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

XVNQ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1559 (12 June 2024)
Division:GENERAL DIVISION
File Number(s): 2024/1808
Re:XVNQ
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mr Rob Reitano, Member
Date of decision: 12 June 2024
Place:Sydney

I set aside the delegate’s decision and substitute in its place a decision revoking the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
........................[sgd]................................................
Mr Rob Reitano, Member
CATCHWORDS
MIGRATION –– visa cancellation – protection of the community – very serious criminal offending – likely harm of re-offending - risk of re-offending - expectations of the Australian community –– nature, duration and ties to community – best interests of children -– impediments if removed – impact on mother who was a victim of offending - weight of considerations when compared to one another -- satisfaction about other reason – best interests of children is other reason - decision to refuse to revoke cancellation set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
Crimes Act 1900 (NSW)
CASES
CRNL v Minister Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)
REASONS FOR DECISION
Mr Rob Reitano, Member
12 June 2024

The Applicant asks the Tribunal to set aside a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (Minister) who refused his request to revoke a decision cancelling his Class TY Subclass 444 Special Category (Temporary) visa (Visa). He also asks the Tribunal to revoke the decision cancelling the visa so that he can remain living in Australia.
The Applicant’s visa was cancelled because he failed the character test in the Migration Act 1958 (Cth) (Act) following being sentenced to three years imprisonment.
The Applicant can only have the decision which cancelled his visa revoked if he can satisfy the Tribunal that there is ‘another reason’ to revoke that decision. That is because the Act provides that as a ground for revoking a decision cancelling a visa and it is the only ground available to the Applicant which will achieve that objective.
I am satisfied that there is another reason to revoke the decision cancelling the visa and what follows are my reasons for arriving at that satisfaction.
ANOTHER REASON TO REVOKE THE CANCELLATION?
In deciding whether there is ‘another’ reason to revoke a decision cancelling a visa the Tribunal is required to conform to Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction) which is a direction given to the Tribunal by the Minister under the Act.[1]
[1] s.499(2A) of the Act.
The Direction provides a methodology which is designed to assist decision makers in determining whether there is ‘another reason’ to revoke a decision cancelling a visa.
The Direction contains principles to be applied and matters that are to be considered in each case.[2] The principles are important, and I have had regard to them in making this decision. The principles require decision makers to address various considerations that are relevant to the task at hand. In the usual case the approach requires balancing various considerations that might reasonably favour or be against revocation of a decision cancelling a visa. Failing the character test in the Act, which is a reason why a visa is mandatorily cancelled in the first place, invariably means that there has been serious criminal or other conduct that will count against revoking a visa cancellation because the paramount concern of the Australian government is protection of the Australian community. The expectations of the Australian community also usually count against revocation because in those expectations resides the notion that ‘if you break the law that will be held against you…’.[3]
[2] Paragraphs 5.2(6) and 6.
[3] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [101] (per Stewart J).
In most cases there will also be factors that favour revocation of a visa cancellation. These may include things like the fact that the person has been in Australia for a very long time contributing meaningfully to the community, which is a matter for which credit should be given where it is due. It may be that members of the Australian community will be poorly affected by a visa cancellation which may mean their family member, friend, colleague, associate or employee will need to leave Australia and live elsewhere. Another matter that may count in favour of restoring a visa is that there are children whose best interests should be prioritised ahead of the protection or expectations of the community. There are other matters that rationally might favour restoring a visa such as the difficulty a person might have in re-establishing a reasonable standard of living when they are returned or the effect on victims or Australian business interests. There may in any given case be other things that need to be considered.
The factors weighing against the visa remaining cancelled are often known as ‘countervailing considerations’ as they carry import against cancellation of a visa. The principles identify that in some cases the countervailing consideration may not be sufficient to justify revocation of a visa cancellation where the harm likely to be caused by repeat offending is insufficient to justify revoking cancellation. Equally so, there may be, and will be, cases where the countervailing consideration justify revoking a visa cancellation. As will be seen, this is a such a case.
It is important that some of the things to be considered generally are weightier than others. The protection and expectations of the community, the existence of conduct involving family violence, the best interests of children and ties to the community will all generally be more important than the existence of Australia’s obligation not to send someone back to a country where they might suffer harm, impediments to re-establishing life in the country of origin, the views of victims or the impact on Australian business. The first four matters affect the Australian community directly. That may not necessarily be so in all cases.[4] The matters that need to be considered do not dictate the result; the decision is always one that rests with the decision maker and her or his evaluation of the circumstances of a particular case.
[4] Ibid at [76] (per Charlesworth J).
The process involves evaluating each matter and comparing them to one another to determine which of them, or group of them, is of greater or lesser importance. The entire process has as its focus arriving at a decision about whether there is a rational basis for revoking a visa cancellation.[5] The process is not mechanical, nor does it involve completing a checklist or applying a formula.[6] It is important to give genuine consideration to all matters.[7] In that regard it hardly needs to be said that protection of the Australian community is not the only relevant consideration which is unsurprising in a civilized society. The consequences of any decision are very serious and so it is necessary to approach the exercise with care, weighing up the importance of the interests at stake, and reaching a firm and reasoned conclusion about their respective and relative importance.
[5] CRNL v Minister Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [34].
[6] Ibid at [38].
[7] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3].
The approach adopted in these reasons is first to consider each of the matters that are relevant to identify and consider their importance and, second, to compare each of the matters one to the other. That will ensure that all relevant matters are evaluated and given the relative importance that is justified so as to arrive at a conclusion about whether there is another reason to revoke the cancellation of the visa.
PROTECTION OF THE COMMUNITY
The first matter that needs to be considered is the nature and seriousness of the Applicant’s conduct which involves criminal offending, and the harm and risk to the Australian community, should he offend again or engage in other conduct inimical to the welfare of the community or members of the community.
Between 14 June 2007 and 4 July 2008 whilst living in New Zealand, the Applicant was convicted of three offences of driving whilst having a blood alcohol limit higher than that which was permitted and two of driving whilst disqualified. Those offences were dealt with by way of periods of disqualification from driving, community work or community detention. In the same period, he was convicted of other offences including receiving stolen property, breach of a local liquor ban, disorderly behaviour, disorderly behaviour likely to cause violence and a breach of community work. For those offences, he received sentences of 100 hours community work, small fines or was simply discharged. Although large in number, the offences going by the sentences, which is all I know about them, were not serious.
On 12 September 2018, more than eight years after he arrived in Australia, the Applicant was convicted of driving with a mid-range prescribed content of alcohol, fined $750 and disqualified from driving for six months. Again, I know nothing about the circumstances of the offending other than that the Applicant failed a roadside breathalyser test. The fine and period of disqualification fairly reflects the level of social disapproval of such behaviour but it is not in the high range of penalties for such offending.
On 19 January 2019, the Applicant was dealt with for an offence of damaging property – domestic violence. He was sentenced to a 12 month conditional release order, a form of good behaviour bond, which included a condition that he observe the terms of an apprehended violence order. The circumstances involved the Applicant, after being out socialising with his partner (now his ex-partner who he remains on very good terms with) and others, returning home in the early hours of the morning being asked by her to leave because he had been drinking and was making a lot of noise. He did so. He returned the next afternoon and had an argument with his partner about his drinking. She asked the Applicant to leave, although this time I apprehend that the intention was that leaving be more permanent than what had been requested the night before. He did not leave. His partner went to her car and got in the car with their three children. The Applicant kicked the car twice causing some damage, a small dent. There was not much else relevant to the offence.
On 25 October 2022 the Applicant was convicted and sentenced in relation to the offences that led to him failing the character test and the mandatory cancellation of the visa. They involved two offences of intentionally recording an intimate image without consent and two counts of sexual touching without consent. The Applicant was sentenced to an aggregate term of three years imprisonment, but because the sentencing judge, Judge Harris in the District Court, found special circumstances, there was a non-parole period of two years. An aspect of the reasons for finding ‘special circumstances’ was Judge Harris’s conclusion based on several pre-sentence reports that ‘[The Applicant] will benefit from an extended period under supervision directed to addressing his mental health, related substance abuse and the sexual nature of his offending . . .’. I will say more about this later.
To understand the seriousness of the offending it is necessary to say a little about the facts. Shortly before 6.00am on 22 March 2021, the Applicant drove to an apartment block in Sydney’s inner west. He was badly affected by drugs. He went to get into a lift. The lift doors opened, and he saw a woman on the floor of the lift with her legs moving around in the air. She was intoxicated by a drug called gamma-hydroxybutyric acid. The woman had a short dress on so that with her legs in the air it was possible to see her underwear; a small G-string made of see through fabric which barely covered her genitals. The Applicant took out his mobile phone and videoed the woman. This included videoing her on her back with her legs spread apart and her genitals partially exposed. He recorded what was happening for 15 seconds. A few moments later he took a second video when her genitals were completely exposed. The woman was in no state to consent to being filmed.
The Applicant then took the woman outside and sat her on a ledge. Whilst she was seated, he reached between her legs and touched her vagina for 3 or 4 seconds. The woman brushed his hand away, but undeterred the Applicant held her down and touched her vagina again for a few seconds. The woman sat up and the Applicant continued to touch her vagina whilst moving the G-string to the side. That touching was ‘skin to skin’ and continued for about 15 seconds. The Applicant then placed the woman in his car. He went to a unit on the second floor. When he returned the police were present and an ambulance had been called. The Applicant was arrested and charged with many offences which included the four he was eventually convicted and punished for.
The Applicant defended the charges on the basis that he was simply and only assisting the woman. He was charged with some other offences, but he was found not guilty of them. He was found guilty by a jury of the four offences referred to.
There are two other aspects of the Applicant’s conduct to date that I should refer to before saying a little more about the seriousness of the Applicant’s offending conduct.
First, the Applicant was found whilst on bail to have breached a bail condition concerning reporting, but there was no consequence for him. The Applicant gave some considerable detail of his activities that day which were all back to back. His explanation that he forgot was not implausible. At the time it happened he admitted immediately he failed to report and offered the explanation that he had forgotten. He told the court so much at the time. His explanation seems to have been accepted then. I accept it now.
Second, the Applicant completed two incoming passenger cards, one in 2019 and the other in 2020, declaring that he had no criminal convictions. One of the cards was completed by his then partner. On both the answer was ‘no’. The Applicant explained that he understood the questions to be asking whether he had been to gaol and that is why he answered ‘no’. I accept his evidence about that. Many lay people do not understand the word ‘conviction’ and confusion about what it means amongst non-lawyers is not all that unusual. Also, the Applicant appeared to give his evidence honestly and I accept his evidence about it.
Returning to the seriousness of the Applicants offending in Australia. The Applicant’s criminal offending is very serious. His offences on 22 March 2021 were sexual offences against a woman and for that reason are treated by the Australian government and community as very serious. To the extent that they involved touching the woman and holding her down albeit briefly and albeit low level they involved violence. They were also committed against someone who was very vulnerable, an obviously heavily intoxicated woman. The sentence imposed, three years imprisonment, reflects the very serious nature of the offences. The maximum sentences for the offences, three years imprisonment for the recording intimate images offences and five years for the sexual touching offences also indicates that the offences are very serious.
The offence of damaging or destroying property - domestic violence is not as serious as it involved only very minor damage to property, but violence to property in the context of domestic violence should be viewed very seriously.
The Applicant’s other offences concerning driving whilst intoxicated and other matters all of which, except one, were committed many years ago and mostly in New Zealand. On the face of things, they were nowhere near as serious as his most recent offending. His offences in 2007 to 2008 were more frequent than his most recent criminal offending but there have been three groups of offending over three years in Australia in recent times. Viewed cumulatively the offending is very serious. It involves an escalation in seriousness over time because the most recent offences, the ones that led to his going to gaol, are the most serious.
Next, I should view the harm to the community should the Applicant offend again in future. The kind of harm to the woman, the victim of the most recent offending, is impossible to gauge because she had no recollection of what happened and, more significantly, there is no evidence about any harm to her. It is reasonable to describe the potential harm from any repeat offending as involving psychological harm but without much evidence it is difficult to determine how serious any harm might be. I accept that the offending conduct might reasonably lead to things like depression, anxiety and post-traumatic stress disorder, but I have significant difficulty coming to any meaningful conclusion about the probability of any likely harm and the seriousness of any harm that might arise, given the low level sexual nature of the offending and my assessment that any future offending is unlikely to involve serious physical violence or more serious violence of a sexual kind. A feature of all the Applicant’s offending is it did not result in any physical harm to people. Even, the damage that resulted from the incident involving the car was very minor.
It is impossible to know what the consequences of any of the other offences might have been because I know so little about their circumstances but drink driving potentially can involve serious injury, sometimes death. There is the social cost that offending of a serious kind carries in terms of law enforcement activities and the like. I should proceed on the basis that repeat offending is likely to carry with it potential harm to members of the community, but I do not think I should speculate about the seriousness of the harm beyond what I now know about the harm of the Applicant’s offending conduct to date, namely that it has not, so it would seem, resulted in any significant harm to members of the community. That is because a sound guide to future conduct is past conduct. It should not be the only relevant factor, but it is in my assessment an important one.
It was suggested that the Applicant’s poly-substance addiction meant that he might behave erratically in future. Although there was some support for that in the evidence of Dr Yoxall, to which I will turn in more detail in a moment, I am unable to conclude that any future offending is likely to involve significant harm to members of the community. Three matters albeit closely related point against such a conclusion. First, as I have mentioned the past offending by the Applicant, even when involving objectively viewed, very serious offences, does not on the evidence before me suggest any serious, ongoing harm to any of the victims of the offending. Second, none of the Applicant’s offending has manifest itself in physical violence of any kind resulting in injury to anyone. Third, it is relevant that all the Applicant’s offending and other conduct is indicative that he is not a violent person or of a violent disposition; three different classes of offending in the past have not on the evidence before me resulted in injury to anyone at all.

The Applicant’s driving offence in 2018 does a carry the potential for serious harm to members of the community as does his conduct in driving whilst affected by drugs on the day of his most recent offences. That harm is, of course, not unique to the Applicant’s conduct. Again, I should approach this matter some caution given that none of the Applicant’s conduct to date in driving whilst intoxicated by alcohol or drugs has led to any injury to property or, more relevantly, people. It is not possible to say that the Applicant’s future offending involving any driving whilst intoxicated would invariably or more probably than not involve serious harm to members the community. It may do so, but to put the matter higher, that is difficult, if not impossible.
Finally, I must deal with the likelihood of the Applicant re-offending based on evidence and information concerning the risk and any rehabilitation to date.
When the Applicant was sentenced Judge Harris had before her reports from a forensic psychologist and an officer of the relevant government department that assessed the risk of reoffending as ‘average’. Judge Harris expressed her opinion about the prospects of rehabilitation and likelihood of re-offending in careful terms:
Having regard to the totality of the material I am satisfied that the offender’s prospects of rehabilitation are at least reasonable, and perhaps better than that. His lack of criminal history and the salutary experience of the criminal proceedings custody will likely guard against future offending. His unresolved and longstanding drug and alcohol use remain the greatest and most immediate risk and I have not had the benefit of hearing from [the Applicant] and assessing his commitment to change.
Judge Harris’s observation about the salutary experience of being in custody has some foreboding about it having regard to the evidence given by the Applicant before me. In his evidence the Applicant said of being in gaol ‘it’s something I never want to go through again – I never want to go to gaol again’. That evidence was very genuine and suggests that specific deterrence may have done its work. I gained the strong impression that the experience of potentially being returned to New Zealand through the process of visa cancellation has also had something of a salutary effect on the Applicant as well.
Judge Harris also said some things concerning the supervision the Applicant should receive whilst on parole:
[The Applicant] expressed his willingness to participate in recommended interventions under supervision on parole including engaging with a psychologist. He has work available to [the Applicant] at Metropolitan Demolitions and the ongoing support of his family.
Once he is released into the community, his supervision should include monitoring of housing, return to employment, monitoring of his peers and social activities, and access to treatment in order to support stable functioning and rehabilitation.
The observations about parole and the Applicant’s willingness to participate in ‘recommended interventions under supervision’ and the importance of ‘access to treatment’ should not be deprecated. I gained the impression from the Applicant’s evidence that he was certainly prepared to do what was necessary to ensure that he did not return to the position he is in now. The Applicant was, if not already apparent, in my opinion, an honest witness.
A more recent report prepared by Dr Jacqui Yoxall, a forensic psychologist, assessed the Applicant’s likelihood of general reoffending as being in the moderate to high range. Dr Yoxall, like Judge Harris focussed upon the Applicant’s substance abuse as being the most significant factor that was relevant in that respect. Dr Yoxall described his likelihood of relapse into drug dependency as very high. The Applicant’s substance abuse started at an early age, and he has a long history of drug use including cannabis, heroin, methamphetamine and buprenorphine, some of which has continued in gaol and in detention. He has not consumed alcohol for more than two years. The links between the Applicant’s offending generally and his drug and alcohol use are obvious. His continued unresolved drug use means that there is a continued risk that he is likely to reoffend.
The Applicant has not done much rehabilitation by programmes and courses whilst in gaol and in detention. Dr Yoxall suggests that the Applicant had not engaged in any rehabilitation whilst in gaol as being ‘partly due to his learning difficulties and lack of confidence, but also because of continued avoidance behaviour’. Also, it seems that because of his assessed level of risk he was ineligible for the custody based sex offender programmes whilst in gaol. In detention he recently commenced an opioid substitution treatment program. That at least involves some progress, although given the Applicant’s kind of addiction it may not have been appropriate for him. It demonstrates some motivation for change.
In that regard, guided by the expert and the measured observations of Judge Harris, I consider that the Applicant’s risk of reoffending is most likely in the mid-range of likelihoods, perhaps a little higher than that. A matter that is important to my assessment and reasons for placing it below the high level of likelihoods is that if the Applicant is released into the community, he will proceed on parole at least until March 2025. That will see the Applicant supervised by the relevant authority, presumably consistently with the conditions referred to by Judge Harris. That, at least, would seem on its face to mitigate some of the risk of the Applicant re-offending at least in the short term, and perhaps for longer.
The other significant matters that mitigate against a high risk of re-offending are his motivation for him to address his drug dependence, his ex-partners support for him and his undoubted devotion to his children. Although those things were in his life before his most recent offending that was in a context where he had not endured over two years of separation from them and was not facing the stark reality of staring down the face of being returned to New Zealand without them. The experience of separation, incarceration, detention, and potential deportation are factors which having seen and heard the Applicant’s evidence will in my assessment weigh significantly upon him in future.
It follows that the protection of the community is a significant factor that suggests that the decision cancelling the visa should not be disturbed.
FAMILY VIOLENCE
The next matter I must turn to, given that one of the offences involve family violence, is the seriousness of that offence. I have already considered it in the overall offending but it has special importance because the Australian government has particular concerns about allowing non-citizens who have engaged in family violence to remain in Australia. The level of the concern is proportionate to the seriousness of the family violence engaged in.
Here there is one act of family violence that saw some minor damage, a dent, to a motor vehicle. It was more than trivial because the Applicant’s partner and children were present when it was engaged in, and they are likely to have been frightened by what happened. It did not involve weapons, physical violence to people or threats to people. There have been no other acts of family violence and there has been no rehabilitation engaged in. The likely fear that the children may have experienced is doubtful given the ex-partners evidence that the were unlikely to have been aware of it.
The relative lack of seriousness of the offence means that on its own it weighs slightly against revocation of the decision cancelling the visa.
TIES TO AUTRALIA
The next matter that I am required to consider is the impact of my decision upon the Applicant’s immediate family members, especially children, in Australia who are Australian citizens or people permanently living lawfully in Australia. This requires an assessment of the strength, duration and nature of family ties or social links generally to those people. Also relevant is the strength, nature and duration of other ties to the Australian community having regard to the length of time the Applicant has lived in Australia.
The Applicant’s former partner, who I have noted he remains on very good terms with, is an Australian citizen who he met about 12 years ago. The Applicant and his former partner have three children: aged ten, eight and six years of age. For now, it is sufficient to say they are Australian citizens who remain in their father’s life. I will say some more about them later when considering their best interests. Those ties to the community which are familial in nature are significant because they are to children.
The other significant ties the Applicant has to the community are to his former employer and one of his friends. His former employer who the Applicant worked for, for about eight years, spoke very highly of him referring to him as the ‘number one excavator operator’ and someone who deserved to win employee of the month every month. The Applicant’s employer has offered him work should he be able to stay in Australia. The other referee described the Applicant as hard working, responsible, a caring father and a contributing member to his local community. The Applicant has worked for almost all his time in Australia, including in the gaol cafe whilst in gaol. The Applicant has been in Australia for about 14 years and his offending in Australia commenced about eight years after he had been living here. He should be given some credit for the contribution he has made to the Australian community through work.
In my view, these things are important because familial and employment ties, especially ones of a long standing nature, are valuable to the Australian community. This consideration is important, weighing in favour of revocation of the decision cancelling the visa.
BEST INTERESTS OF CHILDREN
Next, it is necessary to consider the best interest of any children who are under the age of 18 years who may be affected by the decision to revoke the cancellation. The relevant enquiry concerns the best interests of children and not that of an applicant.
The Applicant as I have said has three children aged ten, eight and six years of age. They each have some years to go before they are 18 years of age. The two eldest are boys and the youngest is a girl. The eldest child is probably the most to have been affected by the Applicant’s absence from his life, but in my assessment the best interest of all the children very much involves the same sorts of matters.
A letter written by the oldest child addressed to ‘Dear Immigration Judge’ was in evidence and asked that the Applicant be permitted to go home ‘to help me and love me and teach me lots of new things.’ The letter went on ‘please let him come home to see me and my younger brother [name omitted] and sister [name omitted].’ It is fair to say that he obviously wishes to have his father back in the position he was in for about the first eight years of his life. It is fair to say that his evidence discloses a strong wish to have his father in Australia and in his life. It is reasonable to presume the other children are probably no different to him in that regard. The Applicant’s former partner, the children’s mother, described the Applicant as a ‘loving and caring father’ and the ‘apple of their eye’. Her short statement said:
Our children really need their father in their life, they will be absolutely devastated and heartbroken (as will I) if they do not have him as a regular part of their life. [The Applicant] is very hands on with the kids, helping them with homework and chores and just generally raising them to be good kids with good morals. They have found it extremely difficult not having him around whilst being in prison.
The Applicant’s partner is unequivocal in her belief that the Applicant would be a positive influence in the children’s lives. She has offered the Applicant accommodation with her and the children upon his release form detention. She is emphatic that she will do all she can, despite separation from the Applicant, to enhance and encourage the children having relationship with their father. I accept her evidence as genuine and honest.
The Applicant played an active part in the children’s lives before going to gaol. The Applicant gave evidence about his relationship generally with his children, his support and love for them, his interactions with them in reading to them and helping them with homework, his spending time with them on weekends taking them to basketball and swimming and generally caring for them. He described himself as ‘like superman to my two sons and my daughter.’ His former partners evidence confirmed so much.
The Applicant has maintained a relationship with the children by speaking to them on the phone and by video calls whilst he has been in gaol and in detention. He speaks to the children most days, sometimes twice, including by reading to them and assisting them with their homework. In addition, the children have visited him about once or twice a month.
It is true that the children will be able to maintain a relationship of sorts with the Applicant on the phone and by video calls should he return to New Zealand, and perhaps they will even be able to visit him, but that is hardly a substitute for having their father in their lives every day, day in, day out. Although there has been a significant physical barrier in the relationship between the children and their father, presented by gaol and detention, the relationship between the children and their father has withstood the test of a long period of separation. The children are likely to be badly affected by seeing their father leave Australia on a more permanent basis.
I do not doubt that their mother is a devoted mother and parent to them and has done her very best to care for the children whilst their father has been absent. This consideration is, however, concerned with what is best for the children not just what might be good for them. I have no doubt that it would be best for the children to have both parents in their lives caring for them, nurturing them and giving them the safety and security that young children need. The view expressed by the children’s mother, the oldest child and, less relevantly, by the Applicant is that the Applicant should be in their lives. I share that view.
An issue is whether that will be so given the prospect that the Applicant’s likelihood of reoffending, that he may again offend and worse still again find himself in gaol. In that regard, his drug and alcohol abuse loom large. I have already dealt with the likelihood of reoffending as being moderate, perhaps a little higher. In the end I consider even if the Applicant were to reoffend it is at least best for the children that he be in their lives for now. That is, the risk is worth taking.
Another issue that is relevant in the same regard is that none of the Applicant’s offending was committed in front of the children; even when he kicked the car whilst they were inside, on the evidence the children were unaware that he had kicked the car. The fact that there is one incident of domestic violence of a minor kind over many years suggests that the incident is isolated. The fact that the Applicant may have argued with his ex-partner in front of the children is not to the point. That is a feature of many children’s upbringings. It is generally speaking not a source of significant impact and is outweighed by the benefit of having a loving mother and father around.
The other factor that is relevant is that none of the Applicant’s offending involves actual violent conduct towards people, far less towards his partner or children. There was no suggestion that the children had been witness to any aspect of the Applicant’s consumption of drugs or the aftermath of his consumption of alcohol or drugs. The Applicant’s own experience with his own father, and his awareness of the consequences for him of that, probably explains that. I do not consider that the Applicant would be a negative influence in his children’s lives if he remained in their lives.
This consideration is very important in favour of restoring the visa. I will say a little more about it when I come to compare the various matters that I have considered.
COMMUNITY EXPECTATIONS
Next, I must consider the importance of the expectations of the Australian community. Those expectations are that people who are allowed to live and be in Australia will obey Australian laws. From that it follows that where someone who has been permitted to stay in Australia has engaged in serious criminal offending, contrary to that expectation or where there is an unacceptable risk that they may offend, the expectation is that they should not be able to stay in Australia. Further, the nature of any concerns about a person’s character or of their offences may mean that not revoking the cancellation of a visa is consistent with that expectation. In this case there were family violence offences and offences involving violence against a woman so the expectation is that the visa would remain cancelled.
The issue then is what weight I should give to that expectation of the community that the visa should not be restored.[8] The criminal offending is very serious involving family violence and a sexual crime against a woman such that the community expectation in favour of cancelling the visa is well and truly engaged. The nature of the criminal offending is very serious, but the risk of re-offending is not unacceptable.
[8] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [77] (per Charlesworth J).
In those circumstances this consideration on its own carries weight in favour of not revoking the visa cancellation. I will specifically return to its relative importance when I come to compare the various matters I have considered.
IMPEDIMENTS IF REMOVED
The final matter to be considered in this case directs attention to the difficulties the Applicant may have if he is returned to New Zealand in establishing and maintaining a basic standard of living comparable to other people living in New Zealand.
The Applicant spent all his life until he was about 21 years old in New Zealand. He obviously knows New Zealand culturally and otherwise and there would no language barriers for him. He will have available to him as a citizen of New Zealand all the healthcare, welfare and other social supports available to ordinary New Zealanders.
Against these things in New Zealand, he will not have much, if any, social or familial support especially such as that that he likely to have in Australia from his ex-partner, children and potentially his sister. His mother and father are in New Zealand, but he does not have much of a relationship with them. He has sister in New Zealand, but he does not seem close to her at all. He would not live with them if he was required to go back to New Zealand. He would most immediately live with his ex-partner’s mother.
The Applicant will not have an offer of employment that he will be immediately able to take up albeit, I should acknowledge that his work ethic and skills as an excavator operator are likely to hold him in good stead. He will, though, be a person leaving the confines and structed environment of gaol and detention for the first time in quite a while, keeping in mind he went to gaol at the end of March 2022. He needs help with his drug and alcohol problem. In that context it will probably be no easy task for the Applicant to re-establish himself and a reasonable standard of living in New Zealand.
This matter weighs in favour of restoring the visa but not significantly so.
IMPACT ON VICTIMS
I must consider the impact of a decision not to revoke on members of the Australian community and the family members of the victim.
In this case the Applicant’s ex-partner was a victim of his offending that involved him in kicking her car and denting it. She has made clear that she, and her children, will suffer emotionally and financially if the Applicant is returned to New Zealand. This matter weighs in favour of revoking the cancellation of the visa.
RELATIVE IMPORTANCE OF THE MATTERS CONSIDERED

It is necessary to evaluate the relative importance of each of the matters I have considered. I have concluded that the Applicant’s offending, especially his offending on 22 March 2021, is very serious and its repetition would involve harm although not, based on past experience, very serious harm to members of the community. As the risk of reoffending is in the mid to high range of likelihoods, the protection of the community is important. So far as family violence offending is concerned that matter is of a little weight and is probably subsumed by the matters I have addressed in considering the need for the protection of the community. It was, it seems, an isolated incident and did not involve physical violence towards people.
In my assessment the best interests of the Applicant’s three young children carry great importance. The children have some time to go before they are each 18 years of age, their father has played an important role in their lives to date even whilst in gaol and in detention, the relationship with them has been maintained during that time, the children hold great affection for their father as he does for them, and significantly their mother strongly supports them and their father having a close and personal relationship in future. Although there is some prospect that things will go off the rails and the relationship will be interrupted again, I incline to the view that the Applicant knowing that he will lose his relationship with his children probably forever should he offend again will be deterred from doing so.
I consider that when compared to the best interest of his three children the expectations of the community are not so weighty as to displace the importance of the consideration of the best interest of the children. The Applicant’s ties to the community, especially his family members who are Australian citizens, his children and ex-partner are also important, albeit I should take care against loading up this consideration because of its close connection and potential overlap with the best interest of his children.
The practical obstacles to the Applicant establishing and maintaining a new life in New Zealand when compared to others in New Zealand, whilst important, do not carry as much importance as the last mentioned two matters. It would not, in the absence of them, constitute a reason to restore the visa. The impact on the Applicant’s former partner of not revoking the cancellation of the visa is an important matter. It weighs in favour of revoking the cancellation as it is heavily related to the best interest of the children, but it too, on its own is nowhere near as important as the best interest of three children.
THERE IS ANOTHER REASON
The evaluation I have undertaken leads me to being satisfied that there is another reason to revoke the cancellation of the visa which is because of the best interests of the Applicant’s three young children. This is a strong countervailing consideration that in the circumstances of this case outweighs the other factors that point against revocation.
DECISION
I set aside the delegate’s decision and substitute in its place a decision revoking the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member.

........................................................................
Associate
Dated: 12 June 2024

Date(s) of hearing: 6 and 7 June 2024

Solicitors for the Applicant: Mr S Smar and Mr N Northam, Northam Lawyers

Solicitor for the Respondent:
Mr T Goodwin, Australian Government Solicitor

[2024] AATA 1559

12 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Remedies

Statutory Construction

Date(s) of hearing:	6 and 7 June 2024
Solicitors for the Applicant:	Mr S Smar and Mr N Northam, Northam Lawyers
Solicitor for the Respondent:	Mr T Goodwin, Australian Government Solicitor