The Applicant is a 35 year old man who was born in New Zealand. He entered Australia on 13 April 2005, pursuant to a Class TY Subclass 444 Special Category (Temporary) Visa (the visa) (Exhibit G22, page 86) when he was 22 years old with his partner (now wife).
The Applicant and his wife were married in 2006 (Exhibit A2, page 4). His wife became an Australian citizen in 2013 (Exhibit A2, page 1).
On 9 August 2017, the Department of Immigration and Border Protection, now the Department of Home Affairs (the Department), sent the Applicant a letter stating that consideration was being given to cancelling his visa under s 501(2) of the Migration Act 1958 (Cth) (the Migration Act) on the basis that he may not pass the character test (G3, page 9). The letter gave the Applicant the opportunity to comment or provide further information before the decision maker considered whether to cancel his visa (G3, page 10).
The Department received correspondence from the Applicant on 7 September 2017 and 19 September 2017 advising that the Applicant was an Aboriginal Australian by descent (G6, page 26). In a letter dated 10 October 2017, the Department requested further information about the Applicant's parents to determine whether he was an Australian citizen by descent (G6, page 26).
On 24 October 2017, the Applicant emailed the Department to provide this information, which included his parents' names, dates and places of birth, and where they currently resided. This information included confirmation that both of the Applicant's parents were born in New Zealand and currently resided in New Zealand. In this email, the Applicant stated his mother's nationality to be "" and his father's nationality to be "" (G7, page 29).
NZ/Palawa Australian Aboriginal
NZ/German/Australian Aboriginal
On 28 November 2017, the Department emailed a letter to the Applicant of the same date (G8, page 31-33) to inform him that the Department had investigated and had determined that he did not hold Australian citizenship and to give the Applicant an additional 21 days to respond to the Department's letter dated 9 August 2017 (G8, page 32).
The Applicant emailed the Department on 14 December 2017, acknowledging the extension of time and stating that he was "feeling very stressed by the communications presented to me by your Department" (G9, page 34).
A further email was sent by the Applicant to the Department on 8 January 2018 in which the Applicant made representations about his citizenship, Australian Aboriginal heritage and his character (G10, page 36-38). He also stated that the "inquisitions" of the Department "gave cause to a deep depression for me emotionally" (G10, page 38).
On 8 January 2018, the Applicant sent further emails to the Department which included the same details of his parents' birth places and nationalities as the email dated 24 October 2017 and reference letters regarding his character (G13, page 47; G14, page 50; G15; the reference letters are contained in Attachment L of the Reviewable Decision from G32, page 131 to G39, page 139).
On 18 June 2018, a delegate of the Minister for Home Affairs (the Delegate) made a decision to cancel the Applicant's visa under s 501(2) of the Migration Act (the Reviewable Decision) (G20, page 69).
On 31 October 2018, the Applicant's legal representative wrote to the Department stating that he believed that the Applicant's visa may have been cancelled but that he had not received any notice of cancellation from the Department (G19, page 59). A subsequent email from the Applicant's legal representative to the Department attached "Form 956", advising of his firm's appointment as the Applicant's legal representative (G19, page 59 and 61).
The Reviewable Decision was sent to the Applicant, via his legal representative, in a letter dated 1 November 2018 from the Department (G20, page 65).
The basis for the cancellation of the Applicant's visa by the Delegate was that the Delegate reasonably suspected that the Applicant did not pass the character test (G20, page 69).
This was because the Applicant had a "substantial criminal record" within the meaning of
[2]
s 501(6) of the Migration Act (as defined by s 501(7)(d) of the Migration Act) because he had been sentenced to two or more terms of imprisonment, where the total of those terms was 12 months or more (G20, page 65).
15. The Reviewable Decision was emailed to the Applicant's legal representative on
[3]
1 November 2018 (G20, page 64-65).
16. On 6 November 2018, the Applicant lodged an application for review of the Reviewable Decision in the General Division of the Administrative Appeals Tribunal (the Tribunal) (G1, page 3).
17. A decision must be made by the Tribunal within the period of 84 days after the day on which the Applicant was notified of the Reviewable Decision, the date by which the Tribunal must make a decision being 24 January 2019. If the Tribunal does not deliver a decision by this time, the Reviewable Decision will be taken to be affirmed under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) (pursuant to s 500(6L) of the Migration Act).
[4]
The issues for determination by this Tribunal are:
(a) whether the Applicant passes the character test as defined by s 501(6) of the Migration Act; and
(b) if the Applicant does not pass the character test, whether the Tribunal should exercise discretion to set aside the Reviewable Decision and make a decision in substitution that discretion should not be exercised to cancel the Applicant's visa under s 501(2) of the Migration Act, having regard to the primary and other considerations in Direction no. 65 - Migration Act 1958 - Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction no. 65). It would also be open to the Tribunal to exercise its discretion to set aside the decision and to remit it to the Department for reconsideration with a direction that the Applicant's visa should not be cancelled under s 501(2) of the Migration Act, pursuant to s 43(1)(c) of the AAT Act.
[5]
This application is made pursuant to s 500(1)(b) of the Migration Act. This section allows applications to be made to the Tribunal for review of decisions of a delegate of the Respondent under s 501 of the Migration Act.
As noted above, the Reviewable Decision of 18 June 2018 was communicated to the Applicant's legal representative on 1 November 2018 and he lodged his application for review on 6 November 2018. The Applicant is in immigration detention and is in the migration zone. He therefore lodged his application for review by the Tribunal within the nine day period after he received the decision in accordance with s 501G(1) and
[6]
s 500(6B) of the Migration Act.
3. The Tribunal is therefore satisfied that the application was lodged within time and that the Tribunal has jurisdiction to review the Reviewable Decision.
[7]
The application was heard on Tuesday 8 January 2019.
The Applicant was represented by Mr Joel McComber of Samuta McComber Lawyers. The Respondent was represented by Ms Elle Tattersall from Sparke Helmore Lawyers.
The Applicant, as well as his wife and mother-in-law, gave evidence and were cross-examined. The Applicant and his wife gave evidence in person, and his mother-in-law gave evidence by telephone.
The Applicant gave concise answers and appeared emotional during his evidence. The Tribunal's impression was that he was an honest witness who did not attempt to minimise his offending.
The Applicant's wife gave detailed and thoughtful answers to the questions put to her and she also did not attempt to minimise the extent or seriousness of Applicant's offending. Counsel for the Respondent drew attention to minor inconsistencies in several of the answers given by the Applicant's wife. However, the Tribunal is of the opinion that the Applicant's wife was an honest and reliable witness and that the minor inconsistencies in her recollection were due to the events occurring over a substantial period of time and not due to any issue of credibility.
The Tribunal also found the Applicant's mother in law to be honest and forthright in her telephone evidence to the Tribunal. She was able to confirm to the Tribunal that her evidence was based on her own direct observations and not on the basis of information she had received from her daughter, the Applicant's wife.
The Tribunal admitted the following documents into evidence:
(a) Applicant's Statement of Facts, Issues and Contentions dated 20 December 2018 with attachments which were substantially reproduced in Exhibit A2 (Exhibit A1);
(b) Applicant's undated Bundle of Documents, comprising 59 pages of documents numbered 1A through to 17A. These documents included statements from the Applicant, his wife and mother-in-law, and a Psychological Report by Dr Jacqui Yoxall, Psychologist, dated 6 December 2018 (Exhibit A2). Subsequent to the hearing the Tribunal requested, and was provided with, a copy of the briefing letter dated 19 November 2018 from the Applicant's legal representative to Dr Yoxall;
(c) the s 501 Documents (G documents) from G1 to G40 (Exhibit R1);
(d) Respondent's Statement of Facts, Issues and Contentions dated 20 December 2018 (Exhibit R2);
(e) Respondent's further evidence - documents produced under summons from the Bunbury Magistrates Court and the Busselton Magistrates Court (Exhibit R3); and
(f) Respondent's further evidence - documents produced under summons from the Western Australia Police (Exhibit R4).
(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.
Further, s 499(2A) of the Migration Act states that "[a] person or body must comply with a direction under subsection (1)."
On 22 December 2014, the Minister for Immigration and Border Protection made a direction under s 499 of the Migration Act, being Direction no. 65.
Paragraph 6.1 of Direction no. 65 sets out the Objectives of the Migration Act, with paragraph 6.1(2) and (4) of Direction no. 65 being relevant to the Reviewable Decision which is currently before the Tribunal:
(2) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
[16]
(4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
[17]
Paragraph 6.2 of Direction no. 65 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.
Paragraph 6.3 of Direction no. 65 sets out principles which must be taken into account by persons making decisions under s 501 and s 501CA of the Migration Act, including the Tribunal:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(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.
Informed by the principles set out in paragraph 6.3 of Direction no. 65, the decision-maker (in this case the Tribunal) must take into account the primary considerations in Part A of Direction no. 65, with regard to the specific circumstances of the case, in deciding whether to cancel a person's visa under s 501(2) of the Migration Act (paragraph 9(1) of Direction no. 65). Specifically, paragraph 9(1) in Part A of Direction no. 65 provides:
(1) In deciding whether to cancel a non-citizen's visa, the following are primary considerations:
[18]
Protection of the Australian community from criminal or other serious conduct;
2. The best interests of minor children in Australia;
[19]
Paragraph 10 in Part A of Direction no. 65 lists other considerations as follows:
(1) In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
[20]
International non-refoulement obligations;
2. Strength, nature and duration of ties;
[21]
Impact on victims;
2. Extent of impediments if removed.
Paragraph 7(1)(a) of Direction no. 65 outlines how a decision-maker is to exercise discretion:
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa;...
Further guidance as to how a decision-maker is to apply the considerations in Direction no. 65 can be found in paragraph 8 of Direction no. 65 which provides:
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
A person has a substantial criminal record if they have been "sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more" (s 501(7)(d) of the Migration Act).
As noted by the Delegate on 18 August 2014 (G20, page 70, paragraph [6]), the Applicant was convicted of one count of "breach of a violence restraining order", for which he was sentenced to a seven month suspended imprisonment order (G21, page 38). Further, on 19 September 2014, the Applicant was convicted of one count of "common assault in circumstances of aggravation or racial aggravation" for which he was also sentenced to a seven month suspended imprisonment order (G21, page 82). These terms amount to a total of 14 months and therefore the Applicant has a substantial criminal record and does not pass the character test (pursuant to s 501(6) of the Migration Act).
Although not noted by the Delegate, on 6 October 2009 the Applicant was sentenced to a suspended imprisonment order of nine months for "assault public officer". Additionally, on 27 October 2015, the Applicant was sentenced to a term of three months concurrent imprisonment for "breach of community based order", seven months concurrent imprisonment for "breach of suspended imprisonment order" and one month concurrent imprisonment for "breach of police order" (G21, page 82). As these terms of imprisonment (together with those set out in the preceding paragraph) total more than 12 months, the Applicant has a substantial criminal record, and does not pass the character test (pursuant to s 501(6) of the Migration Act).
