YMMW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

YMMW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 395 (1 March 2021)
Division:GENERAL DIVISION
File Number:2020/8105
Re:YMMW
APPLICANT

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

DECISION
Tribunal:Member Rebecca Bellamy
Date of decision: 1 March 2021
Date of written reasons: 4 March 2021
Place:Brisbane

The decision under review is affirmed.
....................[SGD]....................................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Subclass 444 – Special Category (Temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – lengthy history of offending – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
HZCP v Minister for immigration and Border Protection [2019] FCAFC 202
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Rebecca Bellamy
4 March 2021
THE ISSUE BEFORE THE TRIBUNAL

The Applicant is a 36-year-old citizen of New Zealand. In September 1988, when he was four years old, he moved to Australia. The most recent visa granted to him was a Class TY Subclass 444 – Special Category (Temporary) visa (“visa”).[1]
[1] Exhibit G1 Section 501 G-documents, G2, page 279.
On 5 May 2020 a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[2] On 11 May 2020, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[3] On 4 December 2020 the Respondent decided not to revoke the cancellation.[4]
[2] Ibid, G6, page 247 to 349.
[3] Ibid, G9, page 412.
[4] Ibid, G2, page 12.
The Applicant subsequently lodged an application for review in this Tribunal on 8 December 2020.[5] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[5] Ibid, pages 3 to 8.
The hearing of this application proceeded on 16 February and 17 February 2021. The Applicant, who was not represented, gave evidence via videoconference. One of the Applicant’s sisters (Natasha) and an aunt (Jill) gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[6]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[7]
[6] [2018] FCAFC 151.
[7] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[8]
[8] Ibid.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 21 April 2020 the Applicant was sentenced to concurrent terms of imprisonment with an effective head sentence of 18 months. What matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[9] Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on
[9] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision maker’s application of the considerations in paragraphs 7 and 8.
Paragraph 7(1) of the Direction provides that:
Informed by the principles in paragraph 6.3 above, a decision-maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[10]
[10] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provides that:
Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...
Part C provides for the decision-maker to take into account “Primary Considerations”[11] and “Other considerations”.[12] The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
[11] The Direction, paragraph 13.
[12] The Direction, paragraph 14.
The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[13]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[14]
[13] [2018] FCA 594.
[14] Ibid at [23].
BACKGROUND AND OFFENDING
When the Applicant was 15 years old he sustained an injury to his foot and was told he could never walk again. He turned to alcohol and marijuana.[15]
[15] Transcript, page 15, lines 10 to 25.
The Applicant has a lengthy criminal history in Australia. His history includes over 100 offences committed in a 20 years period from 1999 to 2019. He has been brought before the courts and sentenced for his offending on at least 29 occasions. In these reasons I do not canvass all of the Applicant’s offences. Rather I summarise his offending and focus on the more concerning aspects of it.
The Applicants offending broadly falls into the following categories:
·drug use related offences including possession of dangerous drugs and related items and failing to properly dispose of syringes;
·unlawful possession of weapons;
·assaulting/obstructing police;
·stalking/intimidate and grievous bodily harm (“GBH”) ;
·property and dishonesty offences including stealing, attempted stealing, fraud, possessing tainted property, destroy/damage property, possessing stolen goods, and break and enter offences;
·repeated breaches of orders, including Domestic Violence orders, Apprehended Violence orders, Protection orders, community-based sentencing options, contravening direction/requirements, and failures to appear in court;
·alcohol based offending including public intoxication, and committing nuisances and assaults on licensed premises while intoxicated; and
·traffic offences including disqualified driving, drink driving, use of unregistered and uninsured vehicles, speeding and failure to return number plates.
The Applicant commenced offending in Australia in 1999 when he was still a minor. Between the ages of 15 and 16 he committed multiple offences including obstructing police, possess utensils or pipes, enter dwelling to commit indictable offence, robbery with actual violence (armed with dangerous/offensive weapon/instrument), receiving tainted property with circumstance of aggravation, contravene direction or requirement, and multiple stealing offences. For these offences he received reprimands, fines, a Community Service Order and a 12-month Intensive Correction Order (which is a sentence of imprisonment that is served in the community).
When he was still 16, he committed GBH when he hit a man in the head with an implement and punched him several times. He was sentenced to another Intensive Correction Order for that. The Applicant said he was intoxicated when he committed the offence. According to him, he was told that a man who lived across the road was jealous of him because “his missus got the hots for me” and he went to the victim’s home to “sort this out because I couldn’t let it go”. The victim came out holding a star picket, and the Applicant became scared and ran into his own home with the victim following. The Applicant grabbed a broken part of a “post-hold shovel”, ran out into the middle of the road, and both he and the victim swung their respective implements at each other at the same time. The star picket brushed the Applicant’s nose and the Applicant’s implement hit the victim causing him to drop to the ground. The victim reached for the star picket, the Applicant kicked it out of his hand, and he picked the victim up and hit him again. The Applicant initially pleaded self-defence but could not sustain it because “I keep [sic] on hitting him”.[16]
[16] Exhibit G1, Section 501 G-documents, G2, pages 61 to 62
There was a gap in the Applicant’s criminal offending until 2006; however, he continued to commit traffic offences in that period including drink-driving on four occasions.
In August 2006, he was sentenced to 80 hours of community service for the offence of contravene direction or requirement. A Corrective Services Progress Report dated 15 November 2006 indicates that he failed to report for community service on multiple occasions.[17]
[17] Exhibit R2, Respondent’s Statement of Facts, Issues and Contentions (“RSFIC”) Annexure 1 - Extracts of Summonsed Material, SM1, pages 1 to 2.
In 24 November 2006, he was sentenced for a break and enter offence to 12 months imprisonment which was wholly suspended for one year.
In December 2009, the Applicant was convicted of two breaches of a Domestic Family Violence Protection Order. The facts of these offences are not before me. He was sentenced to a $500 fine and probation for 12 months. His probation conditions included that he would abstain from dangerous drugs, submit to drug testing and submit to medical, psychiatric or psychological assessment and treatment as directed. A Corrective Services Court Report dated 21 September 2010[18] indicates that on 29 July 2010, he failed a drug test as he had consumed cannabis. In the hearing the Applicant admitted that he had indicated that he was willing to abstain from illicit drugs and that he had signed up to do Alcohol Tobacco and Other Drug Service (“ATODS”) because:
“I had problems with drink-driving and I was – had a court case coming up about drink-driving, and by going to [ATODS] was going to make it look better if I went to [ATODS] about my drink-driving”.[19]
[18] Exhibit R2, RSFIC Annexure 1 - Extracts of Summonsed Material, SM8, pages 85 to 89.
[19] Transcript, page 51, lines 10 to 21
He agreed that his undertaking had been an attempt to support his case that he should not have his license disqualified and it was not a real attempt to stop using drugs.[20]
[20] Transcript, page 51, lines 23 to 26.
The Court Report indicated further that the Applicant did not get a referral from his GP for psychological counselling as he was directed to do.[21] The Applicant admitted that he did not want to address his marijuana consumption at that time because he “loved Marijuana”.[22] The Applicant was re-sentenced in December 2010 to fines.
[21] Exhibit R2, RSFIC Annexure 1 - Extracts of Summonsed Material, SM8, page 86.
[22] Transcript, page 32 lines 22 to 24.
The Applicant had been in a relationship with “Ms Z” until around 2011. He and Ms Z had a daughter[23] whom the Applicant said was born in 2007 (“Child A”) and a son whom the Applicant said was born in 2011 (“Child B”) who was eight weeks old when the relationship ended. (There is some contrary evidence about when these children were born which I will address when I consider their best interests below under Primary Consideration B).
[23] Whom he found out years later was not his biological child; see Transcript page 61 lines 17 to 18.
Shortly afterward, the Applicant commenced a relationship with “Ms L”. He then moved to Sydney so he could help his parents who were in poor health. According to New South Wales Police records[24], on 27 April 2012, the police were called to the granny flat where the Applicant and Ms L were living. They were both intoxicated. An argument broke out which resulted in each of them breaking glass objects and throwing items around the premises. The Applicant told police that Ms L rushed at him with a pair of scissors and he delivered a blow to the left side of her face. There was a scuffle that was broken up by the Applicant’s family. (The Applicant said his parents lived in the main house). Ms L refused to cooperate with police and no charges were laid, but an urgent AVO was issued.
[24] Exhibit R2, RSFIC Annexure 1 - Extracts of Summonsed Material, SM5, pages 67 to 69.
In these proceedings, the Applicant’s evidence about the AVO’s that have been taken out against him and his breaches of those was somewhat scattered and difficult to reconcile with the police records. For example he explained away one incident by saying he kicked over a Christmas tree after his parents had died which knocked two picture frames off the wall, resulting in breaking glass and the neighbours calling the police.[25] However, this could not have been the incident involving breaking of glass objects referred to in the police records because that occurred in April 2012 when both his parents were alive. The Applicant broadly denied having been violent towards Ms L and it is not clear from the police records that he was violent towards her on this particular occasion except to deflect an attack by her with a pair of scissors (according to him). I am not satisfied that the Applicant assaulted Ms L on this occasion except in self-defence.
[25] Transcript, page 38, lines 39 to 47.
A final AVO was subsequently obtained by the police. According to a New South Wales police facts sheet,[26] the police were called to the granny flat in the early hours of 23 June 2012. Earlier that night, the Applicant and Ms L had attended a bowling club with members of the Applicant’s family. The Applicant went home at around midnight. Shortly afterwards Ms L returned to find that the Applicant had thrown Ms L’s belongings onto the driveway. The Applicant said some obscenities to her.
[26] Exhibit G1, Section 501 G-documents, G2, pages 233 to 235.
Ms L walked past the Applicant to the granny flat and locked the door. The Applicant gained entry and ran at Ms L, grabbing her by the throat with both hands and pushing down causing her to have trouble breathing. He said, “You’re gone cunt, I’m going to kill you, don’t think my family is going to help you”. Ms L slapped the Applicant and broke free of his hold. She got her mobile phone to contact her mother for help. The Applicant took the phone and threw it against the wall causing it to shatter into pieces. He then punched Ms L repeatedly in the face with a clenched fist causing her to lose balance and fall to the ground. He then left the granny flat and went into the main house while Ms L went and lay down on the bed. Later the Applicant lay down next to Ms L. Shortly afterwards police received a call from Ms L’s mother stating that Ms L had contacted her asking for help.

