LZTW and Minister for Home Affairs (Migration) [2019] AATA 779 (30 April 2019)

1. The Applicant is a 26 year old citizen of New Zealand (born August 1992). He first arrived in Australia on 17 June 2006 and was granted the visa.
2. The Applicant's National Police Certificate, dated 6 July 2018, reveals that on 16 March 2018 the Applicant was convicted of '[h]aving the care and control of a child, engaged in conduct knowing that conduct may result in harm to the child' and was sentenced to imprisonment for 20 months (from 13 February 2018).
3. On 2 May 2018 the Department notified the Applicant that his visa had been cancelled pursuant to s 501(3A) of the Act. The visa was cancelled on the basis that the Applicant had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory (ss 501(3A)(a) and (b), 501(6)(a) and 501(7)(c) of the Act).
4. On 5 May 2018 the Applicant submitted a request for revocation of the cancellation decision. On 5 February 2019 a delegate of the Respondent decided, under s 501CA(4) of the Act, not to revoke the visa cancellation decision.
5. On 12 February 2019 the Applicant sought review of that decision in the Tribunal.

1. The issues before the Tribunal are whether the Applicant meets the character test as defined in s 501(6) of the Act, and if he does not, whether there is another reason why the mandatory cancellation of the visa should be revoked under s 501CA(4)(b)(ii) of the Act.
2. The Applicant concedes that he does not meet the character test (A12, para. 23). The Tribunal finds that he does not pass the character test. Therefore the only issue for determination is whether there is another reason why the mandatory cancellation of the visa under s 501(3A) of the Act should be revoked (s 501CA(4)(b)(ii) of the Act).

1. The Applicant's criminal history, derived from the Applicant's National Police Certificate, is as follows (R3, G8 page 46):

Breach of Bail Granted undertaking; Bail Granted ACT 1982; 51(1)

Common assault in circumstances of aggravation or racial aggravation; Criminal Code (WA); 313(1)(a)

Using a prohibited drug (cannabis); misuse of drugs ACT 1981; 6(2) g

Having the care and control of a child engaged in conduct knowing that conduct may result in harm to the child; children and community services ACT 2004; 101 (1)(a)

[counts 1] imprisonment: 20 months cumulative from 13-feb-2018. - cumulative

[counts 1] fine: $750; mdl disqualified: 9 Months

1. The matter was heard on 16 April 2019. The Applicant was represented by Mr Stephen Mintz of Tang Law and the Respondent was represented by Mr Ashley Burgess of Sparke Helmore.
2. Witnesses for the Applicant were the Applicant, the Applicant's partner, the Applicant's mother, the Applicant's father, the Applicant's brother and the Applicant's sister.
3. The material before the Tribunal at the time of the hearing was:
   • Statement of the Applicant (A1);
   • Statement of the Applicant's partner dated 13 March 2019 (A2);
   • Statement of the Applicant's mother dated 13 March 2019 (A3);
   • Statement of the Applicant's father dated 13 March 2019 (A4);
   • Statement of the Applicant's brother dated 14 March 2019 (A5);
   • Statement of the Applicant's sister dated 13 March 2019 (A6);
   • Statement of the Applicant's former employer dated 20 February 2019 (A7);
   • Letter from Acacia Prison - Attendance at Recovery from Addiction dated

7 December 2018 (A8); * 'Keeping Off It' Program Completion Certificate dated 22 November 2018 (A9); * 'My Relapse Prevention Plan' undated (A10); * Department of Justice Management and Placement Sentenced dated 3 April 2018 (A11); * Applicant's Statement of Facts, Issues and Contentions dated 14 March 2019 (A12); * Applicant's Submissions in Response to the Respondent's Statement of Facts, Issues and Contentions dated 10 April 2019 (A13); * Documents produced under summons from the District Court of WA, [omitted] Medical Centre, Perth Children's Hospital, Department of Child Protection and Western Australia Police (R1); * Victim Impact Statement on behalf of the baby, written by [redacted] (R2); * Bundle of G Documents (G1-G25) (R3); and * Respondent's Statement of Facts, Issues and Contentions dated 3 April 2019 (R4).

(3A) The Minister must cancel a visa that has been granted to a person if:

(a) the Minister is satisfied that the person does not pass the character test because of the operation of:

• (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

• (ii) ...; and

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

(6) For the purposes of this section, a person does not pass the character test if:

(a) the person has a substantial criminal record (as defined by subsection (7)); or...

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

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

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

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

(c) the person has been sentenced to a term of imprisonment of 12 months or more; or

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

1. Section 501(7A) of the Act provides clarification for when a person is sentenced to concurrent sentences of imprisonment:

(7A) For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.

(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(4) The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

• (i) that the person passes the character test (as defined by section 501); or
• (ii) that there is another reason why the original decision should be revoked.

1. Section 499(1) of the Act provides that the Minister may give written directions as follows:

(1) The Minister may give written directions to a person or body having functions or powers under this Act ... if the directions are about:

(a) the performance of those functions; or

(b) the exercise of those powers.

1. Section 499(2A) of the Act states that '[a] person or body must comply with a direction under subsection (1).'
2. On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made a direction under s 499 of the Act, named 'Direction no. 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under

s 501CA' (Direction 79). The commencement date for operation of Direction 79 was

28 February 2019 (Paragraph 2 of Section 1 of Direction 79). 3. Paragraph 6.1 sets out the objective of Direction 79. Paragraph 6.1(3) relevantly provides:

Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

1. Paragraph 6.2 of Direction 79 provides general guidance as follows:

(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen's visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.

(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

1. Paragraph 6.3 of Direction 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4) of the Act, including the Tribunal. They are:

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.

1. Paragraph 7(1)(b) of Direction 79 provides that, informed by the principles set out in paragraph 6.3 of Direction 79, the decision-maker (in this case the Tribunal) must take into account the considerations in Part C of Direction 79 in order to determine whether the mandatory cancellation of the visa will be revoked.
2. Paragraph 13(2), which is in Part C of Direction 79, provides:

(2) In deciding whether to revoke the mandatory cancellation of a non-citizen's visa, the following are primary considerations:

1. Protection of the Australian community from criminal or other serious conduct;
2. The best interests of minor children in Australia;

(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):

1. International non-refoulement obligations;
2. Strength, nature and duration of ties;

1. Impact on victims;
2. Extent of impediments if removed.

1. Further guidance as to how a decision-maker is to apply the considerations in Direction 79 can be found in paragraph 8 of Direction 79 which provides:

(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

(4) Primary considerations should generally be given greater weight than the other considerations.

(5) One or more primary considerations may outweigh other primary considerations.

First primary consideration: Protection of the Australian Community from criminal or other serious conduct (13(2)(a))

1. Paragraph 13.1 of Direction 79 provides that when decision-makers are considering the protection of the Australian community, they:

(1) ...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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

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

1. The nature and seriousness of the non-citizen's conduct to date; and
2. The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

Nature and seriousness of the conduct (paragraph 13.1(2)(a))

(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to factors including:

1. The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
2. The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

1. 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;

1. Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
2. The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
3. The cumulative effect of repeated offending;
4. Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
5. 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);
6. 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;

1. The Applicant has been convicted of two counts of no authority to drive, one count of driving while exceeding 0.08g of alcohol per 100ml of blood, one count of use of a prohibited drug (cannabis), one count of common assault in circumstances of aggravation, one count of breach of bail and, most seriously, one count of having the care and control of a child and engaged in conduct knowing that conduct may result in harm to the child.
2. Clearly the most serious of the Applicant's offences, and the one that caused the cancellation of the visa, is the count of having the care and control of a child, engaged in conduct knowing that the conduct may result in harm to the child. The circumstances surrounding this offence are set out in Troy DCJ's sentencing remarks as follows (R3, G9):

The child victim in this case [the baby] was born on [omitted] March 2016 and is the daughter of both of you. You were in a de facto relationship at the time of the offending but have since separated, since shortly after your arrest in July 2016.

...

Both of you shared bedroom with [the baby]. There were no difficulties for the first two weeks of her life. But then you, [Applicant], stopped going to work and lost your job. When arguments developed with [Applicant]'s parents, the two of you together with [the baby] would retreat into the bedroom and there would be no contact for a couple of days or so.

[Applicant]'s mother [omitted] had care from - of [the baby] from around 10 am in the morning through until mid-afternoon. The two of you would remain in your bedroom, and it became apparent that you were regularly smoking cannabis.

If your mother, [omitted], raised any concerns; for example, because of screams that she heard, you, [the Applicant], would keep the child in the bedroom for a couple of days or so thus depriving her of contact.

[The Applicant's mother] on one occasion witnessed you, [co-accused] slam the child down into your lap very forcefully, causing the child to be inconsolable and to scream.

She also reports her husband, your father, ... confronting you, [the Applicant] about a bruise to the child's cheek. On another occasion she saw you, [the Applicant], push the child [the child] roughly down onto your lap out of frustration...

In the three weeks that led up towards [the baby]'s admission to hospital on

19 May, she noted that [the baby] had a cold that got progressively worse and that her breathing was becoming difficult.

She offered to take the child to the hospital with you, [co-accused], but you refused.

Having eventually taken the child to the hospital on 19 May, both of you remained at home that night smoking cannabis.

[The Applicant's mother] observed you both regularly giving the child Panadol. On occasions you would seek to explain away injuries as being caused by a zipper, or wiping away a bleeding nose too hard.

[The Applicant's sister], your sister, [the Applicant], witnessed both of you screaming at [the baby]. She witnessed a bruise on [the baby]'s right cheek, which you, [the Applicant], claim to have been caused when you dropped a lollipop onto her face. I accept that you told your sister that was what occurred and I find that it was an obvious falsehood.

One night, [the Applicant's sister] heard [the baby] scream from within the bedroom you both occupied as though she was in agonising pain. She said in her statement:

I would describe it sounded like she was getting murdered. Long to short to long screams.

...

She witness you arguing with each other on a regular basis and noted that you, [the Applicant] can get really angry quickly.

...

