Broad and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 4563

Broad and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4563 (12 November 2020)
Division:GENERAL DIVISION
File Number(s): 2020/5149
Re:Daniel Broad
APPLICANT

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

DECISION
Tribunal:Deputy President Boyle
Date:12 November 2020
Place:Perth

The decision of the delegate of the Respondent dated 20 August 2020 to not revoke the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) is affirmed.
.....................................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – Migration Act 1958 (Cth) – mandatory visa cancellation – s 501CA(4) – another reason why the cancellation decision should be revoked – Direction 79 – protection of the Australian community – nature and seriousness of the conduct – the risk to the Australian community – attitude towards and violence against women – abuse of Tribunal member and counsel in hearing – best interests of minor children – strength, nature and duration of ties – extent of impediments if removed – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 499(1), 499(2A), 500(1)(ba), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(ii)
Sentence Administration Act 2003 (WA) – s 29
CASES
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56
McCarthy and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 2939
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 363 ALR 325
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4171
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA (Department of Home Affairs, 28 February 2019) – paras 6.1,6.1(3), 6.2, 6.3, 7(1)(b), 8, 8(3), 8(4), 8(5), 13(2), 13(2)(a), 13(2)(b), 13(2)(c), 13.1, 13.1(2)(a), 13.1(2)(b), 13.1.1(1), 13.1.1(1)(a), 13.1.1(1)(b), 13.1.1(1)(c), 13.1.1(1)(d), 13.1.1(1)(e), 13.1.1(1)(f), 13.1.1(1)(g), 13.1.1(1)(h), 13.1.1(1)(i), 13.1.2, 13.1.2(1)(a), 13.1.2(1)(b), 13.2, 13.3, 14, 14(1), 14(1)(a), 14(1)(b), 14(1)(c), 14(1)(d), 14(1)(e), 14.2, 14.2(1)(a)(i), 14.2(1)(b), 14.4, 14.4(1), 14.5(1), Part C
REASONS FOR DECISION
Deputy President Boyle
12 November 2020
THE APPLICATION

The Applicant seeks review of a decision of a delegate of the Respondent dated
20 August 2020 to not revoke the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
The Applicant’s visa was cancelled pursuant to s 501(3A) of the Act because the Applicant does not pass the character test by reason of his substantial criminal record and because he was serving a full-time term of imprisonment for an offence against a law of a State.
The application for review, made on 25 August 2020, was made in accordance with
s 500(1)(ba) of the Act which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) of the Act not to revoke a decision to cancel a visa. The Tribunal is satisfied that it has the jurisdiction to review the decision.
THE ISSUE
The issue for determination is whether the Tribunal should exercise the power in
s 501CA(4) of the Act to revoke the mandatory cancellation of the visa. That will require determination of:
(a)whether the Applicant passes the character test (as defined by s 501 of the Act); and
(b)if not, whether there is a ‘another reason’ why the mandatory cancellation decision should be revoked.
BACKGROUND
The Applicant is a 34 year-old citizen of New Zealand (born 10 September 1986).
The Applicant first arrived in Australia on 18 September 1987 with his parents and his two sisters. Since his arrival he has departed on only one occasion (from 17 January 1996 to 31 January 1996).
He grew up and was educated in Kwinana. His parents separated when he was eight years old) and his father died when the Applicant was 13 years old. The Applicant has given a history that his father suffered from PTSD and was an alcoholic who was abusive towards the Applicant’s mother.[1]
[1] A1 and R1, G35/173.
He left school in year 10 at the age of 15 years. He worked as a trolley boy at a shopping centre. His mother then moved in with her current partner and the Applicant went to live with one of his sisters.
The Applicant has had only intermittent employment. In his representations in support of his request for revocation of the first mandatory cancellation of his visa in 2017,[2]
[2] R1, G23/125.
[3] R1, G25/145.
the Applicant listed his employment history as being a plasterer from 2002 to 2004 and a trade’s assistant from 2006 to 2007. He did not list any employment history in the representations in support of the request for revocation of the second mandatory cancellation, the request the subject of the current application.[3]
The Applicant has an extensive criminal history. He was first convicted as a minor between 2002 and 2004 of burglary, stealing, disorderly conduct, no motor driver’s licence and breach of bail.[4] He was detained for a period of time in juvenile prison.[5]
[4] R2/296.
[5] R1, G35/172 and sentencing remarks of Keen DCJ, R1, G15/79; see also [96].
The Applicants’ criminal record as an adult is set out in the Schedule to this decision.
The Applicant’s offending as an adult commenced almost immediately he turned 18 in September 2004. His first convictions for offences committed as an adult were recorded in the Fremantle Court of Petty Sessions on 4 November 2004.[6]
[6] R1, G10/47; R2/288-296.
In 2008 the Applicant was convicted of 12 offences. Over the period 30 and 31 July 2008, the Applicant committed the offences of aggravated burglary with intent in a place of residence, two counts of aggravated burglary and commit offence in a place of residence, steal motor vehicle and possess a smoking utensil. On 24 September 2008 he was convicted of those offences and sentenced to an 18 month intensive supervision order as well as community service. On the same date he was also convicted of breaching a community based order imposed on 17 July 2008.[7]
[7] R1, G10/47; R2/293.
On 6 February 2009 the Applicant was convicted of breaching the intensive supervision order imposed on 24 September 2008 and was sentenced to 12 months imprisonment (suspended).
On 1 May 2009 the Applicant committed the offence of assault occasioning bodily harm. On 3 November 2009 he was convicted for that offence as well as breaching the suspended sentence imposed on 6 February 2009. The Applicant was sentenced to
[8] R1, G16/82-84; R2/292.
12 months imprisonment for breaching the suspended sentence and a fine was imposed for the assault charge.[8]
On 9 April 2010 the Department of Immigration and Citizenship (the Department) advised the Applicant of a decision not to cancel his visa under s 501 of the Act but warned that visa cancellation may be reconsidered if he committed further offences or otherwise breached the character test in the future.[9] The Department’s letter of 9 April 2010 contained the following paragraph in bold:
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.
[9] R1, G22/110.
The Applicant was released from custody in November 2010.
In August 2011 the Applicant’s ex-partner, Ms G, applied (for a second time) for a violence restraining order (VRO) protecting her from the Applicant. That VRO was served on the Applicant in November 2011. In a statement given to police[10] Ms G stated that:
6.I applied for a violence restraining order in August because of how aggressive and physically and verbally abusive Daniel was towards me.
7.Daniel has previously slapped me to the face and would grab hold of me when we argued and try to stop me from leaving.
8.Daniel is very possessive and controlling.
[10] R2/12.
In all there have been 10 VROs issued against the Applicant, these being issued on

27 July 2004 (x2),[11] 3 September 2004,[12] 28 February 2007,[13] 5 May 2011,[14] 13 August 2011,[15] 24 August 2011,[16] 12 December 2014,[17] 18 January 2016[18] and 11 February 2016.[19] The nominated protected persons in seven of the VROs were the Applicant’s partners or former partners, in two cases (July 2004 and February 2007) the nominated protected person was his mother and in one case the nominated protected person was the Applicant’s mother’s partner.
[11] R2/300 and 306.
[12] R2/299.
[13] R2/305.
[14] R2/303.
[15] R2/309.
[16] R2/297.
[17] R2/301.
[18] R2/308.
[19] R2/307.
On 18 December 2011 the Applicant committed the offences of aggravated burglary with intent in dwelling and act or omission causing bodily harm. The Applicant attended the house of his former partner, Ms G, who had taken out the VRO against the Applicant the month before. Her new partner and six year old daughter were present. The Applicant forced entry through a bedroom window and attacked his former partner’s new partner. The Applicant was convicted of the offences on 4 April 2013 and sentenced to two years imprisonment and one year imprisonment respectively, to be served cumulatively and backdated to 23 December 2011 to take into account the time already spent in custody.[20] The Applicant was released from custody in December 2014.
[20] R1, G15/77-81.
By letter dated 17 December 2013[21] the Department advised the Applicant of a decision not to cancel his visa under s 501 of the Act but advised that visa cancellation may be reconsidered if he committed further offences or otherwise breached the character test in the future. That letter contained, in bold print, the same paragraph as was contained in the letter from the Department dated 9 April 2010 quoted at [15] above.
[21] R1, G21/108.
From March 2015 to March 2016 the Applicant committed a number of traffic offences, and, amongst other things, stealing, threats to injure, breach of bail and breach of VROs.
On 8 March 2016 the Applicant committed the offence of common assault in circumstances of aggravation or racial aggravation. The Applicant had an argument at Hungry Jack’s with Ms R (his then partner). He grabbed her hair and threw her so that she hit her chest on the corner of a table. He was convicted on 19 December 2016 and sentenced to six months and one day imprisonment backdated to 13 October 2016.[22]
[22] R1, G14/71-74.
On 27 August 2016 the Applicant committed the offence criminal damage or destruction of property. He was convicted on 19 December 2016 and sentenced to six months imprisonment (concurrent from 13 October 2016).
On 6 January 2017 the Applicant’s visa was cancelled under s 501(3A) of the Act on the basis that he had a substantial criminal record as a result of the aggravated burglary offence and he was serving a sentence of imprisonment on a full-time basis for the common assault in circumstances of aggravation or racial aggravation offence.[23]
[23] R1, G20/92.
On 24 February 2017 that cancellation of the Applicant’s visa was revoked by a delegate of the Respondent under s 501CA(4) of the Act.[24] The letter dated 24 February 2017 from the Department advising the Applicant of the decision to revoke the cancellation of the Applicant’s visa contained the following paragraph in bold:
Please note: this decision does not mean that your case cannot be reconsidered again on character grounds in the event of further criminal offending by you.
[24] R1, G50/100.
On the same date the Applicant signed an acknowledgment that he understood that his visa could be considered for cancellation if further information of relevance came to the attention of the Department.[25]
[25] R1, G20/107.
The Applicant was released from prison on or around 20 June 2017[26] following release on parole having been denied on 15 February 2017.[27] The letter of 15 February 2017 from the Prisoners Review Board advising the Applicant that his application for parole had been denied, advised that, taking into account the considerations under s 5 A of the Sentencing Administration Act 2003 (WA), the Board decided that there was a likelihood of the Applicant committing an offence while subject to parole and that there was a likelihood that he would fail to comply with the conditions of a parole order due to:
1.Your unmet treatment needs…
2.An extensive criminal history including violence which suggests a high risk of reoffending.
3.Poor response to prior community supervision orders with eight out of nine previous orders cancelled suggesting an unwillingness or inability to comply with directions.
4.Your release plan does not include any way to adequately address your unmet intensive treatment needs.
[26] G13/64.
[27] G19/91.
On 16 August 2017 the Applicant committed robbery. The Applicant entered a jewellery shop, asked to see two gold chains and when the elderly manager refused to hand the chains to him, he grabbed her hands and used force to pry the chains away. One chain broke and the Applicant fled with the other chain worth $7,999. The Applicant was convicted of that offence on 27 August 2019 and sentenced to two years imprisonment backdated to 18 August 2017 owing to the Applicant having been in custody since that time.[28]
[28] R1, G13/58-69.
On 17 August 2017 the Applicant committed the offence of steal motor vehicle and drive recklessly. The Applicant purchased a stolen car used by others during a robbery and fled from police when they initiated a pursuit. The Applicant was convicted of the offence on

