HWYY and Minister for Home Affairs (Migration) [2018] AATA 4602 (13 December 2018)

Last Updated: 14 December 2018

HWYY and Minister for Home Affairs (Migration) [2018] AATA 4602 (13 December 2018)

Division: GENERAL DIVISION

File Number: 2018/5547

Re: HWYY

APPLICANT

And Minister for Home Affairs

RESPONDENT

DECISION

Tribunal: Senior Member Dr M Evans

Date: 13 December 2018

Place: Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 18 September 2018 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.

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

Senior Member Dr M Evans

CATCHWORDS

Migration – decision not to revoke mandatory cancellation of visa – character test – substantial criminal record – Ministerial Direction no. 65 – primary and other considerations – international non-refoulement obligations – protection of the Australian community – best interests of minor children – expectations of the Australian community – nature and seriousness of criminal offending – risk of engaging in future criminal conduct – strength, nature and duration of ties to Australia – Applicant in Australia since three months old and has not returned to New Zealand - extent of impediments if returned to New Zealand – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – s 43

Migration Act 1958 (Cth) – s 195A, s 499, s 499(1), s 499(2A), s 500(1)(ba), s 500(6B),

s 500(6L), s 501, s 501(3A), s 501(6), s 501(7), s 501(7A), s 501CA, s 501CA(4),

s 501E(2), s 501G(1)

CASES

Afu and Minister for Home Affairs [2018] FCA 1311

Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513; FCAFC 83

BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456; FCAFC 96

BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181

CFVG and Minister for Immigration and Border Protection [2017] AATA 1395

Griffiths v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 249

Hambledon v Minister for Immigration and Border Protection [2018] FCA 7

HSKJ and Minister for Immigration and Border Protection [2017] AATA 1802

JNMK and Minister for Immigration and Border Protection [2018] AATA 971

Le and Minister for Home Affairs [2018] AATA 4126

MAH and Minister for Immigration and Border Protection [2018] AATA 416

Minister for Immigration and Multicultural and Indigenous Affairs v Griffiths [2004] FCAFC 22

NBCM and Minister for Home Affairs [2018] AATA 2387

Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359

QSBL and Minister for Home Affairs [2018] AATA 2074

Rabino and Minister for Immigration and Border Protection [2016] AATA 999

Re Ly and Minister for Immigration and Multicultural Affairs [2000] AATA 339

Smit Romero and Minister for Immigration and Citizenship [2010] AATA 196

Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424

Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203

WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117

XFKR and Minister for Immigration and Border Protection [2017] AATA 2385

ZTGP and Minister for Home Affairs [2018] AATA 3518

SECONDARY MATERIALS

“Freedom through Growth”, People at Risk Solutions, New Zealand, http://www.pars.co.nz/sub-menu/deportees

Minister for Immigration and Border Protection, Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Department of Immigration and Border Protection, 22 December 2014) – paras 6.1, 6.2, 6.3, 7, 8, 13, 13.1, 13.1.1, 13.1.2, 13.2, 13.3, 14, 14.1, 14.2, 14.3, 14.4, 14.5, Part C

1951 Convention Relating to the Status of Refugees as Amended by the 1967 Protocol – Art 33(1)





REASONS FOR DECISION



Senior Member Dr M Evans



13 December 2018

BACKGROUND

1. The Applicant is a 24 year old man who is a citizen of New Zealand. He arrived in Australia on 23 February 1995 when he was three months old as the holder of a Class TY Subclass 444 Special Category (Temporary) Visa (the visa) (G11, page 41).
2. He has lived in Australia continuously and has not departed Australia since his arrival (G11, page 41).
3. The Applicant committed 40 offences as a juvenile between 22 May 2008 and 9 February 2011 (G20, pages 140-144). As an adult he committed a further 23 offences between 10 May 2013 and 8 February 2018 (G6, pages 25-27).
4. On 27 November 2015 the Applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Migration Act) and he was invited to make representations to the Minister about revocation of the original decision (G12). The Applicant was advised by the Department of Immigration and Border Protection in a letter dated 29 April 2016, that after considering his representations, a delegate of the Minister had decided to revoke the first cancellation decision (G15, page 75).
5. Further, in this letter the Applicant was given the following formal warning (G15, page 75):

Please note: the decision to revoke the original decision does not mean that you cannot be reconsidered for cancellation on character grounds in the future in the event of further criminal offending by you.

6. On 28 February 2018 the Applicant’s visa was cancelled by a delegate of the Minister again on the basis that he did not pass the character test under s 501(3A) of the Migration Act (G12, page 42).
7. This was because the Applicant had a “substantial criminal record” within the meaning of
   
   s 501(6)(a) of the Migration Act (on the basis of s 501(7)(c) of the Migration Act) because he had been convicted of aggravated burglary for which he received a sentence of 12 months imprisonment on 21 October 2015. The Tribunal notes that the Applicant was also convicted of eight other offences on 21 October 2015 (G6, page 26). He received no penalty for two of these offences and concurrent terms of imprisonment for the remaining six offences.
8. Additionally, the delegate noted that at the time of the delegate’s decision, the Applicant was serving a full-time sentence of imprisonment which included a term of nine months for “[t]hreats to injure, endanger or harm any person” for which he was convicted on 8 February 2017 (G12, page 43).
9. Although not noted by the delegate, at the same time that the Applicant was convicted of “[t]hreats to injure, endanger or harm any person” on 8 February 2018, he was also convicted of the following offences for which he received concurrent and cumulative sentences resulting in an effective sentence of 15 months (G6, page 25-26; G20, page 137-138):
   • (a) breach of bail undertaking;
   • (b) carried (possessed) an article with intent to cause fear;
   • (c) cause poison to be administered;
   • (d) common assault in circumstances of aggravation or racial aggravation;
   • (e) criminal damage or destruction of property;
   • (f) disorderly behaviour in public;
   • (g) possess a prohibited drug (cannabis); and
   • (h) possess a prohibited weapon.
10. The Applicant was invited to make representations, which he did on 7 March 2018 (G4, page 51). These were summarised by the delegate as follows (G4, page 15):
    • The best interests of his daughter and stepdaughter, who are Australian citizens
    • His lengthy residence of 23 years in Australia
    • The presence of family in Australia, including his partner, parents and siblings
    • His contributions to the community through employment
    • His remorse for his offending and the efforts he has made towards rehabilitation
    • His fears of harm to his life if he is removed to New Zealand, and
    • The hardship he would face on return to his home country.
11. After considering these representations, on 18 September 2018 a delegate of the Respondent decided not to revoke the mandatory cancellation decision of the Applicant’s visa (the Reviewable Decision) (G3, page 13).
12. The Reviewable Decision was hand-delivered to the Applicant, in immigration detention, on 20 September 2018 (G22, page 153-155).
13. On 25 September 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 1).
14. 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 13 December 2018. 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) (pursuant to s 500(6L) of the Migration Act).

ISSUES

15. The issues for determination by this Tribunal are:
    • (a) whether the Applicant passes the character test as defined by s 501(6) of the Migration Act; and
    • (b) if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the mandatory cancellation decision (that is, the Reviewable Decision) should be revoked (see s 501CA(4) of the Migration Act), having regard to the primary and other considerations in Ministerial Direction no. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction no. 65).

JURISDICTION

16. This application is made pursuant to s 500(1)(ba) 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 501CA(4) of the Migration Act not to revoke a decision to cancel a visa.
17. As noted above, the Reviewable Decision of 18 September 2018 was communicated to the Applicant on 20 September 2018 and he lodged his application for review on 25 September 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 s 500(6B) of the Migration Act.
18. The Tribunal is therefore satisfied that the application was lodged within time and that the Tribunal has jurisdiction to review the Reviewable Decision.

