ZTGP and Minister for Home Affairs (Migration) - [2018] AATA 3518

ZTGP and Minister for Home Affairs (Migration) [2018] AATA 3518 (18 September 2018)
Division: GENERAL DIVISION
File Number(s): 2018/3522
Re:ZTGP
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Member K Parker
Date:18 September 2018
Place:Melbourne

The Tribunal affirms the decision made on 21 June 2018 under s 501CA(4) of the Migration Act 1958 (Cth) by a delegate of the Minister for Home Affairs to refuse to revoke the mandatory cancellation of ZTGP’s Class TY Subclass 444 Special Category (Temporary) visa.
.......................[sgd].................................................
Member K Parker
MIGRATION – application for revocation of mandatory cancellation of visa – applicant is a citizen of New Zealand – applicant does not pass character test – whether another reason to revoke decision to cancel visa – history of criminal offending resulting in imprisonment – offences involved domestic violence – repetition of criminal offending – seriousness of applicant’s offences and conduct – consideration of mitigating circumstances – applicant had long history of suffering from substance abuse (alcohol and methyl amphetamine) – applicant suffered physical abuse by his primary carer as a child – where Australian community would expect non-revocation – applicant has lived in Australia for the past 13 years – applicant’s wife remains supportive of applicant – applicant’s wife is an Australian citizen living in Australia – applicant’s wife presently unable to leave Australia because her son is in the care of her mother under court orders – unacceptable risk of the applicant reoffending – extent to which applicant will face impediments when settling in New Zealand – applicant unlikely to suffer harm that would trigger international non-refoulement obligations - decision affirmed
Legislation
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA, 501G
Sentencing Act 1991 (Vic) s 8B
Cases
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BCR16 v Minister for Immigration and Border Protection [2017] FCFCA 96
Falzon v Minister for Immigration and Border Protection (2018) 351 ALR 61
Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 247
Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441
Minister for Immigration and Multicultural Affairs v “SRT” (1999) 91 FCR 234
XFKR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2385
Secondary Materials
Direction No. 65 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, 22 December 2014
Returning Offenders (Management and Information) Act 2015 (New Zealand)
REASONS FOR DECISION
Member K Parker
18 September 2018
BACKGROUND

ZTGP is a 50 year old man.[1] He was born in New Zealand and is a citizen of that country. ZTGP said his mother could not afford to raise him and as an infant he was given to his maternal grandfather and grandmother to raise. They lived in a town 571km from the city where his mother lived. ZTGP said he did not see his mother again until he was about 15 years old. He said he remains in contact with his mother. ZTGP said he met his biological father when he was about 9 years old, but he said they did not get along.
[1] The Tribunal has made an order on 13 September 2018 under s 35(3) of the Administrative Appeals Tribunal Act 1990 (Cth) (AAT Act) to restrict the publication of the name of the Applicant, and to allocate the pseudonym “ZTGP” in place of the Applicant’s name. The Tribunal considers it appropriate to do so, in order to protect the identity of the Applicant’s wife, ex-partner, child and stepchildren, as the decision will refer to incidents of domestic violence.
ZTGP said that he loves his grandmother; however, his grandfather was very abusive toward him when he was growing up. He said his grandfather would give him “hidings”, “back hands” and hit him with belts and chains. ZTGP gave an example that as a child, his grandfather would beat him if he tied his shoelaces incorrectly.
ZTGP said he went to school until about 1986 and that it was a positive experience.
ZTGP said that he first took marijuana while he was in primary school. He said he stole the marijuana from his Uncle. He continued to use marijuana while he was in high school. He said that at that time, he would have marijuana about once or twice a month.
After ZTGP finished his schooling, he moved to a city in New Zealand where he worked as a chauffeur and mail clerk. For a period of about eight months, he worked as a crane driver on construction sites. When ZTGP turned 20 or 21, he moved back to the town where he was raised because he “wanted to go home”.
When ZTGP was about 23, he commenced a relationship with a woman. The Tribunal will refer to this woman as Ex-Partner. Two years later, they had a child together. ZTGP and Ex-Partner were together for 18 years. He said that Ex-Partner was not a drug user.
ZTGP arrived in Australia in about May 2005 with Ex-Partner and their son. At that time, his son was in high school. ZTGP said he first used methyl amphetamine (Ice) after he arrived in Australia. ZTGP said he also had issues with alcohol. ZTGP said he got a job “waterproofing” in Brisbane and in the years to follow, he was using Ice. When asked how ZTGP managed to do his waterproofing job while taking Ice, he told the Tribunal that sometimes he would “go to work wasted”.
A few years following their arrival in Australia; ZTGP said that his use of Ice caused problems in his relationship with Ex-Partner. He said he did not ever physically abuse Ex-Partner. ZTGP said that at that stage, the Ice “just took over”. He said that Ex-Partner asked him to leave. He said this affected him greatly and that he made every effort over the next six years to try to reconcile with her. This did not occur. He said he did not have any other relationships during the period of seeking reconciliation with Ex-Partner.
In about 2010 and 2011, ZTGP said he moved to New South Wales for a while to stay with extended family and was heavily involved in their family band. He confirmed that he had no criminal convictions during that time, stating as the reason for this being that he had family around him. He said he was not using Ice, but was still drinking alcohol. When questioned about how he managed to get off the Ice while he was in New South Wales, ZTGP said that when he wanted to get off it, he could just stop.
ZTGP said he started taking Ice again when he moved back to Brisbane. He said he returned to Brisbane after returning there for a gig, at which time his son asked him to return. He said he lived with his son for a little while and then, with a good friend. He said there was no specific trigger that caused him to start taking Ice again.
In May 2014, ZTGP met his now wife. The Tribunal will refer to her as Mrs ZTGP. They married in November 2016.
Mrs ZTGP is 33 years old. Mrs ZTGP is an Australian citizen and was born in Australia. Between the ages of approximately 16 and 26, Mrs ZTGP relocated to and lived in New Zealand, before returning to live in Australia. During her time in New Zealand she was working and training to qualify as a chef.
ZTGP and Mrs ZTGP were in Brisbane when they first met. At that time, they were both using Ice on a daily basis. Their relationship became volatile. Incidents of domestic violence took place on a regular basis. Those incidents are set out in detail below in paragraphs [45] to [74] inclusive.
In about March 2015, ZTGP failed to appear in a Magistrates’ Court in Queensland to answer various charges relating to a domestic violence incident involving Mrs ZTGP. Instead, ZTGP (with Mrs ZTGP) fled to a country town in Victoria. This town is located approximately 100 km away from the home of Mrs ZTGP’s mother. To this day, ZTGP has not appeared in a Magistrates’ Court in Queensland to face the charges that were laid against him.
When Mrs ZTGP met ZTGP, the youngest of her four children was in her care. The Tribunal will refer to this child as Stepson. Mrs ZTGP has three other children who are living in New Zealand. They have recently been returned to the care of Mrs ZTGP’s ex-partner who is a New Zealand citizen living in New Zealand, after having been removed from his care into the care of Mrs ZTGP’s ex-partner’s parents. Stepson was one year old (almost two) when he first met ZTGP. They formed a close bond and ZTGP said he treated Stepson like a son.
In December 2017, ZTGP starting a full time job driving a truck for a transport company. ZTGP said he was extremely happy to have found this job. He passed his three-month probationary period and was signed up on a contract. ZTGP was asked how he managed this type of work as a user of Ice. He said that he would not take Ice while he was driving the truck and would only use Ice on the weekends.
Following a domestic violence incident involving Mr and Mrs ZTGP in April 2017, the Department of Health & Human Services (DHHS) removed Stepson from the care of Mrs ZTGP and placed him in the care of her mother. Mrs ZTGP’s mother lives with her de facto partner and two of Mrs ZTGP’s younger sisters, who are in their early teens. Stepson stays with Mrs ZTGP every second fortnight for the weekend. Mrs ZTGP hopes that Stepson will be returned to her full-time care soon.
Both ZTGP and Mrs ZTGP say they have not used any Ice since the incident that took place in April 2017, and that they will not use Ice again.
Prior to the cancellation decision, ZTGP held a Class TY Subclass 444 Special Category (Temporary) visa. On 21 June 2018, ZTGP’s special category visa was mandatorily cancelled under s 501(3A) of the Migration Act1958 (Cth) (Act) on account of him having a substantial criminal record.
At the hearing, ZTGP gave evidence that he had been convicted of various offences while he was living in New Zealand. Those offences included a drug-related offence, a drink-driving offence and assault. Details of those offences were not before the Tribunal.
A National Police Certificate issued on 15 December 2017 states that ZTGP has been convicted in Victoria, of a number of criminal offences.[2] They included the following:
[2] On 16 July 2018, the Minister’s representative lodged a set of documents with the Tribunal that were provided to ZTGP with the delegate’s decision in accordance with s 501G of the Act (G-Documents). Refer G-Documents G02/25-27.
(a)on 10 July 2015, ZTGP was convicted of “recklessly causing injury aggravated assault of female” for which he received a sentence of two months’ imprisonment;
(b)on 9 March 2016, ZTGP was convicted of two charges of “contra-fam violence final intervention order” for which he was fined $1,100, with $117 statutory costs;
(c)on 23 March 2016, ZTGP was convicted of “contra-fam viol interv ord-int harm/fear recklessly cause injury” for which he received a sentence of two months’ imprisonment and a 12-month Community Corrections Order;
(d)on 31 May 2017, ZTGP was convicted of the following offences:
(i)“contra-fam viol interv ord-int harm/fear”for which he was sentenced to 6 months’ imprisonment;
(ii)“reckless cause injury” for which he was sentenced 12 months’ imprisonment;
(iii)“commit indicatable offence whilst on bail contravene a conduct condition of bail unlawful assault” for which he received a 24-month Community Corrections Order;
(iv)“contravene community corrections order”.
The National Police Certificate also states that ZTGP was fined in Queensland for a number of offences, not entered as convictions, which included the following:
(e)six counts of public nuisance for an incident on 19 January 2009 for which he was fined $300;
(f)contravention of direction or requirement on 27 January 2009 for which he was fined $150; and
(g)possession of utensil or pipes etc that had been used and a further count of possession of property suspected of having been used in connection with the commission of a drug, for which he was fined $900.
The National Police Certificate also states that there was an outstanding warrant issued due to ZTGP failing to appear in a Magistrates’ Court in Queensland for the following charges:
(a)two charges of “assaults occasioning bodily harm” and “wilful damage” arising from an incident on 14 November 2014; and
(b)two charges of “contravention of domestic violence order” on 9 December 2014 and 5 February 2015.
ZTGP has served three separate terms of imprisonment in Victoria. Following the last of those terms, he was taken into detention where he remains at present. For the last 17 months, he has been incarcerated or in detention.
ZTGP requested that the cancellation of ZTGP’s visa be revoked. On 21 June 2018, a delegate of the Minister made a decision under s 501CA(4) of the Act not to revoke the cancellation. The delegate was not satisfied that ZTGP passed the character test or that there was another reason why the cancellation should be revoked.
ZTGP lodged an application for review by this Tribunal of the delegate’s decision. The hearing took place on 10 September 2018. ZTGP was self-represented in this application. He appeared in person at the hearing, together with Mrs ZTGP. No other family members, friends or other witnesses were present. No medical or other expert witnesses were called to give evidence in this matter. ZTGP and the legal representative for the Minister both lodged documentary evidence and written submissions prior to the hearing on this day. Mr and Mrs ZTGP both gave oral evidence and provided a statutory declaration and affidavit respectively. This Tribunal was required to hear and determine the application within 84 days from the date ZTGP received notice of the delegate’s decision, being 18 September 2018.[3]
[3] Refer G-Documents G21/252 – notice of acknowledgement of receipt of decision signed by ZTGP on 26 June 2018.
Police records from Queensland and Victoria and the relevant Magistrates’ Court files from those States, were produced to the Tribunal under summons. They were lodged with the Tribunal as a set of Supplementary G-Documents (and provided to ZTGP), on 17 August 2018.
The Tribunal was greatly impressed by the evidence given by Mr and Mrs ZTGP and found them to be candid and honest witnesses. They often gave evidence to the Tribunal which was against their own interests to do so, in an effort to be cooperative with the Tribunal’s process of gathering information about the application before it. The Tribunal accepts that the evidence given by Mr and Mrs ZTGP was truthful and on the whole, accurate.
ZTGP conceded that he did not pass the character test under s 501(6) of the Act on account of his substantial criminal record. This meant that the Tribunal was required to consider whether there was another reason why the visa cancellation by the Minister’s delegate should be revoked.
Having considered all of the evidence tendered and submissions made by both parties to this review, and the factors set out in Direction no.65, the Tribunal does not consider there to be another reason why ZTGP’s visa cancellation should be revoked. For the reasons outlined below, the Tribunal affirms the decision of the Minister not to revoke the cancellation of ZTGP’s special category visa. This means that the cancellation of ZTGP’s visa stands.
RELEVANT LAW
Migration Act 1958
Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) …; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Act provides that a person does not pass the character test if they have a substantial criminal record. Relevantly, s 501(7)(c) provides that a person will have a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more. If these pre-conditions are met, the Minister is under an obligation pursuant to s 501(3A) to cancel the person’s visa and does not have a discretion to decide not to consider exercising this power.[4]
[4] Refer paragraph [72] in Falzon v Minister for Immigration and Border Protection (2018) 351 ALR 61.
Section 501CA provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(5) If the Minister revokes the original decision, the original decision is taken not to have been made.
…
A person affected by a decision not to revoke a mandatory visa cancellation may file an application for review with the Administrative Appeals Tribunal under s 500(1)(ba) of the Act.
Section 499(1) of the Act empowers the Minister to give written directions to a person or body having functions or powers under the Act concerning the performance of those functions or the exercise of those powers. Section 499(2A) of the Act provides that a person or body having those functions or powers under the Act must comply with such directions.
On 22 December 2014, the Minister issued directions under s 499(1), entitled “Direction no. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction no.65). The Tribunal is obligated to apply the relevant considerations in Direction no.65 in making its decision.
Section 36 of the Act sets out when protection obligations will arise. Relevantly:
(1)A criterion for a protection visa is that the applicant for the visa is:
(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
…
(2A) A non-citizen will suffer significant harm if:
(a)   the non-citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non-citizen; or
(c)   the non-citizen will be subjected to torture; or
(d)   the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non-citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
…
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
Direction no.65