She asserts that you, [the Applicant], would not let her see the child [the baby] when she was born, and that for the first four weeks of [the baby]'s life, her attempts to call the two of you to arrange a visit were unanswered. She went to your address and was told by you, [the Applicant], that if she wanted to visit, she had to do so by appointment. She visited by appointment four or five times over the next five weeks.

...

I accept these statements of [the Applicant's mother], [co-accused] and [co-accused's grandmother] which does suggest so far as you are concerned, [the Applicant], a controlling person.

...

Neither of you gave evidence during this sentencing hearing. In a communication to your lawyers some two day prior to the hearing, I indicated that should either of you wish to contend that you were not yourself directly responsible for any of the injuries undoubtedly suffered by your daughter you would need to establish that on the balance of the probabilities; that is, it is more likely than not that you were not responsible.

On 4 May 2016, when [the baby] was seven weeks old, you both took her to the [omitted] medical centre. According to the practice nurse at the [omitted] medical centre on that date, you, [co-accused], appeared to be malnourished and very thin and did not seem aware or alert to [the baby]'s general presentation.

The general practitioner Dr Lim observed that [the baby] was failing to thrive, had respiratory distress, and was suffering weight loss, abnormal irritability and sunken eyes. She now weighed 4.1 kilograms which was a reduction from 4.2 kilograms the previous week. You did not even have a nappy bag with you.

Such were Dr Lim's obvious concerns that she determined [the baby] needed immediate review at the [omitted] Emergency Department and provided a referral for examination by the paediatric team. You were both directed to take [the baby] immediately to the Emergency Department, and Dr Lim advised the Emergency Department by phone of your referral.

Following the consultation with Dr Lim, you, [the Applicant], said that you would go up now. You did not, of course, take [the baby] to the Emergency Department.

You did not facilitate any further medical treatment for [the baby] for a further 15 days until you, [co-accused], took [the baby] to the Emergency Department on 19 May 2016.

By that time [the baby]'s condition had deteriorated markedly. She had several fractures to her ribs and left leg, and had to be taken by ambulance to the Princess Margaret Hospital for a comprehensive skeletal examination. On examination it was determined that [the baby] had sustained at least 23 rib fractures, and each long bone in her body had at least one fracture. [The baby] had sustained at least 35 fractures to her body which were in various stages of healing.

Dr [omitted], a paediatrician in the Child Protection Unit at Princess Margaret Hospital whose report is in the brief concluded that [the baby] had been subjected to those injuries on numerous occasions over a period of time. She had only been alive for nine weeks of that time. [The baby] was obviously in significant pain and required morphine for pain relief.

In Dr [omitted]'s report, the following information emerges. [The baby] had a birth weight of 2.9 kilograms. As of 19 May, she had a weight of 4.22 kilograms, which placed her on the 10th percentile. She had a bruise on her right ear, several small scratch marks on her nose, a small 1-centimetre abrasion to her right jawline, and a subconjunctival haemorrhage to her left eye. She had significant swelling to her left thigh.

The summary of injuries reveals right-sided back fractures to ribs 10 and 11, both side and front fractures to ribs 3, 4, 5 and 6, together with a side fracture to rib 7. Left-sided back fractures to ribs 5, 9, 10 and 11, and side and back fractures to rib 6, and left-sided front fractures to ribs, 3, 4, 5, 6 and 7.

There was evidence of bone injury at the lower part of the right upper arm bone and a fracture at the elbow. There was a fracture to the lower end of the right forearm bone. There was a healing bone injury at the lower end of the ulnar on the left arm, and a fracture to the lower end of the radius.

There was a fracture to the upper end of the lower leg bone on the right leg, and an oblique fracture to the right tibia. There were three fractures to the left femur and a fracture to the lower end of the left fibular. There was a bruise in the right ear.

There is no doubt in my mind at all that all, or at least the vast majority of these injuries were inflicted deliberately. They required the application of a significant degree of force.

A number of the injuries are explicable by twisting or pulling on the limb of [the baby]. The rib fractures could be caused by the application of force, such as squeezing. There is no suggestion of a bone abnormality causing [the baby]'s bones to fracture more easily than normal.

...

You denied falsely, I find, that Dr Lim said to you, "You should go immediately." I have no doubt that you understood from what Dr Lim said to you that you had to take the child immediately, but you did not do so.

Initially, you said you waited a couple of days. But as the police pointed out to you, you in fact waited 15 days. You said that you told [the Applicant] over and over that you wanted to go to the hospital, and he persuaded you not to because he scared you. You said:

I don't know why he intimidated me so much, but he did. He had that effect on me.

...

[The Applicant], you were interviewed in the evening of 20 May 2016. You said initially that you had only seen [the baby] five or six times since she was born, because [co-accused] had been living at [omitted]. You also said that you hadn't seen [the baby] for three weeks.

You said you had a cot in your bedroom, but that you had never used it. You were adamant that [the baby] had never been living at your address in [suburb]. Then 56 pages into the interview, you asked the police:

Can I just stop lying? This was literally what she -

- wanted me to say. This is what we have discussed.

And you said that you and [co-accused] did not want [co-accused] to get cut off her benefit.

Later in the interview, you said it was your idea that should [co-accused]'s parents wish to visit, they would need to call you first. You said that you had noted one day, the previous week - and I note that this interview was on a Friday - that [the baby]'s left leg was a little bit swollen.

You then described a time, which you say was prior to going to the doctors, when you had accidentally slept on top of [the baby] but that you had not disclosed that to anyone because both of you were worried about getting cut off from your Centrelink benefits.

You said that following that episode, [the baby] started to wheeze when she was breathing. And it was after that - perhaps a day after - that you took her to the doctor. You told the police that the doctor measured and weighed [the baby] and said that everything was okay. That was, I find, a lie.

A further interview was carried out with you on 6 July 2016. When asked about why you neglected to take [the baby] to get medical attention for a noticeably swollen leg, you initially said that there was no reason for avoiding any sort of medical attention. You said you were both meant to get up early one morning and take her to the doctor, but you slept in and missed the appointment. You said you didn't go to the hospital on 19 May because you were concerned about getting cut off the payments from Centrelink.

You were asked about the visit to the general practitioner on 4 May. And you were asked:

Were you told to do anything when you went to see the general practitioner?

Really? You can't remember being told anything in relation to the respiratory issues?

Eventually, police put to you - at the bottom of page 58 of the interview - that:

It wasn't a referral to go whenever you want. It was a, 'You are to leave this medical centre now and drive to the [omitted] Emergency Department.' Do you recall the conversation?

Why did you not take [the baby] to the emergency department on that day?

[Co-accused] wasn't keen on taking her anywhere.

Where did you go?---Went home. Uh, will make an appointment for tomorrow. It never happened.

...

You were asked, in terms of you avoided going to the hospital because of getting cut off from Centrelink payments, and I find that you agreed with that proposition.

That's possibly the reason. That's pretty much the biggest reason for it.

So you've put financial gain above medical attention for your baby?

You've put that above the health and welfare and safety of your child, is that correct? --- Yes.

You accepted that you told your family on 19 May that [the baby] had been kept in hospitalisation following her immunisations to monitor her as she had been sick. And that you smoked some cones of cannabis that night with [co-accused].

...

The conduct relied upon by the State is, firstly, failing to take [the baby] to the [omitted] Emergency Department on 4 May 2016, given her condition as noted in your presence by Dr Lim that day and given the specific instructions plainly conveyed to each of you by Dr Lim.

Secondly, failing to take [the baby] to the emergency department at any stage prior to 19 May, over which period [the baby]'s health deteriorated still further as a consequence of her suffering the injuries noted by Dr [omitted] in her report.

The relevant conduct occurred over a period of some 15 days. [the baby], the victim, could not have been any more vulnerable. She was a nine-week old baby weighing a little more than four kilograms. Your conduct amounts to a profound breach of trust, in that you are the mother and father of [the baby].

...

Whether or not you, [the Applicant], or you, [co-accused], or both of you together were the actual cause of the numerous injuries, and even if the other parent acted alone, in the circumstances of this case it is inconceivable that either of you were unaware of the extent to which this child, living in your shared bedroom, was suffering. The injuries are too many and too profound. You both must have known that [the baby], aged only nine weeks, was in severe pain as a result of many injuries.

Each of you must have known that [the baby] was being deliberately injured and by failing to take [the baby] to hospital for as much as 15 days, you wilfully exposed her to prolonged physical abuse and obvious pain until you finally took her 15 days after you had both been told to take her immediate to the emergency department.

...

I find that as you, [the Applicant], expressly acknowledged in interview, both of you prioritised your - on the face of it, fraudulent financial situation above the welfare of your child.

...

I am satisfied beyond reasonable doubt, that on at least one occasion each of you, separately, treated this child roughly as described by [the Applicant's mother]. I cannot conclude however, that this resulted in any injury.

I would, frankly, prefer to be in a situation where I am sentencing offenders where I can make definitive findings of fact, that one of you or both of you, as the case may be, were directly responsible for some or all of these injuries.

If I were in that position, plainly a much heavier penalty would be imposed upon the person or persons, who were directly responsible for this child's horrific injuries.

...

Neither of you have satisfied me, on the balance of probabilities that you, yourself, did not inflict any injuries.

...

You accepted you were regularly consuming cannabis. You were fired from your employment and your use of cannabis escalated.

...

I accept the statement of your mother that she'd raised concerns about [the baby] on numerous occasions with you.

1. The circumstances surrounding this offence, and the aggravated assault by the Applicant on his then partner, the co-accused and the mother of the baby, are also covered by statements given to police shortly after the relevant events. In her statement dated

17 June 2016 the Applicant's mother said: 1. [Applicant] and [co-accused] ended up moving into our house in [omitted] around half-way through her pregnancy. I can't be exactly sure of the timing of the move. 2. [The Applicant's father] and I took them into our house because [co-accused] was pregnant at the time. We have had several issues with [Applicant] living under our roof in the past.

