Berryman and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2024] AATA 2952

Berryman and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2024] AATA 2952 (21 August 2024)
Division:GENERAL DIVISION
File Number: 2024/3710
Re:Delane Vivian Koro Berryman
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member L M Gallagher
Date of decision: 21 August 2024
Place:Perth

The Reviewable Decision, being the decision of the Delegate dated 1 May 2024 to exercise the discretion to cancel the Applicant’s Special Category (Temporary) (Class TY) (subclass 444) visa pursuant to subsection 501(2) of the Migration Act 1958 (Cth) is affirmed.
.................[Sgd]..................................
Member
CATCHWORDS
MIGRATION – decision of delegate of Minister to cancel visa – character test – Direction no. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a 74 year old citizen of New Zealand – extent of impediments if returned to New Zealand – decision to cancel visa is affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 43
Migration Act 1958 (Cth) ss 15, 189, 196, 198, 499, 499(1), 499(2A), 500(6L), 500(1)(b), 500(6B), 501, 501(2), 501(6), 501(6)(a), 501(7)(d), 501CA, 501E, 501F, 501G, 503
CASES
AJL20 v Commonwealth of Australia [2020] FCA 1305
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
CZCV and Minister for Home Affairs [2019] AATA 91
FYBR v Minister for Home Affairs [2019] FCAFC 185
Lum and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 792
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024) – paras 2, 3, 4.1, 4(1)(a), 5.1, 5.1(4), 5.1.2, 5.2, 5.2(6), 6, 7, 7(2), 7(3), 8, 8.1, 8.1(1), 8.1(2), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii), 8.1.1(1)(a)(iii), 8.1.1(1)(b)(i), 8.1.1(1)(b)(ii), 8.1.1(1)(b)(iii), 8.1.1(1)(b)(iv), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(h), 8.1.1(1)(i), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(c), 8.2, 8.2(2)(a), 8.2(2)(b), 8.2(3), 8.2(3)(c), 8.2(3)(c)(i), 8.2(3)(c)(ii), 8.2(3)(c)(iii), 8.2(3)(d), 8.3, 8.4, 8.4(1), 8.4(2), 8.4(3), 8.4(4), 8.4(4)(a)-(h), 8.5, 8.5(1), 8.5(2), 8.5(2)(a)–(f), 8.5(3), 9. 9.1, 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3
REASONS FOR DECISION
Member Gallagher
21 August 2024

The Applicant seeks review of a decision made by a delegate of the Respondent (the Delegate) on 1 May 2024 to exercise the discretion cancel the Applicant’s Special Category (Temporary) (Class TY) (subclass 444) visa (the visa) pursuant to subsection 501(2) of the Migration Act 1958 (Cth) (the Migration Act) (the Reviewable Decision).[1] The Reviewable Decision was made on the basis that the Applicant had a 'substantial criminal record’, having been sentenced to two or more terms of imprisonment totalling 12 months or more.[2]
[1] R2, G4.
[2] See ss 501(6)(a) and 501(7)(d) of the Migration Act.
The application for review was lodged with the Administrative Appeals Tribunal (the Tribunal) on 6 June 2024,[3] within the time prescribed by s 500(6B) of the Migration Act. The application for review of the Reviewable Decision is made in accordance with s 500(1)(b) of the Migration Act, which allows application to be made to the Tribunal for review of decisions of a delegate under s 501 of the Migration Act.
[3] R2, G2.
The hearing was held on 6 August and 7 August 2024 at the Tribunal in Perth. The Applicant was represented by Mr Nigel Dobbie of Dobbie and Devine Immigration Lawyers, who both appeared in person. The Respondent was represented by Ms Lucinda Taylor of Minter Ellison, who appeared by Microsoft Teams.
BACKGROUND
The Applicant is a 74-year-old citizen of New Zealand. The Applicant first arrived in Australia on 1 October 1992, returning to New Zealand on several occasions between 2001 and 2023.[4] The Applicant failed to disclose any criminal convictions upon entry to Australia on any occasion.[5]
[4] R2, G20.
[5] R2, G14.
The Applicant has a large extended family in Australia, including:
(a)The Applicant’s wife;[6]
(b)six of his 9 siblings (three being deceased);
(c)eight of his 10 children (two residing in New Zealand);
(d)his 19 grandchildren, five of whom are of minor age; and
(e)his 8 great-grandchildren, all minors.
[6] The Applicant’s wife, Mrs Vickie Berryman is the Applicant’s second wife. The Applicant’s first wife passed away in 2006. The Applicant married Vickie Berryman in 2008. The Applicant’s first wife is the mother of seven of the Applicant’s children. The Applicant also has three children from other relationships. The Applicant and his wife have no children together, however the Tribunal understands the Applicant’s wife has two children from a previous relationship or relationships, one of whom is deceased.
Applicant’s offending
The Applicant’s criminal history is set out in three Check Results Reports by the Australian Criminal Intelligence Commission, all run on 26 May 2023[7] and a History for Court Report by the Western Australian Police Force complied on 20 June 2024.[8] The details are recorded as follows:
[7] R2, G6, G7 and G8. There are three separate reports due the Applicant’s use of various aliases. The primary names the subject of the three reports (of which there are numerous aliases for each) are 1) VIVIAN BERRYMAN, 2) DELANE KORO BERRYMAN and 3) DELANE VIKAN KORO BERRYMAN (R2, G6, G7 and G8).
[8] R3, S1.
THE APPLICANT’S OFFENDING HISTORY IN AUSTRALIA
The Applicant’s offending history is set out in Annexure A.
The Applicant’s offending commenced in 1981 and continued until 2019. Notably:[9]
(a)On 18 March 2013, the Applicant was convicted of no authority drive – suspended and sentenced to a 6 months and one day suspended imprisonment order.
(b)On 12 June 2013, the Applicant was convicted of no authority to drive – suspended and sentenced to a 6 months and one day suspended imprisonment order.
(c)On 16 March 2017, the Applicant was convicted of no authority to drive – suspended and sentenced to a term of imprisonment of 7 months.
[9] R2, G6, p 40.
The Applicant’s extensive criminal record also includes violent crimes, including crimes involving family violence, crimes involving violence against government officials in the performance of their duties, drug crimes and driving offending, such as:[10]
[10] R2, G6.
(a)Assault occasioning bodily harm, on 18 January 1989.
(b)Assault to prevent arrest, on 26 September 1989.
(c)Assault public officer, on 18 November 1991.
(d)Possessed a prohibited drug (Methylamphetamine) – on 7 October 2015.
(e)Drove contrary to an extraordinary licence condition and used an unlicensed vehicle – on 18 January 2016.
(f)Drove contrary to an extraordinary licence condition – on 14 March 2016.
(g)No authority to drive – suspended – on 16 March 2017.
(h)Common assault in circumstances of aggravation or racial aggravation, on 8 May 2018.
(i)Possessed a prohibited drug (Methylamphetamine) – on 6 February 2019.
(j)Dangerous driving and driver failed to stop (circumstance of aggravation) – on 6 February 2019.
(k)No authority to drive – suspended – on 22 November 2019.
The Applicant is currently at Yongah Hill Immigration Detention Centre.
Present proceedings
On 7 January 2020, the Applicant was granted the visa.[11]
[11] R2, G15, p 83.
On 24 June 2020, a delegate of the Department of Home Affairs (the Department) provided the Applicant with a notice of intention to consider cancellation (NOICC) of the visa under s 501(2) of the Migration Act.[12] The NOICC invited the Applicant to comment on information indicating he may not pass the character test.[13]
[12] R2, G15.
[13] R2, G15, p 84.
On 23 August 2023, the Department received the Applicant’s submission in response to the invitation in the NOICC.[14]
[14] R2, G17.
On 28 November 2023 the Applicant was granted a further visa.[15]
[15] R2, G16, p 89.
On 14 February 2024 the Applicant was provided a second NOICC under subsection 501(2) of the Migration Act. The second NOICC superseded the first NOICC, and again invited the Applicant to comment on information indicating he may not pass the character test.[16]
[16] R2, G16, p 91.
On 28 March 2024, the Department received the Applicant’s submission in response to the invitation in the second NOICC,[17] along with a number of letters of support and character references.[18]
[17] R2, G18.
[18] R2, G19.
As noted above, on 1 May 2024, the Delegate made the Reviewable Decision.[19]
[19] See [1] above.
On 29 May 2024, the Applicant was notified of the Reviewable Decision.[20]
[20] R2, G3, p 15.
On 6 June 2024, the Applicant lodged an application in the General Division of the Tribunal for review of the Reviewable Decision.[21]
[21] R2, G2.
ISSUES
There are two issues for consideration by the Tribunal:
(a)Character test - Whether or not the Applicant satisfies the Tribunal that he passes the character test. If not;
(b)Exercise of discretion - Whether the Tribunal should exercise its discretion conferred by s 501(2) of the Migration Act to cancel the visa.
The character test
Sections 501(6)(a) and 501(7)(d) of the Migration Act preclude a person from passing the character test if they have a ‘substantial criminal record,’ which includes a person who has been sentenced to two or more terms of imprisonment, where the total or those terms is 12 months or more. Failure to pass the character test arises as a matter of law.[22]
[22] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685 [63].
On the bases that:
(a)The Applicant was convicted of three offences, where the overall term of imprisonment is more than 12 months;[23] and
(b)The Tribunal accepts that a suspended sentence is a prison sentence for the purpose of s 501(7)(d) of the Migration Act,[24]
the Applicant has a substantial criminal record as defined in the Migration Act and therefore does not pass the character test. The parties accept this is the case.[25]
[23] Namely, the Applicant’s offending listed at [8] above.
[24] The definition of “sentence” in s 501(12) of the Migration Act includes any form of determination of the punishment for an offence.
[25] A1 [7], [11]; R2 [17], [18].
Exercise of discretion
Accordingly, the remaining and determinative issue for the Tribunal to consider is whether the discretion in s 501(2) of the Migration Act to cancel the Applicant’s visa should be exercised. This evaluative process requires the Tribunal to have regard to the primary and other considerations in Direction no. 110: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (Direction no. 110).
If the Applicant also fails on the ‘exercise of discretion’ ground, the weight of authority indicates that the Tribunal must exercise the power conferred by s 501(2) of the Migration Act to cancel the visa (being the visa that was previously granted to him). This would, in turn, involve affirming the Reviewable Decision.
The Tribunal’s decision must be made within the 84-day period after the day on which the Applicant was properly notified of the Reviewable Decision, in accordance with s 501G of the Migration Act. If the Tribunal does not deliver a decision by the end of this date, the Reviewable Decision will be taken to be affirmed under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (pursuant to s 500(6L) of the Migration Act).
The 84-day period for the Tribunal to decide this matter ends on 21 August 2024.
LEGISLATIVE FRAMEWORK
Migration Act
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.
Section 501(2) of the Migration Act provides that the Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7)); …
(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(d) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(d) sentenced to two or more terms of imprisonment, where the total or those terms is 12 months or more.
(Original emphasis.)
Direction no. 110
By reason of s 499(2A) of the Migration Act, in considering whether to exercise the discretion in s501(2) of the Migration Act, the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.
On 7 June 2024, the Minister made Direction no. 110 under s 499 of the Migration Act, which commenced operation on 21 June 2024. This Direction replaced the previous Direction No 99.[26]
[26] Direction no. 110, Part 1, sections 2-3.
The Tribunal notes that the previous direction, Direction No 99, was in force at the time the Non-Revocation Decision was made.
An objective of Direction no. 110 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[27]
[27] Direction no. 110, Part 1, para 5.1(4).
Paragraph 5.1 of Direction no. 110 sets out ‘[o]bjectives’ including para 5.1(2) which provides that:
Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test.
Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
Paragraph 5.2 of Direction no. 110 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … refuse or cancel a non-citizen’s visa under section 501,’ and are expressed 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) The safety of the Australian Community is the highest priority of the Australian Government.
(3) 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.
(4) 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.
(5) 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 non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) 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.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Informed by the principles set out in para 5.2 of Direction no. 110, paragraph 6 of Direction no. 110 compels decision makers to take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case.
The ‘primary considerations’ to be taken into account by the Tribunal are:[28]
(c)protection of the Australian community from criminal or other serious conduct;
(d)whether the conduct engaged in constituted family violence;
(e)the strength, nature and duration of ties to Australia;
(f)the best interests of minor children in Australia; and
(g)expectations of the Australian community.
[28] Direction no. 110 section 8.
The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[29]
(a)       legal consequences of the decision;
(b)       extent of impediments if removed; and
(c)       impact on Australian business interests.
[29] Direction no. 110 section 9.

