Brooke and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 389

Brooke and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 389 (8 March 2024)
Division:GENERAL DIVISION
File Number: 2023/9765
Re:Tahu Ford Brooke
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC
Date:8 March 2024
Place:Melbourne

The Tribunal affirms the reviewable decision.

.........................[sgd]...............................................
Senior Member A. Nikolic AM CSC

CATCHWORDS
MIGRATION - Mandatory visa cancellation – citizen of New Zealand – Class TY Subclass 444
Special Category (Temporary) visa – substantial criminal record – violent offending against former
partner – failure to pass good character test – whether another reason to revoke visa cancellation
– Ministerial Direction no. 99 applied – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Returning Offenders (Management and Information) Act 2015 (NZ)
CASES

AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022]
FCAFC 175

Ali v Minister for Immigration and Border Protection [2018] FCA 650

Beezley v Repatriation Commission (2015) 150 ALD 11

Bettencourtv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021)

287 FCR 294

BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021]

FCAFC 199

Brown v Minister for Immigration and Citizenship [2009] 112 ALD 67

Brown v Minister for Immigration and Citizenship [2010] 183 FCR 113

Brownlie v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023]

FCA 436

CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021)

284 FCR 416

CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101

DOB18 v Minister for Home Affairs [2018] FCA 1523

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021]

FCAFC 78

Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250

FYBR v Minister for Home Affairs (2019) 272 FCR 454

FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56

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

468

HZCP v Minister for Immigration and Border Protection [2018] FCA 1803

Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2

Jagroopv Minister for Immigration and Border Protection (2016) 241 FCR 461

Khalil v Minister for Home Affairs (2019) 271 FCR 326

Lesianawai v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024]

HCA 6

Marzano v Minister for Immigration and Border Protection [2016] FCA 1180

Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548

Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v DOM19 (2022)

289 FCR 499

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 (2021)

285 FCR 540

Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Viane (2021) 395

ALR 403

Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354

Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234

Murphy v Minister for Home Affairs [2018] FCA 1924

Nathanson v Minister for Home Affairs (2022) 178 ALD 536

Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582

Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219

QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA

1394

RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295

FCR 365

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545

Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424

Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023)

409 ALR 234

Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285

FCR 187

Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203

Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531

Secondary Materials
Direction No. 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation
under s501 and revocation of a mandatory cancellation of a visa under s501CA (commenced 3
March 2023)
Imprisonment, Sentencing Advisory Council (Vic) (Web Page, 28 April 2022)
< FOR DECISION
Senior Member A. Nikolic AM CSC
8 March 2024
INTRODUCTION

Mr Tahu Ford Brooke (“the Applicant”) has asked the Tribunal to review the Respondent’s decision not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category Visa.
The hearing was held at the Tribunal’s Melbourne Registry on 29 February and 1 March 2024. The Applicant was legally represented when making his revocation submissions,[1] and more recently by a solicitor. On 15 February 2024 at 6:38pm, however, his solicitor emailed the Tribunal to advise he was ‘no longer instructed to appear in the matter’. The Applicant was subsequently self-represented at the hearing. The Respondent was represented by Ms Samantha Liddy, a solicitor with Sparke Helmore Lawyers.
[1] Exhibit R1, 43-45.
For the following reasons the Tribunal affirms the reviewable decision.

BACKGROUND

The Applicant is a national of New Zealand and the youngest of four siblings. His parents separated while living in New Zealand and his mother migrated to Australia with three of her children in December 2002. One of the Applicant’s older brothers remained in New Zealand and continues to live there. The Applicant’s biological father and other relatives also continue to live in New Zealand, but the Applicant claims to have no contact with them.
The Applicant arrived in Australia when he was an infant.[2] He referred to school attendance until Year 10 and then sporadic work as a labourer in a panel beating shop when he was 15, and in ‘forestry’ during 2019. When asked what he meant by ‘forestry’ the Applicant said he ‘worked for a company, that worked for a company, that planted trees’. There is no independent corroboration of his past work claims.
[2] Ibid 58.
The Applicant’s criminal history in Australia refers to juvenile offending, which is later discussed. As an adult, he was convicted in the Magistrates’ Court on 5 April 2023 for several violent offences against his then female partner, for which he received an aggregate sentence of 12 months’ imprisonment followed by a three-year Community Corrections Order (“CCO”).[3] The Tribunal will refer to his former partner as “Ms LP”.
[3] Ibid 33-40.
On 4 May 2023, the Applicant’s visa was mandatorily cancelled.[4] He made representations to have this revoked,[5] but on 20 December 2023 the Respondent declined to do so (“non-revocation decision”).[6]
[4] Ibid 52.
[5] Ibid 91, 96-97.
[6] Ibid 10.
On 25 December 2023, the Applicant asked the Tribunal to review the non-revocation decision.[7]
[7] Ibid 1-9.
Despite being legally represented in this proceeding until 15 February 2024, no documents were filed in support of the Applicant’s case by 4:00pm on 5 February 2024 in accordance with Tribunal scheduling orders. No explanation was provided for this non-compliance and a reminder to lodge this material went unanswered. At a non-compliance hearing on 22 February 2024, the Applicant was again reminded he had until 26 February 2024 to lodge any documents pursuant to the so-called ‘Two-Day Rule’ at ss 500(6H)–(6J) of the Migration Act 1958 (Cth) (“the Act”) but failed to do so.