1. He had been working as a labourer and would have to leave early for work. He'd usually be up around 6:00 am and would drive to work, even though he doesn't have a driver's licence.
2. He bought a car and registered it in [co-accused] name because he had no licence. It is a blue Ford Falcon.
3. Because [Applicant] failed to get up out of bed in the mornings, he lost his job.
4. Things progressively got worse after this, as [Applicant] would be at home all day with [co-accused] and would stay in their bedroom with [the baby] for most of the day.
5. [Applicant] would get annoyed with me when I would bring up any issues with him about not working or not caring for [the baby].
6. After any argument around these issues, [Applicant] would close him, [co-accused] and [the baby] in the bedroom and I wouldn't have much contact with them for a couple of days or so.

1. They then became more dependent on me as the weeks went on, as they became less motivated to look after [the baby]. [Co-accused] would bring [the baby] out from the bedroom at around 10:00 am.

1. Both [the Applicant] and [co-accused] smoke a lot of pot. By "pot" I mean marijuana. This habit continued throughout [co-accused]'s pregnancy and after [the baby] was born.
2. It got to the point where [co-accused] and [the Applicant] smoked bongs in the back shed regularly, then go back to their bedroom and leave [the baby] with me through the day.
3. I would hear [the baby] very unsettled with them in the bedroom. Sometimes I would hear screams that concerned me, but if I interfered and tried to speak to them about it, [Applicant] would make it very clear not to interfere.
4. Following any conversation about this, [the Applicant] would close [the baby] away in the bedroom with him and [co-accused] for a couple of days, so I could not see her.

1. Another time when I had [the baby] I noticed a decent size bruise on her cheek. I can't remember which cheek it was. [The Applicant's father] came home from work and I was holding [the baby]. I showed [the Applicant's father] the bruise on [the baby]'s cheek.
2. [The Applicant's father] was instantly fuming about this and went straight to the bedroom to find out what happened to her. [The Applicant's father] went straight to their bedroom to speak to [the Applicant]
3. I heard what was being said between the two of them, while at the same time trying to shield [the baby] from what was happening. I went into the front room, but could hear them yelling.
4. [The Applicant's father] asked how the bruise happened to [the baby]'s face. [Applicant]'s response was that he kissed her on the cheek. [The Applicant's father] said to [the Applicant] "You must have sucked her face", because of the extent of the bruise.
5. The bruise was grey in colour and around the size of a 50 cent coin. [The Applicant's father] and [the Applicant] continued to argue and I held [the baby] in the front room to keep her away from the arguing.

1. After the arguing finished, [the Applicant] said "Where's my baby?". He came through the house and snatched [the baby] from my arms and verbally abused me saying something along the lines of "Sort out your fucking husband".
2. [Applicant] took [the baby] back to the bedroom and closed the door. I didn't see [the baby] for at least two to three days because of this. [Applicant] was again punishing me for interfering.
3. Another occasion when [Applicant] and [co-accused] were in the bedroom with [the baby], I walked past the door that was open and I saw [co-accused] was sitting on the bed. [Applicant] was also sitting on the side of the bed in the middle.
4. I had come through from the laundry and could see into the bedroom. [The Applicant] was holding [the baby] in his lap facing him and was holding onto her around her neck area.
5. [The baby] was wrapped in a blanked with her arms swaddled in the blanket. I saw [Applicant] push [the baby] roughly down onto his lap. It looked like an action out of frustration, as once again they were unable to settle [the baby].
6. I didn't like the look of this behaviour. I walked into the lounge room and said to [the Applicant's father] something like, "She's a little baby; she doesn't deserve that treatment".
7. It felt like I couldn't say anything because whenever I did, [Applicant] would get angry and he would take [the baby] away from me. It was like he controlled the house.

1. Another time that there was an incident was when there was a verbal altercation between the two of them. The argument started in the bedroom and as it became worse, it continued out into the main area of the house.
2. I tried to help calm the situation and was told to "Fuck off" by [Applicant], along with some other things. I threatened to call the police if they didn't stop the argument.
3. Next thing I saw was the car drive off. I had gone out the back and [co-accused] was sitting having a cigarette. She was shaking and crying.
4. I asked her, "Did he hit you?".
5. [Co-accused] said yes.
6. She told me that [Applicant] had put his hands around her throat and hit her somewhere on her side of her body near her ribs. She indicated this by pointing to her side area as she said it to me.
7. [Co-accused] told me that she was holding [the baby] at the time [Applicant] did this to her.
8. I couldn't see [the baby] and I said to [co-accused] that [Applicant] had driven off in the car and he must have taken [the baby] with him as she wasn't around.
9. [Co-accused] did not show any emotion about what I had told her.
10. [Applicant] returned with [the baby] after about 10 or 15 minutes.
11. While he was away I spoke to [co-accused] about domestic violence issues and the concerns I had about their relationship. I explained that it was controlling behaviour of him to take the car and the baby and just go like that.
12. He was controlling the situation by these actions and I also told [co-accused] that she doesn't deserve to be hit by her partner.

1. [Applicant] drinks a lot of alcohol whenever he gets a chance. When [Applicant] drinks, he becomes not a nice person. He is abusive and impossible to reason with at all.
2. [Co-accused] has a high dependence on marijuana. She wakes up, smokes a cone, and this continues every couple of hours through the day.
3. [Applicant] smokes marijuana as well. They either chop it up and smoke it with tobacco or smoke it using a bong.
4. It seemed they would always find money to buy more pot. They would sell things or borrow money to get their pot.
5. [The Applicant]'s father and I are horrified by what we have learned has happened to [the baby] over the first of nine or so weeks of her life.
6. I would think these injuries have happened mainly behind closed doors in their bedroom.
7. The Applicant's sister also gave a statement to police. In her statement made on 17 June 2016, she said:
   1. I would also hear [Applicant] screaming; telling [the baby] off in the bedroom.
   2. When this happened, [co-accused] would bring [the baby] out into the lounge room to try and calm her down. If she couldn't, again Mum would grab [the baby] and help calm her down.
   3. [Co-accused] would go back into the room where her and [Applicant] would stay for the most of days.
   4. When Mum would grab [the baby] in the mornings, [co-accused] and [Applicant] again would stay in their room for most of the day, even until the evening.

1. I took [the baby] and she stayed in my room. [The baby] was in a singlet and nappy and had a blanket loosely wrapped around her.
2. Because the blanket was loose, I could see her leg and that's when I noticed the bruise.
3. I don't remember exactly when this was and I didn't ask [Applicant] or [co-accused] how she got the bruise.
4. I remember I would hear [the baby] crying and screaming at night. One time I was in my room and heard her.
5. [The baby] was screaming and crying real loud, like she was in agonising pain. I would describe it sounding like she was getting murdered.
6. The screaming and crying would change from long to short back to long screams. I would be in my room trying to sleep so would try and block it out.

1. When [Applicant] was gone, I overheard [co-accused] talking to Mum. [Co-accused] told Mum that [Applicant] had hit her.

1. [Applicant] is sometimes happy and calm. Other times he can get really angry and frustrated. He can get angry really quickly too.
2. The Applicant's former partner, the co-accused, gave a statement to police on

20 May 2016 and said as follows: 1. I think he is capable of causing injury to her because of his size and temper, and lack of patience when she is unsettled and crying. 3. The Applicant's co-accused gave a further statement to police on 6 July 2016 in which she said: 1. [Applicant] doesn't like my parents so it didn't surprise me that he said no. 2. [Applicant] started insulting my family, calling them "Idiots" and "fuckheads". 3. He said "I don't want my daughter anywhere near fuckheads". 4. I told him that he shouldn't say bad things about my parents as I didn't say bad things about his. 5. The argument got more out of hand and [Applicant] hit me. 6. He struck me once to the ribs on the left hand side of my body. 7. He punched me with a clenched right fist, I do not recall which hand he hit me with. 8. He was in my face and staunch. 9. The punch made me fall to the ground, winded. 10. It really hurt, I was in pain for days afterwards. 11. [Applicant] walked out of the room and went outside for a cigarette. 12. I wasn't talking to [Applicant] for a while but later on, when I confronted him about it, [Applicant] said I deserved it. 13. At the time I had some bruising to my left ribs. 4. The Applicant was cross-examined on the injuries suffered by the baby. The Applicant's evidence was evasive and not credible. Counsel for the Respondent put to the Applicant the sentencing judge's remark that:

Whether or not you, [the Applicant], or you, [co-accused], or both of you, were the actual cause of the numerous injuries, and even if the other parent acted alone, in the circumstances of this case it is inconceivable that either of you were unaware of the extent to which this child, living in your shared bedroom, was suffering. The injuries are too many and too profound. You both must have known that [the baby], aged only nine weeks, was in severe pain as a result of the injuries.

1. The following exchange with counsel and the Tribunal then took place:

[MR BURGESS]: Now, that's the case, isn't it? You were aware that your daughter was suffering?

[APPLICANT]: No, I wasn't. I wasn't aware that she had had broken bones and - or fractures.

[MR BURGESS]: Well, you've never given any evidence, have you, as to how the injuries occurred?

[APPLICANT]: I've given, I guess, a statement of - to - to the assault that I've been charged with and how that happened. So I guess that sort of responds to a statement of how, I guess, certain injuries came upon.

[MR BURGESS]: Well, on one occasion you've attempted to explain a large bruise on [the baby]'s cheek by stating you dropped a lollipop on her?

[APPLICANT]: Yes.

[MR BURGESS]: Yes. And that was found to be an obvious falsehood by the judge, wasn't it?

[APPLICANT]: No, I don't - I don't think so.

[Tribunal note: the sentencing judge did find the Applicant's story to be false -'I find that it was an obvious falsehood' - see [34] above]

[MR BURGESS]: It is the case, isn't it, [the Applicant], that at least some of the injuries that [the baby] suffered were caused by you?

[APPLICANT]: No.

[MR BURGESS]: Is it your evidence to this Tribunal that you never witnessed or never committed any actions that caused the injuries to [the baby]?

[APPLICANT]: Sorry, can you, like, say again?