The police attended and could hear Ms L yelling “help me, please, help me”. They found her lying on the bed with blood covering her face and hands. There was also blood on the bed sheets and a T-shirt that was on the ground beside the bed. When police cautioned the Applicant, he said “I didn’t do anything, don’t touch me”. When the police asked if there was an AVO between the Applicant and Ms L, he said he did not know. He indicated that he had consumed between eight and 15 beers during the evening.
An ambulance attended but Ms L refused any assistance. On the way to the police station, the Applicant vomited several times.[27]
[27] Exhibit G1 Section 501 G-documents, G2, pages 233 to 235.
The Applicant denied that there was any physical violence between him and Ms L on this occasion. In his revocation request, he said Ms L was very intoxicated and she attended the residence asking for some of her things and he told her to pick them up the following day however she insisted. He said he grabbed her phone from her because she threatened to call the police and tell them that he did things to her.[28] He told her to go away and she would not, so he threw some of her belongings in front of the driveway then passed out. When he awoke there were two police officers there.[29]
[28] Transcript, page 39.
[29] Exhibit G1 Section 501 G-documents, G2, page 60.
He said Ms L got into a fight at the Bowls club and that is why she had marks and blood on her. In the hearing, when the Applicant was asked how there was blood on the bed, covering Ms L’s face and hands, and also on a T-shirt, he said it was blood from a cut lip that Ms L sustained earlier in a fight with a woman at the Bowls club. When asked how long it was between Ms L being at the Bowls club and her laying on the bed, the Applicant said, “not even half an hour". When asked if she continued to bleed while at the residence, the Applicant said, “it wasn’t much but – yes”. When asked about the fact that blood was covering her face and hands and was also on the bed sheets, the Applicant said Ms L had spread it out because she was touching her face.[30] The Applicant also mentioned that he had been lying on the bed with Ms L, trying to comfort her. When he was asked why Ms L had called out to police “help me, please, help me” if he was comforting her on the bed, he said because she was trying to “get me done for it”.[31] The Applicant denied that his level of intoxication could have impacted his recollection of that evening, saying that he drank that much every day.[32] However, I note that he vomited several times on the way to the police station which indicates that his body could not cope with his level of intoxication. I further note that in his revocation request he said he was passed out on the driveway when the police arrived and in his oral evidence, he said he was lying on the bed comforting Ms L when the police arrived.
[30] Transcript, page 41, lines 1 to 38.
[31] Transcript, page 41, lines 15 to 44.
[32] Transcript, page 40, lines 1 to 15.
On 7 September 2012, the Applicant was sentenced for the contravention of the AVO and destroying or damaging property. He received a fine and an 18 month good behaviour bond. The Applicant claimed that the conviction for breaching the AVO only related to him being present at the property and that Ms L’s allegations against him were lies.[33] This was squarely challenged by the lawyer for the Respondent. At the hearing the Applicant claimed he was still in a relationship with Ms L. She provided a letter of support which spoke positively of him but did not address any of the AVOs or allegations that the Applicant was violent towards her.[34] Nor did she give evidence at the hearing. During the Applicant’s evidence, when he was denying that he had been violent to Ms L, I suggested that if that were true, and Ms L were to give evidence, she could corroborate that, to which the Applicant said “Yes, she would be able to, yes”.[35] However, Ms L did not give evidence despite the hearing going into a second day, the Applicant having given his evidence on the first day. In closing submissions, the Respondent’s lawyer pointed out that Ms L had not given evidence in the hearing, and the Applicant interjected that he “couldn’t get hold of her”[36]. He later admitted that Ms L had been texting him during the hearing.[37] In circumstances where the Applicant was in touch with Ms L and he did not give a satisfactory reason why she did not give evidence, I am not prepared to accept his claim that she would have corroborated his evidence that she made up the allegations of violence.
[33] Transcript, page 40, lines 25 to 36.
[34] Exhibit A3.
[35] Transcript, 41, lines 1 to 3.
[36] Transcript, page 84, line 14.
[37] Transcript, page 93, lines 10 to 35.
Further, I find it implausible that there could have been so much of Ms L’s blood on Ms L and the bed from a cut to her lip that was sustained earlier in the evening, or that she called her mother for help as part of a plan to make a false complaint to police. There is also the anomaly in the Applicant’s evidence about where he was when the police arrived and the fact that he was severely affected by alcohol which gives me reason to doubt the accuracy of his recollection of events. In contrast, the allegations made by Ms L and the observations made by the police at the time do not seem implausible or inconsistent, and Ms L did not retract her allegations in the letter of support she recently provided for the Applicant. I accept that the Applicant was never charged or convicted of assaulting Ms L, however I do not find this terribly persuasive as it is not uncommon for victims of relationship violence to refuse to co-operate with police action against the perpetrator. I find that the Applicant choked Ms L so that she had difficulty breathing, and that he punched her in the face several times causing her to bleed. I further find, and the Applicant accepted this, that he threw her mobile phone causing it to shatter.
According to another New South Wales police facts sheet,[38] in March 2013 a person (“the victim”) bought a business for $8,000 from the Applicant’s father. The Applicant was an employee of the business and continued to work in the business after it changed ownership. The Applicant asked to be paid in cash, and when the victim found out that he was also claiming Centrelink benefits, he asked the Applicant to start producing invoices so he could pay him via bank deposit. This angered the Applicant and he asked the victim for larger amounts of money per day of work. The victim refused and the Applicant told him that he and the other employees would no longer work for him. He also took a large amount of tools home from the work site that the victim claimed he owned.
[38] Exhibit R2, RSFIC Annexure 1 - Extracts of Summonsed Material, SM5 page 64.
The victim later tried to contact the Applicant’s father to transfer the business back and have his money refunded. The Applicant handled all the correspondence with the victim. The Applicant became extremely aggressive with the victim, claimed he had ruined the family because the business had gone under, refused to give the victim any money and stated that the tools did not belong to the victim. Between 12 and 14 March 2013, the Applicant made several threatening phone calls to the victim stating he would send people around to the victim’s house and “bash him”.
On 15 March 2013 the Applicant made another phone call to the victim prompting the victim to call the police. The police attended the victim’s address and the victim played a recording of a phone call he had received from the Applicant earlier that day. In that call the Applicant said he knew where the victim lived and that he had a five-month-old baby. He said “You hurt my family and now I’m going to hurt yours”. He said he would “send the boys around” and to be careful when he was sleeping. The victim applied for a personal violence order.
The police spoke with the Applicant regarding the matter and during the phone call the Applicant told police that if he saw the victim walking down the street, he would bash him. He further said “If anything happens to him, you better make sure you have enough evidence”. When police offered the Applicant an opportunity to be interviewed, he declined and became very aggressive towards police and threatened the victim.[39]
[39] Exhibit G1, Section 501 G-documents, G15, pages 450 to 451.
