Gage and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 326 (24 February 2020)

..essentially it was a Wednesday, you were at this nightspot in Leederville. You were dancing and you were bumped into on a number of occasions by the other person the victim. That person walked away. Both you and the victim were under the influence of alcohol. You, in fact, told the police later that you'd consumed alcohol and also had had some prohibited drugs.

The victim and two of his friends were outside the club, they stood outside the front entrance in the car park area. You went up to them and a verbal argument began. You then struck the victim once to the jaw using your right fist. You used an uppercut motion. The victim fell backwards and regrettably struck the back of his head on the asphalt pavement. You then left the scene without providing any assistance...

The victim was taken to hospital after being put in the recovery position. Obviously the victim went by ambulance. As a result of the incident that person received a fractured skull, a fractured jaw and a subdural haematoma requiring medical attention.

1. The Applicant pled guilty to this offence and received a term of imprisonment of three years and three months. This is the offence which gave rise to the mandatory cancellation of the Applicant's visa.

44. In sentencing the Applicant to a term of imprisonment of three years and three months, his Honour took account of the Applicant's cooperation with police and guilty plea. His Honour noted that the victim's injuries "were of such a nature as to endanger or be likely to endanger the life of the complainant."[31] His Honour noted that it was a single act of violence on the Applicant's part but although it was a single punch, it was "a hard punch".[32] His Honour noted that the Applicant's reaction and conduct outside the club "was out of all proportion to what had occurred earlier on during the evening".[33] His Honour noted that a term of imprisonment was a last resort and considered a submission by the Applicant's Counsel that he should suspend any term of imprisonment. Notwithstanding this, his Honour held that a term of three years and three months was appropriate. His Honour considered that it was not appropriate to suspend the sentence having regard to "the nature, gravity and extent of ... [the Applicant's] offending".[34]

45. The Applicant submitted that there were mitigating factors. This included that:[35]

The applicant did not intend to cause the victim the injuries he sustained. The applicant struck the victim once, and did not attempt to carry on with the assault, [sic] the applicant left as soon as he hit the victim.

The Applicant submitted that the Sentencing Judge accepted that he had left the scene because he had "panicked" and that his full admissions and immediate signs of remorse show that he did not intend to inflict the injuries that the victim suffered.[36]

46. Further, the Applicant submitted that at the time of the offending he was under the influence of alcohol and illicit drugs. In addition he was not coping with a personal crisis in around 2013 [edited for publication].[37]

1. The Applicant was charged with the Grievous bodily harm offence when he was identified via a traffic stop on 31 December 2016. That stop resulted in charges, summarised below, which included no authority to drive and providing false or misleading personal details.

1. The Applicant also has a number of convictions of disorderly conduct and one drug conviction.
2. The Applicant's first offence was for Disorderly behaviour in a public place for which the Applicant was convicted on 25 October 2007. The offence arose from events on

21 October 2007 where the Applicant was observed by police fighting with another male in which he threw punches.[38] He pled guilty to this offence and was sentenced to a fine of $500. 3. On 18 June 2008 the Applicant was convicted of Disorderly behaviour in a public place in relation to events which occurred on 14 June 2008. On that occasion a friend of the Applicant was fighting with another male (the victim) when the Applicant intervened punching the victim to his head and body.[39] When the victim was on his knees, the Applicant kicked the victim's head twice and the victim's body once. The Applicant pled guilty to this offence and was sentenced to a fine of $500. 4. On 20 November 2012 the Applicant was convicted of Possess a prohibited drug relating to an offence on 14 October 2012 when the Applicant was found with 0.3 g of methamphetamine.[40] The Applicant pled guilty to this offence and was sentenced to a fine of a thousand dollars. 5. On 30 July 2015 the Applicant was convicted of the offences of Disorderly behaviour in a public place and Obstructing public officials in relation to events which occurred on

31 May 2015. In this instance the Applicant approached the police aggressively while they were attempting to make an arrest.[41] He verbally abused the police. The Applicant pled guilty to this offence. He was sentenced to fines of $500 and $600 respectively.

1. The Applicant has been convicted on a number of occasions of driving without authority, driving while suspended, providing false or misleading personal details, and other traffic related offences. These offences commenced in 2008 and continued until 2017. The Applicant acknowledged before the Tribunal that he knowingly and repeatedly drove without a licence as he had initially lost his licence while on his learner's permit (and drove without an accompanying licenced driver). His evidence before the Tribunal was that he had never held a licence since losing his learner's permit.

Breach of court orders and offences against police

1. The Applicant has also been convicted of breaching intensive supervision orders, breaching community-based orders without reasonable excuse and breaching bail. As noted above, he was also convicted of obstructing police on one occasion and of providing false details or refusing to provide a name or address to police on three occasions.
2. The circumstances and seriousness of the Applicant's offending is considered further below.

The issues of going behind or impugning the convictions

1. The Applicant has acknowledged his offending was serious and expressed remorse for his actions. The Tribunal will consider the Applicant's contrition and attempts at rehabilitation further below in the context of the Applicant's likelihood of reoffending.
2. The Statement of Material Facts for the violence offences were put to the Applicant at the hearing by the Respondent. The Respondent invited the Applicant to challenge the content of the statements. However, the Applicant repeatedly stated that he plead guilty to the offences and as such had to accept that the statements reflected what had happened with respect to the offences. When challenged by the Respondent, the Applicant stated that he did not recall some of the offences occurring in the manner expressed in the Statements of Material Facts but in each instance he returned to his position that he accepted the facts as contained in the Statements as he had plead guilty to them. The one exception to this was with respect to the words used against police in the obstruct police incident which the Applicant denied were words he would use.[42]
3. The Respondent later submitted that it was not open to the Tribunal to "go behind" the facts of the offences. The Tribunal accepted that, on the authorities, this was the case with respect to the offence which gave rise to the exercise of power (the cancellation of the Applicant's visa). The Respondent suggested that the implication of the authorities was broader and that because the Tribunal could consider all the offending in the exercise of its discretion to revoke the cancellation of the visa, all the offences were the basis of the exercise of the power.[43]
4. With respect the Tribunal does not accept this submission is a correct statement of the authorities.[44] In HZCP v Minister for Immigration and Border Protection [2018] FCA 1803[45] (HZCP), Bromberg J provided a useful survey of the principles and authorities relating to whether the Tribunal can look behind or impugn a conviction or facts behind a conviction. According to the cases surveyed by His Honour, the Tribunal's assessment of the circumstances of an applicant's offending will be an important part of its consideration as to whether to exercise its discretion to revoke the mandatory cancellation of an applicant's visa. As the discussion in HZCP demonstrates, the question of whether and to what degree the Tribunal can investigate the facts underlying the applicant's convictions is an important one and has been the subject of detailed judicial consideration.[46]
5. In HZCP, Bromberg J's detailed consideration of the authorities,[47] summarised the principles to be applied as follows (at [78]):

(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact that the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.

(2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on the person seeking to challenge the facts upon which the conviction is necessarily based**.**

1. His Honour's judgment was considered and upheld on appeal to the Full Court in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 where McKerracher J stated [at 77]:

As a matter of policy, it would be highly undesirable if [the] Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based ... The adjudgment of guilt, and the determination of the punishment to be imposed as a consequence (including a sentence of imprisonment), fall within the central concept of judicial power. It is inconsistent with this principle at the heart of the separation of powers to suggest that an administrative decision-maker could come to a factual conclusion contrary to that of a court when making an adjudgment and punishment of criminal guilt which is, in turn, the precondition to that administrative decision-maker's power.

1. Applying the principles expressed in the authorities and summarised by Bromberg J, and later confirmed by the Full Court on appeal, the Tribunal can consider the entirety of the Applicant's conduct including the circumstances of the offences. However, with respect to the conviction and sentence upon which the power to cancel the visa is based, the Tribunal cannot go behind the fact of the conviction or sentence or the essential facts on which they are based. With respect to other convictions, there is a "heavy onus" on the Applicant where they seek to challenge the facts upon which those convictions are based.
2. Further, Branson J in Minister for Immigration and Multicultural Affairs v Ali (2000)

[2000] FCA 1385; 106 FCR 313 (Ali) at [43] supported the proposition that the heavy onus an applicant faces in challenging the facts on which a conviction is based will be more easily met where the applicant pleads guilty to an offence. Her Honour limited those comments to a conviction and sentence upon which the power to deport is not based. Her Honour noted:

in my view, the Act should be construed as requiring a decision-maker under s 200 of the Act[48] to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted: see Spackman at 635_. This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing._

(Emphasis added.)

1. The Tribunal considers that it is bound by the principles espoused in the authorities and in particular by the decision of the Full Court of the Federal Court in HZCP.
2. In any event, as indicated to the Respondent at the hearing, the Tribunal was of the view that the issue did not arise in this case as the Applicant accepted the Statements of Material Facts and did not seek to go behind the convictions or the findings of fact on which they were based. In the Tribunal's view he was entitled to do so notwithstanding he may not recall the events in precisely the same way. He adopted the position that it was not open to him to challenge the facts he had plead guilty to and it was open to him to do so. The Applicant was keen to impress on the Tribunal he took responsibility for those convictions fully by not challenging the facts of the offences. The Tribunal accepted that he was genuine in his attempt to take responsibility for those offences.
3. Accordingly, while the Tribunal has considered the broader question of the degree to which the Applicant is genuinely remorseful and has insight into his offending, in the context of the assessment of risk below, the Tribunal does not accept the Applicant sought to go behind the convictions by challenging the facts of them.
4. Accordingly the Tribunal finds the Applicant's offending history is as detailed in the National Police Certificate. With only minor exceptions, the Applicant did not contest the Statements of Material Facts for those offences to the extent they were available and put to him at the hearing. Accordingly, the Tribunal finds that the facts of the offences are as outlined in the Statements of Material Facts. Further, the Applicant did not challenge the factual findings of the District Court in relation to the Grievous bodily harm offence. The Tribunal adopts those factual findings.

1. Pursuant to para 13(2) of Direction No. 79, the following are primary considerations that the Tribunal must take into account in deciding whether to revoke the cancellation of the Applicant's visa:
   • (a) the protection of the Australian community from criminal or other serious conduct;
   • (b) the best interests of minor children in Australia; and
   • (c) the expectations of the Australian community.

First primary consideration: Protection of the Australian community (para 13(2)(a) of Direction No. 79)

1. Paragraph 13.1 of Direction No. 79 provides that:

(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on 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...

