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

ZBLW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3384 (3 September 2020)
Division:GENERAL DIVISION
File Number(s): 2020/3730
Re:ZBLW
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:3 September 2020
Place:Sydney

The reviewable decision made on 15 June 2020, being the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of the applicant’s Class TY subclass 444 Special Category (Temporary) visa is set aside.
In substitution it is decided that the decision to cancel the applicant’s Class TY subclass 444 Special Category (Temporary) visa made 4 December 2019, is revoked.
..............................[sgd]..........................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – where offending very serious – where there is risk of reoffending – protection of the Australian community – best interests of minor children in Australia – expectations of the Australian community – strength, nature and duration of ties to Australia – impediments to removal – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 501, 501CA
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
3 September 2020
BACKGROUND

The applicant was born in New Zealand on 22 June 1983 and he arrived in Australia when he was five years old on 6 September 1988.
The applicant’s criminal offending began when he was a juvenile in 2000 and he has repeatedly offended since then. The applicant did so despite being issued notices by the Department in 2004, 2008 and 2012 warning that his criminal offending might lead to the cancellation of his visa.
On 26 June 2019, the applicant was sentenced to a term of 20 months’ imprisonment for his most recent conviction of two counts of common assault, assault occasioning actual bodily harm, and contravene prohibition/restriction in an Apprehended Violence Order (domestic) (‘AVO’).
On 4 December 2019, the applicant’s Class TY subclass 444 Special Category (Temporary) visa was mandatorily cancelled pursuant to section 501(3A) of the Migration Act 1958 (Cth) (‘the Act’).
On 9 January 2020, the applicant sought revocation of the mandatory cancellation of his visa.
On 15 June 2020, the applicant was notified that a delegate of the Minister (‘the delegate’) had decided not to revoke the cancellation of the applicant’s visa.
The applicant sought review in the Administrative Appeals Tribunal (‘the Tribunal’) of the delegate’s decision to not revoke the cancellation of his visa on 15 June 2020.
THE LAW
As both parties agreed that the applicant does not pass the character test set out in the Act, the sole issue the Tribunal must consider is whether to exercise its discretion under section 501CA(4) of the Act to revoke the mandatory cancellation of the applicant’s visa.
Accordingly, the issue before the Tribunal is whether, having regard to Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘Direction 79’), there is any other reason why the mandatory cancellation of the applicant’s visa should be revoked.
There are a number of relevant principles contained in paragraph 6.3 of Direction 79 that I have considered, which provide the framework within which the task of exercising the discretion is to be approached:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled or their visa application refused.
Direction 79 sets out primary and other considerations that must be considered, where relevant, when deciding whether to revoke the mandatory cancellation of a visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not properly be seen as “secondary”; in certain cases, other considerations may outweigh primary considerations.
Those primary considerations pursuant to Part C of Direction 79 are as follows:
(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.
Direction 79 also sets out other considerations that must be taken into account, which include but are not limited to:
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties to Australia;
(c)impact on Australian business interests;
(d)extent of impediments to the applicant if removed from Australia; and
(e)impact on victims.
THE ISSUES
It was agreed between the parties that the applicant does not pass the character test defined in section 501 of the Act, because he has a “substantial criminal record” as defined in section 501(7) of the Act.
Accordingly, the sole issue before the Tribunal is whether there is “any other reason” why the decision of the delegate to cancel the applicant’s visa should be revoked.
THE EVIDENCE
The applicant’s evidence
The applicant gave evidence that he had come to Australia at five years of age and that all his immediate family, friends and life experiences have been in Australia.
When questioned about the time he spent in New Zealand since his arrival in Australia from approximately 1991 to 1994, the applicant said he remembered attending some of his primary school years in New Zealand and living with his uncle at the time. He said that he had blocked a lot of this period out of his mind. He did not know where his uncle was currently living and had not seen him since he was a child.
The applicant gave evidence that alcohol abuse was the cause of much of his offending. He expressed regret and shame for his past behaviour, particularly in relation to his domestic violence offences. He said that since he has been incarcerated, he has had time to reflect and has started working to address his underlying alcohol abuse, mental health and domestic violence issues. He said that he wanted to continue to seek help in this regard.
The applicant said that his assault charges resulted from his alcohol abuse and that he was heavily intoxicated at the time of each of these offences. He expressed sincere regret for his conduct and said that his offending behaviour would not reoccur if he had his alcohol addiction under control.
The applicant said that he wanted to continue to improve himself and to stop offending. He said he has been starting to do this by attending classes for the last 14 to 16 months and that he now understood much more about the consequences of his offending behaviour on his family, the community and himself. The applicant said he wanted to focus on being an upstanding citizen and giving back to the community instead.
When cross-examined, the applicant gave details of his very traumatic upbringing, and said that he had blocked out a lot of his childhood from his mind.
Growing up, the applicant said he changed schools because of problems at his original High School in Australia, and after year nine he attended TAFE NSW. He gained a forklift license and has been working since then almost full-time. He said that he did not have trouble getting work even after he had spent time in jail and that he usually worked as a contractor.
The applicant said he met his partner in 2006 and his first child was born the next year.
The applicant gave evidence that he has had a problem with alcohol for a large portion of his life and started drinking when he was approximately 15 years old. He said that his periods of alcohol abuse were not consistent and stated, “at particular times it gets too much”. He said that he usually got to the stage of binge drinking on the weekend. The applicant said that he always remained sober when working in order to operate the forklift.
At the time of his son’s birth the applicant said that his drinking was getting out of hand, although he tried to cut back. The applicant said that for a period he had “got a handle” on his drinking, but then started drinking heavily again in 2017. In around 2018, the applicant realised how heavy his drinking had become and this led him to ultimately see a psychologist, who he said helped him a lot. As a result, his drinking was under control for a period in 2018.
The applicant said that when he had been heavily drinking, he did not really know what he was doing and could not recall details or large portions of certain nights.
When questioned about his various offences, particularly a number of serious, violent offences, the applicant said that drinking had been a problem for him as far back as 2003. He said that he did not remember the circumstances of his assault charge in 2003 because he was intoxicated at the time. He said that he was “very lost” in his teenage years.
