YHHT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 4505

YHHT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4505 (12 October 2021)
Division:GENERAL DIVISION
File Number(s): 2021/5063
Re:YHHT
APPLICANT

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

DECISION
Tribunal:Senior Member Dr N A Manetta
Date:12 October 2021
Date of written reasons: 23 November 2021
Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the applicant’s visa be revoked.
............................[Sgnd]............................................
Senior Member Dr N A Manetta
MIGRATION – mandatory cancellation of applicant’s visa – substantial criminal record – primary considerations including interests of minor children – family violence – observations on wording in Direction 90 – decision under review set aside in all the circumstances of the case
LEGISLATION
Migration Act 1958
CASES
Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119
SECONDARY MATERIALS
Direction No 90 – Visa Refusal and Cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 8 March 2021
REASONS FOR DECISION
Senior Member Dr N A Manetta
23 November 2021

After I delivered my oral decision, I received a request for written reasons, which I now publish.
This is an application by YHHT (“the applicant”) seeking a review of a decision of the respondent’s delegate, who had declined to revoke the cancellation of the applicant’s visa. The visa was cancelled mandatorily under section 501 of the Migration Act, 1958 (“the Act”) after the applicant was convicted of certain serious offences. These led to a significant term of imprisonment. There is no doubt on the evidence before me that the statutory preconditions for the mandatory cancellation of the visa under the Act were fulfilled.
The applicant’s visa cancellation could have been revoked under the Act by the exercise of a statutory discretion conferred on the Minister and exercised customarily by delegates within his department. The applicant applied for revocation of the cancellation but the delegate declined to do so in the exercise of his or her discretion.
DESCRIPTION OF THE TRIBUNAL’S TASK
It may be helpful to explain what I mean when I refer to “the exercise of a statutory discretion”. The delegate was required, relevantly, to address two questions by the Act: first, whether the delegate was satisfied the applicant passed the so-called “character test” as defined by s 501 (see s 501CA(4)(b)(i)); and secondly, if the applicant did not pass the character test, whether the delegate was satisfied that there was “another reason why the original decision should be revoked” (see s 501CA(4)(b)(ii)). In addressing this second question, the delegate was required to apply Direction 79 (and then later Direction 90 after Direction 79 was repealed). Both Directions clearly envisage the exercise of a discretion; that is, the weighing-up of relevant factors for and against given the specific circumstances of the case. The weighing-up process is informed and guided by the terms of the Direction, which are detailed. I note further that the list of factors to be taken into account under the heading “Other Considerations” is non-exhaustive, and so all factors relevant to a case are required to be considered under the Direction: see para 14(1) of Direction 79; para 9(1) of Direction 90). I note also that the exercise of a discretion is explicitly mentioned; for example, in Section 2 of Direction 79 (entitled “Exercising the Discretion”) and in Part 2 of Direction 90 (also entitled “Exercising the Discretion”).
Moreover, I have approached my review on the basis that the discretionary weighing-up of factors for and against revocation of the visa cancellation will dictate the answer to the question of whether there is, or is not, “another reason” for the visa cancellation to be revoked. That is to say, if the discretionary weighing-up leads to a conclusion on balance that the visa cancellation should be revoked, that will result in my being satisfied that there is “another reason” for the visa cancellation to be revoked for the purposes of s 501CA(4)(b)(ii). In that event, the visa cancellation should then be revoked by me. If the discretionary weighing-up leads to a conclusion on balance that the visa cancellation should be affirmed, it will follow that I am not satisfied that there is another reason for the visa cancellation to be revoked. The consequence here is that the mandatory visa cancellation must stand and I should affirm the decision under review.
For this reason, it is appropriate in my view – in any event, not inappropriate – to refer to the delegate’s (and on review the Tribunal’s) function under s 501CA(4)(b)(ii) as one involving the exercise of a statutory discretion that is informed and guided by the application of the relevant Direction (No 79, or more latterly No 90).
In determining the applicant’s application, I must consider the matter afresh on the evidence before me. This involves, technically, what is known as a de novo hearing on the merits. That is, I must decide the facts and draw inferences from the facts for myself on the basis of the evidence adduced before me. I do not simply review the delegate’s decision for error. This implies that I may set aside the decision under review notwithstanding the absence of any discernible error in the delegate’s reasons if that is the correct or preferable decision on the evidence adduced before me; equally, I may affirm the decision under review notwithstanding the presence of an error in the delegate’s reasons if that is the correct or preferable decision to reach on the evidence adduced before me.
At the hearing before me, the applicant represented himself; Mr Retallick appeared for the respondent. I am grateful for Mr Retallick’s balanced and measured presentation of the respondent’s case.
STATEMENT OF CONCLUSION
I have decided to set aside the decision under review and substitute a decision that the cancellation of the applicant’s visa be revoked.
PRELIMINARY OBSERVATIONS
Before setting out the background facts and my reasons for this conclusion, I wish to draw attention to several issues that were not the subject of detailed submissions before me. The first is whether Direction 79, as opposed to the new Direction 90 (effective from 15 April this year) is the correct Direction to apply. At the time of the revocation of the applicant’s visa and at the time he was invited to make submissions to the delegate and in fact made them, Direction 79 was still in force. The delegate did not decide the matter for a considerable period of time– I imply no criticism when I make that observation– and in the meantime Direction 90 was promulgated and was applied by the delegate. One concern that arises is whether in these circumstances the applicant might be said to have had an “accrued right” to have both the delegate and this Tribunal assess his application for revocation of the cancellation of his visa by reference to Direction 79. Such a right might flow, for example, from the terms of s 499 itself, which has a positive provision in sub s (2A) requiring a direction to be applied. If there is an “accrued right” to have the application determined by reference to a particular direction, that accrued right will have survived repeal of Direction 79 according to normal principles of statutory interpretation.
I need not decide this issue as my decision in favour of the applicant has been reached under Direction 90, which is no more favourable to him and in certain respects clearly less favourable (by this, I mean to refer to the new emphasis on family violence).
The second issue concerns the notion of “family violence”. Under Direction 90, I must pay serious attention to acts of “family violence”, which is a defined concept in the Direction. It is defined, relevantly, as “violent, threatening or other behaviour by a person that coerces or controls a member of that person’s family (the family member) or causes that person to be fearful”. Examples are then given in paragraphs.
The definition refers to “a member” of the perpetrator’s “family”. It does not expressly include former family members. The applicant was convicted in the District Court of South Australia of an assault upon his former partner. The assault did not occur in the applicant’s home: at the time the couple were separated. Rather, the assault occurred in his former partner’s home. The applicant was only there for the purposes of dropping off their two children after a day out. The applicant had been separated from his partner for some time and in fact had a new girlfriend at the time of the assault.
The definition of “family violence” refers, as I say, to violence against a member of the perpetrator’s family. As a matter of normal usage, I do not think that the applicant’s former partner would be considered to be a member of his family. If she is to be considered to be a member of his family, it must be, I believe, because of the existence of their children; that is, the existence of children preserves the “family” relationship for the purposes of applying the Direction despite a couple’s separation.
I am prepared to assume that this is the case, but I must say that it is a rather strained reading of the wording of the Direction. That said, I acknowledge that it seems to make no sense for the Direction to be concerned solely with violence that occurs in families where the partners are still living together as a couple, and not to be concerned with what is well known to be a serious problem, namely the violence that occurs where an estranged partner (most usually a male) attacks a former partner (most usually a female). But I would further note that if this couple had had no children, it could only be with very real difficulty that one could speak of the former couple continuing to be “a family” for the purposes of the Direction.
As I have said, however, I am prepared to assume in the respondent’s favour that the Direction should be read widely to encompass the violence that The applicant inflicted upon his former partner in this case. I believe that it is important for the drafting in the Direction to be clarified in this respect.
BACKGROUND FACTS
I now turn to set out the background facts. The applicant was born on 16 February 1995 and was, therefore, 26 years of age at the time of the hearing before me. He was born in the city of San Salvador in the country of El Salvador. In 2007, the applicant emigrated to Australia, aged 12, with his parents and his younger brother by five years, Mr B. He has no other siblings. The parents had taken the decision to leave El Salvador as they had been the victims of violence returning home from church one day.
The applicant’s mother was born in 1972 and his father in 1964. In El Salvador his mother worked as a shop-attendant while his father was employed by a telecommunications company. The applicant gave evidence, which I accept, that the family were averagely well off in El Salvador. The parents now work in a nursing home where the mother is a cleaner and the father a care attendant.
The mother and father are Jehovah’s Witnesses by faith. I understand that the applicant’s mother was raised in this faith and that the father converted in order to marry her. (I should add that I do not mean to imply that the father does not genuinely adhere to the tenets of the Jehovah’s Witnesses.) The applicant was raised a Jehovah’s Witness but left the faith or in any event has lapsed in his practice of it.
The applicant did his primary schooling in El Salvador in Spanish up to Year 6. He can read Spanish, he said, but he finds it harder to speak the language now, although he converses with his parents in it. When they first arrived in Australia, the applicant’s parents rented a house in Modbury and then moved to another rental property in nearby Valley View. The applicant first attended the Adelaide School of English for just under a year. He came to Australia with no English whatsoever but within a year he began attending Valley View High School at Year 9 level. He said that he coped “okay” although he had trouble adjusting at first.
The applicant passed Year 9, he said. He left for Modbury High School after he was expelled from Valley View High School. The expulsion followed on from a fight at school, he said. He gave evidence that Modbury High School was a better school for him. He began Year 10 at Modbury High School in around 2010.
Eventually, he stopped going to school. He was 14 at the time. He had begun seeing a girl, Ms T, whom he had met through a friend at school. They became boyfriend and girlfriend and began a sexual relationship soon after they met. The applicant’s parents were not aware of the burgeoning relationship. They used a friend’s house for the purpose of engaging in intimacy, and, while still 15, they moved in with one another (i.e., into the room in this house).
The applicant gave evidence that his girlfriend’s mother had difficulties with drug dependence, and so Ms T came, in his view, from a disturbed domestic setting. When the applicant’s father found out about the relationship, he gave the applicant an ultimatum: if he wanted to continue seeing the girl he had to leave their family house. It was at that point, as I understand the evidence, that the applicant and his girlfriend moved in with one another, that is, into the room at the friend’s house. As I understand the applicant’s evidence, his mother still helped out with the provision of food.
In 2011, the applicant’s girlfriend fell pregnant by accident. At that point, and in my opinion to his credit, the applicant began work as a bricklayer’s labourer to try to support his girlfriend and himself. He informed his parents about the pregnancy. His mother was happy, and his father emphasised to him that he would now need to be responsible. He said he was happy with his girlfriend at this time and he was happy, too, to be the father of the son that was born to them in February 2012.
The family first lived in Banksia Park. The applicant continued with his work as a labourer and then he obtained a different job in sky-light installations. In 2014, another child was born to the couple, this time a girl.
At about this time, the family moved to Kapunda for a few months so that the applicant could do some work for an acquaintance. His partner became unhappy in due course because of her social isolation, and the family moved to Elizabeth. The applicant was unemployed for a while but then worked for an abattoir in Lobethal called Thomas Foods.
He obtained this position through a friend named Mr D, who also worked at Thomas Foods. In due course, the applicant and Mr D went to a supervisor’s home while he was still at work. They broke into the premises. They stole safes containing weapons as well as a Cherokee Jeep. This offending led eventually to criminal charges and the applicant’s jailing.
The applicant gave evidence that between the offending and his jailing in 2017, he had a job at Inghams Chickens. I also note at this point that he had had a motor-vehicle accident in 2016 where a friend had abandoned him. Having sustained an injury to his brain, he lay in a coma for some nine days. He also lost a spleen as a result of the accident.
At this time the applicant developed a heavy dependence on drugs including methylamphetamine. The accident also coincided with the end of his relationship with his partner, Ms T. She had begun to see someone else.
The applicant gave evidence that he became involved with a Ms M who persuaded him to join her in certain fraudulent activities involving the production of false drivers’ licences. They would then order credit cards, using the false licences as evidence of their identity, and withdraw money on the cards.
I shall turn to consider in more detail the applicant’s criminal history in due course. I mention here, however, that he was found guilty of assaulting his former partner. The applicant had taken his children to a play centre called the “Beach House” at Glenelg. His then girlfriend, Ms M, was in attendance. His former partner, Ms T, found out about Ms M’s presence when they returned to her house to drop off the children. An argument ensued. It ended in an assault by the applicant on his former partner.
The applicant now has a partner called Ms F. They had been friends for a long time, he said, in fact since 2014. He first had intimate relations with Ms F in 2017. Ms F is presently recovering from a drug addiction and has not taken drugs for approximately one year. She is living in supported accommodation in the city.
I now turn to consider the applicant’s criminal history in detail. It is set out at pp 36-38 of Exhibit R1. I shall not go through the offences one by one in the course of these oral reasons. It is clear that they represent persistent, and more latterly, escalating criminal delinquency.
The applicant appeared in the Adelaide Children’s Court as a minor. His very first offences concerned dishonesty and unlawful possession. As I read his criminal record, a sentence of detention was suspended on this occasion. Later in 2011 there was minor offending which is noted as having been dealt with without a conviction being recorded.
In 2012 there are a number of offences involving driving improperly and these resulted in convictions and fines. There is a failure to comply with a bail agreement in 2012 where there is a conviction without penalty.
In 2013 there are three occasions when the applicant came before the Children’s Court. The offending did not attract serious penalties, but there had been a number of occasions when the applicant was found in unlawful possession of a controlled drug and one finding of guilt for deception.
In 2014 the applicant made his first appearance as an adult before the Magistrates Court at Elizabeth. There were two occasions in 2014 when he was charged with unauthorised driving of a vehicle. The first did not result in a conviction being recorded but a licence disqualification was imposed; and the second resulted in a conviction and fine as well as a licence disqualification.
In 2015 the applicant was found guilty of possession of a prescription drug (not being a drug of dependence). He was convicted and fined $200.
At this point, I would note that the applicant’s criminal history demonstrates a persistence in minor offending. Whilst it is clear that the offending was relatively minor, an antisocial pattern of behaviour had been established in the applicant’s youth and had now carried over to his young adult life.
In 2017 more serious offending came before the Magistrates Court. As an adult, the applicant was charged with driving under disqualification and with possessing equipment for cannabis use, possessing prescribed equipment, and possessing a prescription drug (although not a drug dependence) in the Elizabeth Magistrates Court. He received 12 weeks’ imprisonment for this offending, which the District Court remarks of 14/12/2018 record as having been backdated to November 2016, when the applicant was taken back into custody.
On that same day he was convicted and discharged without penalty for unregistered driving, failing to comply with the bail agreement, and possessing a controlled drug (not being cannabis) amongst other offences. There are other findings of guilt in 2017 and in March 2018 but he was discharged on both occasions without penalty.
On 29 March 2018, the applicant was found guilty of carrying an offensive weapon and possessing a prescription drug (not being a drug of dependence) and failing to comply with his bail agreement. He was convicted and jailed for 7 days.

On 14 December 2018 the applicant was convicted and sentenced to jail for a variety of offences that went back some time. They were dealt with in the sentencing remarks of the District Court which appear at pp 43ff of Exhibit R1. I have considered the sentencing remarks carefully.
The offences range in time from 25 September 2015 to 16 February 2018. The first offending occurred on 25 September 2015. This is the offending involving the applicant’s friend, Mr D, to which I have already referred. The applicant was the leader when Mr D and he entered their supervisor’s premises. They had left work early and decided to enter their supervisor’s domestic premises while he was still at work. They obtained bolt cutters and broke through various padlocks and chains to enter the property and shed. There they found two gun safes bolted to a concrete floor. The pair had in fact come to the property to steal the guns. They forced their way into the house looking for keys to the safes. Unable to find keys, they prised the safes from the shed floor and put them into a Grand Cherokee Jeep which they then stole. They also stole a substantial amount of ammunition which was kept separately in a cabinet.
The applicant hired an angle grinder a few days later and the guns were removed from the safes after the safes were cut open. According to the Court’s sentencing remarks, the intention was to sell the guns. The Court noted that the applicant was addicted to drugs at the time of the offending.
I regard this offending as very serious, indeed. There is a large element of premeditation involved and clearly the pair were not deterred either by chains, by the attachment of safes to a concrete floor, or by the need to force entry into the home to look for keys, or by the necessity of stealing a vehicle in which to transport the safes. There were multiple obstacles in the course of this offending where an opportunity arose to reconsider and abort the plan.
The Court refers to the applicant being involved in September 2016 in a serious motor vehicle accident. The applicant is recorded as having lain in a coma for about a week.
The Court then refers to further offences committed during 2017. This was the time that the applicant was involved with Ms M. The offences are described in the sentencing remarks and they involve deceiving Budget Rent-A-Car, presenting a fake driver’s licence, and a stolen credit card.
The applicant was found to have been driving dangerously to escape a police pursuit and he gave false personal details on that occasion, on 9 September 2017. On 12 October 2017 the applicant was found in possession of various forms of identification in different names, including one that had been used to hire a rental car; equipment was also found for producing false identities; and a number of suspected stolen watches were also found in his possession.
Finally, offences were committed on 12 January 2018 and 16 February 2018 when the applicant was in custody. He breached an intervention order made in October 2017 by getting his then girlfriend, Ms M, to contact Ms T by text and on 16 February 2018 by engaging in a three-way telephone call with Ms T and Ms F.
The sentencing Court refers to the applicant’s background circumstances. These include his having been a polydrug user since the age of 15. The drugs included methylamphetamine, marijuana, ecstasy, and cocaine. The court refers to the September 2015 offending as being the most serious. I note that it occurred before the accident that left the applicant with some residual disabilities.
Taking into account various discounts for guilty pleas, the applicant received the following reduced sentences: for the aggravated serious criminal trespass relating to the shed, 1 year and 10 months to be served concurrently with a sentence of 2 years and 7 months for the theft of the jeep and the guns and for the aggregated serious criminal trespass in a residence.
For the deception and false identity charges in respect of the events on 24 July 2017, a sentence of 13 months was imposed. This was to be served cumulatively on the earlier sentences the Court had pronounced. In respect of the offending on 9 September 2017, one prison sentence of 9 months was imposed. This too was to be cumulative. A further cumulative sentence of 1 year and 9 months was imposed in respect of the deception, possessing equipment and unlawful possession charges. In respect of the contravention of the intervention order a cumulative sentence of 7 months was imposed. I note that the court decided that there was no call to reduce the aggregate total by reason of the so-called “totality principle” in sentencing law.
The applicant was sentenced to a further period of imprisonment on 12 December 2019. This offending related to the assault upon his former partner, Ms T, at her home to which I have earlier referred. The sentencing remarks appear at pp 39ff of Exhibit R1. The Court refers to the undoubted fact that on the day of the offending the applicant had taken the children for an outing. On return to Ms T’s house an argument had broken out. There was no resolution by the Court of the differing versions of events that had been given. The Court found that the applicant had struck Ms T on a number of occasions, but on fewer occasions than she had asserted. As a result of the assault the victim sustained injuries in the form of a cut to the inside of her mouth, abrasions to her face and neck, and bruising. The Court referred to the fact that the couple had had a volatile domestic relationship and expressly noted that this fact served perhaps to explain and put into some context (although not obviously excuse) the offending behaviour. Considered in that context, the offences were judged by the Court as being of a lesser seriousness than many offences of this nature. A single sentence of 9 months’ imprisonment (taking account of an early discount for guilty plea) was imposed both in respect of the domestic assault and the theft of the phone.
I wish to say expressly that I have carefully read the sentencing remarks of the two Courts. I think it is appropriate that I approach the exercise of my discretion in this case by accepting in full the sentencing remarks to which I have just referred.
DIRECTION 90
As I have noted, the delegate applied Direction 90[1] issued under s 499 of the Act. I have already indicated that I shall apply Direction 90, rather than Direction 79, which was in force at the time the applicant made his submissions to the delegate. In an earlier case (that of Rai and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119, I referred to the background to Direction 90 (at paragraphs 32ff). I repeat that analysis here:
“32.      I first make some prefatory remarks about Direction 90. It is clear that the Direction is framed against the stated objective of the Act which is to regulate in the national interest the coming into and presence in Australia of noncitizens: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(3) to consider the specific circumstances of the case in deciding whether to exercise the discretion to revoke the cancellation decision. The explicit purpose of the Direction is to guide decision-makers in performing their discretionary functions under the Act: see paragraph 5.1(4).
33.      I have considered the principles that appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. These principles are set out against paragraphs numbered (1) to (5). I set out some of the salient features of these principles without setting them out in exhaustive detail.
34.      First, remaining in Australia is a privilege conferred on noncitizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, noncitizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas where noncitizens have engaged in conduct that raises serious character concerns. This expectation arises regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by noncitizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the noncitizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove insufficient to revoke a mandatory cancellation. In particular, I note that the inherent nature of certain conduct such as family violence or conduct mentioned in paragraph 8.4 (2) is so serious that even strong countervailing considerations may be insufficient in some circumstances to warrant revoking a mandatory cancellation even if the noncitizen does not pose a measurable risk of causing harm to the Australian community.
35.      I have had regard to these principles and accept them as the framework within which I must approach my task of deciding whether to revoke the mandatory cancellation of Mr Rai’s visa.
36.      Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that section 7 directs me to give appropriate weight to information and evidence from independent and authoritative sources. Section 7 also directs me to give greater weight “generally” to primary considerations over other considerations.”
[1] Direction No 90 – Visa Refusal and Cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 8 March 2021
I now turn to consider the primary considerations that appear in section 8 of the Direction. The first of the four primary considerations is the protection of the Australian community from criminal or other serious conduct. I bear in mind what is put at paragraph 8.1(1) in respect of the commitment of the Australian government to protecting the Australian community from harm and the clear statement that remaining in Australia is a privilege that is conferred in the expectation that noncitizens will be law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the community. I apply that principle.
I must also give consideration to the nature and seriousness of the noncitizen’s conduct to date as well as the risk that he or she will engage in other serious conduct. So far as the first of these is concerned, paragraph 8.1.1(1) requires me to consider a number of matters listed in paragraphs (a) to (g). I note that the violence inflicted on Ms T was a crime of a violent nature against a woman and must be taken very seriously irrespective of the sentence imposed. It was also an act of family violence on the assumption that I have made that Ms T formed part of the applicant’s family even though they were separated.
I note, in particular, that the new Direction gives special emphasis to acts of family violence. I proceed on the basis that it is well known, even notorious, that violence against a person’s partner or former partner and violence against a person’s children are serious issues in Australia. The problem has obviously attracted the attention of the federal Government: it is a very serious factor that needs to be weighed up when decision-makers decide whether a person should remain in Australia. I note that in paragraph 8.2 the government is said to have serious concerns about people remaining in Australia who engage in family violence.
I should also have regard to the sentences imposed by the courts for a crime. I am not required to consider sentences in respect of violent crimes committed against women or acts of family violence. I think it can be said that much of the offending of the applicant has become very serious. I take into account the entire criminal history that the applicant has now accumulated, but clearly it is the more recent offending that arouses the most concern. I regard the break-and-enter into the supervisor’s property with the intention of stealing a large number of guns, together with the theft of the vehicle, as seriously antisocial. I consider the intention of selling those guns as being strongly antisocial as well. I do not refer here simply to the deprivation of ownership of property, but rather to the firm possibility that arises on the evidence that the guns may have been sold to people who would use them for an unlawful purpose. The crimes are strongly antisocial and are very concerning.
Paragraph (d) requires me to have regard to the frequency of the noncitizen’s offending and whether there is any trend of increasing seriousness. The applicant has an extensive criminal history quite clearly, and there is clearly a trend of increasing seriousness. I note that the offending began at an early age and has escalated into very serious offending indeed. I am to have regard to the cumulative effect of repeated offending and I do so.
I must have regard to the risks to the Australian community of further offending or antisocial conduct as set out in paragraph 8.1.2. I note the government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of potential harm increases.
I must have regard to, cumulatively, the nature of the harm should the noncitizen engage in further criminal or other serious misconduct and the likelihood of the noncitizen engaging in further criminal or other serious conduct taking into account information and evidence on the risk of reoffending and any evidence of rehabilitation. I regard the nature of the harm to the Australian community as very serious at a number of levels. I do not underestimate the serious effect of burglary upon community members. Community members are entitled to enjoy their homes, their possessions, and their vehicles without unlawful interference. If that harm were to be repeated it would represent a serious imposition on the Australian community.
I regard the assault on Ms T as a very serious matter. I have already referred to the fact that it is well known that violence against partners or former partners, particularly by men against women, is viewed by the Australian government as a very serious issue. It may be observed that it is an endemic societal problem. Any further violence shown by the applicant towards women would be very serious. Community members are entitled to expect that they will remain free from violent assault. I would also have regard to the strongly antisocial aspect of driving without being authorised and in defiance of prohibition orders. I regard that behaviour as antisocial, as I do the high-speed escape from police which could easily have led to a serious injury in the community.
I must determine now the likelihood of the applicant engaging in further criminal or other serious conduct. This has not been an easy matter for me to assess. I think there are positive signs which allow me to assess the risk of reoffending as between low and medium. I explain my reasons for this assessment as follows. It is clear that the applicant has had a serious drug problem in the past and the sentencing courts referred to the applicant being a “polydrug user” and indeed being drug dependent. Sentencing reports do refer to these factors and I have had regard to them.
I note, however, that the applicant has been in jail for some considerable time. The cycle of regular misuse of drugs has been broken. I accept that on some occasions in jail the applicant has tested positive to cannabis and the prescription drug Suboxone. I accept that the applicant used cannabis in jail. I do not accept his explanation to me that he passively absorbed cannabis smoke from others around him who were smoking it. But I do not regard the use of cannabis on a few occasions as evidence of a relapse into a drug-dependent state. Suboxone is a prescription medication that is usually prescribed as part of a drug-treatment program, and it is a drug used to treat opioid addiction in particular. I do not think it should be equated with methylamphetamine, ecstasy, or any other illicit drug of this type. That is not to say one cannot become dependent upon Suboxone or that it will not have effects upon one’s functioning; but it is not a drug that should be equated to any of the highly addictive behaviour-altering drugs that I have mentioned. So whilst the use of cannabis and Suboxone in jail must be recognised as wrong, I do not regard their use as a serious contradiction of the applicant’s break with the very serious drugs with which he had been involved. I note that at p 237 of Exhibit R2, it is recorded that the applicant had a positive ion scan for methylamphetamine but this matter was not explored before me in cross-examination so far as I recall. I am prepared to assume against the applicant that it does represent an occasion where he had used methylamphetamine in jail. Nevertheless I do not believe I should proceed on the basis that the applicant has regularly used methylamphetamine in jail. That does not emerge from the materials provided by the Department of Correctional Services which were in evidence before me.
I would also observe that jail is often a difficult environment for prisoners to navigate. Of course, in one sense the inability to readily obtain drugs is a protective factor which ensures that they are not used; but, equally, the stresses of confinement, of punishment, of regimen, of forced association with other convicted people (who may or may not assist in one’s own rehabilitation) are all factors that make jail a highly stressful place. I do not view the instances of drug misuse that appear in the records of this applicant as indicative of a relapse into illicit drug behaviour.
I regard the effect of jail upon the applicant as important. Some of most serious offending in this case occurred before the applicant had spent any considerable period of time in jail. The applicant was relatively young at the time of the offending. Jail has a particularly impressive effect upon young people, particularly the first extended period of incarceration. I note that the applicant will have spent some four years in jail as at the time of my decision and will be eligible for parole at the beginning of December this year. A period of incarceration of this length has worked in the applicant’s case some rehabilitative effect in my view.
More importantly, I believe the applicant genuinely fears the prospect of deportation to El Salvador. He does so for two reasons. First, I believe that the applicant genuinely wishes to play a more constructive role in his two children’s lives. I accept that he truly believes that for all practical purposes one-on-one personal contact will cease with his children if he is forced to return to El Salvador. I believe he also appreciates that his prospects of earning a living and leading a reasonable life in El Salvador are low. He would certainly not enjoy the family support that he would have here to re-establish himself in the community, and it is well-known that El Salvador is a country with poorer living standards and a high crime rate. The applicant will appreciate that if he is given another opportunity to stay in Australia, it will definitely be his last. Any repeat of criminal conduct will only see a longer jail sentence imposed and he could entertain no reasonable prospect of the cancellation of his visa being revoked by the Minister’s Department or by this Tribunal. That is to say, he would understand that he has been given one chance only at a practical level. These are powerful incentives for the applicant to seek to turn his life about. I believe the applicant has made some efforts in this regard. He said he has returned to his Christian faith. His intention is to live with his parents on release to begin with. Mr H, a chaplain, gave evidence on the applicant’s behalf that he had observed in his contact with the applicant a change taking place. I note the Baptist Church with which Mr H is associated runs a “Breaking Free Program” which involves post-release mentoring in association with the local church. Mr H confirmed that the applicant has been accepted into the Program.

It is also the case that the applicant will receive support from his parents. I must say that I have hesitated over the weight I should attach to their involvement with the applicant. I rather suspect that there has been some degree of conflict between the applicant and his parents in respect of the parents’ faith; but equally I do believe there is, at least at the present time, goodwill on both sides to try to make the relationship work. I accept also that the applicant’s younger brother, Mr B, will do whatever he can to assist the applicant to keep away from drugs and from inappropriate contacts: this was the tenor of Mr B’s evidence. I accept that the applicant has a serious relationship with Ms F. She clearly expressed her love for him at the Tribunal hearing; but I do bear in mind that she is herself recovering from addiction. She is no doubt determined to make the most of their joint life together but I must, I believe, take account of the fact that the applicant will also have to support her in her ongoing recovery from drug-dependence.
All in all, however, I believe that there are strong supports available to the applicant. In all the circumstances, I believe that the risk of the applicant re-offending is low to medium. I do think that he will need support if he is to avoid any relapse into drug behaviours. This is an area that the applicant will need to address on his release from jail.
I bear in mind that this low-to-medium risk is merely a cumulative factor which must be added to the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct.
Paragraph 8.2 refers to the government’s serious concerns over giving a right to remain to noncitizens who engage in family violence. I accept and apply that principle.
I must have regard to the frequency of the noncitizen’s conduct. The only instance of family violence that has been shown to have occurred is the one involving Ms T which resulted in a jail sentence. There are reports before me that show that Ms F reported serious allegations of violence, including rape, to the police at one point but in her evidence to me she claimed that she was angry with the applicant on account of his infidelity and felt pressured by her stepfather to make a false complaint. She denied before me that she had been mistreated by the applicant. She did not at any point present a signed statement to the police despite her initial allegations and the matter was not proceeded with. On the evidence before me, I do not believe I should draw any adverse conclusion against the applicant in this respect. There is also a police report which indicates that there may have been an argument between the applicant and his partner at a suburban home but there is no evidence to suggest to me that the matter went further than a heated argument. I accept the applicant’s statement to me that he accepts that his behaviour towards Ms T was wrong. I accept also that the sentencing Court referred explicitly to the volatile nature of the relationship as a relevant matter which did not excuse the behaviour but which afforded a proper context in which it should be evaluated. I also take into account Ms F’s mother’s evidence to the Tribunal that she has never seen the applicant violent. Given her own experience with violence, I doubt very much that she would offer any positive testimony on the applicant’s behalf if she considered him to be a threat to her daughter’s welfare.
All in all, therefore, I must take into account the family violence which the applicant has perpetrated but I do not regard it as a typical or frequent event.
I must take into account the best interests of minor children in Australia. The applicant has two children. I accept that the interests of the children are a primary consideration. In this regard there are a number of things to say. First, the two children are 9 and nearly 7 at the present time. There is an order preventing contact at the present time, but I accept the evidence of the applicant’s brother, Mr B, that in his discussions with her, Ms T has not shut the door completely on contact. I think I can proceed on the basis that Ms T will allow contact in the future if the applicant proves himself to be a responsible adult. That may be several years off.
Secondly, it is clear to me from Mr B’s evidence that the children do miss their father. There was no evidence before me that there is another male figure to provide a foster father role. I understand from the evidence that Ms T has re-partnered but the relationship between the new partner and the children is not clear to me. The children do have a relationship with their grandfather and they have a good relationship with their uncle, Mr B, but the latter’s work commitments mean that he does not spend as much time with them as he would like, and he does not fulfil the role of father to the children.
I also give some credit to the applicant’s assertions about wanting to be a responsible father. His statements to the Tribunal that he wishes very much to re-establish contact with his children and to prove himself to be a good father might have sounded self-serving had it not been for the fact that the applicant, at a very young age, stayed with his girlfriend, Ms T, when they were both still teenagers and he was determined to provide for his family. I accept that he failed to acquit himself properly when he engaged in criminal and antisocial activities, but, nevertheless, I think I should give him credit because he chose not to walk away from the unplanned pregnancy as so many teenagers and young men do. I accept that his commitment to his children is genuine. I also accept that the removal of the applicant to El Salvador would represent a serious blow to the children’s personal development. I am conscious of the effect of removal from Australia on families, and, of course, there is a very obvious reason why the best interests of minor children are made a primary consideration under the Direction. I believe that if the applicant is given parole in December there is a good prospect that he will be able to resume contact with his children in due course although that may be a number of years off. But he will be able to have “zoom” electronic contact with the children in the meantime, and, as I say, I believe that, in due course, there is a good prospect that the children, who are still young, will resume one-on-one contact with him.
I accept that the domestic violence that the applicant inflicted on Ms T occurred in the children’s home. They must have heard the arguing and the ensuing violence, and this was likely to have had a disturbing effect upon them both. But I do believe that, overall, the likely effect on them of permanent separation from the applicant will be adverse. I believe that the fracturing of a father-child relationship is a very serious matter to be weighed up carefully. I believe the removal of the applicant to El Salvador would effectively fracture that relationship and mean the children will grow up without their biological father. That is an important consideration. That said, I am conscious of the fact that if the applicant were to return to drugs or any criminal activity, it would be clearly better for them if he left Australia and ceased contact with them altogether.
I must also have regard to the expectations of the Australian community. Those expectations clearly weigh against the applicant. His criminal history involves acts of family violence and violence against women. I note that the expectations apply whether or not the noncitizen poses a measurable risk of causing physical harm to the Australian community. I must not assess community expectations for myself: these are set out in the Direction. It is clear that these community expectations count strongly against the applicant.
I turn now to the other considerations to which I must have regard. I must consider the extent of impediments that the applicant would face. I accept that El Salvador is a poor country but I do not believe that this factor counts in The applicant’s favour since the Direction requires me to have regard to what is generally available to other citizens of that country. I do not believe the applicant’s age and health are particular barriers for him. I do accept that he will need ongoing treatment and support to minimise any relapse into drug misuse and this is more likely to be available to him in Australia. I do not believe there are any substantial language or cultural barriers. It was put to me that the applicant now speaks imperfect Spanish and that on return he would stand out as a foreigner. I believe, however, that the applicant, who lived in El Salvador until the age of 12, would soon pick up the language again and recommence speaking it as a local. I acknowledge, however, that violence is a strong threat in El Salvador. In this sense I do accept that the applicant will face a heightened risk of violence returning to El Salvador and beginning his life there. I attach some weight to this factor but not a great deal.
I have no information concerning the impact on Ms T or any other victims of my decision and so this factor is neutral.
So far as links to the Australian community are concerned, I am directed to have regard to the strength nature and duration of ties to Australia. I accept that the impact of a decision to remove the applicant would have very negative consequences for a number of immediate family members. I accept that the applicant’s deportation would affect his brother Mr B. The latter has tried hard, I believe, to support the applicant and he has done so on account of his affection for his older brother and his desire to build a proper fraternal relationship. I believe his evidence when he says that family is important to him. I also take into account the interests of the applicant’s parents. No doubt the criminal offending, which has persisted for a long number of years, has been a source of anguish. Part of them must see the advantages in ceasing to have contact with him, to put the matter plainly. But I accept that they genuinely wish to assist the applicant in his rehabilitation. He intends to live with his parents initially, and that will be an opportunity for the family to re-establish appropriate ties. Whether the re-establishment and deepening of renewed ties takes place will depend upon the goodwill of the applicant and also of the parents. I believe that goodwill is there at the present time.
So far as paragraph 9.4.1(2) is concerned, I believe that Ms F, who wishes to marry the applicant, will lose effective contact with him. She is not an immediate family member at the present time, however. I think she would regard his departure as a very heavy below, and I think his departure would prove to be a substantial obstacle in her ongoing recovery from drug addiction.
She indicated in her evidence that she would follow the applicant to El Salvador but she may be dissuaded from that course and the applicant himself did not actively support this option. But if she were to go to El Salvador, her life would be affected substantially in that she would have to make her way in a country which is both poor and violent and one where she does not have a command of the language. So either way the impact on her of his removal will be severe.
I note, however, that the Direction requires me to give less weight to this tie given the fact that the applicant began offending soon after arriving in Australia. I do not believe it can be said that I should attach any particular weight to the time the applicant has spent contributing positively to the Australian community given his extensive criminal history. Accordingly, I reduce the weight I would give to the impact on the tie with Ms F since she is not a member of his immediate family.
I believe I should also take into account the applicant’s own interests as another consideration. He has an interest in maintaining his relationship with his partner, Ms F, and with his brother Mr B. I acknowledge that the applicant has been in some conflict with his parents and their relationship has been a difficult one. I believe, however, that in a general way his loss of any one-on-one contact with his parents is something that I ought to take into account as another consideration.
WEIGHING UP THE DISCRETIONARY FACTORS
Weighing the discretion in this case has not been easy. I have taken into account all the considerations and have decided on balance that the correct or preferable exercise of my discretion is to set aside the cancellation of the visa. I bear in mind that the applicant has a very long criminal record culminating in offences that have been extremely serious, including family violence. Drug dependence has been a feature of his offending. I am very conscious of this fact.
Nevertheless, as I have already indicated, the applicant was relatively young when he committed the offences, and I believe that jail and the prospect of deportation, should there be recidivism, coupled with his desire to re-establish himself are positive features that indicate that the risks to the Australian community of recidivism are low to medium. In my weighing of the discretion, I have given some considerable weight to the interests of the minor children. I believe that their interests are substantial. As I alluded to in the hearing, they are in many ways the innocent victims of the applicant’s offending and antisocial behaviour including the assault directed towards their mother. But children are best raised with the positive influence of both parents where that influence is benign.
I believe their interests count substantially as I accept the prospects for the applicant to re-establish himself as a decent community member are relatively good. These prospects were referred to by the sentencing judge, Judge Costello, although the court was careful to note that it was a matter of “if” the applicant chose to take the path he had reiterated to the court. I have also had regard to the interests of immediate family members and Ms F’s interests in maintaining her serious relationship and life plans.
It is perhaps an unusual feature of this case that, despite the significantly antisocial aspects of the applicant’s extensive criminal offending, he finds himself as a person who is wanted and needed by a number of different people both within his immediate family and extended family (including Ms F for these purposes). The removal of the applicant to El Salvador would affect them all.
In the circumstances of this case, it would have been entirely defensible to affirm the decision under review. My task, however, is to reach the correct or preferable decision on the evidence before me. In my opinion, the correct or preferable exercise of the discretion in this case favours, on balance, revocation of the cancellation decision.
Accordingly, there is, to return to the language of the Act, “another reason for the original decision to be revoked”.
FORMAL DECISION
My formal decision will be to set aside the decision under review and to substitute a decision that the visa cancellation be revoked.

95.     I certify that the preceding 94 [ninety-four] paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr N A Manetta.

...................[Sgnd]..........................
Administrative Assistant Legal
Dated:   23 November 2021
Dates of hearing:  28 & 29 September 2021
Advocate for the Applicant:  Self-represented
Advocate for the Respondent:  Cameron Retallick, AUSTRALIAN GOVERNMENT SOLICITOR