The Applicant’s explanation for this offending was that he had gone to Sydney to help his father with his construction business, his father had signed over half of his share of the business to his business partner (the victim) and his father took the tools of the business. The business partner harassed his father for $8,000, and as his father was sick the Applicant told the business partner to stop harassing his father and he threatened him over the phone. A DVO was taken out which he breached by being in the victim’s street, and the police charged him with stalking.[40] The Applicant denied threatening the victim’s family[41] although I reject this as the police records indicate that this threat was recorded and played to the police, and the Applicant has not given a convincing reason to reject the accuracy of the contemporaneous, objective police evidence.
[40] Exhibit G1, Section 501 G-documents, G2, page 61.
[41] Transcript, page 36, lines 39 to 41.
When the Applicant was if he thought that making threats against the victim was the right thing to do, he said:
“I just – at the time I knew it was the wrong – like, I didn’t think it would lead to anything. I thought just by threatening him that’s it, he would take no further actions and just leave us alone”.[42]
[42] Transcript, page 38, lines 1 to 6.
On 20 August 2013, the Applicant was convicted of “stalk/intimidate intend fear physical etc harm” and sentenced to a 12 month good behaviour bond in relation to that conduct.
In 2014, the Applicant was sentenced for multiple offences including:
·Stalk/intimidate intend fear physical harm, receiving a $1000 fine;
·Goods suspected stolen in/on premises, receiving 6 month suspended sentence and a 100 hour community service order; and
·Contravene prohibition/restriction in AVO (domestic) receiving a $1000 fine.
It is not apparent on the evidence before me what the conduct underlying these offences was.
On 19 June 2015, an AVO was issued with the Applicant as the respondent and Ms L as the aggrieved. In December 2015, the Applicant breached this AVO, although it does not appear that violence was alleged. This could be the incident the Applicant recounted where he kicked over a Christmas tree. On 13 September 2016, he was sentenced for that and two property offences, and was not further punished.
In late 2015, the Applicant’s father had died and shortly afterwards, his mother had died. This caused him to suffer severe depression and the family home was lost. He increased his drug use and developed problematic methamphetamine use. For a while he was living with his sister (not the sister who gave evidence) but he became homeless in late 2016,[43] after he “got kicked out”.[44]
[43] Transcript, page 29, lines 26 to 27.
[44] Transcript, page 29, lines 33 to 43.
In February 2017, the Applicant committed a stealing offence. He was convicted and sentenced to a fine. He applied for a fine option order to complete 14 hours of community service instead, but he failed to attend the community service as directed. The fine option order was revoked.[45]
[45] Exhibit R2, RSFIC Annexure 1 - Extracts of Summonsed Material, SM4, page 49.
The Applicant committed five further offences in 2017 across two offending episodes and was sentenced on 7 September 2017 to four month’s imprisonment.
Throughout 2018 the Applicant continued to offend. His offences included property offences and three breaches of domestic violence orders (dealt with in separate sentencing episodes in 2018 and 2019), the facts of which are not before me.
In 22 February 2019, the Applicant was sentenced to probation for 12 months for a handful of offences.
On 30 April 2019, the Applicant contravened the Probation Order by committing further offences. On 30 July 2019, he was re-sentenced to probation for two years. He was also sentenced to four months imprisonment for numerous offences. Having served 67 days in presentence custody, he was granted immediate parole. His compliance with his probation order was very poor – see below at paragraph 81.
On 13 November 2019 the Applicant was sentenced to 80 hours of community service for enter premises and commit indictable offence.
On 21 April 2020, the Applicant was sentenced for 33 offences that he committed between 20 August 2019 and 10 January 2020. They were mainly property and drugs offences. [46]
[46] Exhibit G1, Section 501 G-documents, G2, page 35.
For the most serious charges - of burglary, enter premises (x5) and enter premises with intent (x4), the Applicant was sentenced to 18 months imprisonment. For the other charges he was sentenced to six months imprisonment to be served concurrently. For the breach of the probation and community service orders, those orders were revoked and the Applicant was re-sentenced to concurrent terms of imprisonment of four months and two months. It was declared that 103 days in presentence custody was time served under those sentences. The parole release date was set at 29 May 2020.[47]
[47] Exhibit G1, Section 501 G-documents, G2, page 35.
When sentencing the Applicant on 21 April 2020, the learned Magistrate made the following remarks:
“You have been in prison before. You have come out and kept offending, and there are a substantial number of offences here – property offending – property and drug offending but mainly property offending where there is a degree of professionalism. There is a tool used to cut bicycle locks. You are a recidivist bicycle thief. You did no hours of your community service order. I accept that when your marriage ended you went off the rails. Your children moved away. They have now been taken into care and both your parents have died. So – and I also accept that you have done it tough for the last 103 days, being in prison with COVID-19 restrictions, so I am going to give you less than one-third time served, so I have taken that into account.”[48]
[48] Ibid, G2, page 35.
The Applicant disputed that there was a degree of professionalism in his offences relating to stealing bicycles. He said he only had equipment to cut the locks which is what anyone who wanted to steal a bike would do. He said he had stolen five or six bikes over the course of his criminal history. He said the tool he used was something that he used in his work, but he admitted that he had possession of it with the intention of cutting bike locks to sell the bikes to feed himself as he was living on the streets.[49]
[49] Transcript, page 27, lines 9 to 34.
The offences involving entering premises generally involved the applicant breaking into storage areas in apartment blocks or vacant properties. There is no evidence that he broke into occupied homes.
The Applicant also has a very long traffic history, starting in 2002, that includes the following drink driving offences:
·     twice in 2002, with blood alcohol concentrations of 0.139 and 0.244;
·     twice in 2004, with blood alcohol concentrations of 0.09 and 0.047;
·     once in 2008, with a blood alcohol concentration of 0.156; and
·     four times in 2015, with blood alcohol concentrations of 0.098, 0.226, 0.188, and 0.066.
For these offences and for disqualified driving he was sentenced in September 2016 to six months imprisonment with immediate release on parole.[50]
[50] Exhibit R2, RSFIC Annexure 1 - Extracts of Summonsed Material, SM2, pages 21 to 27.
The Applicant said that he drove while disqualified because he had to travel for his work. He said he knew it was wrong, but he took the risk.[51]
[51] Transcript, page 46, lines 36 to 46
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
When the Applicant was 16 years old, he committed a very serious violent offence, being GBH, and he also committed a robbery with violence. In 2012, the Applicant was violent towards Ms L in breach of an AVO. In that episode he also threw and destroyed her phone to stop her from calling for help. This offending is to be viewed very seriously.
While the Applicant was not actually violent towards the man who purchased his father’s business, he threatened violence on multiple occasions and one of his threats was made against the victim’s family with particular reference to a baby. He was later, by his own admission, seen in the victim’s street – in breach of a protection order – which could also have been taken by the victim as a threat. Tis offending is very serious.
The Applicant committed multiple drink-driving offences over a 14 year period and some involved very high concentrations of alcohol. It is well known that intoxicated drivers pose a significantly increased risk of harm to other road users. This offending shows disregard not only of the law but of the safety of others in the community. The repetition and high concentrations of alcohol make this offending particularly serious. The Applicant was ultimately sentenced to six months imprisonment, fully suspended, for the most recent drink-driving offences.