Part 6 of Direction no.65 provides a preamble to the directions. Paragraph 6.1(1) of Direction no.65 states that the objective of the Act is “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”. General guidance is provided in paragraph 6.2 of the Direction no.65. Relevantly, paragraph 6.2 provides:
(1) The Government is committed to protecting the Australian community from harm as a result of the 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.
…
(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 relevant factors that must be considered…in making a revocation decision are identified in Part C of this Direction.
A set of overarching principles are established in paragraph 6.3 of Direction no.65 as follows (as relevant):
(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 vulnerable members of the community such as minors, 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.
…
(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 8 of Direction no.65 requires the Tribunal in deciding whether to revoke the mandatory cancellation of a visa to take into account the primary and other considerations set out in Part C, as relevant to each individual case and also that:
(a)the Tribunal should give appropriate weight to information and evidence from independent and authoritative sources when applying the primary and other considerations;
(b)the primary considerations should generally be given greater weight than the other considerations; and
(c)one or more primary considerations may outweigh other primary considerations.
ISSUES TO BE DECIDED
There are two primary issues to be determined by the Tribunal, namely:
(d)whether ZTGP passes the character test as defined by section 501(6) of the Act;[5] and
(e)whether there is another reason why the mandatory cancellation of ZTGP’s visa should be revoked.
[5] ZTGP concedes this issue as referred to in paragraph [101] of these Reasons for Decision.
ZTGP’S OFFENCES
It is well established that in assessing this application, the Tribunal is not permitted to impugn the convictions entered against ZTGP – see Minister for Immigration and Multicultural Affairs v “SRT” (1999) 91 FCR 234,[6] Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 247 (Daniele); Minister for Immigration and Ethnic Affairs v Gungor (1982) FLR 441. The Tribunal also notes those convictions were entered following guilty pleas made by ZTGP. At the hearing, broadly speaking, ZTGP did not deny that the incidents underlying those convictions took place.
[6] Refer paragraph [25].
However, that does not mean that the Tribunal should disregard the context and the circumstances surrounding the offending behaviour of ZTGP. The Tribunal adopts the approach as outlined in the joint judgment of Fisher and Lockhart JJ in Daniele:
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 enquiry 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.
Context and circumstances of offending behaviour
At the hearing, ZTGP was asked a number of questions by the Minister’s representative and the Tribunal about the context and circumstances in relation to a number of incidents referred to on his criminal record and in the Police and Court documents and reports produced under summons. The Tribunal will deal with each of those incidents in chronological order.
In Queensland:
19 January 2009 – A Court Brief prepared by the Queensland Police Service states that at 11pm on 19 January 2009, there were a group of youths within the yard of a residential property.[7] The Brief states ZTGP walked along the footpath and was in a highly intoxicated state. It was alleged that ZTGP began yelling abuse towards the youths and yelled at them, “Come out and go me you fucking pussies” and that he threw a glass at the fence. A mother of one of the youths came out to the driveway to confront ZTGP. It was alleged ZTGP said, “You’re hiding behind your bitch” and that he approached the mother and pushed her in the chest. It was also alleged that he pushed a 16-year old in the chest. ZTGP’s friend restrained him and led him away. The Brief states that ZTGP denied pushing anyone or throwing the glass.
[7] Refer SG-Documents SG07/31.
At the hearing before this Tribunal, ZTGP continued to deny that he touched anyone during that incident; although he admitted to throwing the glass. He conceded that he probably made the comments to the youths as alleged. When it was pointed out to ZTGP that he had previously denied throwing the glass, he confirmed that he had done so and that it was wrong of him to deny this to the Police. The Tribunal accepts ZTGP’s evidence as to his memory of what happened during this evidence and that he threw the glass but that he did not push the mother and the 16-year old youth. ZTGP said that this incident took place at about the time that his Ex-Partner had left him. He said that he had been drinking and was also on Ice.
31 January 2013 – A Court Brief prepared by the Queensland Police Service states that ZTGP was pulled up by Police driving an unregistered and uninsured vehicle.[8] He agreed to Police searching his vehicle and they found a glass pipe and straw. ZTGP confessed to Police that he had used the pipe to smoke Ice and he was aware that it was an offence to use the pipe for that purpose. He also confessed that he used a straw to scoop Ice out of a clip lock bag.
[8] Ibid at SG06/27.
The report states that ZTGP told Police he was aware that the vehicle was unregistered and that the owner of the car had told him this before he drove it. ZTGP said he was not aware that the vehicle as uninsured. At the hearing before this Tribunal, ZTGP said he had no excuse for driving the vehicle and that he knew it was unregistered.
6 June 2014 - A Court Brief prepared by the Queensland Police Service states that ZTGP was pulled up by Police driving an unregistered vehicle.[9] He was tested for alcohol and found to have had a blood alcohol concentration of 0.067 grams of alcohol in 210L of breath. The Brief states that ZTGP was unaware that the vehicle was unregistered. The vehicle’s registration had expired in the previous month.
[9] Ibid at SG05/18&19.
14 November 2014 - A Court Brief prepared by the Queensland Police Service states that ZTGP was involved in a domestic violence incident involving Mrs ZTGP at approximately 8am on this day. At this time, ZTGP had known Mrs ZTGP for a period of approximately six months.[10]
[10] Ibid at SG04/11.
The Court Brief states as follows:
[ZTGP] had attended uninvited [at Mrs ZTGP’s home address], however he brought a bag full of tools to fix the door that he had broken during a previous incident.
…
Consequently [Mrs ZTGP] has let [ZTGP] into the unit. [ZTGP] has then started arguing with [Mrs ZTGP]. [Mrs ZTGP] has said to [ZTGP] that she did not love him and wanted him to leave. [ZTGP] said the if he was going to go, then she was going to go down with him. [Mrs ZTGP] has thrown a plate at [ZTGP] in an attempt to get him to leave. [ZTGP] has then thrown a glass jar of Nutella through the kitchen window smashing the glass.
…
[ZTGP] has then walked towards [Mrs ZTGP] in the lounge, and has attempted to put his hands around [her] throat in an attempt to strangle her. [Mrs ZTGP] has then fallen back onto a lounge chair where [ZTGP] has then grabbed [her] by the hair and started to pull an drag [her] by her hair towards the window of the lounge. [ZTGP] has then spat in [Mrs ZTGP’s] face 5-7 times.
[ZTGP) has then said, “If I am going to be arrested, it will be by my own doing” and has called Police. [ZTGP] has then walked out the door, and waited on the footpath for Police to arrive.
…
[Mrs ZTGP] expressed to police that she had soreness to her scalp and appeared visibly in pain and discomfort as she continued to rub the top of her head.
…[ZTGP] was dealt with in relation to a domestic violence order and subsequently undetained.
…[ZTGP] made full admissions to both charges as above.
At the hearing before this Tribunal, ZTGP admitted to the actions described above. When he was asked what lead to that event, ZTGP’s answer was, “Drugs, jealousy”. When asked what type of drugs, he answered, “Ice”. When asked whether Mrs ZTGP was taking Ice at that time, he said “Yes”.
9 December 2014 - A Court Brief prepared by the Queensland Police Service states that ZTGP contravened a domestic violence protection order at 10.30pm on this day by being present in the home of Mrs ZTGP.[11]
[11] Ibid at SG03/7.
5 February 2015 - A Court Brief prepared by the Queensland Police Service states that ZTGP contravened three conditions of a domestic violence protection order by entering Mrs ZTGP’s home, remaining there and committing the following acts of domestic violence against her:[12]
[Mrs ZTGP] and [ZTGP] have returned home to [ZTGP]’s address after having breakfast at a local café. Upon arriving home [Mrs ZTGP] has sat down next to the locked front door to have a cigarette. [ZTGP] stated to [Mrs ZTGP], “never mind the cigarette, we’ve got shit to do”. [Mrs ZTGP] has replied “don’t tell me what to do”. [ZTGP] has then grabbed the cigarettes off [Mrs ZTGP] and has ripped them up. [ZTGP] has then pushed [Mrs ZTGP] onto the ground and has grabbed her by the hair. [ZTGP] has then poured the contents of a “V” can all over [Mrs ZTGP]. [ZTGP] has attempted to grab [Mrs ZTGP’s] handbag. [Mrs ZTGP] has grabbed the strap preventing [ZTGP] taking the hand bag. As a result [Mrs ZTGP] was dragged along the ground for approximately 3 metres. At this stage, a witness has exited her unit and contacted 000. [ZTGP] has let go of the handbag and walked up the driveway and waited for Police to attend.
When questioned by Police, [ZTGP] admitted that he had spat on [Mrs ZTGP] and that he had dragged her across the ground because he wanted the medicare card out of the hangbag and she wouldn’t let go of it.
[12] Ibid at SG02/3.
In Victoria:
8 July 2015 – An Incident Report prepared by Victoria Police describes the following domestic violence incident between ZTGP and Mrs ZTGP:[13]
…[ZTGP] and [Mrs ZTGP] were at home…drinking some wine. [Mrs ZTGP] became teary about her weight and asked [ZTGP] to make her something to eat. This set [ZTGP] off telling [Mrs ZTGP] that she eats too much. [ZTGP] threw things around the house then started bringing up past events accusing [Mrs ZTGP] of sleeping with his mate. [ZTGP] then attacked [Mrs ZTGP] grabbing her by the hair and pulling her to the ground. [ZTGP] attempted to defend herself but [ZTGP] was getting worse by saying ‘You fucked my best mate 8 months ago’ as he punched her in the face multiple times whilst pulling her hair. [ZTGP] finally let her go and [Mrs ZTGP] sat on the couch crying. [ZTGP] took [Mrs ZTGP’s] phone and sent a message to [Mrs ZTGP’s ex-partner] in New Zealand. [ZTGP] took her phone outside and [Mrs ZTGP] went out shortly after pleading with him to give the phone back and then returned inside. [ZTGP] came in and threw the phone at her and then he continued drinking. Some time after that [Mrs ZTGP’s] mother called her as the mother had received a message from [Mrs ZTGP’s ex-partner] in NZ that [ZTGP] had assaulted [Mrs ZTGP]. On hearing this [ZTGP] then attacked [Mrs ZTGP] again and took the phone off her saying ‘I hope your step dad comes over and kills me’. [ZTGP] pulled [Mrs ZTGP’s] hair again and pulled her pants down as she tried to get away he started slapping her on the bottom more than ten times. [Mrs ZTGP] was stinging with pain by this stage and shaking with her head throbbing from being punched. [ZTGP] then let her go and grabbed a cask of wine and started drinking again. [Mrs ZTGP] layed down on the couch and stayed there until her mother arrived. When the mother attended she was also assaulted and punched by [ZTGP] before they got away. A restraining order is current in QLD between them. Police fear for the safety of [Mrs ZTGP] and the mother.
[13] Ibid at SG09/38.
The Incident Report states that Mrs ZTGP was contacted the following day and she informed Police that she was staying with her mother and that she would attend a hospital that morning regarding her injuries. Mrs ZTGP informed the Police that Stepson was not present at the house during the incident. The Report also states that ZTGP was taken into custody.
ZTGP gave evidence that at the time of this incident both he and Mrs ZTGP were “off the Ice” and were only drinking alcohol. ZTGP said they only drank alcohol about once every couple of months. ZTGP was convicted of “recklessly causing injury, aggravated assault of female” and was sentenced to two months imprisonment.
13 January 2016 – An Incident Report prepared by Victoria Police states that ZTGP was found to be in contravention of a Family Violence Intervention Order (FVIO) prohibiting him from having contact with or approaching Mrs ZTGP.[14] The Police intercepted his vehicle and Mrs ZTGP was in the passenger seat. The report states that Mrs ZTGP had refused to make a statement in relation to the breach.
[14] Refer Supplementary G-Documents SG10/41.
25 January 2016 – An Incident Report prepared by Victoria Police states that they attended upon ZTGP to serve him with a summons for a variation of the FVIO and he was standing in the driveway with Mrs ZTGP.[15] The reports states the ZTGP was compliant with Police and that he informed them that he and Mrs ZTGP wanted to be together and they were trying to remove the conditions on the FVIO. On Mrs ZTGP’s application form, she requested the FVIO be revoked stating as her reason, “Wanting to get back together again. New [beginnings]”. ZTGP said he had nowhere else to live when he was released from prison and was living in a shipping container.
[15] Ibid SG11/43.
22 March 2016 - An application for an Intervention Order prepared by Victoria Police states that a domestic violence incident involving ZTGP and Mrs ZTGP took place at about 3pm on this day.[16] The incident reportedly arose from an argument about a Facebook notification and was described as follows:
…On Tuesday 22/03/16 Police were called to [Mrs ZTGP’s] address after being called there by her [mother]. [Mrs ZTGP] called her mother to say that ZTGP has “Done it again”. [Mrs ZTGP] told her mother that she ‘had a burst ear drum and bruises up and down her boobs’. [Mrs ZTGP’s] mother has called Police. By the time Police arrived [ZTGP] had left the address. Police observed [Mrs ZTGP] to be in an emotional state and had a small laceration to the left side of her cheek by her ear. [Mrs ZTGP] was taken to [hospital]. Her 3 yo son was present during the incident. [Mrs ZTGP] was unwilling to cooperate with Police and was texting [ZTGP] whilst in Police presence saying “Don’t leave me”. Police have spoken to [Mrs ZTGP’s] mother who said that [Mrs ZTGP] and her child had been locked out of the house by [ZTGP]. [ZTGP] only opened the door when he thought the Police were on their way. [Mrs ZTGP] has run back inside the house with her son and locked the door. [ZTGP] has tried to kick the door down and left the property. Police hold grave concerns for the safety and wellbeing of [Mrs ZTGP’s] son in the order. DHHS child protection have been notified and are investigating. [Mrs ZTGP’s] mother is attending and taking the 3yo child back with her to remove the child from the situation.
[16] Ibid SG22/127&204.
After this incident, Police called ZTGP and he met with Police at an agreed location where ZTGP was placed under arrest. He told Police that he had grabbed Mrs ZTGP by the hair, dragged her to the ground, slapped her in the face and punched her to the ribs.[17] ZTGP said that by this time, he was “back on Ice” and probably not drinking as much alcohol.
[17] Ibid SG22/204.
At the hearing, ZTGP admitted to “giving her a hiding” that day after Mrs ZTGP had found something on his Facebook page. ZTGP said he was frustrated from being accused by ZTGP that he was having an affair. He said he was under the influence of Ice. He said that Stepson was inside the house watching television. He said that it started inside the house and ended up in the back yard. Mrs ZTGP gave evidence at the hearing that Stepson would have seen some of the incident.
At the hearing, ZTGP said he hated himself for what happened. ZTGP was asked whether this was a “wake up call” for him. He agreed that it should have been but that “it did not work for him”.
22 March 2017 – An Incident Report prepared by Victoria Police states that a domestic violence incident involving ZTGP and Mrs ZTGP took place on this day at 10.30am.[18] The incident was described as follows:
…they were in a truck delivering goods in the [suburb] area. [Mrs ZTGP] got jealous of another female at one of the businesses [ZTGP] delivered to and [ZTGP] defended his honour. He did this by picking up a [half] full 1.25 LT bottle of coke cola and throwing it at [Mrs ZTGP’s] face in the cabin of the truck. He then climbed over the centre console and tried to drag her out of the truck to confront the female that [Mrs ZTGP] was jealous of. The confrontation didn’t happen and [ZTGP] and [Mrs ZTGP] drove on to their next deliveries. Police S/T both parties in [suburb] and [ZTGP] was held under FV holding powers. Mrs [ZTGP] was not prepared to make a statement, however confirmed that the events had occured(sic). There was minor swelling to her face and her jumper sleeve had been torn by the actions of the offences. Charge and bail applied. FVSN issued…
[18] Ibid SG12/45.