[MR BURGESS]: Well, do you maintain that you never undertook any actions that resulted in the injuries that [the baby] suffered?

[APPLICANT]: Yes, in a way I hold myself responsible and I do take responsibility for - for what happened and the fact that I failed her and I didn't take her to the doctors or to the hospital.

[MR BURGESS]: Yes and that's not what I'm asking you.

[DEPUTY PRESIDENT]: That's not the question, [the Applicant]. Could you answer the question? Can you...

[MR BURGESS]: The question is specifically about you causing injuries to your daughter. Is it the case that you maintain in front of this Tribunal, under oath, that you did not cause any of those injuries?

[APPLICANT]: Yes.

[MR BURGESS]: And is it also your evidence that you didn't witness [co-accused] act in a way that could have caused all of those injuries? You gave evidence, you - sorry, you gave a statement to the police?

[APPLICANT]: Yes.

[MR BURGESS]: That you saw [co-accused] act roughly with [the baby] on one occasion?

[APPLICANT]: Mmm.

[MR BURGESS]: You can't possibly expect the tribunal to accept that you were locked away in a room for weeks on end with this child and there was only one occasion that you suspect maybe there was an injury caused by [co-accused]?

[APPLICANT]: Well, no. I was - I was working at the time, the first few weeks when we had [the baby] back at home. I was up early in the morning and I wouldn't get home until at least five in the afternoon. And I was doing that for the first three - three - three and a half, four weeks.

[MR BURGESS]: In that three and a half, four weeks, [the baby] wasn't having any problems, was she? She was thriving in that first three and a half weeks?

[APPLICANT]: Well, yes, until she started becoming more and more distressed which led to myself not being able to sleep at night, which resulted in me not being able to get up for work.

[MR BURGESS]: So you stayed at home with [the baby] from three and a half weeks onwards?

[APPLICANT]: Well, yes, four, three and a half, four weeks, yes. After she became distressed and wouldn't - wouldn't settle.

[MR BURGESS]: Are you aware that your mother gave a statement that she had seen you being rough with [the baby]?

[APPLICANT]: Yes.

[MR BURGESS]: Did you accept that on occasion you were rough with [the baby]?

[APPLICANT]: Yes.

[MR BURGESS]: Do you accept that that behaviour and being rough with [the baby] could have caused some of her injuries?

[APPLICANT]: I don't believe that it could have caused a broken bone or a fracture.

[MR BURGESS]: Well, if I can take you to page 76 again. This is your mother's statement. It starts on page 76, sorry. And if I can take you to page - paragraph 74 of that statement, which is page 86. It says - this is paragraph 73:

Another occasion when [the Applicant] and [co-accused] were in the bedroom with [the baby], I walked past the door that was open and I saw [co-accused] was sitting on the bed. [The Applicant] was also sitting on the side of the bed in the middle. I had come through from the laundry and could see the bedroom. [The Applicant] was holding [the baby] in his lap, facing him, and was holding on to her around her neck area. [The baby] was wrapped in a blanket with her arms swaddled in the blanket. I saw [the Applicant] push [the baby] roughly down on to his lap. It looked like an action out of frustration as once again they were unable to settle [the baby]. I didn't like the look of this behaviour and I walked into the lounge room and said to [partner] something like, "She's a little baby. She doesn't deserve that treatment." I felt like I couldn't say anything because whenever I did, [the Applicant] would get angry with me and would take [the baby] away from me. It was like he controlled the house.

Now, would you accept that that occurred?

[APPLICANT]: Yes.

[MR BURGESS]: But you don't accept that any of your dealings caused any injuries to [the baby]?

[APPLICANT]: No. I don't think so.

[MR BURGESS]: Okay. Do you have an explanation of how injuries were caused to [the baby]?

[APPLICANT]: No.

1. There then followed an exchange between the Applicant and the Tribunal about who had actually inflicted the injuries on the baby. The Applicant's answer was that he did not want to 'point the finger' at anyone.
2. While the Applicant only ended up being convicted of having care and control of a child engaged in conduct knowing that conduct may result in harm to the child, it is clear to the Tribunal that the reason that more serious charges were not laid against the Applicant and/or his co-accused was that the Applicant and his co-accused did not co-operate with police by giving full and honest statements concerning how the multiple and 'profound', to use the language of the sentencing judge, injuries were inflicted on the baby.
3. The Tribunal also notes the sentencing judge's remark that:

Neither of you have satisfied me, on the balance of probabilities that you, yourself, did not inflict any injuries.

1. While in the criminal proceedings any charge relating to the Applicant or his co-accused actually inflicting the injuries suffered by the baby would have to be proved beyond reasonable doubt, that is not the standard applicable in this Tribunal. The applicable standard in the Tribunal is the balance of probabilities. Like the sentencing judge, this Tribunal is not satisfied, on the balance of probabilities, that the Applicant did not cause the injuries to the baby. At the very least, if the Applicant did not actually inflict the injuries, he would have been aware that someone in the household, most likely his co-accused, was inflicting serious injuries on the baby over an extended period. The charge to which the Applicant pleaded guilty related only to the Applicant and his co-accused's failure to take the badly injured baby to the [omitted] Hospital Emergency Department on

4 May 2016 and for a further 15 days thereafter notwithstanding being told by Dr Lim on

4 May 2016 that the baby needed to be taken to hospital. The Tribunal is satisfied that the Applicant's neglect, even if he was not directly responsible for inflicting the injuries, started much earlier than 4 May 2016. 2. The Tribunal is not restricted to looking only at the facts that underpinned the conviction which caused the mandatory cancellation of the visa. As was noted by Deputy President Forgie in FTZK and Minister for Immigration and Border Protection [2015] AATA 155 at [50]:

The analogy with the criminal law is, as I said, faint for the outcome of a charge may be influenced by the manner in which the hearing proceeds. An administrative tribunal has a broader task for its task is to reach the correct or preferable decision in each matter: the correct decision on the law and on the evidence and, if the exercise of discretion is required and there is a range of correct decisions from which to choose, the preferable decision from that range.

1. In discussing the appropriate standard of proof to be applied by the Tribunal, Deputy President Jarvis in LLSY and Minister for Immigration and Citizenship [2011] AATA 334 at [16] set out the Applicant's contention as being:

... where the visa applicant's conduct might constitute a breach of the criminal law, the question of whether the visa applicant had committed a criminal offence should be determined in accordance with the criminal justice system, according to the standard of proof beyond reasonable doubt that applies in criminal cases. He submitted that it was highly inappropriate that an administrative tribunal should make determinations of this kind...

1. The learned Deputy President rejected that contention and held at [50]:

... The appropriate standard of proof in the present proceedings, which entail whether the non-citizen satisfies the character test, is the civil, not the criminal, standard of proof, to be approached in accordance with the principles in Briginshaw v Briginshaw & Anor [1938] HCA 34; (1938) 60 CLR 336, and that is a further reason why the court hearing the criminal charges would not be affected by the outcome of the present tribunal proceedings. In Briginshaw Dixon J said that when, in civil proceedings, a question arises whether a crime or fraudulent conduct has been committed, the standard of persuasion is the same as upon other civil issues, that is the balance of probabilities. His Honour also said, at 361-362:

"Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences."

1. The Tribunal is also mindful of the comment of Deputy President Forgie in Fakauafusi and Minister for Immigration and Border Protection [2017] AATA 1017 at [51]:

An administrative decisionmaker can have regard to a person's behaviour when it is relevant to do so. In the case of a decision made under s 501(3A) of the Migration Act as to whether or not to exercise power under s 501CA to revoke a visa cancellation, behaviour both past and present is a relevant consideration. To discount it would mean that consideration would be limited to the conviction or convictions that led to the cancellation and the events leading up to it. Depending on circumstances, that might favour or work against either an applicant or the Minister. Either way, it would not enable the Tribunal to carry out its functions to review the decision refusing to revoke the cancellation and to reach the correct or preferable decision having regard to all of the principles and factors set out in the Minister's Direction.

1. Direction 79 generally, and paragraph 13.1.1(1) specifically, directs the Tribunal to consider 'the nature and seriousness of the non-citizen's criminal offending or other conduct'. In other words, the conduct of the Applicant to be taken into account by the Tribunal is not just conduct for which the person has been convicted of an offence.
2. The Tribunal is satisfied, on the balance of probabilities, that the Applicant was responsible for inflicting at least some of the injuries suffered by the baby, or, if he was not directly responsible for inflicting those injuries, he was aware that the baby was being physically abused for a period commencing many weeks before he and his co-accused first took the baby to the doctor on 4 May 2016. This finding is based on:
   • (a) the Applicant's mother's statements and his sister's and co-accused's statements given in May and June 2016 (see [35]-[38] above);
   • (b) the fact that, notwithstanding the sentencing judge affording the Applicant the opportunity to put forward evidence to establish, on the balance of probabilities, that he was not responsible for inflicting the injuries on the baby, the Applicant failed to do so (see [34] above);
   • (c) the sentencing judge's finding that '[t]he injuries are too many and too profound. You both must have known that [the baby], aged only nine weeks, was in severe pain as a result of the injuries' (see [34] above); and
   • (d) The Applicant's evasive and unsatisfactory evidence at the hearing (see [39]-[40] above).
3. In addition to the very serious offences and behaviour relating to the baby, the Applicant has also been convicted of the aggravated assault of his former partner. Paragraph 13.1.1(1)(a) and (b) of Direction 79 require this offence to be treated as very serious.
4. There is also other conduct relevant to this consideration. In addition to the very serious offences involving the baby and the aggravated assault of the baby's mother, the Applicant has also been convicted of two counts of no authority to drive, one count of driving while exceeding 0.08g of alcohol per 100ml of blood, one count of use of a prohibited drug (cannabis) and one count of breach of bail.
5. While the Applicant has only one conviction for use of cannabis, by his own admission, and the evidence of those who lived with him, he is, or at least was, a very heavy user of cannabis. His own evidence, somewhat hyperbolically, was that he had '...smoked marijuana most of my life. I started when I was young'. His evidence was also that his use of marijuana became a problem '...not too long after [he] started' (Transcript at 32).
6. The evidence of his mother (see [35] above) was that the Applicant at the time of her statement smoked 'a lot of pot' and that '[i]t got to the point where [the co-accused] and [the Applicant] smoked bongs in the back shed regularly, then go back to their bedroom and leave [the baby] with me through the day'.
7. The sentencing judge also remarked that even when the Applicant and the co-accused finally took the baby to hospital 15 days after being told by Dr Lim that the baby needed to be taken to the emergency department, 'both of you remained at home that night smoking cannabis'. Accordingly, the one cannabis related conviction does not reflect the long-term heavy use of cannabis by the Applicant.
8. The Applicant has also shown a disregard for the traffic laws of Australia. In addition to the conviction for driving with an excess of 0.08% of alcohol in his blood, the Applicant has two convictions for driving without a licence. That, however, is not indicative of the number of times that the Applicant drove without a licence. In cross-examination the Applicant conceded that having lost his licence he continued to drive to work. According to the Applicant's evidence (Transcript at 38) that continued from about mid 2015 up to his arrest in July 2016. During that period the Applicant even bought a car and registered it in the

co-accused's name because, according to the Applicant, he was under the impression that he could not own a car without a driver's licence (Transcript at 38). His disregard for the law was calculated and contumelious. 9. The Applicant also has, or at least had, issues with his temper and drinking. His former partner (the co-accused) his mother and his sister all made statements attesting to the Applicant's temper. In cross-examination the Applicant was taken to his co-accused's statement to police in June 2016 where she referred to him getting angry with the baby and treating the baby roughly. In response to those statements in the co-accused's police statements, the Applicant said that he did not see his handling of the baby as being an expression of his temper. The following exchange took place in cross-examination:

[MR BURGESS]: You say you don't see it as stated. How do you see your temper?

[APPLICANT]: Well, it's saying here how rough I was, how - I mean, how frustrated I would become when she was unsettled. I don't - I don't see that I was - I was like that.

[MR BURGESS]: Well, there have been other - or there have been times when the police have been called for your behaviour. You would accept that?

[APPLICANT]: I think, yes, maybe on - on maybe one or two occasions.

1. The Applicant was then taken to various police incident reports as follows:

[MR BURGESS]: Yes. So if I can take you to page 33 of those documents [documents produced under summons by WA Police, R1) This was an incident report from police in relation to your mother calling the police on you in January 2009 which stated:

[The Applicant] arrived home two hours late and as soon as he walked into the house a verbal argument ensued between [the Applicant] and both his parents. The eldest son was out, but the daughter was present during the altercation. In his frustration [the Applicant] threw a few items around the place, but did not cause any damage to any property, or any injury to any person.

Police were called in relation to that incident.

...

[MR BURGESS]: Would you accept that that demonstrates another occurrence where it could be said that you lost your temper?

[APPLICANT]: Yes, as a - as a teenager. Yes.

[MR BURGESS]: Yes. And then again on 15 January 2009, if I can take you to pages 30 and 31 of those documents [R1]. On this occasion, your father called the police because you were - it says:

came home late, and when the complainant attempted to talk to him about it, the POI became angry and started shouting. He smashed a hole in the bedroom door and pushed the microwave onto the floor. As he departed the address, he smashed the front window of a vehicle parked in the driveway.

[MR BURGESS]: Now, you would have to accept that that shows that you're prone to losing your temper?

[APPLICANT]: Again, yes, as a - as a teenager.

[MR BURGESS]: Now, the statement provided by [co-accused], that wasn't when you were a teenager - about offences that - behaviour that occurred when you were a teenager, was it?

[APPLICANT]: No.

1. The Applicant was then taken to the statement that his sister had given to police in 2016 in which she said:

[The Applicant] is sometimes happy and calm. Other times he can get really angry and frustrated. He can get angry really quickly too.

[MR BURGESS]: Would you accept that that's an accurate representation of your demeanour at times?

[APPLICANT]: Yes.

[MR BURGESS]: And that was in 2016. That wasn't when you were a teenage, was it?

[APPLICANT]: No.

1. The cross-examination of the Applicant then moved on to his alcohol consumption. The following evidence was given:

[MR BURGESS]: Would you accept that when you drank alcohol, you would become abusive?

[APPLICANT]: No.

1. The Tribunal, however, considers the evidence given by the Applicant's mother to police in 2016 to be more accurate. In paragraph 121 of her statement of 17 June 2016 the Applicant's mother's assessment was:

[the Applicant] drinks a lot of alcohol whenever he gets a chance. When [the Applicant] drinks he becomes not a nice person. He is abusive and impossible to reason with at all.

1. The Applicant was also convicted of breaching bail. The breach had the effect of delaying the trial of the Applicant and his co-accused on the child neglect charges (see sentencing judge's comments at [34] above). The Applicant's evidence was as follows:

[MR BURGESS]: Yes. At page 18. You were released on bail on 6 July 2016 and had to appear at Joondalup Magistrates Court at 8.45 on 9 September 2016. You failed to appear on that occasion?

[APPLICANT]: Yes.

[MR BURGESS]: You were aware that you were due in court?

[APPLICANT]: Yes.

[MR BURGESS]: Can you explain to the tribunal why you didn't appear in court?

[APPLICANT]: I was - I was scared. First, really, time being in trouble. I was going through depression and at the time, I guess, I just stuck my head in the sand and tried to forget about it.

1. That explanation is obviously unsatisfactory. While the Applicant claims that he was depressed, there is no evidence that the Applicant has been diagnosed with depression by any suitably qualified medical practitioner. The Applicant's evidence was that he was taking the anti-depressant Lexapro before he went to prison (Transcript at 54).
2. Clearly the Applicant's excuse for his breaching bail, the effect of which was to delay his trial, is unsatisfactory. This breach, in the Tribunal's view, is further indication of the Applicant's disregard for the law.
3. The other aspect of the Applicant's conduct which the Tribunal has a concern with is the Applicant's apparent preparedness to lie and to put his own interests ahead of the welfare of others. The Tribunal is particularly concerned by the fact that the Applicant's primary motivation in failing to take his badly injured baby daughter to hospital when being unequivocally advised by Dr Lim to do so, was to avoid losing the fraudulently claimed Centrelink payments. The sentencing judge summarised the Applicant's attitude and behaviour as follows:

You were asked, in terms of you avoided going to the hospital because of getting cut off from Centrelink payments, and I find that you agreed with that proposition.

That's possibly the reason. That's pretty much the biggest reason for it.

So you've put financial gain above medical attention for your baby?

You've put that above the health and welfare and safety of your child, is that correct? --- Yes.

You accepted that you told your family on 19 May that [the baby] had been kept in hospitalisation following her immunisations to monitor her as she had been sick. And that you smoked some cones of cannabis that night with [co-accused].

1. By any standard, that conduct is unacceptable. It is, in the Tribunal's view, indicative of a lack of empathy and understanding on the Applicant's part for the consequences of his selfish conduct as well as another indication of his disregard for the law. He seemed quite happy to defraud the government by lying about his living arrangements with his former partner even at the cost of prejudicing the wellbeing of his baby daughter. As he conceded, as he had to, he put 'financial gain above medical attention for [his] baby'.
2. While the Applicant appears not to have been charged with defrauding the Commonwealth, it is clear on the evidence that he was involved in false claims for Centrelink payments. This is conduct which is relevant to the Tribunal's considerations.

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (13.1(2)(b))

(1) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

1. The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
2. 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. Senior Member Dr M Evans in CZCV and Minister for Home Affairs [2019] AATA 91 (CZCV) summarised the task for the Tribunal as follows:
   1. ... the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]- [43]):

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

1. In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: "...there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational." Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a "rational and probative basis"
2. The Tribunal agrees with and adopts the approach taken by Senior Member Dr M Evans in the above paragraphs.

Nature of harm to individuals or the Australian community (13.1.2(1)(a))

1. Applying paragraph 13.1.2(1)(a) of Direction 79, the harm that would be caused if the Applicant were to repeat his offending behaviour is obvious and serious. The physical harm caused to the Applicant's baby was very serious. Not only did the baby suffer great pain because of the Applicant's conduct, but there is some suggestion that there may be longer term impairment as a result of the injuries suffered. It was submitted by counsel for the Applicant in opening that the baby was now 'meeting all her developmental milestones... [s]o it doesn't seem that for the moment there's any evidence that she has been impacted on a long-term of the - by reason of the conduct' (Transcript at 27). It is not clear on what basis this claim was made. The claim, however, is called into question by the evidence. The most recent report produced to the Tribunal, the Department of Child Protection Approved Outcome Report dated 21 February 2019 (page 338-341 of documents produced by the Department of Child Protection under summons - R1) at page 339 reports that:

1. A victim impact statement (R2) dated 6 March 2018 was prepared on behalf of the baby for the sentencing judge by [redacted], Department of Child Protection case manager. Having outlined the physical injuries to the baby, [redacted] opined:

1. From the above it is clear that the harm caused by the Applicant's conduct and by his criminal behaviour was very serious. Any repeat of the behaviour is likely to cause the same serious and profound harm.

The likelihood of the non-citizen engaging in further criminal or other serious conduct - risk of re-offending (13.1.2(1)(b))

1. What is the likelihood of the Applicant engaging in further criminal or other serious conduct? While clearly the most serious of the Applicant's offences was engaging in conduct knowing that conduct may result in harm to the child, that is not the Applicant's only offence or relevant behaviour in assessing the likelihood of his engaging in further criminal or serious conduct. The Applicant has shown a deliberate disregard for the law by:
   • (a) continuing to drive when he knew that he was unlicensed, and even buying a car and registering it in his partner's name to avoid detection;
   • (b) being involved, or complicit, in fraudulently claiming Centrelink benefits, which he put above the welfare of his own child;
   • (c) continuing to smoke marihuana heavily;
   • (d) breaching his bail by failing to appear in court thereby delaying his and his

co-accused's trial; * (e) assaulting his partner; and * (f) lying to the police when questioned. 2. As noted above, the Applicant's evidence at the hearing was evasive, unconvincing and unsatisfactory. He continues to refuse to tell the truth about how the baby received the serious and extensive injuries. The Applicant has, in the Tribunal's assessment, demonstrated himself to be a person who has little regard for the law or acceptable behaviour and someone who is prepared to put his own interests above the safety and well-being of those around him. He concedes in his statement (A1) that his behaviour 'was selfish and she [the baby] didn't deserve it'. That, unfortunately for his daughter, is a realisation too late. 3. The Applicant points to courses that he has undertaken while in prison. He list these (A1 para. 10) as: * (a) Keeping Off It (12 sessions); and * (b) Narcotics Anonymous (19 sessions). 4. He also advises (A1 para. 11) that he is on the waiting list for Anger and Violence Program and Positive Communications In Relationships. He says that he has been moved to three different prisons which has made it hard for him to get into courses. 5. The Applicant points to his family and his new girlfriend as being able to support him if he were allowed to stay in Australia. That is of little comfort to the Tribunal. He was living with his family when the offences and behaviour which caused the serious injuries to the baby occurred. His family was aware of his criminal behaviour in at least the Applicant's heavy use of marijuana, his driving without a licence, his assault on his then partner and, in the mother's case, suspicions that harm was being caused to the baby 'behind closed doors' of the bedroom. In cross-examination the Applicant's mother conceded that she did not believe the Applicant when he explained a bruise on the baby's face by saying that he had dropped a 'Chupa Chup' (a large sweet) on the baby. She said 'I didn't believe. I wanted to believe' (Transcript at 66). 6. The Applicant's mother conceded in the statement that she gave to police on

17 June 2016 (R1, bundle of documents produced under summons by WA police at 94, para 127) that:

Anything that I was aware of, I felt too frightened to take them further. I was afraid of losing my granddaughter and because of this, I was too afraid to speak up.

1. The Applicant's father was also aware, or at least had suspicions, that the baby was being abused (see paras 65-71 of the Applicant's mother's statement to police dated

17 June 2016 set out in [35] above). While it seems that the Applicant's father raised his concerns with the Applicant and had a heated argument with him, he did not report the abuse or do anything that prevented the abuse continuing. 2. The Applicant refers to a new relationship that he has. That, however, appears to have started only in August 2016 and the Applicant and his new partner, who is now 21 years old, were engaged in July 2017. The Applicant says that he wants to start a family with his new partner. 3. The Applicant claims that since his incarceration he has addressed his offending behaviour. There is no objective way of testing that. He says that '[b]efore being incarcerated, I was well on my way to staying clean...' (A1 para 8). The use of the phrase 'well on the way' indicates that even at the time of his imprisonment he was not 'clean', merely on the way to being clean. That is not encouraging. 4. Similarly the support that the Applicant cites as helping in his reform is basically the support that he had when he engaged in all of the relevant offending behaviour. That, therefore, can provide little comfort in considering the likelihood of the Applicant engaging in criminal or other serious conduct if he were allowed to remain in Australia. 5. In the end the Tribunal has little more than the Applicant's claims that he is reformed and will not engage in the sort of criminal and harmful behaviour that he engaged in prior to his incarceration. As noted earlier the Tribunal assesses the Applicant as being an unreliable witness and a person who is prepared to lie and to put his own interests ahead of others. The Tribunal assesses the likelihood of the Applicant continuing to engage in criminal or other serious conduct as moderate. 6. For the reasons set out above, the Tribunal is of the view that the likelihood of the Applicant engaging in criminal or other serious conduct is moderate and the nature of the harm that would be caused to individuals or the Australian community if he were to engage in such conduct is very significant. This consideration therefore weighs very heavily against the revocation of the cancellation of the visa.

Second primary consideration: The best interests of minor children in Australia affected by the decision (13(2)(b))

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

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

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

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

1. 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);
2. 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;

1. 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;

1. 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;
2. Whether there are other persons who already fulfil a parental role in relation to the child;
3. Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
4. Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
5. Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

1. The Applicant has one minor child in Australia, the baby, who was the subject of the Applicant's conviction for having the care and control of a child engaging in conduct knowing that conduct may result in harm. She is now three years old and is in the care of her maternal grandparents.
2. The subparagraphs of paragraph 13.2(4) of Direction 79 which are obviously very relevant in the present case are subparagraphs (c), (g) and (h). The direction specifically requires the decision maker to consider: the non-citizen's prior conduct on the child (subparagraph (c)); whether the non-citizen has abused or neglected the child (subparagraph (g)); and whether the child has suffered any physical or emotional trauma arising for the non-citizen's conduct (subparagraph (h)). It is obviously the case that the Applicant's prior conduct had a deeply damaging and negative effect on the child and that he neglected and/or abused the child. These considerations therefore weigh heavily against the revocation of the cancellation of the visa.
3. The Applicant has had very limited contact with the child since the child was removed from his and his co-accused's care. The Applicant's statement (A1) says:
   1. While being incarcerated I have not been able to see my daughter due to restricted visits, but I call her every Friday and sometimes on a Saturday and I always look forward to talking and hearing about what she is doing.

1. I applied for visits with [the baby] and they have been approved... Our visits have been booked, and the first one took place recently on Friday 5 April 2019.
2. There is a Children's Court of Western Australia order under s 54 of the Children and Community Services Act 2004 in place (R3, G16) for the Chief Executive Officer of the Department to have parental responsibility for the child. The current order is due to expire on 26 May 2019. The Applicant's counsel advised the Tribunal that that order will be renewed for a further two years upon expiration of the current order (Transcript at 22).
3. A letter dated 7 February 2019 on Government of Western Australia Department of Communities letterhead was provided by [redacted] (R3, G24). Amongst other things that letter stated:

[The Applicant] has acknowledged to the Department the significant remorse that he feels in relation to the crime that he is incarcerated for. [The Applicant] is an integral part of [the baby]'s life and it is imperative that [the baby] should be supported to have an ongoing relationship with her father.

The Department is in [sic] the view that it is not in [the baby]'s best interests for her father, [the Applicant], to be deported once he is eligible for release from prison.

1. The Tribunal notes that on 21 February 2019, that is two weeks after [redacted] wrote the letter referred to above, she signed off on a Case Plan Supervision Approved Outcome Report (R1, documents produced under summons by Department of Child Protection and Family Support at 339-341) which reported, amongst other things that:

1. [Redacted] also wrote the victim impact statement (R2) (see [73] above). Given the significance of the apparent attitude of the Department being as indicated in [redacted]'s letter of 7 February 2019, the Tribunal requested that [redacted] be called to give evidence and be cross-examined. Counsel for the Applicant advised that, having spoken to [redacted] in a brief break in the hearing, she had advised Counsel for the Applicant that she needed to obtain confirmation from her team leader that she was allowed to give evidence because there was 'a potential issue with conflict of interest' (Transcript at 29). In the end that consent was not given and [redacted] did not give evidence. Accordingly, the Tribunal can place little weight on [redacted]'s letter of 7 February 2019, particularly given the possible conflict between the views that she expresses in that letter and the contents of contemporaneous departmental reports of which she was one of the authors as well as the victim impact statement that she prepared in March 2018. These apparent inconsistencies are certainly something that the Tribunal would have wanted to explore with [redacted] before considering what weight should be given to her letter of 7 February 2019.
2. In considering the matters set out in the subparagraphs of paragraph 13.2(4) of Direction 79:
   • Subparagraph (a) - the duration of the relationship was very short and the Applicant's contact for the majority of the child's life has been limited to phone calls once a week;
   • Subparagraph (b) - there is in place an order that the Chief Executive Officer of the Department has parental responsibility for the child and that order is likely to be renewed for a further two years in May 2019;
   • Subparagraph (c) - the impact of the Applicant's prior conduct on the child has been negative, in the extreme;
   • Subparagraph (e) - there are other persons (both legally and actually) that have parental roles in relation to the child;
   • Subparagraph (g) - it is indisputable that the Applicant has abused and/or neglected the child; and
   • Subparagraph (h) - clearly the child has suffered physical and, based on the victim impact statement, [redacted].
3. Taking into account the considerations set out in paragraph 13.2(4) of Direction 79, this primary consideration does not weigh in favour of revocation of the cancellation of the visa.

Third primary consideration: Expectations of the Australian Community (13(2)(c))

(1) 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. The Tribunal also refers to the principles and expectations set out in paragraph 6.3 of Direction 79 (see [26] above), in particular those set out in subparagraphs (2), (3), (4) and (6).
2. The proper construction of the above provisions was considered by the Federal Court in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY). That case was looking at the construction of the predecessor of Direction 79, namely Direction 65, which was relevantly in the same terms. In that case Mortimer J made the following comments:
   1. In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the 'expectations' about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to 'tolerance') the Australian community's 'expectations' are defined only in one particular way: namely, that the Australian community 'expects' non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
   2. I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]-[66]).
3. In YNQY the Court was, in part, considering whether the Tribunal erred in failing to make findings and/or take into account as a primary consideration the expectations of the Australian community.
4. The passage referred to by Mortimer J above in Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296; [2016] FCA 348 (Uelese) states as follows:
   1. In my opinion, the reference by the Tribunal to what the Australian community expected of the Australian Government was not a matter that required evidence but was a statement of the views or policy of the Government. The language in paragraph 6.3(2) of the Direction, that the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia, is found in a list of seven 'Principles'. There is a further reference to the expectations of the Australian community in paragraph 9.3 of the Direction where the statement is made that the Australian community expects non-citizens to obey Australian laws while in Australia. It states that where a non-citizen has breached, or where there is an unacceptable risk that they will breach, this trust or where the non-citizen has been convicted of offences in Australia, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate, the paragraph states, 'simply because the nature of the character concerns or offences were such that the Australian community would expect that the person should not continue to hold a visa'. The paragraph ends by stating that decision-makers should have due regard to the Government's views in this respect.
   2. ... In my opinion it is open to the Minister to make a statement of the Government's views as to the expectation of the Australian community and for the Tribunal to act on that statement.
   3. I conclude that there was no jurisdictional error in the statement of the Tribunal, at [109]: "I have no evidence to enable me to determine the expectations of the Australian community in this matter, other than the guidance provided by the Direction itself" or in the Tribunal's consideration of the expectations of the Australian community.
5. In Afu and Minister for Home Affairs [2018] FCA 1311 at [85] Bromwich J found:

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

1. The Tribunal has considered the effect of Mortimer J's judgment in a number of decisions (see for example Deputy President Rayment QC in Kumeroa and Minister for Home Affairs [2018] AATA 3744 at [17]; Deputy President Constance in Zyaran and Minister for Home Affairs [2018] AATA 3785 at [71] and [72] and Nguyen and Minister for Home Affairs [2018] AATA 3726 at [84] and [85]). In some of those cases the Tribunal has found that the decision in YNQY, which the Tribunal is bound to follow, in effect requires the Tribunal in all cases to take this primary consideration of the expectation of the Australian community as being that the visa would be cancelled or not granted.
2. The more common approach, however, and one with which this Tribunal agrees, is that her Honour's comments in YNQY, in particular the operation of the 'kind of deeming provision' (YNQY at [76] - see [99] above) by operation of which the expectation of the community is to be taken as being against revocation of the cancellation, is limited to cases referred to in the third sentence of paragraph 13.3(1) of Direction 79, namely, cases where 'the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa'. That was the approach taken by Member Eteuati in Doan and Minister for Home Affairs [2019] AATA 169 at [185]- [208]. Member Eteuati relevantly found:
   1. The Tribunal considers that Mortimer J's comments in paragraph 75 to 77 of YNQY decision are directed to the third sentence of paragraph 13.3 of the Direction either because Mortimer J considered that the seriousness and nature of the applicant's conduct in that case were such that the Australian community would expect that the person should not hold a visa, or more likely, that her Honour reached the conclusion that the Tribunal Member in that case had so found.
3. In reaching that conclusion Member Eteuati reasoned:
   1. In YNQY Mortimer J was considering, relevantly, a ground of review that the Tribunal had failed to deal with the primary consideration of the expectations of the Australian community according to law.
   2. At this point in her decision her Honour had already found that the Tribunal had committed a jurisdictional error arising from the way it had dealt with the primary consideration of the best interests of any minor children, and a jurisdictional error arising from the way the Tribunal had dealt with the consideration of impediments to the applicant re-establishing himself in his home country. In doing so, her Honour had discussed the circumstances in which it may be appropriate for a court to refuse to grant relief where it is found that a decision is affected by jurisdictional error. Her Honour found that a court may refuse to grant relief where, despite the error, the applicant was not deprived of the possibility of a successful outcome.

189. In relation to the ground of review regarding the expectations of the Australian community, Mortimer J did not make a finding as to whether the Tribunal had erred legally in the way that the Tribunal had dealt with that consideration. Rather, her Honour expressed that even if such an error was found, the applicant was not deprived of the possibility of a successful outcome. For the reasons given below, the Tribunal finds that her Honour reached that conclusion because it had been found that the nature of the character concerns or offences regarding the applicant in YNQY were such that the Australian community would expect that the person should not hold a visa (see third sentence of paragraph 13.3(1)). In these circumstances, her Honour stated that it was inevitable that this consideration would weigh against revocation of cancellation.

1. The Tribunal considers that Mortimer J was expressing that the consideration of the expectations of the Australian community is adverse to any applicant, and that is inevitable that this consideration would weigh against revocation, where the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa.
2. In the case of Margach and Minister for Home Affairs [2019] AATA 353 Deputy President Forgie, having quoted [76] and [77] of Mortimer J's judgment in YNQY, stated:
   1. I respectfully do not agree with the statement, if it be intended to be of general application, that it is inevitable that paragraph 13.3(1) would weigh against revocation. Paragraph 13.3(1), with which I am concerned and which was the subject of YNQY, is quite specific in its statement that the Australian community expects non-citizens to obey Australia's laws while in Australia but leaves open, for example, what is an "unacceptable risk" that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. Paragraph 6 generally, and paragraph 6.3 in particular, must be borne in mind. That is particularly so when regard is had to the general statement in 6.2(1) that I have set out at [50] above. Granted that the principles are of critical importance, the determination of what is unacceptable must have regard to the evidence.
3. Member Burford in Nathanson and Minister for Home Affairs [2019] AATA 642 stated at [135]:

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

1. Two recent decisions handed down by the Federal Court on 11 April 2019 have, unfortunately, not clarified the position. In DKXY v Minister for Home Affairs [2019] FCA 495, Griffiths J, having cited [76] and [77] of Mortimer J's decision in YNQY (see [99] above), made the following observations:
   1. ... The Minister contended that the reasoning simply reflected the facts in YNQY and did not purport to be a construction of Direction 65 as suggesting that the expectations of the Australian community can never weigh in favour of an applicant. The difficulty with the Minister's submission is that the language in YNQY at [76] and [77] is not in its terms confined to the circumstances of the particular applicant there and, on one view, appears to have been intended to have a more general application. The ambiguity of the language is reflected in the division of opinion in the large number of decisions of the AAT in which the language has been viewed inconsistently and as supporting either a broad or a narrow approach to cl 13.1.
   2. As the applicant here pointed out, there are numerous statements in Direction No 65 which require the primary consideration of expectations of the Australian community to be assessed in the light of all the relevant circumstances which appertain to it and it has to be weighed against all other relevant considerations (while noting that the Direction requires that primary considerations be given more weight than other considerations). In an appropriate case, and depending upon all relevant circumstances, the expectations of the Australian community may not weigh against revocation of the mandatory visa cancellation. Undoubtedly, decision-makers who are bound to give effect to the Direction are required to have due regard to the Government's view regarding community values, standards and expectations, as set out in, for example, cll 6.2 and 6.3 of the Direction, but nothing in the Direction indicates that community expectations will always favour non-revocation. Indeed, the totality of the relevant circumstances which bear upon the assessment and weighing of all three primary considerations and other considerations need to be considered, as is made clear in many clauses of the Direction, including those which are referred to in [23] above.
   3. I also respectfully disagree with the primary judge's reference at [77] of YNQY that Robertson J's reasons for judgment in Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 (Uelese) at [64]- [66] supported her Honour's view that it was "inevitable" that the primary consideration of the expectations of the Australian community would weigh against revocation because that is what this primary consideration is intended to do. It is desirable to set out those paragraphs from Uelese...
2. Griffiths J then cites [64]-[66] of Uelese (see [101] above) and says:
   1. These passages are directed to a submission made by the applicant in that case to the effect that the AAT there had no evidence to make the findings that it did regarding the expectations of the Australian community. In rejecting that submission, his Honour said that those expectations were not a matter which required evidence because the Direction itself contained statements concerning the Government's views as to those expectations. There is nothing in these passages from Uelese which indicates that a primary decision-maker who is bound to apply the Direction cannot also take into account any material which is before the decision­maker which is relevant to an assessment of this primary consideration. The Government's views have to be taken into account and given "due regard", but so must all other circumstances which are relevant in the particular case. As Robertson J pointed out in the final sentence at [64] of Uelese, cl 9.3 of the Direction ends by stating that decision-makers should have "due regard" to the Government's views on Australian community expectations. What amounts to "due regard" will necessarily require attention to be given to all relevant circumstances in the particular case which bear upon a general assessment of Australian community expectations.
   2. This does not mean, however, that the AAT fell into jurisdictional error when it described the reasoning in YNQY as binding on it. That is because, the AAT then proceeded to adopt and apply the correct approach to cl 13.1, i.e. the broad approach. As mentioned above, the ambiguity of the relevant reasoning in YNQY lends itself to either a broad or narrow approach. The AAT did not take the view that the primary consideration concerning expectations of the Australian community inevitably weighed against revocation. Rather, as the AAT expressly acknowledged at [33] of its reasons for decision, consideration had to be given to the broad range of the applicant's circumstances when considering the expectations of the Australian community. The AAT then proceeded to implement that broad approach by reference to the totality of the applicant's circumstances. Accordingly, there is no jurisdictional error (see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780 at [25] and [30]-[31] per Kiefel CJ, Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45]- per Bell, Gageler and Keane JJ and DPI17 v Minister for Home Affairs at - per Griffiths and Steward JJ).
3. His Honour is clearly expressing the view that the correct approach is the broad approach, namely that consideration is to be given to all of the applicant's circumstances when considering the expectations of the Australian community and that it was not inevitable that the primary consideration of the expectations of the Australian community would weigh against revocation.
4. The contrary approach seems to have been taken by Perry J in FYBR v Minister for Home Affairs [2019] FCA 500 (FYBR) also handed down on 11 April 2019 in which her Honour found:
   1. At the heart of the applicant's submission is that the Tribunal failed to comply with cl 11.3 of the Direction because it treated cl 11.3 as conclusively "deeming" (to quote Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY) at [76]) what community expectations are, irrespective of the individual's personal circumstances... By contrast, the applicant submitted that cl 11.3 requires the Tribunal to undertake "an assessment of community values made on behalf of [the Australian] community", citing Afu v Minister for Home Affairs [2018] FCA 1311 (Afu) at [85] (Bromwich J). As such, in the applicant's submission, the Tribunal failed to appreciate that it was permissible under cl 11.3 for it to assess whether community expectations would have been the same in relation to the applicant, given that he had already spent so much time in immigration detention. He further submitted that if the Tribunal had appreciated that this was permissible, it may have reached a different decision...
   2. The applicant accepted at the hearing that in order to succeed on this argument, it was necessary for him to demonstrate that the decision of Thawley J in Oluwafemi v Minister for Home Affairs [2018] FCA 1389 (Oluwafemi) was "plainly wrong": ... While the applicant also submitted that the passages from Mortimer J's decision in YNQY relied upon by the Tribunal were obiter, he submitted that if I were to find that they were ratio, they were also plainly wrong.

1. In Oluwafemi the applicant submitted that the Tribunal was required to determine the content of the primary considerations specified in Direction 65, including community expectations under cl 11.3(1), and was to do so by reference to the particular steps taken by the applicant to reform his behaviour: Oluwafemi at [35].
2. Justice Thawley rejected this submission, holding that it:
   1. ... is inconsistent with the general scheme of the Direction and the way the primary considerations operate. These parts of the Direction are statements as to what the expectations of the Australian community are for the purposes of determining whether the visa should be refused. It is not for the Tribunal to determine the expectations of the Australian community by reference to the applicant's circumstances or evidence as to what the expectations of the Australian community are. The Direction requires a decision-maker to assess each of the primary considerations as they apply to the circumstances of the applicant's case, and to weigh the various considerations against each other in order to reach a conclusion as to how the discretion should be exercised.
3. Similarly, his Honour rejected the applicant's submission that the Tribunal erred in failing to take into account the fact that the applicant's wife and minor child were also part of the Australian community and in failing to take their expectations into account, holding that:
   1. Paragraph 11.3(1) of the Direction states, in effect, the Minister's policy as to the expectation of the Australian community - see: YNQY at [76] per Mortimer J ... It is not the role of the Tribunal to make its own assessment of the expectations of the Australian community by taking into account the applicant's wife and minor child at parts of that community. That is not to say that the Tribunal was to ignore as irrelevant the interests of the applicant's wife and minor child.
4. Perry J goes on to cite [76] and [77] of Mortimer J's judgment in YNQY (see [99] above) and finds:
   1. In my view, notwithstanding counsel's careful submissions, the applicant has not established that the decision in Oluwafemi and Mortimer J's reasoning in YNQY are plainly wrong and should not be followed.
5. Her Honour goes on to hold:
   1. Contrary, therefore, to the applicant's submissions, in my view there is nothing in the text or context of cl 8(3) which suggests that a primary consideration must be of the latter, fact-sensitive kind as opposed to establishing a "norm"... There is therefore nothing in cl 8(3) which undermines the construction of cl 13.3 adopted by Mortimer J in YNQY (and applied to cl 11.3 by Thawley J in Oluwafemi), namely, that it expresses the expectation of the Australian community only in terms of the negative conclusion that it may be appropriate to refuse to grant the visa by reason of an applicant's commission of serious criminal offences

1. In the applicant's submission, this clause [paragraph 6.3(5) of Direction 65] expressly permits the decision-maker to take considerations which are subjective to an applicant into account. That is unquestionably correct. However, it does not mean that those subjective considerations must be taken into account by the Tribunal so as to reach its own conclusion about community expectations for the purposes of cl 11.3. Rather, provision is expressly made elsewhere in the Direction for individual or subjective considerations, such as the impact on family members and on victims, to be taken into account in the balancing exercise as "other considerations" in

cl 12. 2. It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government's view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant's submissions, 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. Rather, the Tribunal must give effect to the "norm" stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases... 3. It is not clear to this Tribunal what the effect is of the qualifying final words in [42] of the above decision. Having found that the 'norm' is that the expectations of the Australian community are that where paragraph 11.3 of Direction 65, which is materially the same as paragraph 13.3 of Direction 79, is applicable, there would be a cancellation of the visa, it is not clear in which cases that norm would not apply. Accordingly, while seemingly accepting the narrow approach, namely that this consideration requires the decision maker to treat this consideration as being against the revocation of the cancellation of a visa, her Honour leaves open the possibility that that may not be so in all cases. This Tribunal, however, takes the effect of Perry J's decision in FYBR to be affirming the narrow approach, that is, that this consideration can only weigh against the revocation of the cancellation. 4. In the present case the discussion as to whether the effect of Mortimer J's judgment in YNQY and the decisions that seem to follow the narrow approach, including FYBR, require the decision-maker in all cases to take the community's expectation to be against revocation of cancellation or whether that 'deemed' expectation under Direction 79 only arises in the circumstances described in the third sentence of paragraph 13.3(1) of Direction 79 or whether broader considerations have to be taken into account, is largely academic. That is because, in the Tribunal's view, the offences in the present case, which by operation of Direction 79 are to be viewed as very serious, are such that the Australian community, even taking into account the Applicant's circumstances, would expect that the Applicant not hold a visa. In other words, even adopting the broad approach it is the Tribunal's view that the expectations of the Australian community would be against the revocation of the cancellation of the visa. 5. The Tribunal finds that this primary consideration weighs against the revocation of the cancellation of the visa.

(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):

1. The Applicant does not raise any non-refoulement issues. The Tribunal is satisfied that is the case.

Strength, nature and duration of ties (14(1)(b))

(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

1. How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
   1. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
   2. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
2. The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

1. The Applicant says:
   • he has been in Australia nearly 13 years;
   • his mother, father, sister and brother permanently reside in Australia. Both parents have served as strong support for him;
   • he has a strong bond with his current partner to whom he is engaged;
   • his relationships in New Zealand were severed 'by reason of distance';
   • if he were to stay in Australia he would be provided accommodation by either one of his parents or his partner;
   • he has guaranteed employment with his former employer; and
   • he started offending six years after arriving in Australia.
2. The Respondent accepts that the Applicant has been in Australia for 12 years and that his removal may cause emotional hardship to members of his family, however, submits that there is nothing to suggest that they have any significant reliance on the Applicant and that there is nothing to suggest that he would not be able to maintain ongoing contact through electronic means.
3. The Tribunal agrees with the Respondent's submissions but finds that, on balance, this consideration weighs marginally in favour of the revocation of the cancellation of the visa.

Impact on Australian business interests (14(1)(c))

1. Paragraph 14.3 of Direction 79 directs that this consideration would generally only be given weight where non-revocation of the cancellation would significantly compromise the delivery of a major project or delivery of an important service in Australia. That is not the case in this matter so this consideration has no application.

1. The Applicant made submissions relating to the impact that the Applicant's offending had on the baby. That is not relevant to this consideration which relates to the impact that a revocation of the cancellation of the Applicant's visa would have on any of his victims or other members of the Australian community. In the present case the victim is the baby. The impact of a decision not to revoke the cancellation of the Applicant's visa is dealt with under the second primary consideration, the best interests of minor children.

(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

1. The non-citizen's age and health;
2. Whether there are substantial language or cultural barriers; and

1. Any social, medical and/or economic support available to them in that country.

1. The Applicant's SFIC (paras 120-131) makes the following submissions:
   • he has no immediate family in New Zealand and has a poor relationship with his remaining extended family in New Zealand. The Applicant does not explain why that is the case and does not address that issue in his evidence;
   • he would not have the support that he would have in Australia in his rehabilitation;
   • the social and government benefits available in New Zealand are 'no way near comparable to the level of benefit and necessity of the Applicant's continued rehabilitation as the support of his family and partner in Australia';
   • he would have no support meaning that he would have practical difficulties in establishing himself;
   • his removal from Australia would be emotionally distressing to his family and partner;
   • there is a possibility that he will not get meaningful employment immediately;
   • there is no impediment in his family visiting him in New Zealand, however, that would impose a financial burden on them;
   • Family Court orders may prevent his daughter from visiting him in New Zealand;
   • he has served his time in prison; and
   • to remove him would 'convey a message that the Applicant is beyond help'.
2. Most, if not all, of the matters raised by the Applicant under this consideration are irrelevant and/or misconceived. This consideration requires the decision maker to take into account impediments in the Applicant:

establishing [himself] and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

1. The non-citizen's age and health;
2. Whether there are substantial language or cultural barriers; and

1. Any social, medical and/or economic support available to them in that country.

1. None of the matters that the Applicant raises is relevant to those considerations. It is not disputed that the Applicant will have some hurdles in establishing himself in New Zealand, as would any person who relocates to a new country. However, the Applicant has not identified, let alone submit any evidence of, any health, language or cultural barrier which would prevent him from establishing and maintaining a basic living standard in the context of what is generally available to citizens of New Zealand.
2. This consideration does not weigh in favour of revocation of the cancellation of the visa.

1. Guidance is given by Direction 79 of how the decision maker should apply the primary and other considerations. Paragraphs 8(3), (4) and (5) of Direction 79 are relevant. They provide:

(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. A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While these cases were generally looking at that exercise under Direction 65, the same considerations apply to the exercise required by Direction 79 which is materially in the same terms. The leading cases in this regard are Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 which was discussed by the Full Court of the Federal Court in Minister for Home Affairs v HSKJ [2018] FCAFC 217.
2. Senior Member Dr M Evans in CZCV at [164] summarised the legal position following the various cases referred to above as follows:

Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word "secondary" tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so...

1. The Tribunal agrees with the approach outlined by Senior Member Dr M Evans.
2. For the reasons set out above, it is the Tribunal's view that the primary considerations of the protection of the Australian community from serious or other conduct, the best interests of the minor child and the expectations of the Australian community weigh against the revocation of the cancellation of the visa.
3. The only consideration that weighs in favour of the revocation of the cancellation of the Applicant's visa is the strength, nature and duration of the Applicant's ties to Australia. That consideration, however, is far outweighed by the considerations that weigh against the revocation of the cancellation

1. The Applicant does not pass the character test. That is not disputed. The sole issue is whether, guided by Direction 79, there is another reason why the mandatory cancellation of the visa under s 501(3A) of the Act should be revoked. Taking into account all of the provisions of and considerations required by Direction 79, as guided by the authorities identified above, the Tribunal is not satisfied that there is another reason why the decision to cancel the visa under s 501(3A) of the Act should be revoked under s 501CA(4)(b)(ii) of the Act.

1. The Tribunal affirms the decision by the delegate of the Respondent dated 5 February 2019 not to revoke, under s 501CA(4) of the Act, the decision made under s 501(3A) of the Act to cancel the Applicant's Class TY Subclass 444 visa.

I certify that the preceding 137 (one hundred and thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

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