30 August 2019 and sentenced to 14 months imprisonment backdated to 18 August 2019 to match the expiry of his term of imprisonment.[29]
[29] R1, G12/52-55.
By letter dated 28 October 2019[30] the Applicant was given notice that his visa had been cancelled under s 501(3A) of the Act. The letter advised that the visa was cancelled on the basis that the Applicant had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months for the offence steal motor vehicle, and was serving a sentence of imprisonment on a full-time basis in a custodial institution,

for an offence against a law of the Commonwealth, a State or Territory (ss 501(6)(a) and 501(7)(c)).[31] That letter invited the Applicant to make representations to the Minister about revoking the decision to cancel the visa.
[30] R1, G38.
[31] R1, G38/185-190.
In response to that invitation, the Applicant requested revocation of the cancellation of his visa on 15 November 2019 (within the prescribed period)[32] and made representations about revoking the decision to cancel the visa.
[32] R1, G4.
On 20 August 2020 a delegate of the Minister decided, under s 501CA(4) of the Act, not to revoke the visa cancellation decision.[33] The Applicant was notified of the decision on

24 August 2020.[34]
[33] R1, G9.
[34] R1, G40/225.
On 25 August 2020 the Applicant lodged an application in the Tribunal for review of the delegate’s decision.[35]
[35] R1, G2/3.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides that:
The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) ...; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
A ‘substantial criminal record’ is defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a)...
(b)...
(c)the person has been sentenced to a term of imprisonment of 12 months or more.
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
Section 501CA of the Act provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person
...
(4)The Minister may revoke the original decision if:
(a)   the person makes representations in accordance with the invitation; and
(b)   the Minister is satisfied:
(i)    that the person passes the character test (as defined by section 501); or
(ii)   that there is another reason why the original decision should be revoked.
Ministerial Direction 79
Section 499(1) of the Act provides that:
(1)The Minister may give written directions to a person or body having functions or powers under this Act ... if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Section 499(2A) of the Act states that:
[a] person or body must comply with a direction under subsection (1).
On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made a direction under s 499 of the Act, titled “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under 501CA” (Direction 79). The commencement date for operation of Direction 79 was

28 February 2019.
Paragraph 6.1 sets out the objectives of Direction 79. Paragraph 6.1(3) relevantly provides:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction 79 provides general guidance as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

Paragraph 6.3 of Direction 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4) of the Act, including the Tribunal. They are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1)(b) of Direction 79 provides that, informed by the principles set out in paragraph 6.3, the decision-maker (in this case the Tribunal) must take into account the considerations in Part C of Direction 79 in order to determine whether the mandatory cancellation of the visa will be revoked.
Paragraph 13(2), which is in Part C of Direction 79, provides:
In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a.    Protection of the Australian community from criminal or other serious conduct;
b.    The best interests of minor children in Australia;
c.    Expectations of the Australian community.
Further guidance as to how a decision-maker is to apply the considerations in Direction 79 can be found in paragraph 8 of Direction 79 which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
THE HEARING AND THE EVIDENCE
The application was heard on 30 October 2020. The Applicant was unrepresented and appeared by video link from Yongah Hill Immigration Detention Centre. The Respondent was represented by Ms E Tattersall. The Respondent provided a Statement of Facts, Issues and Contentions (SFIC) on 29 September 2020. The Applicant did not provide a SFIC.
The following documents were admitted into evidence:
(a)Applicant's statement, dated 21 September 2020 (Exhibit A1);
(b)Statement of Amanda Broad, dated 22 September 2020 (Exhibit A2);
(c)Statement of Sean Koslowski, dated 22 September 2020 (Exhibit A3);
(d)Statement of Kimberley Taylor, dated 11 September 2020 (Exhibit A4);
(e)Handwritten statement of Susan Broad, undated (Exhibit A5);
(f)Handwritten statement of Victoria Broad, dated 16 September 2020 (Exhibit A6);
(g)Statement of Jessica Beard, dated 9 September 2020 (Exhibit A7);
(h)Statement of Joe Pflaum, Wellard Electrical, undated (Exhibit A8);
(i)G-Documents (Exhibit R1);
(j)Tender Bundle (Exhibit R2); and
(k)Respondent's Chronology (Exhibit R3).
The Applicant gave evidence at the hearing and was cross-examined. The Applicant’s mother also gave evidence and was cross-examined.
During the cross-examination of his mother, who was being asked questions about one of the VROs that she took out against him, the Applicant became abusive, made vile and misogynistic comments to Ms Tattersall and abused the Tribunal. He then walked out of the video conference room at the detention centre. The Applicant’s outburst was as follows:[36]
[36] Transcript at 72-72.
MS TATTERSALL:     Okay. So after the violence restraining order was issued in February of 2007 he was then convicted of criminal damage in August. Sorry, just let me re-state that. After the violence restraining order was issued in February of 2007, in August of 2007 he committed the offence of criminal damage?
MRS BROAD:           Yes.
TRIBUNAL:Do you remember that offence?
MRS BROAD:           What was the criminal damage? No, I don't.
APPLICANT:             Fucking hell.
MRS BROAD:           Not many people can remember that many years ago. God. My memory's not that great.
APPLICANT:             Mum, don't worry about it, mum. Just hang up. Fuck it. Don't worry about it. Like, don't - - -
TRIBUNAL:Mr Broad - - -
APPLICANT:             - - - because all youse want to do is focus on everything that someone's - - -
TRIBUNAL:Mr Broad - - -
APPLICANT:             - - - bad done in their life, how the fuck are – no, no, fuck you cunts. You're a fucking dog. And you, you fucking slut. You can kiss my cunt, you slut. Fuck you dogs.
TRIBUNAL:Okay, Mr Broad, I'm terminating. That's - - -
APPLICANT:             Fuck you.
TRIBUNAL:Mr Broad - - -
APPLICANT:             Fuck you maggots.
TRIBUNAL:Do you want to - - -
APPLICANT:             Fucking dog.
TRIBUNAL:Do you want to withdraw your application?
APPLICANT:             (Indistinct) saying.
APPLICANT:             Fucking maggots.
The cross-examination of Mrs Broad concluded shortly thereafter. The Tribunal then stood the matter down to ascertain whether the Applicant intended to have any further involvement in the hearing. A security officer at the detention centre advised the Tribunal hearing attendant that he had spoken to the Applicant, who had gone back to his room, and that the Applicant had refused to return to the video conference room. The hearing then proceeded in the absence of the Applicant.
As the Applicant refused to be further involved in the hearing, no further witnesses were called. Ms Tattersall advised the Tribunal that the letters provided by the Applicant’s sister and his partner, whom the Applicant had advised he would be calling, could be admitted into evidence without the need for cross-examination.
CONSIDERATION
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law: Re Harrison and Minister for Immigration and Citizenship[37] at [63]-[45]. The character test is defined in s 501(6) of the Act. Under s 501(6)(a) of the Act, a person will not pass the character test if the person has ‘a substantial criminal record’. This phrase, in turn is defined, relevant to this case,
[37] [2009] AATA 47; (2009) 106 ALD 666.
in s 501(7)(c) and (d) (see [35] above) which provides that a person will have a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more or has been sentenced to two or more terms of imprisonment totalling 12 months or more.
The Applicant has been sentenced to a term of imprisonment in excess of 12 months as well as two or more sentences totalling more than 12 months. As a result, the Applicant has a substantial criminal record as defined in s 501(7) of the Act and, therefore, does not pass the character test (s 501(6) of the Act). Therefore, the only issue for consideration is whether there is a reason to exercise the discretion to revoke the cancellation of the visa under s 501CA(4)(b)(ii) of the Act (see [36] above).
PRIMARY CONSIDERATIONS
First primary consideration: Protection of the Australian community from criminal or other serious conduct (Direction 79 para. 13(2)(a))
Paragraph 13.1 of Direction 79 provides that when decision-makers are considering the protection of the Australian community, they:
(1)...should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
a. The nature and seriousness of the non-citizen’s conduct to date; and
b. The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paragraph 13.1(2)(a))
Paragraph 13.1.1(1) of Direction 79 provides:
In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a.    The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b.    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c.    The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d.    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e.    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f.     The cumulative effect of repeated offending;
g.    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h.    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i. Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
On any criterion the Applicant has an extensive and serious criminal record. He has 65 convictions as an adult between 2004 and August 2019[38] and six convictions as a juvenile.[39] He has been incarcerated for extended periods. The Applicant in cross-examination conceded[40] that he has been imprisoned in the following periods:
a. February to April 2008;
b. August to September 2008;
c. November 2009 to November 2010;
d. December 2011 to December 2014;
e. May to October 2015;
f. April to August 2016;
g. October 2016 to June 2017; and
h. August 2017 to March 2020.
[38] R1, G10; R2/288-296.
[39] R2/296.
[40] Transcript at 27.
The Applicant has been convicted of assault occasioning bodily harm, common assault in circumstances of aggravation or racial aggravation, threatening to injure or harm, an act or omission causing bodily harm, aggravated burglary and commit offence (x4), stealing (x7), robbery, stealing a motor vehicle (x2), unlawful damage or criminal damage (x3), trespass, entering property without permission, unauthorised driving of a motor vehicle (x2), dangerous driving, failing to stop when called upon to do so, possession of stolen/unlawfully obtained property, receiving, gaining a benefit by fraud, disorderly behaviour, aggravated reckless driving pursuit, driver failing to stop in circumstances of aggravation, breach of bail (x5), breach of VRO (x4), breach of community based order, intensive supervision order or suspended sentence (x7), possession of smoking utensils or prohibited drug (x6) and other less serious offences.
In sentencing the Applicant to 24 months imprisonment on the charge of robbery with circumstances of aggravation on 27 August 2019, Stevenson DCJ described the circumstances of the offence as follows:[41]
…on 16 August 2017 at Baldivis, you stole from [omitted], with violence, a gold necklace…and that you did bodily harm to [omitted].
…
The offence was a serious offence. It would appear that at the time of the commission of the offence, you were under the influence of prohibited drugs, that would in itself create a degree of uncertainty and fear in those in the store.
It was brazen in the sense that it was committed during daylight hours when the store was open. The employee herself, was elderly and vulnerable in the circumstances. You used a considerable amount of force when it had been indicated to you, that there was a concern on the part of the victim in allowing you to have access to and possession of, the gold chains.
Notwithstanding that, you used such force that you caused her bodily harm as you grabbed one of the chains and made your escape. The other chain was broken in the course of the crime.
There is no victim impact statement, but there can be no doubt that the victim would have suffered emotionally, trauma associated with the commission of the offence by you, in effect on her, in relation to her employer’s property.
[41] R1, G13/65-67.
Three days after the sentencing in the District Court, the Applicant was sentenced in the Perth Magistrates Court[42] for 14 further offences committed in July and August 2017. These offences included four counts of stealing, stealing a motor vehicle, three counts of failing to stop (two in circumstances of aggravation), aggravated reckless driving and fraud. In sentencing the Applicant, Magistrate Young made the following comments:[43]
…you would have been well and truly aware that there was something extremely dodgy about that transaction [buying a stolen motor vehicle]. It was involved in a pursuit which clearly caused great danger to yourself and your passenger. More importantly, great danger to the police who were engaged in pursuing you.
More importantly still, it caused great danger to innocent members of the public, innocent road users, they were put at risk and in this case, not just in a theoretical sense, but in an actual sense. And then at the end of all that, having caused that damage, acknowledging that the game was up so to speak, you’ve gotten out of the car, run away, and then continued to deny your responsibility until the day of trial.
Now the other matters – I don’t want to go into too much detail about those, save to say, as I mentioned to your lawyer, that the stealing charges, in my view, are quite serious. It indicates a pattern of conduct on your part, going into shops on the pretext of inspecting goods, and then taking advantage of that to get away with the property. Now, you’re not here to be sentenced on your record, but plainly you’ve got a record of similar offences, generally speaking.
[42] R2/288-289.
[43] R1, G12.
Amongst the most serious of the Applicant’s many other offences were the aggravated burglary with intent and act or omission causing bodily harm committed on

18 December 2011 for which the Applicant was sentenced to three year’s imprisonment on 4 April 2013. The circumstances of that offending were set out in the remarks of Keen DCJ in sentencing the Applicant[44] as follows:
…stated very briefly, you were at some time you were engaged in a relationship with the complainant [Ms G]. That ended in about October 2011. She had the benefit of a violence restraining order against you and she was, it appears at the relevant time, in a relationship with [Mr V].
In the early hours of 18 December 2011, she was in her bedroom with her boyfriend and also at the premises were [sic] her six-year-old daughter. Apparently you shouted through the window at [Ms G] who told you to go away. You forced the security screen off the window, climbed through the bedroom window. That’s count 1 on the indictment, the burglary count.
Once inside you attacked [Mr V] who was on the bed and you issued threats to him. After [Mr V] kicked you and struck you on the chin, you left the premises by the bedroom window. He was left with a gash on the top of his forehead that required stitches and other wounds to the right side of his forehead. And when arrested you denied any involvement.
…
Now these were clearly serious offences. It was an invasion of [Ms G’s] home in the early hours of the morning. It’s clear that she was frightened as she ran from the bedroom. Your attack on [Mr V] was vicious and unprovoked…[Mr V] who, being asleep and naked in the bed, was vulnerable and it was accompanied by
severe threats; threats, in fact, to kill him...There’s not mitigation in your age. At your age, you should know better.
[44] R1, G15.
Ms G and Mr V provided statements to the police in relation to this incident.[45]
[45] R2/12-30.

Ms G’s statement, given on 19 December 2011, included the following:
2.I live there with my two daughters [omitted], aged 6 and [omitted], aged 7.
…
6.I applied for a violence restraining order in August because of how aggressive and physically and verbally abusive Daniel was towards me.
7.Daniel has previously slapped me to the face and would grab hold of me when he argued and try to stop me leaving.
8.Daniel is very possessive and controlling.
…
11.On Sunday 18^th December 2011 at approximately 3.40 am, I found out later on it was 3:40 as I saw the time on the phone when I called police.
12.In the house was my daughter [omitted] who was in her bedroom…
…
14.I woke up to the sound of a loud bang on the master bedroom security screen.
15.I heard a male voice shouting angrily “Have you got a man in there? You dog.”
16.I instantly recognised the voice as my ex-partner, Daniel BROAD.
…
21.It looked like he was wearing a white shirt. Daniel is about 185cm tall, solid build.
22.I could tell it was Daniel because he has come to my bedroom window heaps of times before when we have been arguing.
…
25.I ran straight into the kitchen and stood near the back door. My daughter [omitted] got out of bed and followed me into the kitchen. She was screaming and crying.
…
28.I was standing near the back door thinking if I should run out or stay. I was really worried because I had [omitted] with me and was terrified what might happen if Daniel got past [Mr V].

In his statement to the police given on 19 December 2011, Mr V said:
18.BROAD ran over to me and launched at me. He was leaning over me and had his hand raised and coming down towards my face.
19.As his hand came towards me BROAD said “I’m stabbing you dog, your [sic] dead”
…
28.I was shocked and shaken up by what happened. I could feel blood pouring down the front on my face.
…
39.I drove to Rockingham Hospital and saw a female English Doctor there.
40.She said “What did he stab you with?”.
41.I said “I don’t know”.
42.She said “It looks like a screwdriver injury to me.”
43.I received about four or five stitches to the top of my forehead. I had two other cuts on the right side of my forehead.
44.I have been having headaches since it happened and have been finding it hard to sleep properly. It still feels sore on the top of my head and a bit swollen.
In her statement Ms G referred to having taken out a VRO in August. That VRO was not the first or the last that she took out against the Applicant. She had taken out a VRO on 5 May 2011,[46] took out further VROs on 13 August 2011[47] and 24 August 2011[48] and a fourth VRO on 12 December 2014.[49] VROs were also taken out against the Applicant by his mother on 27 July 2004[50] and 28 February 2007[51] and by his ex-partner, Ms C, on 3 September 2004.[52] Another ex-partner of the Applicant, Ms R, took out two VROs, the first on 18 January 2016[53] and the second on 11 February 2016.[54]
[46] R2/303.
[47] R2/309.
[48] R2/297.
[49] R2/301.
[50] R2/306.
[51] R2/305.
[52] R2/299.
[53] R2/308.
[54] R2/307.
On 19 December 2016 the Applicant was convicted of, amongst other offences, common assault in circumstances of aggravation and sentenced to six months imprisonment[55] for an assault committed in March 2016. Magistrate Atkins in sentencing the Applicant described the circumstances of the offending as follows:[56]
[The Applicant]
Grabbed her by the hair and she hit her head on the chair.

You grabbed her hair, you threw her and she hit her chest on the corner of the table causing her some discomfort. She sought refuge. She ended up going to the police station, was light-headed and received medical assistance.
[55] R2/290.
[56] R1, G14/72.
The Applicant was cross-examined on this incident and claimed that the victim had hit him first.[57] His evidence on this incident was unconvincing and, even if his claim that the victim hit him first is believed, that obviously did not justify the assault on the victim to which he pleaded guilty.
[57] Transcript at 37.
Assessing the Applicant’s history of offending and other conduct against the considerations identified in paragraph 13.1.1(1) of Direction 79, the Tribunal observes that:
(i)(subparagraph 13.1.1(1)(a)) - the Applicant has numerous convictions for offences involving violence (see schedule). These offences must be viewed very seriously;
(ii)
(subparagraph 13.1.1(1)(b)) - as set out in the above paragraphs,