The Applicant does not contest that he did not pass the character test but argues that the discretionary power to cancel his visa under s 501(2) of the Migration Act should not be exercised. Accordingly the Tribunal, standing in the shoes of the decision-maker, will consider whether to exercise this discretionary power by considering the relevant primary and other considerations in Direction no. 65.
[23]
IS THE TRIBUNAL SATISFIED THAT IT SHOULD EXERCISE DISCRETION TO SET THE CANCELLATION DECISION ASIDE?
[24]
First primary consideration: Protection of the Australian Community (9.1)
[25]
Paragraph 9.1(1) of Direction no. 65 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.
Paragraph 9.1(2) of Direction no. 65 continues on to provide that:
(2) Decision-makers should also give consideration to:
The nature and seriousness of the non-citizen's conduct to date; and
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
[26]
Nature and seriousness of the conduct (9.1.1(1))
[27]
Paragraph 9.1.1(1) of Direction no. 65 further provides:
[28]
(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:
[29]
The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
[30]
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;
[31]
The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
[32]
e) The sentence imposed by the courts for a crime or crimes;
[33]
The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
[34]
Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
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 noncitizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);
Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
[35]
The Applicant's "National Police Certificate" (G21, page 82-84) and his "History for Court - Criminal and Traffic" from the Western Australia Police (Exhibit R4, page 5-8) comprises approximately three and a half pages. They show that the Applicant's convictions primarily comprise of domestic violence related offending, and driving and traffic offences. In summary, the Applicant's offences include the following offences which were committed between 2 March 2007 and 27 October 2015:
(a) convictions for assault including two counts of "common assault in circumstances of aggravation or racial aggravation" (convicted on 19 September 2014) and one count of "unlawfully assault and thereby did bodily harm with circumstances of aggravation" (convicted on 18 December2009);
(b) two convictions against public officers including "assault public officer" (convicted on 18 December 2009) and "obstruct police officer" (convicted on 6 October 2009);
(c) four "breach of violence restraining order" (convicted on 27 March 2012, 30 August 2013 and 18 August 2014) and one "breach of police order; restraining orders ACT" (27 October 2015);
(d) three breaches of other court imposed orders including one "breach of community based order" and one "breach of suspended imprisonment order" (convicted on 27 October 2015) and one "breach of bail" (convicted on 5 September 2014);
(e) a conviction for "possess a prohibited drug (cannabis)" (convicted on 15 September 2014), a conviction for "wilfully and unlawfully destroy or damage property" (convicted on 27 March 2012) and two convictions for "stealing" (convicted on 27 March 2012); and
(f) 11 driving and traffic offences between 2 March 2007 and 29 August 2012 including three convictions for "no authority to drive" (convicted on 29 August 2012, 6 October 2009 and 21 January 2009), two convictions for "no motor drivers licence" (convicted on 2 March 2007 and 21 April 2008), a conviction for "reckless driving (inherently dangerous)" (convicted on 6 October 2009), two convictions for "unlicensed vehicle" (convicted on 2 March 2007 and 21 January 2009), a conviction for "exceed speed limit in a speed zone; between 20 and 29 km/h; probationary m.d.l" (convicted on 21 April 2008), a conviction for "exceed 0.02g alcohol per 100 mil of blood; probationary m.d.l" (convicted on 23 September 2008) and one conviction for "exceed 0.08g alcohol per 100 mil of blood; probationary m.d.l" (convicted on 6 October 2009).
Applying paragraph 9.1.1(1)(a) of Direction no. 65, violent offences, which would include the Applicant's assault convictions, are to be viewed very seriously. The Applicant's three assault convictions in 2009 and 2014 were for domestic violence related offending against his wife. As noted above, on 18 December 2009, the Applicant was convicted of "unlawfully assault and thereby did bodily harm with circumstances of aggravation". The Statement of Material Facts recorded by the Western Australia police (Exhibit R4, page 64) describes the following:
[36]
Between 7.00p.m. and 8.00p.m on Tuesday, June 9th, 2009 the accused and the victim who is his wife, returned to their flat ... after attending a friends (sic) house in their vehicle.
During the trip a verbal disagreement occurred between the two and this continued as they entered the flat.
The victim entered the flat and in retaliation for a comment made by the accused has tossed a pair of child's slippers at him.
She then placed their two-year-old son who she had been carrying, onto the floor and proceeded to walk into the lounge.
The accused then struck her from behind with an unknown object, hitting her on the right rear of her head. The blow has caused the victim to stumble and fall to floor where she lost consciousness for a short while.
When she recovered she found that she had a 1.5 cm cut to the rear of the head that was bleeding.
The victim suffered dizziness and soreness to the head as a result of the injury.
On June 10, 2009 the accused was interviewed by Police regarding the incident. He denied any knowledge of how the victim received the injury to her head and stated that she must have caused it herself...
[37]
The Applicant's two common assault convictions on 19 September 2014 were from domestic violence related offending against his wife on 9 June 2014 and 12 June 2014. The Statement of Material Facts recorded by the Western Australia police (Exhibit R4, page 58) describe the following:
[38]
At about 8:20am on Monday, 9 June 2014, the accused was at his home address...
The accused and the victim had a verbal argument about getting out of bed.
The accused jumped out of bed and with his open right hand, he hit the victim once to the face. The victim passed out. The victim received bruising and swelling to her nose and under both eyes.
On Friday, 13 June 2014, the accused was arrested and conveyed to the [Name omitted] Police Station where he declined to participate in an electronic record of interview...
[39]
The Statement of Material Facts recorded by the Western Australia police (Exhibit R4, page 59) continues on to describe a further domestic violence incident which occurred three days later on 12 June 2014 (for which he was convicted on 19 September 2014):
[40]
Between 11.30pm and 12.00am on Thursday, 12 June 2014, the accused arrived home at his home address...
The victim answered the front door and the accused went at her. He grabbed his thong and hit the victim about 10 to 15 times to the head area and five times on her left ankle. He yelled at her and told her that if she went to the Police, he would make it worth his while.
The accused eventually stopped and went to bed.
On Friday, 13 June 2014, the accused was arrested and conveyed to where he declined to participate in an electronic record of interview.
[41]
The Tribunal has before it a victim impact statement from the Applicant's wife dated 16 June 2014 which is addressed "To the Presiding Judge/Magistrate" with respect to the two charges of assault (Exhibit R3, page 9). In this statement she said that "[t]he actions of... [the Applicant] have instilled a great amount of fear in me and I have grave concerns for the safety of myself as well as the welfare of my two children."
The Tribunal notes that the documents obtained under summons from the Western Australia Police contain copies of six 72 Hour Police Orders issued on 14 October 2008,
[42]
7 January 2013, 20 August 2013, 19 December 2014, 13 April 2015 and 9 May 2015 (Exhibit R4, page 97-102). The terms of these 72 Hour Police Orders include terms restraining the Applicant from communicating with the protected person (his wife), approaching her within a specified number of metres, or from entering or remaining upon any premises where she lives or works. The issue of these 72 Hour Police Orders suggests possible further domestic violence incidents which did not result in any convictions and which may have been observed or overheard by the Applicant's children. Indeed, at the Tribunal hearing, under cross-examination, although he could not remember the exact incidents, the Applicant accepted that further domestic violence related incidents set out in Statements of Material Facts prepared by the Western Australia Police on 25 June 2008, 26 March 2009, 19 February 2012, 6 January 2013, 20 August 2013 and 17 June 2014 (Exhibit R4, page 27, 30, 34, 35, 37 and 40) must have occurred.
3. The Tribunal considers that domestic violence offences are serious offences (paragraph 9.1.1(1)(a) of Direction no. 65) and notes that during the incident which occurred on
[43]
9 June 2009, the Applicant's two year old child was present. Under cross-examination, the Applicant also admitted that his children would have been present at the domestic violence incidents on 25 June 2008, 26 March 2009, 19 February 2012, 20 August 2013 and 17 June 2014 noted in the preceding paragraph. Children are vulnerable members of the community (paragraph 9.1.1(1)(b) of Direction no. 65). Relevantly, Deputy President Dr Kendall (as he then was) stated in XFKR and Minister for Immigration and Border Protection[2017] AATA 2385 at [45] that:
[44]
The Tribunal would add that, in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women - children who, as in this instance, witness their mothers being abused, degraded and dehumanised - and send a message to those children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.
[45]
The comments of Deputy President Dr Kendall (as he then was) have been applied by this Tribunal in other decisions including QSBL and Minister for Home Affairs[2018] AATA 2074 at [59], ZTGP and Minister for Home Affairs[2018] AATA 3518 at [99] and NBCM and Minister for Home Affairs[2018] AATA 2387 at [52]- [53].
Further, applying paragraph 9.1.1(1)(b) of Direction no. 65, the offences against police officers in the performance of their duties, namely "assault public officer" and "obstruct police officer", both committed on 27 November 2008, are also to be regarded as serious. The facts relating to both offences are contained in the following excerpt from the Statement of Material Facts recorded by the Western Australia police (Exhibit R4, page 84). These events occurred after the Applicant was stopped by the police for driving speeds of up to 160 kilometres per hour in a 70 kilometre per hour zone whilst being legally disentitled to hold a driver's licence (Exhibit R4, page 83), resulting in convictions for no authority to drive, reckless driving and exceed 0.08g alcohol:
[46]
At about 11:45pm the same night the accused stopped his vehicle on the side on Warnbro Sound Avenue, Secret Harbour.
Police approached the accused and advised him he was under arrest. He was escorted to the rear of a Police vehicle and started to try and break free by throwing his arms about in the air which hit the officers. He ripped the pocket from one officer and then bit the left arm of another officer three times. The bites broke the skin and required medical treatment and antibiotics. He was tasered to stop him continuing with the assault.
The accused was conveyed to Rockingham Police Station, where he underwent a Breath Analysis Test which gave a reading of 0.124g of alcohol per 210 Ltrs of breath, calculated to have been 0.096 g of alcohol per 100 ml of blood, at the time of the occurrence.
[47]
The very serious nature of this conduct was noted by the sentencing Magistrate who stated (G26, page 108):
[48]
... [W]hen you put someone through the ordeal of having to worry about their health because of your saliva getting into an open wound -... [H]e may be worried about hepatitis, he may be worried about all sorts of things, all because he is doing his job.
Now that is a situation that troubles all police officers and their families every day they go to work when they are in operational duties. They find themselves often completely harassed by individuals who are making their job so much harder than it should be. You have got to take stock of your situation and in my view, regard to the assault public officer, we have reached the sentence of last resort and that's gaol. The only question for me is whether you should have that served immediately or whether that should be suspended...
[49]
The Magistrate continued on to describe this offending by the Applicant as being at the "higher end of the scale" (G26, page 109).
