Allen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Allen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1777 (15 June 2020)
Division:GENERAL DIVISION
File Number: 2020/1869
Re:Joshua Allen
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:15 June 2020
Place:Perth

The Reviewable Decision dated 23 March 2020 is affirmed.
......................[sgd]..................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – convictions include grievous bodily harm, assault occasioning bodily harm and aggravated burglary with intent – illicit drug use linked to offending – Applicant is a 29-year-old man who arrived in Australia as a 1-year-old child – Reviewable Decision affirmed
PRACTICE AND PROCEDURE – whether representations made in accordance with invitation – whether discretion under s 501CA(4) of the Migration Act 1958 (Cth) to revoke cancellation decision enlivened – role of Tribunal to conduct merits review and not to examine flaws made by the delegate in the Reviewable Decision – Tribunal’s role is not to review decisions according to the principles applicable to judicial review – facts of offending put forward by Applicant inconsistent with facts the conviction and sentence were based on – written statements omitted details of relevant minor children – two-day rule – leading questions – weight to be given to expert report when expert not provided with all relevant documents concerning the Applicant’s offending
DIRECTION NO 79 – primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – parole – completion of rehabilitation programs – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – extent of impediments if returned to New Zealand – impact of COVID-19 pandemic – Applicant likely to be detained for uncertain period if decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 33(1)(c), 33(1AB)
Migration Act 1958 (Cth) – ss 198, 499, 499(1), 499(2A), 500(6B), 500 (6H), 500(6L), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(ii), 501G(1)
Migration Regulations 1994 (Cth) – reg 2.55(8)
CASES
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
CFVG and Minister for Immigration and Border Protection [2017] AATA 1395
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1
DKXY v Minister for Home Affairs [2019] FCA 495
Downes v Minister for Home Affairs [2020] FCA 54
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Faulkner and Comcare (2007) 45 AAR 467
FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294
FYBR v Minister for Home Affairs (2019) 374 ALR 601
FYBR v Minister for Home Affairs [2019] FCA 500
Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482
JFSQ and Minister for Home Affairs [2019] AATA 616
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
Peterson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1256
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Subasinghe and Minister for Home Affairs [2019] AATA 751
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
WSYT and Minister for Home Affairs [2019] AATA 4621
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Communicable Diseases Network Australia (CDNA), Guidelines for the Prevention, Control and Public Health Management of COVID‐19 Outbreaks in Correctional and Detention Facilities in Australia, version 3.1, last updated 4 June 2020
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s 501 And Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
‘The World Factbook: Australia’, Central Intelligence Agency (Web Page, 2 June 2020)
‘The World Factbook: New Zealand’, Central Intelligence Agency (Web Page, 2 June 2020) Ministry of Health (NZ) (Web Page, 3 September 2019) FOR DECISION
Senior Member Dr M Evans-Bonner
15 June 2020
BACKGROUND

The Applicant is a 29-year-old man who is a citizen of New Zealand.
He first arrived in Australia on 9 December 1991 as an infant when he was approximately 17 months of age. The Applicant’s movement records also show that he returned to New Zealand as a child when he was approximately three years old for 44 days, and when he was approximately eight years old for 12 days (G60/444). The Applicant has not visited New Zealand as an adult.
The Applicant appeared in the Children’s Court when he was approximately 13 years of age on 19 August 2003 for the offence of [omitted for publication] for which he received no punishment (SG3/595). He has one other juvenile offence for [omitted for publication], committed on 9 February 2008, when he was 17 years of age (SG3/595).
The Applicant’s first offence as an adult was “reckless driving” on 8 March 2009 when he was 18 years of age (SG3/594). His first criminal offence of “aggravated assault occasioning bodily harm” was committed on 28 March 2009 (SG3/593).
To date, the Applicant’s adult convictions comprise a total of 73 criminal offences, and 16 driving offences, with these offences being committed over a period of approximately five years and six months (SG3/583-594; see also G6/283-286).
On 2 October 2018 the Applicant’s Class TY Subclass 444 Special Category (temporary) visa (Visa) was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) (G61/445) (Cancellation Decision). The basis of the cancellation was that the Applicant did not pass the character test due to having a substantial criminal record as he had been sentenced to a term of imprisonment of 12 months or more, and because he was serving a full-time sentence of imprisonment. The letter advising the Applicant that his Visa had been cancelled also advised the Applicant that he could make representations to seek revocation of the Cancellation Decision.
The Applicant requested revocation of the Cancellation Decision (G9/299-305) and made further representations in a personal circumstances form (G10/306-342). He subsequently submitted supporting documentation including numerous letters of support (G12-G46).
His Migration Agent at that time (First Migration Agent) also sent a letter dated
24 September 2019 (G47/393-398) containing submissions in support of revocation of the Cancellation Decision, and attaching a copy of the decision of the Western Australian Prisoners’ Review Board (PRB) dated 24 September 2019 to grant the Applicant release on parole from 29 October 2019 (G48/399).
However, after considering these representations (G2/261), on 23 March 2020 a delegate of the Respondent decided, under s 501CA(4) of the Migration Act, not to revoke the Cancellation Decision (G4/270). This is the Reviewable Decision that is currently before the Administrative Appeals Tribunal (the Tribunal).
In his submissions, the Applicant’s representative alleged that the First Migration Agent was not a registered migration agent at the time she acted for him (Exhibit 1/4). Part of a series of screen shots of undated text messages between the Applicant’s mother and the First Migration Agent were submitted to the Tribunal. In these text messages, the Applicant’s mother stated, “Your [sic] not even registered” and “You lied”. The response that immediately followed was “Yes I am registered. You might wnat [sic] to check those facts” (Exhibit 1/190).
The Respondent filed an extract from the Australian Government Office of the Migration Agents Registration Authority, which indicates that the First Migration Agent was a registered migration agent at the date of the search being 27 May 2020 (Exhibit 1/223). Although this search is applicable at the date of the search, there is no evidence before the Tribunal that the First Migration Agent was not registered when she made submissions on the Applicant’s behalf in support of revocation of the Cancellation Decision.
Further, as outlined above, the Applicant was invited to make representations (under
s 501CA(3)(b) of the Migration Act), and he did so (see paragraph [7] above). The First Migration Agent also made representations on his behalf (see paragraph [8] above). Then after considering these representations, a delegate of the Respondent decided, under
s 501CA(4) of the Migration Act, not to revoke the Cancellation Decision (see paragraph [9] above). Thus, the Tribunal finds that the Respondent’s discretion to consider whether or not to revoke the Cancellation Decision under s 501CA(4) of the Migration Act was enlivened.
The Applicant was notified of the Reviewable Decision in a letter sent by email and dated

23 March 2020 (G2/261). He is therefore taken to have received the decision by the end of the day on 23 March 2020 (reg 2.55(8), Migration Regulations 1994 (Cth)).
On 29 March 2020, the Applicant’s representative (a migration agent) lodged an application in the General Division of the Tribunal seeking a review of the Reviewable Decision (G1/257-260). Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the Applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the 84-day period started running on 23 March 2020, meaning that the Tribunal must deliver a decision with respect to this application by no later than 15 June 2020.
ISSUES
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 Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act), having regard to the primary and other considerations in Direction no. 79 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction No 79).
MATERIAL BEFORE THE TRIBUNAL
The hearing of this application took place on 2 June 2020.
Following a Directive from the President of the Tribunal, His Honour Justice Thomas,

the Tribunal temporarily ceased conducting in person hearings from 23 March 2020 as a protective measure due to the COVID-19 pandemic. Consequently, the Applicant appeared by video conference from Yongah Hill Immigration Detention Centre. His representative

Mr Doumanis, a Migration Agent, and Mr Papalia, representing the Respondent, also appeared by video conference. Mr Doumanis was in Indonesia and in the afternoon the Tribunal lost visual connection with him but was able to maintain an audio connection. The Tribunal thanks the parties for their willingness to appear by video conference, and for their cooperation in this regard.
The Applicant gave oral evidence and was cross-examined. He called his fiancée as a witness, as well as his mother. Both gave evidence by telephone. The Applicant also called Dr Phil Watts (Dr Watts), Adjunct Associate Professor in Clinical Psychology; endorsed in Forensic Psychology to give evidence about his independent psychological assessment of the Applicant. Dr Watts also gave evidence by telephone.
The Tribunal admitted the following into evidence at the hearing:
(a)A Hearing Bundle comprising 760 pages (Exhibit 1). Exhibit 1 contains all the documents filed by the Applicant and the Respondent including but not limited to:
(i)Statement of Facts, Issues and Contentions (SFIC) of the Applicant, as well as a Supplementary SFIC of the Applicant;
(ii)SFIC of the Respondent;
(iii)written submissions from the Applicant;
(iv)statements from the Applicant’s mother and fiancée;
(v)
a report of Dr Phil Watts, dated 25 April 2020 and the curriculum vitae of

Dr Watts;
(vi)documentation relating to two incidents in immigration detention. The first is a complaint alleging that a guard accessed the personal information of the Applicant’s fiancée from visitor records in approximately early February 2020 and contacted her via text message and Facebook. The second concerns an allegation that emergency response team officers used excessive force against the Applicant on 5 May 2020;
(vii)the s 501 documents (G-documents); and
(viii)the supplementary relevant documents.
(b)Four files of closed-circuit television (CCTV) footage taken at Yongah Hill Immigration Detention Centre on 5 May 2020 (Exhibit 2).
ISSUES ARISING DURING THE HEARING
It is important that representatives appearing in the Tribunal in applications such as this one are familiar with the Tribunal’s statutory framework and with the applicable provisions of the Migration Act.
With respect to the Tribunal’s statutory framework, the submissions in the Applicant’s SFIC focussed on flaws in the delegate’s reasons for the Reviewable Decision, including the “lack of weight” that the delegate attributed to some of the evidence (see, for example, Exhibit 1/5).
In Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1, 29, Smithers J stated:
It is important to observe that the Tribunal is not constituted as a body to review decisions according to the principles applicable to judicial review. In essence the Tribunal is an instrument of government administration and designed to act where decisions have been made in the course of government administration but which are in the view of the Tribunal not acceptable when tested against the requirements of good government.
The role of the Tribunal is to conduct merits review. In Faulkner and Comcare (2007)

45 AAR 467, 473 [27], Senior Member Hunt explained:
The Tribunal aims to reach the correct and preferable decision on the basis of the material before it … and often is said to stand in the shoes of the original

decision-maker and consider all evidence again and from the beginning.
It is the Tribunal’s role to hear the matter again from the beginning (often referred to as a hearing de novo) and to look at the merits of the individual case before it. It is not the role of the Tribunal to find flaws in the original decision, but rather, to make a new decision based on the facts, evidence and submissions before it. This was explained in Drakev Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589, by Bowen CJ and Deane J in a joint judgment:
The question for determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.
With respect to the statutory framework of the Migration Act, the submissions did not adequately address the primary consideration of the best interests of minor children (paragraph 13.2 of Direction No 79). No submissions about minor children were included in the Applicant’s initial SFIC. A supplementary SFIC was filed containing only one substantive paragraph about this primary consideration which only mentioned the child of the Applicant’s fiancée (Exhibit 1/13). This paragraph stated:
The applicant will contend that insignificant weight was given to the best interests of minor children in Australia as a result of his removal. The delegate did not appear to factor in the child of his fiance [sic], [name of fiancée omitted]. [The Applicant’s fiancée] will be providing witness evidence in support of this during the hearing.
However, apart from the Applicant’s supplementary SFIC (which was signed by the Applicant and could therefore be considered as a written statement by the Applicant (see Exhibit 1/140)) which mentioned his fiancée’s daughter, there was no mention of any other relevant children in the Applicant’s SFIC, supplementary SFIC or any of the Applicant’s statements. However, the materials before the Tribunal indicate there are ten other children who may be relevant to consider, being three nieces, two nephews, and five other children described as cousins. These children (except for three cousins and a nephew) were identified by Mr Papalia in his opening submissions at the hearing based upon records of the Applicant’s prison visits history record (G46/385-392). Further, the statements of the Applicant’s fiancée only mentioned her 7-year-old daughter, and none of the other children. The statements of the Applicant’s mother also did not mention any specific children, with only a passing general reference to “grandkids” (G49/402).
Despite Mr Doumanis’ offer to “enquire with the applicant and his fiancée as well in relation to all the minors that are of interest” (transcript/13), the operation of the “two-day rule” in

s 500(6H) of the Migration Act, prevents such an enquiry in the absence of the information being contained in written statements filed two business days before the hearing. Specifically, s 500(6H) provides that the Tribunal:
…must not have regard to any information presented orally in support of a person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.
The practical operation of the two-day rule was considered by the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378, 389-390 [25]. The Full Court explained:
The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant’s case unless the Minister has had two business days’ notice of the information or the document before the hearing…
In order to ensure the review was “conducted thoroughly and fairly” to all parties (Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 (Uelese), 223), and cognisant that the Tribunal must not to fall into jurisdictional error by failing to consider a primary consideration (as contemplated in Uelese at 192 [59], 219-220 [57] and 222 [68] and Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, 503 [101]), the Tribunal asked the Applicant questions about the additional children identified by Mr Papalia in order to elicit the information relevant under paragraph 13.2 of Direction

No 79) (see transcript, pages 34-39). Thus at the hearing the Tribunal was able to hear evidence about six relevant children, and the Tribunal was therefore satisfied that the hearing was able to be undertaken thoroughly and fairly, as well as being satisfied that the parties were afforded an adequate opportunity to put forward their respective cases to the Tribunal. However, as noted in the section on the best interests of children below, an additional four children (described as “cousins”) were identified in the materials by the Tribunal subsequent to the hearing. The only reference to these minor cousins was in the Applicant’s prison visits history record, which tends to indicate he does not have a close relationship with them, and in this regard the Tribunal notes that the relationship is

non-parental. The Tribunal has, however, included these children in its consideration of the best interests of minor children primary consideration below, and has discussed their interests to the extent it is possible to do so on the material before it. These issues, including how the relevant children were identified, are discussed in further detail below in the section on the best interests of minor children.

Other issues that arose during the hearing included Mr Doumanis asking the witnesses leading questions. He was occasionally assisted by the Tribunal to re-phrase his questions in a more open manner, following several objections from Mr Papalia. While “the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate” (s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth)

(AAT Act)), leading questions have the potential to compromise the quality of the evidence elicited in answer because they subjectively suggest a specific answer to the witness. As such, a leading question is more in the nature of a submission by the person asking it, rather than a means of eliciting an unprompted and objective answer from the witness.
Further, Dr Watts was not provided with all relevant documentation regarding the Applicant’s offending, resulting in a qualified opinion that could be given little weight by the Tribunal. Dr Watts was only provided with copies of the G-documents, and not any of the materials produced under summons, which were subsequently included in the Supplementary Relevant Documents, and are contained in Exhibit 1. The Tribunal notes that inspection orders for documents produced under summons by the Department of Justice and the Commissioner of Police (which were contained in the Supplementary Relevant Documents) were made on 12, 13 and 19 May 2020, which should have afforded time for the documents to be provided to Dr Watts for his review prior to his giving evidence at the hearing on 2 June 2020. The report and evidence of Dr Watts are discussed in further detail below in the section on the first primary consideration.
In matters involving visa refusals or cancellations under ss 501 and 501CA of the Migration Act, the consequences for Applicants who are facing removal from Australia (as well as children, other family members and support persons who would be affected by the decision) are potentially very serious indeed. It is essential that advocates appearing in this jurisdiction have a sound knowledge of both the AAT Act and Migration Act statutory frameworks in order to fulfil their obligations to both the client they are representing, and to the Tribunal (see s 33(1AB) of the AAT Act).
LEGISLATIVE FRAMEWORK
Migration Act
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 full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
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:
(a)
the person has a substantial criminal record (as defined by

subsection (7); or
…
(Original emphasis.)
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:
…
(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; or…
(Original emphasis.)
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 non‑disclosable 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.)
Direction No 79
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.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 79 under s 499 of the Migration Act, which commenced operation on

28 February 2019. This Direction replaced the previous Direction No 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under
s 501CA (22 December 2014) (Direction No 65).
Paragraph 6.1 of Direction No 79 sets out the “Objectives” of the Migration Act, with paragraph 6.1(3) being relevant to the Reviewable Decision 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.
Paragraph 6.2 of Direction No 79 provides “General Guidance” as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No 79 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 women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Informed by the principles set out in paragraph 6.3 of Direction No 79, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction No 79, with regard to the specific circumstances of the case (paragraph 13(1) of Direction No 79). Specifically, paragraph 13(2) of Direction No 79 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia;
c)    Expectations of the Australian community.
Paragraph 14(1) of Part C of Direction No 79 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):
a)    International non-refoulement obligations;
b)    Strength, nature and duration of ties;
c)    Impact on Australian business interests;
d)    Impact on victims;
e)    Extent of impediments if removed.
Paragraph 7(1)(b) of Direction No 79 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
a) …
b) 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.
Further guidance as to how a decision-maker is to apply the considerations in

Direction No 79 can be found in paragraph 8 of Direction No 79, “Taking the relevant considerations into account”, 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?
The Applicant agrees that he does not pass the character test (Exhibit 1/2).
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.
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).
The offence that resulted in the cancellation of the Applicant’s Visa was a conviction for “aggravated burglary with intent in place” for which he was sentenced in the District Court of Western Australia to four years’ imprisonment on 25 November 2014

(G61/446; SG3/583). At the same time, the Applicant was also sentenced to concurrent terms of imprisonment. These were for two counts of “assault occasioning bodily harm” (for which he was sentenced to concurrent terms of imprisonment of 15 and 18 months) and “grievous bodily harm” (for which he was sentenced to a three year concurrent term of imprisonment) (SG3/583).
Subsequent to these convictions, the Applicant was sentenced to a further term of imprisonment in the Perth Magistrates Court on 16 February 2016 for the offences of: “endanger life, health or safety of a person” and “possess unlicensed firearm” (for which he was sentenced to terms of imprisonment of 18 months and 6 months respectively, to be served concurrently); and “give false personal details to police” (for which he received a fine of $300) (SG3/583).
Consequently, the Applicant does not pass the character test under ss 501(6)(a) and

501(7)(c) of the Migration Act.
The Tribunal must now consider whether there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community
Paragraph 13.1(1) of Direction No 79 provides that:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community…
Paragraph 13.1(2) of Direction No 79 then provides:
(2)Decision-makers should also give consideration to:
a)
The nature and seriousness of the non-citizen’s conduct to date;

and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paragraph 13.1.1(1) of Direction No 79)
Paragraph 13.1.1(1) of Direction No 79 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:
a)    The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)    The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)     The cumulative effect of repeated offending;
g)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i)   Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
The Applicant’s adult criminal history includes a total of 73 criminal offences, and 16 driving offences (G6/283-286; SG3/583-595). His criminal history includes the following (the dates noted are the conviction dates):
(a)16 driving offences including “no authority to drive” (2009), “drive motor vehicle on road not complying with the Vehicle Standards Regulations” (2009), “exceed 0.05g alcohol per 100ml of blood; >=0.06g/100ml but <0.07g/100ml” (2009), “reckless driving (inherently dangerous)” (2009 and 2014), “exceed speed limit in a speed zone; between 30 and 40km/h” (2012), “false name (driver)” (2012), “no authority to drive - never held” (two counts in 2012; 2014), “no authority to drive – never held and disqualified” (2012; two counts in 2013; 2014), “exceed speed limit in a speed zone; between 10 and 19km/h” (2013) and “no authority to drive – suspended” (2014);
(b)offences involving violence including “aggravated assault occasioning bodily harm” (2009), “common assault” (2010), “assault occasioning bodily harm” (two counts in 2010 and two counts in 2014), “grievous bodily harm” (2014) and “endanger life, health or safety of a person” (2016);
(c)“aggravated burglary and commit offence in place” (2013) and “aggravated burglary with intent in place” (2014);
(d)firearms offences including “any person in possession of any firearm/ammunition and is not the holder of a licence commits a crime” (2013 and 2014), “possessed a prohibited weapon” (2014), “unlicensed person possess firearm/ammunition” (2014), “having ready access to both weapons and illegal drugs” (2014), “possessed unlicensed firearm” (2016);
(e)property offences including “without lawful excuse trespassed on a place” (2010), “wilfully & unlawfully destroy or damage property” (2010);
(f)breaches of court-imposed orders including “person who breaches CRO/CMO [community] order without reasonable excuse” (for counts in 2011), “breach of community based order” (for counts in 2011), “breach of suspended imprisonment order” (2014);
(g)drug offences including “possess a prohibited drug (MDMA)” (2012) and “possess a prohibited drug (Methylamphetamine)” (2013 and 2014);
(h)dishonesty and stolen property offences including “gains benefit by fraud” (26 counts comprising seven in 2012, and 19 in 2013), “attempted gains benefit by fraud”
(10 counts comprising nine in 2012 and one in 2013); “steal motor vehicle” (2013), “receiving” (2013), “possessing stolen or unlawfully obtained property” (2013), “steal motor vehicle to use without the consent of the owner” (2014); and
(i)other minor offences including “disorderly behaviour in public” (2011), and “give false personal details to police” (2016).

As noted above, it was the Applicant’s conviction for “aggravated burglary with intent in place” on 25 November 2014 (G61/446; SG3/583) that triggered the cancellation of his Visa. At the same time, the Applicant was also sentenced to concurrent terms of imprisonment for two counts of “assault occasioning bodily harm” and “grievous bodily harm” (SG3/583). This will be referred to as the home invasion incident. The facts accepted by the sentencing judge, Keen DCJ, were as follows (G8/292-293):
[O]n 1 January 2013, you, in company with another person, the identity of whom is unknown, attended at [address omitted]. That is [sic] premises occupied by a Mr S [full name omitted] and he was on holidays in the United States at the time. On that day, present in the property were a Mr SC [full name omitted], [Mr] K [full name omitted] and his girlfriend [Ms] K [full name omitted], and [Mr] W [full name omitted].
At about midday, you knocked at the door. Mr [SC] answered the door and you enquired about the whereabouts of a girl whose name began with the letter T.
Mr [SC] told you he didn’t know of any such person. You then struck him with your fist to his facial area, causing him to suffer a nosebleed and a cut lip. He then ran from the front door out the back of the premises and over the back fence. You then came into the property where you confronted the other occupants.
You pulled a machete from your tracksuit pants and you struck Mr K, hitting him on the left arm above the elbow. He suffered lacerations to the arms including a laceration of the tendon and a broken humerus. You also threw a heavy torch at Mr W but missed. The torch struck the wall and broke. You then picked up a bottle and struck Mr W over the head causing him to sustain a laceration to the crown of his head. You then left the premises.
Mr K, who suffered the most serious injuries, was taken to hospital. He was taken to theatre the following day and underwent surgery for the wound to be washed out and debrided and open reduction and internal fixation of his fracture and his elbow was immobilised in a cast. Had he not received treatment, his injuries were likely to have caused permanent injury to health. I go on to note that he has since died, but there is no suggestion as a result of these injuries.
Mr W’s injury was such that on the day in question, he was also taken to hospital. He had felt dizzy and nauseous and had vomited outside the property. The injuries to Mr [SC] were also such as to cause him some pain and discomfort and included the split lip.
Now, what was behind all this offending is not clear. The evidence of the people from the house was that none of them knew you. They’d not seen you before. The occupier of the premises, [Mr S], also gave evidence that he didn’t know you, nor did his brother who was the previous owner of the torch.
Now, these are serious offences. Aggravated burglary carries a term of imprisonment of 20 years. Each of the assaults occasioning bodily harm carries a term of imprisonment of five years. The offence against Mr K, being grievous bodily harm, carries a term of 10 years.
As was also noted above, on 26 February 2016, the Applicant was sentenced in the Perth Magistrates Court on 16 February 2016 for the offences of: “endanger life, health or safety of a person”, “possess unlicensed firearm” and “give false personal details to police” (SG3/583). This will be referred to as the shooting incident. The sentencing Magistrate’s comments before the Tribunal are brief and do not recite the facts upon which the Applicant was convicted (G7/288). The statements of material facts before the Tribunal indicate that the Applicant and a co-offender entered a residential property to collect a drug debt from the occupant who was also the victim. It was recorded that (SG3/559):
An incident occurred in the lounge room of the address … and as a result, the accused [the Applicant] produced a firearm and discharged two rounds. The first round damaged a television in the lounge room and the second round entered [the victim’s] leg, causing injury.
The firearm is described as a wooden sawn off shot gun with a small barrel and appeared to have been painted black.
The statement of material facts further records that, “[t]he round entered the victim’s left leg, approximately 10 cm below his knee” (SG3/562). At the hearing the Applicant admitted that he shot the victim but claimed the firearm he used belonged to the victim (transcript/56).
Paragraph 13.1.1(1)(a) of Direction No 79 provides that, “without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously”. Thus, the “assault occasioning bodily harm” and “grievous bodily harm” offences the Applicant was convicted of on 25 November 2014 arising from the home invasion incident involving a machete must be viewed very seriously by the Tribunal. Indeed, the Sentencing Judge described these offences as being “serious offences”. The Sentencing Judge further stated (G8/293):
There is no doubt this was serious offending. It was aggravated burglary and can only be described as a home invasion. It is a very serious example of such.
The Sentencing Judge further described this offending as having “an element of premeditation” and “a motiveless attack on these people” (G8/294). In the Tribunal’s opinion, these factors are a further indication of the seriousness of the offending.
Applying paragraph 13.1.1(1)(a) of Direction No 79, the “endanger life, health or safety of a person” offence whereby the Applicant shot the victim in the leg, is a violent offence which must also be viewed very seriously by the Tribunal. The Tribunal notes that the Applicant has been convicted of other offences involving violence (detailed at paragraph [58](b) above) including “common assault”.
As noted above, the Applicant has been convicted of 16 driving offences. Previous Tribunal decisions have often regarded offences such as driving under the influence and unlicensed driving as being serious because the unlicensed and/or irresponsible use of a motor vehicle can endanger innocent road users (see for example, Member Webb, in Apire and Minister for Immigration and Border Protection [2014] AATA 193, [16] and Senior Member Tavoularis in Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561, [43]-[45]). The Respondent did not, however, make any submissions about the Applicant’s driving offences, and the Applicant’s driving offences were not put to him during the hearing to comment upon. Thus, as a matter of procedural fairness, the Tribunal has not made any adverse findings against the Applicant based on his driving offences.
Paragraph 13.1.1(1)(b) of Direction No 79 is not applicable because the Applicant has not committed violent crimes against women or children (although for the home invasion incident, there was a female present in the house).
Although the Sentencing Judge described the three victims as being “vulnerable on the day in question” (G8/294), no further details are given as to their vulnerability. Consequently, there is insufficient evidence to find that this crime was committed against vulnerable members of the community (as contemplated by paragraph 13.1.1(1)(c) of Direction No 79), and the Tribunal does not make such a finding.
Paragraph 13.1.1(1)(d) of Direction No 79 also requires the Tribunal to have regard to the sentences imposed by the Courts for a crime or crimes. The Applicant received lengthy sentences of imprisonment for the offences arising from the home invasion incident and the shooting incident.
On 25 November 2014, the Applicant received a total effective sentence of seven years’ imprisonment for the offences arising from the home invasion incident. This sentence comprised four years’ imprisonment for the offence of “aggravated burglary with intent in place” on 25 November 2014 (G61/446; SG3/583). At the same time, the Applicant was also sentenced to concurrent terms of imprisonment of 15 and 18 months for two counts of “assault occasioning bodily harm” and a three year concurrent term of imprisonment for the “grievous bodily harm” offence (SG3/583). The Sentencing Judge commented that (G8/295):
In my view, this is a case where a term of imprisonment to be served immediately is the only appropriate disposition. The offences were so serious as to warrant it and the protection of the community requires it…
Subsequent to these convictions, the Applicant was sentenced to a further term of imprisonment in the Perth Magistrates Court on 16 February 2016 for the shooting incident offences of “endanger life, health or safety of a person” and “possess unlicensed firearm” for which he was sentenced to terms of imprisonment of 18 months and 6 months respectively, to be served concurrently with the sentence imposed on 25 November 2014 (SG3/583; G7/288).
The Applicant had also previously been sentenced (in the Perth Magistrates Court on
26 June 2013) to a six month term of imprisonment for multiple counts of “gains benefit by fraud” (to be served concurrently), as well as a six month concurrent term for “aggravated burglary and commit offence in place” and a three month concurrent term for the offence of “any person in possession of any firearm/ammunition and is not the holder of a licence/permit commits a crime” (SG3/586-587). In sentencing the Applicant on
25 November 2014, Keen DCJ noted that the Applicant was a serving prisoner until
26 April 2014 and could have been sentenced for the home invasion offence at that time. Thus, having regard to the totality principle, His Honour found that cumulative sentences would result in a sentence that was too great and reduced the term for the burglary to four years, to be served cumulatively with the grievous bodily harm sentence. His Honour then imposed concurrent sentences for the two counts of assault occasioning bodily harm (G8/296).
Imprisonment is generally an option of last resort, particularly when the offender is of a young age. However, the Applicant has been sentenced to custodial terms of imprisonment on three separate occasions as a young man in his twenties. Further, despite concurrent sentences being imposed, the length of the seven year term in particular indicates the seriousness of his offending.
The Tribunal is also required to consider the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness (paragraph 13.1.1(1)(e) of Direction No 79). As noted above, the Applicant’s adult convictions comprise a total of approximately 73 criminal offences, and 16 driving offences, with these offences being committed over a period of approximately five years and six months (SG3/583-594). The Applicant’s criminal history is therefore lengthy and consists of frequent offending in between periods of imprisonment. Although the Applicant was convicted of offences involving violence as early as 2010, in the Tribunal’s opinion there is also an escalation in seriousness in the Applicant’s more recent offences. In the shooting incident the victim received a gunshot wound to his leg, and the home invasion incident involved, in part, one of the victims being attacked with a machete, and another being hit over the head with a bottle.
With respect to the cumulative effect of repeated offending (paragraph 13.1.1(1)(f) of Direction No 79), the Applicant has a lengthy criminal history, and several sentences of imprisonment. He also has multiple breaches of court orders, as outlined in paragraph [58](f) above. The Tribunal finds that the Applicant’s repeat offending would have had a cumulative effect of placing a burden on the resources of police, corrective services, and the court system.
The Applicant has not provided false or misleading information to the Department by not disclosing prior criminal offending on any incoming passenger cards and so paragraph 13.1.1(1)(g) of Direction No 79 is not applicable.
The Applicant has not previously received any warning that further offending may affect his migration status, and so paragraph 13.1.1(1)(h) of Direction No 79 is not applicable.
Paragraph 13.1.1(1)(i) of Direction No 79 requires the Tribunal to consider whether the Applicant has committed any crime while in prison or immigration detention, for example during an escape from immigration detention. This is not applicable to the Applicant.
Based on the analysis of each of the sub-paragraphs of paragraph 13.1.1(1) of Direction No 79 above, the Tribunal finds that the nature and seriousness of the Applicant’s offending, particularly his offences involving violence, can be categorised as very serious, particularly the violent offences committed during the shooting incident and the home invasion incident. Consequently, the Tribunal finds that paragraph 13.1.1 of Direction No 79 weighs strongly against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2 of Direction No 79)
A decision-maker should also have regard to the following principle, described in paragraph 13.1.2(1) of Direction No 79 as follows:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
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) 41 VR 359, 389 [111] (which was quoted with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424, 444-445 [95], as well as Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117,
124–5 [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.)
In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] Moshinsky J stated that: “…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, [41] Kenny J also referred to the basis for the assessment of the risk of re-offending as requiring a “rational and probative basis”.
The harm that could result to victims if the Applicant is to re-offend in a violent manner is potentially very serious (paragraph 13.1.2(1)(a) of Direction No 79) and could include psychological harm, physical injury, temporary or permanent impairment or even loss of life.
The Tribunal will now consider the likelihood of the Applicant re-offending if he were permitted to remain in the Australian community (paragraph 13.1.2(1)(b) of Direction
No 79).
As noted above,
the Applicant has a lengthy criminal history comprising approximately

73 criminal offences and 16 driving offences committed over a period of approximately five years and six months. He has been sentenced to several terms of imprisonment and has also breached numerous court-imposed orders. When sentencing the Applicant on

25 November 2014, the Sentencing Judge stated (G8/293):
You have prior offending on your record. You have regular appearances in court and you have poor compliance with community-based orders that have been given to you in the past. According to the presentence report you are at a high risk of reoffending in a violent manner.
The duration and number of the Applicant’s offences, his several prison sentences and his lack of compliance with court imposed orders, suggests a disregard for Australian laws and lawful authority, and tends to indicate a likelihood of future offending. Indeed, in the excerpt above, the Sentencing Judge noted the presentence report writer’s conclusion that the Applicant was at “a high risk of reoffending in a violent manner” (G28/293). However, as is the case with the other evidence discussed in this section, these factors will need to be assessed against the totality of the evidence regarding the likelihood of the Applicant reoffending, including the steps he has taken towards rehabilitation since the time of his sentencing and other protective factors.
At the time the Applicant was sentenced for the home invasion incident offences on

25 November 2014, the Sentencing Judge noted that the Applicant had “no remorse” for his offending and did not accept that the Applicant had victim empathy (G8/295). Expressing remorse can be indicative that an applicant accepts responsibility for his or her offending (JFSQ and Minister for Home Affairs [2019] AATA 616, [65] cited in Subasinghe and Minister for Home Affairs [2019] AATA 751, [52]), which may in turn reduce the likelihood of reoffending. The Applicant was asked about this at the hearing by Mr Doumanis (transcript/32):
MR DOUMANIS: Now, there was a statement made by the respondent and it was off the basis of your presentencing report and that was that you held no remorse for your actions, and have no acceptance of responsibility for your offending. What do you have to say about that statement?
APPLICANT: I was advised by my representation at the time to - because we were going through the process of the material through court of my conviction, I was advised by my lawyer at the time not to stay - not to make a statement on my charges, not to admit anything on my charges, purely and simply because we were going to attempt to overturn the conviction, which is why in my presentence report I can remember that I said, I just didn’t wish to speak on it at all, and they took that in terms of no remorse, which wasn’t the case at all, I was just following advice from my representative.
The Applicant continued on to state that he had “extreme remorse for my actions, it’s something that I have to live with every day, I’m not proud of the things that I’ve done…” (transcript/32).
However, this remorse was called into question in other parts of the Applicant’s evidence where he attempted to downplay his offending by saying that the victims invited him into the house to do a drug deal and had attacked him. The Applicant also blamed his legal representation at the time. The following exchange outlines these explanations from the Applicant (transcript/60-61):
MR PAPALIA:            You did not accept that you were the person who did that offence, did you?
APPLICANT:              I did not accept it, yes. Correct. I did not accept the material facts around the crime.
MR PAPALIA:            Right, that you entered the home without consent or that you used – that you entered the home without consent?
APPLICANT:              No, I wanted to prove – I told my lawyer at the time to plead guilty to the assault. Because I did assault these people in the house. However…
MR PAPALIA:            Well, you bought a machete with you and you struck one of them with the machete, that is Mr K [full name omitted]. You threw a torch at Mr W’s [full name omitted] head and then struck him over the head with a bottle?
APPLICANT:              Yes, correct. Yes, I did.
MR PAPALIA:            But what is it that you wanted to challenge?
APPLICANT:              The fact that it wasn’t a home invasion. They invited me to the house to initiate a drug deal, which ended badly. So I wanted to rule out the home invasion charge, because it wasn’t [a] home invasion, they invited me in the house. But I was willing to plead guilty to the assaults, because I did assault these people.
MR PAPALIA:            Right. You appealed against your conviction on each count, not just the aggravated burglary with intent?
APPLICANT:              Yes. Again, that was advice from my representation. Who led me astray, might I add.
MR PAPALIA:            Well, the Sentencing Judge, Keen J, and the Court of Appeal, accepted that you entered that house for reasons that have not been explained?
APPLICANT:              Yes. I was advised by my representation that, if I was to get in the stand and give evidence to this matter, I was going to be incriminated, because a week prior to my court – I was on the news for an alleged shooting. I explained to my representation, I said, listen I need to get on the stand and give the – and tell the truth, which was what happened. Which was a drug deal gone bad, so to speak. He made it very clear that if I was to do so, it’s going to incriminate me because the prosecutor can then cross-examine me and bring up the events that happened in Lesmurdie. So for that reason alone, I decided not to take the stand. And which is why the jury said, because you’re not explaining a certain factor to what happened, we’re going to find you guilty on these charges. I tried to appeal it. I had new representation and that failed.
MR PAPALIA:            Well, what I’m concerned about is you told Dr Watts, that is your psychologist – rather the psychologist who’s provided a report today – that it was a setup. Now go to (indistinct). Now this is paragraph 14 of Dr Watts’s report:
Mr Allen explained that the index offence for imprisonment came about where he had been requested by third parties to visit a house to provide drugs. He explained that when he got there it was a setup and a group of people he had not met, attempted to assault him. He explained that he fought back, and after the incident was over and the residents of the home rang the police, and he was charged with a combination of home invasion and assault.
MR PAPALIA:            That’s…?
APPLICANT:              Correct.
MR PAPALIA:            That’s not true, is it?
APPLICANT:              That is correct.
MR PAPALIA:            No, it’s not. You entered the home, without consent, and you assaulted the occupants that you did not know?
APPLICANT:              Pardon?
MR PAPALIA:            You entered the home without consent, and you assaulted the occupants, whom you did not know?
APPLICANT:              I did not know them, yes, I did not know them.
MR PAPALIA:            But you weren’t invited there at all, were you?
APPLICANT:              An associate of mine rang me and asked me if I would stop past this house to initiate a drug deal. That was the purpose of me going to this house. Prior to this, I did not know who these people were.
MR PAPALIA:            That’s not consistent is it? Because you knocked on the door and then you burst your way in?
APPLICANT:              No, that’s – that’s what the victims are saying.
MR PAPALIA:            Well, the jury…?
APPLICANT:              That’s what’s alleged…
MR PAPALIA:            …and the Court of Appeal have found happened?
APPLICANT:              Yes, they found me guilty of it, yes, correct. Which is why I appealed it. I mean, I understand what I done was wrong. I take full responsibility for that. I’m not going to try to justify it any way. I’m just, however, I tried to appeal it on the facts of what actually happened. I lost that appeal. I didn’t have my chance to be able to rectify it. And I paid immensely for my crimes.

As was also evident from the above exchange, the Applicant told Dr Watts he had been requested by a third party to attend the house to provide drugs. The Applicant further told Dr Watts that when he arrived at the house it was “a set up” and that “a group of people he had not met attempted to assault him” and that he “fought back” (see also Dr Watt’s report in Exhibit 1/21, paras [14]-[15]).
However, these were not the facts upon which the Applicant was convicted and sentenced, and the Tribunal should not reach a factual conclusion contrary to, or inconsistent with, those reached by a court upon which the conviction or sentence is based. This was explained by McKerracher J in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, [77]-[79]:
77.As a matter of policy, it would be highly undesirable if Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based. To make a finding of “another reason” on facts necessarily inconsistent with the conviction and sentence would be an incongruous outcome. It has long been recognised that the adjudgment and punishment of criminal guilt is an exclusively judicial function: Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 per Griffiths CJ (at 444); Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 per Isaacs J (at 175); Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 per Mason CJ (at 258); Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 per Brennan, Deane and Dawson JJ (at 27) and Re Woolley; Ex parte Applicants M276/2003 (by their next friend GS) (2004) 225 CLR 1 per McHugh J (at [53]).The adjudgment of guilt, and the determination of the punishment to be imposed as a consequence (including a sentence of imprisonment), fall within the central conception of judicial power. It is inconsistent with this principle at the heart of the separation of powers to suggest that an administrative decision-maker could come to a factual conclusion contrary to that of a court when making an adjudgment and punishment of criminal guilt which is, in turn, the precondition to that administrative decision-maker’s power.
78.The Tribunal’s observation that it could not contradict or go behind a conviction was correct. The Tribunal’s finding that it could not ‘examine the facts upon which the conviction was based’ is less clear because the phrase is ambiguous. On the one hand, it could merely be an extension of the (correct) legal principle just confirmed. On the other, it could be construed as an assertion that the Tribunal could not have regard to the facts as found by the court. In context, it is apparent that the Tribunal had in mind the first interpretation. The appellant’s evidence was centred on assertions that the sentencing judge’s fact-finding was wrong. In any event, the Tribunal’s reasons are not to be read with an eye finely attuned to the perception of error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
79.The Tribunal was correct in concluding that the evidence the appellant sought to rely upon, by which he impugned the facts found by the sentencing judge, could not be entertained. The primary judge was correct in refusing the application on this ground. Ground 1 must be rejected.
(Emphasis added.)
As noted in paragraph [59] above, the Sentencing Judge stated that the Applicant had knocked on the door and had enquired about the whereabouts of a woman whose name began with the letter T. The Sentencing Judge also stated that the reason for the offending was unclear, that none of the victims knew the Applicant, and nor did the occupier of the premises who was away on holiday (G8/292-293). The Tribunal also notes the Court of Appeal decision which states that the sole ground of appeal was that: “[t]here was a miscarriage of justice when the learned trial judge gave directions suited to a case of positive identification when there had been no identification at all” (SG1/502). Thus, the appeal did not, as the Applicant suggested, solely concern whether there was a home invasion. It was about “whether the State had established beyond reasonable doubt that the appellant [the Applicant] was the attacker” (SG1/505). That is, the Applicant was arguing on appeal that he did not commit the offences at all. The Tribunal finds that the Applicant’s evidence at the hearing about the home invasion offence was an attempt to minimise his offending by revising the facts of the offending, as well as revising the nature of his appeal. The minimisation of his offending, including blaming the victims for attacking him, indicates that the Applicant has not accepted full responsibility for his offending and raises doubt as to whether the Applicant is genuinely remorseful.
At the hearing, the Applicant gave evidence about why he did not think he would re-offend (transcript/31-32):
I do not believe that I am at risk of reoffending. I’ve done everything I can, I’ve done more so than anyone else in prison to better have a best outcome and best chance in the community. I do believe that I’ve done a lot of growing as an individual in prison. I do believe that the path that I decided to go down in prison in terms of rehabilitation was the best path that I could have gone down and taken it seriously. I don’t think that I’m going to – no, I don’t think I will reoffend on the outside. I’m confident that everything that I’ve learnt to date will help me and assist me and guide me to have a best outcome, if there was an altercation or situation.
The Tribunal notes that the Applicant was sentenced approximately six years ago when he was approximately 24 years of age. He has subsequently undertaken rehabilitation courses (which will be discussed below), has become engaged to his fiancée, has spent a substantial period in prison and then in immigration detention, and has had to face the “reality of…being deported” (Exhibit 1/98). The Tribunal accepts that the Applicant was of a younger age at the time of his sentencing and he is likely to have matured, as he is now nearly 30 years of age, and wants to settle down and start a family with his fiancée. These motivating factors are likely to contribute to reducing the likelihood of the Applicant reoffending.
The Applicant’s most recent Parole Review Report of August 2019 (Parole Review Report) recorded that in February 2015 he was assessed at the commencement of his prison term as requiring treatment in the area of addictions offending and violent offending (SG4/626). The recommendation noted treatment needs in the areas of substance abuse and violent offending, as well as emotional management and consequential thinking (SG4/630):
Mr Allen has been identified as having treatment needs in alcohol/illicit substance use and violent offending. Therefore, he would benefit from participation in a Pathways program to develop insight into his alcohol/illicit substance use and learn relapse prevention strategies. Inclusion in a VOTP program would further assist him in developing effective interpersonal skills, emtional [sic] management, decision making, consequential thinking and relapse prevention which may assist him in reducing his risk of reoffending.
The Applicant had a significant drug addiction which contributed to his offending, including the stealing motor vehicle offences, and the fraud offences, stating that, “I had an engulfed and deeply entrenched habit” (transcript/62). He referred to his addiction in his personal circumstances form as “a raging drug addiction that I had no control over”. The Applicant also stated (G10/324):
At the time of my offences I had an extreme drug habit, which involved daily use. I fuelled my criminal activities with this habit so I didn’t ever go without. In the end I became drug dependent and quite quickly methanphetamine [sic] became my whole life. It honestly consumed me and turned me into a monster who had lost all morals and didn’t care who and how I affected my loved ones through chronic drug use.
The Applicant further described in his personal circumstances the connection between his drug use and his offending (G10/325):
I believe that the factors in my criminal activities was because I had a severe drug problem and didn’t know how to stop it. I came up with the idea to sell meth to supply my habit and that by doing this I wouldn’t resort to other criminal behaviour. Well I was wrong again! And no matter what I did, I was constantly trying to justify my drug use any way I could, such as lying to family and telling the people who cared about me most that I had it all under control. I honestly thought that by not stealing or robbing anyone, selling meth was ok and not that big of a deal. In the end it only made my drug use worse because now that I was selling it I always had it and could use it when ever [sic] I wanted. This led to fall outs with associates in the drug world, and caused me to act violently to solve problems.
The Applicant completed the VOTP and the Pathways Program in prison. After the completion of these intensive programs, the facilitators wrote detailed reports regarding the Applicant’s participation. These reports outlined some of his treatment needs, the gains he made, as well as any outstanding areas of concern. Unfortunately, neither of the completion reports provide an opinion from facilitators as to the extent to which the Applicant’s risk of re-offending would be reduced as a result of completing the programs.
The VOTP Completion Report states that the Applicant commenced the program on
19 December 2017 and completed the program on 7 June 2018 (SG4/602). Although the Applicant was able to formulate a risk management plan, the program facilitators identified some areas of concern that remained after the Applicant completed the program. These were:
(a)that the Applicant’s fiancée was his “main protective factor” and that he “appeared to hold high expectations of her”. Facilitators noted that: “It was of concern to facilitators that should Mr Allen’s intimate relationship be unsuccessful he may be at risk of reverting to anti-social behaviours” (SG4/607).
(b)Facilitators also noted that “Mr Allen had a tendency to adopt a passive-aggressive communication style when feeling disrespected or experiencing higher levels of anger” whilst completing the program and “when he had experienced stressors or negative events in his life”, he “struggled to manage himself within the group setting” (SG4/607-608).
(c)Further, facilitators noted that “whilst Mr Allen demonstrated some awareness into his involvement with illicit substances further exploration in this area is required”. The completion report noted that the Applicant was under the influence of both alcohol and methylamphetamine at the time of the offences. However, the concern was expressed by facilitators that the Applicant “reported on multiple occasions throughout the program that substance use had never been problematic for him”. They noted that the Applicant was booked into the Pathways program which would assist the Applicant “to explore this treatment need further” (SG4/608).
(d)Although it was noted that, “Mr Allen demonstrated his ability to use the skills explored in the program that would assist him to lead a pro-social life. However, facilitators viewed that his ability to utilise these skills in a pro-social manner upon his release would be dependent on his level of motivation at that time” (SG4/608).
(e)Facilitators also noted that “whilst participating in the program Mr Allen was found in possession of illicit substances and was involved in an incident with a non-custodial staff member during which he behaved in an aggressive manner” (SG4/610).
The VOTP Completion Report concluded by recommending “engagement with counselling or support services … to consolidate gains made in this program” and connecting the Applicant to community-based support services to assist him to develop a prosocial support network. The facilitators also recommended the ongoing “monitoring of prosocial leisure activities” (SG4/610). Thus, although the Applicant made some gains as a result of completing the program, as well as being unmeasured, facilitators had some reservations about the Applicant in the areas of his pro-social supports (particularly his reliance on his fiancée), emotional regulation, his attitudes towards substance use, and his ability to maintain his motivation in the community.
Subsequent to completing the VOTP, the Applicant completed the Pathways Program, which is a program about substance abuse and offending (SG4/612). The Program commenced on 14 August 2018 and concluded on 9 January 2019. The summary and recommendations section of the Pathways Program completion report summarised the gains made by the Applicant in that program, as well as areas of concern that remained after the Applicant completed the program. The relevant excerpt from the completion report is as follows (SG4/617-618):
Mr Allen was an active program participant who engaged in all activities. He attended all program sessions, however throughout the first half of the program he was late or left early due to illness, attending visits or external stressors[.] Despite initial reservations in participating in the program he was open to applying concepts to his own experiences and allowed further exploration with facilitators. Mr Allen appeared familiar with the group process and encouraged other participants. He demonstrated insight into the concepts delivered and gained awareness of his substance use and risks for release. Despite his level of insight and understanding of program concepts, when he was managing external stressors Mr Allen struggled with emotional regulation which interfered with his program participation.
Mr Allen’s most notable gain was his increase in his awareness of his substance use as problematic, as well as his insight into potential risks to relapse. He demonstrated improved understanding of effective decision making and interpersonal skills as well as an ability to implement skills in the group environment in times of emotional regulation. Mr Allen showed improved emotional awareness and understanding of his maladaptive coping skills. At times he was able to display emotional regulation skills, however this was inconsistent and his ability to implement other skills will be dependent on him effectively managing his emotions. As Mr Allen held entrenched anti-social beliefs his ability to prevent relapse and recidivism will be reliant [on] him continuing to challenge these beliefs.
Mr Allen completed a comprehensive risk management plan that outlined realistic high-risk situations and strategies to mitigate these risks. Despite a thorough understanding of his risks his ability to implement the skills required will be dependent on his emotional regulation. Mr Allen identified a vast support network as well as acknowledging the risks associating with several support people. He expressed an intention to seek substance use counselling and has submitted relevant referrals.
Further strategies that may be effective in reducing Mr Allen’s risk to the community include, but are not limited to:
·To be monitored through regular urinalysis to ensure he does return to substance use
·To remain abstinent from alcohol and not to enter licensed premises
·Engagement with community drug and alcohol services to further develop his relapse plans in the community
·Engagement with community support agencies to provide routine and meaningful community engagement
·Engagement in employment and pro-social leisure pursuits
In summary, after completion of the program, whether the likelihood of the Applicant reverting to drug use and re-offending had been reduced as a result of the gains he had made in the program was not assessed. Although the Applicant made some treatment gains, facilitators identified remaining concerns in the area of emotional regulation when he was faced with external stressors, and that he needed to continue to challenge his entrenched antisocial beliefs. Facilitators also noted the risks associated with several of his support persons. When asked about this at the hearing, the Applicant stated that he had family members who used drugs, including his younger brother, sister and cousins, but was able to show some insight as to the strategies he would use to avoid using drugs in the future (transcript/86):
This course [Pathways] - I thought the best thing for me to do was to be upfront and honest in this course to get the best possible outcome from this course. So I put myself on the line by openly admitting that I do have family members and friends who use drugs. I’m not denying that. However, I’ve come so far in life now and where I am in terms of my fitness and my mindset, to go backwards it just wouldn’t happen. It just - I’m confronted with stuff everyday here in detention. Every day it’s around. I’ve remained positive. In fact, I encourage others to take a path down fitness and not - deter away from drug use. I encourage it. Because to me, it ruins lives. It’s ruined my life. So I even encourage my little brother not to smoke cannabis. I’ve told them heaps of times, just - I’ve even told them myself that if I get my visa back and I’m successful, if I come to the house there is to be nothing like that sort there. I don’t want no-one there that I don’t know who’s going to be drunk or consuming alcohol or anything. I don’t want to - I don’t - I’m trying to eliminate every possible risk for myself. Do I think I’m at risk of using, myself? No, I don’t, not any more. And I can say that with pride. Do I think that going to a certain place I’m at risk of people using drugs around me? The only risk I’m at is if someone’s, like, under the influence and they’re carrying on like a larrikin. I’m at risk of being a victim. In terms of people using drugs around me, I wouldn’t put myself in that situation any more. If I was to go somewhere and they were using drugs, I would leave straight away. My partner would make sure that I would leave too because she doesn’t do drugs and it’s no longer a part of our life. It’s completely gone.
In his evidence at the hearing, the Applicant spoke about the gains that he made in the program (transcript/30-31):
SENIOR MEMBER:    So can you tell me about your drug rehabilitation?
APPLICANT:              Yes. Obviously I was in prison for five years and during that time I was faced with a lot of obstacles. However, I have been clean now for them five years and the time here in detention and, yes, it’s opening my eyes to my disinhibitors in my courses, learning from my disinhibitors, learning what makes me out of mind, out of character. And just really revising that and reinforcing that in my mind.
SENIOR MEMBER:    So can you tell me about what you learnt in Pathways?
APPLICANT:              Yes, I’ve learnt that alcohol and drugs are disinhibitors for me, major disinhibitors. I’ve learnt that although my judgment is clouded whilst under the influence of drugs and alcohol, however, I’m responsible for the decision of consuming the alcohol and drugs in my past years. And so just really taking responsibility for my involvement in using substances and alcohol rather than blaming it on substance and alcohol use.
The Tribunal accepts that the Applicant has made some gains and insights from completion the Pathways Program. Additionally, the evidence before the Tribunal tends to suggest that the Applicant has been abstinent from illicit drugs in prison (with the exception of cannabis use on 4 August 2016 and two drug possession charges on 24 December 2017 and 14 March 2018 – SG4/623-624) and immigration detention, which will assist him to remain abstinent if he is released into the community. The Applicant has also gained insight into his drug addiction, including recognising that drugs were disinhibitors for him. However, given the significance of the Applicant’s daily drug problem which was closely connected to his offending, and the reservations raised by facilitators after the Applicant’s completion of the Pathways Program, the Tribunal has some reservations about whether the Applicant will be able to refrain from drug use in the community when faced with stressors in his life. Further, the Tribunal is concerned that some of the Applicant’s supportive family members may use drugs. Additionally, the Applicant’s main support person (his fiancée) has recently served a sentence of imprisonment for drug offences, with the Sentencing Judge finding that she “was a commercial drug dealer, operating at the higher end of the scale, well above street level” (Exhibit 1/234). It was noted by the Court of Appeal, however, in the Applicant’s fiancée’s appeal against her sentence, that she “did not become a drug user herself”, was “genuinely remorseful” and “was at a low risk of future offending” (Exhibit 1/233 and 234).

The plurality of the Full Court in FYBR (FC) followed Mortimer J’s characterisation of the community expectations primary consideration. Although FYBR (FC) concerned a refusal to grant a visa under the previous Direction No 65, it is equally applicable to the current Direction No 79 as there were no changes to the wording of paragraph 11.3 (which concerns visa refusal), when the Direction was updated. Additionally, paragraph 13.3 (which concerns whether it is appropriate not to revoke a mandatory visa cancellation) is substantially similar in its expression of community expectations.
FYBR (FC)
confirmed that the community expectations primary consideration operates as a kind of deeming provision (see Charlesworth J at 617 [61] and Stewart J at 622 [89]). That is, paragraphs 11.3 and 13.3 contain a statement of the government’s views as to the expectations of the community. The decision-maker (in this case the Tribunal) must have due regard to those views. As noted by Charlesworth J at 618 [67], “[i]t is not for the decision maker to make his or her own assessment of the community expectations…”

And further, as noted by Stewart J at 622 [91], “‘community expectations’ as expressed normatively are what the Government says they are, even though in actual fact if they were ascertainable community expectations might be quite different”.
Even though the community expectations primary consideration operates as a kind of deeming provision, it does not determine the outcome of the overall decision. As stated by Stewart J, at 622 [91] “‘community expectations’ as expressed by the Government do not speak to the outcome in any particular case”. This is because community expectations comprise one primary consideration which must be weighed against the remaining primary and other considerations in the exercise of discretion under the Direction. Thus, as Charlesworth J stated at 620 [79], “[i]n an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be”. Although in most cases community expectations will favour

non-revocation of a cancellation decision, the provision does not dictate an inflexible conclusion (Charlesworth J at 620 [75] and Stewart J at 623 [97]) and it is up to the decision-maker to determine the weight to be applied to this consideration (Charlesworth J at

620 [76]-[77] and Stewart J at 624 [102]).
The community expectations primary consideration was summarised in straight forward terms by Stewart J as follows (at 624 [101]):
…community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.”
For a comprehensive summary of the Full Court’s decision in FYBR (FC), see Member Burford in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424, [162]-[170].
Having regard to the judgments of Stewart and Charlesworth JJ in FYBR (FC),

the Tribunal must give effect to the norm stipulated in paragraph 13.3 of Direction No 79 (that the Australian community expects non-citizens to obey Australian laws whilst in Australia), which will, in most cases, weigh in favour of refusing to revoke the cancellation decision.
The Tribunal has found the Applicant’s offending, particularly his offences involving violence and weapons (particularly arising from the shooting incident and the home invasion incident) to be very serious. The Tribunal is guided by the principle in paragraph 6.3(2) of Direction No 79 which states that “[t]he 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”. Paragraph 6.3(3) of Direction No 79, in summary, provides that non-citizens who have committed serious crimes, including crimes of a violent or sexual nature, should generally expect to be denied the privilege of staying in Australia. The construction of paragraph 13.3 of Direction No 79 confirmed in FYBR (FC), together with these principles, supports the conclusion that the Australian community would expect the Applicant’s Visa to remain cancelled. Consequently, the Tribunal finds that the expectations of the Australian community would be that the Cancellation Decision should not be revoked.
The Tribunal will discuss the weight to be given to this consideration at the conclusion of these reasons for decision as part of the overall weighing exercise.
OTHER CONSIDERATIONS
Paragraph 14 of Direction No 79 provides:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)    International non-refoulement obligations;
b)    Strength, nature and duration of ties;
c)    Impact on Australian business interests;
d)    Impact on victims;
e)    Extent of impediments if removed.
International non-refoulement obligations
The Tribunal is required to consider whether Australia’s international non-refoulement obligations (paragraph 14.1 of Direction No 79) arise in any of the submissions, materials or evidence before the Tribunal.
The Applicant raised concerns about returning to New Zealand, including concerns about finding employment and accommodation, accessing support services to assist him with resettlement and maintaining a basic standard of living (Exhibit 1/7-8). However, these concerns are relevant to the extent of impediments if removed primary consideration and will be considered below.
At the hearing, the Applicant’s evidence was that he could face discrimination and be targeted by gangs if he was returned to New Zealand (transcript/89):
…since being in detention I’ve noticed that New Zealand - New Zealand raised - Australian raised New Zealanders that have gone back to New Zealand have suffered from kind of discrimination from - from people back in New Zealand. Basically from what I’ve seen on social media and from experience with others that have gone back, they get targeted a lot because they’re looked upon as, how can I say it - because I’ve been raised here my whole life and my accent is different, it’s Australian, back in New Zealand from what I’ve seen, and I’ve heard other people who have already said that they do get hard times from people, especially gang members. They’re preyed on a lot, picked on at times and taken advantage of, so - because they’re not born from there. They’re not from there so they don’t know the New Zealand way, so people - easier to target them. So I - a part of me is - does have a concerned because, I mean, the last thing I want to do is to go back with no support, only to have to deal with discrimination and possible threats.
There is, however, no objective or corroborative evidence which supports these assertions from the Applicant. Accordingly, the Tribunal cannot conclude that Australia’s
non-refoulement obligations are engaged, and regards this consideration as being neutral.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No 79 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).
Relevantly, paragraph 6.3(5) of the principles section of Direction No 79 states:
(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.
Further, paragraph 6.3(7) of the principles section of Direction No 79 states, in part:
(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.
As noted above, the Applicant arrived in Australia as a 17-month-old infant (see paragraph [2] above). He completed school in Australia up to year 11 (G8/293). Apart from returning to New Zealand on two occasions as a small child (see paragraph [2] above), he has not since visited New Zealand. In his revocation submissions, the Applicant described himself as a “foreigner” to New Zealand. Further, the Applicant described New Zealand as being “a place I have no knowledge of” (G10/323). He stated that he did not have any memories of New Zealand, and that (G11/340):
I have been in Perth all my life, and have never left. I have never been out of Perth as it truly is my home. I took my first steps here. I spoke my first words here. I attended education here. I had my first romantic experience here. My accent is so true blue Aussie. Half my family are Australian born. I have not one documentation of ever being in New Zealand. No medical records, no education records, no criminal record, nothing ever in indicating that I have ever lived in New Zealand other then, [sic] simply my birth certificate.
Given the Applicant’s young age when he came to Australia, it cannot be concluded that he commenced offending shortly after arriving in Australia. The Applicant did, however, commit his first offences as a juvenile in 2003 and 2008, and his first adult offence was committed on 8 March 2009 when the Applicant was 18 years of age. As an adult, the Applicant frequently offended, and he has served various sentences of imprisonment throughout most of his twenties. The Sentencing Judge noted when sentencing the Applicant for the home invasion incident on 25 November 2014, that the Applicant had not worked since 2011 or 2012 (G8/293). As such, the Tribunal finds that the Applicant has made minimal positive contributions to the Australian community.
As well as all the Applicant’s family residing in Australia (including the other nephews, nieces and cousins discussed above), some of whom are Australian born, his fiancée and stepdaughter also reside in Australia. As noted at paragraph [130] above, the Applicant also has the support of other family members including aunts, a sister in law, grandparents and numerous friends and family friends (G12 to G45; see also letters of support to the PRB at G49-G55 and G57). Accordingly, the Tribunal finds that the Applicant has a broad support network of friends and family which are indicative of his strong ties to Australia.
The Tribunal also notes the evidence of the Applicant’s fiancée that it would be “very detrimental” to his stepdaughter if the Applicant were to return to New Zealand (transcript/98). This was because the Applicant’s fiancée would leave her daughter in Australia with her mother (the child’s grandmother), and travel to New Zealand to live with the Applicant. The evidence of the Applicant’s fiancée was because the child does not have a passport and consent from the child’s biological father would be required in order to obtain one before the Applicant’s fiancée could arrange for the child to join them in New Zealand (transcript/98; see also Exhibit 1/17). The Tribunal finds that if the Applicant is removed from Australia it will have a negative impact on his fiancée and stepdaughter. If the Applicant’s fiancée stays in Australia, she will suffer the emotional detriment of being separated from the Applicant. If she relocates with him, she will be relocating to a foreign country to be with him and will face separation from her daughter. Her daughter will be faced with losing her mother and stepfather for a time if the Applicant’s fiancée relocates with him, or at the very least losing a stepfather she has become close to.
The Applicant’s mother stated that “[t]he impact to all our family if Josh is deported will be devastating to say the least. Every member of his family now resides in Australia”

(Exhibit 1/15). In another written statement, the Applicant’s mother stated that his removal would “tear [her] family apart” (G13/346), and that “[w]e just have one piece of our family puzzle missing and he needs to come home so we can be whole again” (G13/347; see also G49/402-403). In her evidence at the hearing the Applicant’s mother stated (transcript/108):
…we have a huge family and everyone just wants to have him back and to be able to integrate properly into everybody’s lives because obviously he’s been away for a while, there’s young children who - you know, write to him, and who look up to him, his brothers, his two younger siblings - you know, his younger brother has just turned 21 so he hasn’t really been a huge part of his life for a long time now. So they’re all just looking forward to being able to have that opportunity to really reconnect properly.
The Tribunal accepts the evidence of the Applicant’s mother and finds that if the Applicant were removed to New Zealand it would have a detrimental emotional impact on his mother and on the Applicant’s broader family including his siblings.
The Tribunal finds that the Applicant has close ties to Australia, particularly with respect to his having resided in Australia since he was an infant, his fiancée and stepdaughter residing in Australia, as well as all his family members including his parents, siblings, nieces, nephews and cousins. He has family and friends in the community who are willing to offer him support. The Tribunal finds that the Australian community would have a higher level of tolerance for the Applicant, given that he has resided in Australia since he was an infant (paragraph 6.3(5) of Direction No 79). The Tribunal finds that this consideration weighs strongly in favour of the revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 14.3(1) of Direction No 79 provides that the Tribunal is to consider the:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This consideration does not arise on the material before the Tribunal and is therefore not relevant.
Impact on victims
Paragraph 14.4(1) of Direction No 79 provides that the Tribunal is to consider the:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The Tribunal does not have any material before it concerning the impact of a decision not to revoke the Cancellation Decision on any of the victims of the Applicant’s offending, or their families. Consequently, this consideration is not relevant.
Extent of impediments if removed
Paragraph 14.5(1) of Direction No 79 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:
a) The non-citizen’s age and health;
b) Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
The Applicant is 29 years of age. He is generally in good health. He was diagnosed with ADHD as a child, has a gluten intolerance and has suffered from eczema in the past, which he stated usually affects him in winter. The Applicant’s evidence was that he has been waiting for the past three or four years to have an operation to repair a lateral meniscus tear to his right knee, and that it only affects him when playing sport and moving laterally. He also described suffering from anxiety since being in detention (transcript/87).
There are no language or substantial cultural barriers that would constitute an impediment to the Applicant returning to New Zealand. The Applicant would have access to the same services as other citizens of New Zealand, including economic support, social security, and access to education, employment and health services (‘The World Factbook: Australia’, Central Intelligence Agency (Web Page, 2 June 2020) ‘The World Factbook: New Zealand’, Central Intelligence Agency (Web Page, 2 June 2020) Exhibit 1/211 [77]). The Respondent referred to a recent government enquiry which resulted in additional funding to New Zealand’s mental health system (‘Schizophrenia’, Ministry of Health (NZ) (Web Page, 3 September 2019) Exhibit 1/211 [78]).
However, the Applicant also has no apparent social support in New Zealand. His evidence, and that of his mother, was that he does not have any family or friends in New Zealand. 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. If his fiancée relocates with him, her presence and support may alleviate some of the emotional impact and difficulties that the Applicant may face in readjusting, but he will still face separation from his parents, siblings and other family members, which will likely cause him emotional detriment.
The Respondent submitted that New Zealand has organisations that can assist persons who are removed from Australia to New Zealand. One of these organisations is People at Risk Solutions (PARS) (Exhibit 1/211 [78]). The Respondent cited Deputy President Dr Kendall (as he then was) in CFVG and Minister for Immigration and Border Protection [2017] AATA 1395, [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…
In his evidence at the hearing the Applicant stated that he was aware of a similar program that provided some limited assistance, having received a brochure from Border Force (transcript/44). The Tribunal finds that if the Applicant is returned to New Zealand, he would have some limited assistance in resettling.
The Applicant also expressed some concerns that the COVID-19 pandemic would impact on his ability to find employment (transcript/44):
MR DOUMANIS: Do you have any concerns about returning to New Zealand in light of the current global pandemic, and if so, what would they be?‑‑‑
APPLICANT: Yes, I have a lot of concerns revolving around financial reasons, so I mean the pandemic has obviously taken a hit to the economies all over the world. However, here I’ve still got job opportunities and I’ve still got job options, regardless of the pandemic. Back in New Zealand I do have concerns that it’s going to be hard for me to find employment, full-time employment, given the outcome of the pandemic. And I guess even just travelling scares me, travelling I don’t know nothing about this virus, so yes, going back I think – I am worried about this virus and worried that I’m not going to be – not going to have employment.

The Tribunal agrees that although the duration and impact of the COVID-19 pandemic is uncertain, it is likely to enhance the difficulties and uncertainties which the Applicant would face in re-establishing himself, finding employment and accessing support services if he is returned to New Zealand.
Overall, the Tribunal finds that the Applicant may encounter some difficulty and hardship establishing himself and maintaining a basic standard of living if he were to return to New Zealand, but that these difficulties are not insurmountable. Consequently, this consideration only weighs slightly in favour of the revocation of the Cancellation Decision.
Impact of COVID-19 pandemic
If the Tribunal affirms the Reviewable Decision, the Applicant must be removed to New Zealand as soon as is reasonably practicable (under s 198 of the Migration Act). Given current restrictions on international travel due to the COVID-19 pandemic, it may not be possible for the Applicant to be removed in the immediately foreseeable future. Thus, if the Tribunal affirms the Reviewable Decision, the Applicant may face an additional period of detention before it will be reasonably practicable to remove him to New Zealand. However, as noted by Member Eteuati in FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294, [299] “[t]his may result in prolonged but not indefinite detention for the Applicant until the risk presented by the virus … subsides”.
The Tribunal notes that the Applicant is fearful of catching COVID-19 in immigration detention and raised concerns about a lack of social distancing in immigration detention (Exhibit 1/10; transcript 44-45). The Tribunal appreciates these concerns, but also notes the Respondent’s submission that steps have been taken to implement the Communicable Diseases Network Australia (CDNA) Guidelines for the Prevention, Control and Public Health Management of COVID‐19 Outbreaks in Correctional and Detention Facilities in Australia. Additionally, the Respondent noted that at the time of the submissions, there were no reported cases of COVID-19 amongst detainees in any immigration detention centre (Exhibit 1/212 [88]).
The Tribunal appreciates that the prospect of additional time in immigration detention, together with the Applicant’s concerns about contracting COVID-19, may cause additional stress to the Applicant while he remains in detention. The Tribunal finds that this factor weighs slightly in favour of the revocation of the Cancellation Decision.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
The Tribunal has therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 79.
In relation to the first primary consideration, the Tribunal finds that:
(a)the nature and seriousness of the Applicant’s conduct weighs strongly against the revocation of the Cancellation Decision (paragraphs 13.1 and 13.1.1 of Direction No 79); and
(b)the risk to the Australian community should the Applicant commit further offences also weighs strongly in favour of the Tribunal refusing to revoke the Cancellation Decision (paragraph 13.1.2 of Direction No 79).
Overall, with respect to the first primary consideration, the Tribunal concludes that the protection of the Australian community (paragraphs 13.1, 13.1.1 and 13.1.2 of

Direction No 79), weighs strongly in favour of the Tribunal refusing to revoke the Cancellation Decision.
With respect to the second primary consideration, being the best interests of minor children (paragraph 13.2 of Direction No 79), the Tribunal finds that the best interests of the Applicant’s:
(a)stepdaughter weigh moderately in favour of the revocation of the Cancellation Decision;
(b)nieces and nephews weigh slightly in favour of the revocation of the Cancellation Decision;
(c)cousin’s daughter, LC, weigh slightly in favour of the revocation of the Cancellation Decision;
(d)cousin’s daughter, EM, are neutral; and
(e)the Tribunal has insufficient evidence before it to reach a conclusion about the other minor children.
In relation to the other considerations that are applicable:
(a)the strength, nature and duration of the Applicant’s ties to Australia (paragraph 14.2(1) of Direction No 79) weighs strongly in favour of the revocation of the Cancellation Decision;
(b)the impediments the Applicant would face if returned to New Zealand weigh slightly in favour of the revocation of the Cancellation Decision (paragraph 14.5(1) of Direction No 79); and
(c)the impact of the COVID-19 pandemic, including the uncertain period that the Applicant may face in immigration detention if the Reviewable Decision is affirmed, weighs slightly in favour of the revocation of the Cancellation Decision.
Further, the Tribunal has found that Australia’s non-refoulement obligations are not engaged by any claims raised by the Applicant.
The Tribunal has found that the expectations of the Australian community would be that the Cancellation Decision should not be revoked. In determining the weight to be applied to this consideration, the Tribunal has considered the primary considerations, including the serious nature of the Applicant’s offences which include grievous bodily harm, assault occasioning bodily harm and other violent and weapons related offending. The Tribunal has also considered his moderate risk of reoffending in a violent manner. Both weigh strongly against the revocation of the Cancellation Decision.
The Tribunal has also balanced these considerations against those which weigh in the Applicant’s favour. These include: the primary consideration of the best interests of minor children, and particularly the interests of the Applicant’s stepdaughter which weigh moderately, as well as those of the other children which weigh slightly, in favour of revocation of the Cancellation Decision. Additionally, the Tribunal has considered the impediments the Applicant would face if he were returned to New Zealand which weigh slightly in his favour, as well as his ties to Australia which weigh strongly in his favour.
The Tribunal has balanced these considerations, as well as considering relevant principles in Direction No 79, including the principle in paragraph 6.3(4). This, in summary, provides that in some circumstances criminal offending 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 (which in the Tribunal’s opinion includes violent offending). The Tribunal concludes that the expectations of the Australian community would weigh strongly against the revocation of the Cancellation Decision (paragraph 13.3 of Direction No 79).
Accordingly, the Tribunal finds that the primary considerations of the protection of the Australian community, and the expectations of the Australian community, substantially outweigh the other primary considerations of best interests of relevant children, and the other considerations of the Applicant’s strength, nature and duration of ties to Australia, the extent of impediments if removed, and COVID-19 related considerations, including his detention for an uncertain period of time until he can be removed.
Having had regard to all the relevant primary considerations and the relevant other considerations in accordance with Direction No 79, the Tribunal is of the view that the correct or preferable decision is not to revoke the Cancellation Decision, and consequently, the Reviewable Decision should be affirmed.
DECISION
The Reviewable Decision dated 23 March 2020 is affirmed.

I certify that the preceding 241 (two hundred and forty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

.......[sgd]..............................................................
Associate
Dated: 15 June 2020

Date of hearing:

2 June 2020

Representative for the Applicant:

Representative for the Respondent:

Mr A Doumanis, Easy Migration Australia

Mr J Papalia, The Australian Government Solicitor

[2020] AATA 1777

15 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice