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

XSLJ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3792 (2 November 2022)
Division:GENERAL DIVISION
File Number(s): 2020/0413
Re:XSLJ
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:2 November 2022
Place:Sydney

The correct or preferable decision is to set aside the delegate’s decision dated 21 January 2020 not to revoke the mandatory cancellation of the Applicant’s Special Category (Subclass 444) visa, and in substitution it is decided that the mandatory cancellation of the Applicant’s visa is revoked.
..........................[SGD].............................................
The Hon. John Pascoe AC CVO, Deputy President
Catchwords
MIGRATION - visa cancellation – mandatory cancellation under s 501(3A) of the Migration Act 1958 – where the applicant does not pass the character test – whether there is ‘another reason’ to revoke the cancellation – consideration of Direction No. 90 – protection of the Australian community – best interests of minor children – expectations of the Australian community – links to the Australian community – reviewable decision set aside.
Legislation
Migration Act 1958 (Cth) s 499, 501
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Secondary Materials
Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
2 November 2022
background

By way of an application filed on 22 January 2020, the applicant seeks review of the decision of a delegate of the Respondent dated 21 January 2020 not to revoke the mandatory cancellation of the applicant’s visa pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act). The decision not to revoke the cancellation was made under subsection 501CA(4) on the basis that the delegate was neither satisfied that the applicant passed the character test nor that there was another reason why the cancellation decision should be revoked.
I note that the Respondent’s Statement of Facts, Issues and Contentions contain a helpful factual summary of this application, much of which is replicated below.
The applicant is a 43 year old citizen of New Zealand, who first arrived in Australia on 13 December 2003 at age 24. Prior to the cancellation decision, the applicant held a Special Category (Subclass 444) visa (the visa).
The applicant has three minor children: two children, TD and CD with his former partner, TS, and one child, SD with another former partner, RL. The applicant declared that he previously worked as a panel beater for more than six years and claims to have paid taxes in Australia, although there is no evidence before the Tribunal which confirms that the applicant complied with his tax obligations. The applicant has not been employed since 2010, a period of 12 years.
The applicant has an extensive criminal history in both New Zealand and Australia. Prior to the applicant's arrival in Australia, the applicant committed a number of offences between 1996 and 2001, such as 'possess methamphetamine, deal methamphetamine, possess knife in public place, aggravated assault, hinder and resist police'.
The applicant's first Australian conviction was recorded in 2006, less than three years after his arrival in Australia. His offending history in Australia includes convictions for 'never licensed person drive a vehicle', 'goods in personal custody suspected stolen', 'possess prohibited drug', 'resist officer', 'supply a prohibited drug', 'manufacture prohibited drug (commercial quantity)', 'possess utensils or pipes etc for use', 'possessing dangerous drugs', 'assault occasioning actual bodily harm in company of others', 'custody of knife in public place', 'supply a commercial quantity of methamphetamine and manufacture prohibited drug >= large commercial quantity'.
On 14 October 2010, the applicant was involved in an operation for the manufacture of drugs that caused an explosion in the rear-shed of a property that was rented by the applicant (2010 incident). The applicant was 31 years old at the time of the incident. The explosion killed his 23 year old co-offender and resulted in the applicant receiving third degree burns to 80% of his body and being placed in an induced coma for three and a half months. Between 2012 and 2017 the applicant was charged and tried for manslaughter but was ultimately acquitted, by jury direction, of the manslaughter charge.
The applicant was ultimately convicted of offences in relation to the manufacturing of drugs on 21 May 2018 relating to his arrest in 2010. He was convicted of manufacturing a large commercial quantity of a prohibited drug and sentenced to a term of imprisonment; being two years, five months and 28 days with a non-parole period of 362 days. The sentence was varied on 29 August 2018 to four years imprisonment with a non-parole period of two years and 6 months.
While awaiting sentencing in relation to the 2010 incident, the applicant was on bail. The applicant committed further offences involving supplying a commercial quantity of methamphetamine from New South Wales to the Northern Territory between January 2015 and May 2015The applicant was arrested at Darwin Airport on 4 August 2016 and taken into criminal custody.
The applicant was subsequently found guilty on 2 November 2017 of unlawful supply to another person of a dangerous drug, namely methamphetamine, with the aggravating circumstance that it was a commercial quantity, being 191.39 grams with an estimated value of between $100,000 to $200,000. The applicant was sentenced on 8 November 2017 to a period of six years’ imprisonment, with a non-parole period of three years, backdated to 4 August 2016.
On 10 August 2018, the applicant's visa was mandatorily cancelled, pursuant to subsection 501(3A), as the applicant did not meet the character test because he was serving a term of imprisonment and had a substantial criminal history.
Pursuant to paragraph 501CA(3)(b) of the Act, the applicant was invited to make representations about why the decision to cancel his visa should be revoked. The applicant provided representations and a completed Personal Circumstances form, dated 17 August 2018. He also provided several character references from his then de facto partner, family members, his then social worker, psychology reports and an offer of employment. The applicant also provided responses to the natural justice letters.
On 21 January 2020, a delegate of the Minister refused to revoke the cancellation of the applicant's visa.
The Tribunal first heard this matter in March 2020, and the decision under review was affirmed. The applicant successfully appealed the decision to the Federal Court of Australia, and the matter was remitted to be determined according to law. The Tribunal heard the matter a second time in February 2021, and the decision under review was affirmed. The applicant again successfully appealed to the Federal Court, and the matter was remitted to the Tribunal to be determined according to law. It is that application that is to be determined.
the issue
It is agreed by the parties that the Applicant does not pass the ‘character test’ as defined by s 501(6) of the Act as he has a substantial criminal record under s 501(7)(c) of the Act. Therefore, the only issue before the Tribunal is whether there is ‘another reason’ why the original decision, being the mandatory cancellation of the Applicant’s visa, should be revoked pursuant to s 501CA(4) of the Act.
the law
The relevant legislation and policy is outlined below.
Section 501CA(4) of the Act states:
(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.
On 8 March 2021 the Minister made the Direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4). The Direction came into effect on 15 April 2021.
Paragraph 5.2 of the Direction sets out the following principles relevant to the exercise of the discretion:
(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-biding, 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) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be sufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Section 6 of the Direction provides that, informed by the principles in paragraph 5.2 of the Direction, a decision-maker must take into account the considerations identified in section 8 and 9, where relevant to the decision.
Section 8 of the Direction provides that the four primary considerations are:
(a)protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(b)whether the conduct engaged in constituted family violence (Primary Consideration 2);
(c)the best interests of minor children in Australia (Primary Consideration 3); and
(d)expectations of the Australian community (Primary Consideration 4).
Section 9 of the Direction provides that the four other considerations which must be taken into account where relevant are:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims;
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia;
(ii)impact on Australian business interests.
Oral evidence
Oral evidence of the Applicant
The Applicant first came to Australia when he was 24 years old.
The Applicant gave evidence of an extremely dysfunctional and abusive childhood and that he was a victim of physical and sexual abuse, and a witness to significant domestic violence. His schooling was, at best, sporadic and the Applicant was functionally illiterate until he took steps, as an adult, to improve his reading, writing and comprehension skills.
The Applicant gave evidence that he loved cars and had previously worked as a panel beater. He had not had any trouble securing work and did not expect to have any difficulty obtaining work if he were to be released into the Australian community. He said that he was highly motivated to find a job and to be able to provide for his children.
The Applicant expressed considerable remorse for the harm that he had caused to the Australian community.
He said that he had not really thought much about his life until he received a long sentence from the Supreme Court of the Northern Territory (‘NT’). He said that during that time, he had a chance to consider his life and he realised that the only person who had the power to change his life positively was himself. He did not seek to blame others and took responsibility for himself. The Applicant said he started to exercise and to think about his children, with whom he had previously considered only marginally on the basis that they were with their mother and he did not need to worry about them.
The Applicant re-established contact with his children approximately six years ago, and now has very regular contact with all three of them. His two older children with TS, being TD and CD (aged nine and six), and he stated they have had very little stability in their life. The applicant sought to interact with them regularly and try to give them some structure. He said he participated in homework with the children and devised games to keep their attention. It appeared that in his regular life, he had regular contact with the children.
The Applicant’s son, SD, was considered ‘at risk’ and was being cared for by foster parents.
The Department of Family and Community Services had been involved with all the Applicant’s children, whose mothers had continued to use illicit drugs. The Applicant’s aim was to have the children live with him, “to be present” for the children and to ensure that they did not go through “what he has been through”. The Applicant accepted that it would not be easy but felt that he would have significant support from others.
The Applicant wanted to have “custody” of all the children and accepted that this would take time and would not be easy. All of the children’s mothers appeared to be willing for the children to at least spend substantial time with the Applicant.
The Applicant accepted that he had been guilty of family violence towards his previous partners, although he said that, in the past, he had not regarded that “yelling” and “manhandling” as family violence. The applicant gave evidence of a large amount of self-improvement courses he had undertaken of his own volition whilst in immigration detention. The Applicant gave evidence that he had been drug-free for the last six years and said that he understood that if he were to use drugs again, it would “ruin everything”.
The Applicant accepted the importance of routine and gave evidence of this routine in immigration detention. Whilst in detention, he gave evidence that he has been seen as a leader and was seeking to assist other inmates. He also collects plastic bottles for recycling, for which he gets money which is then donated to charity.
The Applicant gave evidence that most of his relatives were in Australia, particularly his sister and her two children (CK, aged 10, and BT, aged 22) who he said were close to him.
The Applicant was questioned thoroughly about his drug offending and other criminal history, including assault occasioning bodily harm and the manufacture and supply of drugs.
The Applicant accepted, under cross-examination, that his children were getting better care than he himself had received as a child.
He said he felt that it would be difficult for him to maintain a relationship with the children if he were returned to New Zealand, although he accepted it would be possible to have a relationship with them via technology. The Applicant said that he wanted to provide stability for his children, though he accepted that he had not done so in the past. He had completed a number of courses, relating to parenting skills and recovering from drug addiction, whilst in detention and said that he would live with his sister if he lived in the community. He would also seek employment and save money so that he was able to take care of the children.
The Applicant accepted that he was likely to face very significant stressors if he were to be released into the community, but felt that he would be able to cope with them, especially if he was responsible for this children and able to provide assistance to his sister. The Applicant said that he does not see New Zealand as his home. His children were born in Australia and are Australian Citizens, and that it would be a cultural shock to him if returned to New Zealand, and that it would be difficult for him.
The Applicant gave evidence as to his medical history which included bilateral heel fractures which he said can “flare up” from time to time, and back, neck and elbow pain. The Applicant said that none of these issues would affect his capacity to work.
Oral evidence of SB
SB is a clinical psychologist with 45 years’ experience. He affirmed his two reports dated 13 March 2020 and 7 August 2022. SB said that he had seen many positive gains on the part of the applicant between the two reports. The Applicant had completed a number of courses, he had taken a leadership role in immigration detention and was helping other people. SB said that the Applicant was very “goal-directed” and had taken concrete steps which were very positive. He referred to the Applicant’s very strong desire to connect with his children and his long period of abstinence from drugs, which SB said meant that one could have greater confidence that there would not be a relapse.
SB said the Applicant did not want his children to suffer the same emotional deprivation and cycle of abuse and drug addiction that he himself had faced and that if the Applicant were deported to New Zealand and separated from his children, this would be a major stressor on the Applicant and a reason for him to give up on his rehabilitation.
SB said that it was very important for the Applicant’s children that the Applicant be in their lives and referred to the importance of strong attachment and a strong parental presence in the lives of the children.
The Applicant’s tight knit family unit will be of assistance if the Applicant is one day released into the community. SB accepted that the Applicant will face considerable challenges if he is to be released into the community, including the stressors of re-engaging with his children and ultimately seeking custody for them. SB noted, however, that “life itself is stressful” and that although he may face different stressors in the community, he has already shown he is capable of dealing with stress.
SB’s attention was drawn to the Applicant’s previously limited contact with his children, but felt that he had now had a strong commitment to his children and his family.
Evidence of AR
AR gave evidence that she worked as a case manager at Lifestyle Solutions, an ‘authorised Out of Home Care Service provider in New South Wales’. She is currently trying to find a placement for the Applicant’s youngest child, SD, who she said has a very strong need for stability in his life.
AR gave evidence that the ideal situation would be for SD to return to parental care and form strong bonds with a parental figure. She said that her goal is to increase face to face visits between the Applicant and SD and said the Applicant needs to come up with a plan for SD, complete appropriate courses and engage properly with the reintegration process which she said would likely take about two years. Ultimately a change of permanency in relationship to SD and “restoration” of SD to his father would require court proceedings.