LEGISLATIVE FRAMEWORK

Section 500(1)(ba) of the Act, read in conjunction with s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), are the sources of the Tribunal’s jurisdiction to review non-revocation decision by a Ministerial delegate.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a visa granted to a non-citizen if the Minister is satisfied the person does not pass the character test. The ‘character test’ is defined in s 501(6) of the Act:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); …
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record, including if the person has been sentenced to a term of imprisonment of 12 months or more.[8]
[8] The Act (n 8) s 501(7)(c).
Under s 501CA(3) of the Act the Minister must provide notice of the cancellation decision as soon as practicable, and invite the affected person to respond. Section 501CA(4) of the Act confers a power on decision-makers to revoke a visa cancellation decision if the non-citizen makes representations in accordance with the invitation. The decision-maker must either be satisfied the person passes the character test or there is another reason to revoke the original decision. The decision-maker must revoke the cancellation if satisfied that one of the relevant requirements in paragraphs (4)(b) of the Act exists.[9]
[9] Marzano v Minister for Immigration and Border Protection [2016] FCA 1180, [48] (Moshinsky J), affd (2017) 250 FCR 548.
Sections 500(6H)–(J) of the Act preclude the Tribunal from having regard to oral information or documents submitted in support of an applicant’s case, unless the information is set out in written form and given to the Minister at least two business days prior to the hearing.[10]
[10] Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v DOM19 (2022) 289 FCR 499.
Section 500(6L) of the Act requires the Tribunal to decide this application within 84 days of the Applicant being properly notified of the reviewable decision. If this does not occur, the decision is affirmed by operation of law.[11] The 84^th day in this matter falls on 13 March 2024, which is seven working days after the hearing.
[11] Khalil v Minister for Home Affairs (2019) 271 FCR 326, 338.
Section 33(1)(a)–(b) of the AAT Act provides that the procedure of the Tribunal is within the discretion of the Tribunal and ‘shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of [the AAT Act] and every other relevant enactment and a proper consideration of the matters before the Tribunal permit’. Section 33(1)(c) of the AAT Act states that ‘the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate’.

ISSUE TO BE DETERMINED

It is not in doubt the Applicant does not pass the character test by reason of his conviction and 12-month sentence of imprisonment on 5 April 2023.[12] Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision. The remaining issue under s 501CA(4)(b)(ii) is to determine whether the discretion to revoke the cancellation decision is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ to do so. [13]
[12] Exhibit R1, 38 [17].
[13] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187, 191–192 [3]–[5] (Katzmann J), 198 [24] (Derrington J), 219 [103] (O’Bryan J).
The Full Court in Bettencourt[14] has reflected with approval upon the approach taken in Viane,[15] about how ‘another reason’ is determined. Their Honours stated at [27]:
(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.
[14] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294 (‘Bettencourt’).
[15] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [66]–[68] (Colvin J) (‘Viane’).
More recently in Plaintiff M1/2021,[16] the plurality of the High Court stated how representations made under s 501CA(4) of the Act should be approached:
22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
23. It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations…the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
(Citations omitted).
[16] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, 598–599 [22]–[25] (Kiefel CJ, Keane, Gordon and Steward JJ) (‘Plaintiff M1/2021’).

DIRECTION 99

In making its decision, the Tribunal must comply with a ministerial direction made by the Minister under s 499(1) of the Act, which is known as “Ministerial Direction 99” (“the Direction”).[17] The Tribunal is said to ‘stand in the shoes of the original decision-maker’ and must make ‘the correct or preferable decision,’[18] based on the material currently before it.[19]
[17] The Act (n 8) s 499(2A); CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416, 417–418 [4] (Rares, O’Callaghan and Jackson JJ); Nathanson v Minister for Home Affairs (2022) 178 ALD 536, 540 [4] (‘Nathanson’); Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (commenced 3 March 2023) (‘The Direction’).
[18] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 314 [96]-[98] (Hayne and Heydon JJ), 324 [134] (Kiefel J) (‘Shi’); Nathanson (n 18) 541 [7].
[19] AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175, [25] (Wigney, Abraham and Rofe JJ); Nathanson (n 18); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Beezley v Repatriation Commission (2015) 150 ALD 11, [68]; Shi (n 19) 299 [40], 315 [100], 324-325 [134].
The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must have regard to clauses 8 and 9, where relevant to the decision. Clause 8 of the Direction identifies the following primary considerations:
(1) Protection of the Australian community from criminal or other serious conduct;
(2) Whether the conduct engaged in constituted family violence;
(3) The strength, nature, and duration of ties to Australia;
(4) The best interests of minor children in Australia;
(5) Expectations of the Australian community.
Clause 9(1) of the Direction sets out a non-exhaustive list of other considerations:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Impact on Australian business interests.
Clause 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations’. This does not preclude the Tribunal, however, from giving an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[20]
[20] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23], [28] (Colvin J).
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’. The weighing process, however, is left to individual decision-makers.[21]
[21] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 473, [57].

EVIDENCE
Witnesses

The Applicant did not call any witnesses. He explained that he asked immediate family members to provide witness statements, but they either did not respond or ‘just didn’t want to do it’. The following documents were taken into evidence at the hearing:
(a)Documents lodged by the Respondent numbering 260 pages;[22] and
(b)Supplementary documents lodged by the Respondent numbering 138 pages.[23]
[22] Exhibit R1.
[23] Exhibit R2.

Applicant’s oral evidence

At the commencement of the hearing the Tribunal took the Applicant through key aspects of the Direction, the procedure to be adopted for the hearing, and his privilege against self-incrimination, which the Applicant said he understood.
The Applicant referred in oral testimony to not having the ‘best upbringing’, including because his father was not present in the home. He recalled difficulties at school and said he started using alcohol and different drugs from about the age of 12. These were consumed in such quantities that the Applicant said there were frequent occasions he ‘would black out not knowing what [he] did’. His drug use has included cannabis, crystal methamphetamine (“ice”), heroin, and ‘pills’ like MDMA and Xanax. The Applicant said he used cannabis and alcohol with his mother and maternal grandparents and recalled using heroin for about two years. He recalled experiencing troubles at school, engaging with negative peers, spending time supervised by youth services, and stated he was ‘classified as a high-risk offender at age 16’.
The Applicant contends that in about 2020 he ‘changed [his] life around’ after meeting Ms LP. He said this was because he moderated his alcohol and cannabis use to an ‘appropriate level’, ceased use of ice and heroin, and undertook some work. The Applicant said he earned about $200 a week from ‘forestry’ work and recalled this as a happy period of his life. After their first child was born in late 2021, however, the Applicant said things got ‘harderr’ because of his ‘responsibilities as a father’. He ‘started using meth, Xannies (sic) and alcohol again’ and committed violence against Ms LP. The Applicant claimed he ‘woke up not knowing what [he’d] done’, and these experiences caused him to conclude he was ‘not capable of being a partner or a father’. His relationship with Ms LP ended and he referred to ‘losing [his] children’ because Ms LP’s new partner now performs a paternal role.
During cross-examination, the Applicant agreed he punched and kicked Ms LP on 25 February 2022, despite her holding their three-month-old daughter. She was in the early stages of pregnancy with their second child and witnesses in the area filmed his conduct.[24] A Final Family Violence Intervention Order (“FFVIO”) was issued by a Court on 26 February 2022 to protect Ms LP and her infant daughter.[25] The Applicant recalled being arrested and remanded in custody after this first incident of violence before being granted bailed on 26 May 2022 to engage in the Court Integrated Services Program (“CISP”).
[24] Exhibit R1, 17, 36 [13]–[28]; Exhibit R2, 24.
[25] Exhibit R2, 21-23, 38 [14], 68.
The Applicant agreed he breached his bail conditions and the FFVIO, including by going to Ms LP’s location on 13 August 2022 and sitting in the passenger seat of her car. After Ms LP entered the car and discovered his presence, the Applicant agrees he punched her multiple times to the head and slammed her head into the steering wheel, which caused pain, swelling, and bleeding.[26] He agreed that Ms LP was eight months pregnant with their second child at this time. When a witness intervened, the Applicant accepts he damaged Ms LP’s car, including by ripping rear vision mirrors off. The Applicant said he was again under the influence of heroin, ice, and alcohol at the time of this assault.
[26] Ibid 57.
When asked about any trouble in custodial settings, the Applicant referred to ‘some encounters’. He recalled assaulting another detainee because of ‘previous stuff in jail’ and agreed that a report about this incident was accurate.[27] He also agreed that he continued the assault by following the victim into an officer’s station and the victim had to be transported to hospital by ambulance. The Applicant contextualised this assault as payback for the victim’s actions while they were previously imprisoned together by stating: ‘We had an encounter in Port Phillip Prison…we didn’t have a good relationship. He got some of his friends to follow me into my cell and assaulted me’.
[27] Exhibit R1, 228.
When asked about any other conduct issues while imprisoned, the Applicant claimed to have been ‘mistreated’ by the ‘emergency response team’, who he said falsely claimed he had assaulted them. He said this caused him to spend 3-4 weeks in a ‘form of solitary’ at Port Philip Prison, before being transferred to Barwon Prison where he was ‘placed in solitary’ for a time. The Applicant agreed that Barwon Prison is Victoria’s maximum-security prison, but said his transfer was ‘voluntarily’.
The Applicant claimed he has been abstinent from illicit drugs and alcohol since being arrested and imprisoned in August 2022. In response to questions from Ms Liddy he agreed that he recovered packages thrown over the fence by other detainees, stating: ‘usually everything thrown over is cigarettes’. When challenged by Ms Liddy that a white crystal substance, suspected of being a narcotic, was found in his possession in December 2023,[28] the Applicant did not dispute the accuracy of this report, but claimed he was collecting the package for a friend in exchange for payment in cigarettes. When asked if he knew what the substance was, the Applicant said that based on his experience he thought it was ice. When asked why he would engage in such conduct, the Applicant responded: ‘It’s a thing for stuff, for like inside – not just immigration detention, but prison. You do things – you get something in return’. When pressed that someone who claims to be rehabilitated would not engage in such conduct, the Applicant responded: ‘At the time it wasn’t really the best choice I made’.
[28] Ibid 242.
The Applicant was referred by Ms Liddy to several other incidents, including where he reportedly adopted a fighting stance and was verbally aggressive towards an officer.[29] The Applicant denied swinging his arm at the officer, but agreed that a Code Black and the Emergency Response Team was called. He recalled another disagreement with a detention officer who he claimed ‘mistreated’ him by purportedly refusing to let him collect a speaker from another detainee’s cell, which resulted in a ‘verbal argument‘. The Applicant also accepted the accuracy of another report in which he told an IHMS[30] nurse she was ‘fucking dumb’ and demanded: ‘give me my fucking medication’.[31]
[29] Ibid 238.
[30] The International Health and Medical Services (“IHMS”) provides primary and mental health care services within the Australian immigration detention network.
[31] Exhibit R1, 183, 224.
When asked why he would not relapse into drug and alcohol abuse if released, the Applicant said he experienced drug ‘withdrawals’ for much of his time in prison and it is now ‘almost two years’ since he felt like needing illicit drugs. He stated that he is healthier and exercises regularly. The only prescription drug he takes is Mirtazapine. When asked about any rehabilitation courses completed in custody, the Applicant said he has ‘no evidence to prove it’, but claims to have attended ‘family counselling, drug and alcohol, turning into respectful relationships, and education as well’.
The Applicant said he has a ‘really good bond’ with his children who are under two years of age. He has forgotten the older child’s date of birth but thought the younger child was born on 27 September 2022. He has never met the youngest child and last saw the older child while on bail after his first arrest in 2022. He agreed this was despite a FFVIO being in place that precluded him contacting Ms LP or their child. The Applicant said he calls his children each weekend and claims to have ‘a really good co-parent relationship’ with Ms LP and her new partner. When asked why there was no statement from them, the Applicant replied: ‘I wouldn’t want them to see me like this’. The Applicant was referred by Ms Liddy to an IHMS report dated 15 December 2023, in which he told a primary health nurse he did not like to maintain contact with his children ‘due to feeling triggered post phone calls’.[32] He agreed this report was accurate ‘at the time’, but said he realised in the last two months that ‘to become a better person [he has] to build up relationships…so [he] put in time and effort to communicate with them’. He claimed to have last spoken with his children the Saturday prior to this hearing. If returned to New Zealand, the Applicant said he would continue to maintain contact with the children by telephone. When asked if he had spoken with Ms LP about the sort of relationship he could have with the children, the Applicant responded: ‘Yes and no – as long as she’s happy I’m happy’.
[32] Ibid 168.
The Applicant said his visa cancellation should be revoked because he deserves ‘a chance to show [he] has the capability to change [his] life around’. If released in Australia, he aspires to build a relationship with his two children. When asked about any other plans, the Applicant said he intended accessing support available to him under a CCO, which included counselling. He claimed to be in ‘full contact with everyone in [his] family’ and that they will support him. He referred to a grandfather, mother, one brother, one sister, three uncles, and an aunt living in Australia. When asked why there were no statements from any of his relatives, the Applicant said he asked them to write statements but they either ‘didn’t respond’ or ‘just didn’t want to do it’. The Applicant confirmed that none of his relatives visited him while he was imprisoned or in immigration detention. He claims to maintain daily contact with his mother by telephone, but said she has ‘mental health issues’ and he does not want her catching public transport for an hour-long train ride to visit him. The Applicant said both his siblings in Australia work and although they have not visited him, he talks to them by telephone on weekends. He claimed that his brother has a child from a former relationship, but his sister is single and has no children.
The Applicant said his elder brother in New Zealand is imprisoned. His father and other relatives also live in New Zealand, but the Applicant said he has no contact with any of his relatives and referred to them as ‘long lost family’.

PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct

Clause 8.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

The nature and seriousness of the conduct

Under cl 8.1.1 of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)    violent and/or sexual crimes;
(ii)   crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)    causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)   crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant’s criminal history discloses multiple findings of guilt during six appearances in the Children’s Court, most recently on 17 September 2020.[33] This includes for conduct such as assaulting police, intentionally and recklessly causing injury, armed robbery, committing indictable offences on bail, possessing a controlled weapon without excuse, robbery, criminal damage, and dealing with property suspected of being the proceeds of crime. Convictions were not recorded for these offences. During the Applicant’s most recent sentencing in April 2023, the Court referred to his juvenile crimes as ‘serious offending’.[34] The High Court’s decisions in Thornton,[35] however, and more recently in Lesianawai,[36] only two days prior to these reasons being published, makes it impermissible for the Tribunal, when exercising the power conferred by s 501CA(4) of the Act, to take into account findings of guilt against a juvenile offender where convictions are not recorded.[37] In Lesianawai, the High Court held at [46]:
‘Similar to Thornton, in this case the delegate was precluded from taking into account so much of the plaintiff's "youth offending" and "finding[s] of guilt" that related to the offences for which he was sentenced by the Children's Court prior to his reaching 16 years of age and the fact that he was charged with, or supposedly convicted of, those offences.’
(Footnotes removed).
[33] Ibid 32.
[34] Ibid 36 [34].
[35] Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 234 (‘Thornton’).
[36] Lesianawai v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 6 (‘Lesianawai’).
[37] Exhibit R1 252 [74].
The Tribunal therefore places no weight on juvenile offending that is precluded from consideration. This leaves the Applicant’s adult convictions on 5 April 2023, where the Werribee Magistrates’ Court convicted him of two counts of Common Law Assault, Assault by Kicking, Make Threat to Kill, Contravene Family Violence Intervention Order, Commit Indictable Offence Whilst on Bail, and Intentionally Damage Property.[38] He received an aggregate sentence of 12 months’ imprisonment and a three-year CCO. During sentencing the Court referred to the Applicant’s crimes as ‘chilling’:
‘I'm sentencing in relation to two separate very serious incidents, occurring on 25th of February 2022 and the 13th of August 2022. You were offending against your then 23-year-old partner…[O]n 25th of February 2022, you were at a caravan park and she was holding your three-month-old daughter. You pushed her outside the van and punched her multiple times, and she fell. Whilst on the ground, you kicked her multiple times and the kicks were described as powerful. There were witnesses who…observed this as they were present filming a TV program. And you were yelling, "…I'll fucking kill you." The witnesses heard the cries of pain from [victim’s name redacted]. I viewed the footage that was available…It was chilling. And those who were there on the video watching your offending were appalled and were extremely concerned for your then-partner. You grabbed your daughter, and your victim then followed you into the caravan. Police attended and you were arrested, but you were deemed unfit for interview. At the time, a small quantity of cannabis was located in your pocket. On the 26th of February 2022, a full intervention order was imposed on you. And the only contact you could have with [victim’s name redacted] was via text or email in relation to your daughter. You were released from custody on the 26th of May 2022 on bail. Then on the 31^st (sic) of August 2022, in breach of the intervention order, you and [victim’s name redacted] were visiting her family, had a verbal argument about a vape. You were in a vehicle at the time and slammed her head into the car window twice, and into the steering wheel. She received a laceration to her forehead and pain to her abdomen. At that time, she was eight months pregnant with your second child. A portion of that assault was witnessed. You were told to leave the area, but refused to. You kicked the front and rear door of the vehicle, and also ripped the mirrors off it. You were arrested…and made denials when you were interviewed. You said the injuries were from a prior incident, but your intention was not to contravene any intervention order…
…
The fact that your offending is very serious…tempers the weight that I must attach to rehabilitation, but I am very concerned and, and quite sure that you require support in the community. Your offending is abhorrent, and I denounce your offending. Your physical assault on your then-partner was not short in duration, and involved multiple blows and kicks and threats. I accept it was aggravated by the fact she was pregnant and holding your three-month-old. As to the second incident, it is aggravated by the fact that she was further pregnant, you were on bail and there was an intervention order prohibiting your contact with her in any form. The police and the court had attempted to keep her safe from you by imposing that order and bail conditions. That did not work. She was again physically assaulted by you.
…
Whilst the two sets of offending were six months apart, they are of the same or similar character against the same victim in a family violence setting.’[39]
[38] Exhibit R1, 32.
[39] Exhibit R1, 36 [6]-[33], 37 [32]-[42], 38 [12]-[14].

Ms LP was a vulnerable victim because of pregnancy during both assaults and because she was holding their infant child during the first assault. The Applicant’s repeated violence against her some six months later (13 August 2022) was aggravated by the fact that he was on bail for the earlier attack, and expressly prohibited from approaching her or their child. Ms LP was then eight months pregnant with their second child. There is a trend of increasing seriousness in the Applicant’s offending.
Imprisonment is a sentence of last resort and the most severe sanction available.[40] An aggregate sentence of 12 months imprisonment for a person convicted for the first time as an adult is significant, but nevertheless well below the maximum sentences available for the crimes the Applicant was convicted of.
[40] See e.g. Imprisonment, Sentencing Advisory Council (Vic) (Web Page, 28 April 2022)
<
In addition to the Applicant’s adult criminal history, the Tribunal can consider ‘other conduct to date’.[41] This includes conduct in custodial settings, which reflects several instances of abusive, aggressive, threatening, non-compliant, defiant, or other objectionable behaviours. For example:
(a)On 29 October 2023, the Applicant assaulted another detainee in front of the custodial officer’s station, continued this assault inside the officer’s station, and caused facial injuries to the victim requiring ambulance transportation to hospital.[42] During an interview with the Duty Manager the Applicant stated ‘he did what he had to do’ because of the ‘history’ between him and the victim. The Applicant was asked about this at the hearing and agreed with the documentary evidence.
(b)The Applicant accepts that on 11 July 2023 he was abusive towards an IHMS nurse by stating ‘you are fucking dumb…give me my medication’.[43]
(c)The Applicant does not accept the reference in one custodial report that he swung his arm at a custodial officer,[44] but agreed that he collected packages thrown over a fence by detainees in adjoining compounds that contained contraband.[45] He said this was mainly cigarettes and claimed to be unaware that one of the packages he collected for a friend contained what he believes was ice.
[41] The Direction (n 20) cl 8.1.1(1).
[42] Exhibit R1, 49, 225-228.
[43] Ibid 183, 223-224.
[44] Ibid 238.
[45] Ibid 23, 242, 245, 249, 251.
In terms of the weight to be given to custodial records, this material routinely forms part of the evidence in mandatory visa cancellation cases. The documents are usually obtained under summons and do not assume the status of evidence until tendered and admitted. Their value is frequently tested during questioning. The Tribunal is not bound by the rules of evidence,[46] and although such records may not have been substantiated in court, there is nothing preventing the Tribunal from considering them as ‘other conduct’ within the meaning of cl 8.1.1(1) of the Direction. Witnesses must be afforded procedural fairness, however, by having the records put to them for response, which occurred on this occasion. As Kenny J has pointed out, the Tribunal should treat contemporaneous records of this kind carefully and acknowledge the ‘limits of the material before it that was said to evidence such conduct, including its cogency and reliability’.[47] Anastassiou J has similarly expressed the need for care about ‘reaching a view that criminal conduct has occurred, absent a prosecution and conviction’.[48] The Tribunal has treated the custodial records with caution and only attributes weight to those reports that the Applicant accepts are accurate.
[46] AAT Act (n 9) s 33(1)(c).
[47] CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101, [98]–[100].
[48] QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394, [74], citing Brown v Minister for Immigration and Citizenship [2009] 112 ALD 67, [85] (Edmonds J); Brown v Minister for Immigration and Citizenship [2010] 183 FCR 113, [128] (Nicholas J, Moore and Rares JJ).
The Tribunal is satisfied that the Applicant has not been consistently compliant in custodial settings and has engaged in violent, aggressive, or abusive behaviours against officers and other inmates / detainees. He has also collected contraband at the request of others.
The Applicant’s convictions on 5 April 2023 and his subsequent misconduct in custodial settings is objectively very serious.

Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

Clause 8.1.2(1) of the Direction provides:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Clause 8.1.2(2) of the Direction states that in assessing the risk non-citizens pose to the Australian community, decision-makers must consider, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
This aspect of the Direction requires the Tribunal to assess the risk posed to the Australian community if the Applicant reoffends, taking into consideration the nature of any harm and its probability. The courts have held that past actions are legitimate predictors of future behaviour.[49] The notion of risk and its nexus to future possibility were explored by Justice Mortimer, as her Honour then was, in Murphy:[50]
‘That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.’
[49] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 574; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 (2021) 285 FCR 540, 543-544.
[50] Murphy v Minister for Home Affairs [2018] FCA 1924, [37]; Tanielu vMinister for Immigration and Border Protection (2014) 225 FCR 424.
The risk of future harm should the Applicant’s repeat his violent conduct is potentially devastating. If he again repeatedly punched or kicked a pregnant woman who was holding an infant child, serious physical or psychological injuries or death could result to the victim, the child being held, or the unborn child. This is the sort of conduct where even a low risk of repeat is unacceptable.
There are references in evidence to the Applicant engaging in disruptive, violent, aggressive, and non-compliant behaviours since a young age. This includes fighting with other students, which resulted in ‘regular suspensions’, attending school while drunk or drug-affected, and mixing with negative peers off school grounds.[51] Other references include the Applicant disengaging with education and youth services and becoming involved ‘in an escalation of reported gang related activity’ due to which he was sent home and ‘asked not to return until Term 2’.[52] The Applicant is noted to have sent ‘anger fuelled and intimidating text messages to the school’.[53] There is also reference to the Applicant being difficult to contact, despite youth services arranging for the purchase of a mobile telephone at public expense. Other reports relate to the Applicant failing to attend scheduled sessions to address his addictions, which resulted in a formal warning.[54]
[51] Exhibit R2, 12.
[52] Ibid 5.
[53] Ibid.
[54] Ibid 15.
The Applicant’s conduct is contextualised by persistent drug and alcohol abuse since the age of 12. This includes ‘a history of alcohol and cannabis use with his mother and maternal grandparents’.[55] He told psychologist Ms Sandra Cokorilo that he smoked an average of three grams of cannabis daily from the age of 12 and drank alcohol daily since he was 15. He also told Ms Cokorilo that ‘leading up to his most recent offending he would consume three slabs of beer and 10 pack of double strength pre-mixed vodka cans every day, noting he drank until he passed out’.[56] The Applicant also told Ms Cokorilo he smoked methamphetamine since the age of 16, including between .3 and .4g daily between May and August 2022 and used Xanax infrequently since the age of 18.[57] The Tribunal notes an IHMS record dated 19 May 2023 in which the Applicant asked staff about ‘Xannies’ (sic) being prescribed to him.[58] During the hearing the Applicant also referred to heroin use for about two years. More recently, an IHMS report dated 6 May 2023 records the Applicant’s claim that he smoked marijuana and ice ‘once in a week in the past’.[59] During sentencing in 2023, the Court noted the Applicant was diagnosed with alcohol cannabis stimulus disorder requiring ‘long term support and supervision and therapeutic interventions’.[60]
[55] Ibid 40 [46]–[47], [51].
[56] Ibid 40 [46].
[57] Ibid 40–41 [48]–[49].
[58] Exhibit R1, 163-164.
[59] Ibid 203.
[60] Ibid 37 [10].
In terms of rehabilitation, the Applicant told representatives of the CISP in May 2022 that he previously did some ‘one-on-one drug and alcohol counselling’, was ‘open to re-exploring support following his release from custody’, and wanted to ‘cease cannabis use and “limit” his alcohol consumption’.[61] Ms Cokorilo’s refers to the Applicant’s attendance at some supervised appointments, although there are also unfavourable references to him being unwilling to ‘engage in any academic learning’ and declined ‘VCAL courses’.[62] His interests were noted to be ‘music, sports and the gym’ and that he will ‘usually follow his friends and join in an activity of their choice’.[63]
[61] Exhibit R2, 27.
[62] Ibid 3–4.
[63] Ibid 4.
The Applicant contends that his ‘chances of reoffending are low’ because of the supervisory conditions of a three-year CCO he must abide by if released, which includes counselling and reporting obligations. He aspires to attend a Men’s Behavioural Change Program and an educational program to help him write a resume.
Key references in evidence to the Applicant’s recidivism risk and contextually relevant factors are:
(a)In sentencing remarks dated 5 April 2023, the Court considered that if the Applicant relapsed into drug and alcohol abuse, his risk of reoffending and returning to custody would be ‘very high’.[64]
(b)A CCO Assessment Report dated 30 March 2023 assessed the Applicant as a ‘high risk’ of reoffending.[65]
(c)There are references to the Applicant being assessed as having an intellectual disability and cognitive abilities ‘within the moderate range of intellectual functioning’.[66] Most recently, a report by psychologist Ms Cokorilo dated 5 February 2023, commissioned by the Applicant’s criminal lawyer,[67] is summarised as follows:
[64] Ibid 38 [9].
[65] Ibid 33–36.
[66] Ibid 11.
[67] Ibid 37–47.
(i)The Applicant comes from a ‘dysfunctional background characterised by paternal absence, adversity, instability, and exposure to chronic family violence and maternal alcoholism, drug use and psychopathology’. This has ‘undermined his emotional, cognitive and behavioural development and contributed to the genesis of his psychopathology and maladjustment’.
(ii)The Applicant has a history of academic and vocational underachievement, academic struggles - even in special needs educational settings, disengagement from education, and a very limited work history. In terms of the Applicant’s psychological health, Ms Cokorilo assessed him as meeting the diagnostic criteria for Generalised Anxiety Disorder (GAD) and Persistent Depressive Disorder with episodes of more severe symptomatology manifesting as recurrent episodes of Major Depressive Disorder (MOD).
(iii)Ms Cokorilo assessed the Applicant’s ‘chronically compromised mental health and intellectual impairment’ as predisposing him to substance abuse’. At the time of his most recent offending, Ms Cokorilo also assessed that the Applicant met the criteria for Alcohol, Cannabis, and Stimulant Use Disorder.
(iv)Ms Cokorilo considers the Applicant’s emotional dysregulation, poor social competency, and low problem solving and coping skills, impair his social participation and interpersonal relationships.
(v)The Applicant’s ‘presentation is further complicated by the presence of Intellectual Disability (ID), which results in impairment of adaptive functioning, manifesting in failure to meet standards of personal independence and social responsibility in different facets of daily life, including communication, social participation, occupational functioning, and personal independence at home or in community settings; rendering him more dependent on external support; which he has historically lacked’. Ms Cokorilo assessed that the Applicant’s intellectual deficits make him more susceptible to negative influences, which he became exposed to after disengaging from education at a young age. His lack of meaningful family support and secure attachment subsequently drove his acceptance needs and peer choices. Ms Cokorilo assessed that peers strongly influence the Applicant’s preferences in many areas of his adolescent life, including persistent use of illicit substances, adopting and accepting violence, and anti-social behaviours.
(vi)The Applicant’s mental health, ID, and association with negative peers has led to impulsivity leading to poor decision making, undermined his ability to exercise appropriate judgement, and impaired his insight. He has persistently relapsed into ‘alcohol and drug use as a form of self-medication in view of his low coping resources’.
(vii)Ms Cokorilo thought the Applicant appeared genuinely remorseful and expressed motivation about reforming his life. Ms Cokorilo expresses concerns about the limited nature of the Applicant’s ‘limited’ protective factors and that he ‘lacks internal resources and external supports to realise the necessary changes towards rehabilitation unless he is adequately supported’. Ms Cokorilo opined that deterrence alone seems insufficient ‘to promote rehabilitation and reduce his risk of recidivism if his mental health and addictions remain unaddressed’.
(viii)In terms of protective factors, although the Applicant reported a close relationship with his mother, Ms Cokorilo noted he left home at a young age to escape the family violence perpetrated by his alcoholic grandparents. Ms Cokorilo referred to the Applicant’s mother as a person who has been a victim of chronic family violence, homelessness, financial pressures, and who ‘presents with a history of psychopathology and alcohol and cannabis abuse’. Ms Cokorilo opined that the Applicant’s mother has been unable to provide him with adequate support and guidance, and that the Applicant has lacked positive supports from prosocial structures since.
(ix)The Applicant reported a deterioration in his mental health due to an inability to cope with parenting a newborn, causing relationship conflict, financial strain, and homelessness.
(x)In terms of recidivism risk, Ms Cokorilo refers to instructions from the Applicant’s counsel that ‘a specialised risk assessment for…intimate partner violence is not required’ and she therefore only assessed the Applicant’s ‘general risk of reoffending’. Ms Cokorilo stated in this regard:

‘90. Risk Assessment
…
92. Mr Brooke's risks are considered high…he presents with significant history of general and violent charges for a young person of his age. There is also a history of early onset of alcohol and polysubstance use, involvement with procriminal peers, psychosocial adversity including homelessness, unemployment and financial hardship, and he lacks positive supports and prosocial outlets. Further, he presents with chronically compromised mental health and has been previously diagnosed with an ID. His negative affect, emotional dysregulation, low intellectual functioning, impulsivity, disinhibition, and hyperarousal impair his reasoning and undermine his self-control thereby posing further risk of recidivism.
93. Some of his risk factors may however be amenable to treatment and can be managed through a combination of AOD, psychological and pharmacological interventions. He has recognised the contribution of his deteriorated mental health and drug abuse to his offending conduct and expressed motivation to reform himself. His substance use disorders are currently in early remission and he appeared genuine about his desire to maintain abstinence in the community. Further, he first engaged with psychological counselling during his most recent bail period and has described the intervention as helpful and expressed willingness to engage with therapeutic resources in the future.
94. However, he informed that he does not want to attend a residential drug rehabilitation program as he believes that he will be made to have buprenorphine. He reported that he has been trying to identify strategies to become a "better person" for his family, noting he needs to replace drug and alcohol use with prosocial leisure activities such as gym or basketball which he enjoys and is "good at". He discussed his strengths and weaknesses demonstrating that he has considered future plans.
95. Recommendations
96. Whilst the sentencing disposition is solely a matter for the Court, it is noted that Mr Brooke's intellectual deficits, emotional dysregulation and negative affect compromise his reasoning and ability to learn and adapt to new environments, which may make him vulnerable in the custodial environment. He has reported incidents in custody although he seems unaware of his contribution to them.
97. Mr Brooke is unlikely to receive treatment specific to PDD/MDD and GAD, which limits prospects of rehabilitation whilst in custody. Further, it seems fair to opine that imprisonment would have a significant negative effect on his development and future behavioral outcomes through loss access to positive social structures and exposure to negative peers at his impressionable developmental stage. Australian and international research has demonstrated the potential criminogenic effects of imprisonment stemming from reinforcement of criminal identity and exposure of susceptible young adult offenders to those with entrenched offending behaviour patterns (SAC, 2019). His intellectual limitations make him more susceptible to such
negative peer influences.
98. Mr Brooke has reported positive effects of pharmacological treatment in custody and would likely benefit from ongoing pharmacotherapy after his release. He would also benefit from psychological interventions to promote insight into underlying mental health issues and support development of functional coping strategies to manage his depressive and anxiety symptoms rather than self-medicating.
99. Specific interventions to address his anger problems are warranted, although it is noted that these likely arise from his untreated psychopathology and cognitive deficits. Such interventions should focus on promoting insight into causes of irritability, identifying triggers, improving communication skills and self-expression, and developing functional coping strategies to manage conflict and distress.
100. Further, noting the nature of his offending, it is recommended that he is supported to engage with interventions and psychoeducation specifically aimed at addressing family violence. Such programs should promote awareness of the range of behaviours that constitute family violence and their impacts on the victim. Dysfunctional belief systems and attitudes should be restructured to support attainment of healthy relationship, while increasing emotional regulation, problem solving and communication skills.
101. Considering the enduring nature of his intellectual impairment, and the chronicity of his psychopathology and alcohol and drug abuse, it is likely that will require a significant level of long-term support and supervision to reform his lifestyle. Further, it is important that therapeutic interventions are delivered at his level of comprehension and capacity, ideally by practitioners experienced in working with clients with ID.
102. Although his substance use disorders are currently in early remission by the virtue of imprisonment, Mr Brooke presents with low coping resources and has historically self-medicated with drugs and alcohol. He would benefit from intensive support to address his addictions and maintain abstinence in the community. Although he has concerns about maintenance/replacement pharmacological treatment, he would likely benefit from an opportunity to attend a residential drug rehabilitation program as he has had limited success in maintaining abstinence in the community. Specialised AOD interventions should aim to improve his insight into triggers and risk periods, and to develop alternative strategies and a relapse prevention plan.
103. Mr Brooke has limited supports and faces significant psychosocial adversity but is not eligible for Centrelink or NDIS support due to his citizenship status. He would benefit from a disposition which promotes access to practical resources to assist him in addressing his homelessness, unemployment and financial hardship.’

When asked during the hearing about his reluctance to do the residential drug rehabilitation program recommended by Ms Cokorilo, the Applicant said he ‘wouldn’t want to go to that place’. He explained that he is already ‘rehabilitated’ and does not ‘want to go to another place where [he] feels incarcerated again’. When put to him directly that aspects of his conduct in custody are not the actions of someone who is rehabilitated, the Applicant responded: ‘I’d have to agree with you’, but said he intended to change by ‘connecting to people that will help’ and by re-engaging with counselling that had ‘a big effect’ on him by helping him stay ‘clean’ from drugs in 2020 and 2021. The Applicant agreed, however, that he relapsed into polysubstance abuse and committed very violent offences in 2022.
The Tribunal has considered a report by consultant psychiatrist Dr Adam Deacon dated 11 December 2016,[68] which stated that the Applicant ‘has previously been assessed as functioning in the mild intellectual disability range’. Dr Deacon considered, however, that Applicant was ‘fit to plead’ at a scheduled court hearing.[69] Less weight is placed on Dr Deacon’s report given the passage of time.
[68] Ibid [48]–[52].
[69] Ibid 52 [8]–[9].
The Applicant was noted by IHMS staff to have continuing problems with anger as recently as 15 December 2023 and was ‘easily triggered over trivial things’.[70] He is recorded as telling a Primary Health Nurse that his ‘anger level had risen’ and he is ‘easily triggered over trivial things’ since ceasing Mirtazapine for sleep problems.[71] The Applicant agreed this report is correct and intends seeking assistance for anger issues if released.
[70] Exhibit R1, 168.
[71] Ibid.
The Applicant said he will live with his brother if released, but no statement or other evidence was provided from his brother. His personal circumstances instead point to considerable pressures in the community. This includes because there is no reliable evidence about stable accommodation, employment or other sources of income, or family / prosocial support. In these circumstances the Tribunal holds significant concerns about the Applicant relapsing into drug and alcohol abuse and committing more crimes.
There is no dispute the Applicant will be subject to a three-year CCO if released, requiring him to submit to ‘assessment and treatment for drug and alcohol addiction, assessment and treatment for mental health conditions, and…offending behaviour programs’.[72] The Applicant places significant emphasis on these supervisory conditions as ameliorating his recidivism risk. The persuasiveness of his claims is diminished, however, by past failures to acknowledge and address his substance abuse issues, sporadic compliance with and breaches of the court’s conditional liberty arrangements, unmet rehabilitation needs, and continuing misconduct in custodial settings. These factors cast doubt on his claimed remorse, insight, rehabilitative progress, and intention to lead a law-abiding life. The Applicant’s claims about avoiding negative peers