the Applicant has multiple convictions for violent crimes against women which must be viewed very seriously. While subparagraph 13.1.1(1)(b) refers to crimes of a violent nature against women, the Applicant’s general behaviour towards women, graphically demonstrated by his vile outburst at the hearing, is of great concern to the Tribunal. The chapeau to paragraph 13.1.1(1) requires the decision maker to consider the nature and seriousness of “criminal offending or other conduct to date” (emphasis added). While the Applicant’s mother was evasive under cross-examination, repeatedly claiming that she could not remember any of the circumstances which caused her, on two occasions over two and a half years apart, to seek VROs against the Applicant, the Tribunal finds that the Applicant has acted in a violent or threatening manner towards his mother as well as his partners and former partners. There is a significant number of reports of police being called to the Applicant’s mother’s address following incidents involving the Applicant. A Western Australian Police Force (WAPOL) detected incident report dated 29 February 2004[58] records:
[58] R2/421.
Was holding a pair of scissors and threatening his mother (victim) with same. Unclear exactly what threats were used. During the incident, a coffee table was damaged also.
…
Compl and victim did not wish any action, main concern was for POI.
The Applicant and his mother were cross-examined on this detected incident report. The Applicant denied the report[59] and the Applicant’s mother claimed to have no recollection of such an incident.[60]
[59] Transcript at 38.
[60] Transcript at 67-67.
In a WAPOL detected incident report relating to an incident at the Applicant’s mother’s address, which she shared with her partner, it is recorded that police were called to the address on 11 July 2004 and that:[61]
[61] R2/420.
…son has attended house and wanted mum to give him a lift, she has refused and son has gone off at step father hitting about 5 times to the head and kneeing him in the face.
Again, in cross-examination the Applicant denied the incident, or denied that he could remember the incident, and again his mother said that she could not recall the incident. The Applicant’s mother and her partner each took out VROs against the Applicant just over two weeks after this claimed incident.[62] The Tribunal infers that, notwithstanding the Applicant’s denial (or lack of memory) and the Applicant’s mother’s claim not to have any memory of his violent behaviour towards her, she was, as at July 2004, sufficiently fearful for her safety to take out a VRO.
[62] R2/300 and 306.
A further WAPOL detected incident report[63] records another incident at the Applicant’s mother’s address on 30 July 2004 as follows:
[63] R2/419.
[T]he offender is the victim’s son. He has attended the address and demanded money. He has been refused so pushed past the victim and entered the house. He was asked to leave but was refused so was forcibly removed from the house. Once locked outside the offender has used a garden ornament to smash the front window. Offender has then decamped the scene.
Victim has a VRO against the offender however it has not been served.
Prior to summonsing offender complainant has attended station and withdrawn complaint…
A statement of material facts produced by WAPOL under summons[64] recorded an incident on 12 August 2007 as follows:
[64] R2/376-378.
At about 2:00pm on Sunday 12^th of August 2007, the accused was present at his home address of 8 McKenna Gardens Parmelia with his sister and his mother, Susan BROAD (complainant 1).
…
At home, the complainant has gone outside to remove washing form the clothes line. The accused has come outside and asked for money so he could buy drugs in [sic] which she said no. The accused responded by saying he would smash the windows and burn down the house if she didn’t.
The complainant has ignored him and gone inside with the washing. He continued to demand money and has grabbed an angle grinder and said he would angle grind the doors if he [sic] didn’t give her [sic] the money. She refused.
They have gone inside where the accused has picked up a wooden chair and smashed it to the ground. He started punching and pushing the fridge saying he would sell it so he could get drugs.
The complainant has decided to leave, so shew has gone out the back door and started walking around the side of the house to go and get help. The accused has grabbed a hold of her from behind by the hood of her jacket and put his hand over her mouth and told her she wasn’t going anywhere.
There was no way the complainant could leave. His sister, who witnessed this, said “Leave her alone, she’s your mother”.
The accused has pushed the complainant into the house towards the front door where she told him she would get him the money.
The complainant partially opened the front door but the accused closed it telling her she wasn’t going anywhere because she would go straight to the police.
The complainant has noticed that the accused was holding a knife with a curved blade in his hand. She was petrified and felt that she could not leave the house without him harming her so she stayed.
The accused proceeded to cut gouges out of the hall way wall with the knife. The house is a rental and is the property of [omitted] (complainant 2)…
The complainant told him she would go to the ATM. The accused told her that she wasn’t going anywhere as she would go straight to the police.
Whilst still holding the knife, the accused has escorted the complainant to her vehicle…The complainant walked really slowly as she was very scared. The accused has become angry at this and has yelled at her to “Get in the car, take me to fucking Niges”.
The complainant has got into the car because she felt he would harm her or damage the car if she didn’t.
Whilst driving to the Bankwest ATM located at Kwinana Hub Shopping Centre the accused kept telling the complainant, who was crying, to stop blubbering and talk to him. He told her if she tried to get help or if there was anyone else at the ATM he would stab them as he was in the mood to stab someone.
Everytime [sic] the complainant cried, the accused would slash something in her vehicle with the knife. He slashed the glovebox, interior roof and gear stick cover. The complainant was in fear of being stabbed.
…
The complainant immediately rung [sic] her boyfriend and told him what had happened and she was then driven to Kwinana Police Station.
On Monday the 13^th of August 2007 the accused was located… and conveyed back to Kwinana Police Station whereby [sic] he participated in a Video Record of Interview whereby [sic] part admissions were made.
On 16 June 2008 the Applicant was convicted of two charges of criminal damage arising out of this incident.
The Applicant was also cross-examined on the statement in the Whitehaven Clinic report[65] that he had advised the author of the report that he had a conviction never to disrespect or be abusive towards women. The Tribunal took this claim up with the Applicant as follows:[66]
[65] R1, G35/174.
[66] Transcript at 44.
TRIBUNAL:Mr Broad, could you just answer the question.

Were you violent towards her?
APPLICANT:    I was on that one occasion, yes.
TRIBUNAL:Well, she's taken out two restraining orders?
APPLICANT:    There'd be a lot - there was a lot more argument and yelling than anything else.
TRIBUNAL:Right. It just strikes me as odd that you could say seriously, as you told Whitehaven, as Ms Tattersall took you to---
APPLICANT:    Yes.
TRIBUNAL:---that you, from an early age have a conviction never to disrespect or be abusive towards women.

You've been repeatedly charged and convicted of assaulting woman and you've had nine restraining orders including two violence restraining orders---
APPLICANT:    Yes - - -
TRIBUNAL:---taken out by your mother.
APPLICANT:    Yes. I understand.
TRIBUNAL:Well, far from what you're saying in the Whitehaven report - or what you are reported as having said, isn't it the case that you have got a long history of violence against women?
APPLICANT:    Yep.
This factor identified in subparagraph 13.1.1(1)(b), and the Applicant’s violent conduct towards women, weigh very heavily against the revocation of the cancellation of the Applicant’s visa;
(iii)(subparagraph 13.1.1(1)(c)) - as was specifically noted by Stevenson DCJ in sentencing the Applicant for the robbery (see [58] above):
The employee herself, was elderly and vulnerable in the circumstances.
The fact of that the victim of the robbery was vulnerable is a factor making what is already a serious offence, more serious;
(iv)(subparagraph 13.1.1(1)(d)) - the sentences imposed by the courts have been significant. In the 13 years from the commission of his first offence as an adult in 2004 to the time of the commission of his last offence in 2017, the Applicant has been convicted of 65 offences and sentenced to terms of imprisonment totalling 12 years and six months. Some of the terms of imprisonment were to be served concurrently or were suspended. As noted at [56] above, in the period of just over 12 years from February 2008 to March 2020 (when he was released from prison into immigration detention) the Applicant has spent around nine years in prison. The longest period that the Applicant has spent out of prison over that 12-year period is some 14 months between September 2008 and November 2009. The severity of the sentences of imprisonment indicate the courts’ views of the seriousness of the Applicant’s offending;
(v)(subparagraph 13.1.1(1)(e)) - on any measure, the Applicant’s offending has been frequent. The Applicant has spent the majority of the time between September 2004, when he became an adult, and August 2017, when he committed the last series of offences, in prison. Over that period he committed 65 offences during the relatively short periods when he was not in prison. During the last period that the Applicant was not in prison, namely July and August 2017, he committed 15 offences including the robbery, stealing and aggravated reckless driving pursuit (see [58] and [59] above). These are all serious offences as reflected by the sentences received by the Applicant. This two-month period saw the Applicant’s most intense, serious offending. There is therefore a trend of increasing seriousness in the Applicant’s offending;
(vi)(paragraph 13.1.1(1)((f)) - the cumulative effect of the Applicant’s repeat offending, 65 offences as an adult over 13 years, is a matter of significant concern and must weigh heavily against the Applicant;
(vii)
(subparagraph 13.1.1(1)(h)) - the Applicant has received three formal warnings of the consequences of further offending in terms of his migration status. His first formal warning was given in April 2010 (see [15] above) and a second formal warning was given in December 2013 (see [20] above). Those two formal warnings clearly had no effect. The Applicant’s visa was cancelled for the first time under s 501(3A) of the Act in January 2017

(see [24] above) but that cancellation was revoked by a delegate of the Respondent under s 501CA(4) in February 2017 (see [25] above).

Again, the unequivocal warning of the consequences of further offending that was contained in the letter from the Department advising of the decision to revoke the mandatory cancellation of the Applicant’s visa[67] clearly had no effect. Within months of that letter, and weeks of his release from prison in June 2017, the Applicant committed a series of very serious offences for which he received prison terms totalling six years and three months which resulted in his visa again being cancelled under s 501(3A) of the Act. This factor must weigh very heavily against the Applicant;
[67] R1, G50/100.
Overall, the nature and seriousness of the Applicant’s criminal offending and other conduct, taking into account the factors identified in the applicable subparagraphs (a) to (h) of paragraph 13.1.1(1), weigh very heavily against the revocation of the cancellation of the Applicant’s visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (13.1(2)(b))
Paragraph 13.1.2 of Direction 79 provides:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a. The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b. The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Tribunal in CZCV and Minister for Home Affairs[68] (CZCV) summarised the task for the Tribunal as follows:
56.In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and 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.
[68] [2019] AATA 91.
In BSJ16 v Minister for Immigration and Border Protection[69] Justice Moshinsky stated, 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.
[69] [2016] FCA 1181.
The Tribunal agrees with and adopts the approach indicated in the above cases.
Nature of harm to individuals or the Australian community (13.1.2(1)(a))
The nature of the harm to individuals and to the community if the Applicant were to engage in the criminal and other behaviour which he has in the past, are obvious and serious. The harm caused by violence, violence against women, stealing, robbery, aggravated burglary, driving offences and criminal damage are not only significant for those who are the direct victims of these sorts of offences, but also for the broader community with increased policing, court, correctional and insurance costs.
Some of the consequences of the Applicant’s past criminal behaviour have been reflected in comments made by sentencing courts (see comments of Stevenson DCJ at [58] above; Magistrate Young at [59] above and Keen DCJ at [60] above). The statements given to police by Ms G and Mr V, the victims of the Applicant’s aggravated burglary in
December 2011 (noting that Ms G had a VRO against the Applicant at the time),
also provide an insight into the type of psychological and physical harm done by the criminal behaviour in which the Applicant has engaged (see [61] and [62] above). It is also clear from the statement given by Ms G to the police that her six year-old daughter was traumatised by the Applicant’s criminal behaviour on that night. It is fair to assume that similar damage would be caused to future victims if the Applicant were to continue to engage in that sort of criminal behaviour. In McCarthy and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[70] at [38] and [47] this Tribunal cited the comments of Sweeney DCJ on domestic violence in sentencing the applicant in that matter which were:
… I accept that such an incident is still likely to have some psychological impact upon her and to affect her future relationships. That is how domestic violence does affect women. It does shatter their trust in men and it does impact on their self-belief and their self-confidence.
...
Women who live with domestic - sorry, women who live with violent intimidating men end up with no self-confidence, no sense of self, no ability to stand up for themselves and they live with fear and anxiety.
[70] [2020] AATA 2939.
There is no reason to believe that Her Honour’s above comments would not apply to the women who have been the victims of the Applicant’s violent behaviour, noting that on nine occasions such women have sought the protection of VROs, which in a number of cases were breached by the Applicant, and there is no reason to believe that similar harm would not be caused to future victims if the Applicant were to engage in the sort of behaviour which he has in the past.
The Respondent’s SFIC submits that:
45. The nature of the harm to individuals of the Australian community should the applicant engage in further criminal or other serious conduct is wide reaching. The type of harm the applicant’s offending inflicts includes physical, financial and mental harm and loss of productivity and engagement with the criminal justice system, all of which are serious and have significant cost to the broader community.
46. The harm that would be caused if the applicant criminal or other conduct were to be repeated, is so serious, that any risk of similar conduct in the future is unacceptable (principle 6.3(4) of Direction 79). This risk was highlighted in the various sentencing remarks including those of:
a. 30 August 2019 in which is was stated that the applicant’s offences “caused great danger to innocent members of the public, innocent road users”;
b. 27 August 2019 in which it was stated that “there can be no doubt that the victim would have suffered emotionally, trauma associated with the commission of the offence by you”.
(References omitted.)

