch, an argument broke out between his former partner and a female friend who were both intoxicated. They were asked to leave the Hotel. The Applicant took the pram containing his daughter and left the Hotel. He called his mother to ask her to come and collect him and his daughter. His former partner went to the Miranda Police Station because of concerns for herself and her child. Telephone calls were made between the Applicant and his former partner and he was heard to say to her ‘I’ll break your jaw’. Police then attended upon Miranda Plaza in Mondella Road where they found the Applicant with his daughter in the pram. They attempted to arrest him and he resisted. The Applicant told the Tribunal he resisted arrest because he was concerned that his daughter would be left alone as his mother had not arrived to collect her.[32]
[31] Exhibit R2 at 697-699.
[32] Applicant’s evidence at the hearing and Exhibit A8 at [16.10].

In his decision dated 5 January 2016, Magistrate Walsh of the Sutherland Local Court stated:
I would assess the objective seriousness in relation to the offences as being significant but towards a lower end…[33]
[33] Exhibit R1 at 36.
The Magistrate noted that the offences were aggravated by the fact that at that time the Applicant was subject to bonds in relation to two offences for two years and nine months respectively with supervision by Probation and Parole.[34]
Assault occasioning bodily harm and Possess unauthorised firearm
[34] Exhibit R1 at 35.
On 6 December 2017, the Applicant was convicted in the Central Local Court of the offences Assault occasioning actual bodily harm and Possess unauthorised firearm. He was sentenced to 18 months and six months with a non-parole period of 12 months.
These offences were committed on 19 December 2016 when the Applicant was hosting a party at his unit attended by seven friends. They were all drinking alcohol and consuming various drugs. A friend of the Applicant made an offensive remark to one of the females and the Applicant asked his friend to leave his house. He refused to do so and a fight broke out between him and the Applicant. The Applicant punched and kneed the victim in the face. The victim went into the bathroom and the accused followed him and continued to assault him by punching him in the face. The Applicant pushed the victim into the bathtub. The Applicant left the bathroom and returned with a knife that he swung in the direction of the victim. The victim escaped from the house and called the police.[35] During the interview with police he was shown an image of a firearm which was on his mobile phone. He said it was a toy cap gun which he has in his bedroom wardrobe. Police searched the premises and located a metal black gun which was examined and found to be an imitation firearm.[36]
[35] Exhibit R2 at 40.
[36] Exhibit R2 at 40-41.
In his decision dated 6 December 2017, Magistrate Mabbutt summarised the facts surrounding the first offence and the injuries sustained by the victim as follows:
The nature of that assault punching the person and kneeing him in the face then attacking him with a steel object, further assaulting him and eventually the person left the premises after the defendant produced a knife.
The injuries of the victim are … a fractured nose, swollen nose and top lip, small cut on the right side and back of the head, painful elbow, and lower back.[37]
[37] Exhibit R1 at 32.
Magistrate Mabbutt noted that the Assault occasioning bodily harm offence:
[is] certainly not a matter at the lower end, it is not at the highest end of the category but given the nature of the offence, that the accused returned on two occasions to further assault the victim, the nature of the injuries the victim occasioned … it is an offence that is encapsulated in the mid to high end of offences for that kind.[38]
[38] Exhibit R1 at 33.
The Magistrate noted that the offence carried a penalty of three years imprisonment. He had regard to the fact the Applicant was on a good behaviour bond at the time of the offence that also involved a period of supervision. The Applicant had completed his parole in August 2016, just four months before the commission of the offences. Taking into account mitigating factors including the Applicant’s guilty plea and his wish to be released into the community and get back into employment and contribute to the community, the Magistrate reduced the sentence to 18 months with a non-parole period of 12 months.[39]
[39] Exhibit R1 at 33.
In relation to the Possess unauthorised firearm offence, the Magistrate noted that although the gun was an imitation firearm, there is a reason why they are prohibited as ‘[i]t is their production in respect of the utility in being similar to real firearms that the community has a problem with and imposes harsh penalties.’ He reduced the penalty from a term of eight months imprisonment to six months to reflect the Applicant’s plea of guilty.[40]
[40] Exhibit R1 at 34.
Time in Prison and Immigration Detention
On 11 March 2017, the Applicant verbally abused a correctional officer at John Morony Prison when he was refused permission to see his daughter. He pleaded guilty and confined to his cell for 24 hours.[41]
[41] Exhibit R2 at 322-328.
In January and February 2018, the Applicant was involved in four incidents when he verbally threatened another detainee at Villawood Immigration Detention Centre (‘VIDC’) whom he understood to be a child sex offender.[42] In his written statement and at the hearing the Applicant stated that he did not want the sex offender to be housed in the Blaxland unit where there are six people to a room and he admitted he made abusive comments to the detainee.[43]
[42] Exhibit R1 at 85-86.
[43] Exhibit A8 at [17.3]-[17.5].
On 23 March 2018, the Applicant verbally abused catering staff at Villawood. He kicked a rubbish bin and stated it was unfair that the inmates in his dorm miss out on the good food because they are served last.[44] Following this incident he was transferred to Christmas Island.
[44] Exhibit R1 at 87; A8 at [17.2].
On 8 June 2018, the Applicant was verbally abusive towards an officer who refused to allow him to attend Friday prayers on Christmas Island. The Applicant’s name was apparently not on the list and he was, therefore, not permitted to attend.[45] The Applicant admits he told the officer ‘what I thought of him’ but ‘did not threaten him or approach him in a threatening manner.’[46]
[45] Exhibit R1 at 88.
[46] Exhibit A8 at [17.1].
The Applicant told the Tribunal that since he has been in detention he has consumed alcohol on only one occasion when he had some ‘home brew’ at the end of Ramadan on Christmas Island. He has not taken Xanax other than on one occasion a few weeks ago when he was given ¼ Xanax (not prescribed) when he was agitated about his personal circumstances.
Applicant’s responsibility and remorse for criminal behaviour
In his written statement dated 29 October 2018, the Applicant expressed his remorse and accepted responsibility for his criminal behaviour:
I do not mean to sound as though I’m making excuses or not accepting responsibility for what I have done. This is not the case. I accept full responsibility for all my past criminal offences and behaviour and I make no excuses or blame other people. I am very sorry and ashamed of what I have done. I know that I made serious errors of judgement and impulsive decisions as a younger person which have put me in the position I am in now.[47]
There is always a reason behind all our actions in life, but sometimes the reason for wanting to take action doesn’t mean that the action is legal, correct or appropriate. I have thought about the Judge's sentencing remarks and I accept full responsibility for the actions which led to those charges and I sincerely and deeply regret my past criminal actions and aggressive behaviour.[48]
…
I now realise that if I had stopped to think before I acted then maybe I wouldn’t have been locked up, I would still be working as a scaffolder, earning a good income and taking care of my child instead of wasting my life in prison and losing important time with my daughter during these very important years in her development.[49]
[47] Exhibit A8 at [14].
[48] Exhibit A8 at [15].
[49] Exhibit A8 at [13].
Relationship with his daughter
In his written statement, the Applicant described his relationship with his daughter and her care and upbringing during his incarceration:
I am the father of an Australian citizen […]. [My daughter’s mother] has serious problems with substance abuse and has also developed arthritis. She is not capable of looking after [my daughter] on a full-time basis. She was kicked out of her mother’s home about 12 months ago because of her drugs abuse and her neglect of our daughter – [My daughter’s mother] may spend about an hour or two a week with [my daughter]. While I have been in prison and immigration detention [my daughter] has been cared for by my mother and [her maternal grandmother].[50]
…
While I was in prison and at Villawood IDC, my mother would bring [my daughter] to see me at least once per week. My daughter … and I have a strong and loving father daughter relationship but after I was transferred to Christmas Island on Wednesday the 28^th of March, 2018 and then to Brisbane at the end of August, it has been much more difficult to keep up direct contact with her. She could not come to see me at all on Christmas Island and my mother could only manage to bring her to Brisbane on one occasion. We often [sic] on the phone and especially on Facetime, and she always responds to me as her "Daddy" and asks me when she can see me again. This situation is causing distress, anxiety and depression for [my daughter] and myself.[51]
…
I sincerely hope and pray that I may get my residence visa reinstated so that I can be fully present in my daughter’s life, to give her the very much needed love and attention that she needs. [My daughter’s] mother … is not present for our daughter because of her drugs abuse and I do not want my daughter growing up without her father, much like me and like [her mother]. [My daughter] is my greatest priority in life and she needs me to provide a stable and loving home environment (together with my mother’s loving support). [She] is extremely precious to my side of the family and her wellbeing is the most important thing to me and my mother.[52]
[50] Exhibit A8 at 3.
[51] Exhibit A8 at 6.
[52] Ibid.
In his oral evidence, the Applicant told the Tribunal that he was the primary carer of his daughter for one-and-a-half years from her birth in July 2015 until his arrest on 20 December 2016. During this period his relationship with his former partner was ‘on and off’. There is no formal custody arrangement between him and his former partner in respect to their daughter. His relationship with his former partner is now ‘over and irreparable’.
The Applicant told the Tribunal that his daughter is currently being cared for by his mother and his former partner’s mother. His mother collects his daughter from childcare on Friday afternoon and takes her back on Monday morning. From Monday to Friday his daughter resides with and is cared for by his former partner’s mother. He told the Tribunal that whereas this division between the two families of the care of his daughter is satisfactory for the time being, because both grandmothers are in their mid-fifties it is not a desirable or long-term arrangement for his daughter’s care and upbringing until she reaches adulthood. Both grandmothers agree that if the Applicant is released, he will assume the primary caregiving role for his daughter.