(2) Decision-makers should also give consideration to:

(a) The nature and seriousness of the non-citizen's conduct to date; and

(b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

Nature and seriousness of the conduct (para 13.1(2)(a) of Direction No. 79)

1. Paragraph 13.1.1(1) of Direction No. 79 sets out the factors to be considered in determining the nature and seriousness of a non-citizen's criminal offending or other conduct to date. In this regard, 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. To his credit, the Applicant did not dispute that his offending was serious.[49]
3. Paragraph 13.1.1(1)(a) of Direction No. 79 states that "violent and/or sexual crimes are viewed very seriously". Paragraph 13.1.1(1)(b) states that "crimes of a violent nature against women or children are viewed very seriously regardless of the sentence imposed". As noted above, the Applicant was convicted of one count of Grievous bodily harm, one count of Unlawful assault with circumstances of aggravation and one count of Assault occasioning bodily harm. Having regard to para 13.1.1(1)(a), these are violent crimes which are viewed very seriously. Further, in relation to the conviction for Unlawfully assaulted with circumstances of aggravation, the victim was the Applicant's estranged wife. Having regard to para 13.1.1(1)(b), this was a violent crime against a woman and is to be viewed very seriously regardless of the sentence imposed.
4. Paragraph 6.3(3) of Direction No. 79 is also applicable to the Applicant's offending, because it states that a non-citizen who has committed a "serious crime", including violent crimes against women, should generally expect to forfeit the privilege of staying in Australia. In evidence before the Tribunal, the Applicant said he found it hard to believe he had been violent against his wife. While he said he did not recall the details of the offence ultimately he indicated he accepts the facts of the offence as put to him and accepts that his actions were serious. However, he notes that they remained in the relationship for three years after these events and they remain in contact. Additionally, there were no further incidents of violence recorded though there were breaches of court orders in the period following the Applicant's conviction for the offence against his wife.
5. Paragraph 13.1.1(1)(c) of Direction No. 79 provides that crimes committed against government representatives or officials due to the position they hold, or in the performance of their duties, are serious. The Applicant has a conviction for an offence against a government official in the performance of their duties, specifically obstructing public officers. According to the Statement of Material Facts, this included the Applicant directing verbal abuse at police officers who were apprehending a friend. While the Tribunal regards that offence on its own as at the lower end of seriousness, it does reflect negatively on the general assessment of the seriousness of the Applicant's offenses and conduct.
6. Paragraph 13.1.1(1)(a) of Direction No. 79 does not limit the range of offences that may be considered serious. As can be seen from the above summary of the Applicant's offending, he has a number of traffic related convictions including eight convictions for driving without authority or driving without a licence (the Applicant's evidence was that he has never held an Australian driver's licence). Senior Member Tavoularis in Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 noted the serious nature and adverse consequences of driving offences stating at [43]-[45]:
   1. ...There is, to my mind, nothing to be said in mitigation for serious irresponsibility in the management and control of a motor vehicle.

His offences of drink driving and unlicensed driving clearly point to an incapacity to distinguish right from wrong and to otherwise conform to the rules of Australian society insofar as operation of a motor vehicle on a public road is concerned. The catastrophic potential of losing control of a motor vehicle as a result of being affected by alcohol and/or prohibited substances is the subject of constant campaigns by governments at all levels. 2. I have similar concerns about the Applicant's failure to realise the potential adverse impact arising from unlicensed driving. This Applicant (as is the case with virtually all drivers) knew or ought reasonably to have known the potentially serious adverse consequences of unlicensed driving, or driving an unregistered/uninsured vehicle, for other road-users. Whilst no expert in the motor insurance industry, it is common knowledge that there are insurance implications for unlicensed drivers and/or drivers of unregistered/uninsured vehicles who become involved in motor vehicle accidents. Again, for the Applicant to ignore this obvious and serious consequence of his driving conduct demonstrates an incapacity to distinguish right from wrong and to otherwise conform to the insurance/registration regime of the Australian community as it relates to the ownership and operation of a motor vehicle.

1. The comments of Senior Member Tavoularis above regarding unlicensed driving are applicable to the Applicant's driving record. The Applicant's record of repeat driving offences tends to indicate a disregard for legal authority and an inability to distinguish right from wrong, and more particularly an inability to appreciate the adverse consequences of this type of offending which places the safety of members of the public at risk. As noted by Senior Member Tavoularis, there are a range of implications and potential risks associated with such offending including insurance implications. It is for these reasons, and for the persistent flouting of traffic laws across an extended period that the Tribunal finds that the totality and nature of the Applicant's driving offences should also be viewed as serious.
2. Applying para 13.1.1(1)(d) of Direction No. 79, the Applicant received a term of three years' and three months' imprisonment for the Grievous bodily harm offence_._ The Sentencing Judge determined that a suspended sentence was not appropriate. While the Applicant was made eligible for parole which was subsequently granted, in the Tribunal's view, this was a significant sentence which reflects the serious nature of the offence. This is reflected in the Sentencing Judges' comments.
3. With respect to the frequency of the Applicant's offending and whether there is any trend of increasing seriousness,[50] the Applicant's first conviction, for disorderly behaviour, was in 2007. Following two disorderly behaviour offences both of which involved incidents of public violence, the Applicant was convicted of the Assault occasioning bodily harm offence in 2010 and the Assault with circumstances of aggravation offence in 2011. A further disorderly behaviour offence followed in 2015 and the Grievous bodily harm conviction was in 2017. Driving offences have been a persistent feature of his record since 2008. In the Tribunal's view, the Applicant's general offending was frequent and has continued regardless of the penalties imposed on him. Further, in the Tribunal's view, there is a trend of increasing seriousness of the Applicant's violent offending which contributes to the assessment of his offending as serious.
4. With respect to the cumulative effect of repeated offending,[51] the Applicant has a consistent history of offending since 2007 which would necessarily have burdened the resources of police, corrective services, and the courts.
5. There is no evidence that the Applicant has provided false or misleading information to the Department by not disclosing prior criminal offending, and so para 13.1.1(1)(g) of Direction No. 79 is not applicable. Further, para 13.1.1(1)(h) of Direction No. 79 is not applicable because the Applicant did not receive any prior warnings.
6. Paragraph 13.1.1(1)(i) of Direction No. 79 is also not applicable because the Applicant has not committed any crimes in prison or immigration detention. The Tribunal accepts on the evidence that the Applicant has been on good behaviour in prison and detention which is to his credit.
7. The Tribunal accepts the fact that the Applicant was suffering a personal crisis [edited for publication] and that this caused stress for the Applicant. However, the Applicant's offending commenced in 2007 and included two serious violent offences committed in 2010 and 2011, with the later offence committed against his wife. Accordingly, it is not plausible, on the evidence before the Tribunal, that the Applicant's personal crisis [edited for publication] contributed to the Applicant's offending in those instances which occurred before he was made aware of it in 2015.
8. With respect to the Grievous bodily harm offence, and other offences subsequent to the Applicant's personal situation [edited for publication], the Tribunal accepts that personal stressors, including [edited for publication], may have contributed to the Applicant's offending. However, the Tribunal does not accept that they diminish the seriousness of the offending. Rather, the Tribunal considers these factors as relevant to the assessment of the Applicant's risk of reoffending (below).
9. Having regard to all the circumstances of the Applicant's conduct, the Tribunal considers that the nature and seriousness of the Applicant's offending and conduct is serious and weighs strongly against exercising the discretion to revoke the cancellation of the visa.

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 13.1(2)(b) of Direction No. 79)

1. A decision-maker should also have regard to the following principle, described in para 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).

1. The Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to the Australian community. This requires both consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be.[52]
2. The Applicant's main contention with respect to this consideration is that he presents a low risk of reoffending and that, to the extent that he presents any risk, this is outweighed by other considerations including the best interests of his children. With respect to the risk to the Australian Community should the Applicant re-offend, the Applicant submitted that he presented a low risk of re-offending. In particular, the Applicant cited the following in support of the low risk he presents to the community:[53]
   • his remorse over his conduct, particularly his violent offending, and his full admission of guilt;
   • the realisation of the impact his offending has had on his family and in particular his children and his mother;
   • the possibility he may be removed from Australia;
   • the fact he did not intend to cause the injuries sustained by the victim of the Grievous bodily harm offence;
   • insight into his offending gained through counselling sessions undertaken in prison and religious groups and courses;
   • his relationship with his children and family which will provide a strong protective factor against reoffending;
   • the fact he has come to terms with underlying issues which contributed to his offending including his personal situation [edited for publication];
   • the fact he has an offer of stable employment on release;
   • his acknowledgement that he needs to address his anger and reckless behaviour; and
   • the fact the Applicant undertook courses and rehabilitation to address previous assessments that he was a high-risk of general re-offending.
3. The Respondent contended that if the Applicant were to reoffend it would clearly cause physical, psychological and financial harm to members of the Australian community. Given the nature of harm to the community which could be caused should the Applicant reoffend, any risk of similar conduct in the future is unacceptable.[54]
4. In particular, the Respondent contended that the Tribunal should have significant concerns in respect of the risk of re-offending having regard to the following:[55]
   • A lack of independent evidence to demonstrate that the Applicant has been successfully rehabilitated including:
     • limited evidence the Applicant has undertaken drug and alcohol counselling;
     • the fact that the Applicant's commitment to rehabilitation is untested in the community; and
     • the fact that the support of his family and friends have not been protective factors in the past.
   • Given that the Level of Service/Risk, Need, Responsivity (LS/RNR) and Violence Risk Scale-Screening Version (VRS-SV) assessments conducted in the context of the Applicant's sentencing and imprisonment for the Grievous bodily harm offence which found that the Applicant was at a high risk for general offending and a moderate risk of violent offending, in the absence of any independent evidence of successful rehabilitation, the Applicant remains an unacceptable risk of further offending.
5. The Applicant has committed a serious violent offence which caused the victim significant injuries. These were outlined in the Sentencing Judge's comments which are detailed above. His Honour further noted:[56]

The injuries, as appear from the medical evidence, were of such a nature as to endanger or be likely to endanger the life of the complainant.

Without medical treatment, the complainant's life would have been endangered by enlargement of the haematoma and the brainstem compression... the injuries were of such a nature as to cause or be likely to be cause permanent injury to health without medical treatment, the potential for permanent injuries, including hemiplegia, visual defects and neuro cognitive deficits, existed.

1. The Sentencing Remarks also refer to the emotional, physical and financial impact of the offence on the victim.[57]
2. Were the Applicant to reoffend in a similar manner, in the Tribunal's view there is a real risk of serious physical harm, even death, to a victim. There is also a significant risk of serious psychological and financial impact on a victim.
3. The Applicant has also committed a number of other violence related offences or offences which involved violence on the part of the Applicant. This included an assault offence against his then wife. The Applicant's violent offending involved actual and threatened physical violence against victims including his former wife. The serious impacts of domestic violence on the community have been noted previously by the Tribunal.[58] In the Tribunal's view, were the Applicant to reoffend in a similar manner in the future against his ex-wife or a future partner, the risk of harm to his family and the broader community is serious.
4. Similarly, general violent offending carries with it serious risks of physical harm for members of the community. It also carries the risk of psychological and financial harm associated with injury, treatment and recovery.
5. The Applicant was also convicted of breaching a number of orders made by the courts which were put in place to protect the victims of his violent offending and to ensure he engaged in appropriate rehabilitation. Such orders are an important tool in protecting the community. If the Applicant were to engage in such offending in the future there is a risk of harm to members of the community, the protection of which such orders serve. While the risk to the community presented by such behaviour is less significant than his violent conduct, the breach of protective court orders presents a risk to the order and security of the community which cannot be ignored.
6. As noted above, the Applicant has repeatedly offended against traffic laws including driving without a licence. Such offending risks serious injury to the community through motor vehicle accidents and impacts on insurance systems designed to protect victims of traffic accidents.
7. Further, the Applicant offended against public officers in the performance of their duties and while the Tribunal has found the circumstances of that offence to be at the low end of seriousness, offending against law enforcement officers and public officials presents a risk to public officials in the discharge of their duties and thus to the broader order and security of the community.
8. Based on the Applicant's history of offending, the Tribunal finds that if the Applicant reoffends in a manner consistent with his past offending this would likely include significant harm to members of the community. Such harm could include potentially

life-threatening physical injury to victims, as well as the potentially significant psychological and financial impacts which victims may suffer as the result of such injuries. Further risks include those associated with unlicensed driving including injuries to road users and the impacts on the good order and safety of the community caused by breaching court orders and obstructing police. 9. Accordingly, the Tribunal finds that the nature of harm that could result if the Applicant is to reoffend is very serious. 10. The Tribunal will now consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community. [59] 11. In Stravrianou DCJ's Sentencing Remarks, His Honour noted that it could not be submitted that the Applicant had prior good character. His Honour made reference to a pre-sentence report which was not before the Tribunal. His Honour noted that the report observed that:[60]

[the Applicant] accepted responsibility for your offending and notes that you were aware you're most likely to receive a period of imprisonment for the current offence, and that demonstrates to me that you have insight, which is of considerable importance.

His Honour went on to note with respect to the report that:[61]

your previous compliance with community orders has been mixed but that you've not been the subject of an order since 2012.

1. His Honour also noted to the Applicant's credit that he had pled guilty via the fast track system and had participated and cooperated with the police record of interview. While His Honour did not make any further reference to the Applicant's risk of reoffending, he did note that the offence was a single act of violence.[62] Notwithstanding this, His Honour considered that the appropriate sentence was a custodial sentence of three years' and three months' imprisonment. As noted earlier, the Applicant was made eligible for, and was granted, parole. According to the Parole Order, parole was granted on 7 May 2019 and commenced on 29 May 2019 effective to 12 January 2021.[63]
2. The Parole Review Report dated 27 March 2019[64] indicates that the Applicant was assessed for departmental treatment intervention and was assessed to be eligible for the "General offending - medium intensity program" which he completed at Acacia prison on 5 February 2019.[65] The Parole Review Report contains the following Summary of Evidence for Program Allocation:[66]

Based on the current assessment [the Applicant] presents a high risk of general reoffending on the LS/RNR and a moderate risk of violent reoffending on the

VRS-SV. It is recommended that [the Applicant] complete the Medium Intensity Program to address his violent behaviour and substance use. [The Applciant] recognised his problem areas and expressed willingness to engage in treatment programs.

The Parole Review Report also indicates that the Applicant attended Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) meetings during prison.[67] The evidence records that he voluntarily attended 12 AA meetings and 14 NA meetings while in prison.[68]

1. The Tribunal notes that the Treatment Assessment Report which records the outcomes of the program allocation assessment indicates that the high risk of general offending was based on recidivist criminal behaviour, unemployment, illicit substance abuse and poor consequential thinking.[69] This risk of violent offending risk factors include violent lifestyle, interpersonal aggression, poor emotional regulation and impulsivity.
2. Parole was granted on the basis that the Prisoner's Review Board decided that the Applicant's release would present an acceptable risk to the safety of the community due to:[70]
   • successful completion of the Medium Intensity General Offending program with reported gains;
   • participation in voluntary programmes demonstrating a motivation and willingness to address his offending behaviour;
   • the salutary impact of this being his first term of imprisonment and first opportunity for parole supervision;
   • his parole plan including suitable accommodation, employment and family support; and
   • the conditions of parole which further reduce the risk of safety of the community.

These reasons were in line with the Parole Assessment report which also noted the Applicant's good behaviour in prison and his immigration status.[71]

1. The additional requirements of the parole order included that the Applicant:[72]
   • attend random drug testing as required;
   • not consume alcohol;
   • not enter licenced premises excluding cafes, restaurants and sporting venues and grocery stores but not purchase liquor;
   • submit to random breath testing;
   • comply with mental health treatment directed by a medical practitioner;
   • attend programmes and counselling as directed; and
   • engage and remain engaged in employment, training or job seeking.
2. The Tribunal notes that the Prisoner's Review Board is required to make an assessment as to whether the person will be an unacceptable risk to the safety of the community if they are released on parole and subject to a period of parole supervision in the community.[73] If the Board regards a prisoner as being an unacceptable risk to the safety of the community, parole will be denied. The assessment of risk is for the period from the date the prisoner is released on parole until the expiry of the maximum sentence. The parole period is a period of supervision during which the prisoner will be supervised by, and report regularly to a community corrections officer, who will monitor the prisoner's compliance with the parole conditions imposed by the Board. The Tribunal observes that the Board's decision to release the Applicant to parole would have been made after an assessment of his risk to the safety of the community and the extent to which monitoring and supervision to ensure compliance with the conditions of parole would reduce this risk. However, this does not mean that the Board formed the view that the Applicant was not a risk to the safety of the community, or that he was fully rehabilitated and would not re-offend in the future. The import of the order is that the Board was of the view that with monitoring and supervision during the period of parole, the Applicant did not pose an unacceptable risk to the safety of the community. The Tribunal takes into account the granting of parole to the Applicant by the Board and the assessment that he did not pose an unacceptable risk to the safety of the community for a period of parole supervision and monitoring on specified terms. However, as was observed Senior Member Dr M Evans in Varley and Minister for Home Affairs (Migration) [2019] AATA 376 [at 110]:

The Tribunal cannot, however, defer to the opinion of the PRB to the extent that the Tribunal fetters its own discretion. The Tribunal must undertake its own independent consideration of the Applicant's likelihood of reoffending, based on the merits of the Applicant's application before the Tribunal and the submissions and evidence before the Tribunal.

1. A record from the Department of Corrective Services Community Business Information System (the Corrective Services parole notes), which indicates what appear to be parole event details for the Applicant, records that a further LS/RNR Assessment was undertaken in April 2019[74] prior to the grant of parole. The comment recorded on that event was that "[the Applicant's] profile indicates he presents with a medium risk of general reoffending".[75] This suggests that the Applciant's time in prison and his participation in the Medium Intensity Program lowered his assessed risk of general offending from "high" to "medium". The Tribunal was unable to find in the material before it an updated assessment of the Applicant's risk of violent offending which at the time of sentencing was medium.
2. While in prison the Applicant completed a Medium Intensity Program (from

12 September 2018 to 5 February 2019). According to the Applicant's Program Completion Report, the aims of the program were:[76]

to gain a sound understanding of their general offending behaviour, recognise factors that contributed to their offending and develop a viable and manageable relapse prevention plan specific to their offending patterns and behaviour.

The report noted relevant factors of the Applicant's personal history including violent physical discipline by his step-father. The report notes that prior to the Grievous bodily harm offence his relationship broke down and he was "not in contact with his children'".[77] The report noted he had repaired his relationships since he was incarcerated.

1. The Report indicated the Applicant attended 53 out of 56 sessions of the program. The Tribunal notes that the Corrective Services Offender Notes[78] recorded that the Applicant was told in December 2018 that as he was absent for three sessions from the program, he may be removed if he did not attend all remaining sessions.[79] The report notes he claimed the absences were due to injury and external stressors. The report observes that the Applicant's insight into his anger issues was "inconsistent, often justifying or minimising his use of violence", inconsistencies which the report links to the Applicant's inability to emotionally regulate.[80]
2. Regarding his substance use, which was identified as a factor in his offending, the report identified further ongoing intervention would be beneficial.[81] The report went on to state that the Applicant:[82]

showed emerging gains in ability to utilise adaptive coping skills to manage emotional regulation and interpersonal aggression ... made shifts in substance use goals and violence supportive beliefs, however remains in the contemplative stage. He articulated a desire to remain abstinent from substances on release, however at times maintained views permissive of substance use to manage stressors.

demonstrated insight into potential high-risk areas and recognised strategies to mitigate risks, however his ability to utilise these skills will be dependent on his emotional regulation.

1. As noted above, the material produced from the parole process suggests that the Applicant's time in prison and his participation in the Medium Intensity Program lowered his assessed risk of general offending from "high" to "medium". This is encouraging progress but leaves the Applicant presenting as a moderate or medium risk of general offending and with identified areas where further intervention may be needed, including substance use and emotional regulation.
2. Another issue which is highlighted by the report is the Applicant's heavy reliance on his family as a pro-social network to reduce the risk of reoffending. This network includes his stepfather whom he plans to live with but who he identified during the program as a role model for expressing anger through aggression. Further, the Respondent submitted, and the Tribunal accepts, that this pro-social network was the same network available to, and supporting, the Applicant during his period of offending. His commitment to and support from his family and children was not sufficient to stop him offending in the past and there is a risk this network would not be an effective means of preventing him reoffending in the future, either because he fails to avail himself of that support or because elements of that network reinforce impulsivity and aggression as an acceptable and normalised response.
3. The Applicant had previously been assessed for participation in a domestic violence program in 2011.[83] In the Community-Domestic Violence Assessment Report it was noted that:

[The Applicant] could not identify any other factors (other than alcohol) to explain the violence and therefore, appears to be seeking to deflect responsibility for his own violent behaviour.[84]

The report noted that the Applicant had indicated a number of instances of types of violence including:

being verbally aggressive, grabbing his partner; twisting her arm, pulling her hair, pushing her to the ground, throwing food and objects, threatening to destroy her property and breaking down a door.

The report noted that Mr Gage did not take direct responsibility for the act of violence against his then wife. The report notes the conclusion that:

Mr Gage uses his drunkenness as an explanation or a form of deflection of responsibility for his own violent behaviour.

1. The Community-Domestic Violence Assessment Report further noted that Mr Gage's previous offences, including traffic offences, "indicate an unwillingness to accede to legitimate authority, and or [sic] social norms of compliance with traffic and other laws intended to maintain public order, safety, decency and social cohesion". The report noted a willingness and motivation to deal with issues that caused him to offend and formed the view that:[85]

It is anticipated that engaging in therapeutic interventions in relation to both Domestic Violence and Alcohol and other Drug Use, that [the Applicant] may well gain the insight and skills to meet his goals of gaining assistance to "Help [learn] how to deal with my emotions [and] how to react better to situations" and thereby reduce the chances or severity of offending behaviour in the future.

1. The Applicant was referred to a Relationships Australia Men's Domestic Violence Program. He was scheduled to do 48 hours of the program but only attended for 24 hours (12 sessions). The Program Non-Completion Report indicates that he was referred to the program in January 2011.[86] His non-completion date was 15 August 2011. The report notes that the Applicant had initially displayed a good attitude and consistently participated well. However, following three absentees he was exited from the program. The report records that:[87]

Towards his exit from the program [the Applicant] started to talk about circumstances and issues in his relationships which alerted facilitators to the fact he was using entitlement and ownership as a form of power and control. This mind-set relates strongly to his use of violence in the [Assault in circumstances of aggravation] offence.

The report recommended that the Applicant complete a men's domestic violence program or individual counselling in order to address issues of "entitlement and ownership". There is no evidence before the Tribunal that the Applicant has completed a men's domestic violence program. There is evidence he has undertaken some individual counselling sessions in prison. However, it does not appear from the records of these sessions that they were to address domestic violence concerns or "entitlement and ownership" and concerns were expressed in the reports of those two sessions regarding his motivation for seeking treatment.[88]

1. This unmet treatment need causes the Tribunal some concern that these issues may increase the risk of the Applicant reoffending against a domestic partner. Given that the Applicant has only one domestic violence related conviction with respect to his former partner, has been separated and divorced from her for some time and has her support to remain in Australia, the Tribunal regards the risk of the Applicant reoffending against her to be low. However, as the issues identified as causes of his use of violence in a domestic relationship appear to remain unaddressed, the Tribunal regards that there remains a risk that he will offend in a similar way against a domestic partner.
2. To his credit, the Applicant has undertaken voluntary programs while in immigration detention and prison including:
   • a "Case for Christ" course from November to December 2017;
   • Alcoholics Anonymous and Narcotics Anonymous meetings;
   • Lifeskills and Men's Group sessions in immigration detention in January 2020; and
   • he has also undertaken some counselling in prison and detention and has attended church services and other related meetings.
3. The Applicant claimed to have undertaken counselling in prison. The evidence included reports from two counselling session undertaken by the Applicant. [89] Both reports indicate that the Applicant had stated he believed counselling would assist with his immigration application. The second indicated that "no counselling goals were present" so the counselling referral was closed. When it was put to the Applicant at the hearing that this may suggest he undertook the counselling not for a rehabilitation or treatment purpose but to assist his application, he said he had been told he did not need counselling he just needed to stay positive.[90]
4. The Tribunal formed the view based on the Applicant's testimony and the documentary evidence that he did seek counselling to assist in proving a commitment to rehabilitation in the context of his visa cancellation review. The Tribunal recognises the evidentiary difficulty the Applicant faces in proving a commitment to reform. However, where the Applicant has been involved in programs which have identified ongoing treatment needs but he does not avail himself of opportunities to further his treatment in a genuine way with qualified professionals, this raises a concern that he lacks insight into his own treatment needs. This concern was compounded by his response to the Tribunal's questioning regarding his plans to deal with anger management and violence issues in the community. He indicated he "wants to be involved more in the community through coaching and through helping others".[91] While this commitment to community is laudable, the Applicant was unable to describe a plan to enable his ongoing risk of substance use to be managed or for issues underpinning his resort to violence to be further addressed. This causes the Tribunal to be concerned about the risk of these issues undermining the Applicant's commitment not to reoffend.
5. The Applicant indicated at the hearing that he has an offer of employment with a scaffolding company. The owner of the scaffolding company, Mr Richard Eynon, submitted a statement dated, 15 January 2020, confirming the offer of full-time employment if the Applicant is released from detention.[92] Mr Eynon says he is a long-time friend and employer of the Applicant and believes him to be "honest, reliable and trustworthy". He indicates the Applicant will fill a "vital role" in his construction business. The Tribunal places weight on the Applicant's offer of full-time employment outside the security industry in reducing the risk of his reoffending.
6. The Applicant also indicated that an uncle, Mr Timothy Paltridge was involved in an organisation, Break the Psychol, which runs men's group meetings focused on mental health issues and that Mr Paltridge had offered to facilitate the Applicant's participation in the program. Mr Paltridge testified he has been meeting with the Applicant regularly in detention and will personally make sure that he participates in the men's group program which Break the Psychol and his church offer.[93] Further, Ms Monique Williamson, a friend of the Applicant who was associated with him through touch rugby, offered assistance with connecting the Applicant to mental health programs.[94] Ms Williamson works as CEO of the Mental Health Fellowship of WA and indicated she would ensure the Applicant was offered counselling. She said she thought he would benefit from men's group and support groups, mentioning Haka for Life specifically. Ms Williamson did not provide expert evidence with respect to Mr Gage's treatment needs.
7. While the Tribunal places weight on the willingness of these witnesses to connect

the Applicant with supports on his release, these do not appear to be formal treatment programs and that they would depend on the Applicant's level of willingness to engage voluntarily with them. While the Applicant expressed a willingness to do so, he has been unsuccessful in completing at least one community based program in the past (the Relationships Australia Men's Domestic Violence Program) creating a concern about his commitment to attending programs of his own volition once back in the community. 8. Further, the Applicant clearly has strong family and social support on offer in the community. The Respondent submitted, and the Tribunal accepts, that this support was present in the past and did not prevent the Applicant from offending. Notwithstanding this the Tribunal accepts that the presence of a strong pro-social network may act as a support to the Applicant in maintaining a commitment not to reoffend and places weight on the level of family and community support demonstrated on the evidence before it. 9. The Tribunal accepts that the Applicant is remorseful and has committed to not reoffending. The Tribunal acknowledges the commitment to rehabilitation the Applicant has made whilst in prison and detention. Those are very positive signs. 10. While the Applicant largely accepted the factual accounts of his offences put to him at the hearing and stressed that he accepted responsibility for his offending, there was information in both the Domestic Violence program material and in the Medium Intensity Program that suggested the Applicant has a tendency to minimise the seriousness of his offending or his culpability, particularly blaming his offending on intoxication and provocation. In the Tribunals' view, this material suggests a level of minimisation of his offending consistent with a lack of insight into at least some aspects of his offending. This gives rise to a concern regard the risk of re-offending. It remains the case that the Applicant has not completed a treatment for domestic violence offending and while he has attended voluntary meetings and programs which touch on substance abuse he has not undertaken a formal treatment program specifically to address substance abuse and did not appear to have a plan to do so in the future. It was unclear what plan he had in place to address substance abuse noting that his current commitment to not using illicit drugs or consuming alcohol is untested in the community. The Corrective Services parole notes indicate in a section considering the identified need of "substance use and emotional regulation" that the Applicant "expressed a desire to drink alcohol and claims it has never been a big problem". This is consistent with concerns raised in the Medium Intensity Program report. It is further reported that the Applicant "was resistant to possibly having to engage with a private psychologist and pay for this service."[95] 11. In the Tribunal's view, reports of minimisation of his offending suggests the Applicant lacks insight into some aspects of his offending, particularly the domestic violence offending, and that this contributes to a risk of reoffending. Further, there is evidence that the Applicant has not undertaken treatment to deal specifically with domestic violence offending and does not have a sufficient plan in place to deal with substance abuse. Accordingly, these remain a risk in terms of the Applicant's likelihood of reoffending. However, the Tribunal also accepts that the Applicant: is committed to maintaining a strong relationship with his children; has the support of his ex-wife, close friends and family; and has shown himself to be prepared to undertake rehabilitation. These are protective factors which may be said to reduce the risk of reoffending. 12. On any approach it must be said that all the assessments before the Tribunal acknowledge that the Applicant presents a risk of reoffending. At its highest that risk is expressed as a medium risk of general offending. The Tribunal considers that this represents his risk of offending generally, including for domestic violence offences. The Tribunal acknowledges, however, that the Applicant has since spent time in immigration detention and appears to have focused during that time on both the prospects of removal and strategies he can put in place to reduce the risk of reoffending such that he can avoid removal now, or in the future. In this regard the Tribunal found the Applicant's desire to reform for the sake of his children to be genuine. In the Tribunal's view, if the Applicant maintains this commitment, abstains from substance use (including alcohol) and engages in the counselling and other supports which have been offered to him through his support network his risk of reoffending would continue to drop into the medium to low range. In this regard the Tribunal notes that the Applicant would remain on parole for around another 11 months following the delivery of the Tribunal's decision. This affords the community an opportunity to monitor his commitment to abstinence and non-offending and for authorities to engage with him on counselling and other needs. The Tribunal places weigh on this as a mechanism for reducing the risk of reoffending in the short term. However, while the need for ongoing counselling or treatment has been identified as a need, there was a lack of evidence before the Tribunal of a plan for such treatment, including in the context of parole. Further, the Applicant's previous failure to complete treatment in the community even when subject to court orders and supervision causes a concern regarding his commitment to follow through on treatment where he is not compelled to do so. 13. Based on the above discussion, the Tribunal finds that there is a likelihood of the Applicant reoffending, should he be given a further chance to be released back into the Australian community. Based on the comments of the Sentencing Judge, the parole information and the material before the Tribunal, the Tribunal finds the Applicant's risk of reoffending to be moderate or medium. 14. With regard to paragraph 6.3(4) of Direction No. 79, the Tribunal finds that the circumstances of the Applicant's offending and the serious nature of the harm that can result to victims of this type of offending, mean that even a moderate or medium likelihood of reoffending in the future may be unacceptable. 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)(b) of Direction No. 79)

(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.

1. Paragraph 13.2(4) of Direction No. 79 continues on to outline the factors that a

decision-maker must consider when determining the best interests of the child:

(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 children, a daughter who is 13 years old and a son who is 9 years old.
2. The Applicant's written submissions only referred to these two children under the best interests of the child consideration. However, during the hearing and in submissions a number of other children, members of the Applicant's extended family, were referred to. During closing submissions, the Tribunal sought to clarify the evidence before it relating to any children whose best interests should be considered. The Respondent submitted that a number of children had been mentioned specifically in evidence and their interests should also be considered. This included:

• the Applicant's three year old niece;[96]
• the two children of Ms Tutu Marsters who are the Applicant's cousins;[97]
• the three children of Ms Allison Marsters who are cousins of the Applicant.[98]

1. The Applicant did not suggest any other children be considered.
2. There was very limited evidence before the Tribunal with respect to the Applicant's cousins and niece. The Tribunal has made findings regarding the interests of these children on the evidence given by the Applicant and his family members at the hearing, and the documentary evidence before it pertaining to each child, to the extent that it is before the Tribunal.
3. The Tribunal accepts that the interests of some of the additional children were not raised by the Applicant under the consideration of best interests of the children until specifically invited to do so by the Tribunal. In the Tribunal's view the nature of the evidence before it suggests that those children's interests and those of their families are more properly considered in the context of the Applicant's ties to Australia. However, the Tribunal has also considered the interests of the children raised specifically in testimony or submissions to the Tribunal in terms of a consideration of the best interests of the child.
4. The Applicant's submissions cited Article 9 of the United Nations Convention on the Rights of the Child in support of his contention that his children should not be separated from him unless it was determined to be in their best interests. The Tribunal does not accept this submission. The direction contemplates that the best interests of the children must be a primary consideration, however it is clear that it is merely one of a number of considerations which must be weighed in determining whether there is "another reason" the visa cancellation should be revoked.
5. The Applicant submitted that the best interest of the relevant minor children, and in particular his two children, weighed in favour of revocation and should outweigh other primary considerations.
6. Several family members and friends attested to the Applicant's role as a "big brother", uncle, cousin and friend of youth members of the Maori community of which he is a member though touch rugby, other sports and "within the whanau structure culturally".[99]
7. The Respondent submitted that this primary consideration should be given limited weight due to a lack of evidence regarding the care the Applicant provides to his children particularly in light of long periods of separation. The Respondent also submitted that the Applicant was unlikely to play a positive parenting role in the future given his past offending which included violence towards their mother. Further, the Respondent submitted there was no impediment to the children visiting the Applicant in New Zealand and to maintaining regular contact over the phone and other forms of communications. The Respondent contended that this consideration does not weigh in favour of revocation and is at best neutral.

1. The Applicant's ex-wife, Ms Tuhoro, is also from New Zealand. She is now an Australian citizen as are the two children. There was evidence that the Applicant's children and their mother had voluntarily returned to live in New Zealand for a number of years prior to and during the Applicant's incarceration. Ms Tuhoro noted in her statement that she would not move back to New Zealand again as they did not have sufficient family support there.[100] The Tribunal accepts that if the Applicant is removed to New Zealand the children would remain in Australia with Ms Tuhoro. However the Tribunal notes that the Applicant's ex-wife and her children have returned regularly to New Zealand while living in Australia.[101] While they would be able to travel to New Zealand as they have done in the past, enabling them to visit the Applicant, the Tribunal accepts that they are unlikely to relocate to New Zealand permanently.
2. The Applicant is in a parental relationship with the children.[102] At the time both children were born the parents were living together. The Applicant has been in prison or detention for more than two years. Prior to him going into prison, the children were living in New Zealand with his ex-wife. Notwithstanding what appear to have been significant periods of separation from the children, including that he was not in contact with them prior to his Grievous bodily harm offence[103], Ms Tuhoro stated that the Applicant was a "hands on father" who was very close to his children. She stated that he remained in daily contact with them but was greatly missed.[104] The Tribunal accepts that the Applicant has maintained regular contact with his children following reconnecting with them while in prison and detention and there was evidence from friends and family supporting his claim to have a close relationship with the children.
3. The children's mother is currently fulfilling the parental role in relation to the children and has done so since before the Applicant was in prison. There is no information before the Tribunal as to any court orders in place with respect to the care and custody of the children. However, the Tribunal accepts that the parties were sharing parenting responsibilities prior to his ex-wife and children relocating to New Zealand.[105]
4. There is no evidence that any prior conduct of the Applicant has had a negative impact on his children.[106]
5. Having regard to the ages of the children, if the Applicant is in the community and refrains from reoffending there would be an opportunity for him to play a positive role in the children's lives for a significant number of years.[107]
6. The Applicant speaks to the children on the phone daily and they visit him in the detention centre facilitated by their mother or other family members. If the Applicant is removed from Australia, the children will be deprived of having a close in-person relationship with him in the future. It would, however, be possible for the children to communicate with the Applicant in ways other than in person, for example by telephone or over the Internet via Skype or Facetime.[108] This is consistent with the manner in which they maintained contact while he has been in detention or prison. However, the Tribunal accepts this would not provide the children with the same relationship with their father as would be possible if they saw him in person on a regular basis.
7. The Applicant's children have previously resided in New Zealand and have travelled there frequently. The Tribunal finds that if the Applicant were to return to New Zealand he would be likely to be able to maintain some in-person contact with his children who would be likely to visit him there on occasion. The Tribunal accepts this is not a substitute for the regular contact he may be able to have with the children were he to remain in Australia. There would be nothing preventing the Applicant's ex-wife and children from relocating to New Zealand on a more permanent basis should they choose to do so. However, as noted above, the Tribunal acknowledges it is unlikely they would do so, for a range of reasons including their family connections in Australia, and has assessed the children's interest on the basis that they would remain resident in Australia with their mother.
8. There is no evidence the Applicant has abused or neglected the children in any way in the past,[109] nor is there any evidence the children have suffered or experienced any physical or emotional trauma arising from the Applicant's conduct.[110]
9. The Tribunal has also considered the children individually to the extent there is information that their interests may differ.

1. There was strong material before the Tribunal to suggest that the Applicant is committed to a positive relationship with his daughter, including a handwritten statement from her.[111] The Applicant's daughter stated she did not feel she would cope with him being in New Zealand. She states "it would honestly hurt me so bad I would never talk to anyone anymore if that happened to him". She states that her father has always been there for her and she needs both parents in her life.[112]
2. Her mother also spoke of the important role her father is playing in the daughter's life as her behaviour had become more difficult in recent years and of the backup the Applicant had provided in those instances even from detention and prison.[113] Other family members also spoke to the close relationship the Applicant has with his daughter.[114]
3. The Tribunal accepts the Applicant is committed to his relationship with his daughter and has a strong relationship with her. Ms Tuhoro (the Applicant's ex-wife) supports him in this. [Edited for publication]. The Tribunal formed the view that maintaining a strong relationship with his children was the main driver for the Applicant's commitment to reform his behaviour. If he were to maintain that commitment and not reoffend he could play a positive role in his daughter's life, and in particular as she navigates her teenage years.
4. On the basis of the material before it, the Tribunal concludes that revocation is in the best interests of the Applicant's daughter. Having regard in particular to the child's age, personal history and the Applicant's commitment to a strong relationship with her, the Tribunal considers her best interests weigh heavily in favour of revocation of the decision to cancel the Applicant's visa.

1. There was also strong material before the Tribunal to suggest that the Applicant is committed to a positive relationship with his son.
2. There are no known views of the child before the Tribunal. [115] However, relatives spoke of the impact separation from his father is having on him.[116] The Tribunal accepts this to be the case.
3. The Applicant is committed to his relationship with his son. Ms Tuhoro supports him in this. As noted above, the Tribunal formed the view that maintaining a strong relationship with his children was the main driver for the Applicant's commitment to reform his behaviour. If he were to maintain that commitment and not reoffend he could play a positive role in his son's life, and in particular through his participation in youth touch rugby.
4. On the basis of the material before it, the Tribunal concludes that revocation is in the best interests of the Applicant's son. Having regard in particular to the child's age and the Applicant's commitment to a strong relationship with him, the Tribunal considers his best interests weigh heavily in favour of revocation of the decision to cancel the Applicant's visa.

1. As noted above, several additional minor children whose best interests may be relevant to this application were identified on the material. One was the Applicant's niece, the daughter of Mr Gage's younger sister who would now be around five or six years old.[117]
2. Very little evidence about this child is before the Tribunal other than the statement of her mother, dated 13 December 2017 which notes that the child "adores" her uncle and visited him "lately".[118] Ms Gage's later statement does not mention her daughter.[119] Nevertheless the Tribunal has made findings regarding the interests of this child based on the limited evidence before it.
3. Paragraph 13.2(4)(a) of Direction No. 79 requires the Tribunal to consider the nature and duration of the relationship between the child and the Applicant. The relationship is non-parental because the Applicant is an uncle of the child and has no historical or ongoing responsibility for her care or upbringing. However, the child is young and if the Applicant is in the community and refrains from reoffending there would be some opportunity for him to play a positive role in the child's life.[120]
4. There is no evidence that any prior conduct of the Applicant has had a negative impact on the child).[121] Although it is unclear whether the child has had any recent contact with the Applicant, if he is removed from Australia, the child will be deprived of having an in-person relationship with him in the future. It would, however, be possible for the child to communicate with the Applicant in ways other than in person, for example by telephone or over the Internet via Skype or Facetime.[122] On the available evidence the Tribunal finds the child's mother fulfils the parental role in relation to the niece.[123]
5. There are no known views of the child before the Tribunal.[124] There is no evidence the Applicant has abused or neglected the child in any way in the past,[125] nor is there any evidence she have suffered or experienced any physical or emotional trauma arising from the Applicant's conduct.[126]
6. The desire of the Applicant and his sister for a future relationship between him and her family members is, in the Tribunal's view, more relevant to the Applicant's ties to Australia and impediments if removed (in terms of the Applicant's separation from his social network in Australia), rather than this primary consideration of the best interests of minor children.
7. On the basis of the material before it, the Tribunal concludes, on balance, that revocation is in the best interests of the child of Sarah Gage. However, given the nature of their relationship with the Applicant as a family friend, the Tribunal gives their interests less weight in favour of revocation of the decision to cancel the Applicant's visa.

1. As noted above, several additional minor children whose best interests may be relevant to this application were identified on the material. Two were the Applicant's cousins, the children of Ms Tutu Marsters, a 12-year-old daughter and a 4-year-old son. The children will be considered together because there is no evidence before the Tribunal to suggest that their interests differ:.[127]
2. There are no known views of the younger child before the Tribunal. However the older child submitted a statement to the Tribunal.[128] The children's mother also submitted statements to the Tribunal and Department and testified at the hearing.[129] The older child stated that she is a close friend of the Applicant's daughter. She said that the Applicant has encouraged her to pursue competitive sports and provided support to her when her father left their home. She said she had visited the Applicant in detention. Her mother also testified that the Applicant was living with her and the children when her marriage broke-down and supported them through that period. She stated that the children speak to the Applicant on the phone in detention as well and that the children are close to the Applicant.[130]
3. The relationship is non-parental because the Applicant is a cousin and has no historical or ongoing responsibility for their care or upbringing.[131] Taking into account the children's ages, if the Applicant is in the community and if the Applicant refrains from reoffending there would likely be some opportunity for him to play a positive role in the children's lives, particularly through encouraging their participation in sport. [132]
4. There is no evidence that any prior conduct of the Applicant has had a negative impact on the children.[133] It would be possible for the children to communicate with the Applicant in ways other than in person, for example by telephone or over the Internet via Skype or Facetime[134] as they have done in the past, however the Tribunal acknowledges this is not a substitute for in-person contact.
5. The children's mother fulfils the parental role in relation to the children.[135] There is no evidence the Applicant has abused or neglected the child in any way in the past nor is there any evidence she have suffered or experienced any physical or emotional trauma arising from the Applicant's conduct.[136]
6. Again, in these circumstances the desire for a future relationship between the families is, in the Tribunal's view, more relevant to the Applicant's ties to Australia and impediments if removed (in terms of the Applicant's separation from his social network in Australia), rather than this primary consideration of the best interests of minor children. On the basis of the material before it, the Tribunal concludes, on balance, that revocation is in the best interests of the children of Tutu Marsters. The Tribunal considers their interests weigh slightly in favour of revocation of the decision to cancel the Applicant's visa.

1. As noted above, several additional minor children whose best interests may be relevant to this application were identified on the material. Three were the Applicant's cousins, the sons of Ms Allison Marsters, aged four, seven and ten. She also has an adult son who is a close friend of the Applicant.[137] The children will be considered together because there is no evidence before the Tribunal to suggest that their interests differ.[138]
2. The relationship is non-parental because the Applicant is a cousin and has no historical or ongoing responsibility for the children's care or upbringing.[139]
3. There are no known views of the children before the Tribunal.[140] However, the children's mother submitted statements to the Tribunal and Department and testified at the hearing.[141] She said that the Applicant has lived with her on occasion and is close to her sons. She said they communicate with him once a week via Facetime.[142] She they "idolise" their cousin.[143] She said they love him and would miss him if he is deported.[144]
4. Taking into account the children's ages, and if the Applicant refrains from reoffending, there would likely be some opportunity for him to play a positive role in the children's lives.[145]
5. There is no evidence that any prior conduct of the Applicant has had a negative impact on the children.[146] It would be possible for the children to communicate with the Applicant in ways other than in person, for example by telephone or over the Internet via Skype or Facetime[147] as they have done in the past. However, the Tribunal acknowledges that this is not a substitute for in-person contact.
6. The children's mother fulfils the parental role in relation to the children.[148] There is no evidence the Applicant has abused or neglected the child in any way in the past nor is there any evidence they have suffered or experienced any physical or emotional trauma arising from the Applicant's conduct. [149]
7. Again, in these circumstances the desire for a future relationship between the families is, in the Tribunal's view, more relevant to the Applicant's ties to Australia and impediments if removed (in terms of the Applicant's separation from his social network in Australia), rather than this primary consideration of the best interests of minor children.
8. However, on the basis of the material before it, the Tribunal concludes, on balance, that revocation is in the best interests of the children of Ms Allison Marsters. The Tribunal considers their interests weigh slightly in favour of revocation of the decision to cancel the Applicant's visa.

Third primary consideration: Expectations of the Australian community (paragraph 13(2)(c) 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. A further relevant principle is set out in paragraph 6.3(3) of Direction No. 79 as follows:

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.

1. The Applicant submitted that he did not come within the "deeming approach" articulated by the Full Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR (FC)) because there is not an unacceptable risk that he would breach the trust of the Australian community if allowed to re-enter it.[150] The Applicant submitted that:[151]

he does not believe that, although his offending was serious, that the community would feel the need to remove him from the country he and his family call home, and separate his whole family unit, as a direct result of the removal process.

The Applicant accepted this consideration must weigh against revocation but submitted that it was outweighed by the best interests of his children, his low risk of reoffending and other considerations.

1. The Respondent submitted that the Applicant's serious and violent offending is such that the expectation of the Australian community would be that his visa is to remain cancelled. The Respondent submitted that the primary consideration of the expectations of the Australia community also weighs heavily against the Applicant.
2. The issue of the meaning of para 13.3(1) of Direction No. 79 and, in particular, how the expectations of the Australian community are to be determined has been the subject of significant judicial consideration. The Full Court of the Federal Court in FYBR (FC) affirmed the approach that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant's circumstances or evidence about those expectations.[152] That expectation is then to be weighed with and against other considerations. The Tribunal must give effect to the "norm" stipulated in para 13.3(1).
3. The majority of the Full Court of the Federal Court (Charlesworth and Stewart JJ; Flick J dissenting) in FYBR (FC) upheld the decision of Justice Perry in FYBR v Minister for Home Affairs [2019] FCA 500. Importantly, the Court essentially agreed with the approach in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and accepted Justice Mortimer's characterisation of this consideration as a "kind of deeming provision" - expressing "an expectation deemed by the government to be held by the Australian community" (FYBR (FC), [at 61], per Charlesworth J; see also Stewart J [at 89]).
4. While there is some difference in the approach to the question of construction of the relevant clauses, the majority in FYBR (FC) agree that it is not for a decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a primary consideration but to identify the Government's view about community expectations and to have due regard to that view. That view will be taken into account in considering the particular circumstances of the case and ultimately determining the exercise of the decision-maker's discretion, taking into account all the primary and other considerations.[153]
5. In FYBR (FC) Charlesworth J, held that (at [67]):

To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is "deeming", in the sense explained by Mortimer J... It is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a "primary consideration"... For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.

1. Justice Stewart held, in similar terms (at [89] and [91]):

... the government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting "community expectations" then, in that sense, they might accurately be understood as "deeming" what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.

...

The above contextual factors lead to two guiding considerations to the proper construction of Direction 65_._ First_, "community expectations" as expressed normatively are what the Government says they are, even though in actual fact if they were ascertainable community expectations might be quite different._ Second_, "community expectations" as expressed by the Government do not speak to the outcome of any particular case - they are to be understood and applied normatively._

(Original emphasis.)

1. Both majority Justices make the point that, as a primary consideration, "community expectations" are to be taken into account along with other factors to inform a

decision-maker's exercise of discretion. It follows that the ultimate decision may differ from community expectations. Community expectations are merely one of the three primary considerations to be taken into account. Further, both majority Justices note that if a decision-maker were to take account of every factor relevant to the decision to inform the content of community expectations this would render the process of weighing those other factors together with and against community expectations to be unworkable.[154] 2. Justice Charlesworth notes that it is necessary to determine the content of the deemed expectation not by reference to some factual inquiry but by reference to the paragraph itself (at [68]). The task of the decision-maker is to identify the Government's view of community expectations and to have due regard to it (at [74]). Her Honour notes that the paragraph (at [73]):

does not purport to preclude the decision-maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision-maker must necessarily do ... The clause implicitly recognises that the decision-maker's assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.

1. Her Honour goes on to note the paragraph (at [75]-[79]):

should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visas applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration...

...

The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such cases, the decision-maker would depart from the relative ascription of weight for which cl 8(4) "generally" provides, as he or she is permitted to do.

1. Justice Stewart summarises the "community expectations" as expressed in the Direction as follows (at [100]):
   • non-citizens will obey Australian laws when in Australia;
   • it may be appropriate to refuse a visa application were a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere;
   • in a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences are such that they should not be granted a visa.

Understood in this way, community expectations are simply, and informally, expressed as follows: "If you break the law it will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive."

1. In practical terms and having regard to the authorities, 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 para 13.3(1) of Direction No. 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 para 6.3(2) of Direction No. 79. 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".[155] 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.
2. 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 deeming the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold the visa. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or "deemed" in the Direction, they weigh against revocation with respect to "serious crimes".
3. However, it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision. This will depend on the Tribunal's assessment of the totality of the relevant considerations including the primary and other considerations.
4. As noted above, Direction No. 79 provides that certain crimes are to be considered "serious crimes". The Applicant's violent crimes are to be viewed "very seriously". The Tribunal accepts the Respondent's submission that the Australian community expects that the Applicant's visa can, and should, be cancelled in such circumstances. In the Tribunal's view, the offences in the present case, which by operation of Direction No. 79 are to be viewed as very serious offences, are such that the Australian community would expect that the Applicant not hold a visa. This is the community expectation which is "deemed" by the Government.
5. However, applicable to the Applicant's circumstances, the Direction No. 79 also provides at para 6.3(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.

1. The Tribunal finds that the Applicant has committed crimes which are serious crimes and the Australian community would expect that he should not hold a visa. That is, the Australian community would expect the non-revocation of the cancellation of the Applicant's visa. However, the Tribunal also finds that the community would be likely to have a higher level of tolerance for the Applicant's criminal conduct due to the fact that he has lived in Australia from a young age.
2. Although the expectations of the Australian community will weigh against the Applicant with respect to serious crimes, the Tribunal must decide in the exercise of its discretion how much weight is to be given to this consideration in the process of weighing up the primary and other considerations. Having regard to the relevant authorities and to the particular circumstances of the Applicant's case, the Tribunal finds that the expectations of the Australian community weigh against the revocation of the cancellation decision.

(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. The material before the Tribunal did not raise any issues of non-refoulement, and consequently, paragraph 14.1 of Direction No. 79 is not applicable.

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

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 non­revocation 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, as noted above, para 6.3(5) of the Principles section of Direction No. 79 states:

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.

1. Additionally, para 6.3(7) of the Principles section of Direction No. 79 states, in part:

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. The Applicant contended that he has been a resident in Australia from a young age and for the majority of his life and should be afforded a higher level of tolerance with respect to his criminal conduct. The Applicant submitted a large number of third party supporting statements including from family and friends.[156] The Applicant contended that he has strong family ties in Australia including his mother, father, step-father and six siblings, seven uncles or aunts, four nieces or nephews, 15 cousins and his remaining grandparents.[157] The Applicant submitted that he has strong social connections in Australia including through the Maori community, his church and through extensive involvement in Western Australian touch rugby organisations and in assisting needy members of the community more generally. The Applicant also contended that his immediate family would suffer financial and emotional hardship if his visa cancellation is not revoked as he would be separated from his children and unable to support his ex-wife in the care and support of the children as they enter their teenage years.
2. The Respondent conceded that the Applicant has ties to this country but that they should not outweigh the protection and expectations of the Australian community. In this regard the Respondent submitted that less weight should be given to this consideration given the Applicant commenced offending at 19 years of age and has consistently offended throughout his adult life.[158]
3. The Applicant has been ordinarily resident in Australia since 1999 at the age of 10. His ex-wife and two children reside here and are Australian citizens. His mother, father and step-father are in Australia. His parents and siblings are Australian citizens or Permanent Residents. He has a large extended family in Australia and plays a mentoring role to many of its younger members. His family have ongoing challenges including a younger brother with a disability who may need a kidney transplant.[159] They have suffered losses in the past including a younger brother and the Applicant's grand-mother to whom he was close. The Tribunal accepts that the Applicant has strong family ties in Australia and places significant weight on those ties. The Tribunal also acknowledges that his family members will suffer emotional hardship is he is removed; particularly his mother to whom he is close and who has suffered significant losses in her own life, including the loss of a son.
4. While the Applicant began offending around nine years after he began residing in Australia, in 2007, the Tribunal does not regard that para 14.2(1)(i) of Direction No. 79 applies to lessen the weight to be given to his ties to Australia.
5. The Tribunal accepts that the Applicant has undertaken regular employment while in Australia, including in the hospitality security industry, though his involvement in that industry placed him in conditions which appeared to increase his risk of offending including violent offending. There have also apparently been periods where he was unemployed including at the time of his sentencing for the Grievous bodily harm offence. The Tribunal accepts he has an offer of full-time employment in the construction industry if released from detention.
6. The Tribunal accepts that there are a number of community organisations and individuals offering active support for the Applicant and his family, including Break the Psychol, the Applicant's church group, and the Mental Illness Fellowship WA (through Ms Williamson). The Tribunal also recognises the contribution the Applicant has made to the touch rugby community in Western Australia as evidenced by the organisations attesting to his contribution and supporting him to remain in Australia.[160] There is also evidence that the Applicant has participated in community activities including feeding the homeless and volunteering to assist community members.[161] The Tribunal places weight on the community support for the Applicant and the positive contribution he has made to the community through these endeavours.
7. The Tribunal accepts that his immediate family would suffer some financial and emotional hardship if his visa cancellation is not revoked. However, Ms Tuhoro has been supporting herself and the Applicant's children since before he went to prison and while the Applicant's removal might limit his capacity to financially contribute to raising his children in the future, his ex-wife and the children's financial position would remain as it has been for the past few years. They would also continue to have emotional support from his extended family.
8. The Tribunal accepts that the Applicant has good employment prospects in Australia based on his past employment history and that he has an offer of full-time employment from Solid Scaffolding.[162] Additionally, Mr Manunui Tito, who works as a rope access rigger and is a friend of the Applicant, had spoken to his supervisors and stated that the Applicant would "be welcomed into our team".[163]
9. The Tribunal accepts that the Applicant has been in Australia for a significant amount of time having settled here at a young age, the majority of his life to date, and has made a generally positive contribution to the community whilst here. The Tribunal regards that the community would afford him a higher level of tolerance with respect to his offences as a consequence of these factors.
10. Many of the Applicant's close friends and family who testified are from New Zealand and some have returned there to visit a number of times. It is reasonable to conclude that some may have the capacity to travel to New Zealand to visit the Applicant if he were returned to New Zealand which would lessen the emotional hardship they are likely to suffer from separation.
11. Having regard to all of the Applicant's circumstances, the Tribunal considers that his ties to Australia and in particular his ties to his wife, children and close family and friends weigh in favour of revocation of the cancellation of his visa.

1. Paragraph 14.3(1) of Direction No. 79 provides for the consideration of the:

Impact on Australian business interests of the non-citizen's visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

1. The Applicant did not make any specific submissions with regard to any impact on Australian business interests of a decision not to revoke the cancellation of the Applicant's visa. However, the Applicant submitted that he has economic ties in Australia having been offered full-time employment with Solid Scaffolding if he is released from detention.
2. The statement from Mr Freeman, a friend of the Applicant, indicated that he and the Applicant:[164]

were in the process of getting a patent for the revolutionary new water safety product we both have invented that will save countless Australian lives yearly...

He noted that if the Applicant were deported it would be too hard to achieve the product's potential. While the Tribunal accepts the Applicant may have been working on a project with Mr Freeman he did not offer any further evidence regarding the device or mention it in his evidence or submissions. In such circumstances, on the evidence available the Tribunal is unable to find that non-revocation would compromise the delivery of a major project, or delivery of an important service in Australia.

1. Further, while the Tribunal accepts that the Applicant has a strong employment history, there is no evidence before the Tribunal that non-revocation of the cancellation of his visa would have a detrimental impact on Australian business interests, including those of Solid Scaffolding. There is also no evidence that any employment link he has with prior employers or future employers would indicate non-revocation of his visa would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
2. Having considered the circumstances of the Applicant, the Tribunal does not regard this to be a relevant consideration in the exercise of its discretion. Accordingly, the Tribunal places no weight on this consideration.

1. Under the heading "Impact on victims", para 14.4(1) of Direction No. 79 provides for the consideration of the:

Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.

1. There is a life-time restraining order with respect to the victim of the Applicant's _Grievous bodil_y harm offence. Assuming the Applicant complies with its terms, this should afford that victim some protection from further offending in the event the cancellation decision is revoked.
2. The Tribunal heard directly from another victim of the Applicant's offending, his ex-wife, regarding the impact of a decision not to revoke the cancellation of the Applicant's visa on her and her family.[165]
3. The Tribunal places weight on Ms Tuhoro's statement and her judgement that it is in her children's best interests for the Applicant to remain in Australia. As such the Tribunal accepts Ms Tuhoro's assessment that non-revocation of the cancellation of the Applicant's visa would impact on her and her family negatively. Those impacts would include: a limitation on the prospect of the Applicant providing financial support for her and her children; the emotional support that her children would receive through their relationship with their father; and the emotional support she would receive in dealing with and parenting the children.
4. Having regard to all the evidence, the Tribunal finds that a decision not to revoke the cancellation of the Applicant's visa would impact negatively on a victim of the Applicant's offending and her family. Accordingly, the Tribunal regards that this consideration weighs in favour of the revocation of the decision to cancel the Applicant's visa with respect to that victim.
5. With respect to any other victims whose circumstances and views are unknown to the Tribunal, the Tribunal finds the consideration is neutral.

1. Paragraph 14.5(1) of Direction No. 79 provides:

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.

1. The Applicant submitted that he does not have any substantial ties in New Zealand as the vast majority of his family are in Australia and he has little contact with those remaining in New Zealand, some of whom are involved with illicit drugs.[166] The Applicant submitted he would have difficulty finding employment and accommodation in New Zealand and that the stress of separation from his children may leave him at greater risk of reoffending.
2. The Respondent submitted that while the Applicant may face some short-term hardship re-establishing himself, this was not an impediment to resettlement. The Respondent contended that this consideration did not weigh in favour of revocation and was at best neutral.
3. There was no evidence before the Tribunal of any physical or mental conditions suffered by the Applicant which might impede his removal and reintegration in New Zealand. The Parole Review Report notes that the Applicant had no known psychological or psychiatric issues and no apparent intellectual or physical disability issues.[167]
4. The evidence before the Tribunal indicates that the Applicant is from a strong Maori family and is familiar with New Zealand culture. There was evidence he had been taught his peoples culture and traditions, particularly by his grandmother. These issues are not likely to amount to substantial impediments to his return and resettlement.
5. He is relatively young and on the evidence before the Tribunal is generally in good physical health. There is also evidence he had a knee brace at some point which he did not wear in prison. However, no evidence regarding any medical issues concerning this or any other medical ailment was presented to the Tribunal. In any event there is no evidence that the Applicant would not have access to medical care of a standard available to New Zealand citizens or that health care in New Zealand would be unable to meet his treatment needs.
6. The Tribunal regards that the Applicant's employment experience in Australia would assist him in obtaining employment in New Zealand noting that he has worked in a range of industries.
7. The Applicant's mother and step-father have offered to provide housing and other support to the Applicant on his release from detention. The Tribunal accepts that this level of support would not be readily available to the Applicant in New Zealand and that he would suffer hardship as a result.
8. The principal hardship for the Applicant in returning to New Zealand will be the separation from his family. The Tribunal accepts that if he is removed from his family network the Applicant will suffer emotional and financial hardship and may be at a higher risk of reoffending.
9. On balance and having considered all the Applicant's circumstances, the Tribunal considers that the Applicant will face some impediments in re-establishing himself if returned to New Zealand. The most significant impediment for the Applicant would be separation from his family. The Tribunal considers that this consideration weighs in favour of revocation of the cancellation of the Applicant's visa.

1. Direction No. 79 provides some guidance as to how a decision-maker should apply the primary and other considerations, and the weight to be given to them. Paragraphs 8(3), (4) and (5) are relevant here, and state:

(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. The Applicant does not pass the character test under s 501(6) of the Migration Act.
2. The Tribunal has 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 determining the weight to be applied to each consideration, the Tribunal has regard to all the Applicant's circumstances, including his history of offending and his attempts at rehabilitation. The Tribunal has considered all the primary considerations, including the serious nature of the offences committed by the Applicant and the risk of harm to the community were he to reoffend. The Tribunal has had particular regard to the fact the Applicant has been afforded opportunities in the past by the criminal justice system to change his behaviour. He has repeatedly failed to do so. The Tribunal has also had regard to the Applicant's current demonstration of remorse and his stated commitment to rehabilitation. The Tribunal has considered the best interests of the relevant minor children and in particular the Applicant's two children who would be significantly impacted by his removal from Australia. The Tribunal has also considered the expectations of the Australia community regarding the Applicant's offending and whether he should continue to hold a visa. The Tribunal has also had regard to the other considerations, in particular the strength, nature and duration of the Applicant's ties to Australia, which are considerable.
4. In relation to the first primary consideration, the Tribunal finds that:

• the nature and seriousness of the Applicant's conduct weighs strongly against revoking the cancellation decision;[168]
• the risk to the Australian community should the Applicant commit further offences also weighs against revoking the cancellation decision;[169]
• Overall, with respect to the first primary consideration, the Tribunal concludes that the protection of the Australian community weighs against revoking the cancellation decision.[170]

1. The Tribunal finds that the best interests of the Applicant's children weigh heavily in favour of revoking the cancellation decision. The best interests of the children of Ms Tutu Marsters and Ms Allison Marsters weigh moderately in favour of revoking the cancellation decision.[171]
2. With respect to the expectations of the Australian community, the Tribunal finds that this consideration weighs against revoking the cancellation decision.[172]
3. In relation to the other considerations, the Tribunal finds that the strength, nature and duration of the Applicant's ties to Australia weigh strongly in favour of revoking the cancellation decision.[173] Considering the impact of non-revocation on a victim of the Applicant's offending, the Tribunal finds that a decision not to revoke the cancellation of his visa would impact negatively on a victim of the Applicant's offending and her family.[174] The Tribunal finds this consideration weighs in favour of revoking the cancellation decision with respect to this victim. The Tribunal finds that with respect to any other victims whose circumstances and views are not known the consideration is neutral.
4. The Tribunal has also found that there are impediments to the Applicant's removal to New Zealand.[175] This factor weighs in favour of revoking the cancellation decision. However, as the impediments are not insurmountable, they do not weigh strongly in the balance of considerations.
5. The Tribunal has given consideration to the impact on Australian businesses and found that factor to be neutral in the Applicant's circumstances. The issue of non-refoulement did not arise for consideration in submissions or on the information before the Tribunal.
6. The Tribunal has considered carefully the best interests of the Applicant's children. The Tribunal accepts that the best interests of the children are that the cancellation be revoked. However, the Tribunal finds that this will only be the case if the Applicant ceases substance abuse and does not reoffend in a manner similar to his past history. By his own admission, the Applicant's past actions have separated him from his children for significant periods and placed impediments on him providing day-to-day support for them. While the Tribunal weighs heavily the best interests of the children, it is the Applicant's offending and in particular his repeated offending which has placed his children in this difficult position. Thankfully the children have the care and protection of their mother who is and has been their primary caregiver for some time, the love and support of a large family and community in Australia and the ability to return to New Zealand on an occasional or permanent basis should they chose to do so. Having weighed these considerations against the others mentioned above, the Tribunal places less weight on this primary consideration.
7. While the children's interests are best served by the Applicant remaining in Australia, the Australian community is not best served by the Applicant remaining here. He has shown an unwillingness or inability to regulate his violent behaviour which escalated to the point where a victim was caused serious, life-threatening, injuries. Although remorseful, he has not sufficiently addressed the causes of his offending and did not have a clear plan for doing so. He has consistently failed to comply with the laws of Australia which are put in place for the protection and good order of the Australian community and has displayed in his offending a disregard for the importance and authority of those laws and the institutions which enforce them. This has made him an unacceptable risk to the community going forward. Having regard to all the circumstances of the Applicant's case, the Tribunal is of the opinion that the primary obligations of the protection of the Australian community and the expectations of the Australian community outweigh the other considerations that weigh in favour of revoking the cancellation decision.
8. 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 exercise the discretion 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 the Respondent's delegate dated

29 November 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 251 (two hundred and fifty-one) paragraphs are a true copy of the reasons for the decision herein of Member S Burford

......[sgd]..................................................................

• Applicant's Statement of Facts, Issues and Contentions filed 30 January 2020 (Exhibit A1);
• Statement of the Applicant dated 27 January 2020 (Exhibit A2);
• Statement of Allison Josephine Marsters (undated) (Exhibit A3);
• Statement of Allison Josephine Ngakiri dated 20 December 2019 (Exhibit A4);
• Statement of Arphirak Paul (undated) (Exhibit A5);
• Statement of Briar Maraina Tuhoro-Gage dated 11 January 2020 (Exhibit A6):
• Statement of Richard Eynon dated 15 January 2020 (Exhibit A7);
• Statement of coach Keith Brady dated 10 December 2019 (Exhibit A8);
• Statement of Liam Oman-Salisbury (undated) (Exhibit A9);
• Statement of Manunui Timothy James Tito dated 9 December 2019 (Exhibit A10)
• Statement of Marian Paul dated 9 December 2019 (Exhibit A11);
• Statement of Maru Paul dated 23 December 2019 (Exhibit A12);
• Statement of Michael John Paul Purea (undated) (Exhibit A13);
• Statement of Michael Noel Freeman dated 9 January 2020 (Exhibit A14);
• Statement of Monique Gaye Williamson dated 27 December 2019 (Exhibit A15);
• Statement of George Patrick Graham (undated) (Exhibit A16);
• Statement of Sarah Jessica Gage (undated) (Exhibit A17);
• Statement of Sophie Te Paea Pile dated 9 December 2019 (Exhibit A18);
• Statement of Talia Maraina Tuhoro dated 10 January 2020 (Exhibit A19);
• Statement of Richard Nicholas Perry dated 10 January 2020 (Exhibit A20);
• Statement of Timothy James Paltridge (undated) (Exhibit A21);
• Statement of Tipene Galiki dated 9 January 2020 (Exhibit A22);
• Statement of Topia Morehu dated 9 December 2019 (Exhibit A23);
• Statement of Victor Terehutai Paul dated 19 December 2019 (Exhibit A24);
• Statement of Tutu Victoria Marsters dated 6 January 2020 (Exhibit A25);
• Certificate of Participation of Gaston Gage for Life Skills dated January 2020 (Exhibit A26);
• Certificate of Participation of Gaston Gage for Men's Group dated January 2020 (Exhibit A27);
• Respondent's Statement of Facts, Issues and Contentions dated 16 January 2020 (Exhibit R1);
• G Documents filed by the Respondent on 17 December 2019 (Exhibit R2); and
• Tender Bundle filed by the Respondent on 16 January 2020 (Exhibit R3).

[5] R2, G3, pages 9-13; R2, G8, page 47.

[14] Migration Regulations 1994 (Cth), Reg 2.55(5).

[16] Minister for Immigration and Border Protection, Direction No. 65 - Migration Act 1958 - Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (22 December 2014).

[27] The Statement of Material Facts contained conflicting dates for this event which the parties both submitted occurred on New Year's Eve 2010. The statement refers to the event occurring on 31 December 2011 however this appears to be a typographical error.

[44] See HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, per McKerracher J at [77]). See also the survey of Bromberg J HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 and consideration of the issues by this Tribunal in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2019] AATA 4424 (31 October 2019) and Toki and Minister for Home Affairs (Migration) [2019] AATA 742 (17 April 2019)

[45] Upheld on appeal in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.

[46] Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649; Minister for Ethnic Affairs v Gungor [1982] FCA 99; (1982) 42 ALR 209; Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313; Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234; Degerli v Minister for Immigration and Ethnic Affairs [1981] FCA 250 (23 December 1981); Beckner v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 264; (1991) 30 FCR 49; Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155.

[47] Noting in particular the principles espoused by the Court of Appeal of the Supreme Court of Victoria in Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155.

[48] Her Honour was considering an earlier version of the Act, however as s 200 was a precursor to s 501 her comments are equally applicable to the current application.

[50] Para 13.1.1(1)(e) of Direction No. 79.

[51] Para 13.1.1(1)(f) of Direction No. 79.

[52] Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359 cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424, 444 [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117, 124[42]-[43]. See also Senior Member Evans in CZCV and Minister for Home Affairs [2019] AATA 91 at [56].

[58] See XFKR and Minister for Immigration and Border Protection [2017] AATA 2385; QGMJ and Minister for Immigration and Border Protection [2017] AATA 1537; QSBL and Minister for Home Affairs [2018] AATA 2074 at [59]; and ZTGP and Minister for Home Affairs [2018] AATA 3518 at [99].

[59] Para 13.1.2(1)(b) of Direction No. 79.

[73] The Sentence Administration Act 2003 (WA) at s 5B provides that the Board "must regard the safety of the community as the paramount consideration".

[102] Para 13.2(4)(a) of Direction No. 79.

[105] Direction No. 79, para 13.2(4)(e).

[106] Direction No. 79, para 13.2(4)(c).

[107] Direction No. 79, para 13.2(4)(b).

[108] Direction No. 79, para 13.2(4)(d).

[109] Direction No. 79, para 13.2(4)(g).

[110] Direction No. 79, para 13.2(4)(h).

[111] Direction No. 79, para 13.2(4)(f).

[114] For example the statement of his mother at A11.

[115] Direction No. 79, para 13.2(4)(f).

[116] For example the statement of his mother at A11

[120] Direction No. 79, para 13.2(4)(b).

[121] Direction No. 79, para 13.2(4)(c).

[122] Direction No. 79, para 13.2(4)(d).

[123] Direction No. 79, paragraph 13.2(4)(e).

[124] Direction No. 79, para 13.2(4)(f).

[125] Direction No. 79, para 13.2(4)(g).

[126] Direction No. 79, para 13.2(4)(h).

[128] A4; Direction No. 79, para 13.2(4)(f).

[129] A25; R2, G17, page 97: Transcript, pages 45-48.

[131] Direction No. 79, para 13.2(4)(a).

[132] Direction No. 79, para 13.2(4)(b).

[133] Direction No. 79, para 13.2(4)(c).

[134] Direction No. 79, para 13.2(4)(d).

[135] Direction No. 79, para 13.2(4)(e).

[136] Direction No. 79, paras 13.2(4)(g) and (h).

[137] Transcript, page 51; A3; see Statement of Aaron Marsters, R2, G17, page 103. The Tribunal notes Mr Marsters' statement makes reference to his 11-year-old son but no other mention has been made to that child and the Tribunal has considered Mr Marsters' family ties to the Applicant under the considerations of his ties to Australia and impediments to removal.

[139] Direction No. 79, para 13.2(4)(a).

[140] Direction No. 79, para 13.2(4)(f).

[145] Direction No. 79, para 13.2(4)(b).

[146] Direction No. 79, para 13.2(4)(c).

[147] Direction No. 79, para 13.2(4)(d).

[148] Direction No. 79, para 13.2(4)(e).

[149] Direction No. 79, paras 13.2(4)(g) and (h).

[152] While the case of FYBR (FC) concerns Direction No. 65 and in particular paras 6, 8 and 11.3 of that Direction, the text of the relevant provisions is largely unchanged in Direction No 79. The Tribunal considers that the Court's consideration of the issue of "community expectations" is directly applicable to paras 6, 8 and 13.3 of Direction No. 65 which are applicable to applications under Direction No. 79. Further, although the Justices in FYBR (FC) were considering the provisions with respect to visa refusal their comments are, in the Tribunal's view, equally applicable to the cancellation of a visa (though the other considerations and weighing exercise may differ).

[153] Charlesworth J at [73]-[74]; Stewart J at [93] and [103]

[154] See Charlesworth J (at [74]), Stewart J (at [91]-[93]).

[155] See for example Direction No. 79 paras 13.1.1(1)(a), (b) and (c).

[160] Including Perth Brother's Touch Association, A15; R2, G17, page 105; Fremantle Rebels Touch Association, R2, G17, page 120.

[161] See for example R2, G17, pages 93, 113 and 116; A14.

[165] Para 14.4(1) of Direction No. 79.

[168] Paras 13.1 and 13.1.1 of Direction No. 79.

[169] Paras 13.1 and 13.1.2 of Direction No. 79.

[170] Paras 13.1, 13.1.1 and 13.1.2 of Direction No. 79.

[173] Para 14.2(1) of Direction No. 79.

[175] Para 14.5(1) of Direction No. 79.