Mrs ZTGP gave evidence at the hearing that she was doing the rounds with ZTGP in the truck and she became jealous when a “lady at a bar” (hotel to where they were delivering beverages) was “unnecessarily touching” ZTGP. She said that, “I suppose a lot of wives would get jealous” but that “he was only doing his job”. Mrs ZTGP said that when she said something about it, ZTGP got “really upset”. Mrs ZTGP confirmed that he threw a half-full coke bottle at her face. She said it hit her and caused redness on her face. She said that he also dragged her across the console to get her out of the truck.
ZTGP gave evidence that he had taken Mrs ZTGP on the rounds to show her what he needed to do for his job and when she accused him of flirting with the owner of the pub, he got very angry at Mrs ZTGP. He admitted to doing the things as alleged above. He said he tried to drag her out of the truck so she could walk home. ZTGP was asked whether he was under the influence at the time and he said, “No”. It happened mid-week and ZTGP was not on Ice on that day. ZTGP was asked why he was not able to control his response, to which he answered, “Jealousy, I kept telling her I’m loyal to her, but no matter what I say or do she gets jealous. I was angry”.
When asked whether he had reflected on this incident, ZTGP said that he hated himself for every incident. When asked whether he was worried that an incident like that might happen again, ZTGP said he had applied for counselling to help him with that. When asked what tools he had learnt to assist him, ZTGP said that he would call the Police or lock himself away or walk away until everything had calmed down. When asked whether he thought it would happen again, he said, “we’ll have arguments, but I know they won’t escalate”.
ZTGP said at the hearing that by doing what he did to Mrs ZTGP he felt embarrassed for her and he recognised that he did not treat her like a human being.
2 April 2017 – An Incident Report prepared by Victoria Police states that a domestic violence incident involving ZTGP and Mrs ZTGP took place.[19] The incident was described as follows:
[Mrs ZTGP] and [ZTGP] have been in a relationship for three years and have been married for 4 months. On the 22/03/2017 a [FVIO] was put in place at the [name deleted] Magistrates’ Court protecting [Mrs ZTGP] from [ZTGP]. On 02/04/2017 [Mrs ZTGP] and [ZTGP] were at home smoking methylamphetamines and drinking alcohol. [Mrs ZTGP’s] 5 year old son and her two sisters aged 11 and 12 were also present at the address. [Mrs ZTGP] and [ZTGP] went to the [Hotel] leaving the three children at home. At 2am they both went home where they smoked more methylamphetamine. [Mrs ZTGP] and [ZTGP] then left the house and went to [a night club] where they consumed more alcohol. They returned home at approximately 4:45am and a short time later [ZTGP] became angry accusing [Mrs ZTGP] of dancing for everyone at [the night club]. [Mrs ZTGP] and [ZTGP] both went into the main bedroom where [ZTGP] began punching [ZTGP] multiple times to the head and body. [ZTGP] picked up a chair and struck [Mrs ZTGP] with it causing a large laceration to the back of her head. The three children in the house heard what was occurring and one of them went into the bedroom and saw [Mrs ZTGP] covered in blood. [Mrs ZTGP] was taken to hospital as a result of her injuries. Over the last three years [Mrs ZTGP] was assaulted by [ZTGP] multiple times but does not report to Police as she is scared of the consequences. [ZTGP] is currently on bail for assaulting [Mrs ZTGP] in a previous family violence incident. Police hold great concerns for the safety of [Mrs ZTGP] and the children and believe that if the order does not get varied there is a high chance of future violence.
[19] Ibid SG13/47.
This report also states that Mrs ZTGP was blaming herself for the incident and wanted ZTGP to be returned to their home when he was released from custody.[20] The report states:
… Serious concerns held for the safety of [Mrs ZTGP] and her son given the nature of this incident and her current mind set. [Mrs ZTGP] not supportive of the variation application being made and wanting to withdraw her statement in relation to the criminal charges.
…
[DHHS] intake notified of concerns held by Police following the follow up, they were going to arrange an assessment given that [Mrs ZTGP] is not acting protectively for her son.
[ZTGP] remanded in custody…
[20] Refer Supplementary G-Documents SG13/47&48.
At the hearing, ZTGP admitted that this incident occurred; however, he denied using a chair to hit Mrs ZTGP’s head. Instead, ZTGP said that he had pushed Mrs ZTGP into the main bedroom to try to get her away from him, and by doing so, she tripped over and hit her head on the side of a tool box that was in the bedroom. He admitted that Mrs ZTGP ended up with a laceration to her head and that she was “covered in blood”. He said that Mrs ZTGP’s sister called the Police and he waited outside for the Police to arrive. ZTGP said he was surprised by his reaction; was scared after he saw the blood; and wanted to leave.
When questioned about who had initiated ZTGP and Mrs ZTGP taking Ice that evening when they had three children in their care, with some reluctance, ZTGP told the Tribunal that it was not his plan; that his wife had asked for some and that “he did not want to”. The Tribunal accepts this evidence, although it does not detract from ZTGP’s decision to go along with the idea at a time when he had joint responsibility that night for three children under the age of 13. ZTGP was asked at the hearing whether he or Mrs ZTGP ever used Ice in front of the children to which he answered, “No, we wait until they’re asleep”.
Mrs ZTGP was questioned at the hearing about what had taken place. Mrs ZTGP said she could not remember because she was on drugs and had passed out. She said that all she could remember was an argument and waking up in the bedroom with blood everywhere. She said one of her sisters had come into the room and she asked her to call the Police. The Tribunal accepts ZTGP’s evidence that he did not use the chair to hit the back of Mrs ZTGP’s head and that this happened as ZTGP described in his evidence. Despite that, the Tribunal considers ZTGP’s conduct on this day was extremely violent and exposed the children in the house to trauma that no children or Mrs ZTGP should ever have to experience.
ZTGP said the children were asleep in the lounge room at the time of the incident. When questioned, ZTGP said they were probably able to hear them arguing. When Mrs ZTGP was questioned what impact this incident had on her sister (who was 12 years old at the time), who witnessed her in the bedroom covered in blood, she said she was not sure. She said her mother had told her that it had an effect on her sister.
ZTGP’S SUBMISSIONS
The Tribunal has considered ZTGP’s letter of submission attached to his statutory declaration made on 14 August 2018,[21] in addition to other documents and his earlier submissions to the Minister’s delegate.
[21] Refer Exhibit “A1” – statutory declaration of ZTGP signed on 14 August 2018.
In summary, ZTGP said in the last 17 months while he has been in prison and detention, he had completed and was attending several self-help and educational courses to assist with his rehabilitation; to prevent him from re-offending; and in hope of reuniting with Mrs ZTGP and his Stepson. He said the self-help courses included anger management; Men for Change program; Ice addiction programs; Narcotics Anonymous; Alcoholics Anonymous; and Life Skills/Drug & Alcohol 12 week program and fortnightly individual counselling sessions.[22]
[22] Refer Exhibit “A3” comprising certificates of completion for a 12-hour Mind Matters Program dated 16 March 2018; 24-hour Drug and Alcohol program (level III) dated 20 December 2017; 6-week Change on the Inside program dated 2 November 2018; and 5-week Courageous Communication Course on 14 March 2018.
In a letter by the person who conducted the Courageous Communication Course, ZTGP was described as participating in that course with “quiet, committed attention” and that he exhibited qualities of a listener. She indicated that ZTGP’s comprehension and understanding of his feelings and needs improved as the course progressed and that his “kind hearted spirit and quiet nature together with his natural listening abilities would be a gift to others”.[23]
[23] Refer Exhibit “A3”.
In a letter dated 20 August 2018 from a senior counsellor from the service who provided the individual counselling to ZTGP regarding issues associated with substance abuse, stated that ZTGP had reported a long history of witnessing violence and that he had acknowledged that substance abuse had contributed significantly in his choices to use violence as a maladaptive approach to communication.[24] The senior counsellor stated that ZTGP had been very open to exploring alternative ways to communicate; reported that he was in contact with his wife daily; and they had both engaged in treatment to address their “intimate partner violence”. The senior counsellor said that ZTGP told him that he was a caring, hardworking man when he was not affected by substances and was a gifted artist, with a determination to reveal those more major aspects of his character.
[24] Refer Exhibit “A4”.
ZTGP said he has been “clean” for the last 17 months and had passed all of his urine tests during that time. ZTGP told the Tribunal he had abstained from taking drugs even though he said it was possible to get anything he wanted in prison. ZTGP said he had a strong desire to “live a long and prosperous life without the use of any form of substances”. ZTGP asked the Tribunal to also consider the steps that his wife had taken in order for the both of them to live a “better, meaningful, loving, supportive life” which was “free from any form of negative impacts”.