While the Tribunal does not agree with the Respondent’s assessment that the nature of harm caused by the Applicant’s offending is so serious, that any risk of similar conduct in the future is unacceptable (principle 6.3(4) of Direction 79), the Tribunal finds that given the serious nature and wide range of impacts of the Applicant’s previous criminal and other conduct is such that anything other than a very low risk of similar conduct in the future would make the risk unacceptable.
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (13.1.2(1)(b))
As noted above, the Applicant did not provide a SFIC. There is, accordingly, no concise statement by the Applicant relating to his risk of reoffending. The Respondent in his SFIC submits that:
47. Despite the applicant’s claims to be rehabilitated, the Minister contends that the applicant remains an unacceptable risk to the Australian community in circumstances where:
a. There is no independent evidence to support a conclusion the applicant is of no risk of re-offending in the Australian community, in fact, the Prisoners Review Board Western Australia found that the applicant had an extensive criminal history including violence which suggests a high risk of reoffending.
b. The applicant has a long-standing history of drug abuse having started “shooting up meth” from the age of fourteen. The applicant has engaged in limited rehabilitation including 12 one-on-one counselling sessions totalling 18 hours and a 20 hour Brief Intervention Cognitive Skills Program and the claimed rehabilitation remains untested in the Australian community. Furthermore, there is no independent evidence as to how the applicant responded to participation in the Brief Intervention Cognitive Skills Program and the applicant has unmet treatment needs.
c. Whist the applicant claims to have been drug free since August 2017 there is no independent evidence to support same and has previously asserted to have abstained from drugs for significant periods of time, particularly whilst incarcerated.
d. The applicant identifies her [sic] support network as comprising his mother, sisters and current partner however, those people were involved in his life previously. It is also noteworthy that the applicant has endured periods of homelessness which indicates that his support network may not be as strong as he has claimed. In any event, limited weight should be placed on the applicant’s claimed support networks in circumstances where such supports did not prevent him from offending in the past and there is no compelling evidence to suggest that they will prove effective in curbing his offending behaviour in the future: LQZW and Minister for Home Affairs (Migration) [2019] AATA 93 at [93].
e. The applicant expressed similar remorse for his offending and suggested that he had a commitment to rehabilitation, particularly in relation to his 2017 request for revocation.
(References omitted.)
The Respondent’s above reference to the Prisoners Review Board Western Australia assessment is to an assessment made by the Board in February 2017.[71] The Board’s decision at that time was to deny parole on the basis that the Applicant’s release on parole “[represented] an unacceptable risk to the safety of the community”. Amongst other reasons, the Board advised that its decision was based on:
(a)Unmet treatment needs (consequential thinking, substance abuse and violence);
(b)An extensive criminal record including violence which suggests a high risk of reoffending; and
(c)Poor response to prior community supervision orders with eight out of the nine previous order cancelled suggesting an unwillingness or inability to comply with directions.
[71] R1, G19.
During the Applicant’s most recent imprisonment he again applied for parole. Two reports were prepared for consideration by the Board. The first titled Parole Review Report,[72] which appears to have been signed off on 8 January 2020, having reviewed all the relevant factors, at paragraph 14.1[73] concludes that “[i]n view of the above, release to parole is not supported.”
[72] R2/262-270.
[73] R2/270.
The second report is entitled Adult Community Corrections Parole Assessment[74] refers to “Date of interview: 22.01.2020”. That report, amongst other things, states:
As illustrated above, Mr Broad has a very poor history of compliance with community supervision, having only successfully completed two of the eight Orders he has been subject to. Upon reviewing his most recent Order, records indicate that Mr Broad was placed on Conditional Bail with electronic monitoring on 08.10.2015 for offences relating to traffic, robbery and threats to injure. There were multiple issues with alerts, suggesting that equipment had been tampered with and when guards were despatched they were unable to locate Mr Broad; this resulted in his bail being revoked on 13.10.2015 and he was subsequently returned to custody.
[74] R2/152-157.
The recommendation made by that report was that parole was supported.[75]
[75] R2/156.
By orders made on 13 February 2020,[76] the Board ordered, subject to the Applicant giving a written undertaking, that the Applicant be granted parole on conditions. The stated reasons for granting parole were:
1.Your participation in a voluntary programme, which demonstrates a motivation and willingness to address your offending behaviour.
2.You having made a commitment to attend substance abuse counselling to address your offending behaviour.
3.The Board notes that due to the backdating of your sentence you have not yet been assessed for treatment programmes whilst in custody however your treatment needs can be addressed in the community.
4.Your parole plan which includes confirmed suitable accommodation and family support.
5.The Board notes that your Visa has been cancelled however you are appealing the decision and have a viable parole plan. You will be taken into detention pending the outcome of your appeal.
6.The fact the conditions of parole will further reduce the risk to the safety of the community
[76] R2/149.
The order also set out what are described as Standard Obligations under s 29 of the Sentence Administration Act 2003 (WA) as follows:
1.You must report to Rockingham ACC at Rockingham Justice Complex, 158 Whitfield Street Rockingham, WA, 6168, Ph: 9527 3411 within 72 hours after being released, or as otherwise directed by a Community Corrections Officer.
2.You must notify a Community Corrections Officer of any change of address or place of employment within 2 clear working days after the change, and
3.You must comply with Section 76 of the Sentence Administration Act 2003.
The order also contained a section titled Requirements of this Order which provided:
1.You must not commit an offence.
2.You must not use or be in possession of any illicit drug including cannabis.
3.You must not leave or remain out of the State of Western Australia except with and in accordance with written permission of a Community Corrections Officer.
and a section titled Additional Requirements of this Order (Section 30) which imposed the following additional requirements:
1.To attend for random urinalysis for all illicit substances as directed by the Community Corrections Officer and provide a valid sample.
2.To attend programmes and counselling as directed.
3.To engage in employment, training, or job seeking and remain engaged as directed.
4.Not to change address without the prior approval of the Community Corrections Officer.
The Tribunal acknowledges that the Prisoners Review Board granted the Applicant parole on conditions in February 2020, however, as this Tribunal noted in Peterson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[77]:
75.While the Tribunal acknowledges that parole was granted, it also notes that the Parole Board is assessing risk for the period from the date the prisoner is released on parole until the expiry of the maximum sentence. The parole period is a period of supervision during which the prisoner, depending on the terms, will be supervised by, and report regularly to a community corrections officer who will monitor the prisoner’s compliance with the parole conditions imposed by the Board. That does not mean that the Parole Board is of the view that the Applicant is not a risk to the community, not even for the period of his parole. The import of the parole order is that the Parole Board was of the view that, with monitoring and supervision during the period of parole, the Applicant did not pose an unacceptable risk to the safety of the community.
76.The comforts that the Parole Board have in making an order for parole are that, firstly, it can impose conditions and, secondly, if the prisoner re-offends or breaches the conditions imposed, he will be taken back into custody and out of the community. This Tribunal does not have the benefit of those comforts when assessing whether an Applicant is an acceptable risk. Once an applicant’s visa is restored, the applicant is released free and unconditionally back into the community.
77.The Tribunal also notes and agrees with Senior Member Dr Evans-Bonner’s comment in Varley and Minister for Home Affairs [2019] AATA 376 at [110] that:
The Tribunal cannot, however, defer to the opinion of the PRB to the extent that the Tribunal fetters its own discretion. The Tribunal must undertake its own independent consideration of the Applicant’s likelihood of reoffending, based on the merits of the Applicant’s application before the Tribunal and the submissions and evidence before the Tribunal.
(Footnotes omitted.)
[77] [2020] AATA 1256.
In his undated statement received by the Tribunal on 21 September 2020[78] the Applicant says (errors included):
I know that I have done many things that I am not proud of that has affected many people in the community As well as my family, I am very deeply remorseful for my actions I committed in the past. I know I have had chances before in the past and have recommitted the same offences when been released, I think positive and believe more in myself now than I did in the past. In the past I had very little self esteem I never really thought anything about my future or set any life goals. Now I think differently, I have very strong mindset and have many future goals that involve my family and partner that I wish to achieve whilst living in Australia, I love this country as I call home.
[78] A1.
In his Personal Circumstances Form[79] completed in October 2019, under the Criminal History and Risk of Reoffending section,[80] the Applicant wrote (errors included):
I had a drug addiction and I dun a lot of things I regret. Since August 2017 I have bin drug free. I have completed drug counselling with the White haven program and continue to better myself by puting in for many courses that will be good for my future.
[79] R1, G25.
[80] R1, G25/144.
There are other references by the Applicant in his Personal Circumstances Form to the Whitehaven program. He also makes the following statements in attachments to his Personal Circumstances Form:[81]
I believe that not receiving the adequate treatment needs required to reduce my future risk of re-offending has left me significantly disadvantaged and vulnerable towards relapsing as I have in the past. However since previously receiving a warning from the department I have taken extraordinary measures to re-evaluate my lifes direction and actively taken the initiative towards addressing my issues with substance abuse to assist in my recovery. I have since undergone significant rehabilitation treatment towards addressing my offending behaviour. I also recognise the implications my offending has for myself my family and the Australian community.
..
Whilst it is impossible for me to predict the future I do believe that I have made significant progress towards addressing my long term struggle with drug addiction which has become the major underlying issue in regard to my criminal offending. During my term of imprisonment I have remained committed towards rehabilitating myself by engaging in courses and programs which have provided me with a greater understanding of the fundamental psychological issues which have contributed to my drug addiction.
…
Along with the loving encouragement from my family I still understand the importance of fulfilling my required treatment needs in order for my recovery to be successful which is why I have taken initiative towards making application for placement in Holyoake and Palmerston rehabilitation facilities which I am currently awaiting confirmation and acceptance.
[81] R1, G25/151-152.
Having read other statements by the Applicant, including that set out in [87] above,

and heard his evidence at the hearing, given the significant variation in the manner of expression, it is hard to believe that he was the author of the attachments to his Personal Circumstances Forms. The Tribunal will, however, take the statements made in the attachments to the Applicant’s Personal Circumstances Form as being those of the Applicant.
The statement provided by the Applicant’s sister, Amanda Broad,[82] says that the Applicant will have “the support of myself and partner Sean, my sister Victoria, and my Mum.
A support network is essential when overcoming drug addiction”. A statement to the same effect is made by Amanda Broad’s partner, Sean Koslowski, in his statement dated