The Applicant took full responsibility for all of his offending behaviour at the Tribunal hearing, including the offending behaviour described in the Statements of Material Facts, discussed above, which did not result in any convictions. However, in his personal statement and at the Tribunal hearing he disagreed with the version of events described in the Statements of Material Facts (referred to in paragraphs [58] and [59] above), stating that he was first tasered by police and then bit the police officer in response. He said that he pled guilty because he was advised that he would receive a sentence of imprisonment if he did not and he did not want to go to gaol. The Tribunal is not entitled to question the fact of a conviction once it has been determined by a Court, however there is some scope to examine the circumstances surrounding the offending. In Minister for Immigration and Ethnic Affairs v Daniele[1981] FCA 212; (1981) 5 ALD 135 the Federal Court stated, at 653, that:
[50]
There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial.
[51]
Nevertheless, the Applicant pled guilty to this conviction, and the Tribunal deems it appropriate to accept these facts which are indicative of a serious assault on a public officer and must be viewed by the Tribunal as serious.
As noted above, 11 of the Applicant's offences are driving and traffic offences. Member Webb, in Apire and Minister for Immigration and Border Protection[2014] AATA 193 stated at [16] that "...driving a motor vehicle without a license while under the influence of alcohol is a serious matter that should not be trivialised or passed off too lightly." The Respondent has also referred to the decision of Senior Member Tavoularis in Bartlett and Minister for Immigration and Border Protection (Migration)[2017] AATA 1561 (Bartlett) in support of its submission that the totality of the Applicant's driving offences should be viewed as serious. The Tribunal notes the following statement from Senior Member Tavoularis in Bartlett at [43]-[45]:
...There is, to my mind, nothing to be said in mitigation for serious irresponsibility in the management and control of a motor vehicle. His offences of drink driving and unlicensed driving clearly point to an incapacity to distinguish right from wrong and to otherwise conform to the rules of Australian society insofar as operation of a motor vehicle on a public road is concerned. The catastrophic potential of losing control of a motor vehicle as a result of being affected by alcohol and/or prohibited substances is the subject of constant campaigns by governments at all levels.
I have similar concerns about the Applicant's failure to realise the potential adverse impact arising from unlicensed driving. This Applicant (as is the case with virtually all drivers) knew or ought reasonably to have known the potentially serious adverse consequences of unlicensed driving, or driving an unregistered/uninsured vehicle, for other road-users. Whilst no expertise in the motor insurance industry, it is common knowledge that there are insurance implications for unlicensed drivers and/or drivers of unregistered/uninsured vehicles who become involved in motor vehicle accidents. Again, for the Applicant to ignore this obvious and serious consequence of his driving conduct demonstrates an incapacity to distinguish right from wrong and to otherwise conform to the insurance/registration regime of the Australian community as it relates to the ownership and operation of a motor vehicle.
The Applicant's driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users 'go to the essential safety of the community'. Other parts of his criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle - be it drinking and driving, driving without a licence, or driving an unregistered vehicle - can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.
[52]
The Applicant's most recent offence for "no authority to drive" was committed on
[53]
18 July 2012 (Exhibit R4, page 6) and prior to this, his other 10 driving and traffic related offences were committed between 2 March 2007 and 27 November 2008 (Exhibit R4, page 7-8). The Applicant's ability not to offend in this manner for six years after his last driving offence is a factor that offers some mitigation (paragraph 9.1.1(1)(f) of Direction no. 65).
2. The Applicant has not committed any crimes whilst in immigration detention (paragraph 9.1.1(1)(c) of Direction no. 65).
3. The Applicant does not pass the character test under s 501(6)(a) on the basis of having a substantial criminal record as defined by s 501(7) and therefore a finding under
[54]
s 501(6)(c) or another subjective limb of the character test is not required (paragraph 9.1.1(1)(d) of Direction no. 65).
4. The sentences imposed on the Applicant by the Courts also indicate the seriousness of the Applicant's offending. As noted above, on 6 October 2009 the Applicant was sentenced to a suspended imprisonment order of nine months for "assault public officer". He was also convicted of one count of "breach of a violence restraining order" for which he was sentenced to a seven month suspended imprisonment order on 18 August 2014, and one count of "common assault in circumstances of aggravation or racial aggravation", for which he was also sentenced to a seven month suspended imprisonment order on
[55]
19 September 2014 (G21, page 83). On 27 October 2015, the Applicant was sentenced to a term of three months concurrent imprisonment for "breach of community based order", seven months concurrent imprisonment for "breach of suspended imprisonment order" and one month concurrent imprisonment for "breach of police order" (G21, page 82). Sentences of imprisonment are imposed by the courts as a last resort and reflect the serious nature of the Applicant's offending. Previously, between 2 March 2007 and
[56]
30 August 2013, the Applicant (with the exception of the suspended imprisonment order of nine months for "assault public officer"), had primarily received fines and driving disqualifications. These terms of imprisonment therefore reflect the seriousness of these subsequent offences including violence and breaches of court imposed orders which can be seen as an escalation in seriousness.
5. Applying paragraph 9.1.1(1)(f), although the Applicant's offending, which began with traffic and driving offences, has increased in seriousness to include breaches of court imposed orders and domestic violence, the Applicant did not commit any offences after 12 June 2014 (Exhibit R4, page 5) until he went into immigration detention in approximately 5 November 2018 (Exhibit A2, paragraph [48]). To the Applicant's credit this is a period of approximately three years and five months where he was able to remain in the community without committing any further offences or other serious conduct. From 11 February 2016 until 26 May 2016, the Applicant was on parole, thus for over three years during this period the Applicant was unsupervised in the community.
6. The cumulative effect of the Applicant's offending (paragraph 9.1.1(1)(g) of Direction no. 65) is that, between 2 March 2007 and 27 October 2015, he was convicted of a total of 28 offences with 11 of these offences being driving and traffic related (G21, page 82-84). The cumulative effect is that his offending has increased in seriousness; however, as noted above, the Applicant did not commit any offences in the community for approximately a three year and five month period prior to him being in immigration detention. Despite this, such a number of offences do result in costs being incurred by the community, in terms of the resources of the police, court system and corrective services.
7. Paragraph 9.1.1(1)(h) of Direction no. 65 requires the Tribunal to consider whether the Applicant has provided false or misleading information to the Department, including by not disclosing his prior criminal offending. The Tribunal notes that in 2009 and 2011 the Applicant failed to disclose his criminal convictions on two incoming passenger cards when returning to Australia from New Zealand. Specifically, in response to the question "Do you have any criminal conviction/s?" the Applicant has ticked the box marked "no" (G27, page 113 and 114). Making these false statements is adverse to the Applicant, however the Tribunal notes that, as a matter of procedural fairness, the Applicant did not have the opportunity to explain why he made this declaration because it was not put to him at the Tribunal hearing by either Counsel.
8. The Tribunal notes that the Applicant did not receive any formal warnings from the Department to the effect that any further offending may result in the cancellation of his visa (paragraph 9.1.1(1)(i) of Direction no. 65).
9. Paragraph 9.1.1(1)(j) of Direction no. 65 requires the Tribunal to consider whether the offence or conduct was committed in another country and whether it would be classified as an offence in Australia. The Applicant admitted to having committed offences in New Zealand (Exhibit A1, para [8]) which he described in his personal statement (Exhibit A2, page 36) as follows:
1. When I was about 15 years old I was charged with burglary. On that occasion I was with a group of friends in Auckland who were 'street kids'. They didn't go to school, but I hung out with them outside of school. They broke into a store and took some things. I went into the store with them, but I didn't take anything. In about January 1999 I was sentenced by a Court in New Zealand and was fined $100.00. At about the same time I think I was charged with assault because I got into a fight with a friend in public. However, I think this charge was dropped because I don't remember going to court for it.
[57]
When I was 19 I was charged with fraud because I had stolen my mum's husband's cheque-book and bought about $1000 worth of stuff. From memory I believe I was diverted to a drug rehabilitation program instead of being sentenced.
[58]
There is, however, no documentary evidence before the Tribunal regarding any offending by the Applicant in New Zealand. Thus, the Tribunal is unable to ascertain the nature and extent of this offending and whether it resulted in any convictions and corresponding penalties. Consequently, the Tribunal is of the view that it would not be appropriate for the Tribunal to draw any adverse inferences from any offending disclosed by the Applicant which may have occurred in New Zealand.
[59]
Weighing up the above considerations, the Tribunal finds that, on the balance the Applicant's offending is serious and weighs in favour of the cancellation of his visa.
[60]
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (9.1.2)
[61]
A decision-maker should also have regard to the following principle, described in paragraph 9.1.2(1) of Direction no. 65 as follows:
(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 9.1.2(2) of Direction no. 65 further provides:
(2) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
information and evidence on the risk of the non-citizen re-offending; and
evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice[2013] VSCA 213; (2013) 41 VR 359 at [111] (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 [94]- [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2)[2015] FCA 705; (2015) 148 ALD 117 at [42]- [43]):
[62]
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. [Footnotes omitted.]
[63]
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 re-offending as requiring a "rational and probative basis".
With respect to the likelihood that the Applicant will engage in further criminal or other serious conduct (paragraph 9.1.2(2)(b) of Direction no. 65), the Tribunal notes the psychological report prepared by Dr Jacqui Yoxall, a Registered Psychologist, at the request of the Applicant's legal representative (Exhibit A2, page 9-35). As stated in her report, Dr Yoxall interviewed the Applicant by telephone on 19 November 2018 and reviewed documentation relevant to the Applicant's offending which was provided to her by the Applicant's legal representative (Exhibit A2, page 10-11).
Dr Yoxall's qualifications include a Bachelor of Applied Science - Applied Psychology, a Graduate Diploma of Applied Science - Applied Psychology and a Doctorate of Philosophy (Forensic Psychology). A review of Dr Yoxall's curriculum vitae indicates that she has practised as a psychologist from 1995. Her experience in private practice includes being a provider of presentencing assessments and reports for the Magistrates', District and Supreme Courts in Queensland and for Local, District and Supreme Courts in New South Wales, as well as several criminal law firms. Dr Yoxall's curriculum vitae also indicates that she is a preferred provider of victims of crime compensation assessments and reports for several legal firms (Exhibit A2, page 20-21).
Dr Yoxall's report was prepared via a teleconference interview (Exhibit A2, page 9), and so, as stated in her report, Dr Yoxall was unable to assess the Applicant's appearance and nonverbal communication (Exhibit A2, page 20). Dr Yoxall conducted a violence risk assessment with respect to the Applicant and concluded the following:
[64]
[The Applicant] scored 10 on the VRAG [Violence Risk Appraisal Guide] which placed him in the VRAG category of 6. Forty four percent of individuals in this category re offended within a 7-year period and 58% recidivated within a 10-year period. It is not possible to determine whether... [the Applicant] is most similar to the 44% of the normative sample that reoffended within seven years or the 56% of the normative sample that did not re-offend within seven years.