ZTGP said he had arranged for future individual counselling through a Catholic welfare service tentatively due to commence in December 2018, pending his release. ZTGP said he had arranged this to ensure the prevention of any possible form of relapse and to ensure his mental health was positive and healthy, given he had spent so long in detention and in prison. He said part of this planned counselling would include marriage counselling between Mr and Mrs ZTGP.
ZTGP said his behaviour in the last 17 months, toward his wife, peers and officers in the detention centre and prisons had been positive and supportive, despite having been exposed to hostile and negative environments. He said this demonstrated his level of commitment to make the correct and necessary steps to make a more positive life for his family.
ZTGP said he had displayed a strong work ethic while he was in the correctional centres and detention centres. He said those centres entrusted him with the following roles:
(a)forklift driver;
(b)driving the electric car and attached trailer for the collection of rubbish bins around the centre;
(c)kitchen hand;
(d)cleaner of the Visitors’ Centre;
(e)maintenance for music (band equipment);
(f)laundry;
(g)library worker at the detention centre; and
(h)music class worker at the detention centre.
ZTGP said that while he was incarcerated and in detention, inmates and fellow detainees of Maori heritage sought his guidance about “cultural influence, teachings and for celebrations of Diversity Day; Waitangi Day; Matariki; Samoan Independence Day; Traditional Maori Art & Carvings; Te Reo Maori (Native Language); Traditional Beliefs & Teachings and Mau Rakau (Maori Weaponry)”. ZTGP said he also worked with several detainees who were eager to learn about their heritage, within the art classes. ZTGP assured the Tribunal that his Maori cultural beliefs and teachings had been passed onto him from his elders and ancestors and his desire to pass them onto others of Maori heritage should not be mistaken as a sign that he does not love the Australian community and its culture. The Tribunal does not draw this conclusion and understands the importance of those cultural beliefs and teachings to ZTGP and his wanting to pass them on to other persons of Maori descent, regardless of where those persons may be living.
ZTGP said in February 2018, he had been selected to be part of a TV documentary called, “What does it take to be a man”.[25] He said the documentary is based on prisoners who had committed acts of violence, their personal feelings toward their crimes and their present situation. He said he was selected by a cultural officer at a corrections centre because of his good character and the positive reports she had received about his compliant and respectful behaviour.
[25] Refer Exhibit “A3”.
ZTGP said that Mrs ZTGP had forgiven him and had continued to provide him with continual emotional support through her fortnightly visits, telephone calls and letters, while he was incarcerated. In the detention centre, ZTGP says he maintains his relationship with Mrs ZTGP by telephone. He said they speak to one another constantly. He said they sleep with their telephones on at night and throughout the day so that they can be with each other.
ZTGP explained that the situation was taking an overwhelming emotional toll on Mrs ZTGP and on him. He said his wife struggles with loneliness, stress, pain and heartache with each day that went by. He said his wife had told him the following:
Just wants me to come home and do whatever we have to do in order to make our marriage work, make our home a happy, supportive and loving place once again, prove to ‘DHS’, our families, our counsellors and the Australian Community, that all of our efforts we have both put towards making a positive change, is genuine and authentic and that we are in fact ready to be reunited with our son ‘[Stepson]’ once again.
ZTGP said he would like the opportunity to prove to everyone, and himself, that he is not the violent, angry, Ice and alcohol addict that he had been in the previous four years. He said that he had an “unbreakable want, but also the ultimate need” to be together with Mrs ZTGP in Australia. ZTGP said that the devastating effects of being forced to move back to New Zealand would break his wife’s heart and that it would tear their family apart. He asked for one last opportunity to show everyone in his immediate and extended family, his peers and the Australian community that he has changed and will be the best husband and provider for his wife and stepfather to his Stepson.
ZTGP acknowledged that he had been imprisoned three times over the past years. He said that he did not think the sentences imposed on him were long enough to offer him the right form of intervention. He said the programs he attended designed to help him make future prevention plans were “basic and minimal”. He considered that this left him with a lack of knowledge and skills to identify the key triggers which had led to his re-offending in the past. By contrast, ZTGP said the most recent sentence of 12 months and then a further 6 months in detention had been a “major eye opener” and gave him the opportunity to “see my past ways, attitude and drug history” clearly; to observe his flaws and rectify them; to make every attempt to change all aspects of his future by seeking the right help; and by attending the right courses, programs and counselling sessions to prevent any possible risk of him re-offending in the future.
MRS ZTGP’S EVIDENCE
The Tribunal has considered Mrs ZTGP’s affidavit sworn by her on 3 August 2018,[26] in addition to her earlier submissions to the Minister’s delegate.
[26] Refer Exhibit “A2” – statutory declaration of Mrs ZTGP sworn on 3 August 2018.
Mrs ZTGP states that she was born in Australia; had spent most of her life in Australia; and that home for her family was Australia.
Mrs ZTGP acknowledged that they had “done the wrong thing” and they had “learnt the hard way”. She asked the Tribunal to give their family another chance and to provide ZTGP with another opportunity to prove to the courts, his family and himself that he “can and will be a strong man, living without violence, drugs, addiction, that man he knows he can be, full of love, support, honour, culturally driven and that man I know he can be”. Mrs ZTGP said that if ZTGP is deported, it would tear their family apart “indefinitely, more so than what our actions have done”. Mrs ZTGP said that it will have a devastating effect on ZTGP, herself and her son, as he would “have a mother grieving the removal/loss of her husband”. She said ZTGP would be devastated as he would not have a chance “to be the father and loving husband he knows he can be, as a clean man off the drugs, living without violence and to be able to use the new skills and techniques he has learnt throughout his incarceration and detention”.
Mrs ZTGP said ZTGP’s deportation would also mean that she would have to choose between her husband and her son. She said that if ZTGP was deported that they would “never have their family back”. However, at the hearing, Mrs ZTGP indicated that if ZTGP was deported to New Zealand and provided her son was released back into her care, that she would move to New Zealand to live with ZTGP. She expressed concerns about how they would survive and indicated that the welfare benefits payable in New Zealand were not as good as they are in Australia.
Mrs ZTGP confirmed that her son was still in the care of her mother. She said that there was a court hearing a few months ago. Mrs ZTGP informed the Tribunal that her son lived with her mother, her mother’s de facto partner and Mrs ZTGP’s two younger sisters. Mrs ZTGP said that her son got along with her mother’s de facto partner. He was employed as a truck driver and drove a bus sometimes. She said her mother was unemployed. Mrs ZTGP said her son also got along with her two younger sisters and their relationship was akin to “brother and sisters”. Mrs ZTGP said that her son had started school and that he was doing well and liked it.
Despite this, Mrs ZTGP said that her son still wanted to come home and live with her and he had picked out the school he wanted to go. Mrs ZTGP said that the next court hearing to review the care arrangements for her son was in June or July 2019, but she had been told that it was possible for them to take steps towards reunification before then. She said the case officer involved had asked her to contact them again, when ZTGP was released from detention.
THE MINISTER’S SUBMISSIONS
The Minister’s representative, on behalf of the Minster, filed a Statement of Facts, Issues and Contentions on 6 August 2018 (Minister’s SFIC). Oral submissions were also made by the Minister’s representative at the hearing.
In summary, the Minister’s representative contends that:
(a)ZTGP’s conduct and criminal history to date is repeated and very serious and has demonstrated a frequent and sustained pattern of offending;
(b)ZTGP has been convicted of violent crimes on a number of occasions since March 2015 and has been sentenced to terms of imprisonment several times;
(c)ZTGP committed crimes in front of a vulnerable person (Stepson);
(d)ZTGP had disregarded six court orders in the period of two years; and
(e)ZTGP has disregarded a warning given by a Magistrate on 31 May 2017 that if he continued to offend his prison sentences would be longer.
The Tribunal agrees with those contentions, except that it does not agree with the contention set out in paragraph [96(e)] as ZTGP has not re-offended since 31 May 2017. He has been in prison, and then in detention, since that date. In regard to paragraph [96(d)], the Tribunal notes that ZTGP has breached court orders (being bail conditions; family violence intervention orders; community correction orders; orders to appear at court; and other directions or requirements), on a total of eight occasions since he had been in Australia over the last 13 years.[27]
[27] The Tribunal has not counted the two further charges of contravening domestic violence orders in Queensland on 9 December 2014 and 5 February 2015 on account of no convictions having been entered due to ZTGP’s failure to appear at the Magistrates’ Court.

The Minister’s representative also contends that there is an unacceptable risk to the Australian community that ZTGP will engage in conduct that may cause serious mental or physical injury, relying upon the comments of the DHHS in the Case Plan for the Stepson. It was contended that there was a moderate to high risk of ZTGP re-offending based on the following:
(a)ZTGP is of a mature age; has a repeated and consistent history of violent criminal offending since March 2015; and that he is most recent offences involved increased levels of violence;
(b)the threat of imprisonment had not deterred ZTGP from offending;
(c)ZTGP has offended even though he was the subject of suspended prison sentences and various other conditions and orders the court had placed on him; and
(d)ZTGP continued to use Ice, as did Mrs ZTGP, despite having undertaken rehabilitation programs and despite having had community support previously.
At the hearing, the Minister’s representative referred the Tribunal to the comments of the (then) Deputy President Kendall of the Administrative Appeals Tribunal in the decision of XFKR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2385 at paragraph [45], with which this Tribunal agrees:
The Tribunal would add that, in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women – children who, as in this instance, witness their mothers being abused, degraded and dehumanised ̶ and sends a message to these children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.
In the Minister’s SFIC, it was contended that a consideration of the best interests of minor children (in this case, the Stepson) weighed slightly in favour of ZTGP, although the Tribunal should only afford limited weight to this consideration, on account of the references suggestive that some of the offending behaviour took place in the presence of the Stepson. At the hearing, the Minister’s position had hardened and it was contended that ZTGP remaining in Australia would not be in the best interests of the Stepson.
CONSIDERATION
Primary issue 1: does ZTGP pass the character test as defined by section 501(6) of the Act?
The answer is no. The Tribunal finds that by operation of s 501(6)(a), in conjunction with s 501(7), of the Act, ZTGP’s undisputed criminal record establishes that he has a substantial criminal record. ZTGP was sentenced to a term of imprisonment for a period of 12 months. For this reason, the Tribunal finds that ZTGP does not pass the character test as s 501(7)(c) of the Act applies to him. ZTGP concedes that he does not pass the character test.
Primary issue 2: is there another reason why the mandatory cancellation of ZTGP’s visa should be revoked?
The other primary issue to be determined was whether there is another reason why the visa cancellation should be revoked under s 501CA of the Act. Whether the discretion to revoke the cancellation was enlivened, depended on the specific circumstances of ZTGP’s case. Direction no.65 guides the exercise of decision-makers powers under s 501CA.
PRIMARY CONSIDERATIONS
Paragraph 13(2) of Direction no.65 provides for the Primary Considerations which the Tribunal must consider.
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
Protection of the Australian community
Paragraph 13.1 of Direction no.65 provides further detail addressing the concept of the protection of the Australian community:
(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.
The nature and seriousness of the conduct
The Tribunal accepts that the offences committed by ZTGP, being violent offences, are at the extreme end of the scale of seriousness of offences that may be committed by a person. This is further exacerbated by the fact that the victim of the previous offences, Mrs ZTGP is 17 years younger than ZTGP and a woman who was particularly vulnerable having been exposed to a significant degree of violence by her step-father during her childhood. It is also exacerbated by the fact that some of the incidents were witnessed by the pre-school aged Stepson, and Mrs ZTGP’s sister who was 12 years old at the time of the April 2017 incident, potentially causing them significant psychological damage which, even if not obvious now, may manifest itself in the future.
Paragraph 13.1.1(1)(a) and (b) of Direction no.65 makes it clear beyond doubt that this type of offending behavior is to be viewed “very seriously” (emphasis added):
(1) In considering the nature and seriousness of the 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 very seriously;
b. The principle that crimes committed against vulnerable members of the community (such as minors, 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;…
In doing so, the Tribunal must take into consideration that ZTGP has offended repeatedly over a significant period of time. His offending started in New Zealand. Upon arriving in Australia, there was a period of four years where no convictions were entered against him, but following the breakdown of his first family, things deteriorated. This is a matter the Tribunal must take into account under paragraph 13.1.1(1)(d) of Direction no.65 being the “the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness” and under paragraph 13.1.1(1)(e) being the “cumulative effect of repeated offending”. ZTGP’s criminal record in Australia (the New Zealand record was not available), comprised over 10 convictions, for which he was sentenced to three separate terms of imprisonment and Community Corrections Orders (CCO).
ZTGP has acted in disregard to the objectives sought to be achieved by publicly-funded corrections programs that he participated in. The attempts to try to rehabilitate ZTGP from substance abuse and re-offending have previously failed.
In terms of the cumulative impact of the repeated offending behavior of ZTGP, the Tribunal has also taken into account that the significant impact that repeated offending of this kind has in terms of the cost of policing, enforcement and repeated periods of incarceration. The Tribunal considers that ZTGP’s history of repeated criminal offending by itself demonstrates that he has engaged in serious offences and conduct. It shows that ZTGP has, during most of his adult life, has had very little regard for the law. He has contravened various intervention orders, bail conditions, CCO’s, road traffic offences (such as the requirement of vehicles to be registered), drink driving laws, laws against the use of prohibited drugs and most importantly laws against violence.
Based on an objective measure, the seriousness of the offending behavior has increased. Gradually the degree of physical violence ZTGP has inflicted on Mrs ZTGP has escalated. Police remain gravely concerned about the safety of Mrs ZTGP and Stepson. Police were also concerned about the reluctance of Mrs ZTCP to protect herself and Stepson, sufficiently so to take the critical step of calling in DHHS to assess whether the child should be placed in alternative care to protect him.
The Tribunal has taken into consideration that on a few occasions, ZTGP called the Police to turn himself in. He has not resisted arrest. He has cooperated with the Police and in relation to his prosecution for the Magistrates’ Courts (with the exception that he failed to appear in a Magistrates’ Court in Queensland on one occasion to face some charges laid against him). At the hearing, ZTGP has said how he has hated himself for what he has done. The Tribunal is satisfied that ZTGP has invariably taken responsibility for his actions and shown genuine remorse. The Tribunal finds that ZTGP is ashamed of his actions and regretful. The Tribunal considers that there is reason to hope that ZTGP will reform his ways in the future by showing the remorse and insight that he has into his offending behaviour. However, ZTGP’s remorse and willingness to take responsibility for his actions does not excuse what he has done, given the gravity of those actions.
There were three separate terms of imprisonments imposed on ZTGP for the offences for which he was convicted. In the sentencing hierarchy, an imprisonment term is the highest level of punishment reserved for the more serious criminal offending in our community. This is a relevant consideration under paragraph 13.1.1(c) of Direction no.65.
The Tribunal has taken into account the further remarks of a Magistrate in a proceeding before her on 31 May 2017 in relation to ZTGP’s most recent offences as follows:
Her Honour: So, [ZTGP], you, of course, have pleaded guilty to some really serious charges.
Offender: Yes, Your Honour.
Her Honour: The most serious, of course, charges 5 and 6, breaching intervention orders causing injury. Now, you’re someone, of course, who also has a prior criminal history.
Offender: Yes, Your Honour.
Her Honour: 23 March 2106, a term of imprisonment and a Corrections order.
Offender: Yes, Your Honour.
Her Honour: That was breaching an intervention order, recklessly causing injury. You had another matter back on 9 March breaching an intervention order and you were fined. Go back to 10 July 15, recklessly causing injury, aggravated assault of a female. Two months’ imprisonment.
Offender: Yes, Your Honour.
Her Honour: So, sadly, you just keep coming back. Now, there is no doubt, when I read or listen to the summary, drugs, alcohol are serious issues in your life and the aggravating feature in relation to these matters was the presence of children. I just do not know if you actually understand the impact of this sort of behaviour on children. They just cannot cope. Now, of course, [Stepson] is currently on an interim accommodation order.
I have read references that have been provided to the court. People talk about you being someone who works hard. The letter from the Salvation Army.
Offender: Yes.
Her Honour: The opening paragraph: “It is with a sense of frustration and disappointment that I write this reference”, and there is talk about, “over the last 12 months –“ this is dated 17 May – “having witnessed a man getting his life back on track.”
Offender: Yes.
Her Honour: Well, that is not the man I see before me today. You see, ultimately, it is up to you to make changes in your life. Drugs, alcohol inevitably are going to bring you back into account.
…So, it is a choice. I have already said that once today. You choose the drugs and the alcohol over your family or you choose your family over the drugs and the alcohol. That is - - -
Offender: I choose my family, Your Honour.
Her Honour: I know that is what you are saying now, but what you need to do is ensure that you can actually do that when you are back in the community.
Offender: Yes.
…
In conclusion, the Tribunal considers that the considerations under paragraph 13.1.1(a), (b), (c), (d) and (e) of Direction no.65 have particular relevance in this case and support the conclusion of the Tribunal that ZTGP’s offending behavior for which he was convicted, was very serious and weighs heavily against the revocation of the decision to cancel his visa.
Risk to the Australian Community should the Applicant reoffend or engage in other serious conduct
Paragraph 13.1.2 of the Ministerial Direction provides that:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Tribunal is required to consider the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct and the likelihood of him so engaging in such further serious criminal conduct, taking into account the available information and evidence with respect to such risk.
In the event that ZTGP was to reoffend, the Tribunal considers it is likely that it will involve ZTGP committing the type and severity of crimes as he has done in the past given the type and severity of ZTGP’s previous offences. It is also possible that the severity of the harm that ZTGP would cause may continue to escalate, leading to serious permanent physical or psychological injuries to his victims and any children who may be present or even death. The history of ZTGP’s offending demonstrates a distinct lack of self-regulation both while he is under the influence of Ice or alcohol, and also while he is not. It is apparent that ZTGP is unable to control himself when he becomes enraged by things that others might say. Having those characteristics indicate that ZTGP poses a risk to the Australian community.
ZTGP gave evidence, which the Tribunal accepts as genuine, that he has gained insight into his offending. He gave evidence both in his witness statement and at the hearing that he would no longer take drugs; that he was not getting any younger; and needed to grow up.
Additional evidence was given by ZTGP about strategies that he proposed to adopt if he was released into the community to avoid further relapses. The Tribunal notes that ZTGP undertook a drug and alcohol course during his recent period in custody and occupational courses and other studies to help him secure employment. If released he intends to live with Mrs ZTGP in her rental property. They plan to work together to have Stepson returned into their care so they can be a family once more. They will both commit to a family life, free of violence and substance abuse. ZTGP said that he “knows in his heart” that Mrs ZTGP will not start using Ice again.
The Tribunal notes a character reference dated 17 May 2017 provided by a Bandmaster at the Salvation Army who said he had witnessed ZTGP “getting his life back on track” in the 12 months that he knew him (from approximately May 2016 to May 2017) and that they seemed to be headed in a very positive direction.[28] He stated about ZTGP:
While I do not know, or need to know the full details of what has happened in recent days, and I certainly do not condone what has gone on…I do believe….based on my observations…that this man has the capacity to be a better person and live a useful life and be a good husband and father.
[28] Refer Supplementary G-Documents SG24/183.
The Tribunal has also considered the character reference dated 22 May 2017 provided by a friend employed in public service (working at a municipal council) (Friend).[29] Friend said she had known ZTGP for six years and that she could “rightfully vouch for changes and efforts to improve his behaviour and lifestyle. He is leading a very positive lifestyle; is a hard worker earning the respect of many people in the neighborhood and the building industry as well”. Friend states that she was confident that ZTGP would not re-offend.
[29] Ibid SG24/184.
The Tribunal accepts that ZTGP and Mrs ZTGP have every intention of abstaining from substance abuse and violent interactions in the future. The Tribunal considers those intentions to be genuine and hopes that ZTGP and Mrs ZTGP will be able to achieve their goals. The Tribunal considers that there is a chance that ZTGP’s lengthy period of imprisonment/detention, the cancellation of his visa and the transfer of Stepson’s care to Mrs ZTGP’s mother in a different town, might serve as a “wake up call” sufficient to stop a repeat of the drug use/domestic violence cycle that has caused so much damage in the past.
However, there were limited examples where ZTGP had demonstrated that outside of a structured environment, such as being in prison or detention, he was able to abstain from using Ice and reoffending for any significant length of time. There was a period of time when he lived in New South Wales and was involved in playing in his family’s band where he seemed to stop using Ice for a few years. However, ZTGP moved back to Brisbane, started to use Ice again in the absence of any specific trigger and things deteriorated from there. There was also a short period of time when he and Mrs ZTGP first moved to Victoria when they said they did not use Ice, but on their own evidence, it did not take long before they both fell back to their old habit of doing so.
Further, the Tribunal notes that ZTGP has had other “wake up calls” in his life such as the fracture of his first family with Ex-Partner and their child; needing to serve two earlier terms of imprisonment and the imposition of various intervention orders on him for his behaviour, presenting him with opportunities for personal reform. Unfortunately, those earlier “wake up calls” did not make a difference and ZTGP fell back into his old ways. While the Tribunal does not consider there to be a high risk that ZTGP will reoffend in the future, it is satisfied that there is at least a medium level risk that he will do so. Given the type of offending, involving crimes of violence against vulnerable persons, the Tribunal finds that this is an unacceptable risk to the Australian community.

The Ministerial Direction at paragraph 14.2 addresses the matters to be taken into account for this consideration:
(1)The Strength, nature and duration of ties to Australia. 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).
ZTGP arrived in Australia at age 37 and has lived in Australia for 13 of his 50 years of life. He has only been absent from Australia on a few occasions for short holidays. However, he spent his childhood in and completed all of his schooling in New Zealand and spent a substantial period of his adult life in New Zealand. At various times, ZTGP has been employed in Australia or served terms of imprisonment or detention in Australia.
ZTGP gave evidence that if he was not permitted to remain in Australia, Mrs ZTGP would be devastated. The Tribunal was satisfied from the evidence of both ZTGP and Mrs ZTGP of the close affection and high degree of commitment between them, despite the past domestic violence incidents that have taken place. Mrs ZTGP has said that ZTGP would return to living with her if he was released and permitted to remain in Australia. If ZTGP is returned to New Zealand, Mrs ZTGP said she would be unable to do so, as Stepson is required to live with her mother in Australia. Mrs ZTGP confirmed that if ZTGP is returned to New Zealand, and her son is returned to her, she would move to New Zealand to be with ZTGP.
The Tribunal acknowledges that if ZTGP is returned to New Zealand, he would be without the immediate support of Mrs ZTGP, at least for as long as Stepson remains in the care of Mrs ZTGP’s mother. They would be able to maintain communications by telephone (or by using face time or Skype). The Tribunal does not expect it will be feasible for Mrs ZTGP to make frequent trips to New Zealand to see ZTGP because she gave evidence that she is on the Newstart Allowance; is doing some cleaning work; and her savings were limited. The Tribunal infers from this evidence that Mrs ZTGP is unlikely to be able to afford to visit ZTGP on a regular basis, if at all, unless her financial circumstances were to improve.
In terms of the other elements of paragraph 14.2 of the Direction no.65, the Tribunal notes that ZTGP’s offending commenced approximately four years after his arrival in Australia with his first two court appearances recorded in 1990. The Tribunal considers that paragraph 14.2(1)(a)(i) of Direction no.65 does not apply in this application.
ZTGP has been in Australia for about 13 years. For many of those years, ZTGP was gainfully employed. The Tribunal affords recognition for the several years of work in Australia that ZTGP performed. The character reference from the last transport company he worked for, spoke of ZTGP’s good work ethic. The Tribunal accepts this evidence and considers that paragraph 14.2(1)(a)(ii) of Direction no.65 applies in this application.
The Tribunal concludes that the consideration under paragraph 14.2 of Direction no.65 weighs in favour of revocation of ZTGP’s visa cancellation, on account of length of time he has spent living in Australia, the contribution he has made through his many years of gainful employment in Australia and his significant ties with Mrs ZTGP, who is an Australian citizen living in Australia.
Impact on Australian business interests
ZTGP was not involved directly or indirectly in any business undertaking in Australia. This factor is not a relevant consideration in this application.
Impact on victims
Paragraph 14.4 of Direction no.65 provides that the Tribunal should consider the impact of a decision not to revoke the cancellation decision on members of the Australian community, including victims on the non-citizen’s criminal behaviour and the family members of those victims. The Tribunal considers that it is self-evident that the reference to “not” in this paragraph before the phrase “to revoke” is a typographical error and the assessment that the Minister intended is that the decision-maker consider the impact of a decision to revoke the cancellation decision on members of the Australia community including victims and their family members. If the Tribunal is wrong about this, the impact on members of the Australia community of a decision not to revoke the cancellation decision is that there will be none, as ZTGP will not be released into the Australian community.
The Tribunal has found that there is a medium level risk that ZTGP will re-offend. If he is released back into the Australian community, Mrs ZTGP and Stepson (and possibly other members of the Australian community who might subsequently enter into close relationships with ZTGP), may be gravely impacted by ZTGP’s inability to regulate his emotions, whether he is under the influence of drugs or not. The Tribunal is aware of the impact that ZTGP has had on others in the past, including the impacts referred to in paragraphs [62], [68], [69] and [74]. Mrs ZTGP was taken to hospital twice in relation to the physical attacks made on her by ZTGP.
At the hearing, ZTGP was asked what he thought the impacts on his offending behaviour had been on Mrs ZTGP, particularly given she was much younger in age. ZTGP answered, “Affected her big time, belittled her and affected her self-esteem”.
The Tribunal considers that this factor weighs against revoking the decision to cancel ZTGP’s visa. If the Tribunal is wrong about its interpretation of this part of the Direction, by taking into account the typographic error referred to in paragraph [159], based on all other primary and other considerations (i.e. putting this particular consideration aside), the Tribunal nevertheless affirms the decision under review.
Extent of impediments if returned to New Zealand
Paragraph 14.5 of Direction no.65 requires the Tribunal to consider the extent of any impediments that the Applicant may face in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country). The Tribunal must take into account the Applicant’s age and health, whether there are substantial language or cultural barriers and any social, medical and/or economic support available to him in the home country.
No language barrier or cultural differences would apply with respect to ZTGP settling into New Zealand. In fact, ZTGP’s evidence was that he had a particular detailed knowledge of Maori traditions. ZTGP has completed a course qualifying him to teach on the subject. The Tribunal is satisfied that ZTGP has a close affinity with traditional Maori-based cultures in New Zealand. Having spent the first 37 years of his life in New Zealand, the Tribunal is satisfied that ZTGP is also familiar with other broader non-Maori cultural aspects present in communities living in New Zealand.
The Tribunal notes that New Zealand and Australia have similar legal and social services systems. The Tribunal accepts a suggestion that was made by ZTGP and Mrs ZTGP at the hearing, that the level of unemployment benefits available in New Zealand was not as high as it is in Australia. The Minister did not dispute this. The Tribunal notes from a cursory internet search that the Job Seeker Allowance in New Zealand provides for weekly unemployment benefits to an individual of $199.53 per week (or $165.27 per week if the person is married).
Of importance, the Tribunal notes the requirement under Direction no.65 for it to consider the extent of any impediment that ZTGP may face in establishing himself and maintain basic living standards (in the context of what is generally available to other citizens in New Zealand). For this reason, the Tribunal is reluctant to draw comparisons between New Zealand and Australia and instead, it considers that it is required to assess whether ZTGP faces any impediment establishing himself and maintaining a basic standard of living in New Zealand noting that if he is unable to find work, he will receive the rate of unemployment benefits (as specified above), that are available to other New Zealand citizens who are unemployed for a period of time. The Tribunal does not consider ZTGP will face any particular impediment in this regard, relative to other New Zealand citizens.
The Tribunal acknowledges that ZTGP’s search for work in New Zealand will not be without it challenges, given that he has a significant criminal record to his name. ZTGP will face the same challenge if he remains in Australia. Despite this, the Tribunal is satisfied that ZTGP will have a good chance of finding paid employment in New Zealand for the following reasons:
(a)there was no evidence before the Tribunal to indicate that the employment rate in New Zealand was a barrier to ZTGP finding employment in New Zealand. To the contrary, New Zealand’s unemployment rate was estimated at 4.9 per cent in 2017;[35]
(b)ZTGP is a middle-aged person presently in good health (noting the matters referred to below in paragraph [172] and [173]). His evidence was that he did not intend to waste any more of his life. ZTGP gave evidence that he was attending gym daily while in prison and that he had not taken drugs for the last 17 months, as confirmed by the urine tests taken at various times. If ZTGP successfully maintains these positive aspects of his life, he will remain in an optimal mind set and physical condition to search for and gain employment in New Zealand;
(c)ZTGP has had previous work experience in a number of occupations, including in the construction and transport industries. He gave evidence that he held a heavy vehicle licence and that he previously operated a crane, as well as undertaking work in waterproofing. While in prison and detention, ZTGP worked in various roles as set out in paragraph [82], which has also built on his general work experience and skills; and
(d)ZTGP’s represented himself in this application and demonstrated that he has good general communication skills and that he is an affable character (to persons he is not close to), as reflected also in the character references provided by his past employer from the transport company, his Friend and the Bandmaster of the Salvation Army. This should assist ZTGP in finding work in New Zealand.
[35] Refer
In terms of finding a place to live, at the hearing ZTGP gave evidence that his son was living in New Zealand. The Minister’s representative asked ZTGP why he would not be able to live with his son if he returned to New Zealand. ZTGP said that his son would not want him there; his son was living with his mother (i.e. ZTGP’s ex-partner) and also his son would “want his own space” and was “doing his own thing”. The Tribunal accepts that ZTGP would not be able to live with his son.
ZTGP also gave evidence that his mother was living in her home in [a town] in New Zealand with ZTGP’s brother and his family. When ZTGP was questioned at the hearing about whether he could live at his mother’s house, he said that “it was not an option” because “there was no room” (he explained that his brother and his brother’s wife were living there); his mother “liked things the way they were” and also because he “did not know his mother that well”. ZTGP said he had other relatives living in New Zealand but he said they would not open their doors to him. ZTGP gave evidence that his extended family in Australia were disappointed in what he has done and that it would be like that in New Zealand too, which he said was “understandable”. The Tribunal accepts that ZTGP would not be able to live with his mother.
ZTGP said if he went back to New Zealand he would live in [the town where he was raised] and would be living on the streets. Ultimately, it is a choice for ZTGP where he will base himself upon his return to New Zealand, but the Tribunal notes that it is open to ZTGP to choose a large regional town or city that will maximise ZTGP’s prospects of obtaining paid employment and where community services are available to him to assist him to establish a new life in New Zealand.
In the longer term, the Tribunal notes that Mrs ZTGP has indicated she will join ZTGP to live in New Zealand provided Stepson is returned into her care. If this transpired, this may provide additional support to ZTGP, however, the Tribunal acknowledges that it is presently uncertain whether this will occur (i.e. whether Stepson will be returned to the full time care of Mrs ZTGP). Mrs ZTGP gave evidence that the next date for the review by the court of the present orders relating to Stepson’s care arrangements is not due to take place until June or July 2019.
At the hearing, ZTGP was asked whether he had any health issues. He said he underwent a course of chemotherapy in 2000 as he was diagnosed with Hodgkinson’s disease in 1999. He said that since then he had not had any issues. He said he underwent a checkup while he was in prison.
ZTGP also told the Tribunal that in 1991, while he was living with his Ex-Partner in New Zealand, he was the victim of an assault. While he was lying in his bed with his Ex-Partner, a man had entered their home and split ZTGP’s head by cracking him with a weapon. ZTGP showed the Tribunal a very significant scar resulting from that incident. It was a large scar running from the top of ZTGP’ head, over the top of his forehead onto the front of his face along the midline of his head. ZTGP said he has never seen a psychologist or psychiatrist, but has always wondered whether this injury has had an effect on him. He said he had lost both his senses of taste and smell following this injury to the head.
In terms of ZTGP establishing initial basic accommodation, social supports and community supports, the Tribunal has also taken into account the support that is likely to be provided by the Corrections Officer if a supervision order is made with respect to ZTGP upon his return to New Zealand under the Returning Offenders Act 2015 as described in paragraph [148].
The Tribunal has taken into account all of the matters referred to in paragraphs [159] to [174] and concludes that the other consideration under paragraph 14.5 of Direction no.65 does not weigh in favour of revoking the cancellation of the ZTGP’s visa. The Tribunal recognises that ZTGP will face some challenges, but is not satisfied that he will face significant impediments to establishing himself and maintaining basic living standards in New Zealand (in the context of what is generally available to other New Zealand citizens).
CONCLUSION
The Tribunal recognises ZTGP’s unfortunate history in terms of his parents giving his care over to his maternal grandparents and the violent abuse against him as a child at the hands of his grandfather being one of his primary carer’s during his childhood. The Tribunal expects those things were likely to have contributed greatly to the emergence of ZTGP’s substance abuse problems and the difficulties he has had with maintaining his current spousal relationship without the emergence of violence.
In light of the abuse that ZTGP faced from his grandfather, and the substance abuse issues that followed, the Tribunal does not consider that ZTGP ever intended to find himself as he does now at the age of 50 with a criminal record that includes repeated serious offences of domestic violence and assault. The Tribunal considers that ZTGP would have much preferred to have been leading a positive and drug-free lifestyle and to have been a good provider and protector for his family. Regrettably, ZTGP has struggled for a long time to reach his goals. As he said himself, the Ice had really taken hold of him. Unfortunately, ZTGP did not have the personal strength to get himself out his pattern of drug use and detrimental criminal behaviour. When opportunities were provided to ZTGP in his life to make changes and rebuild a new life in Australia, sadly, they were not taken up or importantly, put into practice by him.
The Tribunal has not reached its decision in this application without considerable deliberation, given that ZTGP has an Australian wife presently living in Australia; the fact that it is not feasible for the wife to move to New Zealand while her child has been ordered by the court to be placed in the care of her mother; and also the lengthy period of time that ZTGP has spent in Australia and lengthy periods he has been gainfully employed. The Tribunal is also mindful of the impacts that this decision will have on Mrs ZTGP who exhibited a high degree of emotional vulnerability and dependence on ZTGP, despite the circumstances. The Tribunal is not satisfied that this decision will necessarily have negative impacts on Stepson; in fact, the Tribunal determines that it is in Stepson’s best interests for the visa cancellation not to be revoked.
The Tribunal does not find that ZTGP will suffer any harm likely to give rise to international refoulement obligations.
The Tribunal is mindful that if ZTGP is deported, he will be without the emotional support of his wife for the short term at least, and perhaps longer. ZTGP will be starting from scratch upon his return to New Zealand. The Tribunal accepts that his family in New Zealand is likely to offer him limited, if any, assistance. He has experienced problems with drug addiction which also makes ZTGP particularly vulnerable should he relapse. The Tribunal accepts that this will present initial challenges for ZTGP to establish himself in New Zealand. However, New Zealand is a first world country with a healthy economy in relative terms to other parts of the world. It has a welfare system not dissimilar to Australia, although perhaps not quite as beneficial.
The Tribunal is satisfied that ZTGP does not face any significant impediments, relative to other citizens in New Zealand, to use the Government supports and benefits available to him in New Zealand. ZTGP is in good health and has a good range of skills and work experience which the Tribunal considers will assist him to find work in New Zealand, if he manages to remain drug-free. His experience with waterproofing, truck driving and in the construction industry is particularly significant and should stand ZTGP in good stead to find work.
Despite ZTGP’s significant ties to Australia which weigh in favour of revoking the cancellation decision, all three primary considerations and some other considerations weigh against revoking the cancellation decision.
ZTGP considers that he has turned a corner both with respect to his drug addiction and also that he will no longer offend. The Tribunal hopes this proves to be correct. While ZTGP has shown in recent times a successful and commendable withdrawal from Ice and alcohol while in prison/detention, it is still untested as to whether he will be able to maintain this in the absence of living in a structured setting. ZTGP has experienced relapses previously following long periods of abstinence from drugs and alcohol. Hopefully, it will be different this time, as ZTGP contends.
However, for now, there was insufficient evidence before the Tribunal to be satisfied that ZTGP is likely to stay clean and avoid re-offending upon being released into the community. The two CCO assessments in recent years upgraded ZTGP’s assessed level of risk from low to medium following the repeat of the domestic violence against Mrs ZTGP in April 2017. Despite the efforts at rehabilitating ZTGP, ZTGP did not respond sufficiently to the rehabilitation he underwent. The Tribunal is satisfied that there is a medium level risk of ZTGP re-offending.

The Tribunal considers the offences committed by him were very serious. Three of them resulted in ZTGP serving periods of imprisonment. Some of those incidents resulted in his wife being treated at hospital and it is expected there will be lasting psychological impacts from the physical attacks on her by ZTGP. The young children in their lives, who at times bore witness to those events, were exposed to and impacted by what took place. The Tribunal is satisfied that the Australian community would expect to be protected from such criminal activity, particularly in consideration that ZTGP has been afforded past opportunities for reform by having been imprisoned previously and assisted through CCO’s.
The Tribunal recognises that in the event that ZTGP is no longer in the same country as Mrs ZTGP, it is likely to have a detrimental impact both on him and on their marriage. However, in the future, Mrs ZTGP has indicated that she will move to New Zealand provided that her son is returned into her care.
In light of the findings made as set out in these Reasons for Decision, the Tribunal concludes that there is not another reason why ZTGP’s visa cancellation should be revoked.
For the reasons set out above, the Tribunal affirms the decision of the delegate of the Minister not to revoke the cancellation of ZTGP’s visa.

I certify that the preceding one hundred and eighty eight (188) paragraphs are a true copy of the reasons for the decision herein of Member K Parker.

.............................[sgd]...........................................
Associate
Dated: 18 September 2018

Date of hearing: 10 September 2018

Applicant: Self-represented

Advocate for the Respondent: Ms Kylie Crawford

Solicitors for the Respondent: Clayton Utz

Date of hearing:	10 September 2018
Applicant:	Self-represented
Advocate for the Respondent:	Ms Kylie Crawford
Solicitors for the Respondent:	Clayton Utz