Further guidance as to how a decision-maker is to apply the considerations in
Direction no. 110 can be found in para 7, 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)The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
THE EVIDENCE
The Applicant gave evidence at the hearing and was cross-examined.[30]
[30] The Applicant’s evidence is contained within and includes A2, document 1; R2, G17 and G18 and transcript, pp 21 to 80.
The Applicant also called the following witnesses to give evidence:
(a)Mr Dion Hayman, Priesthood Leader (in person);[31]
[31] Mr Hayman’s evidence is contained in his witness statements at A2, document 8, A7 and transcript, pp 82 to 84.
(b)Mrs Vickie Berryman, the Applicant’s wife (in person);[32]
[32] Mrs Berryman’s evidence is contained in her witness statements at A2, document 3, A6; R2, G19, pp 109 to 112 and transcript, pp 86 to 89.
(c)Mr Denver Berryman, the Applicant’s son (in person);[33]
(d)Ms Jeni-Lyn Berryman, the Applicant’s daughter (in person);[34]
(e)Mr Tyrone Berryman, the Applicant’s brother (in person);[35]
(f)Ms Annette Tupaea, the Applicant’s sister (in person);[36]
(g)Ms Rose Berryman, the Applicant’s daughter (in person);[37]
(h)Mr Chafic Awit, Psychologist, (by telephone);[38]
(i)Mr Dayna Brown, the Applicant’s second cousin (by telephone);[39]
(j)Mr Joshua Lekias, Bishop (in person);[40]
(k)Mr Brent Evitt, Priesthood Leader (in person);[41] and
(l)Ms Patreece Edwards, the Applicant’s niece (in person).[42]
[33] Mr Denver Berryman’s evidence is contained in his witness statement at A2, document 10 and transcript, pp 90 to 93.
[34] Ms Jeni-Lyn Berryman’s evidence is contained in her witness statement at A2, document 4 and transcript, pp 94 to 98.
[35] Mr Tyrone Berryman’s evidence is contained in his witness statement at A3 and transcript, pp 99 to 103.
[36] Ms Annette Tupaea’s evidence is contained in her witness statement at A2, document 2 and transcript, pp 104 to 109.
[37] Ms Rose Berryman’s evidence is contained in her witness statements at A2, document 5 R2, G19, p 118 and transcript, pp 111 to 112.
[38] Mr Awit’s report dated 26 July 2024 is at A2, document 17 and see transcript, pp 119 to 122.
[39] Mr Brown’s evidence is contained in his witness statement at A2, document 7 and transcript, pp 123 to 129.
[40] Mr Lekias’ evidence is contained in his witness statement at A5 and transcript, pp 130 to 133.
[41] Mr Evitt’s evidence is contained in his witness statement at A2, document 9 and transcript, pp 134 to 137.
[42] Ms Edwards’ evidence is contained in her witness statement at A4 and transcript, pp 139 to 142.
The Tribunal admitted the following documents into evidence at the hearing:
·     Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated 27 July 2024, filed 29 July 2024 (Exhibit A1);
·     Applicant’s Bundle of Documents, numbered 1 to 23, filed 29 July 2024 (Exhibit A2);
·     Witness statement of Mr Tyrone Takerei Berryman, undated, filed 29 July 2024 (Exhibit A3);
·     Witness statement of Ms Patreece Edwards, undated, filed 29 July 2024 (Exhibit A4);
·     Witness statement of Mr Joshua Lekias, undated, filed 29 July 2024 (Exhibit A5);
·     Witness statement of Mrs Vickie Berryman, dated 1 June 2024, filed 13 June 2024 (Exhibit A6);
·     Witness statement of Mr Dion Hayman, dated 11 June 2024, filed 12 June 2024 (Exhibit A7);
·     Respondent’s SFIC, dated 12 June 2024, filed 16 July 2024 (Exhibit R1);
·     Respondent’s G-Documents, being a set of documents numbered G1 to G22, filed 24 June 2024 (Exhibit R2);
·     Respondent’s Supplementary G-Documents, being a set of documents numbered S1 to S27, filed 12 July 2024 (Exhibit R3); and
·     Respondent’s Supplementary Bundle, being a set of documents numbered S1 to S4, filed 31 July 2024 (Exhibit R4).
The Tribunal has taken into account the additional letters of support from the Applicant’s relatives, friends and community contacts.[43]
WHETHER THE DISCRETION IN SECTION 501(2) OF THE MIGRATION ACT TO CANCEL THE APPLICANT’S VISA SHOULD BE EXERCISED
[43] See A2, document 16; R2, G19, pp 105 to 108 and p 113.
The considerations relevant in the context of a cancellation decision under s 501(2) of the Migration Act are the five ‘primary considerations’ and the four ‘other considerations.’ The considerations are addressed in turn to determine whether the Tribunal’s discretionary power pursuant to s 501(2) of the Migration Act is enlivened.
The Applicant takes the view that in circumstances where he has completely rehabilitated through his involvement with his church, where he has not reoffended since 2019, where he believes he will not reoffend, where he enjoys strong family ties in Australia and where he would face significant impediments if removed, the Tribunal should set aside the Reviewable Decision and substitute it with a decision that it does not exercise the discretionary power conferred by s 501(2) of the Migration Act to cancel the visa.
The Respondent is of the view, however, that the considerations that weigh in favour of the exercise of the discretion to cancel the visa outweigh the considerations in favour of not exercising the discretion. The Respondent contends that the considerations that weight very strongly in favour of the exercise of the discretion to cancel the visa are the first, second and fifth primary considerations and the remaining primary considerations and the other considerations do not outweigh the strength of the evidence against the Applicant’s case.[44] The Respondent contends that therefore, the discretionary power ought to be exercised to cancel the visa and the Reviewable Decision should be affirmed.
[44] Being 1) The Protection of the Australian community, 2) Family violence and 5) Expectations of the Australian community. See transcript, p 14.
First primary consideration: Protection of the Australian Community
The first primary consideration, paragraph 8.1 of Direction no. 110, focuses on the protection of the Australian community.
Paragraph 8.1(1) of Direction no. 110 requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and to that end 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, the Tribunal is directed to 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.
Paragraph 8.1(2) of Direction no. 110 then provides that 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
The Tribunal must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date[45] by having regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. The direction also provides that certain other crimes or conduct are considered to be serious. While there are categories of conduct considered to be very serious or serious, it does not limit the range of conduct that may be so regarded.
[45] For completeness, the Tribunal notes there is no ‘other conduct’ to date that falls for consideration in this matter.
Paragraph 8.1.1(1) of Direction no. 110 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to 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 and/or sexual 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        causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
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;
iii      any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv      where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
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;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant concedes that:
(a)Para 8.1.1(1)(a)(iii) of Direction no. 110 applies such that his assault on his wife on 3 May 2018 (being ‘common assault in circumstances of aggravation or racial aggravation’) is to be considered as ‘very serious conduct’.[46] The Applicant also contended that that being so, there “was only one event” and there hasn’t been any further family violence.[47]
(b)Para 8.1.1(1)(b)(ii) of Direction no. 110 applies such that his convictions for ‘assault occasioning bodily harm’ on 18 January 1989, assault to prevent arrest on 26 September 1989 and assault a public officer on 18 November 1981 are all to be considered ‘serious conduct.’[48]
(c)Having regard to paras 8.1.1(1)(e) and 8.1.1(1)(f) of Direction no. 110, the cumulative effect of the Applicant’s offending, which includes numerous driving offences, drug possession and offences to which he refers as “petty” and for which fines were ordered, is to be considered ‘serious conduct’.[49]
[46] A1 [29].
[47] Transcript, p 156.
[48] A1 [30].
[49] A1 [31].
The Respondent contends that the Applicant has committed violent crimes, including crimes involving family violence and crimes involving violence against government officials in the performance of their duties, which by paras 8.1.1(1) and 8.1(2)(b) of Direction no. 110, must be viewed ‘very seriously’ in the case of acts of family violence, or ‘seriously’. In doing so, the Respondent refers to the Applicant’s offences set out at [54(a)] and [54(b)] above.
The Respondent refers to the Applicant’s history of driving offences having been described as ‘abysmal’.[50] In relation to the Applicant’s offence of ‘no authority to drive – suspended’ for which he was convicted on 16 March 2017, the Respondent notes the Applicant was on parole at the time of this offence, that he was found in possession of methylamphetamine at the time, which he claims to have found of the floor at a petrol station, an explanation the court met with scepticism during sentencing.[51]
[50] R1 [25], referring to sentencing remarks at R2, G11, p 62.
[51] R1 [27], [28], referring to R2, G9, 5p 52 and 53.
The Respondent agrees with the Applicant’s concession at [54(c)] above that the Applicant’s criminal activity reveals a pattern of regular offending and conduct which demonstrates a general trend of increasing seriousness.[52] In this context, the Respondent contends in addition that there is a significant cumulative effect of the Applicant’s repeated conduct over time, and this conduct indicates a tendency towards and a flagrant disregard for the laws in Australia. As such, the Respondent contends that the nature and seriousness of the Applicant’s offending weighs vey heavily in favour of exercising the discretion to cancel the visa.
[52] R1 [29].
The Tribunal has considered the parties submissions in relation to the nature and seriousness of the offending conduct by reference to matters or considerations raised in paragraph 8.1.1 of Direction no. 110.
The consensus between the parties that the Applicant’s offending should be viewed ‘very seriously’ in the case of acts of family violence, or otherwise ‘seriously’ is of sound basis when one has regard to the types of crimes or conduct described as ‘very serious’ or ‘serious’ at para 8.1.1(1) of Direction no. 110.
In this context, the Tribunal notes the facts and circumstances of the Applicant’s offending and convictions imposed. In particular, the sentencing remarks outlining the facts of the Applicant’s common assault in circumstances of aggravation or racial aggravation, for which he was convicted on 8 May 2018:[53]
Thursday 3 May, about 2 pm, [the Applicant and his wife], they attended [a shopping centre]. The victim was driving a motor vehicle. The accused was sitting in the front passenger seat.
The victim and the accused were having a verbal argument over the victim’s driving. The victim parked the vehicle near the south entrance to the shopping centre. As she did this, the accused has leaned over and punched the victim two times on the left side of her face causing bruising and swelling to the victim’s eye and the side of her face. The accused grabbed the victim’s iPhone, exited the vehicle and the accused threw the victim’s phone to the ground and walked away.
[53] R2, G10, pp 57 and 58.
In relation to the Applicant’s offences, possessed a prohibited drug (Methylamphetamine) and dangerous driving and driver failed to stop (circumstance of aggravation) for which he was convicted on 6 February 2019, the sentencing remarks indicate:[54]
[McKEE, MR:] 11.50pm, accused drove a Mitsubishi Magna…accelerated heavily. Police saw this, followed the vehicle to measure its speed. The accused was about 100 metres in front of the police. It was estimated he was travelling at high speed, nothing more than that…Police proceeded to intercept the accused, attempted to stop him for the speeding offence. He approached the roundabout…turned left, failed to take the corner, mounting the traffic islands, causing damage to the underside of his vehicle…
Police activated the emergency lights and sirens to stop the accused, continued to accelerate heavily…accelerated up the hill and the vehicle was emanating smoke…continued right…in an attempt to evade police, bearing right before slowing down, coming to a partial stop on the left-hand side of the road. The Accused pulled away from the kerb at low speed, turning let…before coming to a stop on the verge, got out of the drivers side carrying a brown bag, proceeded to run from police…Police instructed him to stop. He was subsequently apprehended.
He made full admissions when interviewed. The conditions were dry, streetlights were on, traffic was light. It is a built-up area, 50 kilometres per hour. By way of explanation, he said, “I’m on parole. I was scared I would go back to prison.” The methylamphetamine – it was in the bag that he was seen carrying. It was .1 grams…By way of explanation he said in relation to that, “I found it on the floor…”
…
[HIS HONOUR:] You tell the court that you were driving in the manner that you did because you found the methylamphetamine at a petrol station. Why anybody, including you who has got a history of methylamphetamine use who was out of jail on the first occasion, would pick up a bag of methylamphetamine from a petrol station beggars belief and, frankly, I take that explanation with a pinch of salt…
In relation to the manner of your driving, your driving was obviously poor and put your welfare at risk and you potentially put other road users’ welfare at risk.
And importantly, you put the welfare of the police officers, who were tasked with bringing you to account, you put their welfare at risk and that’s why it’s a serious matter. Having a look at your record, it seems to me you were probably driving whilst you were under suspension as well…
…and I suspect that you probably knew that as well.
[54] R2, G9, pp 51, 53 and 54.
The Tribunal has also considered the Applicant’s expressed views in writing and at the hearing regarding the circumstances of his offending conduct, including:
(a)The reason he committed so many driving offences was because he needed to drive to get to work on time so that he could continue to support his family.[55]
(b)At times he thought he would not be caught for breaking the road rules and accepted he had limited regard for the warnings imposed by the sentencing judges and related recourse imposed.[56]
(c)He wishes he hadn’t hit his wife, he doesn’t know what made him “go like that.” He told her it was – ‘You hurt yourself with your phone,’ but she said, ‘You hurt me.’ He admits to losing his temper, backhanding her and striking her and he takes full responsibility.[57]
(d)The methylamphetamine found in his possession wasn’t his, rather he had found it on the floor of a petrol station.[58]
[55] Transcript, pp 55 and 56.
[56] Transcript, pp 56, 57 and 59.
[57] Transcript, pp 69 to 70.
[58] See [56] and [61] above.
In relation to para 8.1.1(1)(a) of Direction no. 110, the Tribunal finds that the Applicant’s offending is, by its very nature, very serious. The Applicant has committed a violent crime,[59] against a women,[60] in a family violence setting.[61]
[59] Para 8.1.1(1)(a)(i) of Direction no. 110.
[60] Para 8.1.1(1)(a)(ii) of Direction no. 110.
[61] Paragraph 8.1.1(1)(a)(iii) of Direction no. 110.
The Tribunal has regard to the fact that the Applicant’s history of offending includes numerous driving and traffic offences, which are serious crimes against other road users. The Tribunal has previously and often cited the seriousness of driving related offences such as those committed by the Applicant.[62] The repeated nature of the Applicant’s driving offences and the fact that the Applicant was driving to evade the police at these times further demonstrates the seriousness of the offending and the increased potential for catastrophic harm.
[62] See QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1 at [51]-[54].

The Applicant’s offending involved conduct for which he was ultimately sentenced to an overall term of imprisonment exceeding 12 months. This conduct forms the basis of the finding that the Applicant did not pass the character test,[63] and is in the Tribunal’s view, probative of the seriousness of that offending conduct.
[63] Para 8.1.1(1)(b)(iii) of Direction no.110.
In considering para 8.1.1(1)(b) of Direction no. 110, the Tribunal is also to have regard to whether the Applicant has caused a person to enter into or be a party to, a forced marriage[64] and any crime committed while in immigration detention.[65] None of the Applicant’s offending or other conduct falls within these categories.
[64] Para 8.1.1(1)(b)(i) of Direction no. 110.
[65] Para 8.1.1(1)(b)(iv) of Direction no. 110.
The overall seriousness of the Applicant’s offending is not, in the present matter, further indicated by his prison sentence, given that violence crimes against women and acts of family violence are excepted from this circumstance.[66]
[66] Para 8.1.1(1)(c) of Direction no. 110.
The Applicant’s offending has been frequent in the Tribunal’s view notwithstanding he has not offended since November 2019.[67]The Applicant’s offending is also marked with a trend of increasing seriousness,[68] his more recent convictions attracting terms of imprisonment because the nature of the offences were so serious that no other sentence in the circumstances would be justified.
[67] Para 8.1.1(1)(e) of Direction no. 110.
[68] Para 8.1.1(1)(e) of Direction no. 110.
The Tribunal also considers that any cumulative effect of the Applicant’s offending (repeated offending to the extent that the Applicant committed a considerable number of offences over an extended period of time) is a significant feature of his offending.[69]
[69] Para 8.1.1(1)(f) of Direction no. 110.
The Applicant provided false and misleading information to the Department by failing to disclose his prior criminal offending on his incoming passenger cards on several occasions.[70] While the Applicant says this was unintentional with him being under the mistaken impression that a criminal was ‘a person that the police are looking for’,[71] the Tribunal considers these repeated failures to disclose are serious.
[70] Para 8.1.1(1)(g) of Direction no. 110; See R2, G14.
[71]Transcript, p 47.
For completeness, the Tribunal considers that none of the Applicant’s offending or other conduct falls with the scope of paras 8.1.1(1)(d)[72] or 8.1.1(1)(h)[73] or 8.1.1(1)(i)[74] of Direction no. 110.
[72] There is no evidence or claims made regarding the impact of the Applicant’s offending or other conduct on any victims or their families.
[73] The Applicant was never formally warned about the consequences of further offending on his migration status.
[74] There is no evidence or claims made regarding any offences committed by the Applicant is another country.
Overall, the Tribunal finds that the Applicant has engaged in a range of offending, which, applying Direction no. 110, is serious or very serious. The Applicant has a substantial criminal record offending spanning a 38-year period and has engaged in violent offending including in a family violence setting. Over time, the Applicant’s offending has escalated in frequency and seriousness, as evidenced by his more recent offending resulting in terms of imprisonment.
Therefore, having regard to the evidence to which paras 8.1.1 of Direction no. 110 are relevant, the Tribunal considers the Applicant’s offending conduct to be very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of Direction no. 110 states, in part:[75]
(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). …
[75] See also Direction no. 110 para 8.1(2)(b). For completeness only, the Tribunal notes that para 8.1.2(2)(c) of direction no. 110 applies to matters involving a refusal to grant a visa to a non-citizen and does not apply to the present application. The present matter involves and issue of whether the Tribunal does or does not exercise the power conferred to it by s501(2) of the Migration Act to cancel the visa.
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[76] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[77]
[76] Direction no. 110 para 8.1.2(2)(a).
[77] Direction no. 110 para 8.1.2(2)(b).
The Tribunal in CZCV and Minister for Home Affairs[78] (CZCV) summarised the task for the Tribunal as follows:
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 41 VR 359 , [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration & Border Protection (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration & Border Protection (No 2) [2015] FCA 705 at [42]–[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
In BSJ16 v Minister for Immigration & Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: “… there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration & Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”.
[78] [2019] AATA 91 [56]–[57]. The Tribunal in CZCV and the Courts referred to in the related cited cases were considering visa cancellation in the context of predecessors to Direction No 99 (the CZCV matter itself falling for consideration by Direction No. 90) Given the similarity in wording, the same considerations and principles apply to the present matters. The Tribunal therefore follows the approach in these cases.
Nature of the harm
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals or the Australian community should the Applicant reoffend.[79]
[79] Direction no. 110 para 8.1.2(2)(a).
In relation to the nature of the harm to individuals or the Australian community should he reoffend, the Applicant submitted that while he ‘does not deny the nature of the harm’, he has not reoffended since 2019 because he has reformed.[80]
[80] A1 [33].
The Respondent made a number of observations and contentions in support of its position that the nature of the harm that would be caused to the Australian community if the Applicant were to reoffend is extremely serious.[81]
[81] R1 [34], [35].
The Tribunal accepts that the Applicant has somewhat developed a level of insight that may be seen as being remorseful for his family violence offending.[82] However, the Tribunal remains unconvinced that the Applicant understands the significant harm that would be caused to the Australian community should he engage in further offending, in particular violent offending and acts of family violence. Rather, the Tribunal sees the Applicant’s remorse as being tied to the consequences that would flow should he be removed, in relation to potentially being unable to see his extended family, friends and community contacts in person in future.
[82] That being said, the Tribunal remains largely unconvinced of this in relation to the Applicant’s driving offences where he continued to drive in circumstances where he had no authority to do so. This leaves a question mark over the Applicant’s insight or ability to be remorseful for those particular offences.
The Applicant has an extensive criminal history that involves family violence. This is of particular concern to the Australian community, due to the specific vulnerabilities of victims, such as Mrs Berryman, who lives with the perpetrator and is dependent on him in many respects.
In the Tribunal’s view, should the Applicant commit further similar offences, in particular violent offences, family violence, driving offences and drug-related offences, this would clearly result in further serious harm that may cause considerable and widespread physical, psychological and economic harm to members of the Australian community.
Likelihood of the non-citizen engaging in further criminal or serious conduct
Next, the Tribunal is required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence.[83]
[83] Para 8.1.2(2)(b) of Direction no. 110.
The Applicant gave evidence that as a child he was, along with his family, a member of the Church of Jesus Christ of Latter-Day Saints.[84] The Applicant claims this connection fell away when he arrived in Australia,[85] but that over the last five years he has reconnected with the church, attending weekly, serving within the church and partaking in other aspects of the church such as temple ordinances and youth seminars and camps.[86] The Applicant gave evidence his current position in the church is of a Melchizedek Priesthood holder, which he had to complete study to attain.[87]
[84] Transcript, p 49.
[85] Transcript, pp 25 and 143.
[86] See for example A2, document 1 and R2, G18, pp 100 to 101. The statements and evidence of Mr Hayman, Mr Evitt and Mr Lekias attest to these matters.
[87] Transcript, pp 28 and 29.
When asked, the Applicant maintained that it was not the case that when he received the notice from the Department that they were considering cancelling his visa that he decided to become more involved in the church.[88] The Applicant said that rather, he got involved with the church because of church standards, and because he used to be in the church in the past.[89]
[88] Transcript, p 72.
[89] Transcript, pp 72 and 73.
As to whether the Applicant became involved in the church activities to improve his chances of staying in Australia:[90]
Well, I’m involved in it even if I got kicked out of Australia. It’s not going to stop me from being involved in what I do with my activities in the church, no. That’s – no. I won’t. The church is more important to me than anything else.
[90] Transcript, p 73.
The Applicant’s reliance on his journey of faith as his sole source of rehabilitation is summarily demonstrated by the following paragraph of his witness statement:[91]
I testify through the sacred covenants I make in the House of the Lord that I will NEVER reoffend any of the charges that have brought me here today and placed a dark cloud over part of my life. I testify I no longer will choose the path of unrighteous behaviour/ I testify that I have been rehabilitated through the programs of The Church Of Jesus Christ of Latter-Day saints. I testify that I have been re-borned [sic] and I testify my knowledge of what is right and wrong has been cleansed with the truthfulness and guidance of the example of Jesus Christ.
(Original emphasis.)
[91] A2, document 1 [22].
A gave evidence that while he accepts that he lives with people who actively use drugs, he is not concerned that their drug use and his proximity to illicit substances could be a trigger for him to start using drugs again or more consistently:[92]
I couldn’t afford to, because I’m back in the church, and I hold high standards in the church there that I belong to.
[92] Transcript, p 64.
When asked, the Applicant gave evidence to the effect that his past drug use is unrelated to his criminal offending and that he has not undertaken drug or alcohol rehabilitation because he does not need to.[93]
[93] Transcript, pp 64 and 65.
In his report dated 26 July 2024, Mr Awit considered the Applicant currently has a Major Depressive Disorder has a probable prior diagnosis of Major Depressive Disorder and Mild Substance Use Disorder and that he could benefit from some short-term intervention with a psychologist,[94] but not necessarily to prevent reoffending.[95] Mr Awit reported the Applicant told him that he was estranged from his wife, that they separated in 2019 but they continue to reside under the same roof.[96]
[94] R2, document 17, pp 1, 8 and 10 of report.
[95] Transcript, p 121.
[96] R2, document 17, p 4 of report.
As to the Applicant’s views on Mr Awit’s opinion that he has a probable prior mild substance use disorder:[97]
‑‑‑I – when I leave the mines, I come home and I like to relax, you know, and maybe a choof at home there. It’s not a bad drug. And, you know, just sit back and relax there. Working night shifts and all that there; it brings the adrenaline down. And when I’m ready to go back to work, that’s it. But, yes, like I said, I’m not denying that I haven’t tried those things. But as far as hard drugs are concerned, well, there’s a no-no to that, there. I haven’t been on hard drugs. I have tried methamphetamines. Yes.
[97] Transcript, p 63.
Mr Awit gave an opinion that the Applicant risk of offending is unlikely.[98] In doing so, Mr Awit noted reported improvements of the Applicant’s depression symptoms over the last five years, nil drug use during this time (with a very low risk of relapse into substance use),[99] the Applicant’s regular church attendance, his presence in his children’s lives and that fact that he has not reoffended in the last five years. When asked, Mr Awit said that he considered the Applicant’s past substance use or mental health condition were not the main contributing factors to his criminal conduct, however he would agree that the Applicant’s Major Depressive Disorder would have contributed to his offending.[100]
[98] R2, document 17, p 10 of report.
[99] Transcript, p 120.
[100] Transcript, pp 120 to 121.
In relation to the likelihood of engaging in further criminal or other serious conduct, the Applicant contended that:
(a)He has reformed. Central to his reform has been his total commitment to living according to the teachings of his Christian faith. This is confirmed in his own witness statement and in those of Ms Annette Tupaea, Ms Jeni-Lyn Berryman, Ms Rose Berryman, Mr Keanu Berryman, Mr Dayna Brown, Mr Dion Hayman and Mr Brent Evitt.
(b)There has been nil drug use and reoffending over the last four years and 9 months, coinciding with his involvement in the church. This is very strong evidence of reform, respect for the law, his understanding of his offending and his understanding of the impact of his offending on himself, others and the community as a whole.
(c)Mr Awit’s professional opinion is that the Applicant’s risk of reoffending is unlikely and that the Applicant’s awareness of the struggles his wife and children would face if he was removed act as a further deterrent from reoffending.[101]
(d)He is rehabilitated. Proof of this is not to be found in a slew of certificates or course attendance. Rather, proof is to be found by the Applicant’s actions while at large in the community. The Applicant’s rehabilitation program has been his journey of faith, coupled with his dedication to living as a law-abiding member of the community and his commitment to his family.
(e)While he accepts that the first primary consideration weighs against him, that weight is tempered by his proven reform.
[101] See A2, document 17, [31].
At the hearing, Mr Dobbie for the Applicant added:[102]
Although we accept that the protection of the Australian community weighs against him because there’s – offending is exceptionally long, there is also that element of risk in the reform…without putting a Biblical slant on anything…this case very much is embedded in one way in relation to [the Applicant’s] Christian faith. But he essentially is the tale of the prodigal son who’s strayed away from the church and has come back in 2019 and essentially been living a law-abiding life since 2019, since his last offence…
[102] Transcript, pp 10 and 11.
The Respondent contends there is insufficient evidence on which to be satisfied that the Applicant’s risk of recidivism is low, having regard to the following:[103]
(a)   There is no evidence of a psychologist regarding the Applicant's risk of recidivism;
(b)   In sentencing remarks dated 6 February 2019, the Magistrate stated that the Applicant's guilty pleas were received 'at a late stage' and may be 'explained by reason of the downgrading of the charges’;[104]
(c)   In sentencing remarks dated 8 May 2018, the Court requested that the Applicant provide an explanation of the offence. The Applicant stated that his wife's driving was 'erratic' and 'she started going off' and stated 'I just want to plead guilty and get finished with it, sir’;[105]
(d)   In sentencing remarks dated 16 March 2017, the Magistrate emphasised that the Applicant ignored court imposed conditions and orders, and appeared to demonstrate little regard for the consequences of his actions;[106]
(e)   In letter the dated 23 August 2023 responding to the first NOICC, the Applicant denied aspects of his criminal history, including the possession of drugs, stating that they belonged to 'street kids,' to whom he provided accommodation;[107] and
(f)    The Applicant claims to have rehabilitated from his criminal offending, however, there is no evidence of drug, family violence or criminal offending rehabilitation programs with which the Applicant has engaged or participated.
[103] R1 [33].
[104] See R2, G9, p 53.
[105] See R2, G10, p 59.
[106] See R1, G11, p 62.
[107] See R1, G18, p 102.
The Applicant is asking the Tribunal to accept the church as the Applicant’s source of rehabilitation and reform and in turn, relies on the fact of his claimed complete rehabilitation in submitting he will not reoffend. The Applicant accepts that he has asked this state of affairs be accepted in circumstances where he has not completed any formal rehabilitation of any kind, considers “reform and rehabilitation is not to be shown by certificates” and presents the Tribunal with no opinion from a forensic psychologist or psychiatrist regarding risk of reoffending:[108]
And ultimately, you know, no matter which way someone looks at it, you have to make a choice to change your behaviour. I don’t think I need to be a behavioural scientist to say that, or have done a course. And doing a course doesn’t mean you’re rehabilitated just because you have done a course. It’s a question of choice, and whether you want to choose to change. Now, that choice may arise, and the ability to change may arise because of formal courses, where you recognise your failings, if I want to put it that way, or weaknesses, and your strengths, or it may also arise by another way.
And in this case, by way of religious instruction, but also involvement with the church. So it wasn’t just religious instruction; it was his involvement in the church as a whole. And it sort of runs into the next point about the witness testimony. My respectful submission is that first-hand evidence, observing somebody in their interactions with another person, is relevant evidence that should be taken into account. The evidence from the witnesses didn’t just come from family members, but from senior members of the church, and also, in one case, a serving police officer of 29 years who has been operational the whole 29-year period.
… He was at large in the community for five years before he got detained without any reoffending. And the observations of those from the church who have spoken about his journey and his reform are consistent with his conduct in the community at large, where he has been licenced to drive heavy vehicles, he has been in a residence where there are drug users and other challenges which may have tipped other people the other way, but not him…
[108] See Transcript, pp 152 to 153. Mr Awit is a General Psychologist who consulted with the Applicant on two occasions, being on 24 July 2024 and 25 July 2024 and had no prior treating relationship with the Applicant (transcript, p 120).

The Tribunal considers that the weight to be placed on the Applicant’s claims of total rehabilitation should be mitigated by the following:
(a)The Applicant gave evidence that he was involved in the church as a child in New Zealand, and that his family and late wife were also heavily involved. Even though the Applicant claims there was a period where he fell away from the church, the Tribunal accepts that the Applicant has been involved in the church for a significant part of his life. The Tribunal considers that the Applicant would have at the least, maintained a level of familiarity with the church during the period he did not attend, which included the many years spanning his offending history. As such, the Tribunal cannot be satisfied that the church is a sufficient protective factor against the Applicant reoffending in future.
(b)Further, even if the Tribunal were to accept the Applicant has progressed through the various levels of the church,[109] the Applicant’s evidence as to what was involved in this process does not serve to satisfy it as to the actual rehabilitation that took place.
(c)While it is the case that the Applicant has not offended in almost five years, this followed a lengthy period of continuous offending including violent offending and family violence.
(d)The Applicant currently lives with three drug users. Without having undergone any drug rehabilitation program, there is a possibility that he may engage in further drug use. The Applicant also has not undergone any psychological intervention for his depression, which in Mr Awit’s opinion was a contributing factor to his offending. The Tribunal cannot be satisfied that the Applicant has sufficiently addressed his mental health concerns, or indeed that he considers there is a need to be addressed in the first instance.
(e)The Applicant’s wife, son Denver, daughter Jeni-Lyn and grandson Keanu are financially dependent on him. In the past, the Applicant has offended in circumstances where he drove a vehicle in order to maintain his employment and in turn financially support his family. These financial constraints my present the Applicant with further occasions where he may be at risk of committing offences. Given the Applicant history of doing so, even with the knowledge of it being offending behaviour, he Tribunal is not convinced that the Applicant would not re-offend in this manner.
(f)The Tribunal heard extensive evidence from numerous lay witnesses, who all attest to the Applicant’s reform and their close relationship with him. However, at hearing, it became apparent that in the case of most of these lay witnesses, their awareness of the full extent of the Applicant’s offending history came only recently, even as recent as the time they came to prepare their witness statements for the present hearing.[110] This indicates to the Tribunal that these witnesses were not aware of the Applicant’s offences at the times they were committed, calling into question both the claimed closeness of these relationships and whether the Applicant has indeed sought to conceal his offending from his family any friends.
(g)The Applicant claims to be remorseful and apologetic for his offending behaviour. However, even now, the Applicant claims to have gained insight into and accepted responsibility for his offending but still somewhat cavilled with the facts of his offending while under cross-examination.[111] This casts a cloud over the Applicant’s claimed reflections over his past offending behaviour.
(h)As noted above,[112] Mr Awit is a General Psychologist who consulted with the Applicant on two occasions, being on 24 July 2024 and 25 July 2024 and had no prior treating relationship with the Applicant. This lessens the Tribunal’s confidence in his opinion that the Applicant is unlikely to reoffend and is a very low risk of relapse into substance use and leaves it in a position where it is without forensic opinion on risk of reoffending based on specialist knowledge or expertise.
[109] The Tribunal considers it does not need to make a specific factual finding in this regard in circumstances where it considers that, in any event the available evidence regarding the Applicant’s studies and activities in this regard lack the necessary detail for it to do so.
[110] For example, Mr Tyrone Berryman, Ms Annette Tupaea and Ms Patreece Edwards.
[111] See example at transcript, pp 51 and 52.
[112] See fn 109.
Overall, having considered all of the evidence, the Tribunal is of the opinion that there is a real risk that the Applicant will reoffend in a similar manner. Given the significant risk of harm from violent offending, if the Applicant does engage in offending consistent with his previous offending, this would present a considerable risk of harm to the community in general. Further, the Tribunal agrees with the Respondent’s contention that the scourge of family violence in Australia is extremely serious, and that, as such, any risk of future family violence should be considered unacceptable.[113]
[113] Transcript, p 14.
Conclusion on the protection of the Australian community
Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that the protection of the Australian community consideration weighs strongly in favour of it exercising its discretionary power to cancel of the Applicant’s visa.
Second primary consideration: Family violence committed by the non-citizen
Paragraph 8.2 of Direction no. 110 provides that decision-makers must have regard to family violence perpetrated by the non-citizen when deciding whether to refuse or cancel a visa under s 501 of the Migration Act:
8.2. Family violence committed by the non-citizen
(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 noncitizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence.
“Family violence” is defined in para 4(1) of Direction no. 110 as:
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
b)a sexual assault or other sexually abusive behaviour; or
c)stalking; or
d)repeated derogatory taunts; or
e)intentionally damaging or destroying property; or
f)intentionally causing death or injury to an animal; or
g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominately dependent on the person for financial support; or
i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
j)unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.
For the purposes of the definition of family violence in Direction no. 110, member of the person’s family includes a person who has, or has had, an intimate personal relationship with the relevant person. The Applicant’s wife, Mrs Berryman therefore falls within this definition.
The Tribunal is required to consider whether family violence considerations arise on any of the submissions, materials or evidence before the Tribunal.
On 8 May 2018, the Applicant was convicted of committing common assault in circumstances of aggravation or racial aggravation, against his wife, Mrs Berryman. The facts of this offences are detailed above.[114]
[114] See [60].
The Applicant accepts that this offence falls within the definition of family violence[115] and that this primary consideration weighs against him.[116] The Applicant contends that the weight to be given to this consideration ought to be tempered by the facts that this offence occurred more than six years ago, he has accepted responsibility for his conduct there being no other offending of the same nature, and that the Applicant has supported his wife at a time she was suicidal and cares for their two adult children.[117]
[115] See para 4(1)(a) of Direction no. 110. The Respondent agrees (R1 [39]).
[116] A1 [42], [43].
[117] A1, [43], referring to A2, document 3, p 21 [9] to [11].
The Respondent referred to authority that the Tribunal has consistently found that family violence is abhorrent[118] and contended that this primary consideration weighs very strongly in favour of exercising the discretion to cancel the Applicant’s visa.[119] The Respondent relies on the following matters in support of its position:[120]
(a)The evidence before the Tribunal is that the Applicant's family violence criminal offending appeared to be an isolated incident.
(b)However, there is limited evidence regarding the extent to which the Applicant accepts responsibility for the family violence related conduct, as well as limited evidence regarding the extent to which he understands its impact under paragraph 8.2(3)(c) of Direction no. 110.[121]
[118] R1 [40], referring to Senior Member Kirk in Lum and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 792.
[119] R1 [42].
[120] R1 [41].
[121] Referring to para 8.2(3)(c) of Direction no. 110.
The Applicant committed family violence[122] in 2018, when he committed the offence of common assault in circumstances of aggravation or racial aggravation against his wife.[123] This assault left his wife with injuries including bruising and swelling to her eye and the side of her face. It is also uncontentious that the Applicant’s wife is a member of the Applicant’s family as defined.[124]
[122] As defined in para 4(1)(a) of Direction no. 110. See [102] above.
[123] As para 8.2(2)(a) of Direction no. 110 is satisfied, the Tribunal makes no inquiry in para 8.2(2)(b) of Direction no. 110.
[124] Para 4(1)(a) of Direction no. 110. See [102] above.
In assessing the seriousness of the Applicant’s family violence, the Tribunal has taken into consideration:
(a)The Applicant’s act of family violence appears to an in isolated incident or one-off event.[125]
(b)While the Applicant appears to be apologetic and remorseful for his conduct against his wife,[126] given the lack of documented evidence regarding the Applicant’s rehabilitation efforts more widely (other than statements from lay witnesses) there is limited evidence regarding the extent to which he understands the impact of his behaviour on his wife and his efforts to address the factors that contributed to his conduct, such as his having lost his temper.[127]
[125] Para 8.2(3)(a) of Direction no. 110. As such para 8.2(3)(a) of Direction no. 110 is irrelevant in the present matter. Similarly, it does not appear that a formal warning or other indication of having been made aware about the consequences of further family violence was not issued in the Applicant’s case: para 8.2(3)(d) of Direction no. 110. See sentencing remarks at R2, G10.
[126] See [62](c)] above and para 8.2(3)(c)(i) of Direction no. 110.
[127] Para 8.2(3)(c)(ii) and 8.2(3)(c)(iii).
Having had regard to the various components of para 8.2(3) of Direction no. 110, the Tribunal finds that while the Applicant’s act of family violence was a one-off incident, he has not re-committed such offending and he is apologetic for committing it, it cannot ignore the Government’s serious concerns (albeit proportionate to the seriousness of the family violence conduct) about those who have committed family violence entering or remaining in Australia. On this basis, the Tribunal considers that the family violence consideration weighs strongly in favour of it exercising its discretionary power to cancel of the Applicant’s visa.
Third primary consideration: The strength, nature and duration of ties to Australia
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Paragraph 8.3 of Direction no. 110 provides that:
a.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.
b.Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker 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)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant submitted that the strength, nature and duration of ties consideration weighs heavily against the Tribunal exercising its discretionary power to cancel of the Applicant’s visa, for the following reasons:[128]
(a)The Applicant has extensive family ties in Australia, to persons who are Australian citizens or who have indefinite right to remain in Australia, demonstrated by the genealogy provided.[129] These ties are also strong from a Māori cultural perspective.[130]
(b)These family ties, along with his religious ties, are strong and enduring and are demonstrated in the witness statements and letters of support provided.[131]
(c)If the Applicant’s visa remains cancelled, the impact on the Applicant’s wife, Mrs Berryman, and his two adult children Ms Jeni-Lyn Berryman and Mr Denver Berryman, would be significant.
(a)All three family members are financially, emotionally and psychologically dependent on him and have mental health, drug and alcohol issues such that the Applicant plays a carer-type role in their lives and they would suffer greatly if he were removed.[132] The Applicant also notes the comments of Mrs Berryman’s psychiatrist in this regard.[133]
(b)The Applicant has also raised his grandson Keanu Berryman, from when Keanu was two years old. Keanu considers the Applicant to be his father.
(c)As such, the Applicant has contributed positively to the Australian community.
[128] A1 [45]-[50].
[129] See A2, document 1 at pp 12 to 14.
[130] The Applicant submitted that the concept of Mokopuna is important in relation to his close personal ties.
[131] See S2 and R2, G19.
[132] The Applicant gave evidence that if he were to again work with GMF Contractors in the future, Vickie Berryman, Jeni-Lyn Berryman, Denver Berryman and Keanu Berryman would depend on his income for financial support (transcript, pp 76 to 77).
[133] A2, document 11.
When asked about his relationship with his wife, given the reference in Mr Awit’s report to there being estranged,[134] the Applicant said:[135]
Do you consider yourself separated from your wife?‑‑‑Well, I was separated from her. I was. I – for a short time I was, but because we are separated, Vickie couldn’t handle it, and she tried to overdose herself with pills and that, and she went into a coma, and then they called me, and I went down, got her out. But I don’t ever want to be separated from her. But I don’t - - -
The reason I ask is - - -?‑‑-Yes.
Sorry. The reason I ask is because in the psychologist report he reports that you’re estranged from your wife, and that although you live together, you’re effectively separated. Why do you think the psychologist has included that in his report?‑‑‑Yes, that’s right. I went back to her because she was suffering from a depression. She just lost her son. He had killed him – well, he got killed as well not – just not long ago, and she was suffering from all of that. And I felt so sorry for her, I went back there to help her and – you know, and to make sure that she’s okay. I didn’t want her going to do herself in again like she did when I left her. I didn’t want that happening. So I went back to the house there and I said to her, ‘Look, this is what we’ll do. I’ll look after you.’ I said, ‘There’s a spare room here. Let me take care.’ And so she agreed, and I’ve been there ever since, and we don’t ever have nothing like that ever in our home. We got a good home. The only thing in my home is my two children that are bit – they’re wayward, you know, with drug abuse. That’s all. But I don’t have a problem with my life.
… I’m still married to her, so I have a soft heart for Vickie. She’s – since she’s been going through all of these struggles and depressional situations, I went back there to help her, you know, get her through all of these things there. I don’t think she’ll survive if I’m not there. I could be mistaken, but I don’t think so, and I’ve been looking after her ever since. And since that one output, nothing ever has taken place since that. We’ve been good. There’s nothing. And she probably tell you the same thing.
[134] See [90] above.
[135] Transcript, pp 70 to 71.
As to the support that the Applicant provides, to his wife generally, he gave evidence at the hearing that:[136]
[136] Transcript, pp 35 to 36.
She had meningococcal disease and she was in a coma in the Charlie Gairdner hospital 11 days, and her brain – mind is not stable. Yes. And she doesn’t – she not really all that stable, Vickie. But, still, she’s my wife, and I look after her…
…I take care of her and make sure she doesn’t overdo her tablets. I take her to do her shopping. I go everywhere that she goes to just to make sure that she’s comfortable. I get things for her in our house, and my wife, she’s – as if she’s only 16, 17. She likes these trinkets that hang on these things and from the roof down. I thought to myself, ‘Gee, even my kids when they’re only 12, 13, they had these.’ My wife, you know, she’s into these glass horse things.
…All little things and that. And I know that she hasn’t gone out of that, and it’s only because she got hit with meningococcal disease, and so she’s been going to see Dr Roberts every so often. He’s her psychiatrist.
…[The Applicant has been assisting Vickie] since I married her.
… I support her wholeheartedly, and she knows that. Everything, not just in this and that. Everything that she needs just to comfort her…
In the seven months that you were in prison in 2013, what were the arrangements for Vickie’s care in that time?]‑‑‑Yes. We were lucky. We had – she’s got children to someone else as well, Vickie has, and she had her boys, two of the boys, with her taking care of her, and my daughter was there as well. So, you know, and her mum wasn’t too far away from where we were, and they used to take care of her. But, you know, I used to ring her all the time from prison. I didn’t want her coming to see me in prison there because she get lost on the way home, and then I told her not to come…
[Are those same people providing support to Vickie now while you’re in detention or are there other people involved as far as you’re aware, just from the day-to-day?]‑‑‑It was her mum.
…I mean, that was back then, and her boys.
[Who’s with Vickie day to day?]‑‑‑I have my – my daughter’s at home, but she’s unstable, any my son is unstable, and it’s just – it’s them three on their own. And I stress out where I am now, because there’s no one there for them…

During cross-examination, the Applicant gave evidence that:[158]
(a)He loves his grandchildren and loves getting together on family occasions such as weddings and playing sports with them.
(b)Before being in immigration detention, he often saw his minor grandchildren in person when they were at school. He does not see them as often now have grown up a bit and that two of them live over east and given he a lot of his family members work away.
(c)He does not play a parental role in the lives of his minor grandchildren.
[158] Transcript, pp 75 to 77.
While the Tribunal accepts that the Applicant spent some time with his minor grandchildren and perhaps to a lesser extent, his great-grandchildren,[159] the relationship is non-parental,[160] other persons fulfil the parental role in relation to these children[161] and the Applicant is highly unlikely to play such a role in future.[162]
[159] Para 8.4(4)(a) of Direction no. 110.
[160] Para 8.4(4)(a) of Direction no. 110.
[161] Para 8.4(4)(e) of Direction no. 110.
[162] Para 8.4(4)(b) of Direction no. 110. Given the limited role the Applicant has played to date, this is in the context of any role the Applicant might play not being parental, not whether it would be positive or otherwise.
There is no evidence as to the matters raised in paras 8.4(c), (d), (f), (g) and (h) of Direction no. 110, other than to note that the Applicant would be able to contact these children by electronic means if they were separated, should he return to New Zealand.[163]
[163] Para 8.4(d) of Direction no. 110.
Hence, the Tribunal finds that the best interests of the Applicant’s minor grandchildren and great-grandchildren weighs slightly against the exercise of the Tribunal’s discretionary power to cancel the Applicant’s visa.
Fifth primary consideration: Expectations of the Australian Community
The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of Direction no. 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Direction no. 110 goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.[164]
[164] Para 8.5(1) of Direction no. 110.
Paragraph 8.5(2) of Direction no. 110 directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Direction no. 110 notes that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of particular kinds. The paragraph directs that, in particular, the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paras 8.5(2)(a)–(f). Those particularised types of harm generally reflect the types of conduct identified in para 8.1.1 as conduct which is considered ‘very seriously’ or ‘serious’. They are:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.5(3) of Direction no. 110 further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. In doing so, para 8.5(3) arguably further qualifies the ‘norm’ expressed in para 8.5(1), which refers to the ‘unacceptable risk’ of conduct being engaged in. This makes it clear that a ‘measureable [sic] risk’ of causing physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the persons conduct or offending.[165]
[165] The Tribunal is also guided by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR) and Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 at [86] to [87].
This consideration will, in most cases, weigh in favour of exercising the power to cancel the visa if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
The Applicant submitted that while the Federal Court in FYBR has held this consideration to be normative, the weight to be applied is a matter for the decision-maker.[166]
[166] A1 [45].
The Applicant also submitted that while this consideration weighs against the Applicant, given his offending, this is not a case where the Australian community would expect the visa be cancelled.[167]
[167] A1 [54].
In relation to the expectations of the Australian community, the Respondent submitted:[168]
(a)The Tribunal must have due regard to the deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused.[169]
(b)In those circumstances, the Minister notes that the factor is in substance adverse to any applicant.[170]
(c)Commission of crimes against women and acts of family violence are viewed by the Australian community extremely seriously, and crimes of the nature that have been committed by the Applicant are in contravention of the expectations of the Australian community.[171]
(d)Therefore:
(i)The Australian community would expect that the Applicant should not hold a visa; and
(ii)This factor should be given significant weight in favour of exercising the discretion to cancel the visa.
[168] R1 [48], [49].
[169] FYBR at [75].
[170] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] per Mortimer J.
[171] Transcript, pp 164 to 165.
The Tribunal considers that the nature of the Applicant’s offending is such that the deemed community expectation that the Government should not allow him to remain in Australia ought to be applied.[172]
[172] Paras 8.5(2)(a) and 8.5(2)(c) of Direction no. 110, referring to the Applicant having engaged in family violence
and committed a serious crime against a woman.
The Applicant’s conduct has breached this community expectation by not obeying Australian laws. The Applicant has engaged in family violence, violent offending, driving related offences, drug related offences and offences against the police.[173] Consequently, the expectation of the Australian community would be that the visa should remain cancelled.
[173] Paras 8.5(2)(a), 8.5(2)(c) and 8.5(2)(d) of Direction no. 110. There is no evidence that paras 8.5(2)(b), 8.5(2)(f) or 8.5(2)(g) of Direction no. 110 apply to the Applicant’s circumstances.
Due to the application of the “norm” in para 8.5(1) of Direction no. 110 and the deeming operation of the corresponding direction as found by the Full Court in FYBR, this primary consideration weighs strongly in favour of the exercise of its discretionary power to cancel the Applicant’s visa.
The Tribunal makes this finding notwithstanding the fact that the Applicant has been in Australia for approximately 30 years (although not from a very young age) and that a slightly higher tolerance level may be afforded to him.[174]
[174] Para 5.2(6) of Direction no. 110.
Other considerations
Paragraph 9 of Direction no. 110 states:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)legal consequences of the decision;
b)extent of impediments if removed;
d)impact on Australian business interests
Legal consequences of decision under section 501 or 501CA
The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[175]
[175] Direction no. 110 para 9.1.
While this consideration in Direction no. 110 refers to non-refoulment obligations, it also makes reference to detention and removal, highlighting that there are a range of legal consequences of a decision not to revoke the cancellation of the Applicant’s visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:
·Unlawful status;
·The likelihood of becoming subject to detention and/or removal;[176]
·Refusal of other visa applications and cancellation of other visas;[177]
·A prohibition on applying for other visas;[178] and
·Periods of exclusion and special return criteria may apply.[179]
[176] Migration Act ss 189, 196, 197C, 198.
[177] Migration Act s 501F.
[178] Migration Act s 501E.
[179] Migration Act s 503, special return criteria (SRC) 5001.
Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[180] Under s 189 of the Migration Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198.[181]
[180] Migration Act s 15.
[181] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant’s detention had at all times been lawful at [112]-[122].
The Applicant submitted that having regard to Direction no. 110, there are no legal consequences of the decision to cancel the visa and this consideration does not apply.[182] The Respondent agrees[183] adding:[184]
…the legal consequences of the decision if the applicant’s visa is cancelled [are] he would be liable for removal as soon as practicable. The applicant claims he may suffer possible discrimination on return to New Zealand. However, the Minister notes the applicant has accepted that this does not amount to a claim for protection, and we would otherwise contend that there’s insufficient evidence to be satisfied that this discrimination would amount to any remarkable legal consequence in relation to the decision of the tribunal.
[182] A1 [55] and transcript, p 11.
[183] R1 [50].
[184] Transcript, p 166.
The Tribunal acknowledges the legal consequences of a decision to cancel the visa.[185] As the effect of cancellation is considered under the third and fourth primary considerations and the ‘extent of impediments if removed’ consideration, the Tribunal considers this consideration should be given neutral weight.
[185] See also [147] above.
Extent of impediments if removed
Paragraph 9.2 of Direction no. 110 provides that taking into account the matters identified in sub-paragraphs 9.2(1)(a), (b) and (c) of Direction no. 110, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country.
The matters identified under sub-paragraphs 9.2(1)(a), (b) and (c) of Direction no. 110 are:
·The Applicant’s age and health;
·Whether there are substantial language or cultural barriers; and
·Any social, medical and/or economic support available to the Applicant in their country.
The Applicant gave evidence that he completed all his schooling in New Zealand and spent about the first 30 years of his life there before moving to Australia in 1980.[186]
[186] Transcript, p 50.
At hearing, the Applicant gave evidence regarding a number of health conditions:[187]
Do you have any other physical health conditions for which you seek treatment in Australia?‑‑‑Yes, I do. I have high blood pressure. I think I suffer a bit from depression, only because of my high blood pressure. I’ve got two hip replacements and another one in my arm, and those are through, you know, wear and tear on the bone and everything like that. But I don’t have that. And I’m diabetic. That’s about it. But I’ve got all those under control. I have a medication. I take a medication for all these things there, and I’ve had them under control now for a lot of years.
[187] Transcript, p 72.
The Applicant also gave evidence that if he were returned to New Zealand, he has not really planned or made inquiries into where he might live and that family residing there would be unable to assist him with accommodation while he re-establishes himself as they are struggling to get accommodation.[188] The Applicant said he believes he would not be hired by the New Zealand government for work due to his age and in any event, there is no work for him in New Zealand.[189] The Applicant said that he would, however, look to become part of a local church community in New Zealand, if he returned[190] but reintegration into family in New Zealand would pose difficulties, being unfamiliar with the children of family members who are in their 70s or 80s, or have passed away.[191]
[188] Transcript, p 77.
[189] Transcript, pp 77 and 78.
[190] Transcript, p 78
[191] Transcript, p 78.
As to whether Mrs Berryman would return to New Zealand with him, the Applicant said his wife was attached to their birds but “she’d go anywhere I go to”[192] and he accepts Mr Berryman would be able to find another doctor there.[193]
[192] However, see Mrs Berryman’s evidence at [121(j)] above.
[193] Transcript, p 79.
Regarding the extent of impediments if he were removed, the Applicant submitted that:[194]
[194] A1 [57] to [62] and transcript, p 11.
(a)He is 74 years old, of Māori ethnicity, taking oral medication for gout, high blood pressure and diabetes.
(b)He was born in New Zealand, spent the early part of his life in New Zealand,[195] and have been living in Australia for 44 years.
(c)Nearly all of his extended family live in Australia.
(d)His social support is in Australia.
(e)He has no job or house/accommodation in New Zealand.
(f)Prior to his being detained, he was gainfully employed, supporting his wife and two children.
(g)The Māori in New Zealand continue to be a disadvantaged minority, with unemployment having increased by four times the national rate over the last four years.[196]
(h)Older Māori workers suffer consistently higher unemployment than their European counterparts.[197]
(i)Requiring a 74 year old Māori man, who has spent more than 44 years of his life in Australia, to re-establish himself in New Zealand, away from his extended family, where he faces the likelihood of unemployment, discrimination on the basis of his ethnicity and his age, and being without a place to live, would be a significant impediment.
(j)Therefore, this consideration weighs heavily against exercising the discretion to cancel the visa.
[195] Of approximately 30 years, at the least.
[196] Citing a report dated 6 May 2024 in the New Zealand Doctor among other sources.
[197] Citing The Office For Seniors.
In turn, the Respondent submitted that the Applicant will not face significant impediments if removed and this consideration should be given limited weight against exercising the discretion to cancel the visa because:[198]
(a)The Applicant will be able to establish himself and maintain basic living standard: paragraph 9.2(1) of Direction no. 110.
(b)The Applicant is 74 years old and does not have any known health conditions: paragraph 9.2(1)(a) of Direction no. 110.
(c)The Applicant lived in New Zealand until he was in his 20s, and will not face substantial language or cultural barriers: paragraph 9.2(1)(b) of Direction no. 110.
(d)While the Applicant is likely to face emotional hardship on return to New Zealand given the separation from the Applicant's wife and extended family, there is no evidence that the Applicant's family are unwilling or unable to re-locate to New Zealand if they so choose.
(e)The Applicant will also have access to the same level of medical and economic support as what is generally available to other citizens of New Zealand: paragraph 9.2(1)(c) of Direction no. 110.
[198] R1 [52].
At the hearing, the Respondent added:[199]
(a)The Applicant gave evidence that he identifies strongly with his Māori cultural identity. He called New Zealand home on several occasions, and said that he considers it home, given he was born there.
(b)The Applicant has visited New Zealand in connection with church activities, and gave evidence that he could easily become involved with a local church community in New Zealand.
(c)The Applicant also gave evidence that he is respected as a result of his kinship, identity, and status in New Zealand.
(d)Therefore, although the Applicant is 74 years old, he would not face substantial language or cultural barriers should he return to New Zealand.
[199] Transcript, p 166.
Having considered the available evidence and the parties’ submissions in the context of this other consideration, the Tribunal accepts the factors raised by the Respondent[200] and adds that it also accepts the Applicant’s would likely face emotional hardship if removed, particularly in relation to his being separated from his wife, Jeni-Lyn and Denver. However, there are indications that support from extended family would be available, this support being provided to Mrs Berryman during the periods the Applicant was in prison.
[200] See [156] to [157] above.
While the Tribunal accepts the Applicants suffers from a number of health condition as claimed, there is no evidence before the Tribunal that the Applicant would be unable to receive similar treatment for these conditions in New Zealand.
Overall, the Tribunal is satisfied that the extent of impediments if removed consideration weighs slightly against exercise of the discretion to cancel the Applicant’s visa.
Impact on Australian business interests
Paragraph 9.3 of Direction no. 110 states:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant claims he is considered to be a valuable employee[201] and that this consideration weighs slightly against the exercise of the discretion to cancel the visa.[202]
[201] A2, document 16, being the reference letter from Mr Albert Biagioni, Director, GMF Contractors.
[202] A1 [63], [64].
At the hearing, the Applicant added:[203]
Just in relation to the other consideration relating to business interests, the evidence of the applicant, which was unchallenged, was that should he have his visa back, he would be working on a subdivision – a huge subdivision, he said – of about 400 residences.
And his other evidence, of course, is that he is a person who prepares the property that is to be developed into a residence, for the initial laying of the slab, which relates – obviously is an important one. Because if you can’t lay a slab properly, you can’t have your house. So that’s his evidence. We say that that is an important service, being able to provide that fundamental foundational work for the building of residences in Australia, and we say that is an important service in Australia.
[203] Transcript, p 149 to 150.

The Respondent, however, maintains that the impact on Australian business interests consideration is irrelevant[204] and weighs neutral:[205]
Then, finally, in relation to the business consideration, we note that the applicant is asking the tribunal to rely on his oral evidence and the letter of Mr Biagioni alone in making his claim that Australian business would be impacted by his removal. We would submit that this consideration should weigh neutrally, as the applicant’s employment in driving heavy machinery to compact land for housing developments would not appear to significantly compromise the delivery of a major project or the delivery of an important service in Australia.
We have not heard directly from the applicant’s employer regarding a claim about a major project or delivery of a service, and there has been no positive evidence, such as documentary evidence, of an employment contract, nor the name of any major project or delivery of a service in which Mr Berryman has been engaged, apart from a vague reference to a housing crisis. And it’s not clear to what extent Mr Berryman’s personal involvement in his employment would compromise the delivery of a service or a major project. Without objective evidence of this kind, we would contend that there’s no basis on which the tribunal can be satisfied that Australian business interests would be impacted by the applicant’s removal to New Zealand.
[204] R1 [50].
[205] Transcript, pp 166 to 167.
The Tribunal considers the shortcomings in the evidence to support the Applicant’s claim that his removal would significantly compromise the delivery of an important service in Australia are as described by the Respondent.[206] Therefore, the Tribunal is satisfied that this consideration is not relevant in the present case and should be given neutral weight.
[206] See [164] above.
CONCLUSION – THE WEIGHING EXERCISE
The Applicant does not pass the character test under s 501(6) of the Migration Act. Section 501(2) of the Migration Act provides the Tribunal can make a decision about whether to exercise the power to cancel the visa. The Tribunal has therefore considered whether the discretion in s 501(2) of the Migration Act to cancel the Applicant’s visa should be exercised, having regard to the primary and relevant other considerations in Direction no. 110.
Paragraph 7 of Direction no. 110 sets out the way in which the relevant considerations are to be taken into account and weighed.[207]
[207] See [41] above.
There has been extensive judicial consideration of how the exercise of balancing and weighing the considerations contained in the relevant Ministerial Directions is to be undertaken (considering a number of Ministerial Directions preceding Direction no. 110).[208]
[208] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
Relevantly, the Full Court of the Federal Court considered the operation of Direction No. 90 in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[209]While the Court was considering Direction No. 90, its observations would apply to Direction no. 110. The Court found that the Tribunal must weigh and balance the various primary and other relevant considerations outlined in the Direction (in this case Direction no. 110) against each other as 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.[210]
[209] [2023] FCAFC 138.
[210] At [35].
In determining the weight to be applied to each consideration, the Tribunal has considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and according to the guidance provided by Direction no. 110. The Tribunal has ascribed weight to each of the primary and other relevant considerations under Direction no. 110 and explained the basis upon which it has assessed the weight to be given to each consideration.
The Tribunal has gone on to compare and balance all of the considerations to determine whether to exercise its discretionary power to cancel the visa.
In relation to the first primary consideration, the protection of the Australian community (para 8.1 of Direction no. 110), the relevant consideration is whether the risk is an unacceptable one, taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the offences or other serious conduct and the likelihood of that occurring. For the reasons set out in paras [49]-[99] above, the Tribunal has found that given:
(a)the nature and seriousness of the Applicant’s conduct to date is “very serious” (paras 8.1(2)(a) and 8.1.1 of Direction no. 110); and
(b)the serious nature of the harm and the real risk to the Australian community, should the Applicant commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction no. 110),
the protection of the Australian community consideration weighs strongly in favour of it exercising its discretionary power to cancel the Applicant’s visa.
As to the second primary consideration (para 8.2 of Direction no. 110), family violence weighs strongly in favour of the Tribunal exercising its discretionary power to cancel the visa (see paras [100]-[110]).
With respect to the third primary consideration, the strength, nature and duration of ties to Australia (para 8.3 of Direction no. 110), the Tribunal has found that this primary consideration weighs strongly against the Tribunal exercising its discretionary power to cancel the visa (see paras [111]-[121]).
With respect to the fourth primary consideration, the best interests of minor children in Australia (para 8.4 of Direction no. 110), the Tribunal has found that for the reasons set out in paras [122] to [130] above, the best interests of the Applicant’s grandchildren and great-grandchildren weigh slightly against the Tribunal exercising its discretionary power to cancel the visa.
The fifth primary consideration, the expectations of the Australian community (para 8.5 of Direction no. 110) weighs strongly in favour of the Tribunal exercising its discretionary power to cancel the visa (see paras [131]-[142]).
In relation to the relevant ‘other considerations’ identified in Direction no. 110, the Tribunal finds that:
(a)the legal consequences of the decision under s 501 of the Migration Act weighs neither for nor against the exercise of the power to cancel the visa and should be afforded neutral weight in the Applicant’s case (para 9.1 of Direction no. 110).
(b)The extent of impediments if removed consideration weigh slightly against the Tribunal exercising its discretionary power to cancel the visa (para 9.2 of Direction no. 110).
(c)The impact on Australian businesses weighs neutrally in the Applicant’s circumstances (para 9.3 of Direction no. 110).
Having weighed the considerations in favour of the Tribunal exercising its discretionary power to cancel the visa against those against the Tribunal exercising this power, the Tribunal finds that:
(a)The first, second and fifth primary considerations weigh strongly in favour of the Tribunal exercising its discretionary power to cancel the visa.
(b)The third primary consideration weighs moderately to strongly against the Tribunal exercising its discretionary power to cancel the visa.
(c)The fourth primary consideration and the extent of impediments if removed consideration weight slightly against the Tribunal exercising its discretionary power to cancel the visa.
(d)The two remaining other considerations carry neutral weight.
Paragraph 7(2) of Direction no. 110 states that primary considerations should generally be given greater weight than the other considerations. Further, para 7(2) states that the first primary consideration (protection of the Australian community) is generally to be given greater weight than other primary considerations. Nothing before the Tribunal would cause the Tribunal to find that that general principle should not apply in the Applicant’s case.
The Tribunal also emphasises that the considerations are not hierarchical – one or more primary considerations may outweigh other primary considerations.[211]
[211]Para 7(3) of Direction no. 110.
Having weighed the primary and other considerations against each other, the Tribunal is satisfied that appropriate weight has been assigned to each of them. Particularly, the Tribunal is satisfied that the circumstances of the Applicant’s case warrant the strong weight placed on the first, second and fifth primary considerations. Those circumstances being:
(a)The very serious view taken by the Australian Government and the Australian community in relation to violent crimes, crimes of a violent nature against women and acts of family violence.[212]
(a)The serious concerns held by the Government about conferring on non-citizens who engage in family violence the privilege of remaining in Australia.[213]
(b)That the Australian community expects the Australian government to cancel visas of those persons who raise serious character concerns through conduct expressly including acts of family violence, commission of serious crimes against women or other vulnerable members of the community.[214]
[212]See Para 8.1.1(a) of Direction no. 110.
[213]See Para 8.2(1) of Direction no. 110.
[214]See Para 8.5 of Direction no. 110.
Therefore, despite the considerations weighing in the Applicant’s favour (that is, against, the Tribunal exercising its discretionary power to cancel the visa) the Tribunal is satisfied that the protection of the Australian community from future harm (from either the Applicant’s future offending, or any other serious conduct) is a primary consideration which, in addition to the family violence consideration and the expectations of the Australian community consideration, outweighs any and all considerations weighing in the Applicant’s favour.
In summary, having regard to all of the primary considerations and other considerations in Direction no. 110, the Tribunal is satisfied that it should exercise its discretion conferred by s 501(2) of the Migration Act to cancel the visa.
The correct or preferable decision is to affirm the Reviewable Decision.
DECISION
The Reviewable Decision, being the decision of the Delegate dated 1 May 2024 to exercise the discretion to cancel the Applicant’s Special Category (Temporary) (Class TY) (subclass 444) visa pursuant to subsection 501(2) of the Migration Act 1958 (Cth) is affirmed.

I certify that the preceding 185 (one-hundred and eighty-five) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher

...........[Sgd].....................................
Associate
Dated: 21 August 2024

Date of hearing: 6 and 7 August 2024

Solicitors for the Applicant:
Mr N Dobbie, Dobbie and Devine Immigration Lawyers

Solicitors for the Respondent: Ms L Taylor, Minter Ellison
ANNEXURE A – TABLE OF THE APPLICANT’S OFFENDING HISTORY IN AUSTRALIA

Offending table details drawn from the Australian Criminal Intelligence Commission ‘Check Results Report,’ dated 26 May 2023.[215]

[215] R1, G6, G7, G8, pages 39-44.

Conviction Date	Court	Offence	Court Result
1.	14 September 1982	Perth Magistrates Court	Speeding by more than 10km but less than 20km	Fine $40
2.	21 October 1981	Norseman Court of Petty Sessions	Speeding by more than 20km but less than 30km	Fine $40
3.	12 December 1981	Perth Magistrates Court	Speeding by more than 30km but less than 40km	Fine $60
4.	22 February 1982	Perth Magistrates Court	Speeding by more than 30km but less than 40km	Fine $80
5.	19 May 1982	Norseman Court of Petty Sessions	Speeding by more than 20km but less than 30km	Fine $70
6.	25 November 1982	Perth Magistrates Court	Possess driver’s licence calculated to deceive	Fine $80 Disqualified from driving for 9 months
7.	29 January 1885	Perth Magistrates Court	Speeding by more than 10km but less than 20km	Fine $60
8.	23 October 1985	Perth Magistrates Court	Speeding by more than 30km but less than 40km	Fine $95
9.	23 October 1985	Perth Magistrates Court	Speeding by more than 10km but less than 20km	Fine $45
10.	19 March 1987	Fremantle Magistrates Court	Speeding by more than 10km but less than 20km	Fine $40
11.	19 March 1987	Fremantle Magistrates Court	No motor drivers licence	Fine $40
12.	19 March 1987	Fremantle Magistrates Court	Unlicensed vehicle	Fine $20
13.	15 October 1987	Perth Magistrates Court	No motor drivers licence	Fine $20
14.	8 December 1987	Perth Magistrates Court	Speeding by more than 10km but less than 20km	Fine $50
15.	17 February 1988	Perth Magistrates Court	Speeding by more than 10km but less than 20km	Fine $40
16.	11 May 1988	Perth Magistrates Court	Speeding by more than 40km but less than 50km	Fine $90
17.	6 September 1988	Perth Magistrates Court	Speeding by more than 10km but less than 20km	Fine $40
18.	18 January 1989	Perth Magistrates Court	Assault occasioning bodily harm	$500 6 Months good behavior bond
19.	25 January 1989	Perth Magistrates Court	Stealing	$150
20.	26 September 1989	Perth Magistrates Court	Assault to prevent arrest	3 months imprisonment
21.	20 November 1990	Rockingham Magistrates Court	No motor drivers licence	Fine $100
22.	20 November 1990	Rockingham Magistrates Court	Cross continuous white line approach intersection	Fine $50
23.	20 November 1990	Rockingham Magistrates Court	Unlicensed vehicle	Fine $100
24.	18 November 1991	Perth Magistrates Court	Assault a public officer	$1,500
25.	2 September 1996	Leinster Court of Petty Sessions	Wilfully mislead police	Fine $100
26.	2 September 1996	Leinster Court of Petty Sessions	Unlicensed vehicle	Fine $100
27.	18 August 2006	Mandurah Magistrates Court	No motor drivers licence	Fine $500 Disqualified from driving for 9 months
28.	18 August 2006	Mandurah Magistrates Court	Wilfully mislead police	Fine $200
29.	18 August 2006	Mandurah Magistrates Court	Driver fail to wear a seat belt	Fine $100
30.	8 February 2007	Fremantle Magistrates Court	No motor drivers licence	Fine $1000 Disqualified from driving for 9 months
31.	1 May 2007	Fremantle Magistrates Court	Exceed the speed limit by 20-29 kilometres per hour	Fine $300
32.	1 May 2007	Fremantle Magistrates Court	No motor drivers licence	Fine $1000 Disqualified from driving for 9 months
33.	31 July 2007	Fremantle Magistrates Court	No motor drivers licence	Fine $1000 Disqualified from driving for 9 months
34.	20 April 2011	Perth Magistrates Court	No authority to drive	Fine $500
35.	6 November 2012	Rockingham Magistrates Court	No drivers licence	Fine $1200 Disqualified from driving for 9 months
36.	1 February 2013	Perth Magistrates Court	No authority to drive	Fine $2000 Disqualified for 12 months
37.	18 March 2013	Perth Magistrates Court	No authority to drive	Unclear from record
38.	18 March 2013	Perth Magistrates Court	Drive vehicle contrary to compliance notice	Fine $600
39.	12 June 2013	Midland Magistrates Court	No authority to drive	Unclear from record
40.	7 October 2015	Joondalup Magistrates Court	Possessed drug paraphernalia in or on which there was a prohibited drug or plant	Fine $250
41.	7 October 2015	Joondalup Magistrates Court	Possessed a prohibited drug (Methylamphetamine)	Fine $400
42.	18 January 2016	Joondalup Magistrates Court	Drove contrary to an extraordinary licence condition	Fine $250
43.	18 January 2016	Joondalup Magistrates Court	Used an unlicensed vehicle	Fine $100
44.	14 March 2016	Joondalup Magistrates Court	Drove contrary to an extraordinary licence condition	Fine $450
45.	16 March 2017	Perth Magistrates Court	No authority to drive	Imprisonment 7 months
46.	8 May 2018	Perth Magistrates Court	Commons assault in circumstances of aggravation or racial aggravation	Fine $1500
47.	6 February 2019	Perth Magistrates Court	Driver failed to stop (circumstance of aggravation)	Fine $5000
48.	6 February 2019	Perth Magistrates Court	Dangerous driving	Fine $1000
49.	6 February 2019	Perth Magistrates Court	Possessed a prohibited drug (Methylamphetamine)	Fine $350
50.	22 November 2019	Joondalup Magistrates Court	No authority to drive	Fine $1200

Date of hearing:	6 and 7 August 2024
Solicitors for the Applicant:	Mr N Dobbie, Dobbie and Devine Immigration Lawyers
Solicitors for the Respondent:	Ms L Taylor, Minter Ellison