Ash and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 890

Ash and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 890 (24 April 2024)
Division:GENERAL DIVISION
File Number(s): 2024/1373
Re:Oliver George Ash
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:24 April 2024
Place:Perth

The decision of the delegate of the Minister dated 31 January 2024 under s 501CA(4) of the Act not to revoke the cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa is affirmed.
.......[Sgd]...........................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – s 501CA(4) of Migration Act - decision not to revoke mandatory cancellation of visa - Applicant is a citizen of United Kingdom - Direction 99 considered - Applicant had lived in Australia for 15 years – arrived as a 16-year-old - extensive criminal record – repeated violent offences – family violence - serious driving record – long-standing methamphetamine addiction - risk of re-offending at high end of low to moderate - primary considerations of protection best interests of minor children and ties to the Australian community weigh in favour of revocation of cancellation – primary considerations of protection of the Australian community, family violence and expectations of the Australian community outweigh considerations in favour of revoking cancellation of visa - there is not another reason to revoke the decision to cancel the Applicant’s visa – reviewable decision affirmed
PRACTICE AND PROCEDURE – Administrative Appeals Tribunal Act 1975 – whether orders should be made under s 35 giving the Applicant a pseudonym and suppressing certain evidence - no evidence to support the Applicant’s assertion that he, his family or his children would face harm – information already in the public domain - no justification for the use of a pseudonym or the suppression of other information – orders refused.
LEGISLATION
Administrative Appeals Act 1975 (Cth) ss 35, 35(2), 35(3), 35(4), 35(5)
Federal Court of Australia Act 1976 (Cth) s 37AG(1)
Migration Act 1958 (Cth) ss 499, 499(1), 499(2A), 500(1)(ba), 500(6B), 500(6L), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1), 501G(1)(e)
CASES
Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125; (2022) 295 FCR 315
Australian Securities and Investments Commission v Administrative Appeals Tribunal (2008) 113 ALD 449
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762
Kim v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 294
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Home Affairs v HSKJ [2018] FCAFC 217; [2018] FCAFC 217; 266 FCR 591
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Paewai and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 2978
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Phuoc Dat Trang (Formerly named as AZL20) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCAFC 104
Price v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 171
PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 14
RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 266
Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
The Food Improvers Pty Ltd v BGR Corporation Pty Ltd (No 2) [2006] FCA 1394; (2006) 155 FCR 216
Webb v Minister for Home Affairs [2020] FCA 831
XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6
XRGY and Minister for Immigration, Citizenship, and Multicultural Affairs [2023] AATA 755
SECONDARY MATERIALS
Lorraine Finlay, Steven Caruana and Zahli Hansen, ‘Yongah Hill Immigration Detention Centre Inspection Report’ (Australian Human Rights Commission, April 2024)
REASONS FOR DECISION
Deputy President Boyle
24 April 2024
THE APPLICATION

The Applicant seeks review of the decision of a delegate of the Respondent (Minister) dated 31 January 2024 under s 501CA(4) of the Migration Act 1958 (Cth) (Act) not to revoke the cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa.[1]
[1] R1/10.
The visa was cancelled on 8 October 2021 under s 501(3A) of the Act on the basis that the Applicant did not pass the character test by reason of having a “substantial criminal record” because he had been sentenced to a term of imprisonment of 12 months or more and was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the Commonwealth, a State or a Territory.[2]
[2] R1/248.
By a document dated 18 October 2021,[3] the Applicant made representations for the revocation of the cancellation of the visa, and on 31 January 2024, the delegate of the Minister made the decision not to revoke the cancellation of the visa (see [1] above).
[3] R1/174-175.
The delegate’s decision was hand delivered to the Applicant on 31 January 2024. On 3 February 2024 the Applicant lodged with the Tribunal an application for the review of the delegate’s decision. The copy of the decision handed to the Applicant on 31 January 2024 did not contain pages 4 to 6 of the delegate’s reasons for the non-revocation decision. The Minister considered that the failure to provide a full copy of the reasons fell foul of s 501G(1)(e) of the Act. Although this failure does not affect the validity of the decision (and therefore the Tribunal’s jurisdiction), the Tribunal has previously found that a failure to comply with the necessary requirements of s 501G(1) of the Act would render the notice to the Applicant defective (see Paewai and Minister for Immigration, Citizenship and Multicultural Affairs.[4] The relevant flow-on effect of the notice being defective being that the 84-day timeframe in s 500(6L) of the Act had not commenced.
[4] [2023] AATA 2978 at [39]-[54].
Accordingly, on 6 March 2024, the Minister renotified the Applicant of the non-revocation decision this time complying with s 501G(1) of the Act.[5]
[5] R2/1142.
Section 500(1)(ba) of the Act allows an application to be made to the Administrative Appeals Tribunal for review of a decision of a delegate of the Minister made under s 501CA(4) of the Act not to revoke the cancellation of a visa.
On 7 March 2024, the Applicant resubmitted his application for a review of the delegates decision. The application was made within the statutory time limit set out in s 500(6B) of the Act for a decision notice of which was provided to the Applicant on 6 March 2024.
BACKGROUND
The Applicant is a citizen of the United Kingdom (UK). He was born in London on 23 April 1992.
The Applicant arrived in Australia representing Great Britain in a sporting competition on 24 August 2008. He was 16 years old. After his arrival in Australia, he lived with his aunt and uncle on a farm in Victoria. In January 2009 the Applicant’s mother arrived in Australia. The Applicant joined his mother and sister in Perth in January 2009 and has lived in Western Australia since then.
In or around early 2011 the Applicant commenced a relationship with Ms K. In September 2012 Ms K gave birth to the Applicant’s first son who is an Australian citizen. A few months after the birth of that child, the Applicant and Ms K ended their relationship.
In 2013 the Applicant became a member of the Rebels Outlaw Motorcycle Club (Rebels). The Applicant left the Rebels in 2015 by “handing in his patch”.[6] The Applicant started taking illicit drugs while a member of the Rebels (cocaine and ecstasy).
[6] Applicant’s Statement of Facts, Issues and Contentions (Applicant’s SFIC) para 12.
In or around late 2017 the Applicant was in a relationship with Ms B. In October 2018 Ms B gave birth to the Applicant’s second son who is an Australian citizen. The Applicant’s relationship with Ms B ended seven months after the birth of their son. This was, according to the Applicant, because of his “continued drug addiction”.[7]
[7] Applicant’s SFIC para 14.
In 2019 the Applicant started work on a gold mine on a fly-in-fly-out (FIFO) basis. He used methamphetamine while not on site and his “addiction became progressively worse”.[8]
[8] Applicant’s SFIC para 15.
On 10 November 2019, the Applicant committed the offence of grievous bodily harm (2019 offence). He was arrested, charged and taken to Bunbury Regional Prison. He was subsequently granted bail on 29 November 2019 and flew out soon after to resume his FIFO work.
In or around February 2020, the Applicant began a relationship with Ms M. The Applicant said that this relationship featured heavy methamphetamine use by both parties.
The Applicant’s employment ceased in or around March 2020 when the mine on which he was working shut down. He remained unemployed until he was taken into custody in December 2020. He said that during this time he resumed using methamphetamine, financed through the redundancy payout he had received from his previous job.[9]
[9] Applicant’s SFIC para 17.
On 30 November 2020, the Applicant committed the offence of unlawful assault and thereby did bodily harm with circumstances of aggravation against Ms M (2020 offence). He was arrested and taken into custody on 19 December 2020. He was charged with the 2020 offence and refused bail.
On 2 September 2021, the Applicant was sentenced to three years' imprisonment, backdated to 19 December 2020 with eligibility for parole, for the 2019 offence. Five days later, he was sentenced to eight months' imprisonment for the 2020 offence, to be served concurrently with the 2019 offence sentence.
On 7 June 2023, the Applicant was released into immigration detention.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act relevantly provides that:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)...; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Act relevantly provides:
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)); ...
(Original emphasis.)
A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) ...
(b) ... or
(c) the person has been sentenced to a term of imprisonment of 12 months or more...
(Original emphasis.)
Section 501CA of the Act relevantly 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.
...
(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.
Section 499(1) of the Act provides that:
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.
Section 499(2A) of the Act provides that “A person or body must comply with a direction under subsection (1).”
Direction 99
On 23 January 2023, the relevant Minister for the purposes of s 499 of the Act made a direction titled “Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 99). The commencement date for operation of Direction 99 was 3 March 2023. Upon its commencement, Direction 99 revoked the operation of “Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 90).
Paragraph 5.1 sets out the objectives of Direction 99. Relevantly, para 5.1 provides:
1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.
...
(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 their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
(4) The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of Direction 99 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke the cancellation of a visa under s 501CA of the Act. These principles are as follows:
(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) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable (sic) risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (sic) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable (sic) risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 99 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 99 (where such considerations are relevant) to determine whether the decision to cancel the visa under s 501(3A) of the Act should be revoked.
Guidance in relation to how the relevant considerations are to be taken into account is found in para 7 of Direction 99 which provides that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of Direction 99 is as follows:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
Paragraph 9 of Direction 99 is as follows:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) Legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests.
THE HEARING AND THE EVIDENCE
The application was heard on 15 and 16 April 2024. The Applicant was represented by Ms A Graziotti, and the Minister was represented by Mr A Burgess. Oral evidence was given at the hearing by the Applicant, the Applicant’s mother and Mr Balfour, a psychologist called by the Applicant.
The following documents were admitted into evidence:
(a)Applicant’s Bundle of Evidence, received on 9 March 2024 (A1);
(b)Applicant’s Further Bundle of Evidence, received 10 April 2024 (A2);
(c)Minister’s Section 501G Documents (R1); and
(d)Minister’s Tender Bundle, received 2 April 2024 (R2).
THE ISSUE FOR DETERMINATION
The substantive issue for determination is whether I should exercise the power in s 501CA(4)(b) of the Act to revoke the cancellation of the Applicant’s visa under s 501(3A). This will require determination of:
(a)whether the Applicant passes the character test (as defined by s 501 of the Act); and
(b)if he does not pass the character test, whether there is “another reason” why the decision to cancel the Applicant’s visa should be revoked.
PRELIMINARY ISSUE: SHOULD THE APPLICANT BE GIVEN A PSEUDONYM?

By an email sent on 10 April 2024, the Applicant, through his lawyers, requested the assignation of a pseudonym. The full relevant text of the request was as follows:
The applicant requests a suppression order be issued to protect the identity of his children, his family and himself, given his past association with the Rebels OMCG and his fear of repercussions should his evidence regarding the club and its processes be made public.
We also recommend that the name of the OMCG be redacted in the Tribunal’s published decision for the same reason.
This can be discussed further at the hearing on Monday 15 April 2024.
Section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) relevantly provides:
Public hearing
(1)Subject to this section, the hearing of a proceeding before the Tribunal must be in public.
Private hearing
(2) The Tribunal may, by order:
(a) direct that a hearing or part of a hearing is to take place in private; and
(b) give directions in relation to the persons who may be present.
Orders for non - publication or non - disclosure
(3) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:
(a) information tending to reveal the identity of:
(i) a party to or witness in a proceeding before the Tribunal; or
(ii) any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or
(b) information otherwise concerning a person referred to in paragraph (a).
…
(5) In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:
(a) that hearings of proceedings before the Tribunal should be held in public; and
(b) that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and
(c) that the contents of documents lodged with the Tribunal should be made available to all the parties.
While the Applicant did not identify the section or sections of the AAT Act pursuant to which he sought the “suppression order”, or the terms of the order or orders sought, I assume that the Applicant seeks an order under s 35(3) of the AAT Act (identity of himself, family and children) and, potentially, s 35(4) (reference to Rebels OMCG).
Prior to the parties making their opening statements on 15 April 2024, Ms Graziotti advised that the Applicant maintained the application for a pseudonym and presumably the other elements identified in her email of 10 April 2024. Mr Burgess advised that his instructions were that the Minister did not oppose the making of an order for the Applicant to be given a pseudonym and, again I assume, the other elements of the “suppression order” sought.
At that time, I asked Ms Graziotti whether there was any evidence that the Rebels, which the Applicant quit in mid-2015 (see [11] above), posed a threat to the Applicant, his children or his family. She was unable to identify any such evidence.
The statements filed by the Applicant went into some detail about the circumstances surrounding his decision to quit the Rebels and the “processes” that he went through when he quit. This included being badly assaulted by club members and paying a “fine” of $20,000 with his Harley Davidson motorcycle being taken until payment was made. He said that he and his family were harassed until the $20,000 was paid. He also said that he had his Rebels tattoo covered over by the club.[10]
[10] Applicant’s statement 1 October 2023, R1/194.
In his statement dated 9 March 2024, the Applicant stated that, apart from “bumping into” another former member of the club, he has had “no other contact with any other members of the rebels since [he] left”.[11] It is now nearly nine years (according to the Applicant) since he has had any association with the Rebels.
[11] A1/50.
The Applicant’s claimed concern that the Rebels may take umbrage at the Applicant revealing the Rebel’s “processes [being] made public” (see [36] above) is unsupported by any evidence. That claim is, in any event, significantly undermined by the documents filed by the Applicant on 10 April 2024, which were admitted into evidence as exhibit A2. Included in that material were articles which went into considerable detail about the consequences for members leaving OMCGs. An article published in The Sydney Morning Herald in February 2021, headed “Bikies face $10,000 exit fees, threats and loss of assets”, under a half-page colour photograph of a group of patched Rebels members on motorcycles stated:[12]
Bikies who walk away from outlaw motorcycle gangs can face large financial losses, intimidation and violence as a result of abandoning their commitment to a club.
…
Former members reported financial losses of up to $250,000 as a result of leaving. They can be forced to pay outstanding dues or an ‘exit fee’ of between $5000 and $10,000 and forfeit their motorbike.
[12] A2/91.
The article stated that it was based on interviews with 39 former gang members conducted by the Australian Institute of Criminology in conjunction with the Queensland Police Service.
An article published by News.com.au on 23 August 2022 referred to a report by Stephen Drill, a reporter for the Herald Sun.[13] That article said:
Drill says leaving a gang comes at a cost, whether that be by paying up or in the worst case scenario, literally losing some skin.
“In some cases, they’ll burn the tattoos off your arms, which is fairly confronting,” Drill told podcast host Andrew Bucklow.
“Sometimes it can be even worse; there have been some horrible but unconfirmed stories of how some tattoos have been removed.”
Meanwhile in other cases, bikies can be “taxed” their Harley Davidson which Drill said is usually worth around $50,000.
[13] A2/93-94.
The above articles reflect the Applicant’s evidence of what happened to him when he left the Rebels. There was no statement made by the Applicant either in his written statements or in his oral evidence at the hearing as to any “club processes” other than what happened to him when he quit the Rebels. Clearly, what happens to members when they quit OMCGs is already well and truly in the public domain. As Rares J put it in The Food Improvers Pty Ltd v BGR Corporation Pty Ltd (No 2),[14] “[t]he gaff was already blown”.
[14] [2006] FCA 1394; (2006) 155 FCR 216 at 222 [25], 224 [35]-[36].
The Full Court of the Federal Court considered the possible exceptions to the openness principle in s 35 of the AAT Act, drawing on the principles relating to suppression orders made by courts, in Australian Securities and Investments Commission v Administrative Appeals Tribunal (ASIC v AAT) said:[15]
[74] Again, we think it is important to emphasise certain aspects of the statutory provisions. Although s 35(1) is subject to the balance of the section, it establishes a norm. The norm is that the proceedings before the AAT shall be in public. This norm is reinforced by the requirements of s 35(3)[16] which expressly confirm the principle that it is desirable that hearings be held in public. It follows that when deciding whether it is satisfied that it is desirable to exercise its powers under s 35(2), the AAT is required to form a state of satisfaction which recognises the existence of the norm and the values it is intended to protect. This, no doubt, is why Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 at 272; 2 ALD 33 at 55–6 ; 36 FLR 482 at 510 described the power in s 35(2) to depart from this norm as one to be exercised “sparingly”. It also explains the approach in PTLZ at [6] , [41] and [42] (an appeal to the Full Court of the Federal Court from the decision of the AAT in PTLZ) emphasising that the words of s 35(3) require this principle of the desirability of hearings to be in public to be “the basis” of the AAT’s consideration of adopting a different approach (in contrast, for example, to “a basis” for that consideration).
[75] Suppression orders are rarely made in courts, even though publicity undoubtedly disadvantages the parties. Criminal proceedings are a good example. In the AAT itself facts which parties would not wish to be published and which may disadvantage them are frequently published. Social security applications are a good example. The reason these matters are not kept secret is the overriding importance of justice being administered openly and in public. It is not readily apparent why persons in businesses should be treated differently even when, for example, employees may be disadvantaged.
[15] (2008) 113 ALD 449.
[16] Equivalent of s 35(5) in the AAT Act.
While the Full Court in ASIC v AAT was considering the making of an order under the equivalent of s 35(2) of the AAT Act rather than s 35(3), there is no reason why the same principles and the “norm” would not apply when considering whether to make a direction under s 35(3). In that regard, s 35(5) makes no distinction between directions under subsections (2), (3) and (4).
At [76] the Full Court in ASIC v AAT observed that:
When measured against the existence of the norm of a public hearing and the scheme established by the Corporations Act with respect to banning orders, it is apparent that the AAT would need some cogent reason by reference to the particular case to depart from the ordinary requirement of a public hearing.
I am also very mindful of the views expressed by the Full Court of the Federal Court in Phuoc Dat Trang (Formerly named asAZL20) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2),[17] and the statements by Rares and O’Callaghan JJ in AZL20 at [22] referred to in [2] of Trang.[18] While the Court in Trang was considering the s 37AG(1) of the Federal Court of Australia Act1976 (Cth) which sets out the grounds on which an order that the name or identity of a person involved in any way, including as a party or witness, be suppressed. There is no reason why the same general principles would not apply to the Tribunal making orders under s 35 of the AAT Act.
[17] [2021] FCAFC 104.
[18] [2021] FCAFC 72.
In the present case, there is simply no evidence to support the Applicant’s assertion that he, his family or his children would face harm if the Applicant’s name was not suppressed, or the information identified in the Applicant’s lawyer’s letter of 10 April 2024 disclosed. Based on the above facts and the cases to which I have referred, there is no justification for the use of the pseudonym or the suppression of other information. In any event, in accordance with the Tribunal’s standard practice, I have not used the children’s names nor the names of their mothers and the Applicant’s other former intimate partner who was the victim of family violence.
SUBSTANTIVE ISSUE
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law. The character test is defined in s 501(6) of the Act (see [21] above). Under s 501(6)(a) of the Act, a person does not pass the character test if the person has “a substantial criminal record”. Section 501(7)(c) of the Act (see [22] above) provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more...”. The Applicant has been sentenced to a term of imprisonment of more than 12 months and therefore he has a substantial criminal record and, as a result, does not pass the character test. The Applicant conceded that he does not pass the character test.[19]
[19] Applicant’s SFIC para 27.
The Applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution at the time of the cancellation of his visa on 8 October 2021. I am satisfied that the elements of s 501(3A) of the Act were satisfied and that the cancellation of the Applicant’s visa under that section was valid.[20]
[20] A valid cancellation decision is a pre-condition to the valid exercise of the revocation power under s 501CA(4) of the Act – see PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 14 and XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6.
As the Applicant does not pass the character test, he cannot rely on s 501CA(4)(b)(i) of the Act for the decision to cancel his visa to be revoked. The issue for determination, therefore, is whether the power under s 501CA(4)(b)(ii) should be exercised on the basis that there is another reason why the decision under s 501(3A) should be revoked (see Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[21] and Kim v Minister for Immigration, Citizenship and Multicultural Affairs.[22] As those cases make clear, the exercise to be undertaken by the Tribunal is not one of determining whether a discretion should be exercised,[23] but is rather determining whether there is another reason why the decision under s 501(3A) should be revoked.[24]
[21] [2022] FCAFC 125; (2022) 295 FCR 315.
[22] [2024] FCA 294.
[23] Both parties in their SFICs referred to the tribunal exercising “the discretion under s 501CA(4)”: Applicant’s SFIC para 28 and Minister’s SFIC para 11.
[24] Note: that position may not be as clear as stated in Au and Kim given the High Court’s judgment in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (10 April 2024) wherein at [33] and [35] the Court refers to “the exercise of the discretion under s 501CA(4)”.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1 of Direction 99 provides that, when decision-makers are considering the protection of the Australian community, they:
(1)... should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens 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.
(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 (para 8.1.1)
Paragraph 8.1.1 of Direction 99 relevantly provides:
conduct to date, decision-makers must have regard to the following:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed.
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)...
(ii) 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;
...
c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e) the cumulative effect of repeated offending;
...
The Applicant has an extensive criminal record. The Applicant’s criminal record, as disclosed by the Australian Criminal Intelligence Commission (ACIC) Check Results Report,[25] is set out in the annexure to these reasons.
[25] R1/29-30.
The Applicant’s SFIC made submissions relevant to this consideration to the following effect:
(a)The 2019 offence and the 2020 offence involved violence, and one was committed against a woman with whom he was in a relationship. He does not dispute that these offences should be viewed very seriously.
(b)In relation to para 8.1.1(1)(c) of Direction 99, generally the Applicant has been sentenced to a term of imprisonment or a penalty less than one third of the maximum available (and in the case of the 2013 offences, did not receive a term of imprisonment).
(c)The Applicant has not received a formal warning about the consequences of offending on his migration status (para 8.1.1(1)(g) of Direction 99).
(d)While the Applicant does not have a lengthy criminal history, he does have multiple violent offences. There is also some escalation in the seriousness of his offending and the 2020 offences was committed against an intimate female partner.
(e)The Applicant concedes that consideration in para 8.1.1 of Direction 99 “weighs very strongly against the Applicant”.[26]
[26] Applicant’s SFIC para 63.
The Minister’s SFIC made submissions to the following effect:
(a)The Applicant has committed offences that include common assault, entering premises contrary to a banning order, driving offences, disorderly behaviour in public, assault occasioning bodily harm, possession of stolen property, breach of bail undertaking, unlawful assault and thereby did bodily harm in circumstances of aggravation (family violence) and grievous bodily harm.
(b)The 2019 offence (grievous bodily harm for which the Applicant was sentenced to three years’ imprisonment) involved an assault which resulted in the victim having a fractured eye socket and bruising to the victim’s face. The victim was hospitalised and still suffers the effects of the injury. The sentencing judge noted that, although the victim had raised the meat cleaver prior to being assaulted, he did not seek to strike the Applicant with it. The sentencing judge also issued a Violence Restraining Order (VRO) for life against the Applicant. Life-long restraining orders are only granted in extreme cases.
(c)That offence was very serious because it was a crime of violence (para 8.1.1(1)(a)), of the sentence of three years’ imprisonment imposed by the Court (para 8.1.1(1)(c)) and because of the frequency of the Applicant’s offending and the fact that there is a trend of increasing seriousness (para 8.1.1(1)(d)).
(d)There is a prior history of violent offending. On 3 February 2016 the Applicant was convicted in the Magistrates Court of Western Australia of assault occasioning bodily harm and sentenced to a 12-month suspended imprisonment order. The assault involved the Applicant confronting a member of the public at a petrol station, yelling abuse and punching the victim with significant force. The victim lost consciousness, falling to the ground and striking his shoulders and head on the concrete. While the victim was still unconscious, the Applicant continued to stand over him with a clenched fist and continued to yell in a manner that caused others present to believe the victim would be further assaulted.
(e)On 10 December 2013, the Applicant was convicted in the Magistrates Court of Western Australia of common assault (two counts) for which a fine was imposed. The Applicant’s violent offending is viewed very seriously by the Australian Government and Australian community: paragraph 8.1.1(1)(a)(i) of Direction 99.
(f)The 2020 offence, unlawfully assault and thereby did bodily harm with circumstances of aggravation, involved family violence. The offence involved the Applicant picking up his (then) partner of nine months, [Ms M], by the arms and throwing her to the ground where she struck her head on the driveway. The victim was taken to hospital and treated for a laceration on the top of her head. The victim sustained a neck injury which caused pain and soreness and for which she required a neck brace while in hospital. On 21 December 2020, the Applicant was served with a Family Violence Restraining Order (FVRO) and charged with the 2020 offence. He was not granted bail. The Applicant was sentenced to a term of imprisonment of eight months.
(g)On 5 September 2019, the Applicant was served with a FVRO in relation to Ms K, mother of his older son. The Applicant claims the FVRO was sought because the Applicant verbally abused Ms K over the phone. The FVRO was in place for two years, expiring on 4 September 2021.
(h)These offences are very serious because they involve acts of family violence (para 8.1.1(a)(iii) of Direction 99).
(i)The Applicant was previously a member of the Rebels. The Applicant claims he has renounced his membership (by handing in his patch) and ceased all contact with the club in 2015, however, a file note from the Western Australian Police in 2022 states that in 2020 the Applicant was a passenger in a vehicle registered to a former senior member of the Rebels. The same file note states that “conflicting holdings exist regarding whether the applicant is currently in good or bad standing with the club”. It is questionable whether the applicant’s association with the Rebels has fully ceased.
(j)The Applicant’s driving offences are serious, having regard to the frequency and cumulative effect of his offending: para 8.1.1(d) and (e) of Direction 99.
(k)Overall, the Applicant’s offending should be viewed as very serious and weighs heavily against the Applicant.

In his statement dated 9 March 2024,[27] the Applicant acknowledged that his offences were “serious because they directly impact the safety and well-being of individuals and communities”. He further stated that “[a]ssault and family violence can cause physical and emotional harm, affecting victims lives long-term” and that “[r]eckless driving not only endangers the driver but also other road users.”[28]
[27] A1/47-57.
[28] A1/49 para 3.
The most serious of the Applicant’s offences were grievous bodily harm, the 2019 offence, and the unlawful assault and thereby did bodily harm with circumstances of aggravation, the 2020 offence.
The facts of the 2019 offence were set out in the sentencing remarks of Gillon DCJ as follows:[29]
On 10 November 2019 you were at a house owned by your friend, [S], in a suburb of Busselton. There were also there a number of [S]’s family, another young associate, [B], and a friendly [sic] acquaintance with whom you had shared methylamphetamine on some occasions, [D].
An altercation broke out between [D] and you. I’m not convinced that it was [D] who started acting aggressively towards you but I do accept that immediately before you struck him that [D] had picked up a meat cleaver and, using your description, baulked you with it.
By this, I mean that he held it above his head and gestured the cleaver towards you. But I find that he did not seek to strike you with it. And in circumstances where there were others present, including [S], a large man, and [B], I find that those people at least were present at the time that this occurred.
You then hit [D] twice to the face. The blows were very hard, with a left-right combination. The first of those blows caused bruising to [D]’s face and the second to his left eye, fracturing his eye socket.
Now, there are some aggravating features about this. You were there with others in your friend’s house – [S]’s house. [S] and [B] were, on your evidence, present. You are a strong man with considerable boxing experience, and [D] still suffers from the ongoing effect of the fracture to his eye socket.[30]
…
You do suffer from ADHD which was diagnosed as an adult but you’re otherwise in good physical health. It’s obvious during the circumstances at trial, from the concessions of your counsel and from the pre-sentence report, that you have had a problem with methylamphetamine, however.
Your evidence at trial was that you did not have any methylamphetamine - you had not been using methylamphetamine at the time of the offending and that you had never supplied methylamphetamine to [D], and you weren’t able to source any at your victim’s request. But I do not (sic) the pre-sentence report writing records that you admitted you were using methylamphetamine at the house with others of the day of this offending.[31]
[29] R1/41.
[30] R1/43.
[31] R1/44.
In his handwritten statement dated 1 October 2022,[32] the Applicant said that leading up to the offence he was still using methamphetamine on a daily basis and was in a “bad place mentally and physically”. In relation to the assault, he said in that statement that:
I genuinely feared for my life at the time but I know now that I could have tried to defuse the situation or even to not have been in that environment
[32] R1/193-199.
At para 44 of the Applicant’s SFIC, the Applicant said that the “circumstances of the 2020 Offence were summarised by Western Australia Police in the Statement of Material Facts (SOMF) dated 21 December 2020”. That Statement of Material Facts was as follows:[33]
[33] R1/35-39.
The accused male is 28 years of age, 180 centimetres tall with a heavy build.
The female victim is 26 years of age, 165 centimetres tall with a slim build.
The accused and victim met in March 2020 and soon after developed a relationship which continued for nine months.
In the days leading up to 30 November 2020 the accused and the victim spent time together at an Airbnb holiday house in Busselton. During this time, the accused took the victim's Iphone handset and left the premises.
On 30 November 2020 the victim was in Perth and was making attempts to find her phone.
Approximately 2.30pm that day, the victim drove her vehicle to [omitted], an address she knew the accused attends.
The accused became angry that the victim was at the address and aggressively approached her on the driveway.
The victim and accused exchanged words on the driveway and the victim said, "Fuck you" to the accused, the accused said, "What was that?". The accused then grabbed the victim by the shirt and pulled her towards him. The accused picked the victim up by the arms and threw her to the ground where her head hit the concrete driveway.
The victim lost consciousness for a short amount of time and woke to the accused pouring water on her face.
The victim stood up and the accused helped her get into his nearby vehicle, a Suzuki swift hatchback. The victim slept for a short time and woke up with blood coming from her head. The victim beeped the horn.
The accused then approached the driver's side of the vehicle and said, "What the fuck are you doing?" and slapped the victim to the face with his right hand.
As a result of the assault the victim required hospital treatment and was conveyed to Royal Perth Hospital via ambulance. The victim received a laceration to the top of her head which bled and caused pain and soreness.
The victim also received an injury to her neck which caused pain and soreness and required a neck brace whilst in hospital (formal medical report pending).[34]
[34] R1/37.
In his statement dated 1 October 2022,[35] referred to at para 46 of the Applicant’s SFIC, the Applicant stated that “[t]his was another situation where the use of drugs impaired my process of making the right decision”. His version of the incident was that there had been a “verbal altercation occurred which led to me pushing [Ms M] to the ground causing her to sustain a laceration to the head” and that he “then assisted her and helped her and checked on her welfare”. This version is materially different to that set out in the Statement of Material Facts (see [48] above). The Applicant noted that he had also been charged with common assault arising out of that incident, but that he disputed the facts of the common assault charge, and that charge was dropped.
[35] R1/193-199.
Specifically in relation to the 2020 offence, in his statement dated 9 March 2024, the Applicant made the following statements:
Family violence is very serious…. It is unacceptable under any circumstances and every individual has the right to feel safe and respected. I understand the profound impact family violence can have on the victim physically, emotionally and psychologically. There are long term consequences of such behaviour on individuals…
I understand that my offence has likely had a significant and lasting impact on [Ms M]. A charge like this can not only cause physical trauma but it can also cause emotional trauma and create a sense of vulnerability.
I note that in his statement dated 9 March 2024, the Applicant also made the following statement:
I also was served a FVRO from [Ms K] (the mother of my son [omitted]) in September 2019. The FVRO was served to me due to a couple of phone calls me and [Ms K] engaged in. I was abusive on the phone… I accept that I was out of line and should not have spoken to [Ms K] the way I did. [Ms K] proceeded to get a FVRO placed on me. I believe that [Ms K] would have felt threatened and abused and I agree it s unacceptable to make her or anyone else feel that way.
The other offences of significance are the two common assaults committed in June 2013, for which the Applicant was convicted on 10 December 2013, and the assault occasioning bodily harm committed on 10 May 2015, for which the Applicant was convicted on 3 February 2016. The circumstances of the assault occasioning bodily harm committed on 10 May 2015 were set out in the Western Australian Police Statement of Material Facts as follows:[36]
At approximately 5:15pm on Sunday, 10th of May 2015, the accused and the complainant, who are unknown to each other were at the [omitted]Service[omitted]Station.
The complainant entered the store to pay for fuel before exiting onto the petrol station parking area near the service station entrance. The accused, a passenger in a rental vehicle, confronted the complainant and commenced to yell comments towards him. The complainant, (whose fifteen year old son was nearby) replied that he didn't know what the accused was talking about before continuing to his vehicle parked adjacent to a petrol bowser.
The accused rushed after the complainant and continued to yell comments towards him with the complainant backing away further towards the petrol bowsers. The accused continued to yell comments towards the complainant before using a clenched fist to punch the complainant to the head with significant force. The impact of the punch caused the complainant to immediately lose consciousness and fall to the ground resulting in his shoulders and head striking the concrete. Whilst the complainant was unconscious on the ground, the accused stood over him with a clenched fist and continued to yell in a manner that caused others present to believe the complainant would be further assaulted.
Due to a fear that the accused would continue to assault the injured complainant, other persons present intervened to prevent further injury to the complainant resulting in the accused getting into the passenger seat of the rental vehicle with his female companion and departing the area.
[36] R1/50.
In his statement dated 1 October 2022, adopted in the Applicant’s SFIC at para 50, the Applicant said of the assault occasioning bodily harm offence committed on 10 May 2015, that:
Being a part of an OMCG your [sic] expected to never walk away from any altercation with fear of punishment or violence used as a tool to co-operate with it's [sic] members. I was involved in an altercation at a service station, where I assaulted a man. It started with a verbal altercation to which I reacted in the wrong way. It resulted in me being charged with AOBH and sentenced to a l year imprisonment order suspended, to which I completed. It was then I realised the gravity of the decision. I had made and that becoming a member of an OMCG was not what I first thought.
In that statement of 1 October 2022, the Applicant asserted that he had reacted to a comment made by the victim about how his partner looked in shorts and that, while he pled guilty, the facts to which he pled were that he had struck the victim with an open hand, not a fist, which was confirmed by the CCTV vision.[37] At the hearing the Applicant continued to maintain that he had struck the victim with an open hand rather than a fist, but did concede that the blow was sufficiently hard to knock the victim unconscious.[38]
[37] Note: that vision was not available to the Tribunal.
[38] Transcript at 39.
The Western Australian Police Statement of Material Facts described the circumstances of the common assaults committed in June 2013 as follows:[39]
[39] R2/9.
At approximately 1140pm on Saturday 15th June 2013 a physical altercation took place at the sports bar area of the Esplanade Hotel, Marine Terrace, Busselton.
As a result of this altercation 2 males were ejected from the premises by security staff.
At approximately 1200am on Sunday 16th June 2013 the accused in-company with the 2 males evicted earlier and another male have returned to the Esplanade Hotel.
The group was spoken to by security staff at the main entrance and a physical altercation has resulted. The accused was seen to push and swing punches at security staff and patrons of the hotel as the group forced their way in.
The accused has forcefully struck the victim [R] to the face causing his lip to split and bleed and blood to spray into his eyes.
The group has continued to fight with security staff and managers from the hotel who were forced to barricade themselves inside the hotel and lock the doors.
The accused and the group has continued their aggression at patrons pushing and shoving before leaving the premises.
As a result of the punch to the victim he has attended Busselton Hospital and received 8 stitches to his upper lip.
He also has soreness and bruising to his eye.
The police Detected Incident Report relating to that incident identified two of the four offenders as being the Applicant and his father.[40]
[40] R2/48.
The Applicant’s 1 October 2022 statement did not refer to 2013 common assaults. The Applicant’s statement dated 9 March 2024 referred to his being at a hotel watching rugby, that it was a drunk and rowdy night, that they were evicted from the hotel, that he and others returned to the hotel and that he assaulted two hotel security staff in an altercation.
The Applicant’s evidence at the hearing was, in effect, that he was drunk at the time of the incident and could not really remember much about it other than he and the others got into a fight. He was vague about the role played by his father in this incident other than to confirm that he was one of those with whom he had been drinking and that he was involved in the fight.[41] He was not able to say whether the description of the events of that night as set out in the Western Australian Police Statement of Material Facts Police was accurate or not. His evidence was that he may have left the hotel to get some drugs and returned shortly before or as the fight with security staff started.[42]
[41] Transcript at 69.
[42] Transcript at 69-70.
In relation to the multiple driving related offences, the Applicant’s 1 October 2022 statement, again adopted in the Applicant’s SFIC (para 55) stated that:
Due to my poor decision making and the use of drugs, I did not pay my fines resulting in a fine suspension order to which I did not adhere to. Which then resulted in numerous no authority to drive whilst suspended convictions.[43]
[43] R1/195.
I make two observations about that claim. The first is that it overlooks the serious driving offences which do not relate to driving while holding no authority to drive. These include reckless driving dangerous to the public (offence October 2014), used an unlicensed vehicle (offence April 2019), drive motorcycle without helmet (offence April 2019) and driving with prescribed illicit drug (offence May 2019). The reckless driving dangerous to the public and the driving with prescribed illicit drug are, in their own right, serious offences with potentially serious consequences (see JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[44] and RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[45]
[44] [2021] FCA 762 at [43]-[45].
[45] [2021] FCA 266 at [48].
The second observation that I make about the Applicant’s statement is that, irrespective of the reason for his licence being cancelled, he still made the conscious choice to drive knowing that he was breaking the law just as he made the choice to drive recklessly, to drive with prescribed illicit drugs in his system and to ride a motorcycle without a helmet. In each case the Applicant made a deliberate decision to break the law. That deliberate disregard for the law is not to be dismissed as simply “poor decision making”.
In assessing the seriousness of the Applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction 99 relevant in this case, I find that:
(a)Paragraph 8.1.1(1)(a) - The Applicant has been convicted of violent crimes (sub-para (i)), a crime of a violent nature against women (sub-para (ii)) and a crime that constitutes family violence (see 106 below) (sub-para (iii)). I am obliged by Direction 99 to take into account that the Australian Government and the Australian community consider that such crimes are to be “viewed very seriously”. In taking those views into account, I am mindful of the obligation under para 8.1(2)(a) of Direction 99 to assess for myself the seriousness of the Applicant’s offending, informed by the statement of executive policy in Direction 99.[46] In that regard, independently of the view of the Australian Government and the Australian community expressed in Direction 99, I consider the Applicant’s violent offences, in particular the serious assault of his partner Ms M which also constituted family violence, as very serious.
(b)Paragraph 8.1.1(1)(b) - The Applicant has not been convicted of a crime or, as far as the evidence discloses, engaged in conduct which would come within this subparagraph.
(c)Paragraph 8.1.1(1)(c) – As noted by Gillon DCJ in sentencing the Applicant to three years’ imprisonment on the grievous bodily harm offence, the maximum penalty for that offence is 10 years’ imprisonment.[47] The Applicant was sentenced to eight months imprisonment (concurrent) on the unlawful assault and thereby did bodily harm charge, calculated as an “appropriate term” of 10 months which, with the application of a 10% discount for the plea of guilty “and rounding off”, came to a term of eight months’ imprisonment.[48] The maximum penalty for that offence is a term of imprisonment of seven years.[49] In February 2016, the Applicant was sentenced to a term of imprisonment of one year “concurrent suspended” on his conviction for assault occasioning bodily harm committed in May 2015.
While the custodial sentences to which the Applicant has been sentenced were towards or at the lower end of the scale of potential custodial sentences, the sentences imposed, noting that sentences involving terms of imprisonment are the last resort in the sentencing hierarchy, were substantial.
(d)Paragraph 8.1.1(1)(d) – The Applicant has been convicted of 21 offences from December 2013 to September 2021 (offences committed between June 2013 and November 2020). Twelve of these offences were driving related. There was an extended period of nearly four years between May 2015 and April 2019 in which the Applicant did not offend. There is, however, a trend of increasing seriousness with the Applicant’s most serious offences being his most recent. The Applicant conceded that there had been an escalation in the seriousness of his offending (see [58(d)] above).
(e)Paragraph 8.1.1(1)(e) - The cumulative effect of the frequency and repetition of the same type of offences, particularly crimes of violence, with an increase in the seriousness of the offending, and a long and significant history of driving offences, indicate that the Applicant has, or at least had, a disregard for the law.
(f)Paragraphs 8.1.1(1)(f)-(h) – Not relevant.
[46] Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582 at [73] per Snaden; see also Price v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 171 at [71]
[47] R1/42.
[48] R1/33.
[49] R1/32.
At the hearing Ms Graziotti, quite correctly, conceded that the Applicant’s offending has been very serious.[50] Given the number of convictions over a relatively short period and the nature and number of the violent offences of which the Applicant has been convicted, including family violence, the Applicant’s criminal record is rightly to be considered as very serious. In making that assessment, I also take into account the many driving related offences which, as noted above, in my view demonstrate a disregard for the law. The Applicant conceded that this consideration under para 8.1.1 of Direction 99 weighs very strongly against him (see [58(e)] above). I agree.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
[50] Transcript at 7.
Paragraph 8.1.2 of Direction 99 relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen 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:
i) information and evidence on the risk of the noncitizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of harm to individuals or the Australian community (8.1.2(2)(a))

The Applicant accepts that if he were to repeat the violent offending and disregard for traffic laws (see [44], [50] above) that there could be physical or psychological harm. Those consequences of a repeat of the Applicant’s criminal and other serious conduct are self-evident.
The Minister’s SFIC contended that the Applicant's offences are very serious, and any likelihood that they may be repeated is unacceptable. The Minister further contended that the potential harm caused by further acts of criminal or other serious conduct committed by the Applicant could involve significant physical, financial and psychological harm to members of the Australian community. I agree with that submission.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (8.1.2(2)(b))
The Applicant’s SFIC made submissions relevant to this consideration as follows:
(a)The Applicant is remorseful for his offending and has demonstrated insight into the seriousness and impact of his offending. He has provided multiple statements to the Department and the Tribunal demonstrating that he has reflected on the situation that he found himself in and how he should have acted instead. The judge in sentencing the Applicant on the 2019 offence noted that he had shown remorse.
(b)The Applicant’s father’s statement and that of Ms Knight refer to the Applicant’s remorse and accepts responsibility for his actions. The Applicant’s family and friends have provided statements to the effect that they have noticed a change in the Applicant’s behaviour and attitude.
(c)The Applicant’s family will provide support when he is in the community. The Applicant refers to his father’s statement dated 8 March 2024 and to the assertion therein that the Applicant no longer uses drugs and is not associated with the Rebels and that the Applicant is terrified of losing his children and family.[51]
[51] A1/46-46.
(d)The Applicant’s family has been in regular contact with the Applicant while he has been in prison and are willing to offer him employment, financial support and accommodation. They also assisted with the Applicant beginning substance counselling sessions.
(e)Stable employment “tangibly reduces a prisoner’s risk of reoffending”.[52]
[52] Citing research.
(f)The Applicant stopped using alcohol and illicit substances when he went to prison in December 2020. While in prison he did not take illicit substances or engage in violent behaviour.
(g)The judge in sentencing the Applicant on the 2019 offence stated that the Applicant understood the effect of his offending on his sons and that he had a “real prospect for rehabilitation”.
(h)The Applicant’s parole review included the results from seven random drug tests all of which returned negative results. The parole report also stated that there were significant periods during which the Applicant had not offended.
(i)The Applicant’s behaviour while in prison attracted positive comments and he completed several voluntary courses to address the underlying causes of his offending behaviour. These included Narcotics Anonymous (NA) and the Medium Intensity Program (MIP). He also completed training unrelated to his offending offered by ASETS, AusWest and TAFE (citing the Parole Review Report) and the Medium Intensity Program completion report (MIP Report).
(j)The initial risk assessment on the Applicant’s entry into prison assessed the Applicant’s risk at “Medium range” and “Moderate range”. The parole report noted gains around awareness of triggers and strategies to manage emotions. The Applicant was granted parole.
(k)Since release into immigration detention the Applicant has resumed substance counselling with Mr Messikh which he had started prior to being taken into custody in December 2020. The Applicant intends to continue these sessions if released into the community.
(l)The Applicant also voluntarily completed online and in-person courses while detained, including Anger Management 101 (offered by Universal Class), Anger Management Course (offered by Minds Together Counselling) and Smart Recovery groups (offered by SMART Recovery Australia and IHMS).
(m)The Applicant has demonstrated his commitment to ongoing rehabilitation by engaging in voluntary treatment while detained and has a clear plan on how to continue this if permitted to remain in Australia.
(n)The Applicant’s sobriety has been tested while in immigration detention which is widely recognised as being “intensely difficult, highly charged and stressful environment.” Alcohol and illicit substances (including methamphetamine) are readily available and violence (among detainees and by guards) is common.
(o)The purpose of rehabilitation is to reform an offender and encourage them to not reoffend. The term "rehabilitation" is not defined in the Act, and therefore there is no strict definition that should restrict the Tribunal in its consideration of what constitutes "rehabilitation".
(p)The Applicant's rehabilitation and commitment to addressing and maintaining his sobriety is a significant factor in lowering his risk of recidivism to low.
(q)The Applicant identified the following “protective factors” which will likely reduce the risk of the Applicant reoffending:
(i)the Applicant has completed substantial rehabilitation;
(ii)his desire to not resume drug use and awareness of the destructive effect it has had on his life, his children's lives (by effecting his separation from them), the lives of his parents and on his victims;
(iii)his period of abstinence of more than three years;
(iv)the deterrent effect of the time the Applicant has spent in prison and detention, his concerns about returning to the United Kingdom and being permanently separated from his children and family;
(v)the Applicant's overall excellent behaviour in prison and detention;
(vi)the Applicant's commitment to healthy and prosocial behaviour;
(vii)significant support from pro-social family members who are aware of his drug use and offending including his parents and sister; and
(viii)the Applicant is remorseful and aware of the negative impact that his offending and drug use have had on others.
The Minister’s SFIC made submissions to the following effect:
(a)While the Applicant has completed various programs, the MIP Report recommended that the Applicant complete a Stopping Family Violence Program to assist him to address his violent offending against female partners. There is no evidence that he has completed this course. The MIP Report, applying the Level of Service/Risk, Need, Responsivity (LS/RNR) and Violence Risk Scale (VRS-SV) tools, indicated that the Applicant presents a “Medium range” and “Moderate range” score in relation to reoffending.[53]
(b)The Applicant’s substance use has not been tested outside of a controlled environment such as prison or detention. It is questionable whether the Applicant will be able to refrain from substance use in times where he may experience substantial life stresses, which may lead to further offending.
(c)The presence of any risk should be considered unacceptable, given the serious harm that could be visited on the community if the Applicant were to reoffend.
[53] R2/1103.
In his statement dated 1 October 2023, the Applicant made the following statements relevant to the likelihood of him engaging in further criminal or other serious conduct:
(a)The reason that he joined the Rebels was that at that time, 2013, he had just come through the premature and hard birth of his first son, had ended his relationship with that child’s mother, Ms K, and had lost his job. He was “searching for companionship” and was “immediately attracted to the brotherhood and comradery that [he] thought came with being a member”. He said that [b]eing part of an OMCG your (sic) expected to never walk away from any altercation”. This explained the altercation at the service station which resulted in the assault occasioning bodily harm May 2015 for which he was convicted in February 2016 for which he received a suspended one-year term of imprisonment (see [52] above)
(b)With the help of his family and after being assaulted and paying a $20,000 “fine” to the Rebels, he left the club and moved from regional Western Australia to Perth to remove himself from the club. To this day he has not had any contact with any Rebels member.
(c)After quitting the Rebels, he resumed his FIFO work in the mining industry and remained “on a good path for over three years”.
(d)He was in a relationship with Ms B, the mother of the Applicant’s second son, however, “found [him]self unemployed and in a depressed state” and he “made the bad decision of turning to recreational drugs to help sooth the pain of disappointment with [his] current situation”. Because of his drug use his relationship with Ms B ended which “drove [him] deeper into the use of drugs”.
(e)Leading up to his imprisonment he was using methamphetamine on a daily basis.
(f)He said that he took “full responsibility” for his actions and acknowledged the impact that his actions have had on the victim and his immediate family, especially his children. Now that he has had time to reflect, he acknowledges the harmful affect the use of methamphetamine and his behaviour has had and he will “never go down that path again”.
(g)He has a good relationship with the mothers of his children and is “in constant contact with both of [his] children daily”.
(h)Since being in prison the Applicant has maintained no incidents of drug use or violence. He was at the time of this statement participating in a voluntary weekly NA course and studying a Cert IV business course through TAFE. He had completed “multiple voluntary courses” and had deferred is parole to complete his treatment needs which included the MIP. He was booked to start a family violence course in the first quarter of 2023.
(i)His parents were in contact with a drug counsellor so that he could attend counselling after his release. He believed that completing those courses, with the support of his family, would put him in the “best position to have the knowledge and skills to not make the same mistakes again”.
In his statement dated 9 March 2024, the Applicant had the following to say about his rehabilitation and the risk of reoffending:
(a)Since incarceration he has become clean from any illicit substances and has had ample time to reflect on all of his past transgressions.
(b)All drug tests in prison were negative. Notwithstanding drugs being readily available in immigration detention, he has not taken illicit drugs despite it being a stressful environment.
(c)In immigration detention he exercises, trains and runs a circuit class.
(d)If faced with a stressful situation on the outside, he would be able to cope with it without turning to drugs.
(e)He has grown as man. He has taken and is still taking part in multiple courses and programs to better himself and to ensure that he has the right tools to not re-offend in the future.
(f)He has completed the following courses:
(i)Medium Intensity Program 3-month program
(ii)Smart Recovery - 15-week program
(iii)Anger Management Minds together - 10-week program
(iv)Universal class online anger management course
(v)Leadership course
(vi)Cert IV Business Studies
(vii)Currently completing drug and alcohol course (online).
(g)Through these courses the Applicant has gained the skills and insights to understand his offending behaviour and to prevent any future offending. He has gained strategies to prevent relapse and has surrounded himself with a strong family support system to aid him in his rehabilitation journey.
(h)He has been receiving ongoing counselling since being in immigration detention through weekly calls with Nicholas Messihk who is a qualified drug counsellor and the owner of Transitions Bali. He has set goals for the future involving his career, family, health and well-being. He now appreciates the depth of his drug dependence.
(i)He now realises now that he has a strong family that are always there to support him and that he will always have them there. At the time of his offending, he neglected all the important and loving relationships that he had in his life.
(j)He speaks to his parents multiple times a day. Their conversations are open, and he now has a relationship built on trust, transparency and communication. The difference between the time when he was offending and now is that he has made the decision to abstain from drugs and chosen to live a happy healthy life. He now appreciates the harm that his offending did to his victims and his family.
(k)His motivations not to offend are building a life for his sons and to see them grow into happy and respectable men and to prove to his family and to the Australian community that he can be a valuable member of society.
(l)The prospect of losing everything that is important to him as another reason why he would not reoffend or turn to drugs. He says that he will surround himself with positive influences. He has an extremely strong family support network and will use this to keep a solid grip on his life. He will use the tools and resources that he has learned and gained throughout his incarceration from the multiple courses and programs that he completed to combat any form of triggers or urges in the future. His family will monitor his behaviour and keep a close eye on how he is doing.
(m)He is continuing his weekly calls with Mr Messikh who has been a friend of his parents from the UK for many years. He will also continue his Smart Recovery sessions. He said that he is going to have regular appointments with a local psychologist to target his substance abuse and to maintain a healthy insight of ways to maintain sobriety.
(n)The Applicant has attended the psychologist whilst in detention a couple of times.
(o)He has employment lined up for when he is released. He will maintain his daily fitness regime.
A report dated 9 April 2024 was provided by Mr Richard Balfour.[54] Mr Balfour describes his qualifications as being:
[54] A2/99-123.
·B.A. (Hons) Degree in psychology and biology, completed at Flinders University and conferred in 1984.
·Master's Degree in Clinical Psychology, completed at the University of N.S.W. in 1986.
·Former chairperson of the Australian Psychological Society's (A.P.S.) College of Forensic Psychologists.
·Full member of the Australian Psychological Society.
·Fellow of the A.P.S. College of Forensic Psychologists.
·Fellow of the A.P.S. College of Clinical Psychologists.
·A.H.P.R.A. endorsements in clinical and forensic psychology.
·Member of the Australian and New Zealand Association of Psychology, Psychiatry, and the Law (A.N.Z.A.P.P.L.).
·Member of the Australian Society for the Study of Brain Impairment (A.S.S.B.I.).
·Registered as a psychologist in South Australia since 1988,
Relevantly, Mr Balfour’s report made the following statements and findings:
(a)The Applicant’s general physical health is good.
(b)He developed an online gambling addiction to the equivalent of gaming machines. His gambling addiction was directly linked to his ice usage. He had a gambling problem until his last term of imprisonment. He has never had therapy for his pathological gambling disorder.
(c)The Rebels have left him alone since he left. He has actively dissociated himself from all of his former negative peers who are part of the drug using and offending subculture. He has two long-term prosocial friendships with individuals who have families and stable employment.
(d)The Applicant still has a strained relationship with the mother of his older son but are able to communicate regarding their child’s welfare. The Applicant advised that the mother of this child is now in a good de facto relationship with another man who is a good stepfather to this son. The mother has had two further children to her new partner.
(e)The Applicant has telephone contact with this son twice a week.
(f)He has a good relationship with the mother of his younger son and talks to him nearly every day. The mother is now in a new de facto relationship with a man who is a good stepfather to this younger son. He has no concerns about his son’s welfare.
(g)The Applicant has a history of polydrug abuse problems. At the age of 19 years, the Applicant commenced abusing cocaine and ecstasy. He said he used these drugs approximately three times a week. He mainly had a cocaine problem when he was involved with the Rebels club.
(h)At the age of 21 years, the Applicant commenced using methamphetamine. He quickly developed an ongoing methamphetamine addiction. He had a methamphetamine addiction until he was imprisoned.[55]
(i)The Applicant completed a three-month medium intensity rehabilitation program in gaol that included drug and alcohol rehabilitation. He also completed the ten-week Smart recovery program. He has weekly drug and alcohol counselling with an organisation called Transitions Bali. He has never been on a maintenance program.
(j)The Applicant has a history of pervasive anger management problems that have led to severe legal conflict. He has done extensive training in boxing and is an accomplished boxer. He had numerous street fights when he was an OMCG member. He has a history of punching walls and damaging property to vent his frustration. He has battle-scarred knuckles.
(k)He completed an anger management program as part of the MIP. He also completed a ten week-long anger management program whilst in the immigration detention. He has also completed an online voluntary anger management course from Universal Studies.
[55] A2/113.
Under the heading Clinical Opinions and Recommendations, Mr Balfour made the following statements:
(a)The Applicant has a strong work ethic and good employment history.
(b)He has limited coping skills and a low tolerance of stress and frustration.
(c)The Applicant has dysfunctional aspects to his personality functioning. He has some narcissistic personality traits. Consequently, he has a sense of entitlement that makes him vulnerable to narcissistic injury resulting in anger. He coped poorly with scenarios where is at risk of losing face. He then becomes aggressively assertive to regain control and dominance of the situation to re-establish his psychological equilibrium. Although he has narcissistic personality traits, Mr Balfour does not believe these are severe enough to satisfy the diagnostic criteria for a severe personality disorder.
(d)The Applicant’s adult life is one of contradictions and contrasts. His membership of the Rebels led to drug and alcohol abuse, offending behaviour, and a poor attitude towards women. However, he was good at maintaining steady employment in the lucrative mining industry.
(e)There is no such thing as absolute zero risk of recidivism when assessing criminal recidivism in offenders. The Applicant possesses several of the traditional static (historical) and dynamic (acute) criminogenic risk factors researchers have identified as predisposing an individual towards offending behaviour.
(f)Mr Balfour applied the Historical, Clinical, and Risk-20 (HCR-20). On the historic risk factors domain, the Applicant’s degree of risk was assessed as being in the low to moderate range.
(g)On the clinical items (current factors) domain, the Applicant’s primary risk factors were negative attitudes and impulsivity. However, these were largely related to his drug use and membership of an OMCG. His degree of risk was assessed as being the low to moderate range.
(h)On the risk management (future factors) items domain, the Applicant had feasible plans for the future. He had good personal support. He had been compliant with rehabilitation. He was not exposed to acute destabilisers. His stress levels were manageable. His degree of risk was assessed in the low range.

Mr Balfour’s conclusion was:
Using the HCR 20 as a guide, I believe that overall, Mr Ash’s risk of criminal recidivism and violent behaviour is in the low to moderate range (i.e., on a risk severity rating scale of low, moderate, and high).[56]
[56] A2/120.
Mr Balfour further identified what he described as factors in the Applicant’s favour when considering his general prognosis to cease offending. They were:
·He is not in denial about his history of drug addiction which significantly facilitated his offending;
·He has used his time constructively by participating in drug and alcohol rehabilitation.
·Using motivational theory would be a useful way to describe his progress regarding conquering his history of drug addiction.
·He has developed insight into the importance of avoiding negative peers.
·He values his relationship with his two sons.
·He has reflected upon his past history of violent offending behaviour. He is remorseful and has exhibited victim empathy.
·He does not satisfy the diagnostic criteria for a psychopathic personality or antisocial personality disorder. However, he does have narcissistic personality traits, but these are not severe enough to qualify for a diagnosis of a personality disorder.
·He has spent a significant amount of time in both prison and immigration detention. He has found the loss of his personal freedom aversive.
·He has a number of protective factors that can be used in his rehabilitation to prevent him reoffending. He has a strong work ethic. He has established a career in the mining industry that he does not want to lose. He undergoes regular drug testing in the mining industry to maintain his employment.
The Applicant has undertaken a significant number of rehabilitation programs while in prison and immigration detention. I accept that the Applicant has remained drug-free while in prison and immigration detention. The Minister’s observation that the Applicant’s ability to refrain from substance use has not been tested outside of a “controlled environment”, such as prison or detention, is correct. I would, however, observe firstly that that is the case for every applicant still in detention and, secondly, that it is questionable how “controlled” the environment of prison or immigration detention is in relation to the use of drugs. The Applicant provided various media articles reporting drug use and availability in prisons and immigration detention, including in the Yongah Hill Immigration Detention Centre.[57] The Applicant also filed an Australian Human Rights Commission (AHRC) report dated December 2020 which referred to facility staff continuing to report the presence of illicit drugs in immigration detention facilities.[58] The AHRC report also contained extracts from various media reports of the presence of drugs in immigration detention facilities including Yongah Hill.[59] On 22 April 2024, the AHRC released a report into the Yongah Hill Immigration Detention Centre.[60] At para 6.3 that report commented:
Drug infiltration (including prescribed drug diversion) poses a significant risk to the health and safety of people in detention and staff alike. Many people are vulnerable to intimidation, may become caught up in drug and alcohol-fuelled violence and aggression, and may experience unreasonable periods of self-isolation to avoid pressures to buy and use drugs.
As a consequence of the inability to control the trafficking of contraband, centre staff and people detained reported that drug and alcohol (home brew) use was widespread at the centre.
[57] A2/1-16 and 23-31.
[58] A2/18.
[59] A2/21.
[60] Lorraine Finlay, Steven Caruana and Zahli Hansen, ‘Yongah Hill Immigration Detention Centre Inspection Report’ (Australian Human Rights Commission, April 2024).
I accept that illicit drugs are readily available in prison and immigration detention. Mr Burgess did not contest that being the case.
I accept that there are a significant number of what would be described as protective factors against the Applicant offending as he has in the past. They are identified by Mr Balfour in his report (see [91] above). The Applicant’s SFIC also listed what he says are protective factors (see [83(q)] above). It is the case that the Applicant has a relatively regular history of FIFO employment in the mining industry and that, as noted by Mr Balfour, employees are subject to regular drug testing. That “regular testing”, however, did not stop the Applicant’s methamphetamine use in the past. As noted at [84(a)] above, the MIP Report assessed the Applicant’s risk of offending to be in the “Medium range” and “Moderate range”. That report also reported the Applicant as having advised that:
He initially smoked methylamphetamine one to two nights per week, with use increasing over time to up to $8,000 per week. Mr Ash advised he would only use methylamphetamine when he knew the substance would not show up on urine tests at work. He then commenced using consistently and would bring a clean urine sample to use in the event he was drug tested.[61]
[61] R2/1104-1105.
As conceded in the Applicant’s SFIC, his “addiction became progressively worse” while employed as a FIFO in the mining industry notwithstanding drug testing on site (see [13] above). Mr Balfour’s report noted that the Applicant started taking methamphetamine when he was 21 and had an ongoing methamphetamine addiction until he was imprisoned (see [88(h)] above). The Applicant was employed in the mining industry for a substantial part of that period when the Applicant’s addiction was increasing.
The other observation that I would make about the Applicant’s reliance on other protective factors, such as the support of his family and the obvious risk to his relationship with his two children, is that those factors did not prevent the Applicant from offending in the past. I also note that, while the Applicant refers to his father as being a positive influence, his father was one of those engaged in the hotel brawl and assaults on security staff in June 2013 (see [56] above) which resulted in the Applicant’s first convictions, two counts of common assault. There may, therefore, be some question over what sort of prosocial influence the Applicant’s father might be.
The Applicant said that while the protective factor of family support was available when he offended, the difference now is that he is more open and receptive to that support. He says that through the various courses that he has undertaken he has learnt to be open about his issues and to seek help when he needs it. The other realisation that the Applicant claims to have had is that he has so much to lose, in particular his two sons and his immediate family in Australia, if he were to reoffend. I accept that the increased appreciation of the consequences that would flow would act as a deterrent to the Applicant offending as he has in the past.
In that regard, the Parole Assessment report dated 24 April 2024 (the Applicant was granted parole) found that, while his record indicated that the offending was linked to his illicit substance use, there were gaps in his offending history indicating “a capacity to refrain from such behaviours”.[62] An earlier Parole Review Report recorded that the Applicant has signed a refusal to be released on parole. The Applicant’s evidence at the hearing was that he refused release on parole so that he could complete a rehabilitation program.
[62] R2/1114.
I accept that the programs and courses that the Applicant has undertaken in prison and immigration detention are likely to have reduced the risk of the Applicant reoffending. While I accept that the courses and programs run through the prison and immigration detention centre and the Applicant’s engagement with NA are likely to have had that effect, I place little weight on the counselling that the Applicant has apparently undertaken through Transitions Bali. The letter provided by Mr Nicholas Messikh describes him as the “founder of transitions Bali” but does not identify any recognised qualification held by Mr Messikh.[63] The letter states that he has worked in the criminal justice and healthcare systems for 18 years and is “a fully certified addictions therapist”. He does not identify who or what professional body or organisation has provided such certification. The expert psychologist relied on by the Applicant, Mr Balfour, said that he had never heard of Mr Messikh or Transitions Bali.[64] Mr Messikh’s letter does not describe what occurs in or the purpose of the “sessions” that he has each week with the Applicant. Mr Messikh’s letter also purports to give evidence about the impact that the Applicant’s behaviour has had on his two sons and the mental state of those children. He does not, however, state that has spoken to the children. Even if he were professionally qualified to express an opinion on children’s mental health (of which there is no evidence) other than apparently what the Applicant has told him, he has no proper basis upon which to form a professional opinion on the children’s mental health which would be of assistance to the Tribunal.
[63] A1/32-33.
[64] Transcript at 112.
It is contended by the Applicant that his serious criminal offending has been caused, at least primarily, by his methamphetamine addiction. Mr Balfour’s professional assessment supports that contention. Mr Balfour’s report does, however, identify that the Applicant has dysfunctional aspects to his personality functioning, in particular narcissistic personality traits which cause him to have a sense of entitlement that makes him vulnerable to narcissistic injury resulting in anger. Mr Balfour stated that as a result the Applicant coped poorly with scenarios where he is at risk of losing face and that he then becomes aggressively assertive to regain control and dominance of the situation to re-establish his psychological equilibrium (see [89(c)] above).
In assessing the Applicant to be a low to moderate risk of offending, Mr Balfour identified two of the protective factors against the Applicant offending as being the support of his family and the regular drug testing that the Applicant would be subject to in the mining industry. I do not accept that being subject to regular drug testing would provide any significant degree of deterrence to the Applicant using illicit drugs. It did not in the past and the Applicant took active steps to avoid testing positive (see [94] above). I also question the degree to which the Applicant’s family would be a factor in preventing the Applicant offending. Again, it did not in the past and while the Applicant has since undertaken a significant number of rehabilitation courses and programs, in the end we only have that Applicant’s claim that he has learnt from these courses. Mr Balfour’s evidence at the hearing was “[s]o even though people start off with good intentions of rehabilitation, it’s almost inevitable they will experience relapses along the way with their drug use”.[65] Mr Balfour’s evidence was also that there was no “hard and fast” rule that a particular period of abstinence meant that a person would not relapse into drug use. His evidence was that “[s]ometimes people can relapse after five years of being abstinent”.[66] As a result, while I would not cavil with Mr Balfour’s assessment of the Applicant’s risk of offending as being low to moderate, because of his reliance on protection factors which I think do not provide or have not in the past provided protection, I assess the Applicant’s risk of offending to be at the high end of the range of low to moderate.
[65] Transcript at 94, see also Transcript at 106.
[66] Transcript at 107.
The Applicant conceded that the consideration identified in para 8.1.1 of Direction 99 weighs very strongly against the Applicant (see [58(e)] above). That concession is correctly made. That, coupled with my assessment of the Applicant’s risk of reoffending being at the high end of the range of low to moderate, causes me to consider that this first primary consideration, the protection of the Australian community, weighs very heavily against the revocation of the cancellation of the Applicant’s visa.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
Paragraph 8.2 of Direction 99 provides:
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3) In considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant:
a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non citizen's migration status, should the non- citizen engage in further acts of family violence.
Paragraph 4(1) of Direction 99 relevantly defines family violence as follows:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a) an assault; or
...
e) intentionally damaging or destroying property
…
(Original emphasis)
Member of a person’s family is defined in para 4(1) of Direction 99 as follows:
member of person’s family, for the purpose of the definition of the definition of family violence, includes a person who has, or has had, an intimate personal relationship with the relevant person.
(Original emphasis)
The Applicant conceded that the unlawful assault and thereby did bodily harm in circumstances of aggravation committed against Ms M in November 2020 (see [64] above) was an incident of family violence as he and Ms M had been in an intimate relationship. At para 99 of his SFIC and in his statement dated March 2024, the Applicant referred to the FVRO (see [67] above) issued for the protection of Ms K, the mother of the Applicant’s older son. The Applicant conceded that Ms K would have “felt threatened and abused” by the statements made by him. Behaviour that causes a family member “to be fearful” is family violence as that term is defined in para 4(1) of Direction 99 (see [104] above). The Applicant had obviously been in an intimate relationship with Ms K, she being the mother of his older son. She is therefore a member of the Applicant’s family as that term is defined in para 4(1) of Direction 99 (see [105] above). The Applicant conceded that this was an act of family violence (Applicant’s SFIC addressed this incident under the heading of family violence).
There are, accordingly, two incidents of family violence with the unlawful assault and thereby did bodily harm in circumstances of aggravation being at the very high end of seriousness of family violence with the other being at or towards the low end of seriousness.
The Applicant’s SFIC submits that the Applicant had not received any formal warnings about the consequences of further acts of family violence and that the incidents did not occur in the presence of children but did occur in the context of a relationship marred by methamphetamine use.
The Applicant accepts that given the seriousness of the family violence committed, this factor weighs against revocation of his visa cancellation (Applicant’s SFIC para 102).
The Minister’s SFIC contended that:
(a)The Tribunal has consistently expressed the seriousness with which family violence should be viewed.
(b)The Applicant has been convicted of a serious family violence offence against his former partner, Ms M, which resulted in her admission to hospital.
(c)It was recommended that the Applicant complete a Stopping Family Violence Program to assist him to address his violent offending against female partners. Although the Applicant was scheduled to participate in the program, there is no evidence that he has completed this course.
All acts of family violence are unacceptable and are to be viewed very seriously. Paragraph 8.2(1) of Direction 99 makes it clear that the Government has serious concerns about allowing non-citizens who engage in family violence remaining in Australia. This concern in proportionate to the seriousness of the family violence. In the present case the degree of physicality of the assault on Ms M was significant and resulted in substantial injury to the victim. He had also committed a prior act of family violence. While it may be a function of the relevant programs not being available, as the Minister noted, there is no evidence that the Applicant has undertaken any rehabilitation specifically targeting family violence.
The Applicant pointed to his heavy methamphetamine use at the time of his serious assault of Ms M and their “toxic relationship” as being the causes of that act of family violence. That is obviously not an excuse for that particularly serious act of family violence or for any act of family violence, and I have a concern that, while the Applicant has undertaken a 10-week anger management program, he has not undertaken any rehabilitation specifically aimed at preventing family violence. This second primary consideration, family violence, weighs heavily against the revocation of the cancellation of the Applicant’s visa.
Third primary consideration: The strength nature and duration of ties to Australia (para 8.3)
Paragraph 8.3 of Direction 99 provides:
(1) Decision-makers must consider any impact of the decision on the non- citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) The length of time the non-citizen has resided in the Australian community, noting that:
(i) Considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
(ii) more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii) less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.

That “narrow view” found by Perry J at first instance in FYBR v Minister for Home Affairs approved by the Full Court in FYBR,[81] is reflected in the amendments to the Ministerial Direction which resulted in the additions in para 8.4(1) of Direction 90 subsequently caried over into para 8.5(1) of Direction 99. Due to the application of the “norm”, as it is now referred to in para 8.5(1), and the deeming operation of the corresponding Direction as found by the Full Court in FYBR, this primary consideration weighs against the revocation of the cancellation of the person’s visa.
[81] [2019] FCA 500.
The operation of this provision was considered by the Full Court in Minister for Immigration, Citizenship and Multicultural Affairs v HSRN.[82] While the Full Court in HSRN was considering Direction 90, the wording of the corresponding provisions in Direction 99 is the same. Relevantly, the Full Court found at [40] and [44]:
must” comply with a direction given under s 499(1) – reference is expressly made to that requirement in para 5.1(4) of Direction No. 90. Also, the Direction provides that the decision-maker “must”, amongst other things, consider the expectations of the Australian Government as expressed in the Direction (para 5.2(4), 5.2(5) and 6 read with 8.4(4)), and that expression of the expectations applies as a “norm” (para 8.4(1)). In that context, “should” in para 8.4(4) is indicative of a requirement that must be followed; it is mandatory. That is because it would be inconsistent to read, for example, para 6 as being mandatory because of its use of the word “must”, with the result that the relevant consideration must be taken into account, but reading para 8.4(4) as merely offering guidance thereby permitting the decision-maker to arrive at its own view or assessment of what the expectations of the Australian community are. It is to be noted that one of the meanings of “should” is to convey duty or obligation rather than merely guidance: Oxford English Dictionary online version, “shall” (meaning no. 18.a). Reading “should” as indicating only guidance would also be inconsistent with what was held in FYBR, and the acceptance by the Court in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] that a failure to comply with the relevant Direction’s express requirements as to the conditions to be brought into account and the manner in which those considerations were to be weighed in deciding whether to revoke a visa cancellation would be jurisdictional.
...
Leaving aside whether the Tribunal can permissibly have independent regard to community expectations as assessed by it, which must be considered at least doubtful given the Direction’s express provisions with regard to that subject which can be expected to cover the field, the submission fails on the facts. That is because the Tribunal did not take account of its own assessment of community expectations “outside the prism of para 8.4(4)”. On the contrary, it made its own assessment of community expectations expressly within the context of its consideration of para 8.4. That is a clear error.
[82] [2023] FCAFC 68.
Nothing raised in this matter indicates that the “norm” as stated in para 8.5(1) of Direction 99, should not apply. I must, however, determine the weight that should be given to this consideration. Some guidance in this regard is provided by para 8.5(2) of Direction 99 (see [128] above) which provides that the Australian community expects that the Australian Government can, and should, cancel a non-citizen’s visa if they raise serious character concerns through conduct, in Australia or elsewhere, of the kind listed is sub-paras 8.5(2)(a)–(f) of Direction 99. The Applicant’s conviction for unlawfully assault and thereby did bodily harm with circumstances of aggravation and his conduct which constituted family violence against Ms K (see [106] above), come within the type of offences identified in paras 8.5(2)(a) and (c) of Direction 99.
While one of the acts of family violence engaged in by the Applicant was at the low end of seriousness, the assault on Ms M was very serious. I am also mindful that para 5.2(5) of Direction 99 provides that a higher level of tolerance would be shown to non-citizens who have lived in the community for most of their lives or from a very young age. The Applicant has lived in Australia for around 15 and a half years having arrived as a 16-year-old. Accordingly, while he has lived nearly half his life in Australia, he did not come to Australia at a very young age. Taking these circumstances into account, I assess that this consideration, the expectation of the Australia community, weighs heavily against the revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
Paragraph 9 of Direction 99 sets out the “Other considerations” to be taken into account as follows:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) Legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests.
Legal consequences of the decision (para 9.1)
The Applicant made no submissions in relation to this consideration and Ms Graziotti advised at the hearing that his is not a relevant consideration in this matter. The Minister’s SFIC submitted that the Applicant has not raised claims based on Australia’s non-refoulment obligations and that therefore this other consideration should be accorded neutral weight. I agree that this consideration is not relevant in this case.
Extent of impediments if removed (para 9.2)
Paragraph 9.2 of Direction 99 provides:
(1) Decision-makers must consider 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’s SFIC made submissions to the following effect:
(a)The Applicant has lived in Australia since he was 16 years old. He will find it difficult to return to a country where he has not lived in since he was a child and has never worked in. He will have no support network or financial support, and this is likely to impact his ability to support his sons and maintain sobriety.
(b)Mr Messikh opined that the Applicant’s chances of relapsing are higher if he were to be removed from Australia and that his family and children would be much better supported if he were allowed to remain.
(c)It will be detrimental to the Applicant's progress for him to be isolated from his support network and knowing that he will never be able to return to Australia - even to visit his sons - will be devastating to the Applicant, particularly in light of the efforts he has made to demonstrate that he is a changed man and poses little risk to the Australian community. His family have grave concerns for his ability to cope given that he does not have a family or social network in the UK.
The Minister’s SFIC made submissions to the following effect:
(a)The Applicant is 31 years old and has lived in Australia since he was 16 years old. He does not claim to suffer from any major health issues, however he has been diagnosed with Attention Deficit Hyperactivity Disorder, for which he is taking medication. He would not face any language or cultural barriers if returned to the UK.
(b)While there may be difficulties establishing himself in a country that he has not resided in for some years, the Applicant is a citizen of the UK and would have access to government funded supports. Further, in Webb v Minister for Home Affairs,[83] Anastassiou J stated that, “I also agree that common knowledge is a sufficient basis for finding ... that the standards of health care, education, social welfare and housing support in the United Kingdom would be ‘comparable’ to those in Australia”.
(c)The main impediment is likely to be emotional due to the applicant being separated from his children and family.
(d)This is likely to be given low weight in favour of revocation.
[83] [2020] FCA 831 at [100].
The relevant consideration as directed by Direction 99, is whether, taking into account the considerations identified in sub-paras 9.2(1)a), b) and c) and anything else raised by the Applicant, the Applicant would face an impediment (or impediments) in establishing and maintaining basic living standards in the context of the basic living standards that other citizens of the UK enjoy. The test is not whether the Applicant would be worse off or enjoy a lower living standard than he would if he were allowed to stay in Australia or whether it would be easier for him to remain in Australia rather than having to shift countries and establish and maintain himself.
The Applicant does not suffer from any disclosed medical condition which would preclude him from working. There are no language or cultural barriers. There is no evidence to suggest that the Applicant would not be entitled to receive the social, medical and/or economic supports available to citizens of the UK. While the Applicant did not raise it as a possible impediment, I am conscious that the Applicant’s long history of problems with methamphetamine. Mr Balfour noted that there is always a risk of relapse (see [101] above). If there were to be such a relapse, that may be an impediment to the Applicant establishing and maintaining a basic living standard. I also accept that the Applicant being removed from the environment and the community that he has lived in for over 15 years to a country where he has no family and social network would be disruptive and upsetting. I also accept that his being physically separated from his two children and his immediate family would cause emotional stress. I accept that these consequences of the Applicant relocating to the UK, while not being factors identified in subparas (a), (b) and (c), have the potential to impede the Applicant’s ability to establish and maintain a basic living standard, at least temporarily.
The Minister made the somewhat vague submission in his SFIC that this consideration “is likely to be given low weight in favour of revocation” which I take to be the Minister conceding that the consideration does weigh in favour of revocation, but that only low weight should be given to it. On that understanding, I agree with the Minister.
I find that the potential consequences of relocating set out in [146] above are potential impediments to the Applicant establishing and maintaining basic UK living standards, however, only minor weigh can be given to this consideration.
Impact on victims and Impact on Australian business interests and Impact on Australian business interests
Both parties, in effect, submitted that these considerations were not relevant or should be given “neutral weight”. I find that these considerations are not relevant.
THE WEIGHING EXERCISE
Direction 99 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 99 sets out the way in which the relevant considerations are to be taken into account (see [30] above).
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under earlier Ministerial Directions issued under s 499 of the Act (see [26] above), the same considerations apply to the exercise required by Direction 99 which is materially in the same terms to those earlier Ministerial Directions. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection,[84] and the Full Court judgment in Minister for Home Affairs v HSKJ.[85] See also XRGY and Minister for Immigration, Citizenship, and Multicultural Affairs for analysis of those cases.[86]
[84] [2018] FCA 594.
[85] [2018] FCAFC 217; [2018] FCAFC 217; 266 FCR 591.
[86] [2023] AATA 755 at [182]-[183].
The Full Court of the Federal Court considered the operation of Direction 90 (relevantly materially the same as Direction 99) in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[87] At [35] the Full Court described the process as follows:
The balancing process is directed to determining whether there is “another reason” why the visa cancellation should be revoked. It requires an identification of the matters that may constitute “another reason” and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.
[87] [2023] FCAFC 138.
In criticising the Tribunal’s reasons, the Full Court at [38] found:
...They do not disclose that there was any process by which the Tribunal grappled with the competing considerations, each of which had been ascribed a different descriptor of weight and some of which had the status of being “primary” considerations and others not, in order to bring them to bear in forming a state of satisfaction as to whether there was “another reason” to revoke the cancellation. The statutory task is not fulfilled by ascribing a descriptor of weight, such as “strong”, “significant”, “considerable” or “moderate” (in favour of or against revocation) to the different considerations, primary and other, and then stating a conclusion as if that conclusion was made inevitable by the application of a mathematical formula.
And at [43]:
... the Tribunal recognised in paragraph [113] that it was required to weigh “all the Considerations” (emphasis added), and because it had expressly gone through the process of considering each of the “other considerations in turn”, as explained above, it cannot be concluded that the Tribunal failed to consider the “other considerations”. However, there is nothing in the concluding section of the Tribunal’s reasons, or indeed anywhere, which reveals any process of balancing and evaluation... Nor is there anything which demonstrates that in reaching its ultimate conclusion, the Tribunal brought to bear its assessment of the weight of the various “other considerations”. After summarising, and rephrasing, its earlier ascription of descriptors of weight to each of the primary considerations, the Tribunal then simply concluded in paragraphs [114] and [115] by use of the words “therefore” and “consequently” that the visa cancellation should not be revoked. Such a conclusion does not inevitably or necessarily follow from those unexplained, un-balanced and un-weighed descriptors of weight; it may be that such a conclusion is justified by what preceded it but it is not apparent that the Tribunal undertook the required process of evaluation in order to reach its decision. It is not even apparent that the Tribunal considered that the weight of all the primary considerations were compelling against revocation of the cancellation of the visa, since it placed “significant weight” on one of those considerations, the interests of minor children, as favouring revocation.
And at [44]:
...What it did, on the face of its reasons, is ascribe weight to the various considerations having considered each in isolation and then express a conclusion without demonstrating that it actually weighed the various considerations against each other and undertook a proper evaluation of whether there was indeed “another reason” why the cancellation should be revoked.
What I understand the Full Court to be saying is that giving a weight to each consideration by ascribing a particular quantitative or qualitative adjective and then stating a conclusion without explaining how the conclusion flows from or arises out of a described process of assessing the weight of each consideration against each other consideration, is not discharging the statutory function. Applying those principles to the case of the exercise of being “satisfied ... that there is another reason why the original decision should be revoked” (s 501CA(4)(b)(ii)), I take the Full Court to be directing the decision-maker to give appropriate weight to each relevant consideration, explain why such weight is given to the consideration and then, through a described, logical process, compare and balance all of the applicable considerations to determine whether there is another reason why the original decision should be revoked.
Following the above-described process, I have ascribed a weight to each of the relevant considerations under Direction 99 and explained the basis upon which I have assessed the weight to be given to each consideration. I now compare and balance the considerations to determine whether I am satisfied that there is another reason why the original decision should be revoked.
Applying the direction provided by the above cases, I find that the first primary consideration, the protection of the Australian community, weighs very heavily against the revocation of the cancellation of the Applicant’s visa (see [102] above).
The second primary consideration, family violence committed by the Applicant, weighs heavily against the revocation of the cancellation of the Applicant’s visa (see [112] above).
The third primary consideration, the strength, nature and duration of the Applicant’s ties to Australia, weighs moderately to heavily in favour of revocation of the cancellation of the Applicant’s visa (see [122] above).
The fourth primary consideration, the best interests of minor children in Australia affected by the decision, weighs heavily in favour of revocation of the cancellation of the Applicant’s visa (see [127] above).
I find that the fifth primary consideration, the expectations of the Australian community, weighs heavily against the revocation of the cancellation of the Applicant’s visa (see [139] above).
The only other consideration relevant in the present case is the extent of impediments in the Applicant establishing and maintaining basic living standards, weighs in favour of revocation of the cancellation of the Applicant’s visa but I find that only minor weight should be given to this consideration (see [148] above).
I am mindful that para 7(2) of Direction 99 states that primary considerations should generally be given greater weight than the other considerations (see [30] above). Nothing has been presented which would indicate that that general principle should not apply in the present case. Having weighed the considerations in favour of revoking the decision to cancel that Applicant’s visa and those against revoking the decision to cancel the Applicant’s visa, I find that the considerations against revoking the decision to cancel the Applicant’s visa, being the first primary consideration, the protection of the Australian community, the second primary consideration, family violence committed by the Applicant and the fifth primary consideration, the expectations of the Australian community, outweigh the primary considerations of ties to the Australian community, the best interests of minor children and the other consideration of impediments if removed which weighed in favour of the revocation of the cancellation of the Applicant’s visa. Accordingly, I find that there is not another reason why the original decision should be revoked.
DECISION

The decision of the delegate of the Minister dated 31 January 2024 under s 501CA(4) of the Act not to revoke the cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa is affirmed.

I certify that the preceding 163 (one hundred and sixty -three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

.......[Sgd].............................................................
Associate
Dated: 24 April 2024

Date(s) of hearing: 15 & 16 April 2024

Solicitors for the Applicant: Ms Alice Graziotti

Solicitors for the Respondent: Mr Ashley Burgess
ANNEXURE
Table of Offences

164.    Date of offence

165.    Date of conviction

166.    Court

167.    Offence

168.    Result

169.    15.06.2013

170.    10.12.2013

171.    Busselton Magistrates Court

172.    Common Assault

173.    Fined $1,000.00

174.    15.06.2013

175.    10.12.2013

176.    Busselton Magistrates Court

177.    Common Assault

178.    Fined $1,000.00

179.    19.10.2013

180.    16.12.2013

181.    Busselton Magistrates Court

182.    Entered premises contrary to a barring notice

183.    Fined $1,000.00

184.    08.10.2014

185.    09.12.2014

186.    Busselton Magistrates Court

187.    No authority to drive - incorrect class

188.    Fined $1,000.00

189.    28.10.2014

190.    09.12.2014

191.    Busselton Magistrates Court

192.    Reckless driving – Dangerous to the public or any person

193.    Fined $800.00, MDL Disqualified for 6 months

194.    28.03.2015

195.    16.09.2015

196.    Bunbury Magistrates Court

197.    Disorderly behaviour in public

198.    Fined $2,000.00

199.    10.05.2015

200.    03.02.2016

201.    Perth Magistrates Court

202.    Assault occasioning bodily harm

203.    Suspended imprisonment order: 1 year, concurrent suspended from 3 February 2016

204.    27.09.2018

205.    30.10.2019

206.    Bunbury Magistrates Court

207.    No authority to drive – fines suspended

208.    Fined $200.00

209.    05.04.2019

210.    03.05.2019

211.    Busselton Magistrates Court

212.    Drive a motorcycle without wearing protective helmet

213.    Fined $100.00

214.    05.04.2019

215.    03.05.2019

216.    Busselton Magistrates Court

217.    Used an unlicensed vehicle

218.    Fined $100.00

219.    24.05.2019

220.    06.09.2019

221.    Busselton Magistrates Court

222.    Driving with a prescribed illicit drug

223.    Fined $250.00

224.    24.05.2019

225.    05.07.2019

226.    Busselton Magistrates Court

227.    No authority to drive – fines suspended

228.    Fined $200.00

229.    26.05.2019

230.    05.07.2019

231.    Busselton Magistrates Court

232.    No authority to drive – fines suspended

233.    Fined $200.00

234.    01.07.2019

235.    02.08.2019

236.    Busselton Magistrates Court

237.    No authority to drive – fines suspended

238.    Fined $200.00

239.    31.07.2019

240.    06.09.2019

241.    Busselton Magistrates Court

242.    No authority to drive – fines suspended

243.    Fined $400.00, MDL disqualified for 9 months, cumulative

244.    01.08.2019

245.    03.09.2019

246.    Busselton Magistrates Court

247.    No authority to drive – suspended

248.    Fined $400.00, MDL disqualified for 9 months, cumulative

249.    10.11.2019

250.    02.09.2021

251.    Perth District Court

252.    Grievous Bodily Harm

253.    Imprisonment: 3 years concurrent from 19.12.2020

254.    10.06.2020

255.    20.11.2020

256.    Armadale Magistrates Court

257.    Possession of stolen or unlawfully obtained property

258.    Fined $1,000.00, order for return of property.

259.    20.08.2020

260.    06.10.2020

261.    Busselton Magistrates Court

262.    No authority to drive – fines suspended

263.    Fined $400.00

264.    27.10.2020

265.    28.10.2020

266.    Armadale Magistrates Court

267.    Breach of bail undertaking

268.    Fined $500.00

Date(s) of hearing:	15 & 16 April 2024
Solicitors for the Applicant:	Ms Alice Graziotti
Solicitors for the Respondent:	Mr Ashley Burgess

164. Date of offence	165. Date of conviction	166. Court	167. Offence	168. Result
169. 15.06.2013	170. 10.12.2013	171. Busselton Magistrates Court	172. Common Assault	173. Fined $1,000.00
174. 15.06.2013	175. 10.12.2013	176. Busselton Magistrates Court	177. Common Assault	178. Fined $1,000.00
179. 19.10.2013	180. 16.12.2013	181. Busselton Magistrates Court	182. Entered premises contrary to a barring notice	183. Fined $1,000.00
184. 08.10.2014	185. 09.12.2014	186. Busselton Magistrates Court	187. No authority to drive - incorrect class	188. Fined $1,000.00
189. 28.10.2014	190. 09.12.2014	191. Busselton Magistrates Court	192. Reckless driving – Dangerous to the public or any person	193. Fined $800.00, MDL Disqualified for 6 months
194. 28.03.2015	195. 16.09.2015	196. Bunbury Magistrates Court	197. Disorderly behaviour in public	198. Fined $2,000.00
199. 10.05.2015	200. 03.02.2016	201. Perth Magistrates Court	202. Assault occasioning bodily harm	203. Suspended imprisonment order: 1 year, concurrent suspended from 3 February 2016
204. 27.09.2018	205. 30.10.2019	206. Bunbury Magistrates Court	207. No authority to drive – fines suspended	208. Fined $200.00
209. 05.04.2019	210. 03.05.2019	211. Busselton Magistrates Court	212. Drive a motorcycle without wearing protective helmet	213. Fined $100.00
214. 05.04.2019	215. 03.05.2019	216. Busselton Magistrates Court	217. Used an unlicensed vehicle	218. Fined $100.00
219. 24.05.2019	220. 06.09.2019	221. Busselton Magistrates Court	222. Driving with a prescribed illicit drug	223. Fined $250.00
224. 24.05.2019	225. 05.07.2019	226. Busselton Magistrates Court	227. No authority to drive – fines suspended	228. Fined $200.00
229. 26.05.2019	230. 05.07.2019	231. Busselton Magistrates Court	232. No authority to drive – fines suspended	233. Fined $200.00
234. 01.07.2019	235. 02.08.2019	236. Busselton Magistrates Court	237. No authority to drive – fines suspended	238. Fined $200.00
239. 31.07.2019	240. 06.09.2019	241. Busselton Magistrates Court	242. No authority to drive – fines suspended	243. Fined $400.00, MDL disqualified for 9 months, cumulative
244. 01.08.2019	245. 03.09.2019	246. Busselton Magistrates Court	247. No authority to drive – suspended	248. Fined $400.00, MDL disqualified for 9 months, cumulative
249. 10.11.2019	250. 02.09.2021	251. Perth District Court	252. Grievous Bodily Harm	253. Imprisonment: 3 years concurrent from 19.12.2020
254. 10.06.2020	255. 20.11.2020	256. Armadale Magistrates Court	257. Possession of stolen or unlawfully obtained property	258. Fined $1,000.00, order for return of property.
259. 20.08.2020	260. 06.10.2020	261. Busselton Magistrates Court	262. No authority to drive – fines suspended	263. Fined $400.00
264. 27.10.2020	265. 28.10.2020	266. Armadale Magistrates Court	267. Breach of bail undertaking	268. Fined $500.00