In relation to his criminal offending, the Applicant has been sentenced to periods of imprisonment, a last resort in the hierarchy of sentencing options, on several occasions. For GBH, he was sentenced to imprisonment and allowed to serve it in the community through an Intensive Correction Order. He was also given the benefit of fully suspended sentences and immediate parole; however the objective seriousness is apparent in the fact that those were still sentences of imprisonment that hung over the Applicant’s head for the duration of the respective period in which he was required to be of good behaviour. He served actual imprisonment under three sentences.
The Applicant’s offending is frequent given he has committed in excess of 100 offences since 1999. There is not a trend in increasing seriousness in the particular offences the Applicant committed given the very serious nature of the GBH and robbery with violence when he was 16, however the Applicant’s offending became more serious in the sense that he committed a large number of offences in 2018 to 2020 including some that breached court orders. For the more serious offences in his most recent offending spree, he was punished with actual imprisonment.
The cumulative impact of the Applicant’s repeated offending is principally that many members of the community have had their property rights violated, multiple persons have been threatened and/or injured, and road users have been put at increased risk of injury or death. For two decades the criminal justice system has directed resources to curbing the Applicant’s offending behaviour with numerous arrests, prosecutions, protection orders, community-based orders and efforts to supervise and support the Applicant in the community, while he continued to commit offences and breach orders.
I do not consider factors (c) or (g) to (i) of paragraph 13.1.1(1) of the Direction apply to the Applicant’s offending or circumstances.
The rest of the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
·paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
·paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date.
Should the Applicant engage in further intimidating and threatening behaviour, the nature of harm includes psychological harm to members of the Australian community. The harm from further violence of the kind he has previously engaged in, or further drink-driving, includes injury, serious injury, psychological harm and/or even death. The harm from further dishonesty and property offences includes financial loss, property damage, and the violation of people’s property rights and sense of security.
Likelihood of engaging in further criminal or other serious conduct
The Applicant described a very dysfunctional upbringing with alcoholic parents, domestic violence and a father who was in and out of gaol. This was corroborated by his sister, Natasha and his aunt, Jill, both of whom gave evidence, and I accept it. The Applicant was abusing drugs and alcohol in his teens and he was intoxicated when he committed GBH.
The Applicant said his alcohol abuse worsened when he broke up with Ms Z, which was in 2011. Then in late 2015/early 2016, he suffered severe depression following the deaths of his parents and the consequent loss of the family home.[52] He did not seek counselling for his grief,[53] and he turned to methamphetamine. He became homeless in late 2016,[54] after his other sister would not allow him to live with her anymore.[55] He attributed his offending since that time to homelessness and his abuse of drugs and alcohol.
[52] Transcript, page 16, lines 40 to 47.
[53] Transcript, page 17, lines 1 to 7.
[54] Transcript, page 29, lines 26 to 27.
[55] Transcript, page 29, lines 33 to 43.
In the past, when the Applicant has had opportunities, indeed been required, to undertake drug and alcohol rehabilitation and engage in counselling, he has failed to do that. He said he complied with the conditions of the intensive correction order that was imposed for GBH in 2002, but he conceded there were some orders that he had not complied with.[56] In relation to his continued drug use in 2010 that breached a probation order, he agreed that at that time he considered that complying with community-based orders was optional.[57]
[56] Transcript, page 31, lines 1 to 20.
[57] Transcript, page 32, lines 19 to 39.
As recently as 1 November 2019, the Applicant was provided with a Mental Health Care Plan and a referral to the in-house psychologist at the Redlands District office of Community Corrections, however he failed to attend the first appointment on 26 November 2019.[58] He then missed several appointments with probation and parole and other services before disengaging entirely.[59] The Applicant said when he failed to attend appointments or community service; it was because he was homeless at the time. However, I do not accept that excuse. First, the Applicant could have communicated to the Probation and Parole service and to a psychologist that he was homeless and needed help but the Court Report detailing his poor compliance contains no record of him ever having done that. Second, the Applicant was given assistance to help him to stay in touch and keep appointments. The report states:
“[The Applicant] was offered support from the Community Re-entry Services Team (CREST) following his release from custody and induction into Probation. [The Applicant] received assistance with obtaining a phone and go card, however engaged sporadically over the three month period he was involved with the service, in that he missed appointments and was difficult to make contact with.”[60]
[58] Exhibit R2, RSFIC Annexure 1 - Extracts of Summonsed Material, SM2, pages 8 to 9, Court Report Community-Based Order.
[59] Ibid.
[60] Ibid.
Not all of the Applicant’s offending is drug or alcohol related. For example, he did not indicate that substance abuse was a factor in his campaign of threats against the man who purchased his father’s business. There were other offences that the Applicant committed with a clear head, such as unlicensed driving because he had to travel for work. As the Applicant gave his evidence, it became apparent that sometimes he had offended because in his own mind he believed there was a good reason. When I made this observation to the Applicant and asked how he would refrain from offending if he were released into the community and he thought there was a reason that justified offending, he replied:
“Well, that's why I want to keep – keep going with counselling and psychologists and that, so – so, I don't keep reoffending and all that, and that's why I'm moving in that, with my sister and that…I just don't want to keep doing this, I'm – I’m over – I'm over doing this – like, I just – I just want to move on and just have a good life or a good working life, which I have done before when I have been with my sister. And I – and that's what I want to do again. And it is – it is a good life out there by doing the right thing and that's the only way to live and that's how I see it now. When I wasn't looking at it like that, like, and that's the only way of having a good life is by doing the right thing…”[61]
[61] Transcript, page 49, lines 1 to 17.
The Applicant claimed, and I accept, that he has not used alcohol or drugs since his incarceration in January 2020. He said:
“I’m not planning to take drugs and alcohol again and that’s why I want to go to counselling – that’s why – when I do – if I get released either here or New Zealand, I am going to…do counselling and see a psychologist and go about – to go about it the right way instead of the wrong way which, when I was on substance[s], I didn’t – I didn’t think like that, my head – my head frame wasn’t right. The right space of mind which now, you know, being in gaol and in detention I have had – had a lot of time to think and like, do stuff which I – which you might have seen in front of you, like, I’ve tried to do three programs when I was up in Brisbane, they do a program and all that and that’s alcohol and all about alcohol and substance abuse and all that.”[62]
[62] Transcript, page 50, lines 5 to 18.
The Applicant said he wants to give back to the community, rather than taking from the community, and that he wants to become a rescue swimmer (which, it seems he did when he was younger). He added that:
“it has taken me to come to detention and to go through what I’m going through now to realise right from wrong, and these – these are the consequences if you keep disobeying them rules you will get deported back to New Zealand.”[63]
[63] Transcript, page 60, lines 15 to 30.
Since his incarceration, the Applicant has done some Bible study which he said gave him a better outlook on life,[64] and he attends weekly church services.[65] He had completed a “Do It” program which is aimed at recovering from addiction. His completed workbook is comprehensive and includes modules on managing stress and making better lifestyle choices.[66]
[64] Transcript, page 54.
[65] Transcript, page 58, lines 16 to 25.
[66] Exhibit G1, Section 501 G-documents, G2, pages 72 to 227.
There are several letters of support before me. There is a group of four letters as follows:
·from a former colleague who has known the Applicant for over four years and described him as responsible[67];
·from a friend who has known the Applicant for five years and described him as of good moral character, hard-working and dedicated[68];
·a friend who has known the Applicant for five years through working together who describes the Applicant as having an extremely impressive personality and work ethic, and a good moral character[69]; and
·the father of an old school friend who describes the Applicant as dependable, responsible and honest.[70]
[67] Ibid, page 228.
[68] Ibid, page 229.
[69] Ibid, page 230.
[70] Ibid, page 231.
These four letters are all in the same format and font, they all start with “To whom it may concern”, they all end with “Sincerely” followed by the name of the referee, and they are all undated. They also appear to be references produced for the purposes of employment and do not indicate any awareness of these proceedings or of the Applicant’s criminal history. I give them very limited weight.
There is letter from a friend and colleague of the Applicant’s, dated 15 February 2020, addressed to the sentencing judge.[71] The writer states that he has known the Applicant for 15 years, describes him as someone who can be depended on to get the job done, and notes that the Applicant had been struggling with life in the last seven years as his marriage had broken down and he lost regular contact with his two children, and both his parents had died. He said he thought the Applicant’s excessive use of alcohol was a way of self-medicating to suppress his pain. He described the Applicant as normally being very trustworthy and hard-working. While this witness indicates greater knowledge of the Applicant’s criminal conduct, his assessment of the Applicant as normally very trustworthy is simply not accurate given the Applicant’s lengthy history of dishonesty and property offences that dates back to before his relationship broke down and his parents died.
[71] Exhibit R2, RSFIC Annexure 1 - Extracts of Summonsed Material, SM2, pages 46 to 47.
There is a letter of support from Ms L, dated 26 December 2020, in which she said that the Applicant’s life changed since his parents passed away and suggested that his offending was out of character. I give limited weight to this evidence given the Applicant’s extensive criminal history before his parents passed away.
The Applicant’s sister, Natasha, provided a letter of support and gave evidence.[72] She said she and the Applicant were raised in a “seriously dysfunctional family” where they witnessed domestic violence, alcohol abuse and illegal dealings. She said the Applicant did not have positive role models and was not taught normal acceptable social behaviour. She has offered to accommodate the Applicant if he is released back into the community and to support him. She said he had previously lived with her family and that when he did, he had a full-time job and did not get into any trouble with the police. [73] She said that was around 10 years ago,[74] and there were some traffic offences that occurred before he started living with her.[75] Putting together her evidence and the Applicant’s evidence, it appears that he lived with her family from 2011 after he broke up with Ms Z until early 2012 when he moved to Sydney to assist their parents. The Applicant did not commit any offences during this period although he drove (or permitted the use of) an unregistered vehicle on two occasions.[76] This is a relatively short period and the Applicant was not completely compliant with the law. I accept that the combination of living with Natasha’s family and having full-time employment was previously a somewhat protective factor for the Applicant.
[72] Exhibit A2.
[73] Transcript, page 73, lines 35 to 38.
[74] Transcript, page 73, lines 28 to 29.
[75] Transcript, page 74, lines 20 to 25
[76] Exhibit R2, RSFIC Annexure 1 - Extracts of Summonsed Material, SM2, page 25.
Natasha said that she and her husband would impress upon the Applicant that this is an important chance for him to turn his life around.[77] Her plan for the Applicant was that he would seek counselling for trauma in his past, get help in terms of drug rehabilitation, and that as he would be living with her she would be able to keep a close eye on him. She said she would like him to seek full-time employment as well.[78]
[77] Exhibit A2.
[78] Transcript, page 72, lines 39 to 47.
Natasha said the Applicant’s goal was to move on from his past mistakes, set up a home for himself and his son, and return to full-time employment.[79] She said her husband would probably be able to help him with employment.[80] She considered that she and her husband could give the Applicant the stable home that he has never had.[81] The Applicant had periods of full-time employment when he was using alcohol and marijuana, and when he gave evidence he accepted that this was the case.[82] Accordingly, I am not satisfied that full-time employment alone is much of a protective factor for the Applicant, and I consider he would also need significant assistance from his sister and her family.
[79] Transcript, page 72.
[80] Transcript, page 73, lines 15 to 18.
[81] Transcript, page 73, lines for 28.
[82] Transcript, page 68, lines 35 to 40.
There is a letter of support from an uncle and aunt of the Applicant who live in Canada. They attest to Natasha’s family having a stable and loving family dynamic, and they consider that it would be a positive environment for the Applicant if he is to become a productive member of society.[83] The Applicant’s aunt Jill provided a letter of support and gave evidence in the hearing. She said that it would be in the Applicant’s best interests to live with Natasha’s family where he would be loved and cared for.[84]
[83] Exhibit A4.
[84] Exhibit A5.
The Applicant wishes to live with Natasha and accept her help if he is released into the community. He understands that she thinks he needs to see a psychologist to deal with his grief and mental health and that she will help him to do that.[85] He said Ms N will help him get counselling for his drug and alcohol use as well as “dealing with the way I was raised by my parents”.[86] The Applicant also intends to obtain employment if he is released, initially stacking boxes in a factory and ultimately construction work.[87]
[85] Transcript, page 18, lines 15 to 48.
[86] Exhibit A1, Statement of the Applicant.
[87] Transcript, page 53, lines 38 to 46.
I consider that living with his sister’s family and allowing her to assist him, and having full-time employment, is likely to assist the Applicant’s efforts to reform.
Further, there are letters before me from the Salvation Army and Uniting Care Prison Ministry that broadly state that those organisations are willing to offer their support to the Applicant after his release from prison.[88] This also seems promising.
[88] Exhibit R2, RSFIC Annexure 1 - Extracts of Summonsed Material, SM2, pages 10 to 11.
The Applicant still suffers from some depression. He was seeing a psychologist in immigration detention, however in the last two months, having been moved to a different detention centre, he has not sought treatment.[89] This is of some concern because it does not indicate a commitment to addressing his mental health issues. Also of concern is that, according to the Applicant he is still in a relationship with Ms L. The evidence relating to domestic disputes involving the Applicant and Ms L indicates that they both abused alcohol and their relationship was turbulent. The Applicant told the Tribunal that Ms L used to have substance abuse problems but he said she does not anymore. He said it had been a couple of years since she last took drugs, and that he has told her that if she takes drugs he cannot be with her.[90] Given Ms L’s relatively recent history of substance abuse and the volatile relationship between her and the Applicant, I do not consider her to be a protective factor and indeed if she lapses there is a risk that she could be a negative influence on the Applicant.
[89] Transcript, page 17, line 33 to page 18, line 14.
[90] Transcript, page 52, lines 4 to 14.
While the Applicant has abstained from substance use and been of good behaviour in the highly structured environs of gaol and immigration detention, and he has engaged in substance abuse counselling, he is at a relatively early stage in his efforts to manage his substance abuse problem and his tendency to commit offences even when not affected by drugs or alcohol. The Applicant has a long history of substance abuse and offending in the wider community. His resolve and ability to continue to abstain from both in that environment are untested.
When discussing the prospect of being deported to New Zealand, the Applicant said he would be homeless,[91] and end up turning back to crime.[92] When asked to explain, he said he would return to his “crime habit” because he would not know what support he had in New Zealand or what avenues to take and would probably turn back to crime to support himself. He added that he would probably turn back to substance abuse because he would fall into a depression from having to leave Australia.[93] This evidence tends to undermine the Applicant’s earlier evidence that he was committed to abstaining from drugs and living a law-abiding life. It re-enforces my impression that the applicant is open to committing offences if he considers there is justification.
[91] Transcript, page 69, lines 30 to 35.
[92] Transcript, page 69, lines 37 to 40.
[93] Transcript, page 70, lines 24 to 43.
The Applicant requires significant rehabilitative intervention going forward. I am not satisfied that there has been a substantial reduction in his risk of re-offending during his period of incarceration and detention. Accordingly, I consider that there is at least a moderate risk that he will commit further offences of the kind he has previously committed.
Conclusion: Primary Consideration A

Primary Consideration A weighs heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     the nature and duration of the relationship between the child and the person, noting that less weight should generally be given where there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·     the extent to which the person is likely to play a positive parental role in the future, taking into account the time until the child turns 18, and including any Court order relating to parental access and care arrangements;
·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizens ability to maintain contact in other ways;
·     evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect;
·     whether there are other persons who already fulfil a parental role in relation to the child; and
·     any known views of the child.
The Applicant claims that his deportation would be against the best interests of Child A, being his former step-daughter and Child B, being his biological son.[94] He said they would be disadvantaged significantly if he were to be deported.[95]
[94] Exhibit G1, Section 501 G-documents, G2, page 47.
[95] Ibid, G2, page 40.
According to the Applicant, he broke up with the mother of these children, Ms Z, when Child B was eight weeks old.[96] Ms Z and the children then moved away. Ms Z then commenced a relationship with Mr D. Ms Z and Mr D then had a child together, “Child J”.
[96] Transcript, page 5, lines 25 to 27.
In his revocation request form, the Applicant stated that Child A was born in 2007 but he did not give the day or month. Similarly, he said Child B was born in 2011 but he did not give the day or month. There is an affidavit before me (which I will discuss in more detail below) from Mr D which gives exact dates of birth for Child A and Child B. Child A’s is in April 2008 and Child B’s is in October 2010. A letter from the Department of Child Safety, Youth and Women (“Child Safety”) gives the same date of birth for Child B. It was not disputed in these proceedings that Mr D was Ms Z’s partner since Child B was eight weeks old. He appears to be well placed to know the dates of birth of Child A and Child B and I accept that Child A was born in April 2008 and Child B was born in October 2010. Accordingly, I find that the Applicant lived in the same home as Child A and Child B from Child A’s birth until she was two years old and for the first eight weeks of Child B’s life.
Until very recently the Applicant thought Child A was his biological child and he raised her as such. He said she called him “Daddy” and they had a strong bond.[97] After his relationship with Ms Z ended, he used to visit Child A and Child B when he visited the town where they live, which he said was around three times per year.[98] In a letter dated 20 November 2020,[99] the Applicant said that he always got along well with Child B and that they spent time camping, fishing and going to movies together. He indicated in the hearing that Child A was also involved in these activities.
[97] Ibid, G2, page 268.
[98] Transcript, page 9, lines 1 to 6.
[99] Ibid, G2, page 261
The children’s current care arrangements are complicated. There is before me:
·     a court order dated 9 January 2020 placing Child B in the care of Child Safety until 17 July 2020; and
·     an affidavit by Mr D dated 28 May 2020 filed in the Federal Circuit Court of Australia that exhibits:
o   a letter from Child Safety to Mr D dated 6 May 2020; and
o   a Child Safety Case Plan for Child J which also contains information about Child A and Child B.
This material indicates that Child B was placed in the care of Child Safety on 28 March 2019 due to abuse and neglect by Ms Z,[100] that he had been in the care of Mr D and his mother since June 2019 and that in May 2020 Child Safety was content for this arrangement to continue beyond the expiration of the court order.[101]
[100] Exhibit G1, Section 501 G-documents, G2, pages 263 and 267
[101] Ibid, page 257.
At some point, according to the Applicant, he applied for care of Child A and Child B, and a DNA test was performed that revealed that Child A was not his biological daughter. At the hearing, the Applicant said he thought Child A was currently in the care of Ms Z,[102] he did not know how to contact Ms Z,[103] and he has not been in contact with Child A since he was incarcerated.[104] However, the Case Plan indicates that Child A was placed by Child Safety with her biological father,[105] and that all of the fathers involved were in contact and were promoting sibling contact. (It does not appear that the Applicant was considered to be involved).
[102] Transcript, page 8, lines 25 to 35.
[103] Transcript, page 11, lines 17 to 28.
[104] Transcript, page 62, lines 27 to 28.
[105] Exhibit G1, Section 501 G-documents, G2, page 268
Mr D’s affidavit was made in support of his application for sole care of Child B, and in it he indicated that:
·     all four children who were formerly in Ms Z’s care (Child A, Child B, Child J and an older child) were physically and verbally abused by Ms Z and missed a lot of school;
·     Ms Z has a problem with alcohol, and spent money on that rather than food for the children;
·     Child Safety has no intention of re-unifying Child J with Ms Z;
·     Child J and Child B have been in the care of Mr D and his mother since mid-2019; and
·     Mr D has been the only father figure in Child B’s life since Child B was eight weeks old.[106]
[106] Ibid, pages 250 to 256.
The letter from Child Safety states that it supports Mr D and his mother continuing to have care of Child B.[107] The letter says:
“Should you be successful in applying for and securing an interim or final parenting order that enables [Child B] to live with you, the department would view such orders as appropriate for meeting his ongoing care and protective needs”.
[107] Ibid, pages 257 to 259.
The letter goes on to say that, should a parenting order be sought by Child B’s father, (being the Applicant) that provides Child B spend time or communicate with him, it would be Child Safety’s assessment that this contact should be supervised having regard to ongoing concerns regarding the Applicant’s capacity to act protectively towards Child B. The letter states that this is evidenced by Child Safety not being able to contact the Applicant or the Applicant addressing any of the case plan goals.
The Applicant said he would like contact with Child A however his main focus is Child B. He said:
·     he now has permission to speak with Child B on Mondays, Wednesdays and Fridays;[108]
·     he and Child B FaceTime for up to an hour at a time, Child B tells him he loves him, and he tells Child B the same;
·     his relationship with Child B will be severely strained should he be deported; and
·     he has told Child B that he looks forward to visiting him and hopefully gaining full custody of him.
[108] Transcript, page 7, lines 38 to 41.
The Applicant intends to seek sole care of Child B if he is allowed to stay in Australia. He said that if he had the opportunity, he would bring Child B to the Gold Coast and enrol him in school there.[109] He claimed that if he were to be released, he would be able to visit Child B any time and that Child B could visit him in the holidays.[110]
[109] Transcript, page 8, lines 4 to 5.
[110] Transcript, page 7, lines 45 to 46.
While I accept that the Applicant is in FaceTime contact with Child B, I do not accept that he has visitation rights and that he could have Child B in his care in the school holidays as this is contrary to the recommendation that Child Safety made in May 2020 and there was no evidence to support a change in Child Safety’s position. Further, I find it very concerning that the Applicant has told Child B that he will seek full custody of him: he did not say that Child B had expressed a desire for that to occur, and such a prospect could be quite unsettling to Child B if he is comfortable living with Mr D, his grandmother and his half-brother, Child J. To my mind the Applicant’s conduct indicates that he has some difficulty identifying Child B’s emotional and psychological needs.
When I asked the Applicant if it was realistic to attempt to gain sole care of Child B given he had been raised by Mr D for eight or nine years, he said he was not happy with Mr D because he considered him partly to blame for the children’s situation because he was with Ms Z when it happened.[111] I note that Mr D is a fly in fly out worker and that the Applicant acknowledged this earlier in his evidence when he said that when he visited the children Mr D was away working. I further note that the Applicant gave evidence that he did not notice anything wrong when he visited the children, and he acknowledged that he knew Ms Z had a problem with alcohol at the time.[112] This re-enforces my view that the Applicant’s perception of the situation with respect to Child B is unrealistic and not necessarily focussed on his best interests. This is relevant to my consideration of whether the Applicant would make a positive contribution to Child B’s life and the likelihood that he would be allowed physical care (to any extent) of Child B.
[111] Transcript, page 65, lines 1 to 13.
[112] Transcript, page 9, lines 8 to 25.
In his revocation request form dated in May 2020, the Applicant said Child B had a heart condition and was awaiting serious surgery, and that his deportation “may” negatively impact his health and well-being.[113] There is no mention of a heart condition in the material from Mr D or Child Safety and I do not accept the Applicant’s evidence about that.
[113] Exhibit G1, Section 501 G-documents, G2, page 48.
Natasha said she would support the Applicant “100 per cent” if he seeks full custody of Child B and help him to provide a suitable environment for Child B.[114] This seems like a big task given the Applicant’s own needs in terms of counselling and rehabilitation. In any event, at present it does not appear that the Applicant has realistic prospects of gaining any degree of unsupervised care of Child B let alone sole care.
[114] Transcript, page 74, lines 39 to 44.
With respect to Child A, the Applicant said he plans to seek visitation rights but leave her with her mother.[115] I find this bizarre given his apparent acceptance that Ms Z abused the children. In any event, it appears that Child A’s care arrangements are being supervised by Child Safety, and I accept that there may be some prospect of the Applicant having contact with her although this contact would probably be monitored by Child Safety.
[115] Transcript, page 11, lines 17 to 20.
The Applicant currently pays child support to the Child Support Agency using money given to him by his sister.[116]
[116] Transcript, page 65, lines 30 to 35.
The Applicant’s relationship with both children has involved long periods of absence and little meaningful contact. The views of these children are not known. Mr D has fulfilled a parental role for Child B since he was an infant and he continues to do so with his mother’s assistance and the approval of Child Safety. There is no evidence to suggest that this will change in the foreseeable future. It appears that Child Safety is managing Child A’s care arrangements and there is no indication that the Applicant would be called upon to fulfil a primary parental role for her, nor has he expressed a wish to fulfil that role.
I accept that there is potential for the Applicant to have some limited involvement with each child in the future. Whether that would be in their best interests largely depends on whether the Applicant reforms and prioritises their needs. Those are currently unknowns.
There is no evidence as to the impact, if any, that the Applicant’s current separation from the children has had on them, or the likely effect of continued separation. The Applicant would likely be able to maintain contact with Child B as he currently does. I cannot make a finding about whether he would be able to establish contact with Child A.
Conclusion: Primary Consideration B
The best interests of the children mentioned above weighs very slightly in favour of the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he/she would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[117]
[117] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
Paragraph 6.2(1) of the Direction states that:
“The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”
Those principles, set out in paragraph 6.3 of the Direction, are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizens Visa should be cancelled, or their visa application refused.
Analysis – Allocation of Weight to this Primary Consideration C
Accordingly, in assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:
·the Applicant moved to Australia when he was four years old. He is now 36 years old;
·he commenced offending 11 years later, while still a juvenile, at the age of 15;
·the Applicant’s offences include very serious offences, some involving violence and threats of violence;
·there is at least a moderate risk that he will re-offend;
·his extensive criminal and traffic history, despite significant intervention by the criminal justice system, demonstrates disregard for the laws regulating the community that he seeks to re-enter and for the safety of members of that community;
·the Applicant played in several football clubs including a Queensland school representative team. He did voluntary life-saving when he was a nipper, achieved his Bronze Medallion and did first aid through the voluntary lifesavers[118];
·the Applicant was a surfing instructor and conducted classes free of charge for local disadvantaged children, as well as an active member of life-saving Queensland.[119] He has donated to the heart foundation[120];
·the Applicant was employed in jobs involving manual labour from 1998 to 2016, and as a baker from 2016 to 2018[121];
·he Applicant has a Certificate III for steel fixing and concreting, and he worked in that trade for many years[122];
·the Applicant had an awful upbringing. His father was often in gaol and when he was home he was violent towards his mother. Both parents were alcoholics. He recalls having to push his mother in a trolley from the pub to their home at the age of nine and pulling his mother out of trees several times because she tried to hang herself.[123] His sister (Natasha) considers herself lucky to have escaped the family environment by leaving home at the age of 15, but the Applicant was not so fortunate[124];
·his removal to New Zealand will have a very slight negative impact on the best interests of Child A and Child B. It will likely sadden his siblings, his aunts and uncles in Australia and Ms L.
Conclusion: Primary Consideration C
[118] Exhibit G1, Section 501 G-documents, G2, page 63.
[119] Exhibit G1, Section 501 G-documents, G2, page 54.
[120] Ibid, page 63.
[121] Ibid, page 53.
[122] Ibid, page 63.
[123] Ibid.
[124] Exhibit A2.

The Applicant breached the trust of the Australian community. The nature of the Applicant’s offending is such that the Australian community would expect that he should not hold a visa. Considering all relevant factors, Primary Consideration C weighs heavily in favour of non-revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant.
(b) Strength, nature and duration of ties
The Applicant came to Australia at the age of four and has lived in Australia for 32 years. While he did not start offending until 11 years later, he was a child for that 11 years. While still a minor, he committed several offences including serious offences. I afford the Applicant a modest measure of weight under paragraph 14.2(1)(a) of the Direction.
The Applicant’s employment history and voluntary work afford him moderate weight under paragraph 14.2(1)(a)(ii) of the Direction.
The Applicant has two sisters who live in Brisbane and the Gold Coast respectively, a stepbrother who lives on the Gold Coast, and a brother who lives in Sydney.[125] Only one sibling supported him in these proceedings. I am satisfied that the Applicant’s deportation would sadden his sister, Natasha, and possibly his other siblings. The Applicant also has some aunts and uncles in Australia, one of whom gave evidence sympathetic to the Applicant. I asked the Applicant about his relationships with the aunts and uncles and based on his answers[126] I am satisfied that he has close relationships with them all and that if he were allowed to remain in Australia he would have contact with most of them, being the ones who live in south-east Queensland. The Applicant said that his deportation would effectively terminate any physical relationship with those elderly relatives.[127] I accept this and I am satisfied that his deportation would sadden his aunts and uncles. I am satisfied that it would have a slight negative impact on the best interests of Child A and Child B in terms of removing any potential that there might be for the Applicant’s presence in Australia to contribute positively to their lives before they turn 18.
[125] Exhibit G1, Section 501 G-documents, G2, page 51; Transcript, pages 12 to 13.
[126] Transcript, pages 11 to 12.
[127] Exhibit G1, Section 501 G-documents, G2, page 51.
I find that the Applicant has some friendships in the Australian community. The Applicant has been in a relationship with Ms L for many years and they are still together. Ms L went to the effort of writing a letter of support for the Applicant. I accept that the Applicant’s removal will likely cause Ms L some emotional hardship.
The Applicant has an adult child in Australia, born in 1999.[128] His son was 15 and nine months old last time the Applicant saw him which was when he moved to Sydney to look after his parents and he lost contact with him. According to him, before that, he saw his son every weekend and they had a good relationship.[129] The Applicant recently obtained his son’s contact details but has not contacted him at this stage. There is no evidence before me of whether this person wants to contact the Applicant or how he would feel about him being deported, and I make no finding about those matters.
[128] Exhibit G1, Section 501 G-documents, G2, page 49
[129] Transcript, page 10 and page 11, lines 1 to 5.
The Applicant’s social and familial ties, and the impact on his family members of his removal from Australia, weighs moderately in his favour under paragraph 14.2(1)(b) of the Direction.
Overall, I am satisfied that the strength, duration and nature of ties to the Australian community weighs moderately in favour of revocation.
(c) Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.
(d) Impact on victims
This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e. where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s). There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (d), is therefore neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is a 36-year-old man who is able bodied. The injury to his foot, that occurred when he was 15, has completely resolved,[130] and he does not claim to have any physical ailments. He has a history of anxiety and depression,[131] for which he is currently not seeking treatment.
[130] Transcript, page 20, lines 40 to 46
[131] Exhibit G1, Section 501 G-documents, G2, page 54
In his revocation request, the Applicant stated: “Deportation will hundred percent guarantee my opportunities to create a happy and law-abiding lifestyle will be destroyed due to having zero family support in NZ”[132].
[132] Ibid, G2, page 52
The Applicant said he has no-one in New Zealand. An aunt and uncle in Canada provide a letter of support in which they said the only family the Applicant has in New Zealand are an elderly aunt and uncle who have not seen him since he was a baby and would be unable to help him.[133] I accept that he effectively has no social support available in New Zealand. His aunt Jill said it would be hard for the Applicant to survive in New Zealand without any support, and that it would create more problems for him socially and would take a toll mentally as he has no support there.[134] The Applicant said he could not expect his children or his aunts and uncles to visit him in New Zealand, and I accept that those people would not visit him.
[133] Exhibit A4.
[134] Exhibit A5.
In the hearing, the Applicant said he would be homeless if he had to move to New Zealand. When asked about seeking income support from the New Zealand government he said he would not know where to start.[135] He then said he would end up turning back to crime, and to substance abuse due to falling into a depression.
[135] Transcript, page 69, lines 30 to 35.
I accept that removal to New Zealand could exacerbate the Applicant’s mental health. He has previously sought treatment for his mental health and there is no reason why he could not do that in New Zealand. It is reasonable to find that the level of medical care, including care for mental health in New Zealand is at or about the same level as that currently available to the Applicant in Australia.
The Applicant has a trade qualification relevant to his preferred line of work, being steel fixing and concreting. He is relatively young, able bodied and it appears that he could produce a positive work references from at least one former colleague[136] (who provided an authentic looking letter for the purposes of the Applicant’s court proceedings) to prospective employers. If the Applicant were to find it difficult to obtain employment, he would have the same access to social welfare as other New Zealand citizens.
[136] Exhibit R2, RSFIC Annexure 1 - Extracts of Summonsed Material, SM2, pages 46 to 47.
New Zealand is culturally and linguistically similar to Australia. There are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in New Zealand.
It is likely that the Applicant would face some difficulty in re-establishing himself in New Zealand as he would have to secure accommodation, obtain a job or arrange income support, secure support services for his mental health, and establish a support network. However, these challenges are likely to be short-term and would not prevent him from successfully re-settling in New Zealand.
This Other Consideration (e) weighs slightly in favour of revocation of the reviewable decision.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)strength nature and duration of ties: weighs moderately in favour of revocation;
(c)impact on Australian business interests: not relevant;
(d)impact on victims: neutral and
(e)extent of impediments if removed: weighs slightly in favour of revocation.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration B weighs very slightly in favour of revocation;
·Primary Consideration C weighs heavily in favour of non-revocation; and
·To the extent that Primary Consideration B and Other Considerations (b) and (e) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 160 (one hundred and sixty) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

........................[SGD]................................................
Associate
Dated: 4 March 2021

Date of hearing: 16 and 17 February 2021

Applicant:
By videoconference

Solicitor for the Respondent
Mr Ingmar Duldig

Clayton Utz

ANNEXURE A – EXHIBIT LIST

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (G1 to G27 pages 1 to 475)

R

-

22 DEC 2020

A1

Statement of the Applicant

A

-

25 JAN 2021

A2

Letter of Applicant’s sister, Natasha

A

14 JAN 2021

14 JAN 2021

A3

Letter of Ms L

A

26 DEC 2020

27 DEC 2020

A4

Letter of Applicant’s aunt and uncle

A

13 JAN 2021

13 JAN 2021

A5

Letter of Applicant’s aunt, Jill

A

-

14 JAN 2021

R1

Respondent’s Statement of Facts, Issues and Contentions

R

29 JAN 2021

29 JAN 2021

R2

Respondent's Statement of Facts, Issues and Contentions - Annexure 1 - Extracts of Summonsed Material (SM1 to SM9, pages 1 to 105)

R

-

29 JAN 2021

[2021] AATA 395

1 March 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G27 pages 1 to 475)	R	-	22 DEC 2020
A1	Statement of the Applicant	A	-	25 JAN 2021
A2	Letter of Applicant’s sister, Natasha	A	14 JAN 2021	14 JAN 2021
A3	Letter of Ms L	A	26 DEC 2020	27 DEC 2020
A4	Letter of Applicant’s aunt and uncle	A	13 JAN 2021	13 JAN 2021
A5	Letter of Applicant’s aunt, Jill	A	-	14 JAN 2021
R1	Respondent’s Statement of Facts, Issues and Contentions	R	29 JAN 2021	29 JAN 2021
R2	Respondent's Statement of Facts, Issues and Contentions - Annexure 1 - Extracts of Summonsed Material (SM1 to SM9, pages 1 to 105)	R	-	29 JAN 2021