AR said that she would provide ongoing support for the Applicant if he had care of SD.
SD was said to have developmental difficulties, although was not believed to have Autism Spectrum Disorder. He was said to enjoy his interactions with his father.
Evidence of SL
Mr SL reaffirmed his statements of 24 February 2020 and 25 June 2022. He regards the Applicant as a ‘son-in-law’ and the father of his grandson SD, who he said is currently in care of the Minister of Family and Community Services. SL said he strongly supported the Applicant having care of SD, saying that his daughter RL had made no changes to her lifestyle and drug use and could not provide a good lifestyle and environment for SD.
SL strongly supports the Applicant having custody of his children and said that he was the “only option” as both mothers of the Applicant’s children have “dropped the ball”.
He felt that the Applicant had made a huge effort to turn his life around and be a positive influence in the lives of his children. In his opinion, the Applicant was truly remorseful and he had conversations with the Applicant where the Applicant understood the problems of his past behaviour and showed a determination to move on, although he accepted that this would be very difficult.
SL said that he would give the Applicant every support, both emotional and financial, and that he would be there “24/7” for him because of the Applicant’s efforts to improve himself and his honesty when dealing with SL.
SL did not feel that the Applicant posed any risk to the Australian community because he dealt with his issues, was remorseful and understands the impact caused by his past conduct.
SL had visited the Applicant in detention.
He was aware of the Applicant’s previous domestic violence offending and also of SD’s challenging behaviours which he felt would be exacerbated were his father to be removed from Australia. He said that TD and CD displayed behavioural difficulties and that he felt it would be very much against their interests if the Applicant were to be returned to NZ.
Evidence of JC
JC affirmed his statement of 8 July 2022.
He said that he had been a carer on multiple occasions for TD and CD. He said that the Applicant had consistently been in touch with the children and had played games with them. JC said that the Applicant was part of the lives of his children and when he had taken the children to see the Applicant in immigration detention he saw them “climbing all over the Applicant”. He had known TD and CD for most of their lives and they had suffered so much trauma.
He said that the children needed a loving and stable parent. Whilst the children were with him, they had stability and routine, but since being returned to their mother they had “gone backwards”. He felt that they needed a strong father figure in their lives.
JC was aware of the Applicant’s previous domestic violence offending and said that he believed that both the Applicant and the children’s mother had contributed to the children’s trauma. He accepted it would not be easy for the Applicant, particularly given the lack of parenting experience
Evidence of PJB
He affirmed his statement of 4 July 2022.
PJB has known the Applicant for 14 years. He had first met him about 14 years ago and after a lapse of contact had re-engaged with him in the last year or so.
PJB’s son had asked him to assist the Applicant but he had no knowledge of the specifics of the Applicant’s criminal offending.
He stated that his conclusions, which he said were based on his own observations, led him to be confident that the Applicant was “off drugs”.
Evidence of GP
GP affirmed her statement of 6 July 2022. She stated she had taken care of the children for a limited time.
She had taken TD and CD to see the Applicant with the Applicant’s ex-partner TS, and said that the Applicant was very happy and grateful to see them both. She had found the Applicant calm and polite. She was aware of the Applicant’s criminal history and she had observed “sensational” progress.
She said that the Applicant had been in very regular contact with the children whilst in her care and that he had been supportive, positive and compassionate when dealing with the children.
The Applicant had also been happy to simply watch his children playing and being present for them.
GP had faith in the Applicant’s ability to parent his children and believed that he would be able to deal with the responsibility of parenting. She said she would help him as best she could.
GP was happy to offer the Applicant a place to live if he needed it in the event that he were released back into the community.
Evidence of JW
JW affirmed her statements of 4 January 2021 and 5 May 2022.
JW said that she was in regular contact with the Applicant through Facebook and was impressed with his proactive approach to and the regularity with which he contacted his children.
He was honest and open and genuinely interested in the progress of his children.
She said that Applicant had a proactive approach to parenting and that he had overcome a lot. She also said that the Applicant had regrets about the past. When cross-examined, she said she had a lot to do with TS, the mother of TD and CD, but not so much the Applicant.
TS had cut off contact with JW. JW had taken care of the children for two weeks and during that period, she had observed a very positive interaction between the children and their father. She had also observed that the children had some behavioural problems.
Evidence of PD
PD reaffirmed her two statements of 28 May 2020 and 25 January 2022.
The Applicant gave evidence of an extremely traumatic childhood. She had been a victim of serious physical and sexual abuse at the hand of a number of other persons, including people she trusted.
She gave evidence that she suffers from severe ADHD and complex PTSD. She has been a drug user and has also survived breast cancer. She said that when she was growing up, there was “just me and him”, referring to the Applicant, and that the only stable positive person in her early life had been the Applicant.
PD said she really needed the Applicant to be physically present in her life. The Applicant could live with her were he to be released into the community. She said she had a lot of work to do in dealing with her own issues but that she and the Applicant would be there for each other.
Evidence of BT
BT affirmed his statements of 24 August 2018, 21 January 2021 and 5 July 2022. BT is the Applicant’s nephew.
BT said that he knows about the Applicant’s criminal record but felt that he had grown significantly as a person and that he was very proud of what the Applicant had been able to achieve. The Applicant had been a father figure to him, and he is in regular contact with the Applicant.
When questioned, BT said he had a younger brother who lives with him and his mother.
He said his uncle had “always been there for him”, whether or not the Applicant was on drugs. He said he had been in frequent contact with the Applicant since the Applicant had been in immigration detention and said he would maintain contact even were the Applicant returned to NZ.
Primary consideration 1 – PROTEction of the Australian community
In considering this primary consideration, I have had regard to paragraph 8.1 of Direction 90.
There are two aspects to this consideration – the nature and seriousness of the conduct of the non-citizen, and the risk to the Australian community should the non-citizen reoffend.
Nature and seriousness of the offending
As outlined above, the Applicant has an extensive criminal history both in Australia and in New Zealand.
Most of his offences relate to drug crimes, with a pattern of increasing seriousness.
The Tribunal notes that the applicant was charged with other offences, including manslaughter, but was not convicted. Further, the Applicant was convicted of some offences during the time that he was on bail.
There is no doubt that the Applicant’s criminal offending is objectively serious, and this was acknowledged by the applicant at the hearing.
At the time of his last conviction in the NT, the sentencing judge noted the Applicant’s involvement was premeditated and that he was more than just a “courier”. Further, the Applicant was convicted of manufacturing a prohibited drug in New South Wales in 2007, was convicted of possession of dangerous drugs and assaulting or obstructing a police officer in 2008, was convicted of possessing equipment for administering drugs, possessing a prohibited drug and goods suspected of being stolen in 2014 and had further convictions for assault and possession of a knife. The sentencing judge also noted that some of the applicant's offending occurred while he was on bail for the 2010 incident.
The sentencing judge noted that, at that time, the Applicant did not have a good chance of rehabilitation because of his previous criminal history and his long history as a drug user.
The Applicant received a sentence of six years’ imprisonment with a non-parole period of three years, which clearly reflects the seriousness of the crimes for which he was convicted.
Risk to the Australian community should the applicant reoffend
In considering this matter, I have regard to 8.1.2(2) of Direction 90.
There was much discussion at hearing about the Applicant’s “lightbulb moment” whilst he was in gaol in the NT. The Applicant said that whilst he was in prison in the NT, he had time to think and consider the path that he had taken. He said that he had determined to turn his life around, to be free of drugs and to be a productive member of the community and a good father to his children.
He said that he had been drug-free since that time despite the fact that drugs were freely available both in the NSW prison and immigration detention.
I accept the Applicant’s evidence that he made the decision to turn his life around and that he has been drug-free since the time of that decision. I note that there are numerous statements from various people in the Applicant’s life that reference the Applicant’s ongoing sobriety.
In assessing the risk to the community however, I must also take into account his long history and the danger posed to the Australian Community should he reoffend.
The insidious and far-reaching consequences of drug trafficking are well known including the exposure of others to a potentially lethal habit, and the generation and ability to generate amounts of “black money” which is often used for anti-social purposes, including bribery and other forms of corruption in addition to tax avoidance which deprives the community of money to provide essential services, including healthcare.
SB, who provided two reports which were before the Tribunal, initially assessed the Applicant as being of “extremely low” risk of re-offending and relapsing into drug use. However, during cross-examination by counsel for the Respondent, he amended his assessment from low to moderate, when his attention was drawn to the Applicant’s long criminal history and the stressors he is likely to face once he is back in the community.
SB also said that if released, he felt that the Applicant would have a good support network and that the skills that he had learned in immigration detention would be important to him in resisting any return to drug use.
SB noted the Applicant’s determination to break free of the cycle of drug use and his long period of abstinence which he said gave him greater confidence that the Applicant will not relapse.
I also note the oral evidence of AR, SL, GP, PD and BT as to the support they are able and willing to provide, along with the numerous written statements entered into evidence on behalf of the Applicant attesting to this.
The ability to be with PD and support her as a victim of long-term CPTSD and trauma is also important an appropriate factor to take into account in assessing risk to the Australian community. I am of the opinion that PD’s reliance on the Applicant is a motivating factor against his reoffending, although I note that it does not appear to have been a deterrence in the past.
In assessing the evidence overall, including the very serious nature of the Applicant’s crimes I am of the opinion that the risk to the Australian community should be assessed as moderate.
Taken as a whole, this consideration weighs heavily against revocation.
Primary Consideration 2 – family violence
In this regard, I note paragraph 8.2.2 of Direction 90.
The applicant admitted to domestic violence offences but at the time of commission, was not aware of what may have constituted domestic violence, although he admitted that this was not an excuse for such behaviour.
The applicant did not appear to have been charged or convicted of domestic violence offences; however, domestic violence of any kind is unacceptable and often causes very significant harm especially if witnessed by children.
I give this consideration moderate to heavy weight against revocation.
Primary Consideration 3 – Best interests of minor children
The Applicant is the father of three young children – TD, CD and SD. TD is nine, while CD and SD are both six.
There was very clear evidence that all three children are at risk, have suffered trauma and exhibit behavioural difficulties. They have grown up with mothers who are drug-addicted and the evidence was that their mothers are unable or unwilling to care for them alone. I note there is evidence before the Tribunal that SD has been placed in the care of DCJ permanently, while TD and CD have twice been temporarily placed in foster care. The evidence was clear that children need a strong and stable parental influence in their lives.
It would appear from the evidence that the Applicant is the only person who could provide an ongoing, stable environment for the children. I accept his commitment and willingness to do so.
The Respondent drew attention to the fact that the Applicant has only recently developed a strong ongoing relationship with the children. This has been particularly the case since the Applicant has been in immigration detention, but there is evidence of contact between the Applicant and his children while in prison, including visits to the Applicant in prison. The evidence from GP of the visit was very positive.
AR gave evidence that SD, in particular, was resentful of being in care and that his living arrangements were not stable. I accept the evidence that all of the children want to be with their father. That evidence was quite consistent amongst a number of witnesses who had taken care of the children at different times and/or had observed the Applicant’s interaction with his children, and is reiterated consistently throughout the written material before the Tribunal.
The children are Australian citizens and it is highly unlikely that they could be removed to NZ. They need a parent in Australia. All of the evidence before the Tribunal was to the effect that the Applicant is the only person able to provide a stable parental role in the lives of the children for the foreseeable future.
I am of the view that the Applicant understands the difficulties he will face as a parent and that he is committed to ensuring that his children have a better life and do not fall into the same lifestyle as himself.
The Respondent, quite properly, made much of the fact that the Applicant had limited parenting experience and interaction with the children. I find however that the interaction he did have was positive.
I note also that for most parents, parenting is a learning experience which is not easy and can be very stressful at times.
In an ideal world, there would be another person without the difficulties the applicant has faced and will face in the future, but that is not the case here. The very best hope for these children is to live with their father and for him to provide a stable and positive role model for them. I do not believe it is too late for him to do so. The Applicant has a close-knit network of family friends who have all said they will help him with the children, including the maternal grandfather of SD, and the mother of TD and CD. This is also in the best interests of the children and should help them to find stability and a safe place to grow up.
I give weight to the observations of SB, a consultant clinical psychologist, who stated:
[The Applicant]’s involvement in his children’s lives, in my opinion, crucial to ensure their psychological, emotional and physical development, and to prevent the repetition of intergenerational patterns of drug and alcohol abuse.
The Applicant has two nephews in Australia, one of whom is a minor. There was little evidence of the Applicant’s role in his life, except for the evidence of his sister that he was a positive influence on both her children.
Overall, I find this consideration weighs very heavily in favour of revocation.
Primary consideration 4 – Expectations of the Australian Community
Direction 90 sets out the expectations of the Australian Community. Broadly, these encapsulate the findings of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185, where the Full Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4.
There is clear authority that it is not the Tribunal’s role to determine for itself the expectations of the Australian community. The Tribunal’s role is to determine the weight to be given to this consideration.
In assessing the weight to be assigned to this consideration, I have regard to both the Applicant’s very long history of offending which started very shortly after his arrival in Australia, the nature and severity of his offences and the harm done to the Australian community.
I also take into account the Applicant’s traumatic childhood and the lasting effects of violence and sexual abuse experienced as a child. The Applicant and his sister experienced things to which no child should be exposed. They do not appear to have had any support or any stable adult role model in their lives. SB characterised the Applicant’s childhood and adolescent development as “defined by emotional upheaval, neglect and abuse.”
It is apparent that the Applicant and his sister were completely failed by the child protection system in New Zealand. The Applicant came to Australia as a damaged adult. I accept his sister’s evidence that drugs and alcohol were a way to ease the pain of the abuse suffered and that the Applicant would have had to deal with the same demons.
The Australian community, although having a low tolerance of the crime of the type committed by the Applicant, also has much compassion for victims of childhood abuse and trauma. It is an issue that the community has had to face as a result of multiple revelations about abuse that has occurred in Australian institutions.
In my view, the community would also be supportive of the Applicant’s desire to provide a strong parental role model for his children and to avoid the children following the same path as he himself had followed. Without the applicant, it is likely that the community need to provide direct support for the children.
I also take into account the Applicant’s very real efforts to rehabilitate himself and his demonstrated capacity to contribute to the welfare of others while in detention.
Given these mitigating factors, I give this consideration moderate weight against revocation.
Other considerations
International non-refoulement obligations
This consideration is not relevant in this matter.
IMPEDIMENTS TO REMOVAL
The applicant grew up in New Zealand and lived there until he was 24 years old. He has had regular visits to New Zealand and a return there would not be a cultural shock for him. He would be able to work in New Zealand in similar occupations to the work he proposes to do in Australia. He is likely to have family support if he were to return to New Zealand and have to re-establish himself in that country. He would also have access to welfare and health support in the same way as all New Zealand citizens would.

It is clear from the evidence however that the applicant requires ongoing support. It would take time for him to find such support in New Zealand either in terms of psychological support or a strong network of family and friends. Whilst trying to establish such networks, it is clear that he would struggle.
None of those who support him would be likely to spend time in New Zealand, and particularly in the Applicant’s circumstances, contact via technology would not provide the same level of support. I also accept the evidence that if the Applicant were to be deprived of his links to his family, that may be a factor which might cause him to relapse into drug abuse.
It is also relevant to this consideration that the Applicant suffered significant trauma and child abuse in New Zealand, and on the evidence available to the Tribunal, did not receive support. He finished school functionally illiterate and has taught himself how to read and write in order to improve his capacity to function in society. There does not appear to be anything positive for the Applicant in returning to New Zealand, and on the basis of the evidence before the Tribunal in fact there may be considerable “downside” in relation to the Applicant’s welfare if he were to be returned.
I give this consideration very heavy weight in favour of revocation.
IMPACT ON VICTIMS
Although there was very limited evidence about a domestic violence incidence with TS, some of which was disputed by the Applicant, I find that there is not sufficient evidence to give any weight to this consideration.
Links to the Australian COmmunity
Strength, nature and duration of ties
The Applicant has spent the last six years in prison or detention.
He does not appear to have been able to provide any financial support to his children or family, but I accept the evidence he has provided a high level of emotional support and that it would be a significant “wrench” and a negative impact on his family if he were to be returned to New Zealand.
A weighty factor in this case is that the Applicant’s sister is highly dependent on him for support. I accept her evidence that she and her brother are “there for each other” and that he could not provide the same level of support to her were he returned to New Zealand. As she said in her evidence, contact via social media is not the same as regular physical contact. The Applicant’s sister’s evidence was harrowing for the Tribunal and for counsel. Her experience as a child can only be described as shocking and deeply disturbing. I have no doubt she needs ongoing support and that the support of her brother, the Applicant who has been the only stable and positive figure in her life. I give significant weight to the very real damage likely to be caused to the Applicant’s sister if he were to be removed to New Zealand. I accept her evidence that his physical presence is very important to her, and that it is not the same when he is not physically present in her life.
I accept that the Applicant has previously worked in Australia, has an offer of work, initially as a labourer, and that he plans to return to work as a panel beater, a job for which he has experience and qualifications.
I also note that the Applicant appears to have a brother in Australia, although there is limited evidence before the Tribunal of their relationship, and has a nephew, BT, to whom he appears quite close.
I also note that the Applicant has other links to the Australian community, including his ex-partner TS, his ‘father-in-law’ SL, and various other friends and associates who have entered written statements to the Tribunal on his behalf.
Impact on Australian business interests
This part of the consideration is not relevant in this matter.
I give this consideration, overall, moderate to heavy weight in favour of revocation.
COnsideration
This is a very difficult case because the Applicant’s very serious criminal history must be weighed against his efforts to change his life around and what I accept is his determination to do so. The welfare of his children is a very important issue. These are three children who are at serious potential risk and without a stable parental figure in their lives if the Applicant were prevented from providing a strong, stable and ongoing parental role. The Applicant’s sister must also be given very serious consideration. She has suffered enormous damage, she is a survivor of shocking abuse, her brother is exceptionally important in her life and has been the only ongoing positive and stable influence.
It is clearly in the best interests of the Applicant’s children that they be given the opportunity to have a strong and positive parent as part of their lives.
In weighing all of the considerations, in my view, the best interests of the children particularly when coupled with the needs of the Applicant’s sister outweigh those considerations which weigh against revocation. Much was said at the hearing about the Applicant having a “second chance”. I made it clear that the case was not about that issue, but rather about the evidence before the Tribunal at the time of the hearing.
The reality is, however, that the Applicant will be given a second chance. It is vital to him and his children that he succeeds.
Decision
The correct or preferable decision is to set aside the delegate’s decision dated 21 January 2020 not to revoke the mandatory cancellation of the Applicant’s Special Category (Subclass 444) visa, and in substitution it is decided that the mandatory cancellation of the Applicant’s visa is revoked.

I certify that the preceding 150 (one hundred and fifty -five) paragraphs are a true copy of the reasons for the decision herein of the Hon. John Pascoe AC CVO, Deputy President.

...............................[SGD].........................................
Associate
Dated: 2 November 2022

Date(s) of hearing: 5 & 6 October 2022

Solicitors for the Applicant: Ms M. Lewis, Crossover Law Group

Counsel for the Respondent: Mr D. Helvadjian

Solicitors for the Respondent: Ms S. Prasad, MinterEllison

[2022] AATA 3792

2 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Remedies

Statutory Construction

Jurisdiction

Date(s) of hearing:	5 & 6 October 2022
Solicitors for the Applicant:	Ms M. Lewis, Crossover Law Group
Counsel for the Respondent:	Mr D. Helvadjian
Solicitors for the Respondent:	Ms S. Prasad, MinterEllison