YGJL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 4017 (21 November 2022)

Last Updated: 25 November 2022

YGJL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 4017 (21 November 2022)

Division: GENERAL DIVISION

File Number: 2022/7111

Re: YGJL

APPLICANT

And Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal: Senior Member D. J. Morris

Date: 21 November 2022

Place: Melbourne

Pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal decides to affirm the decision under review.

........................................................................

Senior Member D. J. Morris

Catchwords

MIGRATION – applicant is citizen of New Zealand – applicant held Class TY Subclass 444 Special Category (Temporary) visa – substantial criminal record for purposes of character test – applicant therefore fails character test – visa cancelled – consideration of ‘another reason’ to revoke mandatory cancellation of visa – ministerial Direction No 90 – primary considerations – significant and serious road traffic offences – historical family violence offences – other considerations – decision under review is affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 33A, 35, 43

Migration Act 1958 (Cth), ss 499, 500, 501, 501CA

Cases

Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311

FYBR v Minister for Home Affairs [2019] FCAFC 185

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337

Secondary Materials

Ara Poutama Aotearoa Department of Corrections – FAQs for Returning Offenders Jan 2019 (www.corrections.govt.nz) – accessed 9 November 2022

The Concise Oxford Dictionary of Current English; First Edition; H. W. and F. G. Fowler; (1911, Rep. Oxford University Press, 2011)

Migration Act 1958 – direction under s 499 – Direction No. 90 – visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 15 April 2021)

REASONS FOR DECISION

Senior Member D. J. Morris


21 November 2022

PRELIMINARY

1. YGJL^[1] is the Applicant in this matter. He was born in New Zealand in 1992 and is a citizen of that country. Until 30 March 2021, he held a Class TY Subclass 444 Special Category (Temporary) visa. That is a visa that gives eligible New Zealand citizens the right to reside in Australia without a time limit, but it is a temporary visa that does not confer permanent residency. This class of visa ceases whenever the holder leaves Australia, but is renewable on re-entry.
2. The visa was cancelled because a delegate of the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs was satisfied that YGJL had a ‘substantial criminal record’ under s 501(6)(a) of the Migration Act 1958 (‘the Act’) on the basis of s 501(7)(c) of that Act and because, at the time the visa was cancelled, he was serving a full-time term of imprisonment.
3. When a visa is cancelled that way, s 501CA(3) of the Act requires that the non-citizen be provided with a notice of the visa cancellation and particulars of the relevant information that formed the basis for the cancellation. The Minister or his delegate must invite the non-citizen to make representations about the revocation of the original decision in a specified period.
4. The Minister may revoke the visa cancellation if the Minister is satisfied that the person passes the character test in s 501 of the Act or if there is ‘another reason why the original decision should be revoked’: s 501CA(4)(b).
5. It was not in dispute between the parties that YGJL had made representations within the stipulated time period. On 26 August 2022, a delegate of the Minister decided, first, that they were not satisfied the Applicant passed the character test and, second, that they were not satisfied that there was another reason why the cancellation decision should be revoked.
6. A letter dated 30 August 2022 was sent to YGJL in immigration detention, attaching the decision record and advising him of his entitlement to seek review by this Tribunal. He lodged an application for review on 31 August 2022. The Tribunal must make a decision on or before 22 November 2022, otherwise the reviewable decision is taken to have been affirmed by the Tribunal by force of s 500(6L) of the Act.

PERSONAL BACKGROUND OF THE APPLICANT

7. The Applicant was born and grew up in New Zealand with his parents and two sisters. His parents separated, and in 2006 he moved to Australia with his mother and younger sister and settled in Victoria. He was then aged 14. His father and older sister later separately moved to Australia and settled in Queensland.
8. The Applicant states that his parents separated in New Zealand. His mother acquired a new partner and moved with him and his younger sister to Australia. YGJL says this man sexually abused him and his younger sister. The Applicant’s mother subsequently returned to New Zealand to live, as did his younger sister. His father continues to reside in Queensland. YGJL says his father has become an Australian citizen. His older sister also resides in Queensland, and he maintains regular contact with her.
9. YGJL attended school briefly in Australia and then left school and began working. He said that he was a ‘serious drug user’ at the time he committed his offences, using methylamphetamine (‘ice’). He says in 2020 he met Ms TM, and they commenced a romantic relationship in July 2020. In August 2020, he moved in with Ms TM and her five children (from a previous partner). In September 2020, he says he and Ms TM separated. He said that that, in November 2020, Ms TM told him she was pregnant. They spoke about reuniting, but he then went to prison. His and Ms TM’s daughter, who will be called XE, was born in May 2021. YGJL said in the hearing that he and Ms TM finally decided to end their relationship around May 2022, but they remain on friendly terms.

HEARING

10. The hearing was on 8 and 9 November 2022. YGJL represented himself, made submissions and was cross-examined by Ms Lauren Hargrave of Clayton Utz, representing the Respondent. The Applicant called as witnesses: Mr GB, a former employer; Ms TM, his former partner; and Mr IN, a friend. The witnesses appeared by permission of the Tribunal by telephone under s 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’).
11. On 7 September 2022, the Tribunal made an order under s 35(4) of the AAT Act prohibiting disclosure of matters relating to persons affected by Apprehended Violence Orders (Domestic) in this matter. Those details will be anonymised. The names of other persons will also be anonymised in these reasons.
12. The Tribunal took into account the Applicant’s submissions dated 5 May 2022 and a Statement of Facts, Issues and Contentions from the Respondent dated 21 October 2022.
13. The Tribunal also admitted into evidence documents listed in the Annexe to these reasons.

TWO QUESTIONS BEFORE THE TRIBUNAL

14. In reviewing a decision not to revoke the mandatory cancellation of a visa under s 501CA(4) of the Act, the Tribunal is not reviewing the delegate’s decision. It is making a fresh decision based on the law and the information before it. Parties are entitled to make submissions and provide further information to the Tribunal as it conducts the review, including information that was not before the delegate when the original decision was made.
15. There are two questions for the decision. The first one is whether YGJL fails the ‘character test’ in the Act. If it is found that he does not, then the cancellation of the visa is set aside, and that is the end of the matter. However, if the Tribunal finds that the Applicant does fail the character test, there remains a second question for the Tribunal to consider – whether the cancellation of his visa should be revoked for ‘another reason’.
16. In considering whether there is another reason why the visa cancellation should be revoked, the Tribunal must evaluate the factors for and against revocation. In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, the Federal Court said, at [38]:

The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. In this instance the Minister acted in accordance with that construction of the section. He did not apply the wrong test.

Does the Applicant fail the character test?

17. Under s 501(6)(a) of the Act, a person does not pass the character test under s 501(6)(a) of the Act (‘substantial criminal record’) if under s 501(7)(d) the person has been sentenced to two or more terms of imprisonment where the total of those terms is 12 months or more.
18. Before the Tribunal (GD, pp 32-36) was an Australian Criminal Intelligence Commission national criminal history check (‘ACIC report’) dated 10 May 2022. The ACIC report records that in January 2021 YGJL was convicted in the Magistrates’ Court of Victoria of the following offences: Dangerous Driving while pursued by police (two counts); Fail to stop vehicle on police direction (six counts); Reckless conduct endangering serious injury; Drive in a manner dangerous (four counts); Fail to stop motor vehicle on request; Drive at a speed dangerous; Reckless conduct endanger life; Unlicensed driving (11 counts); Contravene a conduct condition of bail (two counts); Drive whilst disqualified; Commit indictable offence whilst on bail (two counts); Fail to stop a vehicle after an accident (two counts). For these offences the Court sentenced YGJL to an aggregate of 18 months’ imprisonment and his licence was cancelled for three years. He was also on that day convicted of the offence of Intentionally damage property, and sentenced to 18 months’ imprisonment, to be served concurrently. In addition, he was convicted of the offence of Possess prohibited weapon without exemption or approval. On this last charge he was sentenced to seven days’ imprisonment, to be served concurrently, and ordered to pay $650 compensation.
19. In addition, on the same day, the Applicant was convicted of the following offences: Dishonestly undertake in the retention of stolen goods; Negligently deal with the proceeds of crime; Obtain property by deception (eight counts); Obtain financial advantage by deception. For this group of charges, he was given an aggregate sentence of one months’ imprisonment, to be served concurrently.
20. In addition, he was convicted of the offences of: Careless driving of a motor vehicle (two charges); Exceed 100 speed sign by more than 10 km/h and less than 25 km/h; Drive vehicle causing loss of traction (three other charges); Fail to stop at stop sign; Use vehicle not safe and roadworthy condition; Use unregistered motor vehicle on highway (six charges); Display number plates – number not assigned to vehicle; Own unregistered vehicle used on highway; Fail to keep safe distance behind vehicle (two charges); Enter intersection – red traffic arrow; Enter intersection – red traffic light; Fail to give way from road related area; Exceed 100 speed limit sign by 45 km/h or more (three charges); and Exceed 100 speed limit sign by 35 km/h and less than 45 km/h. He was fined an aggregate of $3,000 in relation to this group of offences.
21. YGJL, in his opening submissions, conceded that he had been sentenced to a term of imprisonment of 18 months, and, given this is a period of more than 12 months, he agreed that he failed the character test.
22. I am satisfied that the Applicant was serving a sentence of full-time imprisonment at the time his visa was cancelled (GD, p 84).

Finding in relation to the character test

23. The Tribunal is satisfied that the Applicant has a substantial criminal record under s 501(7)(d) of the Act and thereby fails the character test.
24. The Tribunal must now address the second question: is there ‘another reason’ under s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the visa?

THE MINISTERIAL DIRECTION – DIRECTION NO. 90

25. Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must comply with a relevant direction under s 499(2) of the Act.
26. On 8 March 2021, the then Minister made a direction under s 499, Direction No. 90 (‘the Direction’), which commenced on 15 April 2021. The Tribunal must have regard to the contents of the Direction in considering whether there is ‘another reason’ to revoke the mandatory cancellation. The Direction requires that some considerations must be taken into account where they are relevant. However, the Direction does not confine the Tribunal’s task; it must look at any other relevant factor in the circumstances of the particular case.
27. The Tribunal considered the primary and other considerations in the Direction, as relevant to YGJL’s personal circumstances, his offending history, and the country of reference.

PRIMARY CONSIDERATIONS

Protection of the Australian community (paragraph 8.1)

28. The Tribunal should consider the nature and seriousness of the non-citizen’s conduct and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

The nature and seriousness of the conduct (paragraph 8.1.1)

29. The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence.

Convictions – road traffic offences of July 2020

30. The Tribunal had regard for the transcript of proceedings before Magistrate Mr Southey at the Magistrates’ Court of Victoria in Bendigo in January 2021. The police prosecutor told the Court that on the day of the offending in July 2020, it had been consistently raining on and off, with moderate to heavy rain. The roads were very wet. It was a Sunday. Police observed YGJL driving a sedan without registration plates. The police positioned themselves behind the sedan and activated lights to indicate the driver should pull over. The driver accelerated away, and after some turns, the police abandoned the pursuit. The car was later observed by police travelling at high speed and overtaking in the path of oncoming vehicles. Other motorists had to pull off to the shoulder of the road to avoid a collision. The vehicle was estimated to be travelling 121 km/h in a 100 km/h zone. Police activated blue and red lights with a view to intercept the vehicle. YGJL failed to stop, drove over double white lines and up an exit ramp. He was subsequently detected to be travelling 211 km/h in a 100 km/h zone. The vehicle braked suddenly and ‘fishtailed’ for 100 metres. Police disengaged. Other police waited ahead, placing their police car across the road. YGJL accelerated towards the police vehicle, again losing control and ‘fishtailing’. He drove around the vehicle and failed to stop. Going through a stop sign without stopping, the Applicant eventually parked the sedan, ran across the road, and took off his jumper, throwing it into bushes. He was approached by police and denied being the driver. He was placed under arrest and then produced a Taser from his pocket, which he handed to police. At the time of this incident, YGJL agreed that he was unlicensed. The car was examined, and the rear tyres found to be worn down to the extent that it was unroadworthy.
31. YGJL was arrested, interviewed, and made admissions. He said he did not hold a valid Victorian driver’s licence because he was avoiding the police. YGJL was convicted of the offence of Possessing a prohibited weapon (‘the Taser’) at the same Court hearing, for which he received seven days’ imprisonment, to be served concurrently.
32. In his remarks, the sentencing Magistrate said (GD, pp 46-47):

    Yes, I just honestly think in nine years as a magistrate this might arguably be the worst driving history – worst spate of driving I’ve ever heard of[,] and we hear a lot of bad ones. I just would have thought specific deterrence, protection of the community looms so large that you know I just glanced at it. What immediately came to mind without having heard the summaries is two years with a non-parole period of one year.

33. The Magistrate then expressed surprise that a vehicle could go 211 km/h and said it was “pure luck that he has not killed himself or some other innocent...”

Other road traffic offences

34. At the 2021 Court hearing, the Court heard that in 2019 YGJL drove a Holden sedan in Bairnsdale. He parked the vehicle, leaving his then girlfriend asleep in the front passenger seat. He then attended Bairnsdale police station and was taken into custody in relation to other matters. He was searched and found to have a Holden Commodore ignition key in his possession. His girlfriend then arrived at the police station, looking for YGJL. Police attended the vehicle and found it had no front number plate and the number plate on the rear of the vehicle was an old one that had expired and been cancelled. YGJL initially denied driving the vehicle because he did not have a driver’s licence and named another person who he said was the driver. He then admitted to police he was the driver. The Court noted that he had been disqualified from driving in July 2019 for a period of five months owing to a loss of demerit points.
35. At the 2021 Court appearance, the Court heard about an incident in November 2018. On 20 November 2018, YGJL had attended the Magistrates’ Court at Sale and his licence was cancelled, and he was disqualified from driving for six months. He failed to renew his licence after this period of cancellation. In August 2019, YGJL was observed driving a green Ford sedan. He was driving so close behind another vehicle being driven by a female, that he bumped into the back of her car. As a result of the collision, the Ford had to be towed. YGJL initially denied being the driver. He was interviewed and made partial admissions, and agreed he was driving. He admitted driving too close to the other vehicle but denied having a collision. The Court also heard summaries of other incidents involving different vehicles driven by YGJL, including one where he drove at another car, causing it to drive up onto a nature strip to avoid being hit (GD, p 55).
36. In December 2019, YGJL was arrested for unrelated matters and taken to Mornington police station. In his wallet was found a Commonwealth bank debit card in the name of another person. The card was seized by the police. The Applicant told police he had found the card and was on his way to the police station to hand it in. The person to whom the card was issued was contacted. He attended the police station and reported that the card had been used without his consent 13 times, with total debit of $424.22. Closed-circuit television footage was obtained showing YGJL buying cigarettes using the card, the previous month. YGJL later made admissions about using the card on several occasions and to driving whilst disqualified.
37. The Court heard about an incident in December 2020. Police observed a gold Ford they had been advised to look out for. The police officers activated flashing lights to intercept the vehicle. The driver “accelerated heavily away” (GD, p 57), and the police abandoned the pursuit. The progress of the vehicle through Bendigo was observed on closed circuit cameras. YGJL served a notice nominating that the driver of the vehicle was his former partner Ms TM.
38. There was another incident involving the gold Ford sedan. A police officer observed the vehicle and noted it was missing a front headlight and the front grill. As the car approached a police officer, it accelerated away, and the officer observed the driver was a male. The Court was told the vehicle was observed to reach more than 160 km/h in speed. The police officer did not continue the pursuit. The vehicle was subsequently found not to be registered to YGJL, but statements from two previous owners linked him to being the purchaser of the car. At that time, the Applicant did not hold a driver’s licence. YGJL provided a notice declaring again that Ms TM was the driver.
39. The Court heard of a further incident in November 2020. YGJL was working on a dairy farm and, by agreement with the owner, borrowed a Nissan utility because he said he wanted to pick up a dog from a local kennel. Another vehicle, a small Holden Spark sedan, was being driven along a country road near Bendigo. A couple, their son and the son’s girlfriend were in the Holden Spark. The Holden overtook the utility. YGJL then drove the utility up close behind the Holden with headlights on, closing to less than a car length. The Court heard that YGJL continued to menace the other vehicle until the Holden driver motioned for him to pass. “At this point, the accused has suddenly accelerated hard and collided the Ute heavily into [redacted] vehicle, causing it to skid out of control briefly and being pushed off the roadway to the left.”
40. YGJL briefly slowed and then drove off. The Holden car was extensively damaged. The owner of the utility subsequently made a statement to police that he had lent the vehicle to the Applicant that evening. In his oral evidence, YGJL said that he had recently made contact with one of the victims in this incident, the lady who was sitting in the front passenger seat of the Holden Spark next to her husband. He said he had apologised for what he did and had made sure she received the victim’s compensation payment payable to her.
41. In December 2019, YGJL drove a grey Ford to a convenience store in Mornington. A short time later he exited the convenience store parking area and failed to give way to another motorist. The other motorist then overtook YGJL’s Ford. YGJL then accelerated and rammed the other vehicle. He then overtook the vehicle, braked hard and caused the other vehicle to collide with the rear of the Ford, damaging the other car’s headlight. The driver stopped to retrieve his headlight and rang the police. A witness identified the Applicant, and observed he was responsible for damaging the other vehicle. YGJL was arrested and interviewed. He agreed he was still unlicensed and said he did not stop after the accident because he did not think he was in the wrong, because the “other guy crashed into me, didn’t stop because he was the cause”.
42. Early in December 2020, a female and her partner were driving a black Ford Territory in Bendigo, with their 15-month-old daughter in the back passenger part of the vehicle. They saw YGJL and recognised him from photographs on his Facebook account. (YGJL told the Tribunal he had known the driver’s partner in prison.). The partner got out of the car and went towards the Applicant. The Court heard that YGJL drove off in another vehicle, swerving towards the partner, and causing him to jump out of the way. He then swerved towards the Ford Territory, causing the female driver to drive up onto a nature strip to avoid being hit. YGJL drove within one metre of the car, then drove off “narrowly missed hitting an elderly woman who was walking with her grandson and her white dog”. Soon after the incident, the victim received a message from YGJL’s Facebook Messenger account stating, “You (indistinct) BF in black territory. Should have followed up to the intersection where we sat and waited. Tell gronk to run quicker next time.” (GD, p 56.). The victim contacted Bendigo police station and reported the matter. She subsequently provided a statement. Checks revealed that YGJL was unlicensed at the time, and the gold Ford he was driving was unregistered. He was also on three counts of bail at the time. As a result, the Court was told that YGJL had committed indictable offences whilst being on bail. YGJL was subsequently arrested and remanded to appear at Bendigo Court.
43. YGJL told the Court that he had been using ‘ice’. The Magistrate observed that the offending was all “ice-related”. The Applicant agreed and said he did not touch the drug after he knew he was going to be a father. The Magistrate referred to the fact that the Applicant should not have been driving at all, let alone in what he termed a ‘homicidal fashion’ (GD, p 71).
44. In his oral evidence, however, YGJL said he was not in fact affected by ‘ice’ in the series of offending which took place in Bendigo in July 2020. In relation to the incident involving the Holden Spark sedan, he said that he had smoked ‘ice’ that morning, so was affected when he borrowed the utility from his friend.

Other offences

45. In June 2016, YGJL was convicted in New South Wales of the offence of Contravene prohibition/restriction in AVO (Domestic) and sentenced to a two-year good behaviour bond. At the same Court appearance, he was convicted of a separate offence of Contravene prohibition/restriction in AVO (Domestic) and levied an $800 fine and given a two-year good behaviour bond.
46. In April 2015, the Applicant was convicted of two counts of the offence of Stalk/intimidate intend fear physical etc harm (domestic), for which he received a $1,000 fine. The June 2016 and April 2015 offences will be further considered later in these reasons.
47. YGJL has other convictions in Australia, dating from 2011. He has convictions for, or been found guilty of, a large number of driving offences, including Dangerous driving, Assault/obstruct police; Affray, as well as drug offences, theft, property offences, stalking and endangering life. In particular, he has been convicted of driving a vehicle with an illicit drug present in his blood and several counts of Failing oral fluid test within 3 hours of driving.
48. The Applicant has also been convicted of offences of dishonesty. In January 2021, at the Magistrates’ Court in Bendigo, he was convicted of the offences of Dishonestly undertake in the retention of stolen goods; Negligently deal with proceeds of crime; Obtain property by deception (eight counts); and Obtain financial advantage by deception. For this group of offences, he was sentenced to an aggregate of one months’ imprisonment.
49. The Direction at paragraph 8.1.1(1)(a)(i) provides that violent and/or sexual crimes are to be viewed very seriously. The Applicant has not been convicted of any sexual offences. He has been convicted of unlawful assault and affray.
50. Paragraph 8.1.1(1)(a)(ii) directs decision-makers to view very seriously crimes of a violent nature against women or children. In respect of the incident involving the Holden Spark, YGJL freely admitted that one of the victims was a female adult, travelling in the front of the car when he rammed it. From the sentencing remarks, it would appear that a married couple were in the front seats of the Holden Spark, with the man driving. In the back seats were their 17-year-old autistic son and his girlfriend. The girlfriend’s age is not disclosed, but the Tribunal assumes she was probably of similar age. In his oral evidence, YGJL said he saw older adults in the front and two people in the back he guessed to be older teenagers or young adults.
51. The Tribunal notes that in the incident involving the black Ford Territory, the Court heard that a 15-month-old child was in the vehicle at the time of the interaction with YGJL which forced the driver to take evasive action. YGJL said that he contested that there was a child present that day because he knew the male in the car who he had met in prison and did not think he had a child. However, the Tribunal notes that was the record of the circumstances of the offending, which the Court accepted.
52. The Tribunal accepts that YGJL did not set out to offend against women or children but that, because of the nature of some of his driving offences, females – and in at least one case a young child – were put at serious risk by his reckless driving conduct, and in the case of the Holden Spark, grave peril when he rammed the car carrying two females and forced it off the road.
53. Paragraph 8.1.1(1)(b)(iv) directs decision-makers to consider crimes in immigration detention. There was no evidence of any improper conduct by YGJL in immigration detention.
54. Paragraph 8.1.1(1)(d) requires the Tribunal to consider the frequency of offending and whether there has been any trend of increasing seriousness. The criminal history of the Applicant commenced in Queensland before the Magistrates’ Court of that State in April 2011 (GD, p 36). Convictions were not recorded on that occasion and the Court dealt with the offending by way of fines.
55. He appears not to have offended until appearing at a Local Court on the south coast of New South Wales in March 2014 charged with Resist or hinder police officer in the execution of duty. He was fined $1,000 for that offence. Two months later, he was before the Magistrates’ Court of Victoria in a large country centre, charged with Unlawful Assault and Criminal damage (intent to damage or destroy). No conviction was recorded for either of these offences, and they were adjourned for one year.
56. He then appeared in the Local Court in New South Wales in April 2015, March, April, June, and August 2016. There was a short hiatus, and then YGJL was back before the Victorian Magistrates’ Court in April 2018. He appeared on a large number of charges in November 2018 and then was recalled to the Court in September 2019 for two charges of failing to answer bail. YGJL has also breached Community Corrections Orders (‘CCO’) on several occasions.
57. There is a distinction between convictions recorded and other findings of guilt. YGJL’s first two appearances before Queensland Courts in 2011 satisfied me that they led to findings of guilt because he was ordered to pay fines and restitution amounts. In 2014 before a Court in New South Wales, he was convicted. The same year before a Court in Victoria, no conviction was recorded, and the matter adjourned (i.e., effectively a warning to be of good behaviour). Then in New South Wales in 2015 and 2016, he was convicted in Court, as he was in 2019, 2020 and 2021 (the last being for offences committed in 2020 and earlier). The Tribunal finds that there has been relatively frequent offending since 2011. While some of the offences have not increased in seriousness, there is a cumulative effect because of the sheer number of offences and the evidence that the Applicant has defied orders of the Court designed to help him reform and deter him from re-offending.
58. Paragraph 8.1.1(1)(g) of the Direction refers to whether the non-citizen has re-offended since being formally warned or otherwise made aware in writing about the consequences of further offending on his or her migration status. There is no evidence before the Tribunal that YGJL had received a previous warning from the Minister’s Department.

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)

59. The next part of this primary consideration requires the Tribunal to consider the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. The Tribunal must consider the nature of the harm to individuals or to the Australian community should the Applicant re-offend or engage in other serious conduct, and any information and evidence on the risk of re-offending.
60. The Respondent submitted that the Minister contended that YGJL presents a moderate to high risk of re-offending. There is no psychiatric or psychological report before the Tribunal expressing a professional opinion about the Applicant’s likelihood of re-offending. There is reference to a psychiatrist (Dr Zimmerman) being approached about a report and advising the Applicant’s lawyers of her fees, but no report from that psychiatrist was provided. There is also reference to earlier psychological reports provided to YGJL’s defence lawyer, but they were not furnished to the Tribunal.
61. The Applicant himself submits that a number of factors are now present in his life which militate against him returning to offending. The first, he says, is the fact that he has not taken illicit drugs since being incarcerated at the end of 2020. The second is the birth of his daughter XE in May 2021 and his expressed desire to be a good father figure for her. The third is the fact that Ms TM, his former partner, has five children from her previous relationship that he has come to know and to whom he wants to present as a good role model. The fourth is the ‘wake up call’ he said he received from his most recent prison sentence, noting he has only been in prison on two occasions.
62. YGJL, in his direct submissions to the Tribunal, said he knew that his actions were serious (in regard to the driving offences) and that it was “lucky that I haven’t injured or killed someone”. He said he had “plenty of time to reflect” while in prison and then immigration detention. He said he had a plan to work and continue the rehabilitation that he had commenced in prison. He said he wants to engage with a psychologist for further counselling, to add to the IHMS counsellor he has consulted while in detention.
63. YGJL also pointed to a number of courses he has undertaken in prison. The Tribunal notes that in the papers before it was a letter from Caraniche Drug and Alcohol Services in April 2021 recording that the Applicant had completed a 24-hour Semi-Intensive Drug and Alcohol Program in March 2021 (GD, p 245). There was also a note dated April 2022 from Caraniche recording that he was attending regular treatment while in Middleton Prison with a therapist (GD, p 247). He has undertaken a positive parenting programme in September 2021 (GD, pp 249-250) and five courses conducted by Relationships Australia in February 2022 (GD, pp 251-255). YGJL also received certificates from Bendigo TAFE, recording that he has achieved competency in career planning, participating in workplace safety arrangements, hygienic practices for food safety, traffic control and working safely in the construction industry (GD, pp 256-260). He has also undertaken an Anglicare course titled ‘Tuning into respectful relationships’ in May 2022 (GD, p 261).
64. The Tribunal is satisfied that YGJL has spent his time in prison productively and that he has achieved some self-awareness of the drivers of his offending. It is to his credit that, accepting he has been in controlled environments in prison and a detention centre, he has not reverted to ‘ice’ use. However, the Applicant himself told the Tribunal that he was not affected by methylamphetamine at the time of the series of serious road offences, which led to the most significant penalties he received at the Victorian Magistrates’ Court. The Tribunal also notes that the evidence points towards YGJL generally being employed on dairy farms in his adult life, with only short periods not working. That illustrates that stable employment was not a protective factor in his offending.
65. In the absence of any professional opinion, the most reliable evidence for the Tribunal to look to in attempting to gauge risk of re-offending is the non-citizen’s conduct in the past. YGJL has unfortunately been relatively non-compliant with orders of the Court such as CCOs and bail, and in particular has blithely continued to drive while knowing his licence had been disqualified. He gave evidence to the Tribunal that a police officer had come to his work and told him that the officer knew he was unlicensed and that his car was not registered but that he would “leave me be”. The Tribunal does not accept that evidence.
66. The Tribunal concludes, based on YGJL’s history of a long series of offences, sometimes when drug-affected but sometimes not, and his allied history of non-compliance with Court orders, bail conditions and licence disqualification, that there is at least a moderate risk of him re-offending in the community. The Tribunal does not accept the Respondent’s contentions that the risk is ‘moderate to high’, because there are some signs YGJL has really tried to grapple with his behaviour and knows what support he needs to seek out to help him.
67. However, given the risk to the community if YGJL continued to drive a motor vehicle in the way he has would create real and inherent harm to other road users, a moderate risk in all the circumstances is not a tolerable risk. This primary consideration weighs heavily against revocation of the visa.

Family violence committed by the non-citizen (paragraph 8.2)

68. Paragraph 8.2 states:

(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen...

(2) This consideration is relevant in circumstances where:

(a) A non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

(b) There is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

69. The Direction requires the Tribunal to consider the frequency of the conduct, and whether there is any trend of increasing seriousness; the cumulative effect of repeated acts of family violence; rehabilitation achieved at the time of the decision since the person’s last known act of family violence, including:
    • The extent to which the person accepts responsibility for their family violence related conduct;
    • The extent to which the non-citizen understands the impact of their behaviour on the abused and witnesses of that abuse, particularly children; and
    • Efforts to address factors which contributed to their conduct (paragraph 8.2(3)(c)(iii)).
70. The Direction also requires, at paragraph 8.2(3)(d), consideration of whether the person has continued to offend since being formally warned or otherwise made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence; noting that the absence of a warning should not be considered to be in the person’s favour. This includes warnings about the effect on the non-citizen’s migration status, should they engage in further acts of family violence. There was no evidence before the Tribunal of formal warnings of this nature to YGJL.
71. Before the Tribunal was a New South Wales Police fact sheet dated February 2015 (GD, p 95) relating to YGJL being charged with the offences of Stalk/intimidate intend fear physical etc harm (domestic) and Stalk/intimidate intend fear physical etc harm (personal). At the time, the sheet states YGJL had been living together in a domestic relationship with the victim for about six months (GD, p 96).
72. The police fact sheet set out the following. An argument developed between the Applicant and the victim over the fact that the victim had been given a mobile phone, so he had a means of contacting people in an emergency. A heated argument developed, and YGJL told the victim he could not have the phone. The victim went to his parent’s house, nearby. The victim rang a female friend who said she would come and pick him up. Meantime, YGJL posted messages on social media threatening self-harm if the victim did not return home. Eventually, the victim agreed that YGJL could come and pick him up. They then returned to their residence. The female friend then rang to say she was concerned for the victim’s safety. The Applicant reportedly ‘flew into a rage’ and threatened to assault his partner if he did not come inside the residence. The victim then ran off, telling police he was afraid for his life, and then saw the Applicant driving towards him. By this time, the female friend had arrived, with her two young children in the car. One of the children was aged eight, and the fact sheet stated she dialled ‘000’ for help. YGJL ran up to the car and tried to open the door. As she drove away, he continued to attempt to open the door. The fact sheet records that no person was injured during the incident, but both parties (by which it is presumed to mean the partner and the female friend) remained fearful for their ongoing safety.
73. The ACIC Report records that YGJL was convicted of these two offences and fined $1,000 in each case (GD, p 36).
74. Before the Tribunal was another New South Wales Police fact sheet (GD, p 92) relating to YGJL being arrested in February 2016 and charged with the offence of Contravene prohibition in AVO (Domestic). The fact sheet states that the Applicant was at the time in an intimate relationship with the victim for “the past 3 years” and they had been residing together. There was an enforceable Apprehended Violence Order (‘AVO’) against YGJL since April 2015, protecting the victim. A condition was that YGJL not come within 50 metres of the victim’s residence or work or interfere with any person with whom the victim has a domestic relationship.
75. On a day in February 2016, YGJL and the victim were in a vehicle in a car park at Bega. An argument developed. The Applicant was said to have bruised the victim’s arm as he tried to get out of the car. The victim then got out of the car and ran off. YGJL followed the victim down the street. It was alleged that the Applicant threw a bottle of alcohol at the victim, just missing his head. The victim hid. The victim rang his mother to come and pick him up. She did and corroborated his version of events and injuries to police. The victim then reported the matter to the police. YGJL was arrested and charged with breaching the AVO by assaulting the victim. The nationally coordinated criminal history check records that YGJL was convicted of the offence of contravening the AVO (Domestic) but not of assault. He was fined $1,000 and placed on a two-year good behaviour bond.
76. In his oral evidence to the Tribunal, YGJL denied throwing a bottle at the head of his then partner. He said he was told by his lawyer that he might as well plead guilty and that it was “my first time in the Court system”, so he did.
77. The Tribunal observes that it is untrue that it was YGJL’s first time before a Court. It was, in fact, his fifth time since 2011. The Applicant is entitled to contest that he lobbed a bottle at the victim because it is not apparent that was accepted by the Court, but the Tribunal cannot look behind the fact that he was convicted of contravening the AVO (Domestic).
78. The Tribunal is satisfied that two of these offences come within the purview of this consideration: the Stalking (domestic) offence and the offence for contravening an AVO (Domestic). YGJL disputed some of the facts set down in the New South Wales Police fact sheets, while not disputing that he had been found guilty of the offences. Ms Hargrave rightly submitted that these fact sheets do not have the status of Court documents and that, where there is no evidence of what was accepted by the Court, it was open to the Applicant to dispute some of the assertions in them.
79. The Direction explicitly sets out, in paragraph 4(1), examples of behaviour that may constitute family violence. They include stalking and preventing the family member from making or keeping connections with his or her family, friends, or culture. On the basis of the convictions, the Tribunal is satisfied that some of the conduct found in the elements of these offences fulfils the definition of ‘family violence’, noting that the victim at the time was not disputed to have been YGJL’s domestic partner, with whom he lived.
80. The Tribunal is satisfied to find that YGJL has been convicted of two offences relating to an intimate domestic partner, including one in which the partner sustained a bruised arm. The Applicant submitted that the offences were in 2016, and there has not been any subsequent offending of that nature. The Tribunal accepts that submission, and notes that there does not seem to be a sustained pattern of that sort of conduct. Nonetheless, at least in one instance, it did tend to illustrate controlling and somewhat aggressive behaviour towards a domestic partner.
81. However, having regard to paragraph 8.2(3)(a) of the Direction, there has not been frequent conduct of this type, nor a trend of increasing seriousness. Because of the relatively historical nature of this offending and no repeat offending of this type in the last six or so years, while this primary consideration weighs against revoking the mandatory cancellation of the visa, the weight is not heavy. There has not been a pattern of this sort of offending in YGJL’s criminal history.

Best interests of minor children in Australia affected by the decision (paragraph 8.3)

82. The Direction requires decision-makers to make a determination as to whether non-revocation is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 at the time of the decision. Where there are more than two relevant children, the best interests of each should be given individual consideration to the extent that their best interests may differ.
83. The Tribunal must take into account various factors set out in paragraph 8.3(4) of the Direction, where relevant. These include whether the Applicant has a parental relationship with the children, the extent to which he is likely to play a positive role, the impact of prior conduct on the child or children; the likely effect separation would have on the children; whether there is another person or persons who fulfil a parental role. In addition, any known views of the child or children should be taken into account.
84. The Tribunal is satisfied to determine that six children are in the category that mandates consideration of their best interests in this part of the Direction. These six may be further divided into two categories. The first category consists of YGJL’s biological daughter, XE, born in 2021 with Ms TM. The second category consists of Ms TM’s five children with her former partner. They are WH, who was born in October 2010 and is now aged 12; KH, who was born in February 2012 and is now aged 10; MH, who was born in December 2013 and is now aged eight; LH, who was born in November 2016 and is now aged six; and AH who was born in June 2018 and is now aged four.

The Applicant’s Child XE

85. XE was born in May 2021. Ms TM confirmed the Applicant’s evidence that he had seen his daughter on one occasion when she took her to visit YGJL in prison when XE was aged around 15 months. Ms TM confirmed in her evidence that she and the Applicant were no longer together but told the Tribunal, “There is a chance we can work things out.”
86. Ms TM said she was not aware of YGJL taking drugs when he was in her company or at the time she knew him, but said she later became aware because she was told by YGJL’s then lawyer. Ms Hargrave asked Ms TM whether, if YGJL stayed in Australia, he would be able to see XE regularly. Ms TM responded: “As much as he wanted. He’s missed out on a lot – every day if he wants.”
87. The Direction requires the Tribunal to consider the nature and duration of the relationship between the Applicant and the child. I am satisfied that the relationship is parental, although there have been long periods of absence because of YGJL’s incarceration. I accept that the Applicant has met XE on one occasion (around August 2022) and has also interacted with her during telephone calls and on ‘Facetime’ calls. I also accept that it is his intention, shared by Ms TM, that he should have a much more prominent role in XE’s life.
88. If YGJL’s visa is restored, he plans to resume working in the dairy industry. He said he would like to find a place big enough for Ms TM and the six children to live in. He has hopes of rekindling their relationship. When Ms Hargrave asked Ms TM whether she would move to a dairy area, she said, “Yes, I think I would. I like the country...I have applied [through] some real estate but have not been accepted. My Dad lives in the country, and I would have his support”. When asked about her relationship with YGJL, Ms TM said: “We are actually no longer together. There is a chance we can work things out.”
89. The Tribunal considers that any prospect of Ms TM and YGJL resuming a relationship to the extent that she would move to where he is working in rural Victoria is undeveloped, at best. That is not to say Ms TM is not open to the idea, but it is clear that no plans – firm or otherwise – have been made.
90. The Tribunal is satisfied to make a determination that it would be in the best interests of XE for the mandatory cancellation of the visa to be revoked. Although the Applicant has not played a major role in XE’s life to date, that is more a function of when Ms TM found she was pregnant and when he entered custody. Ms TM and the Applicant both say that their romantic relationship has ended, but equally both gave evidence that they wished for XE to know and have frequent contact with her father. The Respondent submits that YGJL could maintain contact with XE from New Zealand in the same manner as he currently does. While that is true, it is no substitute for in-person contact between a parent and his child.

The other relevant minor children

91. As mentioned, Ms TM has five young children from her former relationship. YGJL gave evidence that he met Ms TM in 2020, and they commenced a romantic relationship. He moved in with Ms TM in August 2020, and they separated the following month. Ms TM, in her evidence, confirmed that YGJL lived together with her and her five children for a month. After he returned to living in country Victoria, she said he would visit occasionally and sometimes stay over a weekend. Ms TM said that YGJL was “a father figure for them, and still is”.
92. Ms TM said she still lived in her residence in suburban Melbourne but was looking for a larger house because of the number of children. As mentioned above, she said she was open to the idea of moving to the country. When asked whether she would be prepared to travel to New Zealand to see YGJL if he was repatriated, Ms TM said that she would be but did not know whether their father would consent to them being issued with passports to travel. Ms TM said while she would be prepared to visit New Zealand, it would not be regular because of the expense.
93. Ms TM confirmed that she or the children had never experienced any family violence or feelings of harm from the Applicant during his time living with them or in other interactions.
94. The Tribunal notes that Ms TM provides the main parental role in relation to her five older children. Their father lives nearby and he has certain Court-regulated access to the children. The Tribunal accepts that the children developed an affectionate relationship with YGJL, which by his statements, he readily reciprocates. However, the facts display that he only lived with the children for a period of four weeks, and while he has maintained regular electronic contact since then and visited for a period when he was able to drive down to Melbourne, there have been long periods of no contact.
95. The Tribunal accepts that Ms TM’s former partner, the father of her five older children, would have to authorise them receiving passports as minors if she wanted to travel to New Zealand. Whether he would, or not, is a possible obstacle to them travelling to visit YGJL if he was deported. There was no evidence proffered that Ms TM’s former partner would agree to such travel by his children, or that he would not.
96. The Tribunal is satisfied to make a determination that it would be mildly in the best interests of these five children of Ms TM for the Applicant’s visa to be restored. The Tribunal does not find that their relationship with YGJL is not genuine, but it has not been a relationship of long-standing, and his presence in their young lives was relatively fleeting.
97. Overall, the Tribunal is satisfied that this primary consideration weighs relatively strongly in favour of revoking the mandatory cancellation of the visa, mainly because of the interests of YGJL’s daughter, XE.

Expectations of the Australian community (paragraph 8.4)

98. Paragraphs 8.4(1) and (2) of the Direction state:

(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.

(3) ...

99. The Direction highlights specific categories of identified offences: 8.4(2)(a) – acts of family violence; 8.4(2)(c) – commission of serious crimes against, inter alia, women; 8.4(2)(d) – commission of crimes against government representatives due to the positions they hold, or in the performance of their duties. There are historical offences of family violence, which the Tribunal finds were limited to a point in time and a particular volatile relationship YGJL had at the time. There are crimes where women have been victims, more in a reckless than a targeted sense, from YGJL’s conduct. There is one offence relating to resisting or hindering a police officer. YGJL in his own submissions at the hearing acknowledged that, in respect of the various police pursuits, he had by his actions placed Victoria police officers at risk.
100. The Australian community’s expectation is taken to be a ‘norm’. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’ (see The Concise Oxford Dictionary of Current English, First Edition). The Direction has had earlier iterations and an older version contained generally similar wording to paragraph 8.4. and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’).
101. The Court held that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. The expectations articulated in the Direction are ‘deemed’; they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may seek to derive by some other evaluative or balancing process.
102. Direction No. 90 was issued after FYBR and imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant (a position accepted by the parties in this matter), the relative weight will be affected by circumstances in the individual case.
103. YGJL’s offending has ranged across a number of areas, including property theft, assault, domestic violence offending (albeit relatively historical) and a high number of road traffic offences, some of them egregious. The two instances where he deliberately rammed other road users are particularly notorious, especially the one involving the four occupants of the small Holden Spark, which he rammed and forced off the road for no apparent reason other than, as he suggested at the hearing, he thought they had ‘deliberately slowed down’. There could have been a much more tragic outcome to that incident, as the Applicant himself ruefully acknowledged.
104. The Tribunal finds that the expectation of the community would be that his visa be revoked. This consideration weighs against revoking the mandatory cancellation of the visa, and somewhat heavily so.

OTHER CONSIDERATIONS

105. Paragraph 9 of the Direction requires the Tribunal to take into account the following matters, where they are relevant, noting this is a non-exhaustive list:

(a) International non-refoulement obligations;

(b) Extent of impediments if removed;

(c) Impact on victims;

(d) Links to the Australian community, including;

(i) the strength nature and duration of ties to Australia; and

(ii) impact on Australian business interests.

International non-refoulement obligations (paragraph 9.1)

106. International non-refoulement obligations relate to a case where a person in prospect of being returned to a country where they may be at risk of a specific type of harm. YGJL would be returnable to New Zealand, the country of his citizenship. He has raised a number of barriers he sees in relation to the prospect of being returned, but they are relevantly dealt with later in these reasons, under the consideration relating to the extent of impediments if returned. They are not of the nature that invokes Australia’s international treaty obligations.
107. The Tribunal finds that this consideration is not engaged and weighs neutrally.

Extent of impediments if removed (paragraph 9.2)

108. The Tribunal must consider the extent of impediments YGJL may face if removed from Australia to New Zealand in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of the country. The Tribunal must consider the Applicant’s age and health, any substantial language or cultural barriers, and the social, medical, or economic support available to him if repatriated.
109. YGJL told the Tribunal that each morning he takes Duloxetine, an oral tablet used to treat anxiety and depression. He told the Tribunal he now has a better appreciation of his mental health and that he has a history of attention deficit disorder (‘ADD’) and acknowledged that he needs to address his anger management. The Applicant’s mother, Mrs SW, provided an April 2021 statement to the Magistrates’ Court. Mrs SW wrote (GD, p 273):

     [YGJL] was diagnosed with ADD and prescribed Ritalin once he started school in 1997....Throughout [YGJL’s] school life it was a constant struggle with visits to the principal’s office, phone calls around his inappropriate behaviour, him being behind with his learning, his disruptiveness in class, his anger and so on.

110. Mrs SW went on to say that she and her then husband bought a dairy farm, which YGJL loved and where he flourished, showing a particular affinity in dealing with animals.
111. YGJL’s more recent engagement with counselling, in particular, to squarely face his illicit drug use, shows positive signs that he appreciates the damage that the using of ‘ice’ caused in affecting his behaviour and wants to avoid future instances. YGJL told the Tribunal in response to direct questions that, apart from the daily medication he takes referred to above, he has no other health problems and is otherwise physically fit.
112. As a citizen of New Zealand, YGJL would be entitled to avail himself of the social welfare benefits of that country. He said that, if he was repatriated, he expected he would seek work in the dairy farming industry. Notwithstanding his criminal record, the Tribunal reiterates that he has a good record of work in dairies and general farm work, as corroborated by various past employers who have given statements, and by the oral evidence at the hearing of Mr IN.
113. The Tribunal can identify no substantial language or cultural barriers that YGJL would face. His mother lives in New Zealand, and he said he would make contact with her. Although his younger sister also lives there (and has provided an earlier statement of support), YGJL said he did not have regular contact with her.
114. YGJL made statements that he was sexually assaulted as a child by a former partner of his mother, and that his younger sister was as well. This is somewhat at odds with what Mrs SW wrote in her April 2021 statement (GD, p 275), where she relevantly said:

     Fast track to February 2008. My partner and I went our separate ways due to allegations from [YGJL’s] little sister that my partner had been inappropriately touching her which truly devastated [YGJL] and was really tough on all of us.

115. His younger sister provided a statement (GD, p 267). In the statement, when generally referring to how YGJL had supported her and her mother during a tough financial period, his younger sister wrote that: “Mum’s then partner was kicked out due to sexually abusing me...”
116. The Tribunal considers that it would be likely that Mrs SW would have referred to allegations about her former partner interacting inappropriately with the Applicant as well, and that his younger sister would have referred to that, too. That is not to say that YGJL is not being truthful about this. Sometimes such memories are suppressed. YGJL suggested that the first time he told anyone about it was when he was in a conversation with a psychiatrist, Dr Zimmerman in June 2021 (paragraph 6 of Exhibit A1). However, there is no corroboration from his mother or sister in their statements. The Applicant also suggests that his mother is planning to move back to Australia, if his visa is restored. There is no apparent evidence to confirm or refute this. Mrs SW does not mention any such plans in her written statement.
117. Ara Poutama Aotearoa – the Department of Corrections in New Zealand, has published a document called ‘FAQs for Returning Offenders’ dated January 2019. Some of the contents refer to offenders who still have obligations before their sentence is regarded as concluded, such as parole. The Tribunal does not understand YGJL to have any such obligations. However, one part of the document is relevant to the Applicant:

     What if I have no money?

     Work and Income in New Zealand is like Centrelink in Australia. They will talk to you about finding employment and can provide income support. They’ll sort out some immediate things to support you in the first few days and they’ll continue to work with you to support your relocation to New Zealand.

118. The Tribunal is generally aware that the New Zealand health system has a pharmaceutical benefits scheme broadly similar to that which operates in Australia. The Applicant would be able to make inquiries with the relevant agency about dispensing arrangements for the anxiety and depression medication he is currently taking.
119. The Tribunal finds that this consideration weighs very slightly in favour of restoring the Applicant’s visa, because he has spent just over half his life, and all his adult life, in Australia, and there would be some obvious difficulties in adjusting, but he does have immediate family support in that country and, as is apparent from the New Zealand Government website, access to income support until he can obtain gainful employment.

Impact on victims (paragraph 9.3)

120. This part of the Direction requires the Tribunal to consider the impact of the decision on victims and family members of victims. The Tribunal takes this to mean, first, that the victim must be aware of the immigration action taken against the Applicant and, secondly, must have expressed some view. There was no evidence before the Tribunal that this was the case.
121. The Tribunal, therefore, finds that this consideration weighs neutrally in this assessment.

Links to the Australian community (paragraph 9.4)

Sub-consideration: The strength, nature, and duration of ties to Australia (paragraph 9.4.1)

122. The Tribunal must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have the right to remain in Australia indefinitely.
123. The Tribunal must have regard to how long the Applicant has resided in Australia and his contribution to the Australian community. YGJL first arrived in Australia in July 2006 with his mother and sister. He returned to New Zealand for a little over two weeks in 2008 but has otherwise continually resided in this country (GD, pp 457-458).
124. The Applicant’s father and older sister live in Queensland, as does his aunt, who provided a statement of support (Exhibit A8). YGJL’s mother, Mrs SW, confirms in her statement that her understanding is that the Applicant’s father is now an Australian citizen (GD, p 276). YGJL has a circle of friends here, two of whom Mr GB and Mr IN gave evidence in his support and others, such as Ms NE, have provided written statements of support.
125. Mr IN provided a statutory declaration and gave oral evidence. He said he was generally aware of YGJL’s driving offences, but not the specifics. He said he was not aware of the Applicant’s drug taking but thought he “used to consume before I got to know him.”
126. Mr IN agreed that YGJL took money from him without his permission in 2017. He said that YGJL took $300 out of his bank account in relation to a dispute over rent. He said that YGJL later paid it back. Mr IN was asked why he did not mention this in his statutory declaration. He said that was because it had been ‘sorted’ and he did not think it affected his view of the Applicant’s work ethic. He told the Tribunal “I didn’t know who had taken the money out of my account when I went to police. Other than that, he hasn’t done anything wrong by me.”
127. The Tribunal has examined summonsed material in relation to the statement Mr IN made when he first went to the police about the apparent theft from his bank account. It is clear to the Tribunal that Mr IN knew it was YGJL who had illegally transferred money out of his account, because that is what he told the constable when he attended the police station. So, the Tribunal considers that, while the matter may have been ‘sorted’ from Mr IN’s point of view, he was also being at least disingenuous in his evidence. It is not to YGJL’s credit that he stole from his friend, but it is to Mr IN’s credit that he nonetheless gave evidence in support of the Applicant.
128. YGJL told the Tribunal that his father, who lives in Queensland, has had heart by-pass surgery, and had stints inserted as a result. Mrs SW in her statement (GD, p 276) confirms the Applicant’s father had had a quadruple heart by-pass. YGJL said the aftermath of this surgery has affected his father’s ability to work, although he is still employed, managing a trucking operation. YGJL said that if his father’s health declined, and he was in New Zealand without the ability to visit Australia, that would be particularly emotional for him.
129. The Tribunal accepts, on the evidence of YGJL and Mrs SW, that the Applicant’s father has a continuing health condition that may affect his ability to fly to New Zealand. The Tribunal further accepts that a person who is deported under s 501 of the Act is very unlikely to be issued with any class of visa to re-enter Australia. Should the Applicant’s father’s health deteriorate, there would be barriers to him, if out of Australia, returning. As YGJL has his father, aunt and one sister here, and some other family members, this leads to a finding that this sub-consideration weighs slightly in favour of revoking the mandatory cancellation of the visa.

Sub-consideration: Impact on Australian business interests (paragraph 9.4.2)

130. The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under s 501CA would significantly compromise the delivery of a major project or important service in Australia.
131. The Tribunal is mindful of the recent Federal Court decision in Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311, where Rangiah J, at [68] reminded decision-makers that any impact on Australia’s business interests must be considered, not just business interests of a particular scale or importance.
132. YGJL has a relatively regular work history. He said he commenced an automotive apprenticeship on leaving school when residing with his father in Queensland but did not complete that. He has also worked in warehousing and the dairy industry. He states that he has an affinity for working with animals and has worked full-time on dairy farms in Australia for most of his adult working life. The Tribunal is satisfied that he therefore has made some contribution to the national good. I conclude, based on what some of his former employers have said, that YGJL has been a good dairy farm worker. It is a particular sector of agriculture with long and unrelenting hours, which does not suit everyone, and there would be some impact on Australia if YGJL was deported because he would not be able to continue to work in that important industry.
133. However, the second clause of paragraph 9.4.2(3) of the Direction leads me to conclude, on the evidence before the Tribunal, that this sub-consideration does not attract any significant weight. I do not consider the decision before the Tribunal would significantly compromise the delivery of a major project or service in Australia. This sub-consideration therefore weighs neutrally.
134. However, combining the two sub-considerations, this consideration overall weighs slightly in favour of revoking the mandatory cancellation of the Applicant’s visa, because of the number of family members and friends YGJL has in this country, and the links he has forged here, having spent around half of his life and all his adult life in Australia.

SUMMATION

135. In terms of the considerations the Tribunal is required to address in the Direction, the Tribunal has found that the primary consideration relating to the protection of the Australian community weighs heavily against revoking the mandatory cancellation. The primary consideration relating to family violence committed by the Applicant weighs somewhat against the Applicant. The primary consideration relating to the best interests of affected minor children in Australia weighs in favour of the Applicant, but not as strongly as it would if he had a day-to-day parental role in the care of his minor child. The primary consideration relating to the expectations of the Australian community weighs somewhat heavily against revoking the visa cancellation.
136. In relation to the other considerations set out in the Direction, Australia’s international non-refoulement obligations are not engaged; nor is the consideration relating to the impact on victims. The consideration relating to the extent of impediments if removed weighs somewhat in favour of YGJL. The consideration relating to links to the Australian community weighs relatively heavily in favour of revocation.
137. Paragraph 7(2) of the Direction states that primary considerations should generally be given greater weight than the other considerations. Considering all the relevant considerations individually and together, the weight of the calculus falls against the Applicant. As a result, the Tribunal finds that the discretion available in s 501CA(4)(b)(ii) of the Act is not enlivened. That means that the reviewable decision was correct.

DECISION

138. Pursuant to s 43(1)(a) of the AAT Act, the Tribunal affirms the decision under review.

I certify that the preceding 138 (one hundred and thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

........................[SGD]................................................

Associate

Dated: 21 November 2022

Dates of hearing:	8 and 9 November 2022
Applicant:	YGJL (self-represented)
Advocate for the Respondent:	Ms Lauren Hargrave
Solicitors for the Respondent:	Clayton Utz

Annexe – Schedule of Exhibits

R1 Volume of ‘GD’ documents lodged on 13 September 2022

R2 Summary charge sheet dated 5 April 2013

R3 Charge and summons sheet dated 26 April 2018

A1 Statement of the Applicant dated 28 April 2022

A2 Statement of the Applicant dated 21 June 2022

A3 Statement of the Applicant dated 7 October 2022

A4 Statement of the Applicant dated 3 November 2022

A5 Statement of Mr GB dated 18 October 2022

A6 Statutory declaration of Mr IN dated 29 July 2022

A7 Statement of Ms TM dated 29 October 2022

A8 Statement of Ms KM dated 27 June 2022

A9 Statement of Ms NE dated 14 October 2022

---

^[1] The Tribunal, of its own motion, issued an order under s 35(3) of the AAT Act to assign a randomly generated anonym to the Applicant because he made historical allegations of sexual assault, so that the anonym rather than his name will appear in the decision published generally.