XNHN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 4657

XNHN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4657 (10 August 2020)
Division:GENERAL DIVISION
File Number: 2020/3082
Re:XNHN
APPLICANT

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

DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date of decision: 10 August 2020
Date of written reasons: 18 November 2020
Place:Melbourne

The Tribunal sets aside the decision made by the delegate of the Respondent dated 15 May 2020 and in substitution decides to revoke the cancellation of the Applicant’s Subclass 444 Special Category (Temporary) visa pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
[sgd]........................................................................
The Hon. Matthew Groom, Senior Member
Catchwords
MIGRATION – mandatory cancellation of visa under section 501CA – whether mandatory cancellation should be revoked – citizen of New Zealand – Criminal Records (Clean Slate) Act 2004 (NZ) – Ministerial Direction 79 – primary considerations – other considerations – decision under review set aside and substituted
Legislation
Criminal Justice Act 1985 (NZ)
Criminal Records (Clean Slate) Act 2004 (NZ)
Migration Act 1958 (Cth)
Cases
Ali v Minister for Home Affairs (2019) 269 FCR 340
Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113
Dinsdale v The Queen (2000) 202 CLR 321
Faalogo v Minister for Immigration [2016] FCCA 2556
Schuster-McFadyen v Minister for Immigration and Citizenship, Re (2011) 124 ALD 68; [2011] FCA 1303
R v Saunders [2017] SASCFC 86
Secondary Materials
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
18 November 2020
INTRODUCTION

This matter involves an application for review of a decision of a delegate of the respondent made on 15 May 2020 under section 501CA(4) of the Migration Act 1958 (Cth) (the “Act”) to not revoke the mandatory cancellation of the applicant’s Subclass 444 Special Category (Temporary) visa (the applicant’s “visa”).
On 10 January 2020 the applicant’s visa was mandatorily cancelled in accordance with section 501(3A) of the Act on the basis that the respondent was satisfied that the applicant did not pass the character test as a consequence of him having a substantial criminal record in accordance with sections 501(6)(a) and section 501(7)(c) of the Act.
The hearing in this matter was held on 4 and 5 August 2020. The applicant was self-represented. The respondent was represented by Mr Oliver Morris, a solicitor with Clayton Utz.
On 10 August 2020 the Tribunal made the decision to set aside the decision under review. Set out below are the reasons for that decision.
BACKGROUND
The applicant is a 46-year-old citizen of New Zealand who first arrived in Australia on 29 August 2012 together with his former partner of 14 years, Ms G, and two of their five children. The couple’s three youngest children were all born in Australia. The applicant also has three brothers and three sisters as well as a number of aunts and uncles and cousins all of whom reside in Australia.
Following his arrival in Australia the applicant was employed in warehousing for a cool store and major supermarket chain, as rideshare driver and also doing casual work as an audio technician.
On 13 December 2019 the applicant pleaded guilty to, and was convicted of, a series of intervention order breaches and other related offences. He was sentenced to 15 months imprisonment for the offences. The applicant had also earlier been convicted of offences in New Zealand.
On 10 January 2020 the applicant’s visa was mandatorily cancelled in accordance with section 501(3A) of the Act.
On 14 February 2020 the applicant’s sentence for his 2019 convictions was reduced to 188 days imprisonment, being time already served.
On 15 May 2020 a delegate of the respondent made the decision to not revoke the mandatory cancellation of the applicant’s visa.
On 21 May 2020 the applicant applied for a review of that decision which was the matter considered by this Tribunal.
CRIMINAL HISTORY
According to information provided by New Zealand Police, on 25 May 1998 the applicant was convicted in New Zealand of two offences being “Burgles (Oth Prop) (Over $5000) By Ngt” and “Unlawful Takes Motor Vehicle Etc” (the “New Zealand offences”). The applicant was 23 years of age at the time of the New Zealand offences. He was convicted and sentenced to a suspended period of imprisonment of one year together with reparation of $6,000.[1]
[1] Criminal History of the applicant supplied by New Zealand Police produced on 12 February 2020 (see G Documents G2, 28).
In his direct evidence the applicant conceded that the offence details and sentence imposed as set out in the information supplied by New Zealand Police was accurate. He told the Tribunal that he could not recall the offending in any detail but that his vague recollection was that it involved him being in a vehicle that was stolen and that together with a co-offender he had attended a shop and taken some stereo equipment. He told the Tribunal that his recollection was that his role in the offending was more in the form of an accomplice rather than as the principal offender. He told the Tribunal that he had been in the company of the wrong people at the time and that he had learned his lesson and had not offended in such a manner again. The Tribunal accepts the applicant’s evidence in this respect.
According to the applicant’s Australian national criminal history check, his convictions in Australia include the offences of “persist contra family violence ntc/order”, “commit indictable offence whilst on bail” and “contravene a conduct condition of bail” (the “Australian offences”). He was convicted of these offences in the Sunshine Magistrates Court on 13 December 2019 and sentenced to an aggregate sentence of 15 months imprisonment. The applicant appealed the sentence and on 14 February 2020 the Melbourne County Court reduced the aggregate sentence to a total of 188 days imprisonment being time already served.
The Australian offences arose out of a series of incidents involving contravention of a family violence order taken out by the applicant’s former partner.
According to information included in the Victorian Police Preliminary Brief, on 3 July 2019 the applicant had been made the subject of a family violence intervention order which required the applicant to not commit family violence and to not intentionally damage or threaten to damage any of Ms G’s property. The applicant was living with his former partner and their five children at this time.
On 1 August 2019 an incident occurred at the family home of the applicant and his former partner (the “1 August incident”). Based on the statement made to police by the applicant’s former partner, together with the direct evidence of the applicant at the hearing, the Tribunal is satisfied that the essential facts of this incident are as follows. The applicant was at home together with the five children. Ms G arrived home. The applicant discovered a phone call history on the Ms G’s mobile phone that included calls between her and the applicant’s brother in law. The applicant had become suspicious and had asked Ms G to go into the bedroom together to discuss the call history. He had locked the door behind him. The applicant asked Ms G to explain the call history. Ms G conceded that she had been having an affair with the applicant’s brother in law. The applicant became agitated. The applicant “bear hugged Ms G”. They subsequently had sex. Ms G then left the room to take a shower. The applicant then insisted that Ms G and the children have the day off from work and school the following day. Ms G disagreed. The applicant again became agitated and aggressive towards Ms G. A verbal argument ensued and Ms G left the house for her sister’s house across the road. She called 000. The applicant remained in the house with the children. The applicant then rang Ms G and told her that he wanted to end his life. The police arrived and the applicant would not let them in and demanded that the police shoot him. A critical response team arrived at the address and the applicant continued to refuse to let them in and demanded that they shoot him. The critical response team gained access to the house and found the applicant armed with a large kitchen knife and meat cleaver. The applicant again demanded that police shoot him. The applicant was then shot with a bean bag round by members of the response unit, tasered and then arrested. The incident was recorded on the applicant’s social media account. The applicant was taken to Sunshine Hospital for a mental health assessment. He was then released and transferred to Sunshine Police Station for an interview. The intervention order was amended to prohibit the applicant from approaching or contacting his former partner or attending within 200 meters of the family home. The applicant was charged with contravening a family violence order, bailed to appear at Sunshine Magistrates Court at a later date and then released.
In the course of the hearing a particular aspect of this incident was in contention between the respondent and the applicant. The respondent contends that when the police gained access to the property the applicant had demanded that police shoot the applicant “in front of my kids”. The applicant disputes that he ever made such a statement. In the absence of more complete evidence the Tribunal accepts the applicant’s account in this respect although there is no question that the applicant did in fact demand that police shoot him while his children were in the house and very nearby. The Tribunal is satisfied that the children were exposed to an incident that night that would have been very difficult for them to understand and extremely frightening. The Tribunal is also satisfied that Ms G herself had cause for being fearful about what might unfold as a consequence of the applicant’s behaviour that night. The Tribunal is satisfied that the applicant did not have any intention to cause direct harm to either Ms G or the children during the incident, but there is no question that he was extremely agitated at that time and behaving in an irrational and unpredictable manner. The Tribunal is satisfied that the applicant was suicidal at the time of the 1 August incident.
Following the 1 August incident, according to the Victoria Police Preliminary Brief, the applicant attempted to contact his former partner by phone, email and text message between 2 and 8 August 2019 on a number of occasions. In addition, the applicant attended near the family home on two occasions on 3 and 4 August 2019. According to the Victoria Police Preliminary Brief, on 3 August 2019 the applicant attended his former partner’s sister’s residence across the road from the family home and stated that he was there to fix the door to the family home. He was then told by his former partner’s sister that he was not allowed to be near the family home and the applicant subsequently left. Also, according to the Victoria Police Preliminary Brief, on 4 August 2019 the applicant’s former partner’s sister was driving to the shop when she noticed the applicant’s car parked a couple of doors down from the applicant’s family home. The applicant’s former partner’s sister approached him and told him that he was not allowed to be near the family home and the applicant subsequently left. The Tribunal accepts the essential facts of the applicant’s further offending as summarised above.
ISSUES
The first issue for the Tribunal to consider is whether or not it is satisfied that the applicant fails the character test by virtue of having a “substantial criminal record” in accordance with section 501(7)(c) of the Act. In considering this issue it is appropriate to set out a number of relevant provisions of the Act.
Section 501(3A) of the Act relevantly provides that:
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) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501CA of the Act relevantly provides:
1This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
2For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a)would be the reason, or part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
3As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
4The 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.
5If the Minister revokes the original decision, the original decision is taken not to have been made.
As described above, on 10 January 2020 the applicant’s visa was mandatorily cancelled in accordance with section 501(3A) of the Act on the basis that the respondent was satisfied that the applicant did not pass the character test as a consequence of him having a substantial criminal record in accordance with sections 501(6)(a) and section 501(7)(c) of the Act.
Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a “substantial criminal record” (as defined by subsection (7)). Subsection 7 relevantly provides that for the purpose of the character test, a person has a substantial criminal record if:
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.
Section 501(10) of the Act provides that:
For the purposes of the character test, a sentence imposed on a person, or the conviction of the person for an offence, is to be disregarded if:
(a)the conviction concerned has been quashed or otherwise nullified; or
(b)both:
(i) the person has been pardoned in relation to the conviction concerned; and
(ii) the effect of that pardon is that the person is taken never to have been convicted of the offence.
The respondent contended that as at the date of the mandatory cancellation the preconditions to the cancellation provided for in section 501(3A) were met given that, at that time, the applicant had in fact been sentenced to a term of imprisonment of 12 months or more. The respondent argued that as a consequence there can be no question regarding the validity of the mandatory cancellation itself. The Tribunal accepts this contention.
Further, the respondent contended that despite the fact that following the mandatory cancellation the sentence in relation to the applicant’s Australian offences was reduced to a total of 188 days, being an amount of time that is less than the 12 months imprisonment required, the applicant nonetheless continues to not pass the character test by virtue of having a substantial criminal record in accordance with sections 501(6)(a) and (7)(c) of the Act as a result of his pre-existing New Zealand offences.
The applicant contended that following the reduction in the sentence for his Australian offences he no longer failed to pass the character test by virtue of the operation of sections 501(6)(a) and (7)(c) on the basis that his New Zealand offences did not satisfy the relevant definition of a “substantial criminal record”. The applicant argued that this was due to the fact that the sentence imposed for those offences was a suspended sentence and also as a consequence of the operation of New Zealand Criminal Records (Clean Slate) Act 2004 (NZ) (the “Clean Slate Act”). The applicant argued that the effect of the Clean Slate Act was that the applicant’s New Zealand offences were effectively null and void and therefore could not constitute a substantial criminal record by virtue of section 501(10) of the Act. The applicant argued that in any case the respondent ought not be allowed to rely on the New Zealand offences as satisfying the substantial criminal record definition as it had not been the basis for the initial mandatory cancellation and also because he had been denied the opportunity to make submissions on the point at the time of the mandatory cancellation.
The respondent contended that despite the sentence imposed on the applicant in respect of his New Zealand offences being a suspended sentence, it nonetheless amounted to a sentence of 12 months imprisonment for the purpose of sections 501(6)(a) and (7)(c) of the Act. In addition, the respondent contended that the Clean Slate Act was of no relevance in the present circumstances as the effect of the Clean Slate Act was not to nullify the applicant’s New Zealand offences but rather to enable the applicant to refrain from informing a third-party of those offences in certain circumstances. The respondent argued that relevantly those circumstances did not extend to answering questions of Australian migration officials in relation to the applicant’s New Zealand criminal record.
Further, the respondent contended that nothing turned on the fact that the respondent had not relied on the New Zealand offences in the initial mandatory cancellation decision. The respondent contended that the question before the Tribunal was a distinct and separate question, namely whether, at the time of the Tribunal’s decision, the applicant’s criminal record constituted a substantial criminal record for the purpose of sections 501(6)(a) and (7)(c), and there was nothing in the legislation that had the effect of constraining the Tribunal from having regard to the applicant’s total criminal record, including his New Zealand offences, in answering that question. The respondent also refuted the suggestion that the applicant had been denied procedural fairness nor that the absence of submissions on the applicant’s offending or intention to appeal could have altered the mandatory cancellation at the time that decision was made.
In giving consideration to these contentions it is appropriate to set out the relevant sections of the applicable New Zealand sentencing legislation being the Criminal Justice Act 1985 (NZ) (the “Criminal Justice Act”).[2]
[2] In its written submissions the respondent contended that the Criminal Justice Act 1985 (NZ) was the relevant sentencing legislation for the purpose of the sentence imposed on the applicant in relation to his New Zealand convictions. No contrary contention was put and the Tribunal accepts the respondent's contention in this respect.

Section 21A of the Criminal Justice Act relevantly provides that:
(1)Where a court sentences an offender to a term of imprisonment of not less than 6 months and not more than 2 years, it may make an order suspending the sentence for a period not exceeding 2 years from the date of the order.
(2)A court shall not make an order under subsection (1) of this section if it would not have sentenced the offender to imprisonment in the absence of the power to make an order suspending the sentence.
(3)A court making an order under subsection (1) of this section shall specify a suspended sentence that corresponds in length to the sentence of imprisonment that it would have imposed in the absence of power to make an order suspending the sentence.
(4)Where an offender who is subject to a suspended sentence is convicted of a further offence punishable by imprisonment, the court shall order that the suspended sentence shall take effect for the period specified in the order made under subsection (1) of this section, unless it is of the opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was imposed, including the circumstances of any further offending.
Section 21B of the Criminal Justice Act relevantly provides that:
(1)On making an order under section 21A(1) of this Act, the court shall explain to the offender that if he or she is convicted of a further offence punishable by imprisonment while subject to a suspended sentence he or she is liable to undergo the sentence in addition to any other sentence which may be imposed.
(2)Where the court imposes a suspended sentence on an offender it shall cause the particulars of the sentence, including the consequences of non-compliance to be drawn up in the form of an order and the provisions of section 58 of this Act shall apply as if the reference in that section to a community based sentence were a reference to a suspended sentence.
(3)An offender shall have the same right of appeal against a suspended sentence as he or she would have had if the sentence had taken effect.
(4)Nothing in this Act shall authorise any court to direct that –
(a)A suspended sentence shall be cumulative on another suspended sentence or on a sentence of any other kind; or
(b)A sentence of any kind shall be cumulative on a suspended sentence.
(5)Subject to subsection (3) of this section, an offender who is subject to a suspended sentence which has not taken effect under subsection (4) or subsection (5)(a) of section 21A of this Act shall not be treated for the purposes of this Act or any other Act as being subject to a sentence of imprisonment.
Consistent with the respondent’s contentions the Tribunal accepts that, having regard to the suspended sentence imposed on the applicant in respect of his New Zealand convictions and having regard to section 21B(5) of the Criminal Justice Act, for the purposes of New Zealand law, the applicant is not to be treated as being subject to a sentence of imprisonment for those convictions.
However, the Tribunal also accepts as contended by the respondent, that that is not the relevant question before the Tribunal. The relevant question before Tribunal is whether the sentence imposed on the applicant in respect of his New Zealand convictions constitutes a 12 month term of imprisonment for the purposes of Australian law and more specifically sections 501(6)(a) and (7)(c) of the Act. The phrase “term of imprisonment” is not expressly defined in the Act, however there has been consideration given to the meaning of the phrase and more specifically whether the phrase includes a suspended sentence by Australian authorities.
For example, in its written submissions the respondent has referred to the observations of Rares J in Brown v Minister for Immigration and Citizenship where, without deciding on the point, His Honour lent support to the conclusion that a suspended sentence can fall within the meaning of a “term of imprisonment” for the purposes of the Act.[3] In that case His Honour observed that the imposition of a suspended sentence necessarily involves a two-stage process, the first being a decision by the court to impose a term of imprisonment and the second being a decision by the court to suspended it. His Honour stated that:
The essential feature of a suspended sentence of imprisonment is that it is necessarily a sentence to imprisonment for the term selected by the sentencing court as the appropriate punishment. The first stage of the two-step process of sentencing an offender to a term of imprisonment is determined without regard to the fact that, at the second stage, the sentencer is to suspend it.[4]
[3] (2010) 183 FCR 113.
[4] Ibid 116. In making this observation Rares J was expanding on the two-stage test as described by Kirby J in Dinsdale v The Queen (2000) 202 CLR 321 at 346.
The respondent contends that, applying the two-step process Rares J refers to, the imposition of the suspended sentence in relation to the applicant’s New Zealand offences should be treated in effect as having involved two stages. The first being imposition of a term of imprisonment of 12 months and the second being a decision by the court to suspend the term of imprisonment. According to the respondent’s submission, it follows as a matter of logic that at the point of the first stage of this two-step process, the court has imposed a sentence involving a term of imprisonment and that therefore by imposing such a sentence for a period of 12 months, the requirements of section 501(7)(c) of the Act are met. This is notwithstanding the subsequent decision by the court to suspend the term of imprisonment.
While the Tribunal accepts the respondent’s contentions in this respect in the general sense, it nonetheless considers it necessary to have regard to the essential characteristics of the sentence actually imposed on the applicant by reference to the relevant sentencing legislation. In doing so the Tribunal has been mindful that it cannot look to New Zealand law to answer a question regarding the interpretation of the Australian legislation. However, this is quite distinct from the Tribunal having regard to the New Zealand sentencing legislation in order to determine the essential characteristics of the sentence imposed in New Zealand for the purpose of answering the question regarding the interpretation of the Australian legislation applying Australian law.
Having regard to the relevant sentencing legislation is consistent with the further observation of Rares J in Brown where he stated that:
It may be that some particular legislation introduces the unusual concept that a suspended sentence to term of imprisonment is to be treated differently to the ordinary and natural meaning of that expression. In such a case an argument may be open that such a sentence does not fall within s 501(7)(c) or (d).
It is also consistent with observations made in Ali v Minister for Home Affairs[5] where the Court relevantly stated:
The starting point is that s 501 of the Act operates in a federal context that must accommodate the reality that each State or Territory jurisdiction may have disparate sentencing regimes including bespoke criteria for a sentencing court to consider in deciding whether and how a term of imprisonment should be imposed, including whether it should be suspended or served periodically. What is evident, however, from an examination of the sentencing regime applicable to Mr Ali (the NSW Act), is that fundamental to its structure is that the imposition of a sentence of imprisonment and determination of the length of the sentence is determined at a stage anterior to any consideration as to whether the term ought to be suspended.
[5] (2019) 269 FCR 340 at 346.
Turning to the New Zealand sentencing legislation, section 21A(1) of the Criminal Justice Act provides that “Where a court sentences an offender to a term of imprisonment of not less than 6 months and not more than 2 years, it may make an order suspending the sentence for a period not exceeding 2 years from the date of the order”. The Tribunal is satisfied that the effect of that provision is that an order suspending a sentence involving a term of imprisonment cannot be made unless there has first been a sentence of a term of imprisonment imposed. Again, this is consistent with a suspended sentence involving a two-step process.
While section 21B(5) of the Criminal Justice Act provides that the applicant in having received a suspended sentence “shall not be treated for the purposes of this Act or any other Act as being subject to a sentence of imprisonment”, in the Tribunal’s view that provision does not alter the essential characteristic of the first step in this two-step process, namely that a sentence of a term of imprisonment was imposed, nor can that provision be said to alter the proper construction of section 501(7)(c) of the Act for the purpose of Australian law. For these reasons, the Tribunal is satisfied that the sentence imposed on the applicant in respect of his New Zealand offences involved a term of imprisonment of 12 months for the purpose of section 501(7)(c) of the Act.
As to the applicant’s argument that the respondent ought not be able to rely on the Australian offences when effecting the mandatory cancellation and then on the New Zealand offences for the purpose of the non-revocation decision, the Tribunal accepts the respondent’s submissions on this point. The cancellation of the applicant’s visa under section 501(3A) of the Act was mandatory. The applicant had been sentenced to a term of imprisonment of 12 months or more (both by virtue of the Australian offences and the New Zealand offences although it is accepted that the respondent was not aware of the New Zealand offences at that time) and was serving a term of imprisonment full time. In those circumstances the applicant’s visa must be cancelled, there is no discretion. The fact that the sentence in respect of the Australian offences was reduced to 188 days does not alter the facts in existence at the time of the cancellation nor does it in any way invalidate that earlier decision.
The decision to not revoke the mandatory cancellation of the visa occurred at a later point in time and under a separate head of power namely, section 501CA(4)(b). It is a requirement in the exercise of that power that the delegate turn their mind to whether or not the applicant passes the character test and whether there is another reason why the cancellation of the visa should be revoked. In considering whether or not the applicant passes the character test, one issue the delegate must consider is whether the applicant has a substantial criminal record in accordance with section 501(7) of the Act.
The Tribunal accepts the respondent’s submission that there is nothing in the section or elsewhere in the Act, or in any extraneous material relevant to the interpretation of the Act, of which the Tribunal is aware that would suggest that the delegate should be constrained to consider only offences relied on for the purpose of the initial cancellation decision. Further, the purpose of section 501CA(4)(b) would appear to be to require a broad assessment of factors relevant to an assessment of the applicant’s character. The Tribunal is satisfied that it would be inconsistent with the purpose of the section to apply an interpretation constraining the scope of the delegate’s assessment in the manner suggested by the applicant.
In addition, the applicant made a number of what might be described as “fairness” arguments in respect of the respondent’s reliance on his New Zealand offences.
First, the applicant argued that it was unfair for the delegate, in making his decision not to revoke, to have relied on offences that he committed more than 22 years ago. Again, the Tribunal is satisfied that there is nothing in either section 501(7) or elsewhere in the Act that would limit the application of the section to offences that occurred only within a specified period of time. This is different to a decision maker having regard to the aged nature of an offence in the exercise of their discretion. What weight to give to an offence that occurred some time ago is a matter for the decision maker in the exercise of their discretion.
The applicant also argued that it was unfair to him that the respondent made enquiries in relation to his New Zealand offences with the New Zealand authorities on the grounds that the offending was not required to be disclosed under the New Zealand legislation. Again, the Tribunal accepts the respondent’s contention that not only does the New Zealand legislation not protect the applicant from subsequent disclosure of his offending to Australian authorities, it includes a provision expressly excluding such an interpretation. Section 14(3)(b) of the Clean Slate Act provides that nothing in subsections 14(1) or (2):
(a)authorises an individual to answer a question asked of him or her about his or her criminal record by stating that he or she has no criminal record if the question is asked:
(i) under the jurisdiction of the law of a foreign country while an eligible individual is outside New Zealand; or
(ii) while he or she is in New Zealand but relates to a matter dealt with by the law of a foreign country (for example, a question asked on an application form by the immigration or customs agency of a foreign country).
The Tribunal accepts the respondent’s contention that not only were the enquiries of the New Zealand authorities undertaken by the respondent not unfair to the applicant, had the applicant disclosed the offending on his incoming passenger card, as he was required to do, then such enquiries would have been unnecessary.
The Tribunal also rejects the submission of the applicant that his New Zealand offences are not relevant in determining whether he has a substantial criminal record for the purpose of section 501(7)(c) of the Act because the effect of the Clean Slate Act is to render the New Zealand offences null and void for the purpose of section 501(10) of the Act. The Tribunal is satisfied that the effect of the Clean Slate Act is not to render the offences quashed or nullified or to provide a pardon for the offences or otherwise treat the offences as not having been committed, but rather is to entitle the applicant to not disclose the existence of the offences in certain limited circumstances.
Further, the applicant argued that he had been denied procedural fairness by the respondent in its decision to mandatorily cancel his visa on the grounds that the respondent had not provided the applicant with a Notice of Intention to Cancel prior to the mandatory cancellation. The applicant argued that had he been given a notice he would have been able to make submissions to the respondent in respect of the circumstances of his offending and advise the respondent of his intention to appeal against his sentence.
Again, the Tribunal accepts the respondent’s contentions on this point. More specifically, the Tribunal accepts that section 501(5) of the Act expressly excludes the application of the rules of natural justice in respect of the mandatory cancellation. In addition, as has already been described earlier in these reasons, the power to cancel a visa under section 501(3A) is mandatory and not discretionary and therefore having regard to any submissions made would not have altered the cancellation decision at that point.[6] In contrast, the power under section 501CA(4)(b) is discretionary and the applicant was invited to make submissions in respect of the exercise of that power which he in fact did and which were considered by the delegate in their exercise of the power. Those submissions were also before this Tribunal. In addition, the applicant has been afforded the opportunity to make further submissions which were also before this Tribunal.
[6] See Faalogo v Minister for Immigration [2016] FCCA 2556 at [18].
For these reasons, the Tribunal is not satisfied that the applicant has in any way been denied procedural fairness as he suggests. In addition, the Tribunal is satisfied that on the basis of his New Zealand offences the applicant has a substantial criminal record for the purpose of section 501(7) and, for that reason, does not pass the character test for the purpose of section 501CA(4)(b)(i).
Therefore, the residual issue for the Tribunal to determine is whether it is satisfied that there is another reason why the cancellation of the applicant’s visa should be revoked in accordance with section 501CA(4)(b)(ii) of the Act.
Direction No. 79
Section 499 of the Act provides the Minister with the power to make and give directions to individuals exercising powers under the Act. A person exercising such power (including the Tribunal) must comply with such a direction.
On 20 December 2018 the then Minister issued Direction No. 79 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA - in accordance with section 499 of the Act (the “Direction”). The Direction came into effect on 28 February 2019.
The Tribunal accepts that the Direction is consistent with the Act and the Tribunal has therefore applied the Direction in making its decision in this matter.
Paragraph 6.1(1) of the Direction states that “[t]he objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”.
Paragraph 6.2 of the Direction sets out general guidance for decision-makers as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about the future.
(3)The principles provide a framework within which decision-makers should approach this task of deciding whether to refusal or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
The Principles referred to are set out in paragraph 6.3 of the Direction as follows:
(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.

Paragraph 7(1)(b) of the Direction requires that a decision-maker, informed by the principles in paragraph 6.3, must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 8 of the Direction provides that:
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. 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.
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary consideration should generally be given greater weight than other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
While the Direction provides that primary considerations should generally be given more weight, it is now well-established that the Tribunal, in exercising its discretion, can give equal or greater weight to any consideration.[7]
CONSIDERATION
[7] Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303.
Primary considerations
Paragraph 13(2) of the Direction provides that in deciding whether to revoke the mandatory cancellation of the non-citizen’s visa, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
The protection of the Australian community
Paragraph 13.1 of the Direction provides that:
(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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)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.
Nature and seriousness of the conduct
Paragraph 13.1.1 the Direction provides that:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
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;
d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)The cumulative effect of repeated offending;
g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
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);
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.
At the hearing the applicant did not seek to dispute the details of his New Zealand offences as those offences were described in the information provided by New Zealand police. They included theft related offences involving a motor vehicle and some stereo equipment. The applicant accepted responsibility for his offending although he did seek to emphasise that he was not the principal offender and that it was more a case of being involved with the wrong crowd rather than offending at his own initiative.
The Tribunal found the applicant’s evidence with respect to the New Zealand offences to be frank and forthright. While his memory of the offending was somewhat vague that is entirely understandable given the passage of time. While the Tribunal does not have the benefit of the sentencing judges’ comments regarding the New Zealand offences, based on the suspended sentence it is reasonable to surmise that the offending was at the lower end of seriousness although certainly not insignificant offending. In reaching this conclusion the Tribunal accepts the applicant’s evidence that he was not the instigator of the offending and that his involvement in the incident was very much out of character.
The applicant told the Tribunal that his conviction for the New Zealand offences had a very significant impact on him and that he had been determined to learn his lesson and not to reoffend and has not done so. There is no evidence of the applicant having offended again in a similar manner. Given the significant passage of time with no suggestion of a propensity for offending of this kind the Tribunal is satisfied that the risk of the applicant offending again in this manner is negligible.
The Tribunal has a greater concern in respect of the applicant’s more recent Australian offences. The details of these offences are set out earlier in these reasons. They involve a series of domestic incidents and include family violence order breaches and breaches of conditions of bail.
While the Tribunal accepts that there is no evidence of actual physical violence inflicted by the applicant on the applicant’s former partner (or anyone else), the Tribunal is satisfied that the applicant’s conduct towards his former partner over the course of the period of offending involved at least a perceived threat of violence. This was sufficient in her mind to justify her seeking the family violence order in the first place and then also to justify in her mind the decision to leave the house during the 1 August incident, and then subsequently separate from him. The impact of the applicant’s conduct on that night was further compounded by the subsequent multiple breaches of the family violence orders perpetrated by the applicant over the subsequent days.
The Tribunal is not satisfied that the applicant at any time demonstrated an intent to physically harm his former partner. Rather, the applicant’s behaviour during the 1 August incident was a consequence of his emotionally distressed state where he was acting in a manner that was irrational and unpredictable. He was certainly suicidal. Nonetheless, the Tribunal is satisfied that the applicant’s behaviour had the effect of causing the applicant’s former partner to be fearful and concerned for her safety and the safety of the children.
The Tribunal is also satisfied that during the 1 August incident the applicant’s former partner felt a genuine concern regarding the safety of the children, although again the Tribunal is satisfied that there is no evidence that the applicant has ever physically harmed his children in any way or ever threated to do so. The Tribunal also accepts that the applicant did not intend to cause harm to his children at any time during the 1 August incident (or at any other time) although the incident would have been incredibly confusing and frightening for the children to witness.
The Tribunal accepts the applicant’s evidence that he has a very genuine and deep love and affection for his children. It was clear to the Tribunal that his children mean a great deal to the applicant and that he is genuinely remorseful for having exposed them to the 1 August incident and his offending conduct more broadly and is determined to ensure that they are never exposed to such behaviour again.
As referred to earlier in these reasons, there was dispute between the parties regarding some details of the applicant’s offending and, in particular, some details regarding the applicant’s behaviour during 1 August incident. While the applicant did not seek to dispute the essential elements of his Australian offences he refutes the suggestion by the respondent that he had invited police to shoot him “in front of my kids” while in very close proximity to them thereby putting them at serious direct risk.
While, based on the evidence before it, the Tribunal is not satisfied that the applicant expressly used the precise words as put by the respondent it is satisfied that the applicant was, through his conduct and words, inviting police to shoot him while in relatively close proximity to his children and that therefore there was a serious risk of physical harm to the children as a consequence. Again, the Tribunal is satisfied that the applicant was acting irrationally and in an extremely distressed emotional state at this time.
The Tribunal accepts that the applicant’s offending involved repeated breaches of family violence orders and also bail conditions and in that sense his Australian offences have involved some level of disregard for Australian law. In addition, the fact that the applicant’s offending took place in the context of family violence orders and bail conditions that were designed to afford protection to the family does also increase the level of seriousness of the offending in the mind of the Tribunal. As observed by Stanley J (with Peek and Hinton JJ agreeing) in R v Saunders:[8]
The purpose of those instruments [intervention orders] is to prevent acts of domestic violence which are often emotional and psychological as much as physical. Everyone is entitled to feel safe and secure, especially in their own residence. The violation of that sense of safety and security can have profound consequences for the victim. The community expects the law to protect the vulnerable from the oppressor. This has led the courts to treat crimes involving domestic violence as grave crimes. Parliament has enacted laws designed to provide protection to those subjected to domestic violence. The making of intervention orders is intended to provide this protection.
[8] [2017] SASCFC 86 at [26].
For these reasons the Tribunal is satisfied that the applicant’s Australian offences constitutes serious offending for the purpose of the Direction.
The risk to the Australian community
In considering the risk to the Australian community, the Direction provides that 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;
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 decision should not be delayed in order for rehabilitative courses to be undertaken).
Given the serious nature of the applicant’s Australian offences, the Tribunal is satisfied that any repeat of offending of that type has the potential to cause very serious emotional and psychological harm to members of the Australian community. In addition, the respondent contends that if offending of the type consistent with the Australian offences was repeated there would also be a risk of physical harm. While again the Tribunal notes that there is no evidence of actual physical harm of any kind being perpetrated by the applicant, the Tribunal does accept that if the type of conduct that occurred during the 1 August incident were to be repeated it would also involve a risk of potential physical harm to others.
The applicant contends that the risk of him repeating such conduct is negligible. He argues that his conduct during that period must be understood in the context in which occurred, that is the breakdown of his relationship and having learned of his former partner having intimate relations with his brother in law. The applicant contends that the manner in which he behaved during that period is not reflective of his broader character. He described his conduct during that period as being an aberration. The applicant cited as evidence the fact that he had remained law-abiding for a very considerable period of time following his New Zealand offences and that the Australian offences were the only example of him engaging in offending conduct during the entire time he had been living in Australia.
The applicant told Tribunal that he has now moved on from his relationship with his former partner and has commenced a new relationship. He told the Tribunal that he is committed to ensuring that he does everything necessary to secure a positive life for himself and his new fiancé and also to be able to make a positive contribution in the lives of his children.
The applicant emphasised the fact that his offending had not involved any form of drug or alcohol dependence or any other significant external factors that are still present in his life. The applicant acknowledges that at the time of his offending he was very significantly emotionally distressed but maintains that he has now moved on from this former relationship and that he no longer feels consumed by those feelings.
During the course of his direct evidence the applicant made clear his remorse for his offending conduct and his determination never to repeat it.
The applicant also provided the Tribunal with a number of supporting statements from his new fiancé, his family members and pastors of his church in support of his contention that the risk of him reoffending is minimal. The supporting statements reference the difficulties the applicant had growing up including his exposure to a very troubled relationship between the applicant’s mother and father, his otherwise good character, his strong remorse for his offending conduct and his determination not to offend again in the future.
The applicant’s new fiancé, Ms L, described the applicant as having a “kind soul” and that together they have a “loving relationship full of kindness and respect founded on our shared Christian values”. Ms L described the applicant as being of zero risk to herself and her daughter stating that the applicant is “consistently calm, caring and introspective” and “reliable and trustworthy”. Ms L also described the applicant as making positive contribution to the community including by volunteering for men’s homeless shelters and sporting events.
The applicant’s brother, Mr SA, described the applicant as being “careful, loving, considerate and dedicated to the well-being of others especially his children and siblings”.
Another brother of the applicant, Mr SO, described the applicant as being a “great brother, hard-working father to his beautiful children, respected by his peers, leads by example and loves his family unconditionally”.
The applicant’s cousin, Mr KT, described the applicant as being a devoted father and husband and noted the significant emotional impact the breakdown of his relationship with his former partner had on him. Mr KT described the applicant as being very remorseful and determined not to reoffend again.
The Tribunal materials included a psychological assessment undertaken by Ms Gina Cidoni, a consultant psychologist. Ms Cidoni interviewed the applicant over the course of three hours. Ms Cidoni stated that the applicant presented as a “polite man who was tearful during the interview. He gave his best to testing procedures”. Ms Cidoni described the applicant as exhibiting “a general sadness and depressed mood about his life or himself”. Ms Cidoni noted that the applicant “reported recent suicidal ideation. He feels guilty, regretful and is self-deprecating. He reported feeling unhappy, withdrawn, lacking energy, having a poor appetite, difficulty sleeping and concentrating. He ruminates excessively”.
Ms Cidoni stated that the applicant was “very remorseful”. Ms Cidoni concluded that the applicant had coped “very poorly when he discovered his partner was having an affair with his sister’s husband”. Ms Cidoni concluded that the applicant’s mental health is compromised with low mood and anxiety and that there are “signs that he suffered maladjustment in response to his relationship breakdown”. Ms Cidoni stated that the personality testing she undertook supported a diagnosis of “Adjustment Disorder with a Major Depressive Episode”. Ms Cidoni stated that the applicant’s condition is “linked to his offending and that his ability to exercise appropriate judgement and to make calm and rational choices (to think clearly) was at the time, impaired”. Ms Cidoni concluded that the applicant requires further counselling to address the trauma and maladjustment that he has experienced in connection with the breakdown of his relationship as well as broader trauma the applicant suffered being exposed to violence and abuse as a young child.
There was evidence before the Tribunal in relation to a number of courses the applicant has undertaken during his time in custody including a two-part course titled “Mapping a way forward” completed on 11 December 2019, as well as a “Prison Legal Education and Assistance Project Family Law Presentation” he attended on 23 August 2019. There was also evidence that the applicant had enrolled in a behavioural program titled “Man-up” but was unable to undertake the course as a consequence of being taken into custody.
The applicant provided evidence that he remains committed to undertaking a course of this kind as well as other counselling on his release. The applicant acknowledged more generally that he would benefit from ongoing counselling in the management of his mental health conditions and gave evidence that he was committed to seeing his GP on his release in order to finalise an appropriate mental health plan to ensure the effective management of his mental health conditions. The Tribunal is satisfied that the applicant is committed to the steps necessary to effectively manage his mental health conditions.
The Tribunal is satisfied that the applicant’s Australian offences were a consequence of a very specific set of circumstances associated with the breakdown of his relationship with his former partner, Ms G, and including the particularly significant impact from learning of his former partner’s intimate relationship with his brother in law.

The Tribunal is satisfied that the applicant found this experience to be traumatic and, had difficulty in appropriately responding to it. This does not excuse in any way the applicant’s offending behaviour which was serious offending that no doubt caused fear and distress for the applicant’s former partner, as well as having a significant adverse impact on the children. However, the circumstances that gave rise to the offending provide important context both in terms of understanding what occurred and in assessing the risk of it being repeated.
The Tribunal accepts Ms Cidoni’s assessment that as a consequence of the trauma associated with the breakdown of his relationship, the applicant suffered an Adjustment Disorder with a Major Depressive Episode and that the applicant was, at the time of his offending, in a very agitated emotional state which in turn impacted his judgment and capacity to make calm, rational choices. The Tribunal accepts that at the time of the 1 August incident the applicant was suicidal. The Tribunal acknowledges that the situation that presented on that day would have been extremely confronting for the applicant’s former partner, his children and others who were exposed to the situation.
The Tribunal also accepts the submission of the applicant that he is genuinely remorseful and embarrassed about his behaviour during the period of his offending. Contrary to the submission of the respondent, the Tribunal is satisfied that the applicant accepts responsibility for his behaviour, acknowledges that it was wrong and that it has had a significant adverse impact on his former partner and children. The Tribunal notes that in the applicant’s written statement the applicant acknowledged the “pain my children and ex-partner have gone through because of my selfish and irresponsible actions”.
The Tribunal acknowledges that at times during his evidence the applicant challenged some factual details being put to him, but the Tribunal is satisfied that he accepts responsibility for the essential elements of his offending.
The Tribunal accepts that during the course of his evidence the applicant was, at times, critical of his former partner’s own behaviour during the breakdown of his marriage. However, the overwhelming sense the Tribunal had of the applicant’s evidence, taken as a whole, was that he recognised his own wrongdoing in committing the offences and was deeply remorseful and regretful for it.
The Tribunal accepts the applicant’s evidence that he has moved on from his former relationship and that his main focus now is building a positive life in Australia with his fiancé. The Tribunal accepts the applicant’s evidence that he is committed to securing access to his children though appropriate legal avenues and playing a positive parental type role in their lives, including by providing them with the emotional and financial support that they need.
The Tribunal accepts that the applicant needs ongoing counselling in the management of his mental health and is satisfied that the applicant’s stated commitment to pursue ongoing counselling and put in place an appropriate mental health plan is credible and reliable.
The Tribunal accepts that the applicant has taken positive steps to prepare himself for a return to life in the community through undertaking a number of educational programs and that he remains committed to undertaking further programs, such as the Man-up program, if released back into the community. The Tribunal accepts that the applicant has a positive record during his time in custody, including by undertaking a number of classes and responsible jobs during his time in prison.
The Tribunal is satisfied that if released back into the community the applicant will have a number of protective factors in his life, including the benefit of ongoing support from family and friends and also members of his Church.
Apart from his mental health issues, which the Tribunal is satisfied the applicant is committed to effectively managing, the Tribunal is otherwise satisfied that there are no other external factors that remain present in the applicant’s life that increase the risk or likelihood of conduct similar to his Australian offences being repeated.
The Tribunal is satisfied that the very particular circumstances that gave rise to the Australian offences, including the applicant learning that his former partner had commenced an intimate relationship with his brother in law, were sufficiently unusual to have a reasonable expectation that such circumstances are not likely to be repeated.
Significantly, there was evidence before the Tribunal that the applicant has had a number of prior relationships with no evidence of him having behaved inappropriately towards any of his former partners in a manner similar to his Australian offences. The respondent argues that the ability of the applicant to effectively manage his behaviour has not yet been tested in the community. However, in the Tribunal’s view, the absence of evidence of any similar conduct in respect of previous relationships does strongly suggest that the applicant is generally able to manage relationships, including relationships coming to an end, in an appropriate manner.
The Tribunal is also mindful that during the significant period of time the applicant has lived in Australia, other than his more recent Australian offences there is no evidence that the applicant has offended in any way.
While the applicant told the Tribunal that he would occasionally have a few drinks with his former partner, there was no evidence that the applicant has an issue with drugs or alcohol of any kind.
For these reasons, having weighed all of the evidence before it, the Tribunal is satisfied that the risk of the applicant repeating conduct similar to his Australian offences is extremely low. Notwithstanding this, given the serious nature of his offending conduct, the Tribunal is satisfied that this consideration still weighs against revocation of the applicant’s visa cancellation but not significantly so.
The best interests of minor children in Australia
Paragraph 13.2(4) of the Direction provides that in considering the best interests of the child, the following factors must be considered where relevant:
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);
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 in the 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 non-citizen’s ability to maintain contact in other ways;
e)    Whether there are other persons who already fulfill 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.
There was evidence before the Tribunal of a number of minor children relevant to this consideration.
The applicant has five minor children with his former partner, Ms G: MS aged 2; AS aged 4; GS aged 7; AyS aged 10 and MaS aged 12. The applicant gave evidence that the children are currently being cared for by his former partner but that he provides some level of financial support. The applicant conceded that as a consequence of the current intervention order he is presently prevented from having any contact with the children.
The applicant’s evidence was that he has a loving relationship with his children and described very fond memories of having spent time with each of them prior to his incarceration including taking them out for activities at the park, the movies and reading to them and making them laugh. He described having played a big part in his children’s lives as a strong and stable father figure providing both financial and emotional support.
The applicant described spending time with his eldest son, MaS, including playing with him on his X Box and teaching him about computers. He described enjoying spending time with his eldest daughter teaching her to read. He described providing particular support for his two younger daughters who suffer from autism. The applicant has spent less time with his youngest child who is only two years of age.
The applicant told the Tribunal that he missed his children very much and was concerned about his inability let them know how much he loves them and to reassure them that he is OK. The applicant described his concern that if forced to relocate to New Zealand his children would grow up in Australia without a father physically in their lives and without the level of emotional and financial support he is able to provide if he remains in Australia.
The Tribunal is satisfied that the applicant has a very genuine and strong love and affection for each of the children and is genuinely committed to providing emotional and financial support for them on an ongoing basis and generally playing a positive role in their lives. The applicant told Tribunal that he had sought advice on the appropriate steps he should take to secure some access to the children on his release. The Tribunal is satisfied that there is reasonable prospect of the applicant achieving this outcome if he takes the appropriate steps to do so. However, given the existence of the intervention order the Tribunal is mindful of the fact that the applicant’s capacity to play a substantive role beyond financial support in the immediate future is limited.
The Tribunal accepts that the applicant has not harmed the children directly in any way although the children were certainly exposed to the applicant’s emotional and erratic behaviour during the period of his offending including the 1 August incident. The Tribunal is satisfied that the applicant did not intend to harm his children in any way and is deeply remorseful and regretful for his offending behaviour, and in particular his behaviour during the 1 August incident.
For the reasons set out above, the Tribunal is satisfied that the likelihood of the applicant repeating such behaviour is extremely low.
Further, given the applicant’s strong devotion to his children and his commitment to seeking access to the children through lawful means, the Tribunal is satisfied that the applicant is likely to play a positive parental type role in the lives of the children in the future, including by helping to support them emotionally and financially. The weight given to this factor is tempered by the fact that, as a consequence of the current intervention order, it is likely that the applicant’s capacity to play such a role will be in some respects limited for a period until such time as he is able to secure parental access.
The Tribunal is satisfied that in the event that the applicant is required to relocate to New Zealand it is very likely that his capacity to secure access to his children will be significantly constrained, and that therefore his capacity to play a positive parental type role in their lives in the future will similarly be significantly constrained.
For these reasons, the Tribunal satisfied that it is in the best interests of each of the applicant’s five biological children with his former partner for the applicant to remain in Australia. The Tribunal is satisfied that in all of the circumstances of the case this consideration should weigh significantly in favour of revocation of the applicant’s visa cancellation.
There was also evidence that the applicant has established a connection to his fiancé’s daughter, NL, who is 15 years of age. The evidence before the Tribunal was that the applicant has had limited contact with NL, although the applicant has stated his commitment to supporting NL together with his fiancé if released back into the community. Again, if the applicant is required to relocate back to New Zealand his capacity to play such a role will be very significantly constrained. The Tribunal accepts the applicant’s evidence in this regard, however this consideration is tempered by the limited nature of his connection with NL and also the fact that NL is an older child with only a few years before she reaches the age of 18. The Tribunal is satisfied in all the circumstances that it would be in the best interests of NL for the applicant’s visa cancellation to be revoked however this consideration is tempered for the reasons stated.
For these reasons, the Tribunal finds that this consideration weighs significantly in favour of a decision to revoke the cancellation of the applicant’s visa.
Expectations of the Australian community
Paragraph 13.3(1) of the Direction provides that:
(1)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 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 Tribunal has approached this consideration consistent with the reasoning in YNQY v Minister for Immigration and Border Protection[9] (YNQY) as well as the more recent Full Federal Court decision in FYBR v Minister for Home Affairs (FYBR).[10]
[9] [2017] FCA 1466.
[10] [2019] FCAFC 185.
In applying this consideration, the Tribunal has had due regard for Government’s stated views as set out in the Direction including those described in paragraph 13.3(1) referred to above as well as the general principles set out in paragraph 6.3 of the Direction.
The Tribunal has also been mindful of factors relevant to the applicant’s specific circumstances including that:
(a)prior to his Australian offences the applicant had lived in Australia for a considerable period of time as a law-abiding citizen;
(b)the applicant has made some positive contribution to the Australian community through employment activities and also through his volunteering, support of sporting clubs and also his Church;
(c)the applicant has demonstrated genuine remorse for his offending; and
(d)the Tribunal’s conclusion for the reasons stated earlier that the risk of the applicant reoffending again in the same or similar manner is extremely low.
Notwithstanding these factors, the Tribunal acknowledges that the applicant’s Australian offences were serious and caused fear in the mind of his former partner and also exposed his children to the very troubling events that occurred in the 1 August incident. In the circumstances of the case it is reasonable to conclude that this consideration should weigh against the revocation of the cancellation of the applicant’s visa. However, the Tribunal is satisfied that this conclusion is tempered to some degree by the mitigating factors described above, the particular circumstances surrounding the Australian offences and the absence of an unacceptable risk of reoffending.
For these reasons, the Tribunal is satisfied that this consideration weighs against revocation of the cancellation of the applicant’s visa but not significantly so.
Other considerations
International non-refoulement obligations
There was no claim made by the applicant that international non-refoulement obligations were owed and therefore this consideration weighs neither for nor against revocation of the cancellation of the visa.
Strength, nature and duration of ties
Paragraph 14.2 of the Direction provides that:
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to the 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).
The applicant has resided in Australia since 2012 and has well established family connections and other social ties to Australia.
In addition to his children and new fiancé, the applicant has a number of siblings who reside in Australia, three sisters, AH, LS and AB and three brothers, PS, SA and SO. As referred to earlier, a number of the applicant’s siblings have provided statements in support of the applicant which make clear their desire that he remain in Australia. There was evidence that the applicant’s oldest sister, AH, has recently been diagnosed with advanced metastatic breast cancer which is terminal and is currently in need of family support with evidence of a significantly reduced life expectancy.
There was also evidence that the applicant’s mother, who also lived in Australia, recently passed away which has had a significant emotional impact on the applicant and his wider family.
The Tribunal accepts that a decision requiring the applicant to relocate to New Zealand is likely to have an adverse impact on the applicant’s broader family in Australia and reduce the level of support he is able to provide his broader family in response to their present difficulties including his sister’s serious health condition.
The applicant has also stated that he has 10 uncles and aunts, 20 nieces and nephews and 10 cousins residing in Australia although there was very little information provided in relation to each of them other than a supporting statement provided by his cousin, KT. The Tribunal accepts that a decision requiring the applicant to relocate to New Zealand is likely to have an adverse impact on his wider family although the Tribunal has not given this factor any significant weight given the limited evidence of a strong connection with them.
The applicant gave evidence in relation to the commitment he has to pursuing a life in Australia with his new fiancé, Ms L. There was also a supporting statement provided by Ms L. That statement describes Ms L’s own commitment to the relationship and the strong support she believes the applicant can provide her if released back into the community. In her statement, Ms L describes currently experiencing significant challenges in her life including having recently lost both her parents and also suffering from anaemia and depression. Ms L states that as a consequence of her conditions she struggles to cope with day to day household duties and that she believes the applicant can play an important supportive role in her life and also provide additional support for her daughter. Ms L states that she has no idea how she will cope emotionally and financially without the applicant’s support and physical presence in her life. The Tribunal accepts the evidence presented by the applicant that he has a strong and loving relationship with Ms L and accepts that a decision requiring the applicant to relocate to New Zealand is likely to have a significant adverse impact on the future of that relationship and, as a consequence, Ms L herself.

There was also evidence before the Tribunal of the applicant having made a contribution to the Australian community through his church, volunteering, sporting clubs and through his employment activities. There was evidence that the applicant had a reputation for hard work having previously had employment in warehousing for a cool store and a major supermarket chain, as a rideshare driver and also doing casual work as an audio technician. The Tribunal accepts the applicant’s evidence in this respect and accordingly has given some limited weight to his contribution to the community.
For these reasons, and in particular the impact his removal from Australia is likely to have on his fiancé and also his siblings, including especially his terminally ill sister, the Tribunal is satisfied that this consideration weighs significantly in favour of revocation of the cancellation of the applicant’s visa.
Impact of Australian business interests
There was no evidence before the Tribunal that Australian business interests would be impacted in the sense contemplated by the Direction if the cancellation of the applicant’s visa is not revoked. Therefore, this consideration weighs neither for nor against revoking the mandatory cancellation of the visa.
Impact on victims
There was no specific evidence before the Tribunal as to the impact of revocation of the cancellation of the applicant’s visa would have on any victim of his offending. Therefore, this consideration weighs neither for nor against revoking the mandatory cancellation of the visa.
Extent of impediments if removed
Paragraph 14.5(1) of the Direction provides 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 Tribunal accepts that the applicant has no established family or close social networks in New Zealand that he has maintained contact with and that therefore he is likely to face some challenges in seeking to re-establish his life in New Zealand if required to relocate there.
The Tribunal acknowledges that the applicant would likely suffer significant emotional hardship as a consequence of being separated from his fiancé and children as well as other family members located in Australia.
However, the applicant has lived in New Zealand for a significant period of time prior to his arrival in Australia and therefore the country is not unfamiliar to him. There was no evidence before the Tribunal of any significant language or cultural barriers that the applicant is likely to face in New Zealand.
The applicant is still relatively young at approximately 46 years of age and in relatively good physical health. There was some evidence that the applicant suffers from type 2 diabetes although the applicant also stated that during his time in custody, he had lost an amount of weight and was in better physical health as a consequence.
The Tribunal acknowledges that the applicant has an ongoing need for counselling in the management of his mental health conditions. There is no evidence before the Tribunal that would suggest that the applicant would not be able to receive social security assistance in New Zealand including access to public health services.
The Tribunal accepts that securing employment would involve some challenges for the applicant in the short term given the period of time he has been absent from the country and his recent incarceration. Notwithstanding this, the Tribunal is satisfied that the applicant is likely to have reasonable employment prospects in the medium term given his history of consistent employment in Australia and his proven strong work ethic.
The Tribunal is satisfied that notwithstanding some short-term challenges, it is likely that the applicant would successfully re-establish himself in New Zealand and be able to maintain basic living standards there.
For these reasons, the Tribunal satisfied that the impediments if removed consideration weighs in favour of the revocation of the cancellation of the applicant’s visa but not significantly so.
CONCLUSION
The Tribunal is satisfied that the applicant does not pass the character test as set out in section 501(6)(a) by reason of his substantial criminal record. Therefore, the Tribunal is required to consider whether or not to exercise the discretion in section 501CA(4)(b)(ii) of the Act to revoke the cancellation of the applicant’s visa for “another reason”.
In weighing the relevant considerations, the Tribunal has been particularly mindful of the seriousness of the applicant’s Australian offences which the Tribunal is satisfied caused his former partner to be fearful and exposed his children to the risk of harm.
Notwithstanding the serious nature of the offending the Tribunal is satisfied that the applicant’s conduct during the period of his offending is not reflective of his broader character, but rather was the result of significant mental health issues he suffered as a consequence of an Adjustment Disorder with a Major Depressive Episode which impacted his ability to exercise judgment and make calm, rational decisions.
For the reasons set out earlier, the Tribunal is satisfied that the applicant has now moved on from his previous relationship and is genuine in his commitment to undertake further counselling and otherwise do what is necessary to effectively manage his mental health conditions. Given these conclusions and the existence of other protective factors, including the support of his new fiancé and family and his positive plans for the future, the Tribunal has assessed the risk of the applicant engaging in similar offending behaviour again in the future to be extremely low.
The Tribunal acknowledges that the community expectations consideration is against revocation but the weight given to this consideration is tempered by a number of mitigating factors including the extremely low risk of reoffending in a similar manner, his remorse and the absence of any other offending during the significant period of time he has lived in Australia.
The Tribunal has also had regard to a number of other countervailing considerations including the contribution he has made to the community prior to his offending, the impact his relocation to New Zealand would have for his fiancé and family, and in particular his terminally ill sister, and also the challenges he would face in seeking to transition back into life in New Zealand.
The most significant countervailing consideration however is the impact on his five minor children with his former partner. While the Tribunal acknowledges that through the applicant’s own conduct the children were exposed to a very troubling incident and a risk of harm, there is no question in the mind of the Tribunal that the applicant is a loving father who is genuinely committed to providing for his children and playing an important and positive role in their lives. The Tribunal accepts that the applicant is genuine in his stated commitment to provide for them emotionally and financially. While the weight of this consideration is somewhat tempered by the fact that the applicant is currently constrained in his access to the children as a consequence of the intervention order, the impact his behaviour has had on them and the fact that their mother would appear to be adequately providing for them in his absence, nonetheless the Tribunal is satisfied that there is a reasonable prospect of the applicant securing some access to the children in the future, and that a decision to require the applicant to relocate to New Zealand would have a very significant adverse impact on the children’s relationship with their father and his capacity to help support them. The Tribunal is satisfied that it would be in their best interests, as well as the applicant’s finance’s daughter, for the applicant to be able to remain in Australia. This has been a significant factor in the mind of the Tribunal.
On balance, the Tribunal is satisfied that the correct or preferable decision in all of the circumstances of the case is for the decision under review to be set aside and the mandatory cancellation of the applicant’s visa to be revoked.
DECISION
The Tribunal sets aside the decision made by the delegate of the Respondent dated 15 May 2020 and in substitution decides to revoke the cancellation of the Applicant’s Subclass 444 Special Category (Temporary) visa pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

I certify that the preceding 159 (one hundred and fifty nine) paragraphs are a true copy of the written reasons for the decision of The Hon. Matthew Groom, Senior Member

[sgd]..............................................................
Associate
Dated: 18 November 2020

Dates of hearing: 4 and 5 August 2020

Applicant: Self-represented

Advocate for the Respondent: Mr Oliver Morris

Solicitors for the Respondent: Clayton Utz

Dates of hearing:	4 and 5 August 2020
Applicant:	Self-represented
Advocate for the Respondent:	Mr Oliver Morris
Solicitors for the Respondent:	Clayton Utz