Conversion to Islam
In his written statement and in his evidence to the Tribunal, the Applicant stated that when he was detained at Christmas Island he converted to Islam:
During my first two months in detention I had a religious awakening. On a couple of occasions, I had a dream which led me to embrace the religion of Islam and since then I have been studying the teachings in the holy Koran. While I was on Christmas Island I had the opportunity to speak with other inmates who were followers of Islam and to learn more about the religion. I made the decision then to convert to Islam which I did in the presence of other believers.
My belief in Islam has taught me to be a calmer person and to think about actions and consequences prior to acting. I now consider other people more than I have ever done throughout my life. Islam has taught me to be motivated by love and to be more accepting of others. It has also helped me to turn away from alcohol and other drugs. Despite one small relapse on Christmas Island I have not touched alcohol since my conversion and I believe my faith will keep me from all drugs.
I have come to accept that it was Allah's will that I be punished for my criminality and also that I be put into immigration detention after I was released from prison, because it was in detention that I had the opportunity to discover the truth about myself and to come to the true religion.[53]
[53] Exhibit A8 at [7]-[9].
Plans for psychological treatment
In his oral evidence and in his written statement, the Applicant acknowledged that he requires ongoing psychological treatment and expressed his intention to commit to such treatment:
Even though my religious studies and beliefs have had and continue to have a profoundly positive effect on my thinking and behaviour, I recognise that I also need professional help from a psychotherapist to help me deal with long established negative behaviour and reactions which are harmful to me and possibly to others. In the past I have resisted getting professional help, but thanks to the ongoing discussions with my family and people who love me, I realise that my negative behaviour (given situations which could trigger my anger) has been influenced by the abusive treatment from my father and the bullying I experienced from both my father and during my early schooling years.
…
I accept that I need professional help to handle my impulsiveness and anger. For this reason, my family had arranged for Dr. Gregory Berry (Psychotherapist) to help me with ongoing psychotherapy. Unfortunately, Dr. Berry passed away recently. However, my family have found other highly qualified Psychiatrists to help me and I am very enthusiastic to undergo counselling so that I can become a normal man to take the best of care for my daughter. There are many times in the environment of detention centres where people push my buttons, but now instead of resorting to violence, I defend myself verbally. This is difficult to do, but now I think before I act. This has been a positive change in my behaviour, but I need ongoing counselling to develop more coping skills.[54]
[54] Exhibit A8 at [10]-[11].
Employment and plans for the future
In his oral evidence and in his written statement, the Applicant explained that before his incarceration in December 2016 he had been in full-time employment:
Before I was in prison I worked as a scaffolder and had full-time employment. I left school in year 11 and after that I have always worked in the building industry. […] I was slowly getting my life on track and up until my incarceration in December of 2016, I was in the process of setting up my own scaffolding business.[55]
[55] Exhibit A8 at [4].
In his written statement, the Applicant stated that whilst he was in prison he undertook programs in small engines, fitness, horticulture, and health survival. He also obtained a Certificate of Achievement for the Young Adult Satellite Preparation Program.[56]
[56] Exhibit A8 at [21].
He described his plans for the future as follows:
My life plans are centred around the following: always being a law-abiding person (I will never again associate with past criminal acquaintances), to be a socially responsible [sic], to be employed full time and to be a contributing member of society and to be the best father possible for my daughter’s security, growth and development, with me setting the right example for her to follow and have a good and productive future.[57]
[57] Exhibit A8 at [22].
Evidence of Dr Alexey Sidorov, Consultant Forensic Psychiatrist
Dr Sidorov examined the Applicant and provided a written report dated 25 October 2018.[58]
[58] Exhibit A6.
In his opinion, the Applicant meets the diagnostic criteria for Antisocial Personality Disorder as per the DSM-V.[59] He further opined that whereas the Applicant ‘likely does not meet the full diagnostic criteria for Borderline Personality Disorder, he does display significant features of this condition, including being unable to control his anger at times, acting in an impulsive manner and at times perceiving others’ attitudes towards him to be negative or persecutory.’[60] He found also that the Applicant meets the diagnostic criteria for Substance Use Disorder - alcohol and benzodiazepines - and that it appears that the Applicant had a past history of Cannabis Use Disorder as well as possible history of Drug-Induced Psychosis when he used the drug ice.[61]
[59] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5^th ed, 2013).
[60] Exhibit A6 at 13.
[61] Exhibit A6 at 12-13.
Dr Sidorov noted that the Applicant’s:
mental state is relative [sic] stable despite the stresses of his current legal case as well as not being able to see his daughter. He does appear to suffer some mood and anxiety symptoms in relation to these but these are within the norm to be expected of someone in his situation.[62]
[62] Exhibit A6 at 14.
In relation to the Applicant’s future prospects, including ongoing treatment and risk of reoffending, Dr Sidorov provided the following opinion:
Going forward, [the Applicant] should indefinitely abstain from alcohol and other substance use. This should be done under the care of an addiction medicine specialist likely with ongoing drug and alcohol counselling as well as possible adjunctive pharmacotherapy.
In regards to [the Applicant’s] Antisocial Personality Disorder and Borderline Personality style features, it would be beneficial that he engage in long-term psychotherapy with a psychotherapist in order to shift some of his entrenched and longstanding behavioural patterns that are harmful to him and those around him.
Therapy would be aimed at providing support to [the Applicant] to avert the potential that life stressors such as personal relationships or issues with custody of his daughter could put him at risk of reverting to his previous patterns of behaviour. As described above this risk will be significantly mitigated if he does not associate with criminal elements, abstains from substance use and engages in pro-social activities.
Provided that [the Applicant] adheres to the treatment plan proposed above, engages in his regular employment as a scaffolder and is able to re-engage with his family and his daughter, it is likely that his risk of future re-offending would be significantly mitigated.
If [the Applicant] were to be released from immigration detention following the decision of the Tribunal to revoke the visa cancellation, I believe if he adheres to the above plan, his risk of further criminal conduct or harm to the Australian community or any members of the community would be significantly mitigated.[63]
[63] Exhibit A6 at 14-15.
During his oral evidence at the hearing, Dr Sidorov told the Tribunal that he is not a specialist in substance abuse and would not be able to provide treatment to the Applicant. In his view it would be desirable for the Applicant to engage with a local drug and alcohol team and obtain treatment and support from addiction specialists, psychologists and counsellors. The Applicant would need to actively engage with these services if he is to continue his rehabilitation.
Dr Sidorov was asked whether it is enough that the Applicant has expressed a motivation to address his behavioural and substance abuse problems. He said that motivation alone is insufficient and that there will need to be a good plan in place with support from medical services and personal supports. Without this, the relapse rate is high.
Dr Sidorov expressed the view that if the Applicant were to continue to use drugs and alcohol it would increase the likelihood of him reoffending as he would be more likely to associate with criminal offenders and the use would have an inhibitory effect that would make it more likely he would engage in violent behaviour. This is particularly so given his historical pre-disposition for violence.
Dr Sidorov was asked whether the Applicant’s Antisocial Personality Disorder can be cured. He told the Tribunal that when the condition is diagnosed in a patient’s mid-twenties there is little prospect of cure. However, the behaviour associated with the condition can be controlled if the patient receives long-term psychotherapy and has employment and a stable relationship.
Dr Sidorov noted that the Applicant has a history of non-compliance and therefore the likelihood of him adhering to a treatment plan is ‘mild but not impossible’. However, there are a number of positive factors in the Applicant’s life that may contribute towards him adhering to his treatment plan, namely his relationship with his daughter and his commitment to his religion. However, ‘it remains to be seen’ whether the Applicant will commit to the treatment he requires.
Evidence of Applicant’s mother – Ms A

Ms A, the Applicant’s mother, provided written statement dated 14 October 2018,[64] together with two written addendums dated 17 October 2018[65] and 29 October 2018.[66]
[64] Exhibit A1.
[65] Exhibit A2.
[66] Exhibit A3.
In her statement she described the Applicant’s relationship with his daughter and her opinion about the risk of him re-offending:
I know that [the Applicant] has broken the law in Australia and has not been on a good path in life, but I think that everything will change now because for the first time in his life he has a real purpose for living, which is his daughter […]. He loves her more than anyone in the world and realises that his only chance now of being a father to her is to straighten out his life and accept his responsibilities as a man. For this reason I don't think that there is any risk that he will break the law again or be any sort of risk to the Australian community.[67]
[67] Exhibit A1 at [9].
She also described what she believes will be the impact on the Applicant should he return to Germany:
Going back to Germany will also be very difficult for [the Applicant]. Most importantly, he will suffer a lot from losing touch with his daughter. He has not lived in Germany since he was a small child and does not speak the language very well. He has no family or contacts there and would have a lot of problems settling in. I have a brother and sister in Austria but we have not had any contact for about 20 years.[68]
[68] Exhibit A1 at [8].
Evidence of Dr B
Ms A’s partner, Dr B, provided a written statement dated 14 October 2018[69] together with an amendment dated 29 October 2018.[70]
[69] Exhibit A4 at [2].
[70] Exhibit A5.
In his statement, Dr B said he has known the Applicant for approximately three and a half years and during this time has had the opportunity to get to know the Applicant, his background and his recent circumstances. They ‘share a positive relationship, based on trust, a mutual respect for each other and true friendship’.[71]
[71] Exhibit A4 at [2].
In his statement, Dr B provided his opinion about the Applicant and the support he has from him and the Applicant’s mother:
[The Applicant] is not a dangerous, hardened career criminal or a threat to society. He is not a gang member, murderer, drug dealer, sex offender or child abuser. He is a young man who took the wrong direction as a younger boy. He realises the error of his past actions and he wishes to make amends and prove himself by being a responsible young adult and a good father. [The Applicant] will not be alone in this task - he has the full support of his mother and me to back him up. I believe in this young man and I know that his recent positive thinking and attitude are the foundations for a productive and happy life ahead for him and his daughter. [The Applicant] needs a second chance to be the good Australian that he wants to be.[72]
[72] Exhibit A4 at [11].
Dr B also described what he has observed of the Applicant’s relationship with his daughter:
Although [the Applicant] has been incarcerated for an extensive period of time - 12 months on remand and now a further 10 months in detention, his relationship with his infant daughter is a very strong and loving father, daughter relationship. In addition to having witnessed the one to one loving interaction between [the Applicant] and his daughter, I have also witnessed how he and his daughter communicate with one another when he calls his mother whilst we are taking care of [his daughter]. [The Applicant] and his daughter truly love each other very much. This is particularly evident when I observe [the Applicant’s daughter’s] reaction to seeing and speaking with her father, because [her] mother is rarely present to take care of her child. [Her] mother … may see the child once or twice a week for about an hour at a time and this is usually under duress because [she] would rather be in the company of other drug users - being a mother is not a part of who [she] is. Naturally, [the Applicant’s daughter] feels abandonment by her mother and her father is the only parent who pays attention to her and is constantly calling to speak with her.[73]
[73] Exhibit A4 at [6].
During his oral evidence at the hearing, Dr B explained that the reason he describes the Applicant as not being a ‘career criminal’ is because he did not make a living out of crime. In relation to the Applicant’s impact on society, he said that he is not a person who randomly attacks or assaults people. The assaults for which he was convicted were directed at people he knew and were the consequence of fights. More recently, the Applicant has learned to control his behaviour and has not engaged in physical violence. The incidents of aggressive behaviour while in immigration detention have been limited to verbal assaults.
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
The Tribunal must consider any mitigating circumstances that may militate in favour of setting aside the decision not to revoke the Mandatory Visa Cancellation Decision. In doing so, it must take into account the Considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.
Primary Consideration 1 – Protection of the Australian community
Primary Consideration 1 of Part C is the Protection of the Australian community. Paragraph 13.1(1) of the Direction provides:
(1) When considering protection of the Australian community, decision-makers should have regard 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. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 13.1(2) directs that decision-makers should also give consideration to:
(a) the nature and seriousness of the non-citizen's conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
(a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c)The sentence imposed by the courts for a crime or crimes;
(d) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(e)The cumulative effect of repeat offending;
…
Nature and seriousness of the Applicant’s conduct to date
In assessing the seriousness of the Applicant’s past criminality, and the risk posed should he commit further offences, the Tribunal notes that the Applicant began offending in 2011 at the age of 17 and continued for six years until he was incarcerated on 6 December 2017 for his most recent offences.
Having regard to paragraph 13.1.1(1)(a) and paragraph 13.1.1(1)(b) of the Direction, the Tribunal finds that two of the Applicant’s crimes were violent in nature, one being an assault causing bodily harm. The Tribunal has had regard to the remarks of the Magistrate in relation to the Applicant’s assault conviction in December 2017 and the finding that it was ‘in the mid to high end of offences for that kind’. The Tribunal also notes that the Magistrate described the Applicant’s offences for which he was convicted in December 2016 ‘as being significant but towards the lower end.’ Having regard to these remarks, the Tribunal finds that the Applicant’s conduct to date has been in the mid-range of seriousness.
Having regard to paragraph 13.1.1(1)(c) and paragraph 13.1.1(1)(d) of the Direction, the Tribunal finds that the Applicant has been sentenced to terms of imprisonment for four offences. It notes that custodial sentences are imposed as a last resort, and finds that these sentences indicate the seriousness of his conduct.
The Tribunal has had regard to the cumulative effect of the Applicant’s offending in determining the seriousness of his conduct in accordance with paragraph 13.1.1(e) of the Direction. The Tribunal finds that the Applicant’s criminal offending demonstrates a sustained pattern of offences involving increasing seriousness and violence and their cumulative effect indicates the seriousness of his conduct.
The Tribunal has had regard to the Applicant’s claims that parental abuse and bullying during his childhood years have contributed towards his inability to control his anger and contain his aggression. However, it notes that the Applicant did not take steps to address his behavioural issues until very recently when he sought professional help from Dr Berry (psychotherapist) and was diagnosed by Dr Sidorov with multiple psychological conditions. The Applicant’s difficult past and until recently undiagnosed and untreated medical conditions does not make less serious the offences for which he was convicted and sentenced to terms of imprisonment.
The Tribunal finds that the nature and cumulative effect of the Applicant’s criminal conduct to date are serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
In assessing the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must have regard to paragraph 13.1.2 of the Direction:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).
In having regard to the nature of the harm if the Applicant were to re-offend, the Tribunal notes that the Applicant’s offences involved violence, including physical assaults on individuals that resulted in injuries requiring medical treatment. It finds that should the Applicant continue to engage in conduct similar to that which was the subject of his previous convictions, this could potentially cause significant harm to individuals or the Australian community.
In having regard to the likelihood that the Applicant will engage in further criminal or other serious conduct, the Tribunal has had regard to the Applicant’s evidence to the Tribunal and in his written statement, and the oral and written evidence of his mother and her partner.
The Tribunal also has had regard to the report of Dr Sidorov, which provides an independent assessment of the Applicant’s risk of re-offending. According to Dr Sidorov, it is essential that the Applicant abstain from alcohol and other substance use and engage actively with addiction specialists, psychologists and counsellors if he is to continue his rehabilitation. The Tribunal notes that the Applicant has expressed a commitment and willingness to continue the psychiatric treatment he has recently commenced, and that he is aware that professional help is important if he is to handle his impulsiveness and anger. The Tribunal has had regard to the positive indications in the Applicant’s recent behaviour in detention that he is developing skills to contain his aggression and not engage in violent conduct when he is upset or angry.
The Tribunal has had regard to Dr Sidorov’s assessment that the Applicant’s ‘risk of further criminal conduct or harm to the Australian community or any members of the community would be significantly mitigated’ if he adheres to a comprehensive treatment plan and engages positively with medical and other support services. However, it notes that Dr Sidorov sought to qualify his opinion in light of the Applicant’s history of non-compliance and opined that the likelihood of him following the required plan is ‘mild but not impossible.’
The evidence of the Applicant’s mother and her partner support a finding that the Applicant is likely to comply with a treatment plan and engage with necessary medical and other services. The encouragement and support they are willing to provide and the belief they have in the Applicant that he can make necessary changes to his behaviour with the right advice and treatment are positive indicators that the Applicant will not continue to engage in criminal activity and cause harm to others.
The evidence of the Applicant, his mother, and her partner in relation to the Applicant’s commitment to the care and upbringing of his daughter further supports a finding that the Applicant will comply with his treatment plan and follow the advice necessary to ensure that he does not offend in the future. The Tribunal does note that the Applicant offended on two occasions since the birth of his daughter in September 2015 and December 2016 and that this supports a finding that the presence of his daughter in his life has not to date been a deterrent for the Applicant in relation to criminal offending. The Tribunal, however, finds that, on balance, the positive changes the Applicant has made in his life since the date of these offences, particularly the medical treatment he has received and his conversion to Islam, indicate that his daughter is now providing the motivation and incentive he requires to modify his behaviour and cease criminal offending.
Based on the evidence before it, the Tribunal finds that there is a risk of the Applicant continuing to re-offend, but this risk is mitigated by the Applicant’s positive steps in seeking professional assistance for his medical conditions and behavioural problems. Furthermore, his commitment to his daughter and providing her with a stable and secure upbringing, and the considerable support and encouragement he has from his mother and her partner, including a place to live, and the positive effect this will likely have on his continuing rehabilitation and likelihood of re-offending are factors that mitigate the risk of the Applicant re-offending.
On the basis of the evidence before it, the Tribunal finds that the risk of the Applicant engaging in further criminal conduct is at the low to middle end of the scale.
In making this finding, the Tribunal has been informed by Principle 5 which provides:
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.
The evidence before the Tribunal is that the Applicant came to Australia after his parents separated when he was four and that he has spent his entire life in this country, including undertaking his schooling.
The length of time the Applicant has been living in Australia and the circumstances under which he migrated here are factors that support a finding that there is a higher level of tolerance by Australia for his serious criminal conduct than there would be for a non-citizen who has lived in the community for a much shorter period of time.
For the reasons above, and applying the guidance in paragraphs 13.1.2(1) and (2) of the Direction, Primary Consideration 1 on balance weighs in favour of the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 2 – The best interests of minor children in Australia affected by the decision
Primary Consideration 2 of Part C in paragraph 13.2(1) requires decision-makers to make a determination about whether revocation is, or is not, in the best interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.[74]
[74] Direction No. 65 at [13.2(2)]
In considering the best interests of the child, paragraph 13.2(4) provides:
In considering the best interests of the child, the following factors must be considered where relevant:
(a) The nature and the 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);
(b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;
(e) Whether there are other persons who already fulfil a parental role in relation to the child;
(f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Having regard to the factors outlined in paragraph 13.2(4) above, the Tribunal notes that the Applicant has a daughter aged 3½ years who is an Australian citizen. Having regard to paragraph 13.2(4)(c), the Tribunal notes the evidence before it that when the Applicant was in prison and VIDC, his mother took his daughter to visit him every week and they maintained regular contact via phone and Facetime. The evidence before the Tribunal, including that provided by the Applicant, his mother and her partner, is that the Applicant needs to remain in Australia in order to provide emotional support and parental guidance to his daughter.
Having regard to paragraph 13.2(4)(d) and (e) above, the Tribunal finds that the Applicant’s daughter would benefit from him remaining in Australia and being involved in her daily care and upbringing together with her grandmothers, and providing emotional and financial support. The Tribunal accepts that whereas the Applicant’s daughter is very young and has not yet formed a strong emotional bond with her father, if he is removed from Australia she will be negatively impacted by his absence and the long distance between them.
Having regard to paragraph 13.2(4)(e) the Tribunal has had regard to the evidence that the Applicant’s daughter’s mother (his former partner) is unable to care for their daughter due to her substance abuse problem and currently has a very limited role in her daily care and upbringing. It also has relied on the evidence that whereas his daughter’s grandmothers currently are her primary caregivers, in light of their age it is not an arrangement that can continue in the long-term until such time as his daughter reaches adulthood. The Tribunal further notes that it is the wish of both grandmothers that the Applicant assume the primary responsibility for his daughter if and when he is released into the community.

The Tribunal notes that the Respondent accepts that the best interests of the Applicant’s daughter weigh in favour of revocation, but that these do not outweigh the considerations weighing against revocation. In particular, the Respondent submits that given his offending history, it is unlikely that the Applicant will play a positive role in his daughter’s life and that one of his criminal convictions related to his behaviour when he was in the presence of his daughter when she was an infant. The Tribunal has had regard to the Applicant’s evidence that his behaviour in his daughter’s presence was motivated by his concern about her welfare and accepts that his unacceptable and criminal behaviour was in part an instinctive reaction to provide her with protection.
For the reasons above, and applying the guidance in paragraph 13.2(4) of the Direction, Primary Consideration 2 weighs in favour of revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 3 – The expectations of the Australian community
Primary Consideration 3 of Part C in paragraph 13.3(1) states:
(1) The Australian community expects non-citizens to obey Australia’s laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Direction does not refer to studies or other evidence which may guide the decision-maker in relation to public attitudes and values in determining the expectations of the Australian community: Candemir and Minister for Immigration and Border Protection (Migration) [2017] AATA 531 at [61]. This is, therefore, a matter ultimately for the decision-maker to determine having regard to guidance found in existing jurisprudence.
In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, Justice Mortimer observed in relation to the consideration detailed in paragraph 13.3 of the Direction:
[76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] …It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]-[66]).
Noting Her Honour’s observations that this consideration inevitably weighs against revocation in that it operates effectively as a deeming provision in relation to expectations of the community, regardless of the existence or otherwise of any objective basis for this, the Tribunal finds that the consideration weighs against revocation of the mandatory cancellation decision.
The Tribunal finds that Principle 2 of Direction 65, which recognises the expectation of the Australian community that a person who commits serious crimes should have their visa cancelled, is reflected in paragraph 13.3 and Justice Mortimer’s finding that this is effectively a deeming provision in relation to the non-revocation of a visa cancellation decision in relation to a person who fails to satisfy the character test.
Accordingly, the Tribunal finds that Primary Consideration 3 weighs against the revocation of the Mandatory Visa Cancellation Decision.
Other considerations
While the Primary considerations carry particular weight, the Direction acknowledges at paragraph 14 that Other considerations must be taken into account by the decision-maker where relevant.
The five other considerations are summarised in paragraph 14(1):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
International non-refoulement obligations
A non-refoulement obligation is an obligation not to require a person to return, deport or expel a person to a place where he or she will be at risk of a specific type of harm. There is no suggestion that the Applicant is at risk of harm of the nature that raises Australia’s non-refoulement obligations under the 1951 Convention on the Status of Refugees as amended by the 1967 Protocol (Refugee Convention). Therefore, the Tribunal finds that this consideration does not arise on the evidence in this case.
Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
Reflecting the principles at 6.3, decision-makers must have regard to:
(a) How long the non-citizen has resided in Australia, including whether the non-citizen has 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.
(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).
Having regard to paragraph 14.2(1)(a) of the Direction, the Tribunal has given weight to the evidence before the Tribunal that the Applicant arrived in Australia as a young child at the age of four years and has resided in Australia since this time. The Applicant considers Australia his home and this is reflected in his language, culture, and way of life.
The Tribunal has had regard to the evidence before it that the Applicant commenced criminal offending as a teenager, some 13 years after his arrival in Australia. This evidence is somewhat favourable to the Applicant as it demonstrates that he lived in Australia for a considerable period without offending. However, the Tribunal has placed limited weight on this evidence in having regard to this Other consideration as the Applicant was a child during this period.
The evidence demonstrates that the Applicant has significant ties to Australia, particularly his young daughter, and his mother and her partner who are Australian citizens or have a permanent right to remain.
The evidence before the Tribunal is that the impact on his family of the Applicant returning to Germany will be significant, particularly the emotional hardship they will endure. His daughter and his mother will be adversely affected by the physical separation between them and the Applicant, and by the loss of the opportunity to establish or continue their relationships with him.
There is, however, no evidence before the Tribunal to indicate that his daughter and his mother and her partner would not be permitted to visit the Applicant in Germany. Indeed, his mother could live with the Applicant in Germany by reason of the right of free movement between European States. There is no evidence to indicate that the Applicant’s family would not be able to maintain regular contact with him via phone and other forms of electronic and other communication if he returns to Germany.
On the basis of the evidence before it, particularly the strength and nature of his family ties in Australia, the Tribunal finds on balance that this consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
(1) Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivers an important service in Australia.
The Applicant’s employment prior to his incarceration was working as a scaffolder undertaking renovations. There is no evidence of a relevant ‘employment link’ and the Applicant does not claim that any Australian business interests would be affected by his removal to Germany.
Impact on victims
Paragraph 14.4(1) of the Direction states:
(1) Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The Tribunal finds that there is no evidence of any potential impact on the victims of the Applicant’s criminal activity of a decision not to revoke the Mandatory Visa Cancellation Decision.
Extent of impediments if removed from Australia/not permitted to return
The Direction states in paragraph 14.5(1) that:
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
The evidence before the Tribunal is that the Applicant has no family or friends in Germany and he will be alone and left to establish himself there without support.
The Tribunal finds that living standards in Germany will not be significantly different to those in Australia. The Applicant is aged 24 years and is a scaffolder and he has the skills to find employment in the building industry in Germany. However, his prospects of gaining paid employment are significantly reduced by the fact he has very limited language skills and it would take some time for him to become fluent in German. He will also face cultural barriers on his return as he has not lived in Germany since he was a young child and he is no longer familiar with its culture and lifestyle. The Applicant will, however, have the same access to welfare benefits as all German citizens, including health care and social security benefits. The Tribunal finds that the obstacles the Applicant may experience on his return, whilst not insurmountable, are significant and real.
On balance, the Tribunal finds that the impediments the Applicant will face if he is returned to Germany weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Consideration 1 weighs in favour of revocation of the Mandatory Visa Cancellation Decision. Despite the nature and seriousness of the Applicant’s offences, the risk of him re-offending, while not remote, is at the low to mid end of the scale. The Applicant clearly regrets his past criminal behaviour, and has an appreciation of the consequences of such behaviour. This, coupled with the fact that he has expressed a commitment to a treatment plan which includes support to address his substance and behavioural issues, support a finding that weighs in favour of revocation.
Primary Consideration 2 weighs in favour of revocation of the Mandatory Visa Cancellation Decision. It is in the best interests of the Applicant’s daughter for him to remain in Australia and to have the opportunity to form an emotional bond with her father surrounded by her other family members. This is particularly so given that his daughter’s mother does not and cannot, for the foreseeable future, fulfil her parental role in respect of the child.
Primary Consideration 3 weighs against revocation of the Mandatory Visa Cancellation Decision for the reasons outlined above, particularly the effective deeming operation of this consideration.
In regard to the Other Considerations, the strength, nature and duration of the Applicant’s ties to Australia weigh in favour of revocation of the Mandatory Visa Cancellation Decision. The extent of the impediments the Applicant will face if he is removed from Australia also weigh in favour of revocation.
The Tribunal finds that Primary Considerations 1 and 2 weigh in favour of non-revocation and Primary Consideration 3 weighs against revocation of the Mandatory Visa Cancellation Decision. Two of the Other Considerations weigh in favour of revocation, and these further support a decision in favour of revocation of the Mandatory Visa Cancellation Decision.
DECISION
The Reviewable Decision made on 24 August 2018, being the decision of the delegate of the Minister for Home Affairs and Minister for Immigration and Border Protection not to revoke the cancellation of the Applicant’s Class BB Subclass 155 (Five Year Resident Return) visa, is set aside.
In substitution, the decision to cancel the Applicant’s Class BB Subclass 155 Five Year Resident Return visa, made on 13 December 2017, is revoked.

I certify that the preceding 144 (one hundred and forty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

..........................[sgd]..............................................
Associate
Dated: 19 November 2018

Date(s) of hearing: 1 and 2 November 2018

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Solicitors for the Respondent: Sparke Helmore Lawyers

[2018] AATA 4280

19 November 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Remedies

Statutory Construction

Date(s) of hearing:	1 and 2 November 2018
Solicitors for the Applicant:	Parish Patience Immigration Lawyers
Solicitors for the Respondent:	Sparke Helmore Lawyers