The applicant recalled receiving the first warning letter from the Department regarding his offending conduct but said he did not really understand it.
In relation to the assault which occurred at Coogee beach in December 2005, the applicant said the assault had actually been committed by a friend, but he had taken the blame and had plead guilty to the charge.
The applicant acknowledged the incident in 2008 where he had stolen an unconscious man’s wallet and had walked off without seeking any assistance for the victim, apart from putting him in the recovery position to clear his airways. The applicant said that he “wasn’t thinking at the time” and was heavily intoxicated. He said that he felt guilty for his offending conduct and that he did not plan to steal the wallet, but that it was opportunistic and spur of the moment. This resulted in him being sent to prison for approximately two years.
When questioned about assaulting police officers in 2011 and 2012, the applicant said that he was heavily intoxicated and did not remember either incident. The applicant acknowledged the seriousness of these offences.
In relation to the domestic violence offences and in particular the last offence on 13 April 2019, the applicant said that he had been seeing a psychologist prior to that time. He had been seeing a psychologist in relation to depression and anxiety as well as his drinking. The last incident with his partner occurred after he had stopped seeing the psychologist and his issues had started to come back. The applicant said he could feel himself “slipping back”.
The applicant said that he initially did not reflect on his drinking and how this affected his behaviour, as he thought it was normal to drink heavily. He said he was also suffering from mental health issues growing up.
The applicant said, however, that on being sent to jail for his last conviction he “didn’t waste time in asking for help”. The applicant had attended classes for domestic violence and anger management. He said he had learnt a lot from these courses but felt that he wanted to continue to learn more. He said that he had realised a lot about himself and he did not want to continue his previous behaviour and alcohol abuse. The applicant said that there was “no going back” and that he wants to get better and to stop the cycle by preventing the recurrence of previous behaviour.
The applicant gave evidence that he talks to his partner daily. He said that he and his partner have discussed and unpacked various issues with his alcohol abuse, mental health and domestic violence issues, and she had told the applicant that she wants to work with him to address these issues and to be a family.
The applicant gave evidence of the difficulties that his partner was facing both financially and in coping generally with their children in his absence. He said that his partner had found it tough whenever he was incarcerated, but that this time was the toughest. The applicant said that he and his partner jointly cared for the children whilst he was living in the community. His partner would work at night whilst he cared for the children and he would leave the house early in the morning to go to work. He generally worked eight hours a day and sometimes an extra shift, depending on his partner’s work commitments. He would start work at 5:00AM and would usually get back home at around 4:30PM or 5:30PM in order to pick up the children. The applicant said he spoke to his daughter regularly but that his son had been less communicative in recent times.
The applicant also gave evidence as to his close relationship with his mother who lives in Sydney. The applicant said that he saw his mother regularly and helped her whenever he could, particularly as she suffered a range of health issues and did not have any other close family in Sydney to assist. He said that the children liked to see his mother and that he would often call in to see her on the way home from work or whenever he had a chance.
The applicant also gave evidence as to his extended family in Australia. He speaks regularly to his brother, cousins, uncles and aunts and had regular physical contact with them at family gatherings when he was living in the Australian community.
When questioned about his connection with New Zealand, the applicant said that he did not really know his relatives in New Zealand and had not spoken to them for a while. He felt no connection to New Zealand and had tried to block out a lot of the trauma he had suffered as a child living there.
The applicant’s partner’s evidence
The applicant’s partner gave evidence about her difficulty in coping whilst the applicant was in jail and Villawood Immigration Detention Centre (‘Villawood’). She said that since the applicant had been incarcerated “everything has changed for the worse”.
The applicant’s partner gave evidence that she had to change her work arrangements because of the need to look after the children by herself. This resulted in her being paid approximately half of what she was earning when she could work night shifts.
The applicant’s partner said that the applicant did a great deal for the children prior to his incarceration, in particular assisting them with homework, packing lunches, dropping and picking them up from school and assisting with their school activities. She said that the applicant’s absence from home had “tipped [their] world upside down”.
She felt that both children were falling behind at school. She said that their daughter was being bullied at school and that she was finding it very difficult to manage her at home. She was swearing at her mother, showing a great deal of disrespect and was refusing to do her homework. She gave evidence that the applicant was their daughter’s favourite parent, and that she was acting out without him there. The applicant’s partner said that their son was also missing a lot of school and she was concerned that he was now “blocking his father out” due to the applicant’s current absence.
The applicant’s partner gave evidence that she was currently experiencing issues with her neighbours. There was a violent neighbour living next door to the applicant’s partner and children and the police had been called to assist the applicant’s partner after an altercation with this neighbour. She was very concerned about leaving the children at home by themselves when she had to go to work and said that the children were also very frightened.
The applicant’s partner said she wanted to continue to be a family unit with the applicant and that they had been together for some 14 years. She knew that the applicant’s problems were caused by alcohol and she was not fearful of him at all. She said that he was a very good father, a good provider and that he supported her in every way, including cultural support for her such as attending Indigenous Australian activities and showing respect for Aboriginal Elders.
The applicant’s partner gave evidence that she did not blame herself for any of the applicant’s violence towards her, although she said that she did not like to be around him when he had been consuming alcohol.
The applicant’s partner said she had zero tolerance for alcohol because of her family’s history of alcohol abuse but said that the applicant did not know of her very deep feelings around alcohol. She said that the applicant had tried to give up alcohol in the past, including trying to go “cold turkey”.
Evidence was given as to a short period of separation between the applicant and his partner in early 2018. At that time the applicant had the care of their children and his partner was paying child support. She saw the children regularly when the applicant had care of them.
The applicant’s partner said that if applicant was returned to New Zealand it would be a massive blow to her and the family and she believed that the applicant would also go downhill. She said that if the applicant was not here it would “break” her and their children. She said that she and the children could not cope at all without the applicant and that she did not have close family members who are alive to assist her with the children in his absence. Things in the house were broken and she couldn’t fix them or pay anyone else to fix them, including the daughter’s bed which meant that the daughter was now sleeping in her bed with her.

She said that she and the applicant’s mother tried to help each other as much as they could, but that she was relying on the applicant being released into the Australian community to support her and the children.
The applicant’s mother’s evidence
The applicant’s mother gave evidence that she came to Australia with the applicant in 1988 to escape very serious domestic violence. She said that she herself had perpetuated the cycle of domestic violence and that she did not give the applicant a good start in life.
The applicant’s mother did not have contact with her family in New Zealand as a result of the serious abuse she had suffered at the hands of family members.
She said that she ultimately realised how traumatised both she and her family were, and she had sought help from the Mormon church and counselling.
The applicant’s mother said she realised that the applicant had also been affected by what happened and said that he had repeated the cycle too. She said that he had been incredibly traumatised by his experiences.
The applicant’s mother believed that the applicant had now realised the extent of his problems and that she was seeing and hearing positive changes in the applicant. The applicant’s mother believed that the applicant had time to reflect and now realised the need to be with his family and that when he was not in trouble, he was hardworking, a good provider and a loving father. The applicant’s mother said that her church had reached out to the applicant and that there were a number of programs they offered which would help him if he were to be released.
The applicant’s mother said that she had been looking for a job for him if he were to be released into the community and that as a result her son had been offered a job three days per week. The applicant’s mother did not provide any supporting evidence which could be considered as part of the hearing.
The applicant’s mother said that the applicant’s partner was really suffering as a result of the applicant not being there to support her and their children. She said that she had seen adverse changes in the children’s behaviour since the applicant was incarcerated. The applicant’s daughter cries and gets very upset regularly and his son missed going to the rugby with him.
The applicant’s mother said that the applicant’s partner now has serious financial problems because the applicant cannot provide the same support to their family when he is detained in Villawood, but that she was trying to be strong.
Other evidence
The applicant submitted a number of statements of support, which I have considered and which are largely consistent with the oral evidence of the applicant’s partner and mother at the hearing.
The applicant’s mother provided two letters of support to the Tribunal dated 22 February 2020 and 17 August 2020. In her initial letter, she detailed the applicant’s upbringing in New Zealand and Australia, including the domestic violence, “torture” and the extreme lack of support he received, to provide some context to his offending conduct.
In the second letter, the applicant’s mother detailed the “devastating” hardship the applicant’s visa cancellation would have on her, the applicant’s partner and his children. In relation to the support the applicant currently provides, she said as follows:
Because I suffer from arthritic limbs, asthma, deformed feet, which often makes me lose my balance and fall, diabetes and depression, I depend on [the applicant] for support and allows me to do my shopping and takes me to my ongoing medical appointments. Currently, I miss some of these necessary appointments because he is not around. [The applicant] used to support me financially and is sorely missed at this covid time.. He would fill a necessary gap in my life as I need his help in all these aspects.
Currently, with great difficulty, I assist with the upbringing of my grand kid.... Because their mother works uneven shifts, I often have to look after them on weekends, holidays, school vacations and any other times. It has become increasingly harder to look after them as they enter troubled teenage years.
Furthermore, she said:
The absence of ability to be a father to his children has proven to be detrimental and hard on the children. Their behaviour and attitude has changed in the time that [the applicant] has been away and they miss his loving support.
His partner, [redacted], remains hard-working and struggles financially to look after the household in his absence. It would be a definite asset if [the applicant] could be set free, so that he could be of help and support.
The applicant’s brother also provided a letter of support for the applicant dated 19 July 2020, detailing the support that the applicant provides to his children, partner, mother and the applicant’s family more generally in Australia, as well as the support he would like to provide the applicant to assist him in getting on the right path with his mental health if he were released. In relation to the impact of the applicant’s separation on his children, he writes as follows:
Above all else and most Paramount is the Health and well being of [the applicant’s] children which is the greatest concern to us as a family at this point. The impact of the absence of their Father temporarily, recently has been an evident shock to their system. I make sure to have very regular contact with [the applicant’s] wife [redacted], to check in on them, to be as supportive as I can and on many occasions offer financial support for food, clothing and weekly needs. Stepping in to help where my brother usually does. Recently I spent time with them in Sydney and I noticed mood changes in the children. The children aren’t as bright and bubbly as they always are, especially knowing my brother has daily routines with them, the school drop off and pick ups, the daily afternoon park activities, and the time with their Father. To deport [the applicant] would be an absolute devastation to the children and open the door for the cycle to repeat itself.
He further goes on to write:
My brother has also been a huge assistance to our mother over the past few years. She’s taken a step back from full time employment to focus on her mental and physical health. Attained certificates and diplomas in Community Service and Youth Work and Mental health. He steps in to help her with appointments and home duties as she often has bed ridden bone ailments and other physical issues that prevent her from easy day to day tasks. It’s a comfort for us knowing he is in Sydney to be able to care for her, as we live interstate.
The applicant’s partner also wrote two letters of support dated 20 April 2020 and 17 July 2020 that were largely consistent with her evidence at the hearing, detailing that without the applicant she and her children’s lives have “been extremely difficult financially, physically and emotionally”. She said that both their minor children were “finding it very hard, missing [the applicant] & suffering immensely without [the applicant] being at home”, particularly in relation to the support he provided with their homework, getting them ready and picking them up from school and taking them out for family activities such as to the movies, park and the beach.
The applicant submitted two recent clinical records from the International Health and Medical Services (‘IHMS’) in Villawood in July and August 2020, which indicate that the applicant has been seeking to engage in counselling services generally and drug and alcohol counselling. Whilst these clinical records do not provide a comprehensive security assessment on the applicant, I note that the mental health consultation rates the applicant’s risk of harm to others as “low” and his protective factors as his family.
The applicant submitted video evidence, family photographs, drawings and written material from his children. I have considered this evidence but place limited weight on it because of the age of the children. I indicated at the hearing that I would give little weight to this evidence.
A letter was also received from an Ecclesiastical leader for the Church of Jesus Christ of Latter-Day Saints dated 17 August 2020, indicating his willingness to provide support to the applicant if he were to be released into the community. Furthermore, also in the documents before the Tribunal was a letter from the manager of the South West Multicultural and Community Centre (‘SWMACC’) dated 6 February 2020, indicating that she was aware of the applicant’s crimes and wants to continue to offer full support and programs to assist the applicant if he were released into the community. Both the Ecclesiastical leader and the manager of SWMACC were not called to give evidence.
PRIMARY CONSIDERATIONS
Protection of the Australian community
Turning to the first of the primary considerations, namely the protection of the Australian community from criminal and other serious conduct, this consideration requires the Tribunal to look at the nature and seriousness of the applicant’s conduct to date, as well as the risk to the Australian community if he were to commit further offences or engage in other serious conduct.
Nature and seriousness of conduct
The applicant’s criminal record discloses a number of very serious offences, many of them involving violence against other members of the public and more particularly domestic violence and violence against public officials in the execution of their duties.
The applicant started to offend at a very young age. Although a number of his offences might be regarded as minor, there has been a trend of increasing seriousness and violence in his offending behaviour.
In summary, between 4 July 2000 and 24 July 2019 the applicant has a record of approximately 40 different criminal offences, including:
(a)robbery;
(b)common assault;
(c)assault occasioning actual bodily harm;
(d)assault officer in execution of duty;
(e)contravene prohibitions/restrictions of AVO;
(f)property offences; and
(g)various traffic offences.
It is of note that the applicant has a history of contravening AVOs and warnings from the Department in relation to his behaviour and the risk of cancellation of his visa. He has also violated bail conditions, intervention orders and probation conditions. This may properly be seen to demonstrate a disregard for the Australian legal system, and it is of particular concern that the applicant was aware of the consequences of his offending on his visa status yet continued to reoffend.
Whilst I have considered the entirety of the applicant’s offences set out in the applicant’s National Police Record dated 31 October 2019, I have set out in more detail a number of the applicant’s more serious, violent offences, which illustrate the nature of his offending conduct and his disregard for Australian law.
On 12 February 2011, the applicant was engaged in an argument with his partner at their family home. During this argument, the applicant grabbed his partner by the collar and pushed her against a bookcase. His partner tried to defend herself by slapping the applicant across the face. The applicant released his partner and began packing clothes for his children. When the applicant’s partner tried to stop him from taking the children, the applicant grabbed the partner again by the collar, pushed her against a coat rack and began punching her in the head. He only stopped punching her when his mother walked in and told him to stop. When the police arrived at the incident, the applicant was trying to place a baby capsule in the car. Police asked the applicant to stop, and a female police officer placed her hand on the applicant’s forearm. The applicant responded by "king hitting" the police officer in the forehead, at which point other police officers subdued him. As the applicant continued to wrestle with police, he lashed out several times with his foot, striking another officer in the leg three times.
In May 2008, the applicant was convicted of stealing the wallet of a victim who had been “king hit” by his friend outside a hotel, and then later concealing this serious indictable offence by failing to inform the police. The applicant took the wallet and walked away without offering assistance to the victim, who later died from being knocked unconscious. The applicant said he was very drunk at the time and so he did not call an ambulance to assist, even though he knew the victim was unconscious. He had put the victim in “the recovery position” in order to ensure he had clear airways and did not choke.
On 12 April 2018, a domestic violence incident occurred between the applicant and his partner during a period of time where the pair were shortly separated. The applicant arrived at his partner’s unit at approximately 3:50AM and woke her up by banging on the door. Instead of leaving as requested, the applicant went upstairs and started looking for money. The applicant’s two children were home at this time of the incident and the applicant’s partner escorted them outside and called the police. When the police arrived, the applicant became aggressive to them when they did not permit him to leave the premise. The applicant threatened them while raising his fists and began to "shadow box". Police sprayed "OC" spray on the applicant's face. The applicant then began spitting at police and kicked one police officer in the leg.
On 13 April 2019, at the time of his last incident before he was incarcerated, the applicant and his partner had been consuming alcohol and began arguing in the park near Central Railway station. A witness to the argument saw the applicant and his partner pushing one another and the applicant pushing his partner to the ground before sitting on her chest and punching her in the face. At this time, this third person came over and told the applicant to stop. The applicant walked over to the third person, punching him in the chin and threatening him. The applicant did not stop until a group of people approached and stopped him from assaulting his partner.
Notably, in relation to this incident the applicant plead guilty to assault occasioning actual bodily harm, common assault, a further common assault and a breach of his AVO and was sentenced on 26 June 2019 to a term of 20 months' imprisonment. The length of the applicant’s custodial sentence reflects the objective seriousness of the applicant’s offending.
Domestic violence cannot be lightly dismissed by descriptions of it as a “blight”, a “stain” or some other epithet. The reality is that domestic violence has very long-term consequences for its victims, including children who are either themselves directly the victims of such violence or are forced to grow up in households where such violence is prevalent. The ongoing mental health effects for those who are the victims of domestic violence are usually lifelong and impact all aspects of their lives. In short, the consequences are such that every case deserves detailed consideration as to what occurred and its effect on the victims.
Domestic violence is something for which the community should have no tolerance, whether that violence is physical or psychological and regardless of whether it results from substance abuse, poor anger management or simply an inability to deal appropriately with situations of conflict. It is not without significance that many perpetrators of domestic violence have themselves been its victims, as has been clearly demonstrated by the evidence in this case. Therefore, domestic violence can be self-perpetuating. In short, domestic violence requires a consistent message from all areas of the community that it is unacceptable and will not be tolerated.
In this case the applicant was himself a victim of domestic violence. There is no evidence that he ever physically harmed his children, but they witnessed at least some of the violence against his partner, which is clearly not in their best interests. His partner was physically assaulted and frightened.
The applicant’s offences against the police are also of serious concern. His assaults on police occurred in the course of police officers carrying out their duty to protect the public. Paragraph 13.1.1(c) of Direction 79 specifically identifies such offending as being particularly serious. The offences could be described as demonstrating a reckless disregard for the law and for those who have a duty to enforce it. On 12 February 2011, the applicant “king-hit” a policewoman who was called to the home after the applicant had assaulted his partner. The applicant’s explanation for his violence, particularly against the police, was that he was drunk at the time and could not remember any details of what he had done, although he accepted his conviction and felt remorseful.
Another matter which must be considered is the fact that the applicant continued to offend despite warnings and his sentences have continued to increase, reflecting not just the seriousness of his offences, but also the repeated nature of his offending. This was reflected in the sentencing remarks of the Magistrate in relation to the applicant’s most recent offence on 13 April 2019, who stated as follows:
In terms of this matter, there is a need for punishment. There is a need for specific deterrence. I say that because the defendant in 2012 was sentenced to 12 months imprisonment in relation to assault occasioning actual bodily harm, domestic violence, and common assault, domestic violence. He was to have drug and alcohol counselling and domestic violence courses.
Unfortunately, despite that gaol sentence, he has re-offended on this occasion. Accordingly, the sentence needs to be significant to reinforce what will happen in these types of matters. It must punish him and it must look to rehabilitation. It's clear that he’ll need rehabilitation with alcohol.
In summary, the applicant’s behaviour has increased in seriousness since his first offending in 2000. He has been convicted of serious domestic violence, common assault, assault occasioning actual bodily harm and assaulting police officers in the conduct of their duties. These are all grave offences and I view the applicant’s criminal conduct as very serious.
Risk to the Australian community
In assessing whether the risk to the Australian community is unacceptable, Direction 79 requires the Tribunal to have regard to the nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct and the likelihood of the person engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the person reoffending.
The offences for which the applicant has been convicted are very serious and have increased in severity over time. There is no doubt that the Australian community would be significantly adversely affected if the applicant were to reoffend. Any ongoing domestic violence would have detrimental effects on his partner, children and on the community more generally. Assaults on members of the police in carrying out their duties are unacceptable and come at significant cost to the community. Assaults of members of the public going about their daily business or trying to protect another person must be regarded as offences of the upmost seriousness. There is no doubt that there is significant risk to the community if the applicant were to continue his previous behaviours.
It was accepted that much of the applicant’s offending was fuelled by the effects of alcohol. It should properly be taken into account that the applicant himself was a victim of serious domestic violence, including physical assault. He gave evidence that he had tried to “block out” the memories of his violent and dysfunctional childhood, graphically detailed in a letter from his mother dated 20 February 2020 which was in evidence before the Tribunal and which detailed the cycle of violence and abuse she and her family have suffered.

Clearly, for the applicant to be at less risk of reoffending he has to come to terms with his past, his alcohol abuse and the other underlying mental health conditions for which he suffers. The applicant said that whilst he has been incarcerated, he had actively sought to deal with these issues. He provided evidence of having completed the following courses:
(a)Real Understanding of Self Help (‘RUSH’);
(b)EQUIPS Foundation Program;
(c)EQUIPS Addiction Program;
(d)EQUIPS Aggression Program;
(e)Getting Out, Staying Out;
(f)In Charge of My Money Program;
(g)Work and Development Order; and
(h)EQUIPS Domestic Abuse Program.
It is also relevant that the applicant sought help from a psychologist in 2018 and that when he was seeing a psychologist, he was able to control his alcohol use and did not engage in offending behaviour. The applicant said that he was determined to find further help if he were to be released into the community. His partner, mother and brother also said that they would be there to help him seek mental health support. There was also a letter from an Ecclesiastical leader for the Church of Jesus Christ of Latter-Day Saints and the manager of SWMACC offering their support and assistance if the applicant is released.
At the time of his most recent sentencing in June 2019, the applicant was assessed to be at “medium risk” of reoffending. That risk is in my opinion reduced further by the efforts that the applicant has made in prison and immigration detention to deal with his domestic violence and alcohol abuse issues. He also seems to have gained some insight into his behaviour and the effect of that behaviour on his family and visa status.
Although the applicant has taken steps to reduce the risk of his reoffending, there is still a risk of the applicant reoffending, especially if he does not continue with rehabilitation and therapy. In particular, the risk increases if he begins to drink heavily again.
Overall, given the nature of the applicant’s offences and the harm that could be caused if the applicant were to reoffend, I find that this primary consideration weighs heavily against revocation of the delegate’s decision to cancel the applicant’s visa.
Best interests of minor children
The applicant has two minor children living in Australia, a son who is 13 years old and a daughter who is 10 years old. The evidence showed that despite periods in jail and immigration detention, the applicant had played a significant and important parental role in their lives.
Currently whilst he is in immigration detention, the evidence was that the applicant speaks to his daughter most days and has regular contact with his son, although it was of concern that the mother said that the applicant’s son was “closing down” in relation to his father.
The applicant’s partner’s evidence as to the effect of the applicant being absent on the children was harrowing and compelling. There is no doubt as to the honesty of the evidence given by the applicant’s partner, the applicant’s mother and corroborated by the applicant’s brother as to the adverse effect the applicant’s absence is having on his children.
The applicant’s partner said that it had been incredibly hard for the children whilst the applicant was separated from them in detention. She said that “everything has changed for the worst in every way”. She outlined her difficulty in providing ongoing financial and day-to-day support for the children, particularly because she had to change her hours of work to look after them singlehandedly. Her evidence was that the applicant had provided most of the ongoing daily support for the children prior to his incarceration, including assisting them with their homework, taking them to and from school and participating in various activities with them.
When the couple separated for a short period in 2018, the applicant had the care of the children and his partner paid child support. This reflects his role at least at that time as the primary carer for the children.
The applicant’s partner gave evidence as to serious behavioural issues that had started to appear in her daughter since the applicant had been incarcerated. She said that her daughter now swears at her, shows no respect and she cannot get her to do her own homework. She also said her daughter was being bullied at school and falling seriously behind in her academic progress. The applicant’s son was also behind in his homework and had been missing a lot of school or had to stay home to take care of his sister, particularly as the family had problems with a violent neighbour. The applicant’s partner said that both she and the children were frightened of being at home without the applicant to protect them due to the issues they’d experienced with their violent neighbour.
The applicant’s partner gave evidence as to the applicant being a very good provider financially for the family and said that she was currently often unable to pay utility bills or to buy things for the children. She was unable to fix things in the house, including the daughter’s broken bed, which meant that her daughter had to sleep with her.
It is also of relevance that the applicant’s children share their mother’s Indigenous Australian heritage and that the applicant has also played an important part in supporting their cultural beliefs, values and worldviews, for instance through attending cultural events and respecting Indigenous Elders. His support in this regard is also important and relevant to the best interests and welfare of the minor children.
The applicant’s partner said she just wanted the applicant to return so they could be a family again. Under cross-examination, the applicant’s partner said in relation to their family that, if the applicant was not in Australia, it would “break us”.
The applicant’s mother also gave evidence of the importance of the applicant in the lives of his children both at the hearing and in her letter of support. She referred to the adverse changes in the children’s behaviour since the applicant has been incarcerated. She said that the applicant was hardworking and a good provider for his family. The applicant’s mother said she tried to help the applicant’s partner and the children when she could, but that this was particularly hard given her illnesses and age.
The respondent drew the Tribunal’s attention to the fact that the applicant has exposed the children to domestic violence, and it is likely that they were also exposed to the applicant’s violence against members of the police force. Such exposure is clearly not in the best interests of the children and is likely to have a detrimental impact. There were also substantial periods when the applicant was not physically present in their lives, because he was in jail or immigration detention due to his offending conduct. I take these issues very seriously and give weight to them.
The difficulty for the Tribunal is that all the evidence indicates that, despite the applicant’s previous behaviour and incarceration, this family will disintegrate without the applicant’s presence and support and is doing so now. It is clearly in the best interests of his minor children for him to remain in Australia to care for his family on a daily basis. In many instances such as this, a family that is dysfunctional is better than no family at all, particularly when children are young and have a range of vulnerabilities. In short, it is a balancing exercise but one that can be determinative of the outcome for children and in ensuring that they receive the best chance and support in life. In this case, all the evidence points to two children who are extremely vulnerable. The applicant’s partner’s evidence is that she cannot care for them alone. The applicant’s partner does not have family that can assist, and the applicant’s mother is elderly and infirm and thus limited in her capacity to assist. The family is at a tipping point and there is no other adult available to take on the applicant’s role within the family.
From the evidence, the applicant’s family is in a state of crisis and the applicant’s children’s lives appear to be impacted severely and adversely by the applicant’s absence. The consequences would clearly be worse for them if the applicant’s visa was cancelled and he were to be returned to New Zealand.
On the basis of the evidence, I hold grave fears for the welfare of both the applicant’s children if he were to be removed from their daily lives. This is a family which is unravelling to the great detriment of the children.
There is no evidence of the applicant ever being violent towards his children and in fact all the evidence shows him to be a loving and caring father who is very involved in his children’s lives. It is noteworthy that in times of separation it was the applicant who had the full care and responsibility for the children.
The applicant would be unable to see his children for a very long time if he were returned to New Zealand. The applicant’s partner said that she would not go to live in New Zealand with the children, particularly because of her own Indigenous Australian heritage and connection to country.
The applicant’s children like all children deserve the best chance possible. Having considered all the evidence, I find the best interests of the applicant’s minor children weighs heavily in favour of revocation of the delegate’s decision and I give this consideration very substantial weight.
Expectations of the Australian community
In the matter of FYBR v Minister for Home Affairs [2019] FCAFC 185, the Full Federal Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are those set out in the Direction at paragraph 11.3 of Direction 65, which is analogous to the current paragraph 13.3(1) of Direction 79.
The applicant has been convicted of a long history of violent offences, both in a domestic context and against members of the public. Having regard to the provisions of paragraph 13.3 of the Directions and the applicant’s long criminal history of offences, including violence and domestic violence offences, the Australian community would expect that the applicant is not given the privilege of holding an Australian visa.
The impact of domestic violence cannot be downplayed. It has extremely harmful effects on its victims, specifically the applicant’s partner and their children who no doubt witnessed the domestic violence and violence against police officers in the conduct of their duties.
Given the applicant’s long criminal history, the nature of the offences and the fact that there is some risk of reoffending, I give substantial weight to this consideration which weighs in favour of not revoking the delegate’s decision to cancel the applicant’s visa.
Strength, nature and duration of ties
The applicant first came to Australia when he was five years old and has spent much of his life in Australia. Most of his family are also in Australia, and many of his family members are either Australian citizens or have a right to remain in Australia indefinitely.
At the hearing, the applicant gave evidence of regularly attending family functions in person when he was in the community and said that he was in very regular contact with his extended family in Australia.
The applicant did not start offending until after he had spent 12 years in Australia, although I note that his offending has been rather consistent since then.
The applicant gave evidence that he undertook most of his schooling in Australia. He gave evidence that he has been able to work consistently in Australia and that his incarceration did not prevent him from readily finding employment when he was in the community. He did not think he would have any trouble finding work again and being able to provide for his family. He also said that he had completed some volunteering at his children’s school canteen before his incarceration.
As mentioned before, I also give weight to the fact that the applicant’s partner is Indigenous Australian and that she and her children, and to a lesser extent the applicant, have important ties to their Indigenous Australian heritage, the land and culture. The respondent acknowledged that the applicant’s partner and children are of Aboriginal heritage and the applicant has a connection to Australia through his family.
It was put to me on behalf of the Minister that less weight should be given to the evidence of the applicant’s partner on the basis that it is not unusual for a victim of domestic violence to stand by the perpetrator. It is no doubt true that this is the case in many instances. I am of the opinion from the evidence provided by the applicant’s partner and his mother that this is not so in the current case. The applicant’s partner made it quite clear that she did not accept domestic violence on the part of the applicant. Nor did she accept his abuse of alcohol. Her evidence was that when the applicant did not consume alcohol he was “the best” husband and father figure, and that was why she stayed with the applicant and was willing to try to help him to overcome his alcohol abuse despite his offences against her.
The evidence of the applicant’s partner as to the trauma the applicant suffered in the past gives some indication as to why she was sincere in her willingness to help him break the cycle of alcohol abuse and domestic violence. I accept the applicant’s partner’s evidence that she did not fear the applicant and would take appropriate action to protect herself and her children if she felt that they were at risk of any harm.
The letters of support from the applicant’s mother, partner and brother show the nature and extent of the applicant’s ties to Australia and the adverse effects the applicant’s family would experience if he were returned to New Zealand. Both the applicant’s mother and partner said that they are dependent on the applicant psychologically, in their daily activities and financially. The applicant’s partner said that her family would break down if the applicant’s visa were cancelled.
In considering all the evidence, I am therefore of the opinion that this consideration weighs heavily in favour of revocation of the delegate’s decision to cancel the applicant’s visa.
Impediments to removal
The applicant has spent most of his life in Australia and all his family ties, work history and social networks are in Australia. There is no evidence that the applicant has a support network of any kind in New Zealand.
Furthermore, the applicant gave evidence that he did not have any ties in New Zealand, no close relatives there and that the culture of New Zealand was unfamiliar to him.
Not only does the applicant see himself as having no current connections to New Zealand, the reality is that when he was in New Zealand, New Zealand society failed to protect him from the most appalling domestic violence, mistreatment and neglect. The applicant’s mother gave evidence that she was herself the victim of sexual assault within the family in New Zealand. The applicant’s mother fled New Zealand with the applicant because of family violence and came to Australia. All these factors are likely to have serious mental health consequences for the applicant if he is returned to New Zealand. I accept the applicant’s evidence that his time in New Zealand was so bad that he had, to the maximum extent possible, blocked it from his memory. Again, however, the system in Australia failed both the applicant and his mother, but in Australia the applicant's mother was ultimately able to break the cycle of domestic violence and so both she and the applicant were able to improve their lives and their relationship. Being forced to relive his experiences in New Zealand without the support of his family and social networks would likely be very destructive of the applicant’s mental health and welfare.
The applicant said there would be language barriers if he were returned to New Zealand as he did not speak Samoan. However, the reality is that the primary language in New Zealand is English, and the applicant is perfectly proficient in the English language and would be able to communicate with most people in New Zealand.
It is likely that the applicant would be able to find work in New Zealand as his skills are quite readily transferrable. I do not accept that the current COVID-19 pandemic is an impediment to the applicant returning to New Zealand or a significant limitation on his ability to find work in New Zealand.
The applicant would also be able to access health and welfare facilities in New Zealand, which are of a high standard and comparable to Australia. I accept, however, that the applicant would face hurdles in returning to New Zealand, including exacerbating his mental health issues as a result of reliving traumatic experiences in New Zealand without his family or support structures. The fact that the applicant’s family is likely to suffer considerable hardship if he were to be deported would also, in my opinion, have a destructive effect on the applicant’s mental health. There may also be delay in being able to access health services and that would be detrimental to the applicant.
I find that this consideration weighs heavily in favour of revocation of the delegate’s decision.
CONSIDERATION
In this case it is impossible not to put very heavy weight on the nature and seriousness of the applicant’s offending history. It is lengthy and involves serious domestic violence and assaults on police officials in the course of their duties. The applicant’s offending history might ordinarily be expected to outweigh all other considerations.
However, in this case there is clear evidence that the applicant’s family is unravelling and will continue to unravel to the great detriment of his minor children if he is unable to be with his family in Australia. At the very least, his children should not be punished for their father’s offences. I also take into account the applicant’s age when he arrived in Australia and the traumatic circumstances which he faced as a child in New Zealand, particularly in light of the fact that he has only recently been able to face up to his past and actively seek help in addressing his alcohol abuse, mental health and domestic violence issues.
I accept the evidence that the applicant is trying hard to overcome his demons and that he will do so with the support of his family and wider social network in Australia. The applicant has strong ties to his extended family in Australia developed over a long period of time since arriving in Australia at five years of age.
Every case must turn on its own facts. In this case, I do not discount in any way the applicant’s serious criminal history and the possibility of reoffending. However, I find that the best interest of the applicant’s minor children, when coupled with his ties to Australia and impediments to his returning to New Zealand, must properly prevail.
DECISION
The reviewable decision made on 15 June 2020, being the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of the applicant’s Class TY subclass 444 Special Category (Temporary) visa, is set aside.
In substitution it is decided that the decision to cancel the applicant’s Class TY subclass 444 Special Category (Temporary) visa made 4 December 2019, is revoked.

I certify that the preceding 136 (one hundred and thirty-six) paragraphs are a true copy of the reasons for the decision herein of the Hon. John Pascoe AC CVO, Deputy President.

.............................[SGD]...........................................
Associate
Dated: 3 September 2020

Date of hearing: 20 August 2020

Applicant: In person (by video conference)

Solicitors for the Respondent: Mr A Ray, Clayton Utz

[2020] AATA 3384

3 September 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Remedies

Statutory Construction

Appeal

Date of hearing:	20 August 2020
Applicant:	In person (by video conference)
Solicitors for the Respondent:	Mr A Ray, Clayton Utz