[65]
Dr Yoxall also applied the level of service inventory, known as the "LSI-R" to measure the Applicant's general risk of reoffending. This inventory takes into account "ten domains" which are criminal history, education/employment, financial, family/marital, accommodation and leisure/recreation, companions, alcohol/drug problem, emotional/personal and attitudes and orientation. Applying the LSI-R, Dr Yoxall concluded that the Applicant was a low risk (Exhibit A2, page 23):
[66]
On review of [the Applicant's] information and what he revealed in interview, it appears that he is highly motivated to change his previous behaviour. [The Applicant's] score on the LSI-R was 12 and was primarily related to his static risk factors and recent drug misuse. North American norms are commonly used in Australia for this measure. A score between 0 and 13 indicates a low risk/needs. In the North American normative sample, 11.7% who scored in this range reoffended? For [the Applicant] it is expected that psychological treatment with respect to prevention of relapse to alcohol use, and further participation in, and completion of a domestic violence perpetrators treatment programs (sic), is expected to reduce the risk of reoffending.
[67]
On the final page of her report, Dr Yoxall gave the following opinion (Exhibit A2, page 26):
[68]
In my opinion, [the Applicant's] risk of reoffending is low to moderate. This is because, despite several protective factors (stable accommodation, employment options and prosocial family support), there are substantial static risk factors (prior offending etc.); and other dynamic risk factors which, in my view, indicate a requirement of further rehabilitation and treatment. These dynamic risk factors are primarily drug or alcohol misuse relapse prevention; treatment of current depression; and ongoing counselling to ensure implementation and maintenance of new strategies and behaviours.
[the Applicant] does present as genuinely willing to adhere to any conditions provided and is motivated to engage in treatment, education and rehabilitation programs as recommended.
[69]
To the Applicant's credit, the findings and opinions expressed in Dr Yoxall's report are in contrast to those in the Pre-sentence report dated 19 October 2015 which was prepared prior to the Applicant being sentenced to a term of imprisonment on 27 October 2015 (Exhibit R3, page 10). For example, the Pre-sentence report states that the Applicant "denied perpetrating any domestic violence during the commission of the current offence and displayed minimal insight into his offending behaviour and minimal empathy towards the victim" (Exhibit R3, page 11). The Pre-sentence report further stated that the Applicant "appeared to view himself as a bit of a larrikin and he found his offending behaviour somewhat amusing" (Exhibit R3, page 14), and that he had made limited gains from completing the men's domestic violence program and from his participation in the Breathing Space program (Exhibit R3, page 13).
In contrast, in her report dated 6 December 2018, Dr Yoxall stated that the Applicant, "demonstrated substantial development of insight over recent years" with respect to his domestic violence related offending (Exhibit A2, page 18) and "demonstrated empathy" as to the impact of his offending against his wife and children (Exhibit A2, page 18). Dr Yoxall stated (Exhibit A2, page 22):
[70]
When asked to describe his historical and most recent offending, [the Applicant] accepted responsibility for same. He noted that his offending against his wife most commonly occurred in the context of alcohol intoxication. He demonstrated remorse for his offending. At the time of the assessment, [the Applicant] demonstrated prosocial attitudes, a good relationship with authorities and a positive attitude towards supervision.
[71]
As noted above, Dr Yoxall stated that "it appears that he [the Applicant] is highly motivated to change his previous behaviour" (Exhibit A2, page 23). The difference between these two reports support the Applicant's submissions that a term of imprisonment had a rehabilitative effect on him (Applicant's statement, Exhibit A2, page 39, paragraph [34]). Indeed, as indicated by the Further Statement of the Applicant (Exhibit A2, page 52), after reading a copy of Dr Yoxall's report, including her recommendation that the Applicant engage in further rehabilitation, the Applicant and his wife have contacted their local church who run an addiction recovery program which the Applicant intends to undertake. Additionally, an indigenous resource centre has accepted the Applicant to enrol in a strong father's program and an indigenous men's group, both funded by the local council. According to the Applicant's statements, both programs include a focus on domestic violence and drug and alcohol related issues (see unsigned letter from a Bishop of the Church, dated 18 December 2018 in Exhibit A2, page 57). He also intends to re-engage in psychological counselling.
At the Tribunal hearing and in his personal statement, the Applicant was able to demonstrate remorse and insight into his domestic violence related offending. For example, in his personal statement (Exhibit A2, page 41, paragraph [50]) he stated:
[72]
I accept that I have committed some horrible offences in the past involving violence against [the Applicant's wife]. There is nothing I can say to defend my actions and I don't want to defend them. It's not just the violent offences either. I understand that violence restraining orders are put in place to protect vulnerable people and at the time I committed my offences [the Applicant's wife] was vulnerable to being hurt by me. Even where my offending has not involved violence or arguing I still see it as serious because those orders are put in place for a reason. I also understand that my actions not only hurt and threatened [the Applicant's wife] but also affected my sons [names omitted]. I am very embarrassed and ashamed of my past conduct towards [the Applicant's wife] and am thankful every day that she has persevered with me despite the many times I have failed her and our sons.
[73]
The Applicant was also able to demonstrate insight into his driving and traffic related offending. In his personal statement the Applicant said (Exhibit A2, page 41-42, paragraph [51]):
[74]
In earlier years I also committed a number of driving offences, while some of the ones involving unlicensed driving or unlicensed vehicles may be seen as less serious, I understand that those laws are in place to protect the public from unskilled or irresponsible drivers, and I should not have committed those offences. However, I am particularly embarrassed and remorseful of my offending on 27 November 2008, when I was travelling 160 km/hour in a 70 km/hour zone while double the blood alcohol limit. I have no excuse or justification for that and I look back and am horrified because I could so easily have killed myself or someone else. I don't blame the police for giving me a hiding when they got to me.
[75]
The Applicant has, over the years, participated in some rehabilitative programs. The Tribunal notes the sentencing remarks dated 19 September 2014 in which submissions were made by the Applicant's legal representative that the Applicant was undertaking one-on-one relationship counselling through Relationships Australia. The Applicant's legal representative further submitted that he was also seeing a psychologist weekly and was paying $170 per session himself to see the psychologist because the cost was not covered by Medicare (G25, page 99 and 101).
On 17 July 2015, the Applicant commenced a residential domestic violence rehabilitation program called "Breathing Space" which is run by an organisation called Communicare. The program also has a drug and alcohol component. However, he relapsed into cannabis use whilst he was subject to the Breathing Space program, which was a breach of the program rules. This breach resulted in him being exited from the program on
[76]
17 September 2015 before he could complete it (Pre-sentence Report dated
[77]
20 October 2015 in Exhibit R3, page 13; Personal statement of Applicant in Exhibit A2, page 36).
3. The Applicant was sentenced to a term of custodial imprisonment on 27 October 2015, and during this term of imprisonment he reported that prison had a significant effect on him and he realised that he needed to change the way he was living his life so that he could have meaningful relationships with his wife and two young sons. He reported engaging with Alcoholics Anonymous and Narcotics Anonymous whilst serving this term of imprisonment (Personal statement of Applicant in Exhibit A2, page 39). However there is no documentary evidence from Corrective Services confirming whether the Applicant participated in these sessions, and if so, how often. At the Tribunal hearing, the Applicant reported attending these sessions weekly for approximately three months (transcript, page 12-13).
4. The pre-sentence report dated 20 October 2015 (in Exhibit R3, page 11) noted that departmental records indicated that the Applicant successfully completed the Men's Domestic Violence program through Relationships Australia from 28 July 2009 to
[78]
6 April 2010 whilst he was subject to a community based order. However the presentence report stated that the Applicant had made limited gains from this program (and from his incomplete participation in the Breathing Space program) as evidenced by his subsequent convictions for domestic violence. At the Tribunal hearing, the Applicant stated that he did not gain very much benefit from completing this program, but that he did benefit from his participation in the Breathing Space program.
5. The Applicant also gave evidence that he was released on parole in approximately February 2016 and that a condition of his parole was that he would return to complete the Breathing Space program. In his personal statement (Exhibit A2, page 39, paragraph [35]) the Applicant stated that he was:
[79]
...doing very well in that program for about two and a half months, but I ended up smoking cannabis. I felt bad and wanted to get some help, so I told the centre that I had smoked some weed but in response they kicked me out of the program about two weeks early.
[80]
The Applicant gave evidence that by being excluded from the program he was in breach of his parole, but it was not pursued by community corrections because his parole period ended a few weeks later on 27 May 2016 (see Applicant's statement, Exhibit A2, page 39, paragraph [34]-[36]).
The Applicant further stated in his personal statement that as a condition of his parole he was required to undergo counselling and that he did so and continued to attend counselling through a private counselling service after his parole had finished (Personal statement of Applicant in Exhibit A2, page 40). In his personal statement (in Exhibit A2, page 40, para [37]-[38]), the Applicant described the treatment gains he believed he had made from participating in counselling:
... Through counselling I have come to understand the problems I have faced in the past and how these problems have led me to commit offences and domestic violence against [the Applicant's wife]. I understand now that when I was a young man I learnt to deal with stress and conflict by looking to escape it by running away or turning to drugs. When I met [the Applicant's wife] and began having a family, this way of coping only hurt [the Applicant's wife] and my sons and caused years of separation and trouble.
Learning a better way to cope with the stress and conflict of life has reduced the amount of stress and conflict between [the Applicant's wife] and I, which has previously been the background to my domestic violence offending. But it is not just that there is less stress and conflict in our relationship. Through counselling and reflection I have also understood how to better express and channel my feelings and emotions so that when there is stress and conflict at home in our relationship I do not respond with the anger, aggression and violence that led to my previous domestic violence related offending.
The Applicant gave evidence in his personal statement and at the Tribunal hearing that when he received the notice of intention to cancel his visa, he fell into a deep depression. However, instead of resorting to drugs, alcohol or violent of abusive behaviour, the Applicant sought medical help on the advice of his counsellor and obtained medication to assist with his depression. The Applicant stated in his personal statement (Exhibit A2, page 40, paragraph [41]):
[81]
I am proud of myself for the way I responded to the depression I experienced after receiving the Notice of Intention to Consider Cancellation. I think in earlier years I would have responded very poorly and irresponsibly by running from my problems and going back to abusing drugs and alcohol. But instead I stayed at home in contact with my family, kept seeing my counsellor, saw a doctor and managed to eventually get myself out of it and back on my feet.
[82]
The Applicant's wife also gave evidence at the Tribunal hearing and also in her personal statement (Exhibit A2, page 46, para [24]) that:
[83]
Despite this, and a number of other stressors that were going on in our lives at the time, [the Applicant] did not revert to abusing drugs or alcohol or engage in any domestic violence. I am very proud of him for being able to do that during such a stressful time.
[84]
At the Tribunal hearing, the Applicant's wife gave evidence of the differences in the Applicant's behaviour after he completed his term of imprisonment (transcript, page 40-41):
[85]
MR McCOMBER: ...Do you have any kind of practical examples of differences in how he behaved or how he responded or how he copes after coming out of prison, compared to the period kind of leading up to going into prison?
APPLICANT'S WIFE: Absolutely, black and white. The difference is black and white. Prior to prison, it was no conception, no conceiving whatsoever, the effect of [the Applicant's] choices on anyone beyond himself. It was a very narrow-minded mindset of 'This is what I want and that's what I'm going to do'. It was immature and that's why, you know, if you have to sum it up in one sentence, it was just very immature, slow to grow up. And - sorry, baby brain's kicking in. And now, on the flip side of that, what I saw, so we visited a few times while [the Applicant] was in prison - 2015 I think it was, if I remember right - and it was then that I started to see inklings of that change, of being able to conceive that there's actually a consequence to what I'm choosing. There's actually an effect beyond myself to what I'm choosing and that meant a lot to me, of course, because the effect was largely on the children and I. So, practical examples - I think it's been a long road and it's more the [sic] what he doesn't do now, I think. You know, there's control, there's self-control, there's no drugs and alcohol and partying and that's just part of the equation, but the commitment to the children, to me, are very practical example of that. Working every day, sustaining a long-term commitment of employment is a practical example. There's a softness too, there's a kindness, there's a maturity, there's - it's so very different. It's starkly different and I wouldn't be here right now if it wasn't. We wouldn't have commenced a relationship again, or a unit as a family again, three years ago now, if I didn't see those differences in action. You know, I think, roughly, even beyond our family unit, connecting with family and friends in my life was also a practical example, whereas, he had no interest in any of that prior to what I see as the, kind of, point of transition in his life and ours. So - and I think I have family members that have, kind of, spoken to that too, where they see the difference in him, they see his ability to - just even on simple things to hold a conversation and be interested in the other person.
And it might sound simple, but it certainly - they certainly were simple things that didn't exist before. And on the bigger levels, like I said, the contributing to the kids' lives, being engaged, being actively engaged and caring about what other people were doing. Whether it was us or people in the community, different community groups he worked with, and there seemed to be a clearer direction in knowing what he wanted out of life as well and so, you know, for the first time he was talking about aspirations of different study pursuits and things like that and that never existed before. There was no interest whatsoever in studies or progressing for himself and that was dramatic to me. And of course, the dropping off of aggression and all of that - yes, stark difference. It's just - yes. I've got to put my feet up these days, you know. He is the provider for the first time in many years. I was - the pressures of raising a family on your own were not solely on my shoulders anymore. And it was a shared companionship for the first time in knowing him and I treasure that.
[86]
The Applicant's mother-in-law also attested to changes she had seen in the Applicant before and after his imprisonment. She did not appear to know the full extent of the Applicant's offending history, but was aware of the Applicant's domestic violence related offending in 2014 because she attended the police station with her daughter when her daughter made the complaint. She stated in her oral evidence (transcript, page 71):
[87]
SENIOR MEMBER: I just want to be clear, are they changes that you have directly seen or observed, or are they changes that your daughter, [name omitted], has told you about?
APPLICANT'S MOTHER-IN-LAW: No, I'm a firm believer in basing my opinions on what I see for myself. It's always nice to be told things, but I have actually resided in their home on various occasions, and more recently at their present address at Midland, and I see so many things occurring that show an improvement, a sense of responsibility. And I think the basic love for wife and family - and children, has been there, but there's no use feeling love if you're not going to actually do something about it. I now see him, prior to going into the detention centre, wanting to make a life for the - wanting to provide for his family, and also trying to teach his children good values, and participate in community events. I also see a pride in his knowledge of his ancestral connections to the Aboriginal [name of tribe omitted] descent, and I think that's also helped him to gain more of a sense of value. And when you feel good about yourself, it's a natural flow on that you can pass it onto others. But until you feel that sense about your own wellbeing, it's quite difficult sometimes to share it with others. He does things with the children. He participates in their sports. He minds the children if my daughter needs to do studies for her - she's presently being doing studies for - by correspondence for law, so he's making himself available to make sure that she can achieve things that she needs to do as well. There's countless things. He cooks meals. He does things in the house when he's not working, that are helpful. And I just - I think it's in his attitude. It's not the fact he physically does these things, he seems to have a pride in being able to fulfil that role now. And I'm so happy for my daughter that this is the atmosphere they are raising their children in now, in contrast to whatever might have been happening before. And I don't try to stay that everything has always been plain sailing, but I think there are many families who experience challenges to start with. The important thing, I think, is to raise above those challenges and strive to achieve a better path, and that's the part that I'm acknowledging now. I was raised by fairly wise parents that always encouraged us to look for the good in others, not to be blind to things that are not good but to seek for the good and always try to make the best of any situation. I would say at present that's what I'm looking at with my daughter and her husband and children. There are two boys that love their dad, and there is another child due in May. So I can see enough positives that I would really like to see their lifestyle continue in Australia, in the land that they feel happy in. So I hope that answers your question.
[88]
The Applicant also has pro-social support persons in the community, as indicated by his character references (G32 to G39) including his wife and mother-in-law (who divides her time between Australia and New Zealand). These letters also confirm that the Applicant has undertaken volunteer work with his local Lions Club during the last two years (G33 and G39) and that for the last two years he has been regularly involved with his children's school related activities (G37 and G38). The Applicant also has an offer of stable employment with his former employer and while this is positive and
[89]
pro-social, the Tribunal notes that he was employed during his previous periods of offending.
2. Regarding the nature of the harm to individuals if the Applicant were to engage in further criminal or other serious conduct (paragraph 9.1.2(2)(a) of Direction no. 65), the Applicant has a history of domestic violence-related offending against his wife and not against any other members of the community. Should the Applicant commit similar offences in the future, his wife and children may suffer physical, and possibly psychological, injury, as may another intimate partner if the Applicant were to separate from his wife and enter into a new relationship. Whilst all domestic violence offences and incidents should be regarded as extremely serious, those committed by the Applicant could be said to fall at the lower end of the scale when compared with other domestic violence related offending seen by the Tribunal in the context of the character test. If the Applicant were to commit driving offences in the future, such as driving under the influence of alcohol, members of the public could suffer serious injury or even death if an accident resulted.
3. Paragraph 9.1.2(2)(b)(ii) of Direction no. 65 provides that the Tribunal can give weight to the time in the community since the Applicant's most recent offence. As noted above, the Applicant was in the community without committing any offences for approximately three years and five months. During this time, there are no records of any telephone calls to police or police attendances (Exhibit R4, page 103). His last driving offence "no authority to drive" was committed on 18 July 2012 and he has not committed any traffic or driving offences since that time.
4. However, at the Tribunal hearing, Counsel for the Respondent submitted that there were prior periods in which the Applicant had not offended or engaged in domestic-violence-related behaviour (transcript, page 89) and so the Tribunal should not place significance on the most recent period of approximately three years and five months during which the Applicant did not commit any offences. The Respondent referred to the following periods with respect to the Applicant's violent offending 2006 to 2008 (two years); March 2009 until February 2012 (two years and 11 months); and February 2012 until August 2013 (one year and six months) (see transcript, page 25-26). These periods related to domestic violence offending only and omitted any traffic offending. However, in commenting on any offence free periods, the Tribunal does not regard it to be comparative with the current three years and five month period (which contained no offending of any kind), to excise traffic offending from these periods.
5. A review of the evidence before the Tribunal, which takes into account any traffic and driving-related offending, indicates that the actual duration of some of these periods was less than those articulated by Counsel for the Respondent. By the Tribunal's calculations with reference to the Applicant's recorded convictions in the Western Australia History for Court - Criminal and Traffic (Exhibit R4, page 5-8), these approximated offence free periods were: from April 2005 (when the Applicant first arrived in Australia) until September 2006 (one year and five months); from October 2006 until January 2008 (approximately one year and three months); from July 2009 until March 2012 (approximately 2 years and eight months); and from August 2012 until September 2013, (approximately one year and one month).
6. With respect to his lack of offending when he first arrived in Australia, the Applicant stated "I don't think I was home enough to - or with my wife enough to have domestic violence. I was out partying all the time" (transcript, page 25). With respect to any subsequent breaks in his domestic violence offending, the Applicant simply accepted what was put to him under cross-examination that these were offence free breaks in his offending (transcript, page 25-26).
7. However, even if the traffic and driving offences are excised, other evidence before the Tribunal suggests that whilst the Applicant may not have committed any offences during these periods, he may nevertheless have engaged in other serious conduct. For example, the Applicant's wife separated from him and temporarily resided in a women's shelter in November 2007, which suggests that the period leading up to this admission was not free from adverse incidents (transcript, page 52, G21 page 84). The following exchange is relevant:
[90]
MS TATTERSALL: Now, some of the police records say that in 2007, in November 2007 you spent four weeks in a [name omitted] Refuge. What was that in relation to?
APPLICANT'S WIFE: So that was again the abusive behaviour. That was a result of the abusive behaviour. I mentioned the controlling side of it. I've mentioned that flared up in aggressive ways at times. The control kind of waved out to financial control, all the typical elements of abusive relationships were apparent then.
MS TATTERSALL: So were you scared that it would escalate at that time?
APPLICANT'S WIFE: Certainly, I'm sure I was. I don't think many people take up the option to be in a refuge if they're not scared to some degree of - of what's happening in their personal life.
[91]
MS TATTERSALL: In relation to the behaviour that led you to go to the refuge, is there any specific reason why you didn't report that sort of behaviour to the police, in circumstances where you felt in fear enough to seek that protection?
APPLICANT'S WIFE: Because it's not an offence, unfortunately. You know, abusive, controlling behaviour is not legislated for. It was enough of an encumbrance for me as a mother to take that action to remove us from the same home as [the Applicant], but it's not an offence. I remember at that time wishing it were an offence but it's unfortunately not considered that.
[92]
The evidence suggests a culmination of the behaviours described by the Applicant's wife for a period preceding the entry into the women's shelter. Additionally, in the following excerpt, Counsel for the Respondent asked the Applicant's wife about the breaks in his offending (transcript, page 63-64):
[93]
MS TATTERSALL:...would you agree, then, that there were periods of time when - and previously where [the Applicant] went through periods where there were no domestic violence incidents?
APPLICANT'S WIFE: I would agree there was periods where there wasn't violence. I would not agree that there was periods that weren't abusive, that weren't conducive to a family not living together.
...
MS TATTERSALL: I put it to you that there are periods where from the evidence before me, and you said that you report instances of violence that do happen to you, that it appears that there haven't been any instances of any violence. Do you agree that that's the case, or are you saying that there was some aggression that you didn't - I'm just trying to understand?
APPLICANT'S WIFE: Well, as far as I know it, violence is defined as physical. The aggression I talk about is - to me, comes under the umbrella of an abusive element in a relationship or an abusive element in general. The aggression, to me, doesn't always equate to an offence, but it does equate to the reason as to why I say I had separated from [the Applicant] at that time.
MS TATTERSALL: Are you saying that you wouldn't have, for example, called the police if he was yelling at you, but you would have if he was physically hurting you?
APPLICANT'S WIFE: Yes, I would say that when I called the police it was because I feared for my safety. When I involved the police, it was because I felt I needed their assistance.
[94]
Although there may have been periods in which the Applicant did not engage in offending behaviour against his wife, based on the above evidence from the Applicant's wife, the Tribunal has some doubt as to whether the Applicant did not engage in other abusive and controlling behaviour toward his wife during these periods which may amount to other serious conduct. The Tribunal concludes that the Applicant's complete lack of offending during his most recent period in the community of approximately three years and five months, can be distinguished from the prior periods and is a factor that weighs in the Applicant's favour.
It is not possible to conclude with any certainty that there is no likelihood of the Applicant re-offending. The Tribunal accepts the findings in the psychological report of Dr Yoxall, which found the Applicant to have a low to moderate risk of re-offending. These findings are supported by other evidence including: the approximate three year and five month period that the Applicant was in the community without any offences or incidents; the salient effect that a term of imprisonment had on the Applicant; his pro-social supports in the community including his wife, mother-in-law and through his employment; his community work; his acceptance of responsibility for his offending and insight into his offending; his ongoing participation in counselling and his plans to undertake further rehabilitative programs if he is permitted to remain in Australia.
The Tribunal finds that there is a low to moderate risk of the Applicant re-offending, however this must be balanced against the nature of the harm that could result if the Applicant were to commit further domestic violence or driving offences which could, for example, result in serious physical injury. The Tribunal finds that the risk to the Australian community is not entirely unacceptable, but overall, this primary consideration weighs slightly against the Applicant.
[95]
Second primary consideration: The best interests of minor children in Australia (9.2)
[96]
Paragraph 9.2 of Direction no. 65 provides:
(1) Decision-makers must make a determination about whether cancellation is, or is not, 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 cancel the visa 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.
Paragraph 9.2(4) of Direction no. 65 continues on to outline the factors that a
[97]
decision-maker must consider when determining the best interests of a child:
* (4) In considering the best interests of the child, the following factors must be considered where relevant:
[98]
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;
[99]
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;
[100]
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.
The Applicant and his wife are the biological parents of two sons born in December 2006 (now 12 years old) and in May 2010 (now eight years old). The interests of the children do not differ so the Tribunal will consider them together (paragraph 9.2(3) of Direction no. 65).
With respect to the nature and duration of the Applicant's relationship with the relevant children (paragraph 13.2(4)(a) of Direction no. 65), the Applicant did not have a great deal of involvement in his son's lives until his release from prison on parole in February 2016. However from this time until his entry into immigration detention, the evidence before the Tribunal shows that the Applicant appears to have been a committed father who was involved in his son's lives, including attending a father and son camp with his eldest son (G34, page 134, G38, page 138, G39, page 139). In a character reference letter dated 7 January 2018, the Principal of his sons' school stated that over the last two years the Applicant had "participated in courses and rosters" at his sons' school and "has shown a willingness to develop his skills as a parent and to be supportive of his children's education along with assisting in school activities" (G38, page 138). He was also described in another character reference letter from a friend and employer as "a contributing member of the local community and family man" (G39, page 139).
In his personal statement the Applicant also described his relationship with his children (Exhibit A2, page 42, paragraph [56]-[57]):
My wife has done a great job of raising our sons over the years, often on her own financially and otherwise. But although I might have been largely vacant over the years with them I am very close with my two sons and particularly over the last three years the bond between them and I is unbreakable. I know very well as they grow into their teenage years and beyond that I will play a crucial role in their lives. They have lapped up having me present in their lives over the last three years and I really hope I am allowed to continue to be with them soon.
For the first time in a long time I have been able to take care of [the Applicant's wife] and my boys. I work hard to take care of them and me being in detention for the next three months puts all pressures back onto my wife.
In her personal statement, the Applicant's wife described his involvement as a father (Exhibit A2, page 45, paragraph [17]-[18]):
We began living as a family from about June 2016. From this time I saw [the Applicant's] willingness to contribute to our family. Even though there were not a whole lot of opportunities for employment in [name of region omitted], he was actively engaging with our sons for the first time and being 'present' in the moment with us as a family. He had matured so much and for the first time had a clear idea about who you wanted to be and what he wanted to do in his life. He became the leader and the father of our family which was a great thing because I had carried a family though [sic] a lot of years. He also had begun placing a focus on eating healthy and going to the gym, which he had not previously done.
[Children's names omitted] responded very well to having [the Applicant] in their lives full-time. For the most part our sons were sheltered from the problems [the Applicant] and I had gone through earlier in our relationship. [The eldest son] was at an age where he began looking up to [the Applicant] as a father figure, so it was a perfect time for [the Applicant] to come back into our family. [The Applicant's] bond with our sons has become unbreakable. [The Applicant] was participating in school fundraisers and school events, which was something he'd never done before. He went to school sports day and watched the soccer games on weekends, which had never happened before. The kids really enjoyed having him more involved in their lives. It is extremely upsetting for me to see my children have finally had the opportunity to develop a strong bond with their father only to now have that bond taken away from them.
Applying paragraph 9.2(4)(b) of Direction no. 65, the Tribunal notes that the Applicant's sons are very young and that they would benefit from having the support and involvement of a father in their upbringing as they enter their teenage years. The Applicant will be living in the family home with his wife and two sons, and will be able to continue his involvement with their school activities. The Applicant has also shown his willingness to be a positive role model through his participation in the father and son camp and his attendance at his sons' sporting events. He also intends to complete the Strong Fathers Program (Exhibit A2, page 52, paragraph [5]; and letter concerning the Strong Fathers Program at page 53).
There is minimal evidence that the Applicant's offending conduct has had a negative impact on his sons, although the children would have been present in the home during some of the Applicant's domestic violence-related offending. If the Applicant continues to offend, he will not be a positive role model for them and if the children were to witness any offending they must suffer emotional distress or psychological harm (paragraph 9.2(4)(c) of Direction no. 65).
Applying paragraph 9.2(4)(d) of Direction no. 65, it is unclear as to whether the Applicant's wife and son's would relocate to New Zealand with him if his visa was to remain cancelled. The Applicant's wife has given evidence, at the hearing and otherwise, that she would relocate to New Zealand with the children to keep the family unit together, however, the Applicant expressed uncertainty as to this at the Tribunal hearing and in his personal statement (Exhibit A2 page 42 [55]).
If the Applicant were to return to New Zealand without his sons, the Tribunal has no doubt that a permanent separation from their father would negatively impact on his sons and given his daily involvement in their care and lives post-imprisonment, maintaining contact by telephone or other electronic means would be a poor substitute when compared to living under the same roof with their father (paragraph 9.2(4)(d) of Direction no. 65).
The effect of an exclusion from Australia for the Applicant would be permanent and so he would be unlikely to travel back to Australia to see his two sons unless some ministerial discretion was exercised enabling him to do so. Instead, his wife and sons would have to travel to visit him in New Zealand. The evidence before the Tribunal was that the Applicant's wife was experiencing financial pressure following the Applicant's admission into immigration detention and so visiting New Zealand to see their father on a regular basis is unlikely to be a realistic possibility. The Applicant's wife also expressed concerns about the impact on the children in adjusting to a relocation in New Zealand when they would be separated from their friends, sporting clubs and maternal family (Exhibit A2, page 47, paragraph [34]):
If the Tribunal does not overturn the decision to cancel [the Applicant's] visa, our sons and I will relocate to New Zealand to live with [the Applicant]. We will fight to remain a family, even if it means moving to New Zealand. I have no idea how I will afford flying my children and I from Perth to New Zealand, or what our lives would look like in New Zealand. [The Applicant] and I haven't lived in New Zealand for 13 years and our sons, who were born in Australia, have never lived there. We would all be separated from our friends in Australia, and most of my family lives in Australia. We have to start all over again with another baby on the way in May.
It would affect my sons significantly if we had to leave Australia. They were both born in Australia. Australia is all they know...
The Applicant's wife gave evidence at the Tribunal hearing that the children identify as being Aboriginal. She stated (transcript, page 41-42):
[101]
MR McCOMBER: In terms of your sons, [NAMES OMITTED], can you talk to the tribunal about what they understand to be their ancestral connection to Australia, if they have that conception?
APPLICANT'S WIFE: They certainly do. They, particularly the younger one, so in my recollection, it was approximately six years ago that a family reunion occurred in New Zealand where family history was traced back and it became known on [the Applicant's] grandmother's side that their grandfather and grandmother, generations back, were descendants of Tasmania, so [name of tribe omitted], people of [name of tribe omitted]. So, six years ago, our youngest boy would have been approximately two years old and so, from a very young age, both boys had that affiliation because we, ourselves, were learning about that history and I, personally, am quite intrigued with family history and how those experiences filter down. And sense of belonging for them was strengthened to this land of Australia, even though they knew their parents were born in New Zealand. So, their school in [Suburb omitted] had a large focus on the indigenous culture and for them, I think, they've, on many levels, felt very confused by this whole experience and one of the things they have talked about - in their simple kind of comments of not understanding why this isn't their home. You know, and what happens to their father happens to them. And so, they're very confronted by the sense of questioning of their belonging to this country. And that's been - I don't think I've found the right way to even explain that to them. I don't understand it. They believe they're aboriginal, they believe they're indigenous to Australia. They also know they're indigenous to New Zealand. What a beautiful thing to be indigenous to both, to two countries. So, confusion is the effect it has on them.
[102]
The children's former school principal also confirmed, in a character reference letter for the Applicant dated 7 January 2018 (G38), that:
[103]
[The Applicant] has identified himself and his two enrolled children as Aboriginal since arriving at the school six years ago. The school has identified [the Applicant's] two children as Aboriginal in the Federal and State Censuses each year.
[104]
The Tribunal is concerned that the cancellation of their father's visa may have a detrimental impact on the children's cultural identity. If their Aboriginal parent (the Applicant) was removed to New Zealand without them, they would lose the benefit of learning about their culture from their father. If the children were to relocate to New Zealand they would be removed from being a part of the indigenous community in Australia. This would negatively impact on their ability to actively participate in, and learn about their Australian Aboriginal culture and heritage.
Currently, the children's mother fulfils a parenting role (paragraph 9.2(4)(e) of Direction no. 65). She fulfilled this role for approximately eight years up until the Applicant served his term of imprisonment. However, prior to his admission into immigration detention, the Applicant was living at home with his sons and fulfilling a parenting role through his involvement in their daily lives, as described above.
Regarding the views of the Applicant's sons (paragraph 9.2(4)(f) of Direction no. 65), his eldest child completed a visa cancellation questionnaire (attached to Exhibit A1). In it, he describes his dad as, "My dad is loving. kind hearted. hardworking and trust worthy". As to how he has been affected by his father being in immigration detention, he stated, "The seperation (sic) makes me feel confused, sad and angr (sic)" and with respect to finding out that his father's visa may be cancelled, "I have felt confused and angry". In response to a question about how living in a different country to his father may affect him, the child stated "I wouldn't live anywhere without my dad" and "sadness, unhappiness are the feelings I would feel. I look up to my dad". With respect to a question about possibly having to leave Australia the child stated, "we shouldn't have to [leave] this is our home I was born here all my friends live here". The Applicant's wife also wrote a questionnaire on behalf of the Applicant's younger son in which she wrote that he does not understand what is happening to his father, that he is emotional and confused, and having difficulty focussing on his school work (also attached to Exhibit A1).