MATERIAL BEFORE THE TRIBUNAL

19. The application was originally listed for a hearing on Thursday 22 November 2018. However, on the day of the hearing, immediately before its commencement, the Tribunal was informed that the Applicant had legal representation and that his legal representative required further time to take instructions and prepare for the hearing.
20. The Tribunal vacated the hearing and re-listed the hearing for Friday 7 December 2018. This late scheduling was required to accommodate the availability of both the Applicant and the Respondent’s legal representatives. Although the date of the hearing (7 December 2018) was very close to the date by which the Tribunal must deliver its decision (13 December 2018), the Tribunal was of the opinion that procedural fairness for the Applicant would be best achieved if he were legally represented at the hearing.
21. At the hearing on Friday 7 December 2018, the Applicant attended in person. He was represented by Mr Kristopher from Morris, Alexander and Nelson Barristers and Solicitors.
22. The Respondent was represented by Mr Gerrard from the Australian Government Solicitor who appeared in person.
23. The Applicant, as well as his mother and 20 year old sister, gave evidence and were cross-examined.
24. The Tribunal admitted the following documents into evidence:
    • (a) Letter of support from the Applicant’s 20 year old sister, undated, received by the Tribunal on 30 October 2018 (Exhibit A1);
    • (b) two letters of support from a friend of the Applicant’s family, who is also the defacto partner of the Applicant’s mother, “the Family Friend”, dated 7 March 2018 and 24 October 2018 (Exhibit A2);
    • (c) A letter of support from the Applicant’s mother, dated 28 October 2018 in her capacity as a former employer of the Applicant (Exhibit A3);
    • (d) two further letters of support from the Applicant’s mother, the first dated 7 March 2018, and the second is undated, but received by the Tribunal on 13 November 2018. In her evidence to the Tribunal at the hearing, the Applicant’s mother did not recognise this second letter, so the Tribunal did not take it into account (Exhibit A4);
    • (e) Written submissions prepared and filed on behalf of the Applicant by his legal representative, dated 3 December 2018 (Exhibit A5);
    • (f) the s 501 Documents (G documents) from G1 to G22 (Exhibit R1);
    • (g) the Supplementary s 501 Documents (Supplementary G Documents) from SG1 to SG10 (Exhibit R2); and
    • (h) the Statement of Facts, Issues and Contentions of the Respondent, dated 25 October 2018 (Exhibit R3).

LEGISLATIVE FRAMEWORK

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

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

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

• (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
• (ii) paragraph (6)(e) (sexually based offences involving a child); and

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

26. Section 501(6) of the Migration Act provides that:
    • (6) For the purposes of this section, a person does not pass the character test if:
      • (c) the person has a substantial criminal record (as defined by
        
        subsection (7)...

(Original emphasis.)

27. A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
    • (7) For the purposes of the character test, a person has a substantial criminal record if:
      • (a) the person has been sentenced to death; or
      • (b) the person has been sentenced to imprisonment for life; or
      • (c) the person has been sentenced to a term of imprisonment of 12 months or more; or
      • (d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more...

(Original emphasis.)

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

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

29. Section 501CA of the Migration Act further provides:
    • (1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
    • (2) For the purposes of this section, relevant information is information (other than nondisclosable information) that the Minister considers:
      • (a) would be the reason, or a part of the reason, for making the original decision; and
      • (b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
    • (3) As soon as practicable after making the original decision, the Minister must:
      • (a) give the person, in the way that the Minister considers appropriate in the circumstances:
        • (i) a written notice that sets out the original decision; and
        • (ii) particulars of the relevant information; and
      • (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
    • (4) The Minister may revoke the original decision if:
      • (a) the person makes representations in accordance with the invitation; and
      • (b) the Minister is satisfied:
        • (i) that the person passes the character test (as defined by section 501); or
        • (ii) that there is another reason why the original decision should be revoked.

(Original emphasis.)

MINISTERIAL DIRECTION NO. 65

30. Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
    • (1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
      • (a) the performance of those functions; or
      • (b) the exercise of those powers.
31. Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1).”
32. 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.
33. Paragraph 6.1 of Direction no. 65 sets out the Objectives of the Migration Act, with paragraph 6.1(3) of Direction no. 65 being relevant to the Reviewable Decision which is currently before the Tribunal:
    • (3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
34. 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.
35. Paragraph 6.3 of Direction no. 65 sets out principles which must be taken into account by persons making decisions under s 501CA(4) 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.
36. 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 C of Direction no. 65, with regard to the specific circumstances of the case, when a person’s visa has been cancelled under s 501(3A) of the Migration Act (paragraph 13(1) of Direction no. 65). Specifically, paragraph 13(2) in Part C of Direction no. 65 provides:
    • (2) In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
      1. Protection of the Australian community from criminal or other serious conduct;
      2. The best interests of minor children in Australia;
      100. Expectations of the Australian community.
37. Paragraph 14 in Part C of Direction no. 65 lists other considerations as follows:
    • (1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
      1. International non-refoulement obligations;
      2. Strength, nature and duration of ties;
      100. Impact on Australian business interests;
      4. Impact on victims;
      5. Extent of impediments if removed.
38. Paragraph 7(1)(b) 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:
      1. ...
      2. must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
39. 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.

DOES THE APPLICANT PASS THE CHARACTER TEST?

40. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.
41. A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act) or 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).
42. As noted above, on 8 February 2018, the Applicant was convicted in the Perth Magistrate’s Court of nine offences, including the offence of “threats to injure, endanger or harm any person” for which he received concurrent and cumulative sentences of imprisonment totalling 24 months, with a total effective sentence of 15 months (G20, page 137-138). Consequently, the Applicant does not pass the character test pursuant to
    
    s 501(6)(a) and s 501(7)(d) of the Migration Act.
43. The Applicant was previously sentenced to an effective term of 12 months imprisonment, together with concurrent terms of imprisonment totalling 30 months, on 21 October 2015 for aggravated burglary and eight other offences (G20, page 138-139). Therefore, the Applicant does not pass the character test pursuant to s 501(6)(a) and s 501(7)(c) of the Migration Act.
44. The Applicant did not contest that he did not pass the character test but rather that there was “another reason” why the Reviewable Decision should be revoked. These submissions are considered under the relevant primary and other considerations below.

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

First primary consideration: Protection of the Australian Community (13.1)

45. Paragraph 13.1(1) of Direction no. 65 provides that when decision-makers are considering the protection of the Australia community they:

... 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...

46. Decision-makers should also give consideration to the following (paragraph 13.1(2) of Direction no. 65):
    • (2) Decision-makers should also give consideration to:
      1. The nature and seriousness of the non-citizen’s conduct to date; and
      2. The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

Nature and seriousness of the conduct (13.1.1(1))

47. Paragraph 13.1.1(1) of Direction no. 65 further provides:
    • (1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
      1. The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
      2. The principle that crimes 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;
      100. The sentence imposed by the courts for a crime or crimes;
      4. The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
      5. The cumulative effect of repeated offending;
      6. Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
      7. Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
      8. 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;
48. To date, the Applicant has a Court Outcomes History comprising 23 offences as an adult and 40 offences as a juvenile over a ten year period (G20, pages 141-144). The date of his first offence of “common assault” was 22 May 2008. He was convicted of this offence in the Mandurah Children’s Court on 1 December 2008. His first offences as an adult, “burglary” and “steal motor vehicle”, were committed on 19 February 2013 and he was convicted of these offences in the Mandurah Magistrates Court on 10 May 2013. His most recent offence was “possess a prohibited drug (cannabis)” on 10 December 2016.
49. The Applicant’s “Adult History for Court – Criminal and Traffic” shows a range of offending behaviour including convictions for assault, threats to injure, possession of a prohibited weapon, burglary and aggravated burglary, stealing, possession of a prohibited drug, and breaches of court imposed orders (G20). It comprises the following offences (G20, pages 137-139):

50. The Applicant’s juvenile history comprises the following offences (G20, pages 140-144):

51. In considering the nature and seriousness of the Applicant’s criminal conduct to date, the Tribunal notes the Applicant’s convictions as an adult for the offences of common assault (21 October 2015), common assault in circumstances of aggravation, cause poison to be administered, possess a prohibited weapon and carried (possessed) an article with intent to cause fear (8 February 2018). There are also offences for threats to injure, endanger or harm (2018 and 2015). Applying Direction no. 65, as these are offences involving violence, or threats of violence, and weapons, the Tribunal views them very seriously (paragraph 13.1.1(1)(a) of Direction no. 65).
52. Deputy Chief Magistrate Woods made the following comments when sentencing the Applicant on 8 February 2018 which illustrate the serious nature of the Applicant’s offending (G7, page 29):

Mr [Applicant], in relation to these matters, obviously, the circumstances surrounding the commission of these offences are serious. It relates to a domestic relationship that you are in and also there were – there was a young child present at the time of the offending which, obviously, escalates the seriousness...

... [T]he threats to injure, as the facts have been read to the court, fall to the higher end of the scale of that time of offending. In relation to the matters you’ve also entered a plea of guilty, although there is not much benefit in the plea of guilty because it is at such a late stage and the witnesses already prepared for the trial and they refer to that in the victim impact statement.

... There is the one group of charges from Mandurah, 645455 and 56 and then the other group are more serious charges which include the common assault and the threats to injure which relate to your partner. I do intend to impose terms of imprisonment on all of these charges and I do intend to make those two sets of imprisonment orders cumulative on each other to reflect the seriousness but also to reflect that they are not related in any way.

53. Several Statements of Material Facts that are before the Tribunal also illustrate the serious nature of the Applicant’s offending. The following incident resulted in the Applicant’s conviction for “cause poison to be administered” for which he was sentenced to six months concurrent imprisonment on 8 February 2018 (SG1, page 157-158):

At 8.30pm on Monday 21^st November 2016 the accused was at the Caltex Greenfields service station...The accused was in company with four other males.

The accused approached the [male] victim... who was in company with another male friend and his girlfriend, the accused propositioned the victim to a fight to which the victim declined.

The accused removed a small white can from his bag and sprayed the victim with oleoresin capsicum spray from a distance of about two meters (sic).

The spray hit the victim to the face causing stinging pain and interfering with the victims (sic) sight. The victim got into his girlfriend’s car was driven to his home address.

At 4:30am on Thursday, 24 November 2016 the accused was arrested and conveyed to Perth Police Station where he refused to be interviewed.

The accused was charged and released on bail, during the bailing process the accused freely offered that he sprayed the victim in the face.

EXPLANATION: ‘yeah I maced him in the face’.

54. Further (SG1, page 157-158), after propositioning the victim to a fight and before spraying the victim with the capsicum spray at the service station:

The accused removed a small hammer from his bag and held it in an aggressive manner. A verbal confrontation ensued, the accused replaced the hammer and removed a can of oleoresin capsicum spray.

This incident resulted in the Applicant being convicted of “[c]arried (possessed) an article with intent to cause fear...” for which he was sentenced to one months’ concurrent imprisonment on 8 February 2018 (G20, page 137).

55. Later on the same evening, the following offence (“criminal damage or destruction of property” for which the Applicant was sentenced to one months’ concurrent imprisonment on 8 February 2018) was committed against the same victim (SG1, page 158):

At 9:18 pm on Monday 21st November 2016 the accused was at [address omitted], GREENFIELDS. The accused was in company with four other males.

A verbal confrontation between the victim and the accused ensued.

The accused approached the victim’s front window with a hammer, the accused struck the window about four times causing damage to the window panes.

56. At the Tribunal hearing, under cross examination, the Applicant stated that he knew the victim from school and that there had been a history of conflict with the victim leading up to these incidents, including the victim chasing him down the road with a machete a few days beforehand (transcript, pages 35-37). The Applicant stated that he was only in possession of the hammer because the victim had thrown it at him out of a car (transcript, page 36). The Applicant argued that these incidents occurred as a result of the Applicant acting in self-defence when the victim jumped out of his car “looking for a fight” (transcript, page 37). The Applicant admitted that he sprayed the victim with mace, “but for self-defence” (transcript, page 36). He agreed that he had not raised this defence previously and that he was raising it for the first time at the Tribunal hearing. The Tribunal does not accept this explanation which was not given by the Applicant to the police nor to the sentencing Magistrate when the Applicant pled guilty (transcript, page 37).
57. The Applicant also committed a domestic violence offence against his former partner as described in the excerpt below from the Statement of Material Facts (SG5, page 166):

The victim [name omitted]... and the accused,... [The Applicant] in this matter have been in a domestic relationship for approximately 5 years.

On the 24th November 2016 at approximately 2:00 pm the victim and the POI [person of interest] were at their home address... Also in attendance was... [the victim’s] seven year old daughter...

Shortly after midday on the 24 November 2016 the accused returned home and an argument started as the victim informed the accused the previous day that she no longer wanted to be in a relationship with him.

Over a two to three hour period the accused repeatedly yelled at the victim and assaulted her by pulling her around the house by the hair.

The accused asked the victim twice if she wanted him to kill her. The accused punched the victim to the ribs and dragged her to the lounge area by the left wrist. The accused made the victim sit on the lounge and left the room before returning a short time later with a pair of scissors in his hand.

The accused then pushed the victim against a wall and held the pair of scissors approximately 2 centimetres from the victim’s throat. The accused said very calmly, ‘Do you want me to kill you?’

The victim believed the accused was going to kill her so she pushed away from him and took her daughter to her room. The accused had taken the victims (sic) mobile phone so she could not call for help.

The Police arrived a short time later. As the victim open the front door to the Police the accused slapped her across the back of the head. The accused was taken into custody and removed from the premises.

58. At the Tribunal hearing the Applicant denied threatening to kill his former partner, denied assaulting her in the manner described by police and denied threatening her with scissors. Instead, he said that there was a verbal disagreement and “just pushing and shoving” (transcript, page 39) and that the victim kept telling him to leave. The Tribunal does not accept the Applicant’s version of events, which contradicts the Statement of Material Facts from the police (SG5, page 166). The Applicant also sought to minimise his responsibility by stating that “we did have a verbal disagreement, but there was more than led up to it than that” (transcript, page 39).
59. Earlier that day, at 4.00am the Applicant was charged with “possessed a prohibited weapon”, namely “gold coloured knuckle dusters”, when police searched him in Northbridge after the Applicant fled and police chased him (SG4, page 164).
60. Another Statement of Material Facts describes an offence against the Applicant’s 18 year old biological younger sister (SG5, page 167). This charge did not result in a conviction, but when giving evidence at the hearing, the Applicant’s sister acknowledged that the incident occurred in the manner set out in the Statement of Material Facts (transcript, page 61), which stated as follows:

The complainant in this matter is the biological younger sister of the accused and is 18 years of age.

At approximately 9.00 am, 7 December 2016 the accused attended his sisters (sic) residence... The accused knocked on the front door and demanded entry.

The complainant was in fear for her safety due to the recent erratic behaviour displayed by the accused over a period of time prior to this incident.

The complainant refused him entry as she was in genuine fear of her safety and was at this time home alone. When refused entry the accused became very aggressive threatening her that he would kill her if she did not permit him entry into her premises. He also stated, ‘I have boys in the car who are going to come and run through the house.’ The complainant observed a car parked on the opposite side of the road occupies (sic) by a number of male persons and which further heightened her fears. The accused eventually gave up and departed the premises. Prior to leaving he threatened to come back and bash the complainant’s brother.

The accused refused to participate in an audio visual recorded interview and the present charge was then preferred.

61. Under cross-examination the Applicant denied that this incident ever occurred (transcript, page 40), which suggests to the Tribunal an attempt to minimise the extent of his offending.
62. During cross-examination, the Applicant was also asked about his previous convictions for “steal motor vehicle” and “burglary” (for which he was convicted on 10 May 2013) (transcript, pages 30-31). The Applicant was evasive at the Tribunal hearing and would not describe the circumstances of this offending. He agreed that he stole a motorcycle because he wanted to ride it and that the burglary was breaking into a residential house, but otherwise saying that he could not remember (transcript, page 28-29 and 31). During cross examination, the Applicant was also asked about the offences for which he was sentenced on 21 October 2015, which resulted in a number of concurrent prison sentences, with an effective total sentence of 12 months due to a third strike offence of “aggravated burglary and commit offence in dwelling” committed on 5 December 2013 (transcript, page 32). The Applicant was evasive and stated that with respect to the three burglary convictions between 2013 and 2015, “I just can’t remember them in detail” (transcript, page 32). Further, when sentencing the Applicant, Magistrate Malone made remarks which indicate the seriousness of the Applicant’s offending (G8, page 33):

... I’ve decided that you are obliged to be sentenced to 12 months imprisonment as a minimum because you’re a third striker with the aggravated burglary. But I’m not going to make it any more than 12 months, and I am going to make the sentences of assault and threats to injury – even though they were a very nasty incident, I’m going to make the terms of imprisonment run alongside of each other.

63. The “very nasty incident” was described by the Applicant at the hearing as a verbal disagreement with his ex-partner after they had separated a few days beforehand which resulted in the 2015 convictions for “threats to injure” and “common assault” (transcript, page 33). The Statements of Material Facts for these offences were not, however, before the Tribunal.
64. The very serious nature of the Applicant’s offending is reflected in the nature of the offending which involved violence or threats of violence. The domestic violence offence was committed over a period of two to three hours and in the presence of a young child. The Tribunal considers that domestic violence offences are serious offences and notes that children are vulnerable members of the community (paragraph 13.1.1(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:

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.

65. 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].
66. The Tribunal also notes that the Applicant incurred two convictions for common assault as a juvenile in 2010 and one conviction in 2009, as well as four common assault convictions in 2008, as well as convictions for threats to injure, endanger or harm in 2009 and 2010.
67. The Applicant only has one offence in 2010 as a juvenile for obstructing public officers but no such other offences against government representatives or officials as an adult (paragraph 13.1.1(1)(b) of Direction no. 65). He does, however, have numerous offences for disobeying court imposed orders including breaches of bail and multiple breaches of community-based orders which show a disregard for lawful authority. The conviction for “disorderly behaviour in a public place” on 8 February 2018 was from an incident on 24 November 2016 in which the Applicant was abusive to police. It is described in the Statement of Material Facts (SG2, page 160) as follows:

At about 12:05 on Thursday 24^th November 2016, the accused was observed on Roe Street, Northbridge.

The accused was observed by police officers hanging around the exit to the Perth Watch House.

As police were exiting the sally port to leave the accused was sighted giving hand signals saying ‘wankers’ and putting his clenched fist to his mouth saying ‘Suck a dick’.

The accused was stopped by police and the accused explained he was angry at police as he had just been released from custody.

The accused was informed he would be charged with disorderly behaviour and summonsed for the offence with the present charge preferred.

The accused walked off but then started shouting back to officers ‘Fuck you dogs’ and sticking his middle finger up before running away.

68. The Tribunal has already noted the sentences of imprisonment imposed on the Applicant in 2015 and 2018 in its discussion of whether the Applicant passes the character test above. Terms of imprisonment, especially for such a young man, are imposed as a last resort and reflect the seriousness of the Applicant’s offending (paragraph 13.1.1(1)(c) of Direction no. 65).
69. With respect to the frequency of the Applicant’s offending (paragraph 13.1.1(1)(d) of Direction no. 65), he has been offending over a ten year period, commencing in December 2008, when he was 14 years of age. There are some gaps in the Applicant’s offending in 2012 and in 2015 (G20). However, the Applicant can be said to have engaged in fairly consistent offending over this ten year period, with, for example, numerous offences for assault, stealing, aggravated burglary, minor drug offences and breaches of court imposed orders. However, the more recent domestic violence offence and the cause poison to be administered offence suggest, in the Tribunal’s opinion, an increasing in seriousness.
70. The cumulative effect of the Applicant’s offending (paragraph 13.1.1(1)(e) of Direction no. 65) is that he has been convicted of a total of approximately 63 offences with 40 of those offences being committed as a juvenile and 23 offences as an adult (G20). Whilst many of the Applicant’s offences alone are serious, the cumulative effect is that his offending must be viewed as very serious. This cumulative effect also results in costs being incurred by the community, in terms of the resources of the police, court system and corrective services, as well as having a detrimental impact on victims.
71. There is no evidence that the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending (13.1.1(1)(f)).
72. The Tribunal further notes that the Applicant received a warning in the letter dated 29 April 2016 from the Department of Immigration and Border Protection (G15, page 75) to the effect that further offending may result in a cancellation of his visa on character grounds, as detailed above (paragraph 13.1.1(1)(g) of Direction no. 65; see paragraph [5] above). However, after the date of that letter, the Applicant committed a further nine offences, including, inter alia: carried an article with intent to cause fear; cause poison to be administered; common assault in circumstances of aggravation or racial aggravation; possess a prohibited weapon; and threats to injure, for which he was convicted and sentenced to a 15 month term of imprisonment on 8 February 2018. In the Tribunal’s opinion, continuing to offend after receiving this warning demonstrates a lack of insight into his offending.
73. To the Applicant’s credit, there is no evidence of any offences being committed whilst the Applicant has been in immigration detention (paragraph 13.1.1(1)(h) of Direction no. 65).
74. Weighing up the above considerations, the Tribunal finds that the Applicant’s offending should be viewed as serious and weighs against the revocation of the cancellation of his visa.

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (13.1.2)

75. A decision-maker should also have regard to the following principle, described in paragraph 13.1.2(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.
76. Paragraph 13.1.2(2) of Direction no. 65 further provides:
    • (2) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
      1. The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
      2. The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
77. 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 Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117 at [42]- [43]):

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

78. In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: “...there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”.
79. With respect to the likelihood that the Applicant will engage in further criminal or other serious conduct (paragraph 13.1.2(2)(b) of Direction no. 65), the Tribunal notes that the Applicant’s history of offending has spanned ten years and the imposition of numerous community based orders and a fine, between 2008 and 2015, as well as 12 months imprisonment in 2015 did not stop the Applicant from committing further serious offences in 2016 for which he received a further term of imprisonment (G20, pages 137-144). This demonstrates that the first custodial sentence of imprisonment had little or no remedial or rehabilitative effect on the Applicant, as well as illustrating a disregard for authority and legal rules and indicates a risk of reoffending. The Applicant also reoffended after receiving a warning that further offending may result in the cancellation of his visa (G15, page 75).
80. The Applicant has expressed remorse for his offending. However, he has previously done so, and has reoffended. When he was 21 years old he stated the following on 27 November 2015 (G16, page 83, and 90) when seeking a revocation of the original decision to revoke his visa:

I would like to start out by saying that I am deeply ashamed and remorseful for having committed the offences that find me serving this 12 month sentence at the Acacia prison, Wooraloo in Western Australia.

Whilst in prison, I have committed myself to attending voluntary treatment programs in an effort to address my offending behaviour. As it is, I feel ashamed at having taken the path that led to my actions and ultimate incarceration. I’ve genuinely done all I can to use this term to better myself. Jail has not been wasted on me and as such, I feel that I can honestly say that I pose no further threat to the community upon my release...

81. Following the making of this statement, the Applicant was advised in a letter dated 29 April 2016 that a delegate had revoked the decision to cancel his visa and he was given a warning. As noted above, subsequently, the Applicant committed further offences which resulted in a further term of imprisonment. He stated that he was not sure why he continued to offend after receiving a warning but attributed the offending leading up to his most recent period of incarceration to growing apart from his partner after he finished his first term of imprisonment and grieving from the loss of his best friend in a car accident which made him “angry at the world” (transcript, page 11).
82. In his most recent “Personal Circumstances Form”, the Applicant made the following submissions in the section titled “Criminal History and Risk of Reoffending” (original in capitals) (G14, page 63):

at the time of these offences i had broken up with my partner i was with for 6 years and hade (sic) also lost my best friend due to a motorcycle accident. i was realy (sic) depressed...

i will not reoffend i have since delt (sic) with my problems and have been put on medication to deal with my depression, know im just looking forward to move on with my life with my new partner and full time job...

i have completed life skills re-entry program witch (sic) outlines prepare (sic) to change and communication skills and I have also completed brief intervention cognitive skills witch (sic) outlines self-control, critical Reasoning, problem solving and interpersonal perspective taking and Relapse prevention.

83. At the Tribunal hearing, the Applicant described his plans as to how he would positively contribute to the community (transcript, page 17):

One of my first goals when I’m released, I would like to go work full-time as an assistant labourer with [the family friend], at his carpentry business, because he’s offered me the opportunity to be his assistant. My second goal will be to see a doctor to work out the right medication for my mental health issues, so I could cope better. My third goal will be to surround myself with positive people that have similar goals as to myself and to spend as much time as possible reconnecting with my family and showing them the positive and hard-working person I can become with their support.

84. The Applicant’s mother gave evidence at the Tribunal hearing that she thought he had changed over the last two years; she believes that he will not reoffend because he will commit himself to working; and that he will surround himself with the right people (transcript, page 53). The Applicant’s 20 year old sister also gave evidence that, after being estranged from him, she became close to him again after he went to prison. The Applicant’s sister gave evidence that she had seen a change in the Applicant (transcript, page 59) and that she believes him to be rehabilitated. Having the support of family members is likely to be a protective factor in reducing the likelihood of the Applicant re-offending, however, the beliefs of the Applicant’s mother and sister that he will not re-offend are aspirational.
85. When asked by his legal counsel at the Tribunal hearing how the Australian community could be satisfied that he would not re-offend, the Applicant stated that he had undertaken approximately five or six hours of counselling sessions with a psychologist whilst in remand, that he attended four sessions (each of approximately 45 minutes duration) of a drug and alcohol program whilst in Casuarina prison and that he had completed the Life Skills Re-entry Program and Brief Intervention Cognitive Skills Program during his most recent term of imprisonment (transcript, page 16-17 and 19).
86. Apart from the evidence given by the Applicant at the Tribunal hearing, there is no other evidence before the Tribunal of any counselling sessions or of the Applicant commencing the drug and alcohol program in prison. However, a certificate shows that the Applicant has completed the Life Skills Re-entry Program run by Outcare in October 2017 during his most recent term of imprisonment (G14, page 70), which stated that the Applicant completed sessions on “prepare to change” and “communication”. The certificate contains a more detailed description as follows:

The focus of this program is to engage participants in group sessions. Generalist information is provided to enhance person’s prosocial skills, improve interpersonal relationships and develop connections to community-based resources, develop independent living skills and budgeting. Life skills sessions are also designed to assist a person in basic job searching and retraining skills and to provide information enabling participants to develop links to community resources.

87. Another certificate shows that the Applicant completed “the 20 hour Brief Intervention Cognitive Skills Program” on 10 August 2017 at Hakea Prison (G14, page 71). The certificate states that:

Course Content Included:

• Self Control
• Critical Reasoning
• Problem Solving
• Interpersonal Perspective Taking and Relapse Prevention

88. In an undated, hand written statement addressed to the Department (G14, page 68) which appears to have accompanied the Applicant’s personal circumstances form dated 1 March 2018 (G14, page 56), the Applicant expressed some aspirations with respect to rehabilitation as follows:

My main goal when i am released is to inrole (sic) in anger management and drug/alcohol classes so i can cope better. Another goal will be to surround myself with positive people like my partner and family so i can learn to be a better person and make better choices for myself. I wish i could turn the clock back but i can’t. Im (sic) am prepared to do whatever it takes to get my freedom back. Please give me a chance to prove that i can be a worthy citizen and live a better life in this country of opportunity. Sending me back to new zealand where i do not know anyone or have any family would not be beneficial in anyway.

89. And further, in the same submission the Applicant stated (G14, page 69):

I am now able to cope better with situations due to completing a few courses in jail named brief intervention cognitive skills and life skills re-entry program witch (sic) addresses, self-control, critical reasoning, problem solving, interpersonal perspective talking (sic) and relapse prevention. I’ve also been attending church where i have learned to think and have the patience to listen and talk to the wise man up there.

I plead with you to allow me to be the person I know I can be.

90. The completion of these voluntary programs shows that the Applicant has taken positive steps toward his rehabilitation. However, the Tribunal is concerned that these programs only deal with skills relevant to re-entering the community after a term of imprisonment and consequential thinking. They do not address domestic violence or violence and consequently, the Tribunal is concerned that the Applicant has unmet treatment needs in these areas.
91. Additionally, the Applicant has also self-disclosed having issues with drugs. At the hearing, the Applicant reported using marijuana approximately three times a week from the age of 14 years up until his most recent prison sentence. He also stated that he started smoking methamphetamine “every few days” from approximately late 2015 for approximately 12 months (transcript, pages 19-20). The timing of this period of methamphetamine use culminated in the many offences in November and early December 2016, for which the Applicant was sentenced to his second term of imprisonment. The Tribunal also notes a conviction for possession of cannabis with an offence date of 10 December 2016 and a conviction for possession of dexamphetamine with an offence date of 16 December 2014 (G20, pages 138-139). Although the Applicant has stated that he started a drug and alcohol program in remand and attended several counselling sessions, the Applicant has not completed any intensive drug rehabilitation programs and the Tribunal is of the opinion that the Applicant has unmet treatment needs in this area. The Tribunal is concerned that the unmet treatment needs increase the likelihood of the Applicant re-offending.
92. The Applicant has also stated that he has depression and a prison doctor formally diagnosed that he had depression in 2016 (transcript, page 18). He stated at the Tribunal hearing that he has been taking medication for his depression for the last two years (transcript, page 19). The Applicant’s legal counsel submitted that the Applicant’s compliance with this treatment was a protective factor which would reduce the likelihood of reoffending because the Applicant’s offending occurred during periods of his life when he was struggling to cope. Apart from the evidence of the Applicant at the Tribunal hearing, there is however, no evidence before the Tribunal of a formal diagnosis of depression or of the Applicant’s compliance with any medication regime. Additionally, how the Applicant performs in response to any medication is untested in the community. Further, his offending has been fairly consistent over a 10 year period from the age of 14 until he was approximately 23 years old and his unmet treatment needs for violence, general offending and drugs remain, and increase the Applicant’s likelihood of re-offending even if he is being treated for depression and is compliant with his medication.
93. The Tribunal is also concerned about the lack of acceptance of responsibility for his offending that the Applicant showed at the Tribunal hearing. For example, as discussed above, he sought to place blame on the victim he sprayed with capsicum spray on 21 November 2016 and he denied the facts of the domestic violence incident committed against his former partner on 24 November 2016, in the presence of her young child. He also refused to explain the circumstances of his burglary and stealing offences under cross-examination, stating that he could not remember.
94. Regarding the nature of the harm to individuals if the Applicant were to engage in further criminal or other serious conduct (paragraph 13.1.2(2)(a) of Direction no. 65), the Applicant has a history of offending over a ten year period with offences including assault, threats to injure, possession of prohibited weapons and domestic violence. This is exacerbated by the Applicant’s use of weapons including capsicum spray, a hammer and scissors, as well as his possession of a “knuckle duster”. As noted in paragraph 13.1.2(1) of Direction no. 65, the Australian community is likely to have less tolerance given the seriousness of this potential harm, especially against women who are subject to domestic violence, as well as children who are vulnerable members of the community. There is a real risk that should the Applicant commit similar offences in the future, including offences involving the use of weapons, that a member of the Australian community may suffer serious physical, and possibly psychological, injury. The Applicant also has numerous charges for property damage and aggravated burglary which could result in economic loss to members of the Australian community if he were to commit similar offences in the future.
95. Based on the above discussion, the Tribunal finds that there is a likelihood of the Applicant re-offending should he be given a further chance to be released back into the Australian community due to his lengthy history of offending, his lack of acceptance of responsibility for his offending and his unmet treatment needs in the areas of violence, domestic violence, and drugs. The Applicant’s offences have escalated in seriousness and involve violent offences and sometimes weapons, to the extent that if they were to reoccur, a member of the community may be seriously injured. The Tribunal therefore finds that the Applicant poses an unacceptable risk of harm to individuals in the Australian community. In these circumstances, the Australian community would expect that the Applicant’s visa should remain cancelled. This weighs against the revocation of the cancellation of the Applicant’s visa.

Second primary consideration: The best interests of minor children in Australia (13.2)

96. Paragraph 13.2 of Direction no. 65 provides:
    • (1) Decision-makers must make a determination about whether revocation 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 revoke or not revoke the mandatory cancellation decision is expected to be made.
    • (3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
97. Paragraph 13.2(4) of Direction no. 65 continues on to outline the factors that a 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:
      1. The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
      2. The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
      100. 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;
      4. 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;
      5. Whether there are other persons who already fulfil a parental role in relation to the child;
      6. Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
      7. Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
      8. Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
98. 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 has a three year old daughter, born in November 2015, from a de facto relationship of approximately six years with his former partner. His former partner (from whom the Applicant separated in approximately 2016) also has a daughter. The Applicant has also made submissions about his potential relationship with the unborn child of his younger sister who lives in Adelaide.
99. The interests of the children differ and so the Tribunal will deal with each child separately (paragraph 13.2(3) of Direction no. 65).

The Applicant’s biological daughter

100. Regarding the Applicant’s biological daughter, in an undated handwritten letter which was received by the Department by facsimile on 31 August 2018, the Applicant stated (G18, page 99):

I am writting (sic) you this letter to inform you that i do have contact with my daughter [name omitted] witch (sic) is 3 years old and really needs her dad at the moment. I have broken up with my partner but am still on speaking terms for my daughters (sic) sake.

101. There is limited evidence before the Tribunal as to the Applicant’s relationship with his biological daughter and the Tribunal notes that the Applicant has not resided with her since she was approximately a year old when he separated from her mother. The Applicant gave evidence that he has not seen or been in contact with his daughter for the last two years due to the operation of a violence restraining order (VRO) which was taken out by the child’s mother after the domestic violence incident on 24 November 2016 and due to his imprisonment. The Applicant gave evidence that prior to the VRO and his imprisonment, he would provide for the child by paying bills, such as the rent (transcript, page 10-11).
102. The Applicant stated that the child was three and a half or four years old (transcript, page 10). He could not remember her birthday or the month when she was born (transcript, page 41), but this could be because of the stress of the Tribunal hearing and his time apart from the child. The Applicant stated in his evidence at the Tribunal hearing that his other family members were not in contact with the child and did not contribute money towards her upbringing (transcript, page 42).
103. The Applicant stated at the Tribunal hearing that the VRO had recently expired and that he wanted to be reunited with his daughter and be a “father figure” for her by “being there for her, caring for her, having regular visits, spending time with her” and providing for her financially when he was working (transcript, page 41-42).
104. At the Tribunal hearing, the Applicant described his daughter as “beautiful” and “bright” (transcript, page 20).
105. Applying paragraph 13.2(4)(b) of Direction no. 65, the Tribunal notes that the Applicant’s biological daughter is very young and that she may benefit from having the support and involvement of a father in her upbringing.
106. There is no evidence that the Applicant’s conduct has had a negative impact on his biological daughter. If the Applicant continues to offend, he will not be a positive role model for her (paragraph 13.2(4)(c) of Direction no. 65).
107. Applying paragraph 13.2(4)(d) of Direction no. 65, a permanent separation from her father may negatively impact on his young daughter, if he were to be removed from Australia.
108. The Tribunal acknowledges that although telephone contact with a parent is not the same as in person contact, the Applicant would be able to maintain contact with his daughter by telephone and other electronic means of communication (paragraph 13.2(4)(d) of Direction no. 65) if he is returned to New Zealand, but that such contact may be difficult to facilitate because the Applicant is estranged from the child’s mother.
109. The Applicant gave evidence that he believed the child was no longer living with her mother and that the child had been taken into the care of the Department of Child Protection. He stated that he had obtained this information from a friend’s Facebook post (transcript, page 21 and 42). Consequently, although there is an absence of evidence as to where the child is residing, there is some doubt as to whether the child’s mother fulfils a parenting role (paragraph 13.2(4)(e) of Direction no. 65). If so, the best interests of the child are more likely to be served if her father remains in Australia to fulfil a parenting role.
110. The Tribunal does not have any evidence before it regarding the wishes of the Applicant’s daughter (paragraph 13.2(4) of Direction no. 65).
111. There is no evidence that the Applicant has abused or neglected his daughter (paragraph 13.2(4)(g) of Direction no. 65).
112. There is also no evidence before the Tribunal that the Applicant’s daughter has experienced any physical or emotional trauma from the Applicant’s conduct (paragraph 13.2(4)(h) of Direction no. 65).
113. Taking into consideration the above discussion of the factors in paragraph 13.2(4) of Direction no. 65, on balance, the best interests of the Applicant’s biological daughter is likely to be best served by the revocation of the cancellation of the Applicant’s visa.

The Applicant’s step-daughter

114. The Tribunal will now consider the nature and duration of the Applicant’s relationship with the nine year old daughter of his former partner (who is the mother of his biological daughter) (13.2(4)(a) of Direction no. 65). In a “Personal Details Form” signed by the Applicant on 27 November 2015 and completed following the first occasion on which the Applicant’s visa was revoked, the Applicant stated that his step-daughter regularly visited him in prison and kept in contact with him via telephone calls (G16, page 86-87).
115. More recently, in a handwritten and undated letter, sent by facsimile to the Department on 30 August 2018, the Applicant stated (G18, page 103):

I am writting (sic) you this letter to inform you that i now (sic) longer have contact with my stepdaughter due to breaking up with my ex partner.

The absence of an ongoing relationship, or meaningful contact, with his step-daughter (13.2(4)(a) of Direction no. 65), was also confirmed by the Applicant at the hearing. Indeed, the Applicant stated that his relationship with the child was “over” and that he was estranged from her mother.

116. However, if he were to re-establish his relationship with the child in the future, she may benefit from having a father figure in her life (paragraph 13.2(4)(b) of Direction no. 65). The Tribunal does however have some reservations given that the Applicant’s step-child witnessed the Applicant’s domestic violence against her mother. According to the Statement of Material Facts (SG5, page 166), the Applicant’s step daughter was seven years old at the time and was present during the offending which occurred over a two to three hour period (paragraph 13.2(4)(c) of Direction no. 65). It is likely that witnessing this offending would have had a detrimental impact on the Applicant’s step-daughter, although there is no evidence before the Tribunal of detriment (paragraph 13.2(4)(c) of Direction no. 65) or of any physical or emotional trauma from the Applicant’s conduct (paragraph 13.2(4)(h) of Direction no. 65).
117. As the Applicant does not appear to have an ongoing relationship with his step-daughter, it is unlikely that a permanent separation from her step-father, if he were to be removed from Australia, would have a negative impact (paragraph 13.2(4)(d) of Direction no. 65). If he returned to New Zealand, the Applicant would be able to maintain contact by telephone and other electronic means of communication (paragraph 13.2(4)(d) of Direction no. 65), but, as with the Applicant’s biological daughter, such contact may be difficult to facilitate because the Applicant is estranged from the child’s mother.
118. As with the Applicant’s biological child, the Tribunal is uncertain as to whether the child’s mother fulfils a parenting role, or if the child is residing with her mother (paragraph 13.2(4)(e) of Direction no. 65).
119. The Tribunal does not have any evidence before it regarding the wishes of the Applicant’s step-daughter (paragraph 13.2(4) of Direction no. 65).
120. With the exception of the domestic violence related offending committed in her presence, there is no evidence that the Applicant ever abused or neglected his step-daughter (paragraph 13.2(4)(g) of Direction no. 65).
121. Taking into consideration the above discussion of the factors in paragraph 13.2(4) of Direction no. 65 and given the Applicant’s statements that he will not have an ongoing relationship with this child and the domestic violence related offending committed in front of her, the Tribunal finds that this consideration does not weigh either for or against the revocation of the cancellation of the Applicant’s visa.

The Applicant’s sister’s unborn child

122. The material before the Tribunal contains submissions made by the Applicant about his youngest sisters’ unborn child. In an undated handwritten letter which was received by the Department by facsimile on 31 August 2018, the Applicant stated (G18, page 99):

... my youngest sister is having a baby and is the first of my siblings to have a child. which means im going to be an uncle and would break my heart if i was sent back to new zealand, where i couldnt be able to be apart of my sisters babys life.

(sic)

123. At the Tribunal hearing the Applicant’s mother confirmed that the Applicant’s sister, who resides in Adelaide, was due to have a baby in three months’ time (transcript, page 51).
124. However, the Tribunal is not obliged to consider the interests of an unborn child as a primary consideration (see relevant authorities regarding an unborn child which were discussed by Deputy President Boyle in JNMK and Minister for Immigration and Border Protection [2018] AATA 971 at [64] – [65]).
125. Accordingly, the Tribunal will consider the Applicant’s relationship with his sister’s unborn child with respect to the strength, nature and duration of ties below.

Third primary consideration: Expectations of the Australian Community (13.3)

126. Paragraph 13.3(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 not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
127. 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.
128. 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:
     135. In the case of YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY), Mortimer J made the following comments:

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

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

(Emphasis added.)

136. 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.
137. The passage referred to by Mortimer J above in Uelese v Minister for Immigration & Border Protection [2016] FCA 348 states as follows:

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

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

138. 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.

(Original emphasis.)

129. Member Burford further explained, at [139]-[141], in Le:
     139. 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]
     140. 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.
     141. 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.

(Footnotes omitted.)

130. In Afu and Minister for Home Affairs [2018] FCA 1311 (Afu), at [85], Bromwich J explained:

...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...

131. In his closing submissions, counsel for the Applicant submitted that the community would be sympathetic to the Applicant due to his young age, the time the Applicant has served in prison, and the prospects that he can be rehabilitated due to his age. Counsel for the Applicant submitted that the Australian community would be willing to give the Applicant a second chance (transcript, page 66). However, in paragraph 13.3(1) of Direction no. 65 the Minister has clearly stated what the Australian community would expect and paragraph 13.3(1) does not permit the Tribunal to speculate about what the Australian community would expect. The submissions made by the Applicant’s counsel are more relevant to the weight that the Tribunal would give to this consideration.
132. The Tribunal has also taken into account the submissions of counsel for the Applicant, outlined in paragraph [131] above, in determining the weight to be applied to this consideration, including the Applicant’s claims of harm if he were returned to New Zealand, his family being in Australia, his young age, potential for rehabilitation, and the duration and strength of his ties to Australia. The Tribunal has also considered the best interests of the Applicant’s biological daughter.
133. However, 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 non-revocation of the cancellation of the Applicant’s visa. In determining the weight to be applied to this consideration, the Tribunal is of the opinion that the history and serious nature of the Applicant’s offending, his nine further offences resulting in a term of imprisonment after he received a warning that his visa may be cancelled if he re-offended again, his unmet treatment needs and likelihood of re-offending outweigh the considerations put forward by counsel for the Applicant.
134. Consequently, the Tribunal finds that, on balance, the expectation of the Australian community would weigh against the revocation of the cancellation of the Applicant’s visa.

OTHER CONSIDERATIONS

135. Paragraph 14 of Direction no. 65:
     • (1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
       1. International non-refoulement obligations;
       2. Strength, nature and duration of ties;
       100. Impact on Australian business interests;
       4. Impact on victims;
       5. Extent of impediments if removed.

International non-refoulement obligations

136. Direction no. 65 relevantly states, in paragraph 14.1:
     • (1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
     • (2) The existence of a non-refoulement obligation does not preclude non­ revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
     • (3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
     • (4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
     • (5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).
     • (6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
137. In his personal circumstances form dated 1 March 2018 (G14, page 65), the Applicant stated, in response to the question, “Do you have any concerns or fears about what would happen to you on return to your country of citizenship?”:

My father was a (sic) ex black power member and due to his wrong doings they put a contract on his head and because i have the same family name i will be targeted

138. In an undated, handwritten letter to the Department (G14, page 69), the Applicant stated:

... my father left new zealand because he was involved in a gang called the black power and was a wanted man by them and i fear that they will punish me for his mistakes.

139. The fact that the Applicant has raised the issue that he may suffer harm if he returns to New Zealand is a claim which may engage Australia’s non-refoulement obligations (paragraphs 14.1(1) and 14.1(3) of Direction no. 65). However, as contemplated in paragraph 14.1(2) of Direction no. 65, the existence of a non-refoulement obligation does not preclude the non­revocation of the mandatory cancellation of the Applicant’s visa.
140. The Applicant could apply for a protection visa under the Migration Act, as contemplated by paragraph 14.1(4) of Direction no. 65. The Respondent submits that, if any
     
     non-refoulement obligations exist, they can be met through the protection visa process, or through the exercise of powers under s 195A of the Migration Act (Exhibit R3, para [46]).
141. Although paragraph 14.1(4) of Direction no. 65 provides that it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of considering whether the cancellation of their visa should be revoked if the Applicant can make an application for a protection visa, in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 546 (BCR16), a majority of the Full Court of the Federal Court held otherwise (Bromberg J and Mortimer J at 528).
142. Specifically, in BCR16, the majority stated (at 528):

...That returning an individual to a country where there is a real possibility of significant harm, or a real chance of persecution, may contravene Australia’s non-refoulement obligations, is also a matter to be weighed in the balance of deciding whether to revoke a mandatory visa cancellation...

143. The effect of the majority’s decision in BCR16 was discussed by Deputy President Dr Kendall (as he then was) in HSKJ and Minister for Immigration and Border Protection [2017] AATA 1802 (HSKJ) who stated (at [87] and [88]):
     87. Until recently, the Tribunal would have found that, because of his ability to apply for a Protection visa, the Tribunal was not required to assess any non-refoulement obligations owed to HSKJ. It was generally accepted that because Direction No. 65 specifically states that it is not necessary to determine a non-refoulement issue in circumstances where an applicant can apply for a Protection visa, the Tribunal would normally rely on any non-refoulement assessment being made by another body specifically charged with determining the validity of a Protection visa claim.
     88. That position is now disputed, however, because of the recent decision of the Federal Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 (“BCR16”). Following BCR16 (now on appeal to the High Court but which is binding on this Tribunal) the Tribunal is required to assess (to the extent that it can on the evidence) any type of harm that might arise to him should HSKJ be deported to Iraq. This is so regardless of whether an applicant specifically frames his risk of harm as a non-refoulement issue.
144. In summary, the Tribunal is required to consider whether the Applicant’s claim of a risk of harm if he were to be returned to New Zealand would constitute another reason why the cancellation decision should be revoked. However, before the Tribunal undertakes this consideration, it is relevant to note the following comments from the decision of Deputy President Dr Kendall (as he then was) in HSKJ (at 89-91):
     • (7) In assessing any non-refoulement obligations, the Full Court has previously noted that the level of analysis required by the Tribunal is less than that required in assessing a claim for a Protection visa. Relevantly, in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 in relation to a s 501 refusal, the Court found (at [28]):

An exercise of the statutory power conferred by s 501 of the Migration Act does not require the same analysis to be undertaken as would be required if an application for a protection visa is made and s 36 is invoked. Nor is that analysis to be undertaken even where the Minister does take into account Australia’s non-refoulement obligations.

(8) Nor, it should be stressed, could the Tribunal engage in the sort of evidentiary analysis that would be undertaken if a Protection visa claim were examined elsewhere by those specifically charged with analysing a Protection visa claim. Normally, when a protection visa application is determined, the decision maker has access to an extensive interview with the applicant and, importantly, a detailed International Treaties Obligations Assessment (“ITOA”). That is not the case here. Before this Tribunal, in an expedited hearing that requires the Tribunal to make an assessment in a very short period of time, the Tribunal does not have the benefit of an ITOA or the full body of evidence one would expect in a protection visa hearing.

(9) In these circumstances, the Tribunal can only assess the often limited evidence before it in determining any risk of harm to HSKJ. This is arguably less than ideal given the possible negative consequences for an applicant in this context.

145. As Deputy President Dr Kendall (as he then was) noted, there is often very limited evidence before the Tribunal regarding the risk of harm. This is certainly true of the Applicant’s case with the only evidence before the Tribunal being that of a very general nature given by the Applicant. Specifically, the Applicant has not articulated specific harms, but rather, he has made general statements that he fears being “targeted” due to the alleged “wrong doings” of his father approximately 23 years ago when he was a member of a group called “Black Power”.
146. Further, the Tribunal has some doubt as to whether an issue of non-refoulement arises in the first place. This is because the Applicant’s claimed fears of harm are not based on a fear of persecution as a result of belonging to a particular race, religion, social group, or political opinion, as embodied in Article 33(1) of the 1951 Convention Relating to the Status of Refugees as Amended by the 1967 Protocol.
147. Accordingly, the Tribunal finds that there is insufficient evidence to support a conclusion that this consideration should displace the primary considerations.

Strength, nature and duration of ties

148. Paragraph 14.2(1) of Direction no. 65 provides:
     • (1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
       • (a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
         • (i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
         • (ii) More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
       • (b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
149. As noted above, the Applicant arrived in Australia in 1995 when he was three months old (paragraph 14.2(1)(a) of Direction no. 65). He has spent his entire life in Australia, including attending primary school and high school until year 10 in Australia (transcript, page 23). He effectively has no ties to New Zealand. Members of his mothers’ family reside in New Zealand but the Applicant’s mother gave evidence that some of her family members were a bad influence and she would be unlikely to tell them if he was returning there (transcript, page 15).
150. Counsel for the Applicant submitted a copy of the decision of Deputy President Forgie in Rabino and Minister for Immigration and Border Protection [2016] AATA 999 (Rabino). His submission was that, in Rabino, the Tribunal permitted an applicant, a Brazillian citizen who came to Australia at the age of 11 and who had a “significant record” to stay in Australia due to the length of time in Australia, and that his client, the current Applicant, had resided in Australia for a longer time (transcript, page 69). There are, however, a number of differences between Rabino and the current application before the Tribunal. For example, in Rabino the Tribunal found that there was a low risk of the applicant re-offending, because, amongst other reasons, and contrary to the submission of counsel for the Applicant, in Rabino, the applicant only had one conviction for armed robbery. The Tribunal comments that each decision regarding a visa cancellation on the basis of character under the Migration Act is unique and turns on its own facts, circumstances and evidence which must be weighed by the Tribunal in accordance with Direction no. 65. The Tribunal is of the opinion that, because of the factual differences and because each case must be considered on its own merits, the decision in Rabino offers little guidance with respect to the current application before the Tribunal.
151. The Applicant has not returned to New Zealand since arriving in Australia. He stated in his personal circumstances form dated 1 March 2018 (G14, page 66) that:

if i was to be sent back to new zealand i would have no family support due to all my family living in Australia (sic).

152. He further stated in this personal circumstances form (G14, page 66) that:

i have lived in australia since i was one years old and have never been back to new zealand all my family and friends live in australia and this is the place i call home. Also my partner lives here in australia and it would be deverstating (sic) for her if i was to be sent back to new zealand due to us having plans of starting a family together and aventurly (sic) getting married (sic).

153. However, at the Tribunal hearing, the Applicant confirmed that he separated from his partner, after a relationship of approximately 18 months, before going into detention (transcript, page 10).
154. In a handwritten letter, undated but sent to the Department by facsimile on 31 August 2018 (G18, page 99), the Applicant stated:

I would also like to let yous (sic) know that before going to jail i was caring for my father which is disabeled (sic) on his left side of his body and has regular strokes. he is currently in prison at the moment but will be getting released soon and will really need me there to care for him seeing as i done it before and know his needs.

155. In her letter of support, the Applicant’s sister has commented that the Applicant’s father “is severely ill and may die very soon” (Exhibit A1). There is no other evidence before the Tribunal regarding the Applicant’s father’s medical condition or the Applicant undertaking a role as his father’s carer.
156. The Applicant first offended as a juvenile at the age of 14 in December 2008 (paragraph 14.2(1)(a)(i) of Direction no. 65) and his offending spans a ten year period.
157. The Applicant stated in his personal circumstances form dated 1 March 2018 (G14, page 56) that he completed up to year ten of secondary school in Australia and has previously worked as a kitchen hand (2010 to 2011) and a “brickie labourer” (2012 to 2014) (G16, page 64 and 88) (paragraph 14.2(1)(a)(ii) of Direction no. 65). The Applicant gave evidence at the hearing that after he left school he worked as a kitchen hand for 12 months, then restocked shelves for 12 months, followed by a period of not working, prior to obtaining the “brickie labourer” job, which he did for approximately eight months. He then obtained a job assisting as a painter for approximately eight months, followed by another period of not working. He was then in receipt of the “youth allowance” for approximately one year to 18 months, and reported undertaking some study in transport and logistics in 2016 (transcript, pages 24-25). This employment is a positive contribution to the community. However, the Applicant’s employment was interspersed with the Applicant committing criminal offences. At the Tribunal hearing, the Applicant explained that this was because he was not earning very much money and his partner was not working (transcript, page 26).
158. The family friend, who is also the Applicant’s mother’s partner, has provided a reference stating that if the Applicant is released he may employ him in his carpentry and cabinet making business (Exhibit A2). The Applicant’s sister also commented in her letter of support (Exhibit A1) that her brother has permanent accommodation and a full-time job when he is released. The Applicant also stated in his personal circumstances form dated 1 March 2018 that he has strong support from his mother and siblings, and has accommodation and a full time job doing fencing if released (G14, page 54).
159. All of the Applicant’s immediate family reside in Australia, comprising his mother, father, and adult siblings (a brother and three sisters) (G14, page 62). The Applicant has had a difficult relationship with his father, but gave evidence at the Tribunal hearing that he reconnected with his father when they were both in Casuarina prison (transcript, page 23). Based on the evidence of the Applicant’s mother and 20 year old sister, they are particularly close to him. The evidence of the Applicant’s 20 year old sister indicates that, despite the incident on 7 December 2016, she has now reconciled with her brother, and she relies heavily upon him for friendship and emotional support (transcript, pages 59-60). As discussed above in the section on the best interests of the child, another younger sister who resides in Adelaide is expecting a baby and if removed from Australia, the Applicant would be potentially deprived of this family relationship. If released from immigration detention, the Applicant is likely to reside with his mother (Exhibit A4, G14, page 73). At the hearing, the Applicant’s mother stated that this would be until he can find his own accommodation (transcript, page 53). As well as giving evidence at the Tribunal hearing, his sister has provided a letter of support (Exhibit A1), and his mother has provided letters of support (A3, A4, G14, page 73).
160. The Tribunal finds that the Applicant’s ties to the Australian community are strong, especially given that he arrived in Australia as a three month old, has grown up in Australia, and has never travelled to New Zealand. He appears to have strong family support from his mother and 20 year old sister in particular. The Applicant’s ties to the Australian community also include his biological daughter (discussed above in the section of the best interests of the child), with whom the Applicant wishes to reconnect. Consequently, this consideration weighs in favour of the revocation of the cancellation of his visa.

Impact on Australian business interests

161. There is no evidence before the Tribunal that a decision not to revoke the cancellation of the Applicant’s visa will have a relevant impact on Australian business interests (paragraph 14.3(1) of Direction no. 65).
162. Counsel for the Applicant submitted at the hearing in his closing submissions that the Applicant’s employment history (see para [157] above), was relevant to this paragraph. However, as the wording of paragraph 14.3(1) of Direction no. 65 states “...an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.” Consequently, the Applicant’s employment history is not relevant under this paragraph, but has been considered above under paragraph 14.2(1)(a)(ii) in terms of “contributing positively to the Australian community”.

Impact on victims

163. The Tribunal does not have evidence before it regarding the impact on other victims of his criminal behaviour, or the family members of the victims (paragraph 14.4(1) of Direction no. 65).

Extent of impediments if removed

164. Paragraph 14.5(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:
       1. The non-citizen’s age and health;
       2. Whether there are substantial language or cultural barriers; and
       100. Any social, medical and/or economic support available to them in that country.
165. As noted above, the Applicant has lived in Australia since he was three months old, and has not returned to New Zealand since his arrival. He is a very young man of 24 years and is in good physical health, but he gave evidence that he suffers from depression for which he takes medication. He has never returned to New Zealand and does not know his mothers’ family members who live there. After living in Australia for nearly his entire life, he would undoubtedly face difficulty in re-establishing himself in New Zealand, and the Tribunal accepts that he will have little or no family support, nor other existing social networks, if he were returned to New Zealand.
166. New Zealand does, however, have a common language and similar culture to Australia, and has similar access for its citizens to social security, employment, health services and education. This would include mental health services. Counsel for the Applicant referred to the decision of Senior Member Taylor in MAH and Minister for Immigration and Border Protection [2018] AATA 416 where the Tribunal set aside a decision to cancel the applicant’s visa, and gave weight to the significant health issues of the applicant. Like Rabino, MAH has significant factual differences from the current application before the Tribunal. For example, the applicant in MAH was a 44 year old man who suffered from chronic opioid misuse, schizophrenia or schizoaffective disorder with associated cognitive decline, and leg wounds, and his medication and monitoring were unlikely to be available in Iraq (MAH, para [130]). However, in this case, there is no evidence to suggest that the Applicant could not receive treatment for his depression to the same standard as in Australia if he were to be returned to New Zealand, which has a comparative health system to Australia.
167. The Respondent has also submitted that New Zealand has organisations that provide assistance to persons who are removed from Australia to New Zealand, such as People at Risk Solutions (PARS) (Exhibit R3, para [56]; “Freedom through Growth”, People at Risk Solutions, New Zealand, http://www.pars.co.nz/sub-menu/deportees). The Respondent drew the Tribunal’s attention to the comments of Deputy President Dr Kendall (as he then was) in CFVG and Minister for Immigration and Border Protection [2017] AATA 1395, which this Tribunal agrees with. Deputy President Dr Kendall (as he then was) stated, at [90]:

... 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...

168. Overall, the Tribunal finds that the Applicant would suffer hardship if he were returned to New Zealand, which weighs in favour of the revocation of the cancellation of his visa.

CONCLUSION

169. The Applicant does not pass the character test under s 501(6) of the Migration Act.
170. The Tribunal has also considered whether there is another reason why the mandatory cancellation decision should be revoked, having regard to the primary and other considerations in Direction No. 65.
171. Counsel for the Applicant submitted that the Tribunal should give greater weight to the considerations in favour of the revocation of the mandatory cancellation decision. These are the primary consideration of the best interests of the Applicant’s biological daughter, and the other considerations of ties to the Australian community and extent of impediments if returned. Although primary considerations should generally be given greater weight than other considerations (paragraph 8(4) of Direction no. 65), both primary and other considerations may weigh in favour of, or against, the exercise of discretion as to whether or not to revoke a mandatory cancellation of a visa (paragraph 8(3) of Direction no. 65). The Tribunal also notes that information and evidence from independent and authoritative sources should be given appropriate weight (paragraph 8(2) of Direction no. 65).
172. In relation to the primary considerations that the Tribunal must take into account under Direction no. 65, the findings that the Tribunal has made regarding the Protection of the Australian Community (paragraphs 13.1, 13.1.1 and 13.1.2 of Direction no. 65), and the Expectations of the Australian Community (paragraph 13.3 of Direction no. 65) weigh strongly in favour of the Tribunal refusing to revoke the cancellation of his visa (that is, affirming the Reviewable Decision).
173. With respect to the primary consideration regarding the best interests of the children (paragraph 13.2 of Direction no. 65), the best interests of the Applicant’s biological daughter are likely to be better served by the Applicant being permitted to stay in Australia. However there is minimal evidence before the Tribunal about the Applicant’s relationship with his biological daughter, and the Tribunal is of the opinion that this consideration is outweighed by the other two primary considerations. Further, the Tribunal notes that the Applicant does not currently have contact with his step-daughter, and does not intend to have any contact with her in the future.
174. With respect to the remaining other considerations, the Applicant has only made very general claims that he fears harm if returned to New Zealand. There is insufficient evidence to support these claims, and in any event, they are unlikely to enliven Australia’s non-refoulement obligations.
175. Although there is no doubt that the Applicant has very strong ties to the Australian community and that he may experience hardship if he is returned to New Zealand, the Applicant has a lengthy criminal history, which he commenced at the age of 14 years, and which continued into his adulthood. His criminal history comprises some 63 offences over a period of ten years, including serious offences involving violence and resulting in two separate terms of imprisonment, with his second term of imprisonment being after he received a warning. Whilst it is positive that the Applicant completed two voluntary programs in prison, they did not target the Applicant’s unmet treatment needs, particularly with respect to violence, and also drug use. The Tribunal has found that if the Applicant were to commit further offences, there is an unacceptable risk of serious harm to members of the Australian community. Consequently, the Tribunal finds that it is appropriate to give greater weight to the primary considerations of the Protection of the Australian Community (paragraphs 13.1, 13.1.1 and 13.1.2 of Direction no. 65) and the Expectations of the Australian Community (paragraph 13.3 of Direction no. 65) than to the other considerations of strength, nature and duration of ties, and impediments if removed.
176. 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 it would not be appropriate for the Tribunal to revoke the mandatory cancellation of the Applicant’s visa. The correct and preferable decision is to affirm the Reviewable Decision.

DECISION

177. The Reviewable Decision, being the decision of a delegate of the Respondent dated 18 September 2018 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.

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

Associate

Dated: 13 December 2018