22 September 2020.[83] Both of those statements also say that the Applicant regrets the mistakes that he has made in the past.
[82] A2.
[83] A3.
Similar claims are made in the statements made by Ms Amanda Broad and Mr Koslowski which appear in the G documents.[84] Statements of support from Ms Victoria Broad,[85] the Applicant’s mother’s partner, Garry Frazer,[86] Ms Julie Castle[87] and Ms Kaylene Bentley[88] are also included in the G documents.[89] A statement of support was also provided by Ms Jessica Beard[90] who says that she met the Applicant five years ago and that she found him to be “a caring loving and trustworthy friend”. She says that over the last three years she has seen a change in the Applicant. An undated letter was also provided by Mr Joe Pflaum of Wellard Electrical[91] saying that the Applicant would have full time work upon his release.
[84] R1, G29 and 30.
[85] R1, G31.
[86] R1, G32.
[87] R1, G33.
[88] R1, G34.
[89] R1.
[90] A7.
[91] A8.
A statement was also provided by Ms T[92] who says that she is the Applicant’s partner. She says in that statement that she has known the Applicant for 11 years and that “only in the last 7 months we have become partners”. She says that she has two children, a daughter aged seven and a son aged three. She further claims that:
He has a strong support here behind him to continue to achieve being the loving caring person he is and to keep striving to be a hardworking family man he wants to be…
[92] A4.
Ms T does not identify what form that “strong support” takes or what she means by that statement. Further, the claim of the Applicant being a loving caring person is belied by the Applicant’s serious criminal record and the outburst against the Respondent’s counsel and the Tribunal at the hearing (see [49] above). An obvious terminological uncertainty also arises in relation to Ms T’s statement that she has been the Applicant’s partner “only for the last 7 months” given that the Applicant has been in prison or immigration detention since August 2017. It is not suggested that Ms T and the Applicant have ever lived together and neither the Applicant nor Ms T identifies on what basis they consider themselves to be partners.
In her undated statement received by the Tribunal on 21 September 2020,[93] the Applicant’s mother says that it is her view that the Applicant’s criminal behaviour is a result of his drug abuse which, according to his mother, he has “never really addressed…until his last time in Hakea Prison where we organised some 1-on-1 counselling sessions with Whitehaven”. She says that he has told her that he intends to continue with his drug treatment when he is released. She says that over the years she has “always continued to love and support Daniel”. Similar sentiments are expressed by the Applicant’s mother in the undated statement addressed to the Immigration Department that is included in the G documents.[94]
[93] A5.
[94] R1, G28.
A report dated 13 March 2019 was provided by the Whitehaven Clinic addressed to

“The Presiding Judge”.[95] That report advised that the Applicant had “voluntarily completed 12 one-on-one counselling sessions”. Each session was 90 minutes. Under the heading “Initial Assessment”[96] the author of the report, Sandra Dichiers, said that:
Daniel presented as extremely eager to commence the program and expressed his desire to learn more about himself and why he did the things he did so that he didn’t “revert back to drug use as a coping mechanism”. It became evident that Daniel had done a lot of soul-searching and self-reflection and already put things in place to start the recovery process.
[95] R1, G35/171.
[96] R1, G35/172.
The report recounted the Applicant’s childhood, the death of his father at 13 following which the Applicant was expelled from school at 14 due to disruptive behaviour, and that he started “shooting up meth” from 14 years of age. The report said that “he spent some time in juvenile prison” (this was denied by the Applicant at the hearing; transcript at 26, however, Keen DCJ, in sentencing the Applicant also referred to the Applicant having spent time in juvenile detention[97]) and that “his ‘occasional’ drug use became a coping strategy to avoid negative emotions including anger and grief”.
[97] R1, G15/79.
As was noted earlier, (see [66(ii)] above), under the heading Relationship & Children[98] the report states:
Daniel advised that his witnessing domestic violence, and experiencing its impact as a child, gave him the conviction at an early age to never disrespect or be abusive towards women. He reports that he maintains the highest respect for women…”.
[98] R1, G35/174.
Assuming that the report accurately reflects what the Applicant told the author,

the Applicant’s claim to having the highest respect for women and never disrespecting or being abusive towards women, is demonstrably false. His record speaks for itself in that regard and the Applicant conceded that he has a long history of violence against women (see [66(ii)] above). The Applicant’s history is replete with examples of the highest degree of disrespect for and abusive behaviour towards women. If any confirmation of that was needed, it was provided, in unequivocal fashion, by the Applicant’s verbal attack on the Respondent’s counsel, Ms Tattersall, at the hearing (see [49] above).
That outburst also unequivocally demonstrated that the Applicant has severe, uncontrollable anger issues, especially, it would appear, towards women and a total disrespect for authority. As well as the one-on-one counselling sessions undertaken by Whitehaven, the Applicant also completed a 20-hour Brief Intervention Cognitive Skills Program in January 2018.[99] The Applicant had also undertaken some rehabilitation program while in prison between October 2016 and June 2017 (noting that he was removed from Life Skills program because of his bad behaviour; conceded by the Applicant[100]). It also appears that prior to that time the Applicant had undertaken other programs while in prison. In sentencing the Applicant for various offences in April 2013, Keen DCJ commented:
Further, whilst on remand, you have participated in various programs, including programs in relation to substance use, and I’ve seen certificates in relation to that. And again, that bodes well for the future.
[99] R1, G37.
[100] Transcript at 55.

In attachment 4A to the more recent Personal Circumstances Form[125] the Applicant refers to being involved in the Kwinana Knights Australian Rules Football club “during [his] childhood” and “volunteering at the Kwinana youth service which is a community based outreach program…I would assist mainly in the organized community events…”.

No details of when this occurred or what was involved were provided.
[125] R1, G25/154.
Clearly given the considerable portion of the Applicant’s life since February 2008 that he has spent in prison (see [56] above), his positive contribution to the Australian community has been negligible. No added weight can be given to the consideration identified in subparagraph 14.2(1)(a) by virtue of any positive contribution to the community.
The Tribunal accepts that the Applicant’s family and social links are in Australia with Australian citizens. The Applicant’s immediate family, his mother and two sisters are Australian residents. In one of the attachments to the more recent Personal Circumstances Form,[126] the Applicant asserts that he:
…[has] other extended family members, Uncles, Aunts and cousins who would experience emotional hardship. If I was to be removed from Australia the impact would not be the same as it would be for my mother and my sisters however my extended family members who also remain in Australia would be left to assist my family through the heartbreaking separation in a negative decision outcome.
[126] R1, G25/157.
Apart from noting the obvious hyperbole in the above statement, the Tribunal notes that none of these aunties, uncles or cousins provided statements to support this claim.

The other conclusion that could be drawn from this assertion, for which there is no evidence, is that the Applicant’s mother has extended family members remaining in Australia who could assist the Applicant’s mother to get over the emotional impact of the Applicant being removed from Australia.
It appears from the statements filed in support of the Applicant (see [47] above) and the statements in the G documents,[127] that the Applicant has some social links and potentially one link with a former employer in Australia.
[127] R1.
The Tribunal also accepts that the Applicant’s removal from Australia would be likely to have an emotional impact on the members of his immediate family, in particular his mother. In her statement[128] the Applicant’s mother says that;
…as his mother I would be devastated for my family to be split up.
[128] A5.
The Applicant’s sister Amanda makes no comment in her statement[129] on the impact that the Applicant being deported would have on her or any other members of her family. Her partner, Mr Koslowski, in his statement[130] says that the Applicant being deported would “impact the entire family in a negative way”. Ms T in her statement[131] says that: “his removal will have a severe emotional and financial impact in Daniels [sic] family as well for myself and 2 kids, it will be heartbreaking to be torn from Daniel”
[129] A2.
[130] A3.
[131] A4.
The Tribunal notes that in his more recent Personal Circumstances Form[132] the Applicant identified his mother and his sister Victoria as being New Zealand citizens. He identified his sister Amanda as an Australian citizen. Paragraph 14.2(1)(b) of Direction 79 requires the decision maker to take into account the effect of non-revocation, that is, the Applicant’s removal from Australia, on the “immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely)” (emphasis added) (see [125] above). Assuming that the Applicant was correct in his identification of the citizenship of his mother and two sisters, a question arises as to the status of the Applicant’s mother and non-Australian sister for the purposes of this consideration. There is no evidence before the Tribunal as to the visa status of these two women and whether they are permanent residents, or people who have a right to remain in Australia indefinitely. However, for the purposes of the current exercise, the Tribunal will assume that they are permanent residents, or people who have a right to remain in Australia indefinitely.
[132] R1, G23/123.
The Tribunal does not accept that removal of the Applicant from Australia would have any financial impact on either the Applicant’s family or Ms T. Apart from there simply being no evidence of that, the Applicant has not had any employment, or at least any meaningful employment, for the vast majority of his adult life. There is no evidence that he has ever contributed financially to anyone’s support.
The Tribunal accepts that the Applicant’s removal from Australia would be likely to have an emotional impact on the members of his immediate family, in particular his mother,
and on others including Ms T. In the circumstances, however, only minor weight should be given to this consideration.
Impact on Australian business interests (14(1)(c))
This consideration has no application in the present matter.
Impact on victims (14(1)(d))
Paragraph 14.4 of Direction 79 provides:
(1) Impact of a decision not to revoke the cancellation on members of the community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
As this Tribunal noted in Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[133] at [109]-[111], although subparagraph 14(1)(d) and the heading to subparagraph 14.4 refer only to impact on victims, subparagraph 14.4(1) requires consideration of the impact of a decision not to revoke the cancellation of the visa on members of the community including victims (emphasis added). Neither party made any submission on this consideration and there is no evidence before the Tribunal as to what the impact would be on any victims of the Applicant on a decision not to revoke the cancellation.
[133] [2020] AATA 4171.
This Tribunal has previously commented on the requirement of this paragraph to consider the impact of a decision not to revoke the cancellation, that is a decision that would see the non-citizen removed from Australia and how such a decision would impact a non-citizen’s victims, who would, presumably, be in Australia (see McCarthy and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[134] at [120] and the cases referred to therein).
[134] [2020] AATA 2939.
Insofar as a consideration broader than the impact on victims is required, then one aspect of the possible impact of the Applicant being permitted to stay (i.e. a decision to revoke the cancellation) has been dealt with under the first primary consideration, the protection of the Australian community. An aspect of the impact of the Applicant’s removal
(i.e. a decision not to revoke) has been considered above under the heading of strength, nature and duration of ties under paragraph 14(1)(b) and 14.2 of Direction 79. Insofar as the impact on those members of the Australian community is to be considered, then the Tribunal has done so under the above heading dealt with in [125]-[137].
Extent of impediments if removed (14(1)(e))
Paragraph 14.5(1) of Direction 79 provides:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a.    The non-citizen’s age and health;
b.    Whether there are substantial language or cultural barriers; and
c.    Any social, medical and/or economic support available to them in that country.
The only impediment identified by the Applicant in the Personal Circumstances Form[135] was (errors included):
I have never bin to N.Z only for 2 weak holiday I don’t know any 1 there I would be alone with out my family.
[135] R1, G25/147.
In attachment 6 to that Personal Circumstances Form[136] the Applicant said, amongst other things, the following:
I believe that if I was to return to my country of citizenship I would encounter great difficulties adjusting to the landscape and infrastructure of a country that is completely unknown to me. I would be faced with immediate financial hardship as I would be returning with no money for ongoing living expenses and accommodation… I will have no support or assistance upon my return. I will be forced to rebuild my life all alone and I hold serious concerns for the impact these circumstances would have for my mental health.
[136] R1, G25/158.
While the Applicant may hold the concern described above, the mere holding of a concern by the Applicant is not an impediment of the type to be considered under paragraph 14 of Direction 79 which is directing the decision maker to consider actual impediments of the type described, not simply someone’s subjective concern or speculation. The Applicant does not contend, and there is no reason to believe, that he would not be entitled to the same social, medical and/or economic support available to other citizens of New Zealand.
In attachment 6 to the Personal Circumstances Form the Applicant also refers to:
The great distance of separation from my family and the quality of life that has been provided to me from the Australian Commonwealth are both contributing towards the difficulties I would have to overcome upon my return.
The above is not a relevant consideration. The fact that the quality of life that has been provided to the Applicant by the Commonwealth (noting that for the majority of the last

12 years the Applicant has been in prison) may be better than that which he expects to enjoy in New Zealand (of which there is no evidence) is irrelevant. It is clearly not an impediment in the Applicant establishing himself and maintaining basic living standards

(in the context of what is generally available to other citizens of that country).
The Applicant does have family in New Zealand. His evidence was that his grandparents still live in New Zealand.[137] The Applicant is young and has no health issues. At the hearing the Tribunal asked the Applicant whether he suffered an health issues which would affect his ability to work to which the Applicant responded “No, I’m very fit and healthy at the moment”.[138] There is no reason to believe that, and certainly no evidence to support a claim that, the Applicant would not be able to obtain employment or that he would not be able to establish himself and maintain basic living standards (in the context of what is generally available to other citizens of New Zealand). His evidence at the hearing was:[139]
…Well, the plan - the plan would be for me to like setup in New Zealand and try and find some work obviously. It would probably take a while for me to get established over there…
[137] R1, G25/143.
[138] Transcript at 25.
[139] Transcript at 33.
This consideration weighs against the revocation of the cancellation of the Applicant’s visa.
The Weighing Exercise
Guidance is given by Direction 79 as to how the decision maker should apply the primary and other considerations. Paragraphs 8(3) to (5) of Direction 79 are relevant.
They provide:
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65, the same considerations apply to the exercise required by Direction 79 which is materially in the same terms. The leading case in this regard is Suleiman v Minister for Immigration and Border Protection[140] (see also the Full Court of the Federal Court decision in Minister for Home Affairs v HSKJ[141]).
[140] [2018] FCA 594.
[141] [2018] FCAFC 217.
The Tribunal in CZCV at [164] summarised the legal position following the various cases referred to above as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving another consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so…
This Tribunal agrees with the above approach.
Looking at the first primary consideration, the protection of the Australian community,
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 behaviour and the likelihood of that occurring. For the reasons set out above, the Tribunal assesses the likelihood of the Applicant offending as he has in the past as very high.
The harm that would be caused if the Applicant were to repeat the offending that he has engaged in in the past, particularly his violent offending including violent offending against women, is very serious. The risk is an unacceptable one. The Tribunal finds that the first primary consideration weighs very heavily against revocation of the cancellation of the Applicant’s visa.
The Tribunal finds that the second primary consideration, the best interests of a minor child, in this case his nephew, would be served by revocation of the cancellation of the Applicant’s visa, however, for the reasons set out earlier in this decision only minor weight should be given to this consideration.
The third primary consideration, the expectations of the Australian community,
weighs against the revocation of the cancellation of the Applicant’s visa.
In relation to the “other considerations” identified in Direction 79, the consideration of strength, nature and duration of the ties that the Applicant has to Australia (paragraph 14.2), weighs in favour of the revocation of the cancellation of the visa. For the reasons set out earlier in this decision, only minor weight should be given to this consideration.
The considerations of the impediments (14.5) and the hardships that the Applicant would face if he is returned to New Zealand, weigh against revocation of the cancellation of the visa.
Having undertaken the weighing of the consideration for and against the revocation of the cancelation of the Applicant’s visa, the Tribunal finds that the considerations which weigh against the revocation of the cancellation of the visa, in particular the first primary consideration; the protection of the Australian community, significantly outweigh the considerations which weigh in favour of the revocation of the cancellation of the Applicant’s visa. Accordingly, the Tribunal finds that there is not another reason why the original decision should be revoked.
DECISION
The decision of the delegate of the Respondent dated 20 August 2020 to not revoke the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) is affirmed.

I certify that the preceding 161 (one hundred and sixty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

.....................................................................
Associate
Dated: 12 November 2020

Date(s) of hearing: 30 October 2020

Applicant: In person

Counsel for the Respondent: Ms E Tattersall

Solicitors for the Respondent: Sparke Helmore Lawyers
SCHEDULE – APPLICANT’S CRIMINAL RECORD[142]
[142] This Schedule is taken from the Western Australia Police Force History for Court – Criminal and Traffic (R2/288-296).

Offence date Result date Offence Result
Remanded/

Bailed

22.03.2002 Burglary and commit offence (habitat) Youth community-based order Community work: 50 hours

09.05.2002 Stealing Youth community-based order: 2 months Community work: 20 hours

23.01.2003 Stealing Good behaviour bond: $100 for 2 months

30.07.2004 Disorderly Conduct Conditional release order (adult): 6 months

01.09.2004 Breach of bail Recognisance: $150 Good Behaviour: 6 months

04.11.2004 Receiving Fine: $500

04.11.2004 Breach of bail Fine: $500

07.09.2004 16.02.2005 Stealing Community based order: 12 months Community work: 120 hours Bailed from 10.12.2000-16.02.2005

08.12.2004-09.12.2004 17.12.2004 Breach of violence restraining order (5 counts) Community based order: 9 months Bailed from 10.12.2004-17.12.2004

08.02.2006 13.02.2006 Disorderly behaviour in public Fine: $400

15.05.2006 Breach of community- based order dated 16.02.2005 Fine: $500

05.12.2006 16.01.2007 Possess a smoking utensil Fine: $200

05.12.2006 16.01.2007 Possess a prohibited drug (cannabis) Fine: $200

27.02.2007 02.03.2007 Unlawful damage Community based order: 9 months Remanded from 28.02.2007-02.03.2007

12.08.2007 16.06.2008 Criminal damage Community based order: 6 months concurrent

12.08.2007 16.06.2008 Criminal damage Community based order: 6 months concurrent

12.08.2007 16.06.2008 Breach of community- based order dated 02.03.2007 Fine: $100

18.06.2008 17.07.2008 Possess a smoking utensil Fine: $200

18.06.2008 17.07.2008 Possess a smoking utensil Fine: $200

18.06.2008 17.07.2008 Breach of community- based order dated 16.06.2008 (2 counts) Community based order: 12 months concurrent

30.07.2008 24.09.2008 Steal motor vehicle
Intensive supervision order: 18 months concurrent

Community work: 150 hours concurrent
License disqualified: 3 months concurrent
Remanded from 01.08.2008-
24.09.2008

30.07.2008 24.09.2008 Aggravated burglary and commit offence in place
Intensive supervision order: 18 months concurrent

Community work: 150 hours concurrent
30.07.2008

30.07.2008 24.09.2008 Aggravated burglary and commit offence in place
Intensive supervision order: 18 months concurrent

Community work: 150 hours concurrent
30.07.2008

30.07.2008 24.09.2008 Aggravated burglary with intent in place Intensive supervision order: 18 months concurrent
Community work: 150 hours concurrent

30.07.2008 24.09.2008 Breach of community- based order dated 17.07.2008 (2 counts) Fine: $1000 (global)

31.07.2008 24.09.2008 Possess a smoking utensil Intensive supervision order: 18 months concurrent
Community work: 150 hours concurrent Fine: $200

06.02.2009 Breach of intensive supervision order dated 24.09.2008 (5 counts)
Imprisonment: 12 months concurrent for counts 1-4 wholly suspended for 15 months

Fine: $150 for count 5 Fine: $500 (global)

01.05.2009 03.11.2009 Breach of suspended sentence order dated 06.02.2009 (3 counts) Imprisonment: 12 months for each count

01.05.2009 03.11.2009 Assault occasioning bodily harm Fine: $400 Remanded from 20.08.2009 until end of sentence (approx. November 2010)

18.12.2011 04.04.2013 Act or omission causing bodily harm Imprisonment: 1 year cumulative from 23.12.2011 Remanded from 22.12.2011 until end of sentence (approx December 2014)

18.12.2011 04.04.2013 Aggravated burglary with intent in dwelling Imprisonment: 2 years cumulative from 23.12.2011

18.12.2011 15.04.2013 Breach of violence restraining order Fine: $500

17.03.2015 25.11.2015 Unauthorised driving by learner drivers Fine: $150

17.03.2015 26.11.2015 Dangerous driving
License disqualified: 12 months concurrent

Fine: $500

17.03.2015 26.11.2015 Failed to stop when called upon to do so Fine: $500

06.05.2015 26.11.2015 Threats to injure, endanger or harm any person Fine: $1000

06.05.2015 26.11.2015 Stealing Fine: $300

20.01.2016 12.02.2016 Breach of police order Fine: $1000 (global)

20.01.2016 12.02.2016 Breach of police order Fine: $1000 (global)

04.02.2016 12.02.2016 Breach of bail (fail to appear soon after) Fine: $1000 (global)

25.08.2016 10.10.2016 Left a public passenger transport service without a valid ticket Fine: $100

25.08.2016 10.10.2016 Disorderly behaviour in public place Fine: $400

08.03.2016 19.12.2016 Common assault in circumstance of aggravation or racial aggravation Imprisonment: 6 months concurrent from 13.10.2016 Bailed

18.03.2016 19.12.2016 Breach of bail undertaking Imprisonment: 1 month concurrent from 13.10.2016
Remanded:

11.04.2016
Bailed 23.08.2016

27.08.2016 19.12.2016 Criminal damage or destruction of property Imprisonment: 6 months concurrent from 13.10.2016

02.09.2016 19.12.2016 Breach of bail (fail to appear soon after)
Fine: $1000 Imprisonment: 1 month concurrent from

13.10.2016

09.09.2016 19.12.2016 Breach of bail (fail to appear soon after)
Fine: $5000 Imprisonment: 1 month concurrent from

13.10.2016

06.10.2016 19.12.2016 Stealing Fine: $800 (global)

14.10.2016 19.12.2016 Possess a prohibited drug (Amphetamine) Fine: $800 (global) Remanded 14.10.2016 until end of sentence (approx. 20 June 2017)

03.07.2017 30.08.2019 Enter place of another without consent with intent to commit offence Imprisonment: 3 months concurrent from 18.08.2019

11.07.2017 30.08.2019 Possession of stolen or unlawfully obtained property Imprisonment: 3 months concurrent from 18.08.2019

11.07.2017 30.08.2019 (Att) gains benefit by fraud
Imprisonment: 3 months concurrent from

18.08.2019

15.08.2017 30.08.2019 Stealing Imprisonment: 8 months concurrent from 18.08.2019

15.08.2017 30.08.2019 Stealing Fine: $400

16.08.2017 30.08.2019 Stealing Imprisonment: 4 months concurrent from 18.08.2019

16.08.2017 27.08.2019 Robbery Imprisonment: 24 months concurrent from 18.08.2017 Remanded: 18.08.2017 until end of sentence (approx. March 2020)

17.08.2017 30.08.2019 Aggravated reckless driving pursuit
Imprisonment: 9 months concurrent from 18.08.2019

License disqualified: 2 years concurrent

17.08.2017 30.08.2019 Driver failed to stop (circumstance of aggravation)
Imprisonment: 6 months concurrent from 18.08.2019

License disqualified: 2 years concurrent

17.08.2017 30.08.2019 Driver failed to stop- property damage Fine: $100

17.08.2017 30.08.2019 No authority to drive (fines suspended) Fine: $200

17.08.2017 30.08.2019 Steal motor vehicle and drive recklessly Imprisonment: 14 months concurrent from 18.08.2019

17.08.2017 30.08.2019 Without lawful excuse trespassed on a place Imprisonment: 1 month concurrent from 18.08.2019

17.08.2017 30.08.2019 Stealing Fine: $400

Date(s) of hearing:	30 October 2020
Applicant:	In person
Counsel for the Respondent:	Ms E Tattersall
Solicitors for the Respondent:	Sparke Helmore Lawyers

Offence date	Result date	Offence	Result	Remanded/ Bailed
22.03.2002	Burglary and commit offence (habitat)	Youth community-based order Community work: 50 hours
09.05.2002	Stealing	Youth community-based order: 2 months Community work: 20 hours
23.01.2003	Stealing	Good behaviour bond: $100 for 2 months
30.07.2004	Disorderly Conduct	Conditional release order (adult): 6 months
01.09.2004	Breach of bail	Recognisance: $150 Good Behaviour: 6 months
04.11.2004	Receiving	Fine: $500
04.11.2004	Breach of bail	Fine: $500
07.09.2004	16.02.2005	Stealing	Community based order: 12 months Community work: 120 hours	Bailed from 10.12.2000-16.02.2005
08.12.2004-09.12.2004	17.12.2004	Breach of violence restraining order (5 counts)	Community based order: 9 months	Bailed from 10.12.2004-17.12.2004
08.02.2006	13.02.2006	Disorderly behaviour in public	Fine: $400
15.05.2006	Breach of community- based order dated 16.02.2005	Fine: $500
05.12.2006	16.01.2007	Possess a smoking utensil	Fine: $200
05.12.2006	16.01.2007	Possess a prohibited drug (cannabis)	Fine: $200
27.02.2007	02.03.2007	Unlawful damage	Community based order: 9 months	Remanded from 28.02.2007-02.03.2007
12.08.2007	16.06.2008	Criminal damage	Community based order: 6 months concurrent
12.08.2007	16.06.2008	Criminal damage	Community based order: 6 months concurrent
12.08.2007	16.06.2008	Breach of community- based order dated 02.03.2007	Fine: $100
18.06.2008	17.07.2008	Possess a smoking utensil	Fine: $200
18.06.2008	17.07.2008	Possess a smoking utensil	Fine: $200
18.06.2008	17.07.2008	Breach of community- based order dated 16.06.2008 (2 counts)	Community based order: 12 months concurrent
30.07.2008	24.09.2008	Steal motor vehicle	Intensive supervision order: 18 months concurrent Community work: 150 hours concurrent License disqualified: 3 months concurrent	Remanded from 01.08.2008- 24.09.2008
30.07.2008	24.09.2008	Aggravated burglary and commit offence in place	Intensive supervision order: 18 months concurrent Community work: 150 hours concurrent	30.07.2008
30.07.2008	24.09.2008	Aggravated burglary and commit offence in place	Intensive supervision order: 18 months concurrent Community work: 150 hours concurrent	30.07.2008
30.07.2008	24.09.2008	Aggravated burglary with intent in place	Intensive supervision order: 18 months concurrent Community work: 150 hours concurrent
30.07.2008	24.09.2008	Breach of community- based order dated 17.07.2008 (2 counts)	Fine: $1000 (global)
31.07.2008	24.09.2008	Possess a smoking utensil	Intensive supervision order: 18 months concurrent Community work: 150 hours concurrent Fine: $200
06.02.2009	Breach of intensive supervision order dated 24.09.2008 (5 counts)	Imprisonment: 12 months concurrent for counts 1-4 wholly suspended for 15 months Fine: $150 for count 5 Fine: $500 (global)
01.05.2009	03.11.2009	Breach of suspended sentence order dated 06.02.2009 (3 counts)	Imprisonment: 12 months for each count
01.05.2009	03.11.2009	Assault occasioning bodily harm	Fine: $400	Remanded from 20.08.2009 until end of sentence (approx. November 2010)
18.12.2011	04.04.2013	Act or omission causing bodily harm	Imprisonment: 1 year cumulative from 23.12.2011	Remanded from 22.12.2011 until end of sentence (approx December 2014)
18.12.2011	04.04.2013	Aggravated burglary with intent in dwelling	Imprisonment: 2 years cumulative from 23.12.2011
18.12.2011	15.04.2013	Breach of violence restraining order	Fine: $500
17.03.2015	25.11.2015	Unauthorised driving by learner drivers	Fine: $150
17.03.2015	26.11.2015	Dangerous driving	License disqualified: 12 months concurrent Fine: $500
17.03.2015	26.11.2015	Failed to stop when called upon to do so	Fine: $500
06.05.2015	26.11.2015	Threats to injure, endanger or harm any person	Fine: $1000
06.05.2015	26.11.2015	Stealing	Fine: $300
20.01.2016	12.02.2016	Breach of police order	Fine: $1000 (global)
20.01.2016	12.02.2016	Breach of police order	Fine: $1000 (global)
04.02.2016	12.02.2016	Breach of bail (fail to appear soon after)	Fine: $1000 (global)
25.08.2016	10.10.2016	Left a public passenger transport service without a valid ticket	Fine: $100
25.08.2016	10.10.2016	Disorderly behaviour in public place	Fine: $400
08.03.2016	19.12.2016	Common assault in circumstance of aggravation or racial aggravation	Imprisonment: 6 months concurrent from 13.10.2016	Bailed
18.03.2016	19.12.2016	Breach of bail undertaking	Imprisonment: 1 month concurrent from 13.10.2016	Remanded: 11.04.2016 Bailed 23.08.2016
27.08.2016	19.12.2016	Criminal damage or destruction of property	Imprisonment: 6 months concurrent from 13.10.2016
02.09.2016	19.12.2016	Breach of bail (fail to appear soon after)	Fine: $1000 Imprisonment: 1 month concurrent from 13.10.2016
09.09.2016	19.12.2016	Breach of bail (fail to appear soon after)	Fine: $5000 Imprisonment: 1 month concurrent from 13.10.2016
06.10.2016	19.12.2016	Stealing	Fine: $800 (global)
14.10.2016	19.12.2016	Possess a prohibited drug (Amphetamine)	Fine: $800 (global)	Remanded 14.10.2016 until end of sentence (approx. 20 June 2017)
03.07.2017	30.08.2019	Enter place of another without consent with intent to commit offence	Imprisonment: 3 months concurrent from 18.08.2019
11.07.2017	30.08.2019	Possession of stolen or unlawfully obtained property	Imprisonment: 3 months concurrent from 18.08.2019
11.07.2017	30.08.2019	(Att) gains benefit by fraud	Imprisonment: 3 months concurrent from 18.08.2019
15.08.2017	30.08.2019	Stealing	Imprisonment: 8 months concurrent from 18.08.2019
15.08.2017	30.08.2019	Stealing	Fine: $400
16.08.2017	30.08.2019	Stealing	Imprisonment: 4 months concurrent from 18.08.2019
16.08.2017	27.08.2019	Robbery	Imprisonment: 24 months concurrent from 18.08.2017	Remanded: 18.08.2017 until end of sentence (approx. March 2020)
17.08.2017	30.08.2019	Aggravated reckless driving pursuit	Imprisonment: 9 months concurrent from 18.08.2019 License disqualified: 2 years concurrent
17.08.2017	30.08.2019	Driver failed to stop (circumstance of aggravation)	Imprisonment: 6 months concurrent from 18.08.2019 License disqualified: 2 years concurrent
17.08.2017	30.08.2019	Driver failed to stop- property damage	Fine: $100
17.08.2017	30.08.2019	No authority to drive (fines suspended)	Fine: $200
17.08.2017	30.08.2019	Steal motor vehicle and drive recklessly	Imprisonment: 14 months concurrent from 18.08.2019
17.08.2017	30.08.2019	Without lawful excuse trespassed on a place	Imprisonment: 1 month concurrent from 18.08.2019
17.08.2017	30.08.2019	Stealing	Fine: $400