Although the Applicant had minimal involvement in his sons' upbringing until his release from prison, there is no evidence that the Applicant has abused or neglected his sons (paragraph 9.2(4)(g) of Direction no. 65).
A victim impact statement dated 23 June 2014 from the Applicant's wife (Exhibit R3, page 9-10) states that the Applicant's conduct has had an "impact on the children". She stated that the youngest son, then four years old, had begun bedwetting and his teacher had expressed concerns about a change in his behaviour. Other than this statement, there is no other evidence before the Tribunal that the children have experienced any physical or emotional trauma from the Applicant's conduct (paragraph 9.2(4)(h) of Direction no. 65).
Taking into consideration the above discussion of the factors in paragraph 9.2(4) of Direction no. 65, on balance, the Tribunal finds that the cancellation of the Applicant's visa would result in significant detriment to the Applicant's two sons. Thus the cancellation of the Applicant's visa is adverse to the best interests of his children. This weighs heavily in favour of the non-cancellation of the Applicant's visa.
[105]
The Applicant's and his wife are expecting their third child in May 2019 (see paragraph 26 of the statutory declaration of the Applicant's wife dated 7 December 2018 in Exhibit A2, page 46).
Counsel for the Applicant submitted that the cancellation of the Applicant's visa would not only be "extremely prejudicial" to the Applicant's two sons, but also to the interests of the Applicant's unborn child (Exhibit A1, paragraph [48]-[50]).
Relevant authorities provide that the interests of an unborn child do not form part of the primary consideration regarding the best interests of the child (see relevant authorities regarding an unborn child which were discussed by Deputy President Boyle in JNMK and Minister for Immigration and Border Protection (Migration)[2018] AATA 971 at [64] - [65]). The Tribunal will therefore consider the Applicant's unborn child with respect to the strength, nature and duration of ties below.
[106]
Third primary consideration: Expectations of the Australian Community (9.3)
[107]
Paragraph 9.3(1) of Direction no. 65 provides:
(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 cancel the visa held by such a person. Visa cancellation 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 continue to hold a visa. Decision-makers should have due regard to the Government's views in this respect.
Also, paragraph 6.3(2) of Direction no. 65 states:
(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.
Relevant case law regarding the expectations of the Australian community was summarised by Member Burford in Le and Minister for Home Affairs[2018] AATA 4126 (Le) at [135]-[138] as follows:
In the case of YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY), Mortimer J made the following comments:
[108]
[76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the 'expectations' about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to 'tolerance') the Australian community's 'expectations' are defined only in one particular way: namely, that the Australian community 'expects' non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[109]
[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese v Minister for Immigration & Border Protection[2015] HCA 15; (2015) 256 CLR 203 at [64]-[66]).
[110]
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.
The passage referred to by Mortimer J above in Uelese v Minister for Immigration & Border Protection [2016] FCA 348 states as follows:
[111]
[64] In my opinion, the reference by the Tribunal to what the Australian community expected of the Australian Government was not a matter that required evidence but was a statement of the views or policy of the Government. The language in paragraph 6.3(2) of the Direction, that the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia, is found in a list of seven 'Principles'. There is a further reference to the expectations of the Australian community in paragraph 9.3 of the Direction where the statement is made that the Australian community expects non-citizens to obey Australian laws while in Australia. It states that where a non-citizen has breached, or where there is an unacceptable risk that they will breach, this trust or where the non-citizen has been convicted of offences in Australia, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate, the paragraph states, 'simply because the nature of the character concerns or offences were such that the Australian community would expect that the person should not continue to hold a visa'. The paragraph ends by stating that decision-makers should have due regard to the Government's views in this respect.
[112]
[65] ... In my opinion it is open to the Minister to make a statement of the Government's views as to the expectation of the Australian community and for the Tribunal to act on that statement.
[113]
Deputy President Constance in Zyaran and Minister for Home Affairs [2018] AATA 3785 at [71] and [72] and in Nguyen and Minister for Home Affairs [2018] AATA 3726 applied the reasoning of the Federal Court in YNQY. Deputy President Rayment, QC in the case of Kumeroa and Minister for Home Affairs [2018] AATA 3744 also applied YNQY.
[114]
Member Burford further explained, at [139]-[141], in Le:
The Tribunal notes that both Direction no. 65 and the relevant authorities make it clear that the Tribunal must take into account the primary and other considerations relevant to the individual case. Direction no. 65 specifically notes that both primary and other considerations may weigh in favour of either to revoke or not to revoke a mandatory cancellation of a visa (Direction no. 65, Cl 8(3)). While the Direction states a primary consideration should generally be given more weight than the other considerations, the authorities make it clear that this will depend on the individual circumstances and will still require the Tribunal to take into account both the primary and other considerations and to give each appropriate weight in reaching a decision.[5]
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. 65 makes such a statement. Applying YNQY and Uelese_, the Minister makes this statement both in the principle expressed in 6.3(2) and in 13.3(1). Applying_ Uelese_, 13.3(1) directs that the Tribunal should have due regard to the Government's views in this respect._
It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government's view as to the expectations of the Australian community as expressed in 6.3(2) and in 13.3(1) of Direction no. 65. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed by the Minister, they weigh against revocation. However, it remains for the Tribunal to determine, in all the circumstances, what constitutes appropriate weight. This will depend on the Tribunal's assessment of the totality of the relevant considerations including the primary and other considerations.
[115]
In Afu and Minister for Home Affairs[2018] FCA 1311 (Afu), at [85], Bromwich J explained:
[116]
...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..._
[117]
In applying paragraph 13.3(1) of Direction no. 65, as explained by Mortimer J in YNQY and Bromwich J in Afu, the Tribunal finds that the Australian community would expect the Applicant's visa to remain cancelled.
[118]
However, in determining the weight to be applied to this consideration (which is in favour of the Applicant's visa remaining cancelled), the Tribunal is of the opinion that the primary consideration of the best interests of the Applicant's children, and the other considerations, particularly the Applicant's ties to the Australian community (which weigh in favour of the of the non-cancellation of the Applicant's visa on character grounds) should be given more weight than this consideration. These other considerations are discussed below.
[119]
Paragraph 10(1) of Direction no. 65 provides:
(1) In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
[120]
International non-refoulement obligations;
2. Strength, nature and duration of ties;
[121]
Impact on victims;
2. Extent of impediments if removed.
[122]
Paragraph 10.1 of Direction no. 65 provides that decision makers must take into account any non-refoulement obligations that Australia may have with respect to the person whose visa has been cancelled. The Applicant has not made any claims of any risk of harm if he were to be returned to New Zealand and no such claims otherwise arise on the facts and evidence before the Tribunal.
[123]
Paragraph 10.2(1) of Direction no. 65 provides:
(1) Reflecting the principles at 6.3, decision-makers must have regard to:
How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
[124]
i. less weight should be given where the noncitizen began offending soon after arriving in Australia; and
[125]
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
[126]
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 cancellation 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).
[127]
As noted above, the Applicant has resided in Australia for approximately 13 years after arriving in Australia with his wife in April 2005 when he was 22 years old (paragraph 10.2(1)(a) of Direction no. 65).
The Applicant's first offences of "unlicensed vehicle" and "no motor drivers licence" were committed on 22 September 2006, approximately one year and five months after arriving in Australia. He was convicted of these offences on 2 March 2007 (paragraph 10.2(1)(a)(i) of Direction no. 65). The short period of time in between the Applicant arriving in Australia and the date of his first offences is adverse to him.
The Applicant has, however, made positive contributions to the Australian community through being employed for the duration of time that he has been in Australia. After his release from prison he was employed by a dairy company for approximately one year, before obtaining a job in the construction industry (Applicant's personal statement in Exhibit A2, page 40, paragraphs [40] and [42]). An email from the Applicant's employer dated 30 October 2018 indicates that he is able to return to his construction job upon his release from immigration detention (Exhibit A2, page 6).
The Applicant has also undertaken volunteer work for the local Lions Club on a weekly basis for a year after his term of imprisonment including helping with the collection and delivery of furniture and tidying up a large shed (transcript, page 31; letter from President of Lions Club at G33; see also G39). He also stated that he had undertaken volunteer work at the Salvation Army for a four month period, however there is no corroborating evidence of this. As noted above, the Applicant has also volunteered at his sons' school (G38). One of his character referees described him as "a committed family man with a willingness to contribute to the local community and help support his friends" (G39), citing his weekly volunteer work for the local Lions Club as an example.
The Tribunal finds that the Applicant's ties to the Australian community are very strong. The Applicant was born in New Zealand and has Maori heritage, however, the Applicant's evidence is that for the past five years he has primarily identified as an Aboriginal Australian after learning of his family's ancestry through his maternal line (G10, G11). In his personal statement, the Applicant stated (Exhibit A2, page 42, paragraph [54]):
[128]
Even though I was born in New Zealand, I identify as indigenous Australian as my mother has ancestral connections to the indigenous people of Tasmania. My grandfather (5 generations back) [name omitted] left Tasmania for New Zealand to escape the massacre of Tasmania's indigenous people. My material (sic) family has always recognised its indigenous ties to Australia and I have applied to become a member of the [name omitted] Aboriginal Corporation. Many of my maternal family members are already members of the Corporation and are recognised as being of Aboriginal descent. Both of my sons identify as indigenous Australians as well.
[129]
The Tribunal has before it the Applicant's application for membership to the Aboriginal Corporation, as well as a family tree which traces the Australian Aboriginal line of the Applicant's family (Exhibit A2, page 49 and 50). The Tribunal also has before it a letter from the Aboriginal grand-uncle of the Applicant, unsigned but dated 2 January 2019, which states, "I know he [the Applicant] is a descendant of the [name omitted] people of Tasmania through his mother's family and that he identifies as Aboriginal" (Exhibit A2, page 58). The Tribunal also has before it a "Confirmation of Aboriginality" certificate from the relevant Aboriginal Corporation dated 14 November 2015 certifying that the Applicant's grand-uncle is a Tasmanian Aboriginal person (Exhibit A2, page 59). As also noted above, the Principal of his children's former school has stated that the Applicant had identified himself as Aboriginal for approximately six years and that his children had also been identified as Aboriginal in the Federal and State Censuses each year (G38). Additionally, another parent at the school who wrote a letter of support for the Applicant, stated that she had known the Applicant for four years and that he had "identified himself to me as Aboriginal over these years" (G37). Although the Applicant has not yet been formally recognised as Aboriginal by the relevant Aboriginal Corporation, the Tribunal is of the view that there is sufficient circumstantial evidence to suggest that the Applicant is a person of Australian Aboriginal descent, and that the Tribunal accepts that the Applicant identifies as an Australian Aboriginal person.
The Applicant's wife, although born in New Zealand, is an Australian citizen (Exhibit A2, page 1) and his two sons were born in Australia (Exhibit A2, page 2-3). The effect of the cancellation of the Applicant's visa would have a detrimental impact on his wife and sons, both emotionally and financially. The Applicant's wife is also expecting their third child in May 2019, which further strengthens the Applicant's ties to the Australian community, as well as adding to the detriment that his wife would suffer if his visa were to be cancelled. This unborn child would also be deprived of a relationship with his or her father if the Applicant's visa was to be cancelled and if he or she did not relocate to New Zealand with the Applicant. Even if the Applicant's wife and children were able to relocate with him, the Tribunal is of the opinion that the children's (that is, the Applicant's two sons and his unborn child's) education about their Australian Aboriginal heritage would be best met if the family were able to remain in Australia where the children could engage with and form relationships with their Australian Aboriginal family members and the Aboriginal corporation of which their father has applied to be a formally recognised member.
The Applicant ordinarily resides under the same roof as his wife and sons as a family unit and, as discussed above, the Applicant is very involved in his sons' lives. As well as the cancellation of the Applicant's visa having a detrimental effect on his two sons, it would also have a detrimental impact on the Applicant's pregnant wife. In her personal statement, the Applicant's wife stated (Exhibit A2, page 47, paragraph [32]-[33]):
... I am now struggling with my pregnancy. Because [the Applicant] has been in detention I have had to do some manual labour to prepare our property to be listed on Airbnb so that our family can earn income while [the Applicant] is detained. I've also been extremely stressed and emotional about [the Applicant's] situation. I am carrying my current pregnancy heavier than my earlier two, and I am worried that the pain I am experiencing indicate that I'm going to give birth earlier. I am very worried about the health of our unborn child...My midwife has shared concerns about my current situation.
Since [the Applicant's] visa was cancelled and he was taken into immigration detention I have struggled to keep things together at home. [The Applicant] was the sole breadwinner for our family while I home schooled our sons. Being a home educator with another baby on the way I have limited ability to work. My sons have fallen behind on their schooling because I've had to spend most of my time trying to scrape together enough money for us to survive while [the Applicant] is in immigration detention. I'm also constantly scared, stressed and emotional as a result of not knowing what our future will hold.
Based on the above discussion, the Tribunal finds that the Applicant's ties to the Australian community are very strong, and consequently this consideration weighs strongly in favour of the non-cancellation of the Applicant's visa.
[130]
There is no evidence before the Tribunal that the cancellation of the Applicant's visa will have a relevant impact on Australian business interests (paragraph 10.3(1) of Direction no. 65).
[131]
Paragraph 10.4(1) of Direction no. 65 provides that:
(1) Impact of a decision not to cancel a visa on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for visa cancellation has been afforded procedural fairness.
The victim of the Applicant's domestic violence offending was his wife. Paragraph 10.4(1) of Direction no. 65 refers to the impact of a decision not to cancel a visa on members of the Australian community, including victims. However, as discussed above, the Applicant's wife has given evidence to the Tribunal of the detriment she and her sons would suffer if the Applicant's visa were to remain cancelled. As discussed in paragraph [150] above, the Tribunal accepts that the Applicant's wife would suffer detriment if his visa were to remain cancelled. As a decision not to cancel his visa would be beneficial to her, this consideration weighs against the cancellation of the Applicant's visa.
[132]
Paragraph 10.5(1) of Direction no. 65 provides:
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
[133]
The non-citizen's age and health;
2. Whether there are substantial language or cultural barriers; and
[134]
Any social, medical and/or economic support available to them in that country.
As noted above, the Applicant has lived in Australia since he was 22 years of age. His parents reside in New Zealand, however, the Applicant does not appear to have a very good relationship with them, having had a difficult childhood in which he was moved around between different family members and then to boarding school between the ages of 10 and 15 years (Applicant's statement, Exhibit A2, page 36). The Applicant also stated that he has brothers and cousins in New Zealand, and although he spoke to them "now and then", he would "avoid them as much as possible, see them once a year on Christmas, if that" if he were to return to New Zealand (transcript, page 20).
Similarly, the Applicant's wife gave evidence to the effect that she has a strained relationship with her family members in New Zealand, and that they would be unlikely to assist with financial or other support, such as accommodation (transcript, page 64-5).
The Applicant's mother-in-law gave evidence at the Tribunal hearing that she is now retired, divides her time between Australia and New Zealand and is supportive of the Applicant. Consequently, she may be able to offer some assistance to the Applicant if he were returned to New Zealand.
However, overall, it appears to the Tribunal that any family support available to the Applicant and his wife if one or both of them were to return to New Zealand would be minimal.
The Applicant gave evidence that he may be able to obtain employment through his wife's family connections in New Zealand. However the Applicant's wife, in her evidence stated that this was unlikely (transcript, page 66-67). Despite this, as the Applicant has had a consistent employment history, and has positive references from two former employers (Exhibit A2, page 6; G39), the Applicant is likely to be able to find employment if he were to return to New Zealand.
In their evidence to the Tribunal, the Applicant and his wife did not agree that New Zealand was similar to Australia. These views may be influenced by the negative experiences that they both had growing up in New Zealand and their desire to move to Australia to have a better life. However, New Zealand does have comparable access for its citizens to social security, employment, health services (including mental health services) and education (see Country of Origin Information Services Section (COISS), Department of Home Affairs, Standard Q&A Report, New Zealand: CI180716102311599 - Mental health care services, 24 July 2018; Country of Origin Information Services Section (COISS), Department of Home Affairs, Standard Q&A Report, New Zealand: CI171206152837628 - Income support and housing assistance, 7 December 2017; Australian Government Refugee Tribunal Country Advice, New Zealand NZL38874, 10 June 2011). The Applicant would be able to receive treatment for his depression to the same standards as in Australia if he were to be returned to New Zealand.
New Zealand also has organisations that provide assistance to persons who are removed from Australia to New Zealand, such as People at Risk Solutions (PARS) ("Freedom through Growth", People at Risk Solutions, New Zealand,http://www.pars.co.nz/sub-menu/deportees). In CFVG and Minister for Immigration and Border Protection[2017] AATA 1395, Deputy President Dr Kendall (as he then was) stated, at [90]:
[135]
... The Tribunal also notes the considerable efforts of organisations like PARS to assist deportees from Australia to New Zealand. This is a significant social undertaking and its benefits to men like CFVG should not be underestimated...
[136]
Overall, the Tribunal finds that the Applicant would suffer some hardship if he were returned to New Zealand, which weighs slightly in favour of discretion being exercised not to cancel his visa.
[137]
The "other considerations" listed in paragraph 10(1) of Direction no. 65 that must be taken into account by the Tribunal do not comprise an exhaustive list, as indicated by the preceding words, "These considerations include (but are not limited to)". Consequently, it is open to the Tribunal to consider any additional considerations under "other considerations" that are relevant to the exercise of the Tribunal's discretion.
In Exhibit A1 (at paragraphs [72]-[75]) and at the Tribunal hearing, Counsel for the Applicant submitted that the effect of the Applicant's visa cancellation would be to permanently exclude him from Australia. These submissions were as follows:
It is submitted that the legal consequences of non-revocation, specifically permanent exclusion from Australia, is a non-prescribed consideration that is relevant to the Tribunal's determination of the Applicant's Application for Review.
The effect of s 501E of the Act is that, unless the Tribunal sets aside the cancellation of the Applicant's visa, the Applicant is prohibited from applying for any visa other than a protection visa or a Bridging Visa R (Bridging Visa Pending Removal) while he remains in the migration zone. The Applicant has no claim to protection for a convention-related reasons (sic).
Further, it is noted that unless the Reviewable Decision is set aside, the Applicant will be removed from Australia under s 198 of the Act. The Applicant would not be eligible to apply for a bridging visa on departure grounds. If and when the Applicant is removed from Australia he will no longer be eligible to be granted any Special Category (subclass 444) as he will fall within the definition of 'behaviour concern non-citizen' as prescribed by s 5 of the Act.
It is also noted that unless the Reviewable Decision is set aside he will be unable to satisfy Special Return Criteria 5001 (SRC 5001) at any time in the future. Given that SRC 5001 is criteria for all visas the Applicant could apply for outside of the migration zone (excluding a subclass 444 visa), a cancellation decision is likely to mean that the Applicant will be permanently excluded from remaining in, or returning to, Australia.
It is submitted that this consideration weighs heavily against cancellation.
The Tribunal accepts these submissions to the effect that the Applicant's visa cancellation would permanently exclude him from Australia unless the Minister could exercise some discretion, for example, on compassionate grounds, to allow him to re-enter. The submissions of the Applicant above were not contested by the Respondent. A permanent exclusion from Australia would have a significant detrimental impact on the Applicant given that he identifies as an Australian Aboriginal. Permanently excluding a person who identifies as an Australian Aboriginal would have a negative impact on the Applicant's ability to learn about his culture and to participate in the Australian Aboriginal community, as well as to maintain connections with his extended aboriginal family.
As noted above, the Applicant's children identify as Aboriginal. Should the Applicant's children remain in Australia without him, their appreciation of their indigenous culture may be compromised. If the children were to relocate to New Zealand, it would also be more difficult for them to maintain relationships and connections with members of the Australian Aboriginal community and to learn about, and participate in, Australian Aboriginal culture. In making these comments, the Tribunal does not overlook the fact that the children also have Maori heritage, and their appreciation of their Maori heritage may indeed be enhanced if they were to relocate to New Zealand.
In conclusion, the effect of permanent exclusion from Australia on the Applicant and his children weighs against the cancellation of the Applicant's visa.
The Tribunal has considered whether to exercise discretion to set aside the Reviewable Decision and substitute a new decision that discretion should not be exercised to cancel the Applicant's visa under s 501(2) of the Migration Act, having regard to the primary and other considerations in Direction no. 65.
The first primary consideration, being the protection of the Australian community (paragraph 9.1 of Direction no. 65) weighs against the Applicant, as does the third primary consideration, being the expectations of the Australian community (paragraph 9.3 of Direction no. 65).
However, it is the Tribunal's opinion that these primary considerations are outweighed by the primary consideration of the best interests of the Applicant's minor children in Australia (paragraph 9.2 of Direction no. 65) which weighs strongly in favour of the non-cancellation of the Applicant's visa. The other considerations of the strength, nature and duration of the Applicant's ties to Australia and the effect of permanent exclusion from Australia also strongly weigh in favour of the non-cancellation of the Applicant's visa. The impact on the victim (the Applicant's wife), as well as the extent of impediments the Applicant may suffer if removed from Australia, also weigh in favour of the non-cancellation of the Applicant's visa.
In summary, having regard to all of the primary considerations and the other considerations in Direction no. 65, the Tribunal is of the view that the correct and preferable decision is to exercise discretion to set aside the Reviewable Decision, and substitute a new decision in favour of the Applicant.
[139]
The Reviewable Decision dated 18 June 2018 is set aside and the Tribunal makes a decision in substitution that discretion should not be exercised to cancel the Applicant's visa under s 501(2) of the Migration Act 1958 (Cth).
[140]
I certify that the preceding 174 (one hundred and seventy-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans