ZNBG and Minister for Home Affairs (Migration)

ZNBG and Minister for Home Affairs (Migration) [2019] AATA 1872 (9 July 2019)
Division:GENERAL DIVISION
File Number: 2019/2290
Re:ZNBG
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:9 July 2019
Place:Sydney

The Tribunal sets aside the reviewable decision of 17 April 2019 and substitutes a decision that the mandatory cancellation of ZNBG’s visa on 21 June 2017 is revoked.
...........................[sgd]..............................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
MIGRATION – Mandatory visa cancellation – citizen of New Zealand – Class TY Subclass 444 Special Category visa – violent and serious criminal offending – failure to pass character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision set aside and substituted
LEGISLATION
Administrative Appeals Act 1975 (Cth)
Children and Young Persons (Care and Protection Act) 1998 (NSW)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
DKXY v Minister for Home Affairs [2019] FCA 495
Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461
Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213
Re LCNB and Minister for Immigration and Border Protection [2015] AATA 463
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No. 75 – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
9 July 2019
INTRODUCTION

The applicant seeks review of a decision by a delegate of the Minister for Home Affairs, made under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (“the visa”).
The hearing was held in Sydney on 27 and 28 June 2019. The applicant appeared in person and was represented by Mr McComber of Sentry Law. The Minister was represented by Mr Keevers of Sparke Helmore Lawyers.
Pursuant to s 500(6L) of the Act, the Tribunal must discharge its review function in respect of this application by 10 July 2019.
For the reasons that follow, the Tribunal sets aside the reviewable decision of 17 April 2019, and substitutes a decision that the mandatory cancellation of ZNBG’s visa on 21 June 2017 is revoked.
APPLICANT’S IDENTITY
Under s 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal can restrict the publication of the names of a party to proceedings and allocate a pseudonym to a party if the Tribunal deems it appropriate to do so.
The Tribunal determined it was appropriate to restrict the identification of the Applicant in these proceedings, primarily because of the involvement of minor children whose future interests merit protection. Accordingly, the Applicant will be referred to in these reasons by the pseudonym “ZNBG”. The Tribunal has also determined that it should not disclose the names of any witnesses or those who have submitted statements in support of ZNBG.
FACTUAL BACKGROUND
The factual background to this application follows:
(a)ZNBG was born in New Zealand in 1984[1] and is currently 35 years of age. He is a New Zealand citizen[2] and identifies culturally as Samoan / Maori;[3]
[1] Exhibit R1, 2.
[2] Ibid, 73.
[3] Ibid, 76.
(b)ZNBG completed school in New Zealand to grade 9 and subsequently worked for a number of years as a sheep shearer;[4]
[4] Ibid, 44 [9].
(c)While living in New Zealand, ZNBG was in relationship for approximately seven years with (“Partner 1”). The couple had their first child (“Child A”) in August 2001[5] when ZNBG was 17 years of age. The couple had a second child in 2003 (“Child B”), but separated in 2004;[6]
[5] Ibid, 45; 76.
[6] Ibid, 45 [11]-[12].
(d)ZNBG moved to Australia in May 2005[7] to be closer to his parents and siblings, who had migrated to Australia some years earlier. He was 21 years of age on arrival in Australia. Apart from brief periods overseas during December 2008 and January 2009,[8] ZNBG has lived permanently in Australia since May 2005;
[7] Ibid, 305.
[8] Ibid.
(e)Since arriving in Australia, ZNBG has been employed in a variety of roles, including as a process worker, forklift driver, jackhammer operator, labourer and factory supervisor;[9]
[9] Ibid, 81.
(f)ZNBG commenced a second significant relationship with (“Partner 2”) while living in Australia, which lasted for approximately 10 years;
(g)In 2012, Partner 1 moved to Australia with her new partner, Child A and Child B;[10]
[10] Ibid, 45 [16].
(h)In 2014 ZNBG commenced a relationship with (“Partner 3”), while still in a relationship with Partner 2;
(i)In November 2015 (“Child C”) was born to ZNBG and Partner 3.[11] Child C was taken into care soon after birth under the Children and Young Person’s (Care and Protection Act) 1998 (NSW). The primary concerns expressed by the Department of Human Service – Victoria (“DHS-V”) at the time, included Partner 3’s drug use, volatile behaviour and unaddressed mental health issues, and reports about ZNBG’s domestic violence;[12]
[11] Ibid, 187.
[12] Exhibit R2, 286 [9].
(j)The Children’s Court of New South Wales has since made permanent orders that all aspects of parental responsibility for Child C until the age of 18 are to be the sole responsibility of the NSW Minister of Family and Community Services;[13]
[13] Exhibit R1, 191-194.
(k)ZNBG committed domestic violence offences against Partner 3 in 2015[14] and 2016;[15]
[14] Ibid, 35-37.
[15] Exhibit R2, 189.
(l)On 10 January 2017 ZNBG was sentenced to an aggregate term of 20 months imprisonment following convictions for his 2016 offences. That sentence was reduced on appeal by the District Court of New South Wales on 15 June 2017, to an aggregate of 14 months imprisonment;[16]
[16] Ibid,181.
(m)ZNBG’s visa was mandatorily cancelled on 21 June 2017,[17] at which time he was serving a fulltime sentence of imprisonment;
(n)ZNBG was invited to make representations to have the visa cancellation revoked, and did so on 24 June 2017 within the period and in the manner specified under the Act.[18] His lawyer, Mr McComber, also lodged submissions in support of revocation dated 3 May 2018;[19]
(o)ZNBG received further correspondence from the Department of Home Affairs (“the Department”) on 15 June 2018 regarding the possible revocation of his visa cancellation,[20] to which Mr McComber responded on the same day;[21]
(p)ZNBG received further correspondence from the Department on 2 November 2018 regarding the possible revocation of his visa cancellation,[22] to which Mr McComber responded on 19 November 2018;[23]
(q)ZNBG received further correspondence from the Department on 1 March 2019 regarding the possible revocation of his visa cancellation,[24] to which Mr McComber responded on the same day;[25]
(r)After being released from correctional detention on 5 September 2017, ZNBG was taken into immigration detention where he has since remained;[26]
(s)On 17 April 2019, after considering his representations, a delegate of the Minister decided not to revoke the visa cancellation decision.[27] ZNBG and Mr McComber were advised of the decision on the same day;[28] and
(t)In his application to the Tribunal, ZNBG submits:
The decision maker erred in finding that there was not another reason to revoke the mandatory cancellation of the Applicant’s subclass 444 visa.
Taking into account the relevant considerations prescribed under s 499 (sic) of the Migration Act 1958, together with the documentary material available to the decision-maker, the reasons for revoking the mandatory cancellation outweigh the reasons weighing against revocation.[29]
[17] Exhibit R1, 61-65.
[18] Ibid, 66-85.
[19] Ibid, 44-60.
[20] Ibid, 311-312.
[21] Ibid, 313-315
[22] Ibid, 327-328.
[23] Ibid, 329-330.
[24] Ibid, 331-333.
[25] Ibid, 334.
[26] Ibid, 46 [30].
[27] Ibid, 17-34.
[28] Ibid, 7-16.
[29] Ibid, 5.
STATUTORY FRAMEWORK
Section 500(1)(ba) of the Act provides for applications to be made to the Tribunal if a delegate of the Minister decides under s 501CA(4) not to revoke the cancellation of a visa.
The object of the statute of which s 501(3A) is a part, is to regulate, in the national interest, the presence in Australia of non-citizens, and the removal or deportation from Australia of non-citizens whose continuing presence is not permitted by the Act (ss 4(1) and 4(4)). As the High Court stated in Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at [45]:
Section 501(3A) constitutes a legislative judgment that a class of persons identified by two features – offending and imprisonment – are not to remain in Australia. This is consistent with the object of the Migration Act, namely, to regulate the coming into and presence in Australia of non-citizens.
(Footnote omitted).
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and the person is serving a fulltime sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and refers to a range of character matters that the Minister or their delegate may have regard to in deciding whether to refuse or cancel a visa (or revoke a mandatory cancellation of a visa). Section 501(6)(a) of the Act provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record for the purposes of the character test, including if the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
Under s 501CA(3) of the Act, the Minister is obliged as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and to invite them to make representations about the revocation of the original cancellation decision. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision if the person whose visa has been cancelled makes representations in accordance with the invitation and the Minister is satisfied that the person passes the character test or that there is another reason why the original decision should be revoked.
Direction No. 79
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Minister has done so in the form of Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”). Section 499(2A) mandates that a body having functions or powers under the Act, such as the Tribunal, must comply with the Direction.[30]
[30] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, at [9] per Collier, Flick and Perry JJ. See also: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J.
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Paragraph 6.1 of the Direction sets out a number of objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’
By way of general guidance, paragraph 6.2 of the Direction provides that:
(1) 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.
(2) ….
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA,
The principles referred to under the General Guidance are reproduced below and constitute a framework within which decision-makers apply the considerations in Parts A, B, or C of the Direction:
6.3 Principles
(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 expectation that such people should be allowed to come to, or remain permanently in, Australia.
(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.
Paragraph 7(1)(b) of the Direction provides that in cases relating to the mandatory cancellation of a visa, a decision-maker ‘…must take into account the considerations in Part C …’ The following primary considerations at paragraph 13(2) of the Direction must be applied in determining whether to revoke a mandatory visa cancellation:
(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.
Paragraph 14(1) of the Direction requires that other considerations must be taken into account in deciding whether to revoke the mandatory cancellation, which include but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Paragraph 8(2) of the Direction states that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Paragraph 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.’
Paragraph 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’
Paragraph 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461 at [57] and [78], in relation to previous ministerial directions:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
TRIBUNAL CONSIDERATION
Does ZNBG Pass the Character Test?
ZNBG has been sentenced to a term of imprisonment exceeding 12 months. Because of the combined effects of ss 501(6)(a), and 501(7)(c) of the Act, he has a substantial criminal record and does not pass the character test.
Issue to be resolved
It follows that the discretion at s 501CA(4)(b)(i) of the Act, to revoke the visa cancellation based on the applicant passing the character test, is not applicable. What remains to be determined is if there is ‘another reason’ to revoke the visa cancellation under s 501CA(4)(b)(ii) of the Act. This involves an evaluative process consistent with the reasoning of North ACJ in Gaspar v Minister for Immigration and Border Protection,[31] which the Tribunal adopts:
“The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…”
[31] [2016] FCA 1166 at [38].
EVIDENCE BEFORE THE TRIBUNAL
Documents taken into evidence at the hearing were:
(a) G-Documents numbering 369 pages;[32]
(b) a further bundle of documents tendered by the respondent numbering 531 pages;[33] and
(c) applicant’s bundle of documents numbering 74 pages.[34]
[32] Exhibit R1.
[33] Exhibit R2.
[34] Exhibit A1.

Eight witnesses gave oral evidence at the hearing:
(a) ZNBG (in person);
(b) ZNBG’s mother (in person and with the assistance of an interpreter in the Samoan language);
(c) ZNBG’s step father (via video link from interstate and with the assistance of an interpreter in the Samoan language);
(d)    ZNBG’s sister (in person);
(e)    Partner 1 (via video link from interstate);
(f)     Child A (in person);
(g)    Child B (via video link from interstate); and
(h)     Partner 3 (in person).
National Police Certificate and Sentencing Remarks
ZNBG’s National Police Certificate discloses that on 10 January 2017 he was convicted in the Campbelltown Local Court of four offences: ‘Assault occasioning actual bodily harm; Stalk/intimidate intend fear physical etc harm (domestic); Contravene prohibition/ restriction in avo (domestic); and Destroy or damage property <=$2000.’ The Court imposed an aggregate sentence of 20 months imprisonment.
Sentencing remarks refer to the above offending as having occurred on 25 July 2016 against Partner 3.[35] ZNBG was also convicted of a further count of ‘Assault occasioning actual bodily harm,’ which was a ‘call up’ of a conviction in the Fairfield Local Court on 12 April 2016, for which ZNBG had previously been placed on a 12-month bond. That offending related to a domestic violence incident on 28 July 2015, also against Partner 3.
[35] Exhibit R2, 189.
ZNBG appealed the severity of the January 2017 sentence and, on 15 June 2017, the District Court of New South Wales reduced his sentence to an aggregate term of 14 months imprisonment.[36] The judge found that all four offences were intrinsically linked. ZNBG was on a good behaviour bond at the time of this offending and pled guilty at trial. Sentencing remarks of the Court state:[37]
…
What that finding of facts by the magistrate, both on the hearing and the sentence, reveals was a particularly aggressive and ongoing, violent assault in the circumstances where he was on a good behaviour bond for a similar matter and where he was on an AVO at the time, designed to stop that exact behaviour occurring…
ZNBG has a bit of an unusual subjective background. He actually has only recently started getting criminal offences on his record. Indeed, for almost his entire life he has seemingly been a person of good character and it is somewhat unusual that at the stage of life that he is now at, where he is 32 years old, that he is just suddenly starting to develop a criminal history in his early thirties. That may be explained by the fact that, unfortunately, he has come under a recent substance abuse issue and, in particular, the drug ice, which is always going to feed aggressiveness.
It also seems that he has, at least in the concept of this particular relationship, a toxic relationship with the complainant in this matter. That is not to anyway excuse or mitigate his violence; it is perhaps just an explanation. That explanation is particularly significant when you look at the material tended on the appeal today from [Partner 1] that shows that he is someone who is capable of having a perfectly normal and positive relationship that does not involve violence, so he is clearly not a person who necessarily has a predilection for violence, particularly in relationships. There must be something about the combination of his turning to drugs, this particular relationship and perhaps other aspects of his life suddenly leading to him being involved in violence here. But unlike many matters that come before the Court, this is not someone who has been exhibiting violence, criminal behaviour and particularly domestic violence throughout his life, it has become a much more recent phenomenon in relation to this issue and, unfortunately, has left him in a situation where he is serving a lengthy custodial sentence, as imposed by the magistrate.
… I think it is true to show that this was just an impulsive matter that was not necessarily reflective of the lifestyle that he had been leading in his life. He is not someone who even, since he has been now dealt with for this matter and serving a sentence, has had any problems involving violence whilst in custody. It does seem, on the surface of it, that this is a matter that may resolve itself well if he can just get out of this relationship and move on in his life.
He has been a good father to his children and it has been a shock for them to suddenly have him in custody and the significance of that. I think he is someone who does have significant prospects of rehabilitation if he can move out of this relationship and start addressing also his drug issues in relation to this matter.
…
…So I think the sentence imposed by the magistrate is significantly too long…
[36] Ibid, 181.
[37] Exhibit R1, 38-43.
Pre-Sentence Report
The Tribunal notes pre-sentence reports in evidence dated 12 April 2016[38] and 6 January 2017[39] in the context of ZNBG’s two court appearances. The former refers to him as a ‘low risk offender,’ who was ‘already engaged in intervention to address his offending behaviour.’ The latter report states he has ‘not been the subject of any internal misconduct charges since his incarceration…’ Given that ZNBG had reoffended against the same partner while on a good behaviour bond, however, he was assessed as a ‘Medium risk of reoffending’ based on the ‘Level of Service Inventory – Revised actuarial risk/needs assessment tool.’[40]
[38] Exhibit R2, 75-76.
[39] Ibid, 77-80.
[40] Ibid, 79.
Medical evidence
ZNBG was examined by psychologist Dr Jacqui Yoxall, who produced a report dated 10 May 2018. Dr Yoxall was not called to give evidence at the hearing. In relation to the first offence against Partner 3, Dr Yoxall records ZNBG’s recollections as follows:
[Partner 3] attended [ZNBG’s] workplace unexpectedly and they began having an argument. He drove her home. Whilst driving home, she grabbed the steering wheel and the car crashed into a barrier. When she did this he punched her. He believed that she incurred bruising. [Partner 3] was five months pregnant at the time. This was the first time he had ever hit a female and the first time he was ever charged with an offence.
Dr Yoxall records ZNBG’s description of a second offence against Partner 3 as follows:
…on the day of the offending (25 July 2016) he went to [Partner 3’s] home to borrow an Xbox for his two older [children] to use whilst they were visiting him during the school holidays in Sydney. He said that when he attended the home, he found [Partner 3] in bed with her drug dealer. He said that he was shocked and upset…he tried to leave the house, but as he attempted to pack his bag, he said that [Partner 3] grabbed the bag. He said that they started to wrestle and he pulled the bag back from her and she fell to the ground. He said that he then pushed the other male out of the way…they started arguing more and he grabbed [Partner 3] on the arm.
Dr Yoxall makes the following assessments and conclusions in her report:
9. RISK ASSESSMENT:
Instrument Used: Violence Risk Appraisal Guide – VRAG (Quinsey, Harris, Rice & Cormier, 2006)
…
On review of the normative sample used to develop the VRAG, the seven-year base rate of violent recidivism was 31% and the 10-year base rate of violent recidivism was 43%. [ZNBG] scored – 1 on the VRAG which placed him in the VRAG category of 4. Among offenders in the development sample for the VRAG, 53% obtained higher VRAG scores. Seventeen percent of individuals in this category re-offended (after release) within a 7-year period and 31% recidivated within a 10-year period. It is not possible to determine whether [ZNBG] is most similar to the 17% of the normative sample that reoffended within 7 years or the 83% of the normative sample that did not reoffend within 7 years.
The Level of Service Inventory – Revised (LS1-R) (Andrews and Bonta, 1995)
…
…[ZNBG’s] score on the LS1-R was 10….A score under 14 indicates a low risk of reoffending and a moderate level of rehabilitation needs…
10. SUMMARY AND CONCLUSION
…
In my opinion, [ZNBG’s] risk of reoffending is low overall but his risk can be further decreased through engagement in evidence based treatment and rehabilitation to further address, domestic violence perpetration; anxiety and depression; and prevention of relapse to methylamphetamine dependence.
[ZNBG] does present as genuinely willing to adhere to any parole conditions provided and is motivated to engage in treatment, education and rehabilitation programs as recommended.
Medical records refer to ZNBG undergoing ear surgery in 2008,[41] and suffering ‘moderate to profound hearing loss’ in his right ear.[42]
[41] Exhibit R1, 284.
[42] Ibid, 270-271.
Rehabilitation
Evidence relating to rehabilitative courses undertaken by ZNBG includes:
(a)Prior to his imprisonment ZNBG completed approximately half of a violence and anger management course run by BaptistCare, but was unable to complete the course due to being taken into custody.[43] He expresses an intention to complete the course upon release and during his oral evidence, referred to recent contact with BaptistCare in this regard;
(b)A report from New South Wales Corrective Services (NSWCS) dated 23 February 2017 states that ZNBG was suitable for the EQUIPS Foundation and EQUIPS Addiction and Alcoholics Anonymous courses.[44] NSWCS has also found him suitable to undertake the Domestic Abuse course when available. It is not clear whether ZNBG remains eligible for these programs;
(c)Completion of the Health Survival Tips Program,[45] a Core Skills Assessment,[46] and an OH&S course;[47]
(d)ZNBG claims active membership of a support group run by the Samoan and Seventh Day Adventist Community group while serving his prison sentence;
(e)ZNBG was referred to the OnTRACC Program, which assists parolees with reintegration into the Australian community and risk reduction strategies.[48] It is not clear whether ZNBG remains eligible for this program;
(f)After being taken into immigration detention, ZNBG attended eight counselling sessions conducted by Holyoake Men’s Group, focussed on alcohol and drug dependency issues.[49] He reportedly ‘consistently contributes’ to group activities; and
(g)Attendance at two-hour workshop on 26 March 2019 aimed at providing fathers with information on: Importance of fathers; Building a strong Father-child bond; Improving communications with your child.[50]
[43] Ibid, 132.
[44] Ibid,139. The EQUIPS suite of programs have been initiated by Corrective Services in the Department of Justice in NSW, to target offending behaviour related to general offending, addiction, aggression and domestic abuse. The programs are designed to help offenders understand the factors that led to them offending in the first place, and to develop the skills they need to reduce their risk of reoffending. See: < Exhibit R1, 134, 4 January 2017.
[46] Ibid, 137, 7 February 2017.
[47] Ibid, 138, 16 February 2017.
[48] Ibid, 303.
[49] Ibid, 185.
[50] Exhibit A1, A7.
Conduct while imprisoned and in immigration detention
ZNBG’s unchallenged evidence is that his conduct while imprisoned and in immigration detention has been consistently compliant. The Tribunal notes corroborating evidence in support of that submission.[51]
[51] Exhibit R1, 143.
Evidence of ZNBG
On two occasions during the hearing, in light of questions put to ZNBG by the respondent, the Tribunal advised ZNBG of his right to silence and against self-incrimination. The Tribunal further advised ZNBG that no negative inference would be drawn if he chose to exercise his rights in respect of such questions.
ZNBG contextualises his offending as arising from a single, tempestuous relationship with Partner 3, who had a drug addiction that she initially concealed. ZNBG said he met Partner 3 in 2014, while he was still in a relationship with Partner 2. He initially offered assistance to Partner 3 and her two children with groceries and transport for medical appointments. An initial friendship developed into a romantic relationship and eventually cohabitation.
ZNBG says on becoming aware that Partner 3 used drugs, he made abstinence from drugs a condition of their relationship progressing to the ‘next level.’ He claims any abstinence was not sustained, however, and issues like jealousy and infidelity progressively caused their relationship to deteriorate. ZNBG says there was increasing loss of trust and frequent conflict in their relationship, including at his workplace, from which Partner 3 was eventually banned by ZNBG’s manager.
ZNBG submits that as a result of this ‘toxic’ relationship, he fell into drug use for the only time in his life.[52] He stated: ‘using drugs turned my life upside down…it’s messed up my life.’ ZNBG described this period of his life as feeling ‘unwell mentally and emotionally.’ He claims his general practitioner diagnosed him with severe depression and it felt as if ‘everything went downhill’ during this period. He claims that he had ‘never experienced depression or anxiety to that point,’ stating: ‘I hated the person I’d become – it wasn’t me.’ ZNBG said the effects of using ‘Ice’ made him act in ways that were entirely out of character. He would not see his family for weeks at a time and started taking a lot of time off work. He said these were circumstances he never wished to return to.
[52] Ibid, 168. In this report dated 19 September 2017, ZNBG states it was after his biological child was taken into foster care and he witnessed his former partner’s infidelity that he commenced smoking ice and reported becoming quickly addicted. He states his substance abuse was ‘self-medication’ designed to escape from his low mood and unstable mental state at this time.
ZNBG said he found it hard to admit he had been violent against a woman, which had never previously occurred in his life. But he had acknowledged his unacceptable conduct and was remorseful for it. He said Partner 3 would have undoubtedly been very scared by his conduct and feared for her safety.
ZNBG denied the reference in a psychologist’s report that he started smoking methylamphetamine in 2012/2013,[53] claiming he never tried drugs until 2015 when Partner 3 introduced him to them during a particularly tumultuous period in their relationship. He claims his life was spiralling out of control during this period. In relation to his alcohol history, ZNBG said he had his first drink at age 13 and drank infrequently as a young man, because he worked ‘seven days a week.’ This generally confined his alcohol consumption to family functions. That changed in 2012 during a difficult time in his relationship with Partner 2, where his drinking increased substantially and on occasions he would consume a litre bottle of Scotch twice a week. He claims to have stopped drinking due to constant work, particularly as a shift worker during evenings and nights.
[53] Exhibit R1,107.
In relation to the incidents involving domestic violence for which he was convicted, ZNBG says the first occurred on 28 July 2015 near his workplace during an approximately ten-minute period. He claims that Partner 3 ‘grabbed the steering wheel’ of the car they were in, requiring him to grab the steering wheel with both hands. He stated: ‘I believe I head-butted her – I used my head to push her away.’ During cross-examination, ZNBG agreed Partner 3 was pregnant at this time. He also agreed there was no reference in the statement of agreed facts tendered to the court about Partner 3 grabbing the steering wheel. ZMBG claimed that a number of details about the incident were not included in the redacted document and his lawyer and the prosecution’s lawyer had agreed to ‘take some details out’ at the trial.
ZNBG said the second incident involving domestic violence on 25 July 2016, occurred over an approximately 25 to 30 minute period. He claims to have reconciled with Partner 3 as a ‘last shot at making things work…,’ but she was still using drugs and he claims to have discovered her ‘in bed with her drug dealer.’ ZNBG says he decided to immediately leave the relationship, precipitating a further confrontation that resulted in his convictions on 10 January 2017. ZNBG elaborated on this confrontation as: ‘I proceeded to pack my belongings…she tried to stop me by standing in front of the doorway…we started yelling, arguing.’
During cross-examination, ZNBG denied grabbing Partner 3’s ears and pushing her head into the wall, claiming she was ‘very frantic’ and trying to free herself from him, which caused her to hit her own head on the wall. He denied squeezing her neck, or punching her head backwards, or mimicking and laughing at her, or telling her to ‘shut the fuck up,’ or continuing to hold her down, or digging his fingernails into her face. ZNBG agreed that he had accused Partner 3 of receiving a message from a former boyfriend, claiming this was the drug dealer he found her in bed with. When referred to the remarks of the sentencing magistrate on 10 January 2017,[54] which were at odds with a number of his denials, ZNBG stated: ‘He was going off her statement.’ When asked why he had not insisted on his innocence during his subsequent appeal, ZNBG explained that he had received advice from Legal Aid that an appeal based on a not guilty plea would be ‘too lengthy a process and too expensive,’ and he was advised to just contest the severity of the sentence. When asked about inconsistencies between his oral evidence and what the judge found, ZNBG responded: ‘It’s sad that my side of the story is not considered. I feel it’s unfair – everyone is focussing on her story, but certain details of her story are not true.’
[54] Exhibit R2, 191 [12].
ZNBG claims the relationship with Partner 3 ‘went downhill’ after the first incident in July 2015, leading to breakups and reconciliations. Despite their tumultuous relationship, ZNBG said he genuinely loved Partner 3 and ‘after a bit of a break’ they ‘got back together and continued to try and work it out.’ He refers to their final reconciliation prior to the 25 July 2016 incident as a ‘last shot at making things work and trying to get our son back.’ Partner 3 had given birth to a son in late 2015, who had been taken into state care because of her drug use and the concerns authorities held about ZNBG’s domestic violence. ZNBG said apart from Child C, Partner 3 has three other children, one of whom was returned to the care of the child’s biological father. Two other children had previously been taken into state care, where ZNBG said they presently remained. This was confirmed by Partner 3 during her evidence.
ZNBG referred to his conviction for contravening an Apprehended Violence Order (AVO), explaining that Partner 3 had her licence suspended at the time and contacted him for assistance with transport to a medical appointment. He said she text-messaged him to say she had found a lump in her breast and needed to see a specialist urgently. ZNBG stated: ‘I knew the AVO was imposed but felt at the time her health was more important.’ The Tribunal notes that ZNBG’s contact with Partner 3 at this time was in contravention of two conditions of the AVO imposed on him, namely that he:
(a)not go within 100 metres of Partner 3’s home or place of employment; and
(b)not approach or contact Partner 3 by any means.
ZNBG submits that on 4 October 2016, Partner 3 made an application to remove the above conditions from the apprehended violence order and that application was granted.
During cross-examination, ZNBG was referred to an affidavit raising concerns about the safety of Child C, including because of ZNBG’s domestic violence.[55] In response to questions about whether he had punched Partner 3 in the stomach, ZNBG responded: ‘No – never … it didn’t happen, I didn’t touch her stomach.’ ZNBG said the incident in the car in 2015 was the first time he had ever been violent towards a woman and many of Partner 3’s claims during police interviews police[56] were not true. That included claims by Partner 3 that ZNBG assaulted her in September 2014 by punching her to the left side of the face and fracturing her thumb. ZNBG said the only accurate aspect of that report was ‘we were driving home together.’ ZNBG was asked if other incidents referred to in the police report in March 2015 and in a DOCS Case Plan[57] were accurate, which he denied.
[55] Exhibit R2, 285-286 [13].
[56] Ibid, 526.
[57] Ibid, 409 [34]; 501.

ZNBG submitted that his former partner had previously threatened to make false claims against him if he tried to leave the relationship, but no charges were laid in respect of the majority of allegations contained in the police report. In relation to one claim where Partner 3 said an assault by ZNBG resulted in one of her teeth needing to be replaced, ZNBG said she ‘got into a fight with a friend of hers.’ In relation to photos of Partner 3 purportedly showing injuries inflicted by ZNBG,[58] he denied inflicting all of the injuries discernible in the photographs. In relation to a reference to a text message that ZNBG’s former partner sent to her case manager that ‘[ZNBG] is trying to kill me…I can’t involve police,’[59] ZNBG denied this stating: ‘She showed me the text message after the event and said she’d use the text message if I tried to walk out of the house and leave her.’ In response to a question about a report quoting Partner 3 as saying ZNBG had sent her abusive messages while in immigration detention, ZNBG responded: ‘That’s not true.’
[58] Ibid, 139-150.
[59] Ibid, 516-517.
When pressed about the inconsistencies between his claims and those of Partner 3, ZNBG said that in light of her frequently changing evidence, it was not possible to discern what aspects of her evidence were true. In contrast, he submitted that he had told the truth and his recollection of these events had not changed.
ZNBG claims that outside of the relationship with Partner 3, he had never previously been convicted of any offence and had never been violent towards any woman. He referred to a seven-year relationship with Partner 1 while living in New Zealand and a subsequent decade-long relationship with Partner 2 after arrival in Australia. ZNBG said the relationship with Partner 1 was close and loving. They had grown up together, worked together and got on well with each other’s families. After he and Partner 1 had a child together, ZNBG said despite being 17 he had worked hard to get a place of their own and had succeeded. After Partner 1 fell pregnant with their second child, it became ‘too hard on one wage alone’ and they moved back in with Partner 1’s family. Although the relationship ended, ZNBG says he and Partner 1 remain on good terms and he had continued to play a part in the lives of their two children over the years, including through the consistent payment of child support. In relation to Partner 2, ZNBG said this was also a close and loving relationship between two people who were ‘not just partners but best friends.’ He and Partner 2 were both shift workers, however, and ZNBG claims that over time they ‘grew apart.’
ZNBG describes his relationship with Child A and Child B as very close and characterised by frequent contact. Prior to imprisonment the children stayed with him four to five times a year during school holidays, when they travelled interstate to be with him. ZNBG said he also travelled interstate to see them during major events at school or on the sporting field. He said Child A and Child B saw him not only as a father but as a friend. They had been badly affected by his imprisonment and immigration detention. That included the children ‘losing focus’ at school due to concerns about whether he would be allowed to remain in Australia. When asked what he had told his children about his offending, ZNBG said he had broken the news to them in conjunction with their mother, telling them their ‘father had made some mistakes,’. He had not gone into ‘great detail’ of his offending.
ZNBG said that his relationship with Child C, who is now three, has been limited by imprisonment, immigration detention, and the orders permanently placing Child C in state care. ZNBG said although he initially had concerns about whether Child C was his biological child, he eventually accepted this was the case when Child C was approximately three months of age. That acceptance followed extensive discussions with Partner 3. ZNBG said that since that time he has worked towards facilitating Child C’s eventual restoration to his care. In terms of visitation, ZNBG said that prior to imprisonment he had supervised weekly visits with Child C for approximately two hours. Contact since then was facilitated by the child’s carers and he currently had a weekly FaceTime call with the child for approximately an hour. He also exchanged telephone calls and messages with the carers regarding ‘cultural things, language, religion, [family] background.’ When it was put to ZNBG that the evidence disclosed previous indifference to Child C’s interests and his current submissions may be seen as driven by his visa circumstances, ZNBG strongly disagreed. He said that although initially concerned about whether Child C was his, he had come to accept this and his efforts in support of Child C were continuing and pre-dated his visa issues.
ZNBG said he did not tell his family about Child C until being imprisoned due to ‘cultural sensitivity’ and embarrassment about the circumstances: ‘I felt it was my fault and didn’t want to tell my family about foster care.’ But he had since told his family and they were supportive of his youngest child. ZNBG said his intentions on release included regaining greater visitation with and hopefully custody of Child C. He had discussed with his family their possible role in assuming the child’s care if he could not remain in Australia. ZNBG said he had paid for a lawyer to appear for him at the hearing into Child C’s future. His lawyer told him ‘there was still a chance’ to gain custody of Child C. ZNBG stated ‘I know that won’t happen overnight,’ estimating it would take a year or two for him to establish the pre-requisites of stable employment, accommodation, and completed rehabilitation to enable a realistic application for Child C to be restored to his care.
ZNBG’s unchallenged evidence about the relationship with his niece (sister’s child), was that it was parental in nature, and akin to being a ‘second father.’
ZNBG submits he has made substantial progress in getting his life back on track. He claims to have been drug free since imprisonment. He reflects on his time in prison as a valuable opportunity to reflect on the important things in life and to rid himself of negative influences. ZNBG said he still craved drugs while imprisoned, which were available for purchase. He could not afford them, however, and had not succumbed to the temptation of drifting back into drug use. ZNBG said he had also been exposed to drug use in immigration detention, but had not been tempted. He was thankful that he was no longer reliant on drugs. When asked to elaborate, ZNBG replied: ‘I started using drugs which turned my life upside down – I lost my job, offended, it was not who I was…it messed up my life.’ ZNBG said his dysfunctional relationship with Partner 3 has ended and there is no prospect of them getting back together. He said his family and friends were strongly supportive of his commitment to restore his previously law-abiding life. ZNBG submits that his family are struggling in his absence, particularly the financial contribution he previously made through consistent full-time work. He says his family are very concerned by the prospect that he may be returned to New Zealand.
ZNBG refers to a new romantic relationship, a renewal of his Christian faith, and the beneficial effects of family and community support as preventative factors mitigating his risk of recidivism. If released, he would live with his sister, who he previously lived with for many years. He expresses his priorities on release as getting a job to support his children and undertaking further rehabilitation courses, including completion of the drug and alcohol program at BaptistCare. He claimed to have learned valuable techniques during the BaptistCare program and had recently contacted BaptistCare who assured him he could continue with the program on release. ZNBG said he had also undertaken a drug and alcohol course in immigration detention and had been seeing a psychologist. He intended to continue with counselling if released, stating: ‘I’m happy to get as much help as I can to get myself back.’ ZNBG said he understood the consequences of any further offending by him would be ‘instant deportation’ and he was firmly committed to living a law-abiding life.
ZNBG said he always worked fulltime in Australia, earning approximately $2500 per week while in construction jobs. This enabled him to support his children and extended family. He referred to himself as a ‘provider’ with a strong work ethic, having never been out of work while living in Australia. He said he was motivated to return to work and there were no medical or psychological conditions preventing that.
If repatriated to New Zealand, ZNBG submits he has nothing and no one to return to and would be rendered homeless and without support. He referred to certain circumstances of his father’s previous employment in New Zealand, which causes him to have fears about his own safety. In response to questions from the Tribunal, he agreed the issues arising from his father’s previous employment dated back to the ‘early 2000s’ and his concerns were only ‘potential.’
Evidence of ZNBG’s mother
ZNBG’s mother gave evidence in person with the assistance of an interpreter in the Samoan language. She submitted that her husband is very ill and that she cares for him. ZNBG’s imprisonment and immigration detention had placed further stress on the family, including financial stress because ZNBG had previously ‘helped a lot.’ She had attended court on one occasion to support ZNBG and the family had also tried to pay off his legal bills. She worried there was no one for ZNBG to return to in New Zealand.
When asked about Child C, the witness said she had been informed about the child after ZNBG had been imprisoned, when the child was about a year old. The family was supportive of ZNBG’s continuing relationship with the child and had agreed to care for Child C if the authorities would release him into their care. When asked by Mr Keevers who specifically would care for the child, ZNBG’s mother said she would.
Evidence of ZNBG’s step father
ZNBG’s step-father gave evidence via video link from Melbourne with the assistance of an interpreter in the Samoan language. He said that the written evidence in his name had been prepared by his daughter. He referred to ZNBG as ‘a very obedient boy’ who helped the family pay for bills and shopping. When asked whether his current medical conditions may affect his ability to travel to New Zealand, the witness stated: ‘The only problem I have now is I’m sick.’ When asked how he would be affected if ZNBG could not remain in Australia, he responded: ‘I’ll die.’
In relation to Child C, the witness had no knowledge of the child. He also had no knowledge of ZNBG’s crimes, explaining that ZNBG ‘hasn’t spoken to me – he only talks to his mother.’
Evidence of Partner 1
Partner 1 spoke about her seven-year relationship with ZNBG in New Zealand from 1997 to 2003. She said they worked together, lived together and became parents when they were both teenagers. She recalls that ZNBG was ‘very supportive financially’ and worked very long hours. When she fell pregnant with Child B, stresses emerged and the relationship ended amicably after Child B was born.
Partner 1 said that ZNBG had remained an important part of their children’s lives and in recent years in Australia, the children and ZNBG would frequently travel interstate to see each other. Partner 1 described ZNBG’s contribution as more financial than physical, but said he always tried to arrange his work schedule to attend important events in their children’s lives. The witness described ZNBG as not only a father but ‘like a best friend’ to their children. Although Partner 1’s current partner loved the children to bits, she said: ‘their Dad is their Dad.’
Partner 1 spoke about the effect of ZNBG’s incarceration on their two children, including adverse effects on their education and extra-curricular activities. She said ZNBG had missed important events and the children constantly worried about his health and future ability to remain in Australia, causing them to lose focus at school. The children were disappointed they no longer had easy access to ZNBG for discussions and to seek advice. But they spoke with ZNBG regularly by telephone and also exchanged emails and messages frequently. One of the children had visited ZNBG in immigration detention.
In relation to ZNBG’s offending, she said that there had never been an incident of domestic violence during their years together and she had never known him to take drugs.
Evidence of Child A and Child B
The Tribunal summarises the evidence of Child A and B as follows:
(a)The children previously visited ZNBG during holidays. They would go out to the movies, arcades, and do other fun activities;
(b)Between visits, ZNBG would regularly contact the children to help them with their homework, to make sure they were okay, and to ensure they remain focussed on school and their sporting aspirations. Regular contact has continued since ZNBG’s imprisonment and immigration detention;
(c)They have been adversely affected by ZNBG’s imprisonment and constantly worry about his wellbeing;
(d)ZNBG had sat them down and told them he ‘had done something to his partner at the time.’ Both children knew about ZNBG’s youngest child;
(e)One son said he was ‘sad and disappointed’ by his father’s situation and wanted his father to remain in Australia to ‘see me grow into a man;’
(f)One boy had visited ZNBG in immigration detention, but the other said he couldn’t because he would become ‘emotional knowing he’s in prison;’ and
(g)The children would feel sad if their father could not remain in Australia. He had already missed attending many of their school and sporting achievements and one son said he would be ‘pretty gutted’ if his father was repatriated to New Zealand.
Evidence of ZNBG’s sister
ZNBG’s sister said she had assisted her parents by drafting their documentary evidence. She translated their responses from the Samoan language, but did not hold any qualifications as an interpreter.
Evidence of Partner 3
The Tribunal notes from the documentary evidence that the history of Child C being taken into care soon after birth follows a similar path to other children born to Partner 3. Between 2009 and 2011, the DHS-V had involvement with Partner 3 and removed one of her children on two occasions, eventually placing the child with its biological father.[60] A report dated November 2015 states that Partner 3 ‘has not maintained contact with [that child].[61] In August 2015, two other children were removed from Partner 3’s care, with primary issues of concern including her ‘drug use, volatile behaviour and unaddressed mental health.’[62] The report refers to ‘inappropriate supervision arrangements,’ where Partner 3 had these two children ‘minded by a known drug dealer.’
[60] Exhibit R2, 402.
[61] Ibid, 403.
[62] Ibid.
In her oral evidence, Partner 3 stated that she had written a letter in support of ZNBG’s application in April or May 2019, following conversations with a ‘lot of mutual friends,’ her case worker, and her stepfather. She described ZNBG as someone with ‘no criminal record’ prior to their relationship and who was a ‘family man who worked six to seven days a week.’ She said ZNBG had been a loving father to her two other children while they were in her custody. In reference to ZNBG’s domestic violence against her, Partner 3 stated: ‘people make mistakes.’ Her primary motivation in supporting ZNBG’s application is the interests of Child C, who she wanted ZNBG to have a relationship with. She said if ZNBG was repatriated to New Zealand, the Department of Community Services ‘won’t do international contact.’ Partner 3 stated that even though she was no longer in a relationship with ZNBG, and claimed to be expecting a child to another person in late 2019, it was in the best interests of Child C that they ‘co-parent and be civil,’ but that ‘any romantic relationship is toxic.’ She had last seen Child C in ‘March or April,’ just after finding out that she was pregnant. When asked how she would feel about Child C being restored to ZNBG’s care, Partner 3 said she supported that outcome, stating: ‘I would rather that, than my son being in foster care.’ She reflected on the difficult circumstances of her own upbringing and how, as a consequence, she considered it particularly important that Child C have a future relationship with ZNBG.
Partner 3 described her relationship with ZNBG as characterised by frequent violent arguments, break ups and reconciliations. She said ZNBG’s continuing contact with Partner 2 routinely caused tensions between them and she felt that ZNBG was trying to hide their relationship from others, including his family. She said Partner 2 was still living with ZNBG’s family at that time, who had no idea that Partner 3 or Child C existed.
ZNBG’s contention that Partner 3 had previously threatened him with false claims if he tried to leave their relationship was put to Partner 3, who responded:
That is a possibility. I know I did make similar threats to that on other occasions. I did mention that DV (Domestic Violence) is the flavour of the month – I only have to get you convicted for 12 months to get you deported…Even though he wanted to end the relationship, I forced him to stay. Now I’m more mature and would walk away.
When asked about details recorded by police during interviews with her,[63] Partner 3 said: ‘Certain details are correct, but there is a lot that I probably exaggerated.’ She said her previous claim that ZNBG was a risk and would continue to be abusive towards her was made ‘in anger’…and exaggerating a little bit.’ Partner 3 said ZNBG had made no attempt to contact or threaten her, and she had no reason to believe he would do so in the future.
[63] Ibid, 526.
When asked if her claim to police that ZNBG had punched her to the left side of the face causing a black eye was true, Partner 3 responded: ‘No.’ When asked about a reference to an incident on 2 March 2015, when ZNBG purportedly grabbed her neck and choked her while he was driving on the M5 motorway, Partner 3 said she had tried to ‘cause the vehicle to crash’ while ZNBG was driving at 110 k/ph. She had also attempted to put the ‘car out of gear’ while travelling at high speed. When asked if that was the only time she had grabbed the steering wheel while ZNBG was driving, Partner 3 said: ‘No…I am prone to do that.’
When asked about a reference in a police report that ZNBG had punched her in the stomach on 21 May 2015 while she was pregnant, stating he wanted to get rid of the baby, Partner 3 responded: ‘It’s possible, but I don’t recall that.’ When asked about a reference to a text she had sent to her Case Manager that ZNBG threatened to kill her,[64] Partner 3 said she recalled sending the text, but did not recall ZNBG ever saying he was going to kill her. When asked about an incident on 28 July 2015, for which ZNBG was convicted of his first domestic violence offence, Partner 3 said he had grabbed her ears and head-butted her while they were in a car. She claimed some of the other assaults in the police report had also occurred, including when she had missed ‘a couple of sessions’ of a positive parenting course because of severe bruising. When asked if she recalled an incident in a police report about ZNBG assaulting her at home on 7 March 2015,[65] Partner 3 responded:
I do. I actually attacked [ZNBG] with a weapon…I followed him down the road with a knife. It was probably self-defence and if he hadn’t restrained me, I would have probably done a lot of damage to [ZNBG]…with my mental health I can be quite aggressive – I’m quite dangerous…I definitely have very little tolerance to any behaviour I don’t like…
[64] Ibid, 516-517.
[65] Ibid, 526.

When asked by Mr Keevers if she blamed herself for this assault, Partner 3 responded: ‘to a point yes – if you put someone in danger…I’m very quick to pick up a weapon.’ When asked what she had picked up on this occasion, she responded: ‘scissors.’ When asked what had provoked the argument, Partner 3 said it was about funding the registration of her car, which ZNBG had objected to, leaving them ‘short for smokes.’ She described it as a ‘petty argument that escalated from my temper…and I was pregnant.’
When asked about ZNBG’s claim that the incident for which he was convicted in June 2017 arose from him discovering her in bed with her drug dealer, Partner 3 responded: ‘No – the particular occasion he found me in bed with another man we weren’t in a relationship and he didn’t assault me.’ When asked if she recalled what had caused the argument between them resulting in ZNBG being violent, Partner 3 explained she had woken to find her car was gone and suspected ZNBG was being unfaithful. She explained: ‘Me being sarcastic didn’t help and we were both on ice. We had been using it in the 24 hours before the assault.’ When asked how much ice they were using, Partner 3 said she had a high tolerance to drugs having used since she was twelve. During her relationship with ZNBG she would use ‘anywhere up to a gram’ whereas ‘ZNBG would have point one of a gram to get at the same level as me.’
Referred to a photograph in evidence,[66] Partner 3 said ZNBG had pushed her head into a wall near a light switch, which had damaged the wall. When referred to specific details about the incident in the police report, Partner 3 stated: ‘That whole incident is a blur – key details stick out.’ When asked if ZNBG had laughed while assaulting her, she said: ‘quite possibly – I don’t recall.’ When asked if she remembered him striking her, she said: ‘I don’t believe he intended to hit my face,’ explaining that she had been holding a cigarette in close proximity to ZNBG’s face and he had flicked her cigarette away, inadvertently coming into contact with her face. When asked if ZNBG had said ‘I’m going to keep hitting you shut the fuck up,’ Partner 3 said: ‘I don’t recall – it’s a possibility.’ When asked if ZNBG had said words to the effect: ‘Your tears do nothing…you deserve this for the rest of your life,’ Partner 3 responded: ‘I don’t recall that.’
[66] Ibid, 150.
Partner 3 was asked about the inconsistency between her oral evidence and previous claims to the police and court. She recalled being asked questions by the prosecutor and magistrate, claiming the magistrate had told her to ‘get out of his court…He could see I was lying and covering up the entire incident.’ Partner 3 explained that at the time she and ZNBG were planning to seek custody of their child and she did not want to jeopardise that.
When asked what effect ZNBG’s domestic violence had on her, Partner 3 responded: ‘Some kind of an effect. I think I’m past that now – it doesn’t upset me when I speak about it.’ She explained: ‘It also helped me with my own aggression and quickness to fly off the handle. I’m more controlled now.’
Partner 3 was asked if she had introduced ZNBG to drugs during their relationship and agreed that she had. She said ZNBG had always been anti-drugs in the past and had never used before the latter stages of their relationship.
Partner 3 said she had reflected on some of the things she had previously said about ZNBG and the domestic violence charges he had been convicted of. She had since learned that some of the abusive messages she thought ZNBG had sent to her while in immigration detention had instead been sent by a ‘third party’ and did not originate from ZNBG at all. Partner 3 submitted that on occasions she had been ‘lashing out a bit’ in her claims against ZNBG, exacerbated by her psychological conditions that meant her ‘mental state wasn’t great.’ She stated: ‘Since I got medicated, everything became a lot clearer for me.’ She now considered ZNBG was remorseful for his conduct, was no risk to her or others, and would be a good father to Child C.
Other supportive letters and emails
The Tribunal notes correspondence supportive of ZNBG in evidence, including:
(a)character references from Partner 1 dated 6 July 2017[67] and 17 March 2018,[68] who refers to ZNBG as a ‘great father’ who has ‘provided well for his family…even after…separation…13 years ago.’ Partner 1 states that ZNBG returned to New Zealand to visit their two children, and has remained active in their lives after the children moved to Australia. She states that as a result of the loss of child support from ZNBG following his imprisonment, she has had to curtail the children’s activities and find work;
[67] Exhibit R1, 195-198.
[68] Ibid, 208-218.
(b)a letter from Child A,[69] who states that he loves ZNBG who is a supportive father. He wants ZNBG to remain in Australia as an important part of his life;
[69] Ibid, 202-204.
(c)a letter from Child B,[70] who states that he has spoken to his father frequently while imprisoned and in immigration detention. He wants his father to ‘feel needed and loved again’ and worries for his safety;
[70] Ibid, 205-206.
(d)a letter from the College Principal of the school attended by Child A and Child B.[71] The Principal describes the children as ‘excellent and highly engaged students who are progressing academically and participate in the College sporting program.’ ZNBG is referred to as being ‘actively engaged in the [children’s] education, via parenting evenings and attending the sporting events in which the [children] compete.’ The Principal considers that the [children] are ‘finding it difficult to concentrate, complete tasks and fully participate in their opportunities at school with the prospect of losing their father;’
[71] Ibid, 207.
(e)a letter from ZNBG’s mother[72] who says she visits him weekly and is heartbroken at his circumstances;
[72] Ibid, 233-236.
(f)a letter from ZNBG’s stepfather[73] requesting that ZNBG be allowed to remain in Australia with his family;
[73] Ibid, 251.
(g)letters from one of ZNBG’s sisters with whom ZNBG has resided for most of his time in Australia.[74] She refers to ZNBG’s assistance as a ‘father figure’ to her children, as a valued volunteer, and recipient of a bravery award at work for saving a heart attack victim’s life. She describes ZNBG as a ‘loving and supportive brother…dedicated father,’ and a hard worker who undertook supervisory roles at work;
[74] Ibid, 232; 258-260.
(h)a letter from another of ZNBG’s sisters, referring to ZNBG’s loving nature and Christian upbringing.[75] She refers to his offending as a great shock to their family and out of character. She attests to the loving relationship ZNBG has with his children. She describes him as a loving father to his children and a ‘fun loving uncle’ to her children. She asks that he be allowed to remain in Australia and reunite with his family;
[75] Ibid, 237-238.
(i)a letter from another of ZNBG’s sisters who has health problems,[76] and who submits she would not be able to visit ZNBG if he were repatriated to New Zealand;[77]
(j)an email from ZNBG’s brother asking that he be given another chance to live a law-abiding life in Australia;[78]
(k)a letter from ZNBG’s current partner asking that he be allowed to remain in Australia with his family;[79]
(l)a letter from Partner 2, to whom ZNBG was engaged for approximately a decade.[80] Partner 2 submits that ZNBG was respectful, kind, gentle, and never violent during their relationship. They remained friends after the relationship ended and Partner 2 noted changes in ZNBG during 2015 and 2016 that were ‘completely out of character.’ Partner 2 submits she attended ZNBG’s court appearances to support him and would continue to support him in conjunction with his family in the future;
(m)a letter from ZNBG’s sister reflecting on their lives prior to arrival in Australia and submitting that ZNBG’s offending was entirely out of character;[81]
(n)a letter from the father of Partner 1 dated 16 January 2018, stating ZNBG was a good father and a valued member of their family;[82]
(o)letters from ZNBG’s nephews, nieces and cousins asking that he be allowed to remain in Australia;[83]
(p)an unsigned letter from the Operations Manager of ZNBG’s former employer dated 7 February 2018, reflecting on ZNBG’s valued contribution as a full time and part time employee.[84] ZNBG is described as reliable, diligent and well-liked, with no instances of bad behaviour;
(q)an unsigned letter from [name redacted] dated 21 July 2017,[85] who submits she has been working with ZNBG for five months as a ‘Support/Mentor worker with the Samoan and Seven Day Adventist Community Group.’ ZNBG is described as an active participant who expresses remorse and has made positive changes in his life. [name redacted] states that she and ZNBG’s family are willing to support and encourage him to become an ‘active positive contributing member of society’; and
(r)supportive letters and emails from other family members, friends and former work colleagues on ZNBG. One describes ZNBG as cheerful, hardworking and a person who ‘thinks of others before himself.’[86] Another describes ZNBG as a ‘great family man’ and well respected at his place of work. Another letter attests to ZNBG’s role as a volunteer assisting the homeless and needy.[87]
[76] Ibid, 320.
[77] Ibid 241-246.
[78] Ibid, 252.
[79] Ibid, 263.
[80] Ibid, 230-231.
[81] Ibid, 227-229.
[82] Ibid, 199-201.
[83] Ibid, 239; 240; 247-248; 249-250; 255; 256; 257; 261; 262.
[84] Ibid, 222.
[85] Ibid, 149.
[86] Ibid, 220-221.
[87] Ibid, 226.
In considering references from family members and friends, the Tribunal is mindful of the fact that they routinely provide the most positive perspective about an applicant’s conduct, whereas other members of Australian society might consider the same conduct unacceptable. Care must be taken about the weight placed on references from family members, friends, or those in a personal relationship with an applicant.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Paragraph 13.1 of the Direction states:
(1)When considering protection of the Australian community, decision-makers should 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. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also 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.
Paragraph 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and / or sexual crimes are viewed 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 subparagraph (b) above, the sentence imposed by the courts 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.
Tribunal consideration: The nature and seriousness of the conduct
ZNBG accepts that his past criminal conduct was very serious and acknowledges that being sentenced to a term of imprisonment is indicative of the seriousness of his offending. He expressed remorse for his offending on a number of occasions, which the Tribunal found to be heartfelt and sincere. Notwithstanding the differences between his descriptions of some incidents involving Partner 3, with other material before the Tribunal, ZNBG’s evidence is considered forthright. He contextualized but did not seek to excuse his conduct, accepting that any violence against a woman is unacceptable. He did not seek to justify his conduct by reference to Partner 3’s admitted violent conduct towards him, including occasions when she claims to have brandished a knife, scissors, and intentionally tried to cause the vehicle she was in with ZNBG to crash by unexpectedly wrenching the steering wheel.
In light of Partner 3’s evidence at the hearing, the Tribunal accepts that aspects of her previous claims against ZNBG to police and other authorities were at times untrue, ‘exaggerated,’ or ‘lashing out.’ She also admits to threatening ZNBG with false domestic violence claims if he tried to leave her, and to acting violently towards him. Given the significant differences between Partner 3’s evidence to the Tribunal, compared to what was previously attributed to her in police and other reports, there is insufficient evidence to make reliable findings about the multiple incidents of conflict between them, dating back almost five years.
The Tribunal indicated to the parties that where the claims of Partner 3, ZNBG, and the records in evidence conflicted, greatest weight would be placed on the National Police Certificate and sentencing remarks. ZNBG was convicted after due legal process and the Tribunal gives more weight to these authoritative and judicial sources than to unsubstantiated claims. In any event, it is impermissible for the Tribunal to go behind the convictions of a court. The Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 (“SRT”) considered in detail the principles which should be applied by this Tribunal. The Court said, at [244]:
The manner in which the Tribunal satisfies itself is determined by s 33 of the Administrative Appeals Tribunal Act 1975 (Cth). Under that provision, the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. But where the decision to be reached depends upon there having been a sentence that satisfies s 201(c) of the Act, it is not open to the Tribunal to engage in any inquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence. The starting point for consideration by the Tribunal in relation to sentence, when concerned with the question of an order under s 200 of the Act, must be the findings made by the judge in imposing the sentence that satisfies the statutory description of a sentence of imprisonment for a period of not less than one year.
There are good policy reasons why such a principle should prevail. It could only undermine the criminal process for an administrative decision to be based on considerations inconsistent with the conviction or sentence imposed.
Although SRT involved s 200 of the Act, the considerations for removal from Australia under that section of the Act required essentially the same factors to be taken into consideration as for the cancellation of a visa under s 501 of the Act.
In Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649, the Full Court of Federal Court considered a deportation decision by this Tribunal. Fisher and Lockhart JJ said, at [653]:
The conviction is the genesis of the Minister's power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However, such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. Whether these circumstances and matters are susceptible of examination, and the extent of that inquiry, will vary from case to case. The matters which the Tribunal is called upon to determine are wider than and different from the questions which a trial judge and jury must determine.
Tribunal findings: The nature and seriousness of the conduct
The available evidence supports the following findings:
(a)ZNBG did not commit any offences until 2015 when he was aged 31, which was approximately a decade after he arrived in Australia;
(b)ZNBG has no previous history of criminal offending prior to being convicted of domestic violence against Partner 3;
(c)ZNBG offended on two occasions against Partner 3; on 28 July 2015 and then approximately a year later on 25 July 2016;
(d)ZNBG’s relationship with Partner 3 was routinely violent, dysfunctional and, as described by the court and both members of the relationship, ‘toxic.’[88] Partner 3 has a long-standing problem with drug abuse since the age of 12 and in the latter stages of their relationship, introduced ZNBG to drugs;
(e)pursuant to the principles at paragraphs 13.1.1(1)(a)-(b) of the Direction, ZNBG’s violent crimes against a woman are viewed seriously. Notwithstanding the dysfunctional nature of their relationship, Partner 3 was a vulnerable person and pregnant during ZNBG’s initial offending. That said, the evidence discloses that Partner 3 did not sustain significant physical injuries or permanent damage as a result of the assault and the Tribunal accepts her claims against ZNBG were exaggerated. Moreover, the Tribunal accepts that ZNBG’s conduct against Partner 3 was at times in response to her violent conduct towards him;
(f)pursuant to paragraphs 13.1.1(1)(e)-(f) of the Direction, the evidence does not reflect a trend of increasingly serious offending or a cumulative effect of repeated offending over a prolonged period of time. It cannot be said on the evidence that ZNBG has been a frequent offender over the course of his life. Although invited by the respondent to find that ZNBG’s offending reflected a ‘pattern,’ the Tribunal declines to do so. His offending was ‘impulsive,’ occurred only within the context of his relationship with Partner 3, and the two incidents of domestic violence resulting in his convictions were a year apart. It cannot be said on the evidence that ZNBG has a predilection for violence;
(g)pursuant to paragraph 13.1.1(1)(d) of the Direction, ZNBG was sentenced to imprisonment; the last resort in the court’s sentencing hierarchy. That said, the maximum penalty for Assault occasioning bodily harm is five years imprisonment.[89] Similarly, the offences of Stalk/intimidate intend fear physical etc harm (domestic) and Destroy or damage property <=$2000 each have maximum penalties of five years imprisonment, while Contravene prohibition/ restriction in avo (domestic) carries a maximum penalty of two years imprisonment.[90] The aggregate term of 14 months imprisonment imposed on ZNBG following his appeal in the District Court of New South Wales, reflects that the objective seriousness of ZNBG’s offending attracted a sentence substantially below the maximum available penalty;
(h)pursuant to paragraph 13.1.1(1)(g) of the Direction, there is no evidence that ZNBG has provided false or misleading information to the Department;
(i)pursuant to paragraph 13.1.1(1)(h) of the Direction, there is no evidence that ZNBG has been formally warned about the consequences of further offending in terms of his migration status, noting that the absence of a warning does not weigh in his favour;
(j)pursuant to paragraph 13.1.1(1)(i) of the Direction, the Tribunal is satisfied ZNBG’s conduct while imprisoned and in immigration detention has been compliant;[91] and
(k)notwithstanding the contextual circumstances of ZNBG’s offending, the nature and seriousness of his conduct is objectively very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
[88] Ibid, 39.
[89] Exhibit R2, 191 [43].
[90] Ibid, 184; 191 [44]-[46].
[91] Exhibit R1, 143.

It can be inferred from the guidance in the Direction at paragraph 6.2(1), and from the principles at paragraph 6.2(4) relating to ‘unacceptable’ risk, that some risks may be considered ‘acceptable’ by the community. Community expectations inevitably turn on the specific circumstances of each case and encompass the general presumption that people will be given a chance to redeem themselves and realign their behaviour with expected social norms.
Factors to be weighed in assessing community expectations are non-exhaustive and no single factor is determinative. The sort of factors to be considered include:
(a)how long a non-citizen has spent in Australia and what contribution they have made to the community through work and other avenues;
(b)the nature and seriousness of any convictions or other objectionable conduct;
(c)assessment of an applicant’s insight and remorse;
(d)compliance with corrective penalties and whether an applicant has re-offended or been warned by immigration authorities about the consequences for their visa status;
(e)expert evidence about rehabilitative prospects and risk of recidivism; and
(f)any practical or emotional support available to an applicant that may constitute protective factors relevant to recidivism.
The Tribunal has on occasions concluded that the Australian community, informed of the specific circumstances of a case, may consider an applicant should have another opportunity to hold a visa. On other occasions, the Tribunal has concluded the community would not expect the non-citizen to hold a visa. That situational approach is reflected in the recent decision of Griffith J in DKXY v Minister for Home Affairs [2019] FCA 495 at [34].
Tribunal findings: Expectations of the Australian community
The Tribunal finds the Australian community would acknowledge ZNBG:
(a)is a relatively young man who was previously of good character with no prior convictions before his relationship with Partner 3;
(b)has a strong work ethic and has made a positive contribution for the vast majority of his 14 year stay in Australia through consistent full time employment and volunteering activities;
(c)committed two impulsive acts of domestic violence within the context of a comparatively short-lived and ‘toxic’ domestic relationship characterised by drug abuse, which has since ended;
(d)conceded his wrongdoing, pleaded guilty to his offending, and has had considerable time for reflection while imprisoned, as a result of which he conveys persuasive remorse, and a convincing commitment to rehabilitation and self-improvement;
(e)has served his sentence in a compliant way and has also remained well behaved in immigration detention;
(f)has two previously lengthy relationships with Partner 1 and Partner 2, during which he was respectful and caring, and with whom he retains positive relationships to the present day;
(g)is strongly supported by his family, Partner 1, Partner 2, friends and work colleagues, whose evidence reflects the uncharacteristic nature of his offending while in the relationship with Partner 3, and who have made offers of continuing emotional and practical support;
(h)expresses genuine love for Child A and Child B, who have been adversely affected by the uncertainty surrounding his future ability to remain in Australia, and a convincing desire to regain custody of Child C, who has been in foster care almost since birth;
(i)has been assessed by psychologist Dr Yoxall as exhibiting convincing insight, remorse, and an overall low risk of reoffending, which has been further reduced by a committed approach to rehabilitation and counselling; and
(j)has a number of protective factors mitigating his risk of recidivism, particularly: offers of stable accommodation and good prospects of regaining fulltime employment; strong practical and emotional support from family, friends, and a new partner; and motivation to build on his rehabilitative progress if released.
Informed of the specific circumstances of this case, the Australian community would note the contextual circumstances of ZNBG’s relationship with Partner 3 and his persuasive submissions about rehabilitation and intention to live a law-abiding life. Although a finely-balanced judgement, the Tribunal finds this primary consideration has neutral weight in relation to revoking the cancellation of ZNBG’s visa.
OTHER CONSIDERATIONS
Tribunal consideration: International non-refoulement obligations
Paragraph 14.1 of the Direction provides:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision- makers should follow the tests enunciated in the Act.
(2)       The existence of a non-refoulement obligation does not preclude non-  revocation of the mandatory cancellation of a non-citizen’s visa. This is   because Australia will not remove a non-citizen, as a consequence of the   cancellation of their visa, to the country in respect of which the non-  refoulement obligation exists.
(3)       Claims which may give rise to international non-refoulement obligations   can be raised by the non-citizen in a request to revoke under s501CA the   mandatory cancellation of their visa, or can be clear from the facts of the   case (such as where the non-citizen held a protection visa that was   mandatorily cancelled).
(4)       Where a non-citizen makes claims which may give rise to international non-  refoulement obligations and that non-citizen would be able to make a valid   application for another visa if the mandatory cancellation is not revoked, it                  is unnecessary to determine whether non-refoulement obligations are owed              to the non-citizen for the purposes of determining whether the cancellation   of their visa should be revoked.
(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12 A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
The Tribunal must engage with ZNBG’s submissions, irrespective of whether any claims he makes are unambiguously expressed as being for Convention-related harm,[102] or whether it is open to him to make an application for a protection visa.
[102] Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 and entered into force 22 April 1954, as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967.
ZNBG claims the circumstances of his father’s previous employment in New Zealand give rise to concerns for his own safety. He fears being recognised in New Zealand on the basis of that parental association. It remains unclear, however, why ZNBG would choose to return to those previous community links if he did fear for his safety, or why he would not be protected from any threat to his safety by police in New Zealand.
Were ZNBG to make an application for a Protection Visa, the Tribunal notes that Direction No. 75 – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b), which binds decision-makers other than a Minister, requires that any refugee or complementary protection claims raised by an applicant are assessed and determined in the course of assessing a Protection visa claim. This must occur before any consideration is given to ineligibility claims like character concerns.
Tribunal findings: International non-refoulement obligations
The Tribunal notes ZNBG has not previously had his claims tested through a Protection visa application. In the absence of any corroborating evidence from ZNBG’s father, or more persuasive evidence about his safety concerns, the Tribunal finds ZNBG’s evidence about non-refoulement obligations is tenuous at best. There is no basis to conclude that ZNBG is at risk in New Zealand by virtue of any familial association, such that he has a well-founded fear of serious or significant harm within the meaning of the Act.
The Tribunal finds that Australia’s non-refoulement obligations are not enlivened by ZNBG’s evidence and this consideration weighs neither for nor against revocation.
Tribunal consideration: Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
… Reflecting the principles at 6.3, decision-makers must have regard to:
a)        How long the non-citizen has resided in Australia, including whether the non‑citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.   More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)        The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
ZNBG spent some time in Australia as a minor, before returning in May 2005 at the age of 21. He has lived in Australia on a permanent basis for the last 14 years. ZNBG’s offending did not commence until approximately 11 years after he arrived here, prior to which he was consistently employed between 2005 and 2016, including as a factory supervisor.[103] The letters in support of ZNBG from former work managers and colleagues, reflect the high regard he continues to be held in as a capable, reliable and hard-working employee.
[103] Exhibit R1, 133.
In addition to ZNBG’s biological children, his parents, step-parent, four sisters, three brothers, numerous uncles, aunts, nieces, nephews and cousins reside in Australia. One of ZNBG’s sisters, who he is very close to, suffers from a serious health complaint, severely restricting her ability to travel. Her condition requires many hours of daily medical intervention, preventing her from easily travelling to see ZNBG if he was returned to New Zealand. ZNBG’s step-father suffers from a similar condition, requiring ZNBG’s mother to care for him, again impacting their ability to travel to see ZNBG if he is repatriated.
During his time in Australia, ZNBG claims he has undertaken volunteer work of benefit to the community. A support letter refers to him being given a bravery award for helping to save the life of a person who suffered a heart attack at work, but no corroborating evidence of that award is before the Tribunal.
Tribunal findings: Strength, nature and duration of ties
The Tribunal is satisfied that ZNBG has made a valued contribution through work and volunteering, which weighs in favour of his application.
The Tribunal is satisfied that repatriation to New Zealand would significantly impact people in Australia who are Australian citizens or permanent residents, and with whom ZNBG has strong ties. That includes his family members and current partner. ZNBG’s two older children are approaching adulthood and have made persuasive submissions about the importance of their father in their lives, and the practical and emotional difficulties arising from his removal. The Tribunal is satisfied ZNBG’s broad circle of family and friends in Australia love him and are prepared to support his reintegration into Australian society if released. If repatriated to New Zealand, however, he would lose access to the emotional and practical support he draws from a broad network of family and friends in Australia. Many of them, particularly his current partner and the children whose interests he invokes, would lose ready access to the emotional and practical support they draw from him. The Tribunal is also persuaded that ZNBG is highly motivated by the interests of his youngest child, currently in state care.
The Tribunal finds that the consideration ‘Strength, nature and duration of ties’ weighs strongly in favour of revoking the cancellation of ZNBG’s visa.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
ZNBG makes no claims that any Australian business interests would be impacted by his removal and there is no other evidence before the Tribunal to that effect. This consideration weighs neither for nor against revocation.
Impact on victims
Paragraph 14.4(1), of the Direction states:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The only victim of ZNBG’s offending, Partner 3, gave oral evidence at the hearing in support of revoking his visa cancellation. Partner 3 does not fear any risk of harm from ZNBG and spoke convincingly in support of ZNBG, including her desire for a co-parenting arrangement with him in respect of Child C. For the reasons previously adduced, however, the prospect of ZNBG establishing the conditions under which he may be able to apply for custody of Child C is speculative at best. While this consideration weighs in favour of revocation, it only does so slightly.
Tribunal consideration: Extent of impediments if removed
Paragraph 14.5(1) of the Direction states that:
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 substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
ZNBG is a relatively young man at 35 with a consistent history of work. There is no language or cultural barrier for him to overcome, given that he lived in New Zealand until the age of 21. In respect of his submissions about being homeless, there is no evidence to support the proposition that ZNBG would not have access to the same housing and income support arrangements available to other New Zealanders.
The Tribunal notes ZNBG has persistent problems with his right ear, which may require surgery in the future. The Tribunal does not consider this constitutes an impediment to his repatriation, however, given that the health system in New Zealand is comparable to Australia and there is no evidence that ZNBG would not be entitled to the same medical support that is generally available to other New Zealanders.
Tribunal finding: Extent of impediments if removed
The Tribunal finds this consideration weighs neither for nor against revocation.
Other Considerations
No additional considerations were advanced by the parties and I have not identified any additional ‘other considerations’ relevant to the specific circumstances of ZNBG’s application as provided for at paragraph 14(1) of the Direction.
CONCLUSION
ZNBG’s violent conduct against Partner 3 is objectively very serious. That said, he has no previous history of criminal offending and has been of good character for almost his entire life. The totality of the evidence is not suggestive of someone with a predilection for violence.
The domestic violence ZNBG committed was impulsive and occurred in the context of a relationship with Partner 3 that was routinely violent, dysfunctional and described by the court and both participants as ‘toxic.’ The Tribunal accepts it was during this relationship that ZNBG became severely depressed and fell into drug use for the first time. This included the drug ‘Ice,’ which the court held ‘was always going to feed aggressiveness.’ His drug use was relatively short-lived, however, and the Tribunal accepts ZNBG’s unchallenged contention that he has remained drug free while imprisoned and in immigration detention.
The Tribunal notes in particular Partner 3’s oral evidence at the hearing that:
(a)a number of claims she previously made about ZNBG’s conduct to the authorities was exaggerated or constituted ‘lashing out;’
(b)on a number of occasions she threatened ZNBG with making false claims against him if he tried to leave the relationship; and
(c)Partner 3 was frequently violent and aggressive towards ZNBG, including with a knife, scissors, and by trying to cause the vehicle they were in to crash by grabbing the steering wheel or moving the car out of gear while travelling at high speed.
ZNBG has undertaken rehabilitative courses prior to and during imprisonment and immigration detention. He conveys persuasive insight, remorse, and acceptance that domestic violence, in any circumstances, is wrong. Importantly, ZNBG has implemented the court’s recommendation to ‘get out of [the] relationship’ with Partner 3, as a precondition to ‘move on in his life.’ On the evidence before the Tribunal, the likelihood of any future romantic relationship between ZNBG and Partner 3, or of ZNBG falling back into drug use, is considered remote. In that respect, ZNBG has addressed key contributing factors identified by the court as relevant to his offending.
The evidence discloses ZNBG’s motivated engagement with psychological treatment and rehabilitative opportunities. This has enhanced what the court considered were his ‘significant’ prospects of rehabilitation, and lowered his overall risk of offending. Expert evidence from Dr Yoxall supports a conclusion that ZNBG represents a low overall risk of reoffending. The Tribunal also notes a number of protective factors relevant to ZNBG’s risk of recidivism if released, including a new personal relationship, offers of stable accommodation, realistic prospects of returning to stable employment, a renewed commitment to his religion, and extensive family and community support.
In considering the interests of children, the Tribunal has distinguished the interests of Children A and B, from those of Child C, and ZNBG’s niece. It is clear from the evidence that ZNBG is an attentive and loving father who has played a positive parental role in the lives of Child A and Child B since birth. Their interests would be adversely affected by non-revocation. Both children are in the final stages of secondary school and their performance has already been affected by continuing uncertainty about their father’s future ability to remain in Australia. Putting all of the factors relating to Child A and Child B in the balance, their interests weigh in favour of visa revocation.

Although ZNBG conveys a persuasive intention to create the conditions necessary to regain custody of Child C, that commendable aspiration is speculative and complicated by the initial reasons for removal of the child into state care – including Partner 3’s drug use and concerns about ZNBG’s domestic violence. Any weight on the interests of Child C under this primary consideration is reduced as a consequence. That said, the evidence shows ZNBG is the only biological parent of Child C currently seeking a restoration of care outcome. Inevitable impediments arise in his ability to have a more meaningful relationship with Child C, or to seek to regain custody, if he is repatriated to New Zealand. Putting all of the factors relating to Child C in the balance, the child’s interests weigh in favour of visa revocation, but only slightly so.
Given ZNBG’s very close relationship with his niece since birth, the Tribunal accepts it has been somewhat parental in nature, ZNBG is likely to play a positive parental role in his niece’s life if allowed to remain in Australia. Her interests weigh in favour of visa revocation, albeit slightly given that others fulfil the primary parental role and ZNBG has been absent from her life for a prolonged period.
Overall, the primary consideration ‘Best interests of minor children in Australia’ weighs in favour of revocation.
Although a finely-balanced judgement, the Tribunal finds that the primary consideration ‘Expectations of the Australian community’ has neutral weight in this matter. That is because ZNBG is a relatively young man who was previously of good character with no prior convictions. The evidence also discloses he has a strong work ethic and has made a positive contribution for the vast majority of his 14-year stay in Australia through consistent full time employment and volunteering activities. He conceded his wrongdoing, pleaded guilty to his offending, served his sentence without incident and has been well-behaved in immigration detention. He has been assessed by a psychologist as exhibiting convincing insight, remorse, and an overall low risk of reoffending, which has been further reduced by a committed approach to rehabilitation and counselling. Importantly, he has demonstrated through two previously lengthy relationships with Partner 1 and Partner 2, that he can form respectful and caring relationships with women, both of whom he retains positive relationships with to the present day.
Of the other considerations in this matter, the Tribunal finds that:
(a)ZNBG’s non-refoulement claims are tenuous and unpersuasive. There is no basis to conclude he has a well-founded fear of serious or significant harm within the meaning of the Act. Australia’s non-refoulement obligations are not enlivened by ZNBG’s evidence and this consideration weighs neither for nor against revocation.
(b)ZNBG has made a valued contribution through work and volunteering. He also has strong and established ties to members of the Australian community who are Australian citizens or permanent residents. These people offer ZNBG emotional and practical support in Australia, which he would lose if repatriated to New Zealand. This consideration weighs strongly in favour of revocation.
(c)The only victim of ZNBG’s offending, Partner 3, gave oral evidence at the hearing in support of revoking his visa cancellation. She does not fear any risk of harm from ZNBG and spoke convincingly in support of his application, particularly her desire that ZNBG has a strong relationship with Child C and, in time, they enjoy a civil co-parenting arrangement. For the reasons previously adduced, however, the prospect of ZNBG establishing the conditions under which this shared aspiration may eventuate is speculative at best, whereas increased visitation with Child C appears less so. While the consideration ‘Impact on victims’ weighs in favour of revocation, it does so only slightly.
(d)In terms of ‘Extent of impediments’ if removed, ZNBG is a relatively young man at 35 with a consistent history of work and renewed motivation to live a law-abiding life. There is no language, cultural or other barrier for him to overcome if repatriated to New Zealand. There is no evidence to support the proposition that ZNBG would not have access to the same housing, medical and income support arrangements available to other New Zealanders. This consideration weighs neither for nor against revocation.
Having examined the factors for and against revoking the cancellation of ZNBG’s visa individually and cumulatively, the Tribunal finds there is ‘another reason’ why the decision should be revoked. While the primary consideration of ‘Protection of the Australian community’ weighs against revoking the cancellation of his visa, this is substantially outweighed by the primary consideration of ‘Best interests of minor children in Australia’ which weighs in favour of revocation, and the other consideration of ‘Strength, nature and duration of ties’ which weighs strongly in ZNBG’s favour, and Impact on victims, which weighs slightly in his favour.
DECISION
It follows that the Tribunal sets aside the reviewable decision of 17 April 2019 and substitutes a decision that the mandatory cancellation of ZNBG’s visa on 21 June 2017 is revoked.

I certify that the preceding 160 (one hundred and sixty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC.

.........................[sgd].............................................
Associate
Dated: 9 July 2019

Dates of hearing: 27 and 28 June 2019

Advocate for the Applicant: Mr Joel McComber

Solicitors for the Applicant:

Advocate for the Respondent:

Sentry Law

Mr Andrew Keevers

Solicitors for the Respondent: Sparke Helmore Lawyers

[2019] AATA 1872

9 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Dates of hearing:	27 and 28 June 2019
Advocate for the Applicant:	Mr Joel McComber
Solicitors for the Applicant: Advocate for the Respondent:	Sentry Law Mr Andrew Keevers
Solicitors for the Respondent:	Sparke Helmore Lawyers