Di Stefano and Minister for Home Affairs (Migration) [2019] AATA 677 (12 April 2019)

The Applicant signed to acknowledge receipt of this warning on 27 November 2002

1. In a letter dated 19 September 2011 from the Department of Immigration and Citizenship (as it was then called), the Applicant was notified that his Visa may be liable to cancellation on character grounds (G15, page 117).
2. Subsequently, in a letter from the Department of Immigration and Citizenship dated

31 January 2012 (G15, page 117) the Applicant was advised that a delegate of the Minister had decided not to cancel his Visa on that occasion (G15, page 117). 3. In the letter dated 31 January 2012 the Applicant was, however, given the following warning:

Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.

(Original emphasis.)

The Applicant signed to acknowledge receipt of this warning on 7 February 2012

1. In a letter from the Department of Immigration and Border Protection dated 14 July 2017 (G47, page 215), the Applicant was advised that his Visa had been cancelled under

s 501(3A) of the Migration Act because he failed the character test. The Applicant was at that time serving a full-time sentence of imprisonment and had a substantial criminal record, as defined in s 501(6) and s 501(7) of the Migration Act. 2. The letter dated 14 July 2017 gave the Applicant the opportunity to make representations to seek revocation of the cancellation decision (G47, page 216), which he did, and which the Department received on 10 August 2017 (G51, page 229). 3. A further letter dated 31 October 2017 from the Department of Immigration and Border Protection to the Applicant (G49, page 224) advised that the Department had received his representations. The letter invited the Applicant to make additional representations with respect to further documentation about the Applicant's offending which the decision-maker would be considering. The Applicant made representations in response in a letter dated 17 November 2017 (G50, page 228). 4. Similarly, in a letter from the Department of Home Affairs dated 25 September 2018, the Applicant was invited to make additional representations with respect to further documentation that the decision-maker may consider when deciding whether to revoke the decision to cancel the Applicant's Visa (G51, page 229). The Applicant did so (see Personal Circumstances Form dated 21 October 2018 with attachments,

G53, pages 236 - 277). 5. The representations made by the Applicant were summarised by the delegate of the Minister as follows (G3, page 7): * He arrived in Australia at the age of 16 years and has lived here for over 37 years. * He fears that he will become destitute if returned to Italy, due to his age and medical conditions restricting his employment prospects. * His parents, brother, sister, sister-in-law, two daughters, two nephews and nieces all reside in Perth, Western Australia, along with an aunt and three cousins living in New South Wales. His parents are in their 80s and he is concerned his removal from Australia would have a detrimental effect on their health, in addition to causing his fragile bond with his two daughters to dissipate further. * He submits he is not a threat to the community and his risk of re-offending is to non-existent. * He has completed a certificate II in Security Operations during 2009 and is undertaking an educational course at Bunbury regional prison. * He has previously been employed by numerous restaurants, as well as working as a machine operator, tree lopper, manual labour (sic), carpenter and for a ceramics store. * He undertook volunteer work for the Wesley Mission Church in Perth during 2004, as well as helping an elderly couple with household tasks without payment. * He has experienced injuries over time, which included injuring his left hand requiring hospitalisation, right knee reconstruction surgery, injuring his back during an arrest which required the use of crutches along with the various operations on his left knee. He has also been assaulted several times resulting in facial injuries causing this figuration, memory impairment and physical incapacitation involving his hand and arm, as well as being confined to a wheelchair and unable to write with his right hand. 6. In a letter from the Department of Home Affairs (Department) dated 18 January 2019, the Applicant was advised that after considering his representations, a decision had been made not to revoke the original decision to cancel his Class BB Subclass 155 Five Year Resident Return Visa (Visa) under s 501(3A) of the Migration Act (G2, pages 2-3). 7. The letter attached a decision record dated 17 January 2019 setting out the decision and the reasons for the decision (G3, pages 5-29). This is the Reviewable Decision that is currently before the Tribunal. 8. On 4 February 2019, the Applicant lodged an application in the Administrative Appeals Tribunal (Tribunal) to review the Reviewable Decision (G1, page 1).

1. The issues for determination by this Tribunal are:
   • (a) whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
   • (b) if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the mandatory cancellation decision (that is, the Reviewable Decision) should be revoked (see s 501CA(4) of the Migration Act), having regard to the primary and other considerations in Direction no. 79 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction no. 79).

1. This application is made pursuant to s 500(1)(ba) of the Migration Act. This subsection allows applications to be made to the Tribunal for review of decisions of a delegate of the Respondent under s 501CA(4) of the Migration Act not to revoke a decision to mandatorily cancel a visa.
2. The Reviewable Decision of 17 January 2019 was sent to the Applicant by registered post under cover of a letter dated 18 January 2019 (G2, pages 2-3). The effect of Regulation 2.55(7) of the Migration Regulations 1994 (Cth) (Migration Regulations) is that if a "document" is despatched by prepaid post or by other pre-paid means, the Applicant is "taken to have received" a "document" (in this case, the Reviewable Decision) "7 working days...after the date of the document". Thus, the Applicant is taken to have received the letter of 18 January 2019 attaching the Reviewable Decision on 29 January 2019.
3. Relevant judicial authorities have found that the date that a document is "taken to have been received" is not rebuttable by evidence to the contrary (see for example, Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377; (2000) 98 FCR 77, discussed in

Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 at [13] and [14]; and Sainju v Minister for Immigration and Citizenship [2010] FCA 461). 4. Section 500(6B) of the Migration Act provides that if an applicant is in the migration zone, they must lodge their application for a review of a decision made under s 501CA(4) "within 9 days after the day on which the person was notified of the decision". The Applicant lodged his application for review by the Tribunal on 4 February 2019 and was therefore within the nine-day period after he was taken to have received the Reviewable Decision. 5. The Tribunal is therefore satisfied that the application was lodged within time, and that the Tribunal has jurisdiction to review the Reviewable Decision. 6. Further, pursuant to s 500(6L) of the Migration Act, the Tribunal must comply with the

84 day timeframe for handing down a decision in this matter. As the Applicant was "taken to have received the decision" on 29 January 2019, the decision must be handed down by no later than 23 April 2019.

1. The hearing took place on Wednesday 3 April 2019. The Applicant appeared in person, accompanied by Prison Officers, and was self-represented.
2. The Respondent was represented by Mr Gerrard, who appeared in person.
3. The Applicant gave oral evidence and was cross-examined. Both the Applicant and

Mr Gerrard made oral submissions. 4. The Applicant also called several character witnesses. They were his brother, Roberto Di Stefano, and his friends Mr Peter Watson and Mrs Jillian Watson who each gave evidence in person at the Tribunal hearing. The Applicant also called another friend, Mr Michael Kroll, as a character witness, who gave evidence by telephone. 5. The Tribunal admitted the following documents into evidence at the hearing: * (a) Applicant's handwritten letter dated 25 March 2019, which attaches a further

7 page handwritten letter from the Applicant dated 24 March 2019 (Exhibit A1); * (b) Undated and unsigned witness statement of Roberto Di Stefano attached to an email to the Tribunal dated 28 March 2019 (Exhibit A2); * (c) Unsigned witness statement of Michael Kroll contained in an email dated 13 March 2019, and which was forwarded to the Tribunal on 19 March 2019

(Exhibit A3); * (d) the s 501 documents (G documents) from G1 to G57 (Exhibit R1); * (e) Supplementary relevant documents numbered from SG1 to SG3 (Exhibit R2); and * (f) the Respondent's Statement of Facts, Issues and Contentions, dated

1. Section 501(3A) of the Migration Act provides that:

(3A) 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) paragraph (6)(e) (sexually based offences involving a child); and

(b) the person is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

1. Section 501(6) of the Migration Act provides that:
   • (6) For the purposes of this section, a person does not pass the character test if:
     • (a) the person has a substantial criminal record (as defined by

1. A "substantial criminal record" is defined by s 501(7) of the Migration Act as follows:

(7) For the purposes of the character test, a person has a substantial criminal record if:

(a) the person has been sentenced to death; or

(b) the person has been sentenced to imprisonment for life; or

(c) the person has been sentenced to a term of imprisonment of

12 months or more; or

(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more...

1. Section 501CA of the Migration Act further 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.
   • (2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
     • (a) would be the reason, or a part of the reason, for making the original decision; and
     • (b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
   • (3) As soon as practicable after making the original decision, the Minister must:
     • (a) give the person, in the way that 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.

1. Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
   • (1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
     • (a) the performance of those functions; or
     • (b) the exercise of those powers.
2. Further, s 499(2A) of the Migration Act states that "[a] person or body must comply with a direction under subsection (1)".
3. On 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction no. 79 under s 499 of the Migration Act, which commenced operation on 28 February 2019 (paragraph 1(2) of Direction no. 79). Direction no. 79 replaced the previous Direction no. 65. Consequently, although the Reviewable Decision was made on 17 January 2019 when Direction no. 65 was still applicable, the Tribunal must now apply the current Direction, being Direction no. 79. The Tribunal proceedings were conducted on the basis that Direction no. 79 applied.
4. Paragraph 6.1 of Direction no. 79 sets out the "Objectives" of the Migration Act, with paragraph 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
   • (3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen 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. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
5. Paragraph 6.2 of Direction no. 79 provides general guidance as follows:
   • (1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
   • (2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen's visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
   • (3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
6. Paragraph 6.3 of Direction no. 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4), including the Tribunal:
   • (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
   • (2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
   • (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
   • (4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
   • (5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
   • (6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
   • (7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
7. Informed by the principles set out in paragraph 6.3 of Direction no. 79, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction no. 79, with regard to the specific circumstances of the case (paragraph 13(1) of Direction no. 79). Specifically, paragraph 13(2) of Direction no. 79 provides:
   • (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.
8. Paragraph 14(1) of Part C of Direction no. 79 lists other considerations as follows:
   • (1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
     • (a) International non-refoulement obligations;
     • (b) Strength, nature and duration of ties;
     • (c) Impact on Australian business interests;
     • (d) Impact on victims;
     • (e) Extent of impediments if removed.
9. Paragraph 7(1)(b) of Direction no. 79 outlines how a decision-maker is to exercise discretion:
   • (1) Informed by the principles in paragraph 6.3 above, a decision-maker:
     • (a) ...
     • (b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen's visa will be revoked.
10. Further guidance as to how a decision-maker is to apply the considerations in Direction no. 79 can be found in paragraph 8 of Direction no. 79 which provides:
    • (1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non­citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
    • (2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
    • (3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
    • (4) Primary considerations should generally be given greater weight than the other considerations.
    • (5) One or more primary considerations may outweigh other primary considerations.

1. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a "substantial criminal record" as defined by s 501(7) of the Migration Act.
2. A person has a substantial criminal record if they have been "sentenced to a term of imprisonment of 12 months or more" (s 501(7)(c) of the Migration Act).
3. On 19 May 2017, the Applicant was sentenced in the District Court of Western Australia to a total term of four years imprisonment for two offences of "unlawful and indecent assault" (for which he received a cumulative 12 month sentence and a concurrent 12 month sentence respectively) and "Robbery" (for which he received a head sentence of 3 years imprisonment) (SG1, page 353). The Applicant is currently serving these sentences of imprisonment.
4. Consequently, the Applicant does not pass the character test under

s 501(6)(a) and s 501(7)(c) of the Migration Act. 5. As the Applicant does not pass the character test, the Tribunal must now consider whether there was "another reason" why the Reviewable Decision should be revoked.

IS THE TRIBUNAL SATISFIED THAT THERE IS ANOTHER REASON WHY THE REVIEWABLE DECISION SHOULD BE REVOKED?

First primary consideration: Protection of the Australian community (paragraph 13.1 of Direction no. 79)

1. Paragraph 13.1(1) of Direction no. 79 provides that:

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 non­citizens 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...

1. Paragraph 13.1(2) of Direction no. 79 then provides:

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.

Nature and seriousness of the conduct (paragraph 13.1.1(1) of Direction no. 79)

1. Paragraph 13.1.1(1) of Direction no. 79 further provides:
   • (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 of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
     • (c) The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
     • (d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
     • (e) The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
     • (f) The cumulative effect of repeated offending;
     • (g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
     • (h) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);
     • (i) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
2. The Applicant has been convicted of over seventy offences in a 30 year period. Broadly speaking, they include violent offences such as assault, indecent assault, weapons offences, breaches of restraining orders and other court imposed and community orders, stealing and receiving offences, and driving offences. Specifically, the Applicant's criminal history is as follows (Exhibit R3, paragraph [4]; G6, page 30-32; SG1, pages 353-358):

Months CONCURRENT FROM 26 May 2017 MDL Disqualified: 9 mths

Imprisonment: 12 months concurrent from 22 December 2015

Purchase firearm or ammunition from unlicensed person

Drive contrary to conditions of extraordinary licence

Drive contrary to conditions of extraordinary drivers licence

(original order 26.08.2005; Breach of Violence Restraining Order)

1. 12 months imprisonment suspended for 2 years
2. 12 months imprisonment cumulative suspended for 2 years

1. 12 months imprisonment concurrent suspended for 2 years

18 Months Intensive Supervision Order (Adult supervision)

8 months imprisonment concurrent on each charge suspended for 2 years

TOTAL: 3 years 6 months imprisonment suspended for 2 years

Breach of Suspended Imprisonment Order (original order 22.03.2001; Threats to Kill)

(original order 22.03.2001; Assault Common, Damage, Receiving, Threatening Words)

1. The Applicant's most recent offences, upon which the cancellation decision was based, were "unlawful and indecent assault" against a 19 year old female victim late at night and "Robbery". He was convicted of these offences in the District Court of Western Australia on 19 May 2017, and is currently serving a four year term of imprisonment for these offences (SG1, page 353). The details of these offences are set out in the sentencing remarks of Stevenson DCJ (G8, pages 44-49) as follows:

The counts on the indictment for which you have been convicted are first; on 22 December 2015 at Lathlain, you stole from [victim's name omitted], with violence, a motor vehicle, the property of [victim's boyfriend's name omitted]. Secondly, on the same date and at the same place, you unlawfully and indecently assaulted her by grabbing her breast with your hand. And thirdly; on the same date and at the same place, you unlawfully and indecently assaulted her by grabbing her groin area with your hand.

...

In summary accepting what the victim said about what you did to her and how it happened I make the following findings, but I also make it plain as I have already said that I accept her evidence entirely with respect to what happened. This is a summary only.

She pulled over to the side of Orrong Road in Lathlain shortly before 2 am. The reason she pulled over onto the verge of the dual carriageway was to use her mobile telephone to obtain directions to where she was going.

She had earlier in that evening been with her partner and two other friends and she was going to see another female friend at the Paddington Alehouse. When she stopped she lit a cigarette.

She had the window down slightly, 6 or 7 centimetres, because she was smoking inside the vehicle. It was obviously very dark. I accept that it is usually a busy traffic way and that vehicles were passing from time to time.

...

The window was obviously open enough for Mr Di Stefano to so what he subsequently did which was to reach in and with his left hand place it with the blue glove on it over her mouth and to force her back into the driver's seat where she was sitting at which time the cigarette that she was smoking was dislodged and it still can be seen in the vehicle.

It happened in very short time because as the victim said she had not in fact completed entering the details into the mobile for directions when she was attacked without warning by you.

She was obviously in the wrong place at the wrong time. However, you were not. You were there with two blue latex gloves which you put on your hands when you saw the opportunity which had been presented to you.

There was therefore an element of premeditation bearing in mind, of course, that you observed the scene and took the opportunity to commit the offences. You went to the driver's side of the vehicle and as I've said without warning you restrained her using your left hand by pushing her on the mouth consistent with the complaint she made to the police operator that she had been struck in the mouth to the back of the chair and you held her there while you attempted to grab the car keys.

There was a struggle over the car keys. At the same time you used your other hand to grab her by the breast. I accept her description of you pulling her clothing away from her including her bra strap.

Whether or not there was any evidence that the top was in fact ripped is neither here nor there. It is the fact that you seized and took the opportunity to sexually assault her in that way.

You then let go of her breast whilst still holding her back into the driver's seat with your left hand and you grabbed her groin area between the legs and as she described you moved your fingers around over her vagina area.

At this time she would have been thinking that she was at risk of being sexually molested even further. There was an attempt by her to divert you by saying words to the effect could she drive you somewhere which she hoped would create an opportunity for her to escape you because it would have required you to get into the passenger side and I accept her evidence of your response in that regard.

Consistent with what you then did which was to physically remove her from the vehicle you grabbed her by the hair. The door was opened. She attempted to kick you. You dragged her across the dual carriageway by the hair.

She was attempting to keep the weight off her head by staying on her feet and lifting herself up and she was attempting to scream. You pushed her to the ground on the second laneway near the median strip creating time for yourself to then get back to the vehicle in order to steal it.

You had some difficulty driving the vehicle until you had familiarised yourself with it. It would appear that in your attempt to drive the vehicle away you spun the wheel or made a mark on the grass verge which was later identified and seen in photographs. It may have been that you drove away with the handbrake on, consistent with the evidence of the victim that she had put it on.

The victim, having nothing, then attempted to flag down a vehicle, which did not stop, and she ran to a nearby public phone which fortunately for her was not that far and was in that location, given their scarcity these days. She immediately called 000 and spoke to a police operator. She explained to the police operator what had happened and what you had done and she asked the operator to stay on the line, even though the operator at one point indicated that she needed to clear the line because it was an emergency line, because she was concerned that you might come back.

So even though you had left, the fear that she was still experiencing in the early hours of the morning in the dark was still operating on her emotionally and psychologically. Police units attended and on arrival in the area you were seen by two police officers. You pulled the vehicle over. At that point they hadn't been given a description that it was a black Commodore which was of interest.

They parked behind you, activated a blue police light so that you knew they were police and one got out of the vehicle. You yourself got out of your vehicle and walked towards their vehicle, which was parked behind you, and then when you got near the front of the vehicle you attempted to sprint to avoid capture.

When you got out of the vehicle you were still wearing the blue latex gloves consistent with the only inference that you were in possession of them that evening for the purpose of using them as a barrier in relation to any criminal offending that you might have undertaken. Obviously you did not wish to leave your DNA on the steering wheel of the vehicle that you had acquired.

The officer concerned was a fit young officer. Given his evidence, I'm not so sure that he thinks he's as fit as he was then but he chased you for about 250 metres before he was able to catch you. He described it as a "sprint" and he described how it took him some time to close on you before you then surrendered, realising that you were caught.

1. His Honour, Stevenson DCJ also commented on the seriousness of the offending

The offence was on any view a serious offence. I'm not going to make findings as to whether it's at the high end in this respect or in the low end in that respect. It was a serious matter. It was predatory. It involved sustained violence against a very vulnerable young 19-year-old female late at night in a place that she did not know where she was, having in effect been lost. The violence consisted of sexual violence and an assault on her.

At the time you were wearing two blue latex gloves that would have only increased the fear for her. It was on any view a cowardly act and carried with it a degree of brutality which was totally unnecessary to effect the stealing of the motor vehicle and it would have been traumatic and terrifying for the victim, it was premeditated to the extent that you took the opportunity which presented itself to you at the time and place.

There is no victim impact statement but I have no doubt that the experience would have been traumatic for the victim and many victims attempt, to move forward, to block out and not dwell on terrifying incidents. It's not known how this victim is dealing with it....

1. As noted in the above table, the Applicant was also convicted of three breaches of Violence Restraining Orders, a breach of an Intensive Supervision Order (ISO), and three further breaches of an ISO. Details of the offending for which the Applicant was sentenced to are explained in the sentencing remarks of Deane DCJ. This offending includes threats to kill made whilst brandishing a nail gun, assaulting another complainant in a public place in front of the complainant's wife and child, and a road rage incident during which the Applicant smashed the window and a side mirror of the victim's car with a wooden bat and receiving a stolen vehicle which was stored in his garage (G10, pages 83-86):

On 2 November 2004 in the District Court at Perth you were convicted of a breach of an ISO imposed on you on 7 May 2003 for 18 months, which in turn you had been placed on for a breach of a CBO imposed on new on 22 March 2001, again for 18 months. These orders related to one count of common assault, one count of damage, one count of receiving, one count of threatening words and also a breach of suspended imprisonment order for 18 months, which was suspended for 18 months, which was imposed on you on 22 March 2000 and one for one count of threat to kill and one count of assault.

As a result you were placed on a further ISO for 12 months. You have breached that order, the current order, because today in this court you have been convicted on your own confession of three counts of breaching violence restraining orders, or a violence restraining order. Therefore you come to be sentenced in relation to all of the offences I have just mentioned.

The facts in relation to the matters for which you were originally placed on orders are that on 17 December 2000: the complainant and his wife went to an address in Cloverdale, apparently having been called there by the complainant's sister-in-law, due to a domestic situation which it would seem involved you. At the address you confronted the complainant and asked him to leave. He moved to a footpath and then went to a neighbour's house nearby.

A short time later he returned to the footpath outside the home where you were and you met him there. You had a discussion, during which you said you would shoot the complainant and that you would fetch a gun to do so. You in fact went back into your garage and selected a nail gun. In the meantime, the complainant walked to a neighbour's drive, as he was very frightened about the threat you had made.

About five minutes later you returned to the driveway area outside where the complainant was and he saw you with the gun. On the driveway you appeared to the complainant as if you were going to strike him and so he put his arms up to protect his face. You told him you were not going to hit him but rather you were going to shoot him. You used your right arm, which was holding the object, to hit the complainant in his hip area. He moved away and once more, you stated you were going to shoot him.

You then proceeded to walk up to the complainant and when he grabbed hold of you, you both fell to the ground and commenced struggling. During the struggle the complainant felt the butt of the nail gun and its trigger and grabbed hold of it but you managed to pull it away. The struggle continued, with you using your right hand to hit the complainant in the right side of his face, causing a swelling to his cheekbone.

You managed to break free from the complainant's grasp and upon turning around to hit him, pointed the gun at him once more, stating you were going to shoot him. He immediately backed away in fear of his life. Police arrived and saw you walking out of the neighbour's yard carrying the nail gun. You walked back into your home and threw it into a garage area before the police stopped you. You were spoken to about the domestic situation and were arrested.

Relevant to a charge of assault on 16 August 2002, you were at the Ministry of Justice building in Perth having an argument with another complainant about financial matters. He walked away from you towards his vehicle to join his wife and child but you followed him and grabbed him by the shoulder. He turned around and pushed you away but you ran at him and threw numerous punches at him, striking him in the body and head. He defended himself by punching you in return. You finished on the ground, both of you, and the complainant attempted to leave by going back to his car but once more you attacked him by punching him. Police attended and you were arrested. The complainant suffered some injuries and distress as a result of the attack on him.

In relation to the charges of damages, threatening word, on 28 October 2000 you were driving your vehicle in Redcliffe. The complainant's vehicle was behind yours in the centre lane and changed lanes to overtake you. She then moved back into the right lane after that manoeuvre. You sped up in your vehicle and came within a metre of the complainant's vehicle, so she moved back over to the left lane and you pulled alongside. You then began to abuse her and swear at her. You then swerved at her car, causing her to brake and swerve away from your vehicle.

Not content with this, Mr Di-Stefano, as if it wasn't bad enough, coming up to an intersection you then pulled up ahead of her and stopped at the lights. She stopped behind your vehicle and then she saw you get out of your car and remove a wooden bat from the rear of the vehicle before approaching her vehicle. You hit the front windscreen of the complainant's car numerous times and abused her again. You smashed the window of her car and a side wing mirror. You walked away and returned to your car and drove off.

In relation to the receiving charge, when you were arrested in relation to the indictable matter regarding making threats to kill, police received information that you had a stolen four-wheel drive vehicle locked in your garage. They went to your home address and found a Nissan Patrol in the garage. You admitted in a videotape record of interview that you had received the vehicle from an unknown person in October 2000, knowing it was stolen. You said that you had been paid $100 a week to house that vehicle for this person and in fact you had driven it several times.

...

The facts in relation to the three breaches of the violence restraining order are that on 20 January this year you were served with order number 2004002420. A condition of the order was that you were not to communicate, by any means with the protected person, who it seems is your estranged or former partner, except by phone to arrange contact with the children that you had with the complainant. You were not permitted to remain on or be within 100 metres of the nearest external boundary where the complainant lived or worked.

Nonetheless, on 18 April this year at 8.30 in the morning you breached the order by being on the premises of the complainant's house in [name omitted]. It should be noted that you and the complainant, being the person protected by the violence restraining order, had at that time been separated for a number of years and the two children of the union were a four-year-old and seven-year-old child.

You breached the order again when between 18 April and 22 April this year you communicated with the complainant by sending SMS text messages to her other than for the purpose of arranging contact with the children. The text of some of the messages was both abusive and intimidating. You further breached the order on 25 April this year when at about 9 o'clock in the morning you were again on the complainant's premises and it was on that occasion that police apprehended you as you left the property.

1. Mr Gerrard also drew the Tribunal's attention to an offence committed early in the Applicant's criminal history, and the corresponding sentencing remarks of Franklyn J (Exhibit R3, paragraph [26]; G12, pages 104-105). His submission, which the Tribunal agrees with, was that the Applicant's criminal history was "bookended" by offences against women, starting with the offence of "breaking and entering with intent" and "stealing", and culminating in the offences for which he is currently serving a term of imprisonment, including indecent assault. In his sentencing remarks of 30 October 1985, Franklyn J stated:

The facts so revealed as giving rise to these offences are that on the night in question, after going for a training run around [name omitted], you went to a recently constructed dwelling nearby, the dwelling of [name omitted], looking for odd pieces of building material. Whilst there, you saw over the fence and through an open window of [name omitted's] flat, a nude woman and a man dressing. You went to the adjoining premises hid by the window to watch the woman, and whilst there, saw the man give her money and saw her put it into her bag. You saw him then leave the premises and went to the front of the premises and where you saw him leave in his car. You then returned to the window to find it closed and the lights off and then went to the rear of the flat, located an open window covered with a flyscreen, removed the flyscreen and entered. Once inside, you went to the room in which you had seen the woman, opened the door, entered, and commenced to search in the dark for the bag. Whilst doing so, the woman called out and you told her you only wanted the money. You found the bag and took the money from it. There was some conversation between you and the woman and as a result of which you went to the kitchen and there found two towels, put one around your face to conceal it and returned to the bedroom where you bound the woman's hands with the other, your reason for so doing being, according to your evidence, that you were afraid she might run away and also because it would give you more time to go. There I am quoting as it appears from the evidence.

You then stayed with her for a period until you heard someone arrive at the flat, when you jumped out of the bedroom window and ran away.

1. Paragraphs 13.1.1(1)(a) and (b) of Direction no. 79 provides that violent and/or sexual crimes are viewed very seriously, including crimes of a violent nature against women. The Applicant's convictions on 19 May 2017 for "unlawful and indecent assault", committed late at night against a 19 year old female victim were both violent and sexual and the Tribunal views them as being very serious offences. The other offending described in the Sentencing Judges comments above should also, in the Tribunal's opinion, be viewed very seriously, including threats to kill made whilst brandishing a nail gun, and assaulting a victim in a public place (outside of the Ministry of Justice building) in front of the victim's wife and child. Other violent offences were committed by the Applicant against women, including a road range incident during which the Applicant smashed the victim's window and a side mirror of her car with a wooden bat, and the breaking and entering offence described above where the Applicant bound the victim's hands with a towel.
2. Paragraph 13.1.1(1)(c) of Direction no. 79 provides that crimes committed against vulnerable members of the community "such as the elderly and the disabled" are serious. Whilst women are not included as examples of vulnerable members of the community in Direction no. 79, women who are the subject of gendered violence, are most certainly vulnerable, as identified by Deputy President Dr Kendall (now Kendall J) in XFKR and Minister for Immigration and Border Protection [2017] AATA 2385 at [45]:

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 send a message to those 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.

1. These comments have been cited with approval in other Tribunal decisions including QSBL and Minister for Home Affairs [2018] AATA 2074 at [59], ZTGP and Minister for Home Affairs [2018] AATA 3518 at [99] and NBCM and Minister for Home Affairs [2018] AATA 2387 at [52]- [53]. In particular, the Tribunal views the indecent assault against a

19 year old female victim as an act of gendered violence against a vulnerable victim, and should be viewed as being very serious. For these reasons, offences for breaching violence restraining orders, which the Applicant has been convicted of on 3 occasions in 2005, and a further 3 occasions in 2006 are also serious because they are in place to protect women (and also children) from domestic violence. 2. Paragraph 6.3(3) of Direction no. 79 is also relevant in that examples of a "serious crime" include crimes of a violent or sexual nature against women or children. It states that persons who commit these crimes should generally expect to forfeit the privilege of staying in Australia. This principle is applicable to the Applicant's situation, given his most recent convictions for unlawful and indecent assault which involved violence with the Applicant putting his gloved hand over the victim's mouth, forcing her back, and then pulling her from her car by her hair after "grabbing" her breast and groin. 3. Applying paragraph 13.1.1(1)(d) of Direction no. 79, on 19 May 2017 the Applicant was sentenced to an effective term of imprisonment of four years by the District Court of Western Australia for the two offences of "unlawful and indecent assault" and "robbery". The circumstances of these offences were violent and consequently the offence is serious, regardless of the sentence imposed. Indeed, the Sentencing Judge noted that the offending involved "sustained violence" and that "the violence consisted of sexual violence and an assault on her [the victim]". However, this was not the Applicant's first term of imprisonment. He was sentenced to 12 months imprisonment in 1996 for the offences of "stealing (m/vehicle)", "receiving" and "burglary and commit offence", and was also sentenced to numerous suspended terms of imprisonment, as set out in the above table. Sentences of imprisonment are imposed by the courts as a last resort and reflect the serious nature of the Applicant's offending.

1. With respect to the frequency of the Applicant's offending and any trend of increasing seriousness (paragraph 13.1.1(1)(e) of Direction no. 79), the Applicant has been convicted of over 70 offences in a 30 year period. It would be fair to say that his offending has been fairly consistent throughout this period, and he has not been deterred by fines, community based orders and suspended sentences, nor by terms of imprisonment. He has committed a range of offences including assault, indecent assault, weapons offences, breaches of restraining orders and other court imposed and community orders, and stealing and receiving offences, and driving offences. Overall, there seems to be a continuing trend, rather than an increase in seriousness. However, the Tribunal notes that the Applicant's most recent two convictions for "unlawful and indecent assault" and "Robbery" do involve an escalation in seriousness, with the Sentencing Judge describing the Applicant's offending as "predatory", "carried out with a degree of brutality" and which "would have been traumatic and terrifying for the victim" (G8, page 50).
2. With respect to the cumulative effect of repeated offending (paragraph 13.1.1(1)(f) of Direction no. 79), the Tribunal will often consider whether offending over a period of time by an Applicant places a burden on the resources of police, corrective services, and the courts. The Applicant's repeated offending over a 30 year period of time would certainly have placed such a burden on resources and the criminal justice system.
3. There is no evidence that the Applicant provided false or misleading information to the Department, including by not disclosing prior criminal offending (paragraph 13.1.1(1)(g) of Direction no. 79), and so this paragraph is not applicable.
4. Paragraph 13.1.1(1)(h) of Direction no. 79 is relevant because it requires the Tribunal to consider whether the Applicant has re-offended since being formally warned that further offending may affect his migration status. The Applicant has continued to offend after receiving two written warnings on 18 November 2002 (G16, page 120), and 31 January 2012 (G15, page 119). As noted in the background section above, the Applicant signed acknowledgments that he received both of these warnings. After receiving his first warning on 18 November 2002, the Applicant committed a further 25 offences, and following the warning dated 31 January 2012 the Applicant committed a further 14 offences

(G6, pages 30-31). Thus warnings appear not to have had any deterrent effect on the Applicant, who continued on to commit a total of 39 further offences after receiving his first warning. 5. Paragraph 13.1.1(1)(i) of Direction no. 79 is also not applicable because the Applicant is not in immigration detention, and therefore has not committed any crime in immigration detention. There is no evidence of any prison charges or poor prison behaviour, and an immigration report prepared on 6 June 2017 (G14, pages 114-115) reported no issues with the Applicant's behaviour in prison. 6. Taking into account the above discussion, on balance, the Tribunal finds that the nature of the Applicant's offending is very serious and strongly weighs against the revocation of the cancellation of the Applicant's Visa.

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2 of Direction no. 79)

1. A decision-maker should also have regard to the following principle, described in paragraph 13.1.2(1) of Direction no. 79 as follows:
   • (1) 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).
2. Paragraph 6.3(4) of Direction no. 79 is also relevant, and provides as follows:

(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.

1. In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage at paragraph [111] from Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]- [43]):

An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.

1. In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: "...there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational." Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a "rational and probative basis".
2. Applying paragraph 13.1.2(1)(a) of Direction no. 79, the Tribunal finds that the nature of harm that could result if the Applicant is to reoffend could potentially be very serious, particularly with respect to sexual and violent offending, which has the potential to harm victims physically, as well as psychologically. The victims of the Applicant's offending are diverse. For example, they include his former partner (who was protected by the violence restraining orders which the Applicant breached), the 19 year old female victim, the woman who was the subject of the road rage attack where the Applicant used a wooden bat, the man whom the Applicant assaulted outside of the Ministry of Justice, the woman he robbed after breaking into a house, and the man he threatened to kill with a nail gun. Thus, if the Applicant continues to offend, he would not simply pose a risk to specific members of the community, but to members of the community in a broader sense, who could suffer physical and psychological injuries.
3. The use of a nail gun and a wooden bat by the Applicant, together with the Applicant's convictions for possessing unlicensed firearms are also concerning, because the use, possession and/or availability of such weapons increases the risk that a member of the public could suffer serious physical injury or even death, as well as resulting in psychological injuries.
4. The Tribunal is also concerned that the Applicant has numerous convictions for driving offences, including 4 offences involving stealing a motor vehicle (in 1993, two in 1996, and the robbery offence in 2017), as well as reckless driving (1994), driving contrary to the conditions of an extraordinary licence (2009 and 2013), driving whilst disqualified (2013), and no authority to drive (2017). These are only a selection of the Applicant's driving offences. Also, his conviction for "Robbery" in 2017 involved the Applicant stealing a motor vehicle, which he initially had difficulty driving. The Tribunal also takes offences involving driving and motor vehicles seriously, and notes the serious harm, in terms of injury or death, that road users can suffer as a result (see, for example, this Tribunal's decision in Morris v Minister for Immigration and Border Protection [2018] AATA 3374 at [65]- [66], and Wang and Minister for Immigration and Border Protection [2014] AATA 89 at [7] where Senior Member Bell noted the purpose of such laws, including laws against driving while under a suspended licence, or while disqualified, are to "protect users of the road" and that those "... laws go to the essential safety of the community" ).
5. The Tribunal will now consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community (paragraph 13.1.2(1)(b) of Direction

no. 79). 6. In a statutory declaration dated 2 December 2011 (G22, pages 156-159), which was made in response to the notice of intention to cancel the Applicant's Visa dated 22 September 2011, the Applicant stated, at paragraph [24] (G22, page 159):

I am very regretful about what has happened in my past, and deeply sorry about my offending. I know that the circumstances which led to my offending - including the problems that I was having in my personal relationships at that time and the physical and mental health issues I was having - have now evaporated and are no longer an influence on me. I know also that I have matured, and my behaviour and attitude have changed and I no longer have any inclination to offending. I am interested only in having a quiet life here with my partner and family, and informing a relationship with my children as they grow older.

1. However, despite these stated intentions, the Applicant was subsequently convicted of approximately 14 further offences. The Applicant explained these subsequent convictions as occurring during a period of homelessness when he was living in his vehicle, and suffering from physical conditions (transcript, pages 47-48). He stated that he had been robbed himself on two occasions during this period, and admitted to having stolen property and possessing a point 22 calibre rifle during that time. He admitted during this time putting false number plates on the vehicle, and being caught driving when he was disqualified (transcript, pages 47-48).
2. The Applicant submitted to the Tribunal at the hearing that he will not reoffend. The following exchange at the Tribunal hearing is relevant (transcript, page 20):

SENIOR MEMBER: ...if you are able to stay in Australia, one of the things that I have to consider is whether you are at risk of reoffending. Are you able to comment on that?

MR DI STEFANO: Dr Evans, I made a vouch to my mum. I cannot recall exactly but it would have been about 10 or more years ago. I have a - not a precise recollection but I can only put it down to coincide this with when I was given - I believe Mr Gerrard has mentioned it, I have been given two warnings before. So I believe it would have been maybe either the - on the first warning or the second warning that I did a - I did a vouch to my parents I was going to change and changing I did thanks to a partner which I was with at that time in the relationship, I [sic] wonderful person. Unfortunately, I'm not with that person anymore.

I wasn't, since approximately about 2014, coinciding about one year before my arrest in 2015. So whether that had an impact on my state of mind, I don't know. In my head for some time but I put - but I - I was in the - but I was reconstructing my life. I have a new partner. And so I was doing the right thing, leaving in an honourable way. I was not doing any - I was not doing anything that it can be deemed unlawful or illegal in any way, shape or form any given time. I must confess while I broke away from most of the psycho people that I knew I did not entirely break away from them. On the day it was a situation gone wrong - terribly wrong when initially I just talked to - provide help to a person. That's all I would like to say.

1. This explanation is of concern to the Tribunal. Despite the Applicant's stated promise to his mother after receiving the first or second warning that he may be liable to Visa cancellation if he continued to offend, he, by his own admission, did not manage to entirely disassociate from negative peers, and continued to commit offences. In the excerpt from the transcript above, the Applicant also referred to his most recent offences of two counts of unlawful and indecent assault and robbery as a "situation gone wrong" when he was attempting to "provide help to a person". The Applicant's failure to take responsibility for this offending, and his lack of insight, is of concern to the Tribunal in terms of his likelihood of reoffending, and is discussed in further detail in the following paragraphs of this section.
2. The Respondent has submitted that the Applicant has incurred a large number of convictions over an approximate 30 year period which, "cover a broad spectrum of offending behaviour and clearly demonstrate a thorough disrespect for the law." The Respondent continued on to submit that "The pattern and repetition of similar offences is clearly concerning as is the continual disregard of court orders as reflected in the large number of breach convictions" (Exhibit R3, paragraph [33]). The Tribunal agrees that the Applicant's criminal history comprising over 70 offences across an extended period of 30 years, does tend to suggest that fines, driving disqualifications, community based orders, suspended imprisonment orders, sentences of imprisonment, judicial warnings, and the two formal warnings that his Visa may be cancelled if he continued to offend (dated 18 November 2002 and 31 January 2012), did not have a deterrent effect. Nor has the Applicant's offending abated with the maturity that often comes with age. Whilst such a history is not in favour of an exercise of discretion in favour of the Applicant, it must be considered together with other relevant evidence, for example, information on rehabilitation.
3. The Tribunal was also concerned at the Applicant's attempts to minimise his offending at the Tribunal hearing. In his opening statement to the Tribunal, the Applicant described himself as "a captive of a regressive system in many ways" (transcript, page 14), "I have been convicted of something that leaves a lot to question...I feel that I have been...persecuted further" (transcript, page 15). He also described himself as a victim, stating that, "I've been a victim myself in numerous times. I've been a victim maybe more times than I ever been (sic) found to be a perpetrator" (transcript, page 15); "I feel I've been kept a captive in a ... control environment. Legally deprived" (transcript, page 16), and "I've been restricted of the right to scream loud, to vouch loud for myself. I can now only live in hope and compassion - on compassionate human grounds" (transcript, page 17). The Tribunal understands from these and other statements, that the Applicant is finding his latest term of imprisonment to be a difficult experience, which may have a deterrent effect.
4. However, in addition to these general comments made by the Applicant that he is himself a victim, the Tribunal is particularly concerned that the Applicant minimised his offending behaviour for the offences for which he is currently imprisoned, being two counts of "unlawful and indecent assault" and "r_obbery_", and showed a lack of appreciation for any wrongdoing. The Applicant provided the following explanation of the offences for which he is currently serving a sentence of imprisonment (transcript, pages 43-45):

MR GERRARD: Right. So you had used meth, and you had had a bout of anxiety?

MR DI STEFANO: The visitors that visited me concorded me into - I got drugged up. I got drugged up. I never made any of this confession of sustaining my defence. I don't know that I'm wrong to myself. I should have, but yes, that was the case. As a result of it, I just felt uneasy, I felt unwell, I was getting anxious. So something was - I was unwell. I can put it to you. I was scared perhaps and I left my house simply to go from corner to corner for a walk, which it will take two minutes at the most, time it, on any given day. And when I went out, I think I was on the road. I'm not sure if I was on the road, on the footpath, but I nearly got run over.

...

I did a walk about 100 metres which is at the back of the house by the - by the edge of this road which is a primary road, busy, normally almost equally day or night, many cars passing by all the time. The location near the ..... as you know, it's very popular. As I was walking on the footpath, I was gradually approaching what I believe that it was a car parked with the headlights on. I don't think the engine was still running. Not until I walked and I was passing by the vehicle side by side from distance, I'm only about a short distance, maybe a car length or less. The car was running, windows down, headlights on. Not even the normal lights. Headlights actually. Headlights on. The spotlights on. And an individual at the wheel slumped forward and I - I had the pleasantry just - I don't know if it's - whether ..... of obligation where there is existing law for - anyway I go to the point. I - my observation was someone appeared to be passed out. Sort of ..... And I'm going to march two steps to my left, I looked through and I yell at the driver. I think I may have said, "Are you okay?", or, "Are you there?", or I say, "Maybe you're lost". I yell something but there was no response of the person. The next thing, on the seat I notice a syringe. While I was in making observation of this moment, someone I heard from behind me, "Is everything okay?". I turn around and I realised that I had been watched by a guy which appeared that he would have been walking, passing by, while he was also talking on the phone. He sort of - he made his body language appear that he took time from the telephone call that he was making to yell, "Is everything okay?" I said, "I don't know". And while he was doing so, I was pulling out a glove, put a glove and pick the syringe. He very much had part view of all this moment, but he walked away, and I went around with the syringe in my hands. I only had one blue latex on my hands, not both hands. And I simply shook, touch and nudge the - the person. Turned out to be a female and she pretty much almost slide to the - to the - to her left. So initially she was on the steering wheel, slid forward. Up to the point I was next to the driver's side on the outside. The window was completely down so I think that it's not the same story given or accepted. Two ..... cars driving, passing by. When I shook the person the second time, she just - by the way she had a fag in her mouth as well whilst all this was happening. So I assumed she would have been stopped at some time, she would have rolled - her hand - hand rollie made tobacco, but that ..... she was smoking that thing. At some point, she would have probably passed out still with that thing in her mouth. So when I actually very much shook her she leaning backwards, she just sort of wake up, come back to her senses, still she had that fag in her mouth hanging off her lips. I was simply taking note of what was I witnessing. I was simply assisting someone. But forgive me, I'm returning my anger here. I wasn't - I didn't leave my home with the intention to go and find a young female to abuse, as the prosecutor put it to the jury. And I am arming myself with latex gloves. No. None of that was ever in my mind, my dear Mr Gerrard.

MR GERRARD: Well, that, of course, that is what the jury found and that is what the judge found?

MR DI STEFANO: No. The jury did not believe my story. The jury believe exactly as in you statement. When she got out of the car, she got out of the car with a knife, a chef knife in her hands and she was worse than me, meaning that the appearance of her there was the one in my defence tried to go away when my knee just - I don't know the definition, the medical definition, but anyway I was not in a position due to a - a knee condition to run away. So whether she was coming forward with a knife, I was retreating myself to the best of my ability leaning against the car. We went, literally we went around the vehicle because she wanted - she wanted a fix which I was refusing to give it to her.

...

MR GERRARD: She wanted a what, sorry?

MR DI STEFANO: She wanted her fix, her syringe. I'm sorry for raising my voice. As we went walking, I was walking backwards away from her around the vehicle. We nearly got from side to side all the way until I saw the opportunity to swung around. The door was open, lights on, engine still running. I made a quick dash. I took myself in and I tried to drive myself away. I was having to figure this because the car was automatic. I thought it was a manual. I was looking for - it took me a moment before I got the car going. That moment, it seemed an eternity knowing that I had a person which appeared in a - in a drug induced state. I was not the one after someone. I was being pursued, Mr Gerrard.

MR GERRARD: So your evidence is that you used meth, you went for a walk at quarter to 2 in the morning... carrying blue latex gloves. You found this person passed out. You put on a glove to retrieve a syringe?

MR DI STEFANO: Yes.

MR GERRARD: She attacked you with a knife and ---?

MR DI STEFANO: Yes.

MR GERRARD: To get away, you jumped in her car and drove off?

MR DI STEFANO: I unlawfully ---

MR GERRARD: And then when the police stopped you, you ran away?

MR DI STEFANO: Yes.

1. The version of events given to the Tribunal was consistent with the version given by the Applicant at his trial. In his sentencing comments, Stevenson DCJ rejected the Applicant's version of events, stating as follows (G8, page 45):

... I accept the evidence of the victim and reject your evidence as being both fanciful and fantastical. It was an attempt by you knowing the full content of the evidence against you contained in the prosecution brief to manufacture a version of events in the hope that it would create some doubt in the mind of the jury about what had in fact happened and what you had in fact done.

1. In addition, the following exchange with Mr Gerrard during cross examination is also relevant (transcript, page 45):

MR GERRARD: You should be aware, Mr Di Stefano --- ?

MR DI STEFANO: Yes.

MR GERRARD: that this tribunal is bound by the convictions and the findings of fact made?

MR DI STEFANO: I'm sorry. I'm ---

MR GERRARD: So I put it to you ?

MR DI STEFANO: Yes.

MR GERRARD: that that is not true; that what you were found guilty of is what in fact happened?

MR DI STEFANO: I've been convicted. I have been convicted. I have been convicted of an offence.

MR GERRARD: And this is consistent with your history. You have a history of violence towards women. You have a history of stealing cars. You have a history of robbery, don't you?

MR DI STEFANO: I cannot disagree with you on this issue. I'm sorry.

MR GERRARD: Well, knowing that the tribunal has to accept those findings by the judge, this is your opportunity?

MR DI STEFANO: Mr Gerrard, I just don't need to be traumatised again. If I would have got someone by the hair back then being a fit, healthy person that I was, I mean, for God's sake, I was running marathons at then, at the time. If I grab anyone, forgive the expression, it's just for mentioning. If I grab someone, even in my condition at the moment, by the hair, I'm sure they have to leave some - some degree, some mark, some - some form of - she never appeared that she, you know ---

MR GERRARD: You're saying you're running marathons, but you also said that you had to use the car because you had conditions with your knee so you couldn't run away?

MR DI STEFANO: In that issue, in that instance, that such was the case. I saw that as the only alternative to drive myself away from it and I'm sorry for ever taking that decision. It was wrong but I did fear, I did fear for my life at one point.

1. The Tribunal is also of the view that the Applicant's version of events was an attempt at revisionism to minimise the effect of his offending. Elements of the Applicant's version of events did indeed appear to be "fanciful and fantastical", including why the Applicant would go for a walk at two am in the morning carrying latex gloves, and the existence of the syringe and knife which were never located. The Applicant's explanation that he stole the car in fear for his life because the victim was chasing him with a large knife, and that he could not run away due to a knee complaint, whilst also being able to run marathons at the same time (transcript, pages 45-46), is also difficult to accept. The evidence of the police officer who chased him, as noted in the sentencing remarks, was that when police located the Applicant in the stolen car, he sprinted for approximately 250 metres from a police officer whom the sentencing magistrate described as "a fit young officer" (G8, page 49). The Tribunal does not accept these explanations as credible, and to accept them would require the Tribunal to go behind the findings of, and the convictions imposed by, the District Court, which the Tribunal cannot do. More particularly, the Tribunal is concerned at the lack of appreciation of any wrongdoing, the blaming of the victim, and the Applicant's lack of insight into his offending, which may, together with other factors discussed in this section, contribute to a likelihood of reoffending in the future.
2. During his current prison term, on 16 June 2018, the Applicant was assessed to ascertain his treatment needs. The section headed, "Summary of Evidence for Program Allocation" stated as follows (SG2, pages 465-466):

Based on the current assessment Mr Di Stefano presents a high risk on the LS/RNR for general re-offending, a moderate risk on the VRS for future violent behaviour, and a moderate-high risk for future sexual offending on the combined results of the Static-99R and Stable-2007.

It is recommended that Mr Di Stefano complete the Think First Program (SO) first in order to orient him to basic treatment concepts. Mr Di Stefano should then complete the Deniers Program however, if he changes his stance regarding his sex offences, he is recommended for inclusion in the Medium Sex Offenders Program to address his sex offences. After having completed the Think First Program (SO) and the Deniers/Medium Sex Offender Program, Mr Di Stefano should then complete the Medium Intensity Program to address both his violent behaviour and his substance use.

If there are any constraints that would preclude Mr Di Stefano from participating in the aforementioned treatment programs, priority is to be given to the Deniers/Medium Sex Offender Program.

It is noted that Mr Di Stefano denies some of the facts found in the Judges Sentencing Remarks and lacks insight into his sex offences and his violent behaviour, which might impact on his willingness to engage fully in the sex offender programs and the Medium Intensity Program. However, it should not prevent him from participating in the treatment programs, he presented as willing to complete the treatment programs.

1. From 14 August 2018 to 5 December 2018, the Applicant undertook the Sex Offending Deniers' Program (SODP). The Completion Report identified treatment targets for the Applicant (SG2, page 402) including, "Self-regulation issues (Poor problem-solving, lack of consequential thinking, substance use and anger management issues)".
2. The Applicant completed this program, and the Summary and Recommendations section of the SODP Completion Report dated 22 January 2019 states as follows

In summary, he met all program objectives, made some treatment gains and was observed to gain a greater understanding of the factors underlying his offending. His recognition around his poor emotional regulation, maladaptive coping, and communication issues can be considered as treatment gains. During the program, he demonstrated improved skills in the areas of communication, perspective taking and relationship building. It is determined that he would benefit from ongoing support to assist him to continue to improve his capacity and skills to regulate his emotions as well as problem solving skills.

In Mr Di Stefano's Self-Management Plan he made limited connections of the issues leading up to the offence, however with the support of facilitators he included a satisfactory list of strategies and appropriate responses should risk factors occur in future. He was able to generate a set of warning signs for himself and for others to assist him to beware [sic] when circumstances in his life begin to deteriorate. He set a number of short and long term goals in the event he is released in the Australian community, however given that his Visa has been cancelled these do not seem to be appropriate and he has been encouraged to make further plans for when he deported to Italy. Mr Di Stefano acknowledged at the end to the program that he will need to continue to work on his SMP. This support could be provided during supervision by his CCO if he remains in Australia.

As with all changes in behaviour, continued rehearsal of new skills is required in order for these skills to be generalised and for lasting change to be effected. Therefore, it is considered that he may benefit from further counselling in the areas of emotional management, communication and relationships. This could be provided to him during supervision by his CCO if released into the Australian community on parole. It is noted however, that although his Visa has been cancelled Mr Di Stefano has stated he is in communication with the Department of Immigration with regards to him remaining in Australia. Given the likelihood that Mr Di Stefano will be deported, his outstanding treatment needs would be met through the Medium Intensity Program for which he is provisionally enrolled and that the Think First Program would no longer be required.

1. Further, the administrative note at the conclusion of the SODP Completion Report notes that the Think First program was no longer required, but that the Medium Intensity Program was still required. Thus, at the conclusion of the SODP Program, the Applicant, although making some gains, still had some outstanding treatment needs in the areas of emotional/ self-regulation, problem solving, communication and relationships, and further counselling was recommended, together with a recommendation that the Applicant should continue to work on his self-management plan.
2. The Tribunal also notes that the Applicant admitted to a history of drug use including heroin, cannabis and methamphetamine (transcript, page 24-26) and that substance use was identified as a treatment target for the Applicant under the category of self-regulation (SG2, page 402). When committing the offences for which he is currently serving a term of imprisonment, the Applicant was under the influence of methamphetamine. However, the Applicant has not completed any programs regarding substance use, nor has he undertaken any substance use counselling, which in the Tribunal's opinion, is an unmet treatment need. The Applicant's likelihood of reoffending may increase if he were to engage in further drug use. To the Applicant's credit, there is no evidence of any drug use while the Applicant has been serving his current term of imprisonment.
3. When asked by the Senior Member at the Tribunal hearing what he had learned from completing the SODP, the Applicant responded as follows (transcript, pages 21-22):

SENIOR MEMBER: What did you learn from that program?

MR DI STEFANO: I learned quite a lot. I learned quite a lot, but on the very - towards the end of the course, the facilitators - facilitators

SENIOR MEMBER: Yes.

MR DI STEFANO: course? The facilitators. There was a - it was on the very last day. Everybody were having coffee and cakes and having a good time, as a way to end the course to celebrate the achievement in participating and being part of the course all the way the through from beginning to end. After the facilitators they ask me and then spontaneously she looked at me and she just said that - I haven't - I can't remember their name, I'm so sorry. I feel bad about it. But she has never had it that complex laugh as at that moment. I got her laughing. But she said to me:

Overall, Gaetano, what did you - what as your grasp for the course?

Overall my grasp was next time if I ever come to a similar or any similar situation -

mind my own business and walk straight and away faster than approaching it - a potential situation.

Meaning mind my own business. Sometimes people do mistakes in circumstances that entirely sort of say a situation in appearance can potentially turn into a completely disastrous secondary case. I'm making a comment as to how I got involved in it. I think that part of the course was about avoiding - was about, in a simpler lines, take a moment to reflect before you get involved in something that's beyond your capacity to anticipate what potentially may bring up. And then there was an eye opener. It should be like a - what I learned in the course was not so much learning. It was things that was already part of me - part of every decent human being. It was just a reminder to adopt the skills when most of need.

1. This explanation from the Applicant does cause some concern for the Tribunal. This is because after completing a Deniers' Program, the Applicant appears to still be trying to minimise the offending for which he is currently serving a term of imprisonment by maintaining that he was trying to offer assistance to the victim, and that in the future he would not get involved. In addition to the outstanding treatment needs identified by the program facilitators in the SODP Completion Report, this reflection from the Applicant further suggests that he has not accepted responsibility for, nor does he appreciate the seriousness of his offending.
2. The Applicant also completed a Certificate II in Security Operations in 2009 (G45, page 213; G46, page 214) which may assist in his reintegration into the community in terms of finding employment.
3. On 21 November 2017, the Applicant's first parole review, the Western Australian Prisoners Review Board (PRB) denied the Applicant parole. The reasons for decision of the PRB were recorded as follows (transcript, page 407):

Your release plan does not include any way to adequately address your unmet intensive treatment needs.

Your release plan includes no confirmed suitable accommodation.

Your unmet treatment needs (sex offending, violence and substance abuse) as evidenced by the nature of your current offences and your criminal history. No recommendations have been made by Prison Assessors for treatment interventions due to your appeal of your convictions.

At the time that the Applicant was denied parole he had not been assessed for treatment intervention and he had therefore not been afforded the opportunity of completing any treatment programs such as the SODP, and so the Tribunal does not draw any adverse inference from the PRB's denial of the Applicant's parole.

1. The Applicant also has the support of his brother, Roberto Di Stefano, which may be a protective factor for the Applicant if he is released into the Australian community. In his evidence to the Tribunal, the Applicant's brother said that he would like to help the Applicant seek medical assistance, and he also indicated that he would be an emotional support to the Applicant (transcript, page 59).
2. The Applicant's friends, Michael Kroll, and Mr and Mrs Watson, may also be able to offer some emotional support to the Applicant if he were to remain in Australia. The Tribunal further notes Mr Watson's evidence that he had "been taking kids off the street for 40-odd years", and that he would employ the these young people in his catering business, as he previously did with the Applicant (transcript, page 61). Consequently, Mr Watson is likely to be a pro-social support for the Applicant.
3. The Applicant's health issues are detailed below in paragraph [133]. These health issues may decrease the physical ability of the Applicant to offend in a violent or sexual manner, however there is no specific medical evidence regarding this.
4. However, based on the evidence before it, the Tribunal finds that there remains a likelihood that the Applicant may reoffend. Based on the Applicant's initial prison treatment assessments, together with the evidence and submissions discussed above, that likelihood is, on the balance of probabilities, in the moderate to high range. This evidence includes the Applicant's 30 year criminal record with repeat offences involving violence, and culminating in unlawful and indecent assault. Penalties, including sentences of imprisonment have not abated the Applicant's offending, nor did two formal warnings. Although the Applicant made some gains as a result of his completion of the SODP, any gains made by the Applicant in these programs were not measured by any formal psychological assessment, and, as identified in the SODP Completion Report, the Applicant nevertheless still has outstanding treatment needs which have not been addressed. The Tribunal is concerned that the Applicant tried to minimise his offending behaviour at the Tribunal hearing. The lack of insight displayed by the Applicant in his attempts to minimise his offending raises concerns about his rehabilitation and the future likelihood of him reoffending if he were released into the Australian community.
5. Further, with regard to paragraph 6.3(4) of Direction no. 79, the Tribunal finds that the circumstances of the Applicant's convictions, particularly those in relation to the unlawful and indecent assault committed against a young female victim late at night, and the serious nature of the harm that can result to victims of this type of offending, means that even a moderate likelihood of reoffending in the future presents an unacceptable risk.
6. Based on the above discussion, the Tribunal finds that there is a moderate to high likelihood of the Applicant reoffending should he be given a further chance to be released back into the Australian community.
7. On balance, the Tribunal finds that this consideration weighs against the revocation of the cancellation of the Applicant's Visa.

Second primary consideration: The best interests of minor children in Australia (paragraph 13.2 of Direction no. 79)

1. The relevant paragraph of Direction no. 79 with respect to the interests of minor children is paragraph 13.2, which states:

(1) Decision-makers must make a determination about whether revocation is in the best interests of the child.

(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.

(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

(4) In considering the best interests of the child, the following factors must be considered where relevant:

a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

c) The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;

e) Whether there are other persons who already fulfil a parental role in relation to the child;

f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

1. The Applicant has two adult children (Exhibit A1). These children are relevant to the Applicant's ties to the Australian community, and will be discussed in that section later in these reasons for decision.
2. The delegate's statement of reasons for the decision not to revoke the mandatory cancellation of the Applicant's Visa dated 17 January 2019 noted that Departmental records indicate that the Applicant also has two adopted children. These children were also mentioned in the Applicant's written submissions (Exhibit A1). One child is now aged 18, however the other is a 15 year old minor (G3, page 14). The delegate further noted that the Applicant made no representations about these adopted children, and that the Applicant had not provided any detail about his relationship with the children.
3. At the time of the Tribunal hearing, the Applicant stated that he did not have a recollection of these adopted children. Additionally, there is no other reference to these children in any of the other evidence before the Tribunal. In the absence of any evidence or submissions about the Applicant's relationship with this 15 year old child, it is very difficult for the Tribunal to consider and evaluate the factors in paragraph 13.2(4) of Direction no. 79, and to reach a conclusion informed by evidence.
4. The Tribunal does acknowledge that due to an injury, the Applicant has some difficulty with his memory. The Tribunal therefore cautiously finds that it is likely that the best interest of this 15 year old adopted child would lie with the Applicant's Visa not being cancelled however, the Tribunal gives this finding little weight.

Third primary consideration: Expectations of the Australian community (paragraph 13.3 of Direction no. 79)

1. Paragraph 13.3(1) of Direction no. 79 provides:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.

1. Paragraph 6.3(2) of Direction no. 79 sets out the following principle:

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.

1. Further, paragraph 6.3(3) of Direction no. 79 relevantly states:

A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as 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.

1. The relevant case law regarding the expectations of the Australian community was summarised by Member Burford in Le and Minister for Home Affairs [2018] AATA 4126 at [130]- [133] (Le), and subsequently in Nathanson and Minister for Home Affairs [2019] AATA 642 at [130]- [145] (Nathanson).
2. Although the decisions discussed by Member Burford in Le and Nathanson, discussed below, concerned Direction no. 65, they are equally applicable to Direction no. 79. This is because there was no change to the wording of the paragraph concerning the expectations of the Australian community in Part A, B or C when Direction no. 65 was updated to become Direction no. 79, which commenced on 28 February 2019.
3. In Nathanson, Member Burford stated as follows:

130. In the case of YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY), Mortimer J made the following comments:

[76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the 'expectations' about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to 'tolerance') the Australian community's 'expectations' are defined only in one particular way: namely, that the Australian community 'expects' non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese v Minister for Immigration & Border Protection [2016] FCA 348; 248 FCR 296 at [64]-[66]).

131. In YNQY the Court was, in part, considering whether the Tribunal erred in failing to make findings and/or take into account as a primary consideration the expectations of the Australian community.

132. The passage referred to by Mortimer J above in Uelese v Minister for Immigration & Border Protection [2016] FCA 348; (2016) 248 FCR 296 states as follows:

[64] In my opinion, the reference by the Tribunal to what the Australian community expected of the Australian Government was not a matter that required evidence but was a statement of the views or policy of the Government. The language in paragraph 6.3(2) of the Direction, that the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia, is found in a list of seven 'Principles'. There is a further reference to the expectations of the Australian community in paragraph 9.3 of the Direction where the statement is made that the Australian community expects non-citizens to obey Australian laws while in Australia. It states that where a non-citizen has breached, or where there is an unacceptable risk that they will breach, this trust or where the non-citizen has been convicted of offences in Australia, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate, the paragraph states, 'simply because the nature of the character concerns or offences were such that the Australian community would expect that the person should not continue to hold a visa'. The paragraph ends by stating that decision-makers should have due regard to the Government's views in this respect.

[65] ... In my opinion it is open to the Minister to make a statement of the Government's views as to the expectation of the Australian community and for the Tribunal to act on that statement.

133. Deputy President Rayment, QC in the case of Kumeroa and Minister for Home Affairs [2018] AATA 3744 at [17] also applied YNQY.

1. Member Burford further explained, at [134]-[136]:

The Tribunal notes that both Direction no. 79 and the relevant authorities on the application of Ministerial Directions to decisions under s 501 of the Act make it clear that the Tribunal must take into account the primary and other considerations relevant to the individual case. Direction no. 79 specifically notes that both primary and other considerations may weigh in favour of either to revoke or not to revoke a mandatory cancellation of a visa (paragraph 8(3) of Direction no. 79). While Direction no. 79 states that a primary consideration should generally be given more weight than the other considerations, the authorities make it clear that this will depend on the individual circumstances and will still require the Tribunal to take into account both the primary and other considerations and to give each appropriate weight in reaching a decision.

The Federal Court's decisions in YNQY and Uelese do not raise the expectations of the Australian community to the status of a determinative consideration. The approach outlined by the Federal Court highlights that it is open to the Minister to make a statement of the Government's views as to the expectations of the Australian community and that Direction no. 79 makes such a statement. Applying YNQY and Uelese, the Minister makes this statement in the principle expressed with respect to 'serious crimes' in paragraphs 6.3(2) and more generally in 13.3(1) of Direction no. 79. Applying Uelese, paragraph 13.3(1) of Direction no. 79 directs that the Tribunal should have due regard to the Government's views in this respect.

In Afu and Minister for Home Affairs [2018] FCA 1311 (Afu) at [85] Bromwich J stated the following:

The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65 reproduced above. The Tribunal was required to give effect to those norms, which is precisely what it did.

1. Member Burford, at [138]-[145], further analysed how the Tribunal has applied the decision of Mortimer J in YNQY as follows:

138. The Tribunal has considered the effect of Mortimer J's judgment in a number of decisions. In some of those cases the Tribunal has found that the decision in YNQY, which the Tribunal is bound to follow, in effect requires the Tribunal in all cases to take this primary consideration of the expectation of the Australian community as being that the visa would be cancelled or not granted.

139. Alternatively, the Tribunal has considered that her Honour's comments, in particular the operation of the 'kind of deeming provision' (YNQY at [76] - see [130] above) by operation of which the expectation of the community is to be taken as being against revocation of the cancellation, is limited to cases referred to in the third sentence of paragraph 13.3(1) of Direction 79, namely, cases where 'the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa'.

140. In the case of Margach and Minister for Home Affairs [2019] AATA 353 (published 5 March 2019) Deputy President Forgie, having quoted [76] and [77] of Mortimer J's judgment in YNQY, stated:

[86] I respectfully do not agree with the statement, if it be intended to be of general application, that it is inevitable that paragraph 13.3(1) would weigh against revocation. Paragraph 13.3(1), with which I am concerned and which was the subject of YNQY, is quite specific in its statement that the Australian community expects noncitizens to obey Australia's laws while in Australia but leaves open, for example, what is an "unacceptable risk" that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa.

141. Deputy President Forgie goes on to state (at [86]):

Paragraph 6 generally, and paragraph 6.3 in particular, must be borne in mind. That is particularly so when regard is had to the general statement in 6.2(1)...

142. Further, she goes on to highlight that in applying the principles the Tribunal must have regard to the evidence (at [86]):

Granted that the principles are of critical importance, the determination of what is unacceptable must have regard to the evidence.

143. Member Eteuati, in Doan and Minister for Home Affairs [2019] AATA 169 at [153] to [154], stated the principles which emerge from the case law as follows:

153. ... First, the concept of community expectations is not a matter to be measured as though it is a provable fact. It is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is an assessment of community values made on behalf of the community.

154. Secondly, the government's views in relation to community expectations are to be found in Direction 65 itself. It is open to the Minister to make a statement of the government's views as to the expectations of the Australian community as it has in direction 65 for the Tribunal to act on that statement.

144. Member Eteuati goes on to note, at [155]:

In order to ascertain the government's views on community expectations one must consider the direction closely.

145. The Tribunal broadly agrees with this approach. The Tribunal notes that with respect to determining whether 'the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa' (the third sentence of paragraph 13.3(1) of Direction 79) close consideration of the direction indicates that where a non-citizen has committed a 'serious crime' the expectation is that their visa will be cancelled. This is the import of paragraph 6.3(2) of Direction no. 79 which was cited in the passage of Uelese to which Mortimer J was referring in YNQY. Further, Direction no. 79 provides that particular crimes or those committed against particular victims will be regarded as 'serious' or are to be 'viewed very seriously'. In circumstances where the relevant non-citizen has committed a 'serious crime' the government's view on the expectation of the community has been expressed to be that they expect the non-citizen's visa to be cancelled.

146. It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government's view as to the expectations of the Australian community as expressed in paragraphs 6.3(2) and 13.3(1) of Direction no. 79. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed by the Minister, they weigh against revocation with respect to 'serious crimes'. However, it remains for the Tribunal to determine, in all the circumstances, what constitutes appropriate weight to be given to this consideration. This will depend on the Tribunal's assessment of the totality of the relevant considerations including the primary and other considerations.

(Footnotes omitted.)

1. This Tribunal agrees with the approach of Member Burford in Nathanson. The Tribunal also notes the very recent decision of Griffiths CJ in DKXY v Minister for Home Affairs [2019] FCA 495 (DKXY), which, in the Tribunal's opinion, is consistent with Member Burford's approach and provides further clarification regarding Mortimer J's comments in YNQY. Specifically, Griffiths CJ in DKXY stated, at [32], that it was not "inevitable" that the primary consideration of the expectations of the Australian community would always weigh against revocation. His Honour explained, at [31], that:

Undoubtedly, decision-makers who are bound to give effect to the Direction are required to have due regard to the Government's view regarding community values, standards and expectations, as set out in, for example, cll 6.2 and 6.3 of the Direction, but nothing in the Direction indicates that community expectations will always favour non-revocation. Indeed, the totality of the relevant circumstances which bear upon the assessment and weighing of all three primary considerations and other considerations need to be considered, as is made clear in many clauses of the Direction...

(Emphasis in original.)

In summary, His Honour was of the view that: "The Government's views have to be taken into account and given "due regard", but so must all other circumstances which are relevant to the particular case" (at [33]).

1. Applying the comments of Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, and the other authorities discussed by Member Burford in Nathanson, as clarified by Griffiths CJ in DKXY, the Tribunal finds that the Applicant's offences include serious offences, including offences involving violence, and the sexual offences he was convicted of on 19 May 2017 (two offences for unlawful and indecent assault). The principle in 6.3(2) of Direction no. 79 states that the Australian community would expect the Applicant's Visa to be cancelled because he has committed serious crimes in Australia. Further, the offences for which the Applicant is currently serving a term of imprisonment are serious crimes of both a violent and sexual nature against a young woman, and consequently as stated in paragraph 6.3(3) of Direction no. 79, the Applicant should generally be expected to be denied the privilege of staying in Australia. Paragraph 13.3(1) of Direction no. 79 states the government's view that the Australian community expects noncitizens to obey Australian laws whilst in Australia. Although Australia may afford the Applicant a higher level of tolerance because he has lived in Australia from when he was approximately 16 years of age (paragraph 6.3(5) of Direction no. 79), that tolerance would necessarily be counteracted by the Applicant's lengthy criminal history spanning approximately 30 years. In the circumstances of the Applicant's offending, the Australian community would expect the Applicant's Visa to remain cancelled. Thus, the Tribunal finds that the expectations of the Australian community way against the revocation of the cancellation decision.
2. In determining the weight to be applied to this consideration, the Tribunal has considered the primary considerations, including the serious nature of the Applicant's offending, and the unacceptable risk of harm if he were to reoffend (particularly in a violent or sexual manner). In determining the weight to be afforded to this primary consideration regarding community expectations, the Tribunal has balanced the other considerations which weigh in the Applicant's favour, and which are discussed below, including the strength, nature and duration of the Applicant's ties to Australia and the hardship the Applicant would face if he was returned to Italy.
3. Nevertheless, the Tribunal finds that on balance, the expectations of the Australian community would be that the decision to cancel the Applicant's Visa should not be revoked. The Tribunal finds that this consideration weighs against the revocation of the cancellation of the Applicant's Visa.

1. Paragraph 14 of Direction no. 79:
   • (1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
     • (a) International non-refoulement obligations;
     • (b) Strength, nature and duration of ties;
     • (c) Impact on Australian business interests;
     • (d) Impact on victims;
     • (e) Extent of impediments if removed.

1. It is not relevant to consider international non-refoulement obligations (paragraph 14.1 of Direction no. 79) because no such claims arose in any submissions, nor on the evidence before the Tribunal.

1. Paragraph 14.2(1) of Direction no. 79 provides:

(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).

1. Relevantly, paragraph 6.3(7) of the principles section of Direction no. 79 states, in part:

(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.

1. As noted above, the Applicant is now 53 years of age, and has resided in Australia for approximately 38 years, having arrived in Australia in 1981 as a 16 year old

(G48, page 221). He has not returned to Italy, but gave evidence that he had, in the past, intended to retire in Thailand. From 2014 to 2015 he resided between Thailand and Perth because he had a Thai partner, although they are no longer in a relationship (transcript, pages 55-56). This indicates that, at that time, the Applicant was willing to live outside of Australia, albeit in a country much closer to Australia than Italy. 2. The Applicant was convicted of his first offences of "stealing" and "break and enter with intent" in the Supreme Court of Western Australia on 30 October 1985, within approximately 5 years of coming to Australia (SG1, pages 357-358). 3. The Applicant's elderly parents (who are in their eighties), younger brother, and younger sister reside in Perth, Western Australia. The Applicant also has an aunt and three cousins residing in New South Wales (G53, page 242). The Applicant's brother is married and has three children who are aged approximately 22, 17 and 13 (G22, page 158). In his statutory declaration dated 2 December 2011, the Applicant reported having a close relationship with his brother's children. The Applicant has had a difficult relationship with his parents (G22, page 158), and at the hearing he stated that his parents only recently became aware that he is serving a term of imprisonment (transcript, pages 29-30). The Applicant gave evidence that his younger sister resided with his parents (transcript, page 34). As a result of her residing with the parents, the Applicant was not certain at the hearing as to whether she is aware that he is currently serving a term of imprisonment. The Applicant's elderly parents are likely to experience some emotional distress if he is removed from Australia. Due to their advanced age, removal from Australia may mean that they never see the Applicant again. The Applicant has, however, not had contact with his parents for over two years due to his imprisonment, and the Applicant's brother and sister would be able to offer them some support and assistance. 4. The Applicant also has two adult daughters, but does not currently have contact with them. In the past, the Applicant has nominated them as beneficiaries on his superannuation (G28, page 189) and he has also paid child support (G29, page 190). At the Tribunal hearing he stated that he last spoke to his daughters approximately a month before his arrest for his most recent offences, but that he wants to reconnect with them (transcript, pages 28-29). If the Applicant is removed from Australia, it will most likely be detrimental to his recommencing a relationship with his adult daughters. As noted above, Departmental records indicated that the Applicant has two adopted children, with one being a 15 year old minor, however he had difficulty recollecting that he had adopted children (transcript, page 29). 5. Since arriving in Australia, the Applicant has made positive contributions by working in various jobs including customer service in the hospitality industry in (G43, page 209), and he has also worked as a tree lopper, machine operator, in manual labour, as well as for a ceramics store (G53, pages 258-260). He has suffered workplace injuries and in 2011 was on workers' compensation (G22, page 159). The Applicant also stated that he had undertaken volunteer work in 2004 at Wesley Mission Church in Perth, and at that time he was attending a commercial cookery course (G22, page 157). As noted above, in 2009, the Applicant completed a Certificate II in Security Operations in 2009 (G45, page 213; G46, page 214), which the Tribunal regards as positive. However, this positive contribution is somewhat diminished by the Applicant's history of offending which spans approximately 30 years. 6. The Tribunal finds that the Applicant's links to the Australian community are strong. The Australian community is likely to have a higher level of tolerance for the Applicant to remain in Australia given that he has lived in Australia from a very young age, however, that tolerance is tempered by the commencement of the Applicant's offending within five years of arriving in Australia. The Applicant has strong family ties in Australia with his immediate family (parents and siblings) residing in Perth, Western Australia. His removal from Australia may have a negative impact on his elderly parents in particular. On balance, the Tribunal finds that this other consideration weighs in favour of the revocation of the decision to cancel the Applicant's Visa.

1. It is also not relevant to consider whether a decision not to revoke the cancellation of the Applicant's Visa will have a relevant impact on Australian business interests (paragraph 14.3(1) of Direction no. 79) because no such claims arose in any submissions or on the evidence before the Tribunal.

1. There is no evidence before the Tribunal of the impact of a decision not to revoke the mandatory cancellation of the Applicant's Visa on victims or the family members of victims (paragraph 14.4(1) of Direction no. 79).

1. Paragraph 14.5(1) of Direction no. 79 provides:
   • (1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
     • (a) The non-citizen's age and health;
     • (b) Whether there are substantial language or cultural barriers; and
     • (c) Any social, medical and/or economic support available to them in that country.
2. As noted above, the Applicant is a 53 years of age, and has resided in Australia since he was 16 years of age. He has not returned to Italy since his arrival in Australia. In a statutory declaration dated 2 December 2011, the Applicant stated (G22, page 159):

... I have not been back to Italy since I left thirty years ago at the age of sixteen. I have no real connections in Italy. I have distant relatives who live there but I have no real relationship with them having not been there or spoken to them in thirty years. I don't know what would happen if I went back. I am worried that I would lose my current relationships, especially my relationship with my partner and my immediate family, who are all here in Australia. I am worried that I would also lose the opportunity to ever have a relationship with my daughters in future. I don't think that I would be able to get work if I had to go back to Italy. I think that there is a real possibility that I would become destitute if I had to go back. Going back to Italy now would be extremely difficult....

1. The Applicant reiterated this evidence at the Tribunal hearing (see also Exhibit A1). He also stated that he did not know if his parents were still in contact with any of their relatives in Italy (transcript, page 34). At the Tribunal hearing, the Applicant made mention of establishing contact with the Italian consul (transcript, page 31), however there is no evidence before the Tribunal as to the specific assistance, if any, that they would be able to provide the Applicant if he were to be returned to Italy. The Tribunal accepts that the Applicant would have minimal to no social supports from friends and family if he were returned to Italy.
2. The Applicant speaks Italian, which is his first language. In response to a question at the Tribunal hearing from Mr Gerrard, the Applicant indicated that he spoke Italian to his parents (whom he has not seen for over 2 years), but felt that he was a little out of practice (transcript, page 33). The Tribunal nevertheless acknowledges that the Applicant would face some language, as well as cultural difficulties in re-establishing himself in Italy, especially given the length of time that he has resided in Australia.
3. The Applicant also suffers from health issues which impact on his mobility, and his memory (G53, page 266). He attended the Tribunal hearing in a wheel chair. He has had a number of injuries including an injury to his left hand, right knee reconstruction surgery, and an injury to his left knee. The Applicant has also been the victim of an assault at a train station (2015), an assault in custody (2016) and was injured during an arrest (2015). These assaults resulted in memory impairment and also hand and arm injuries including difficulty moving his right arm (G53, pages 266-269; see also G26, pages 169-186 and Exhibit A1). In 2006 the Applicant was diagnosed with an adjustment disorder, and in the past psychiatric history, the Consultant Psychiatrist noted two past psychiatric admissions including a diagnosis in approximately 2003 of cluster B mixed personality disorder with antisocial and narcissistic traits (G27, page 182). In more recent medical evidence a history of self-harm and depression was noted (SG3, page 554). The Applicant has submitted that he will have no "entitlements" if he were returned to Italy (Exhibit A1), but the Tribunal notes there is a lack of evidence before it regarding the medical support that would be available to the Applicant if he were returned to Italy. Nevertheless, the Applicant's health issues are likely to be significant impediments if he were returned to Italy.
4. On balance, the Tribunal finds that the Applicant is likely to experience hardship in

re-establishing himself in Italy, particularly with respect to his age, mobility and health issues, and his lack of family and pro-social supports in Italy. The Tribunal also accepts that he may also face social and emotional difficulties because he has no immediate family in Italy. If he is returned he is likely never to see his elderly parents again, and his brother indicated that he would not be able to travel to Italy due to work and family responsibilities. 5. In summary, the Tribunal finds that Applicant would be required to overcome significant impediments if he were returned to Italy, which weighs in favour of the revocation of the decision to cancel his Visa.

1. The Applicant does not pass the character test under s 501 of the Migration Act.
2. The Tribunal has also considered whether there is another reason why the mandatory cancellation decision should be revoked, having regard to the primary and other considerations in Direction no. 79.
3. In relation to the primary considerations, the findings that the Tribunal has made regarding the protection of the Australian community (paragraphs 13.1, 13.1.1 and 13.1.2 of Direction no. 79), and the expectations of the Australian community (paragraph 13.3 of Direction no. 79) weigh in favour of the Tribunal refusing to revoke the cancellation of the Applicant's Visa (that is, affirming the Reviewable Decision).
4. Due to a lack of evidence, it was difficult for the Tribunal to reach a conclusion regarding the best interests of the Applicant's minor adopted child. If a conclusion must be drawn, this primary consideration would weigh slightly in favour of the Applicant.
5. The other considerations of the Applicant's strength, nature and duration of ties to Australia, and the extent of impediments if returned to Italy weigh in favour of the Applicant.
6. However, the Tribunal is of the opinion that the primary obligations of protection of the Australian community (including the nature and seriousness of the conduct, and the risk to the Australian community if the Applicant were to commit further offences) and the expectations of the Australian community, outweigh the other considerations that are in favour of the revocation of the decision to cancel the Applicant's Visa, namely strength, nature and duration of ties, and the extent of the impediments if removed.
7. In summary, having regard to all of the relevant primary considerations, and the relevant other considerations in Direction no. 79, the Tribunal is of the view that it would not be appropriate for the Tribunal to revoke the mandatory cancellation of the Applicant's Visa. The correct and preferable decision is to affirm the Reviewable Decision.

1. The Reviewable Decision, being the decision of a delegate of the Respondent dated

17 January 2019 not to revoke the mandatory cancellation of the Applicant's Visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.

I certify that the preceding 143 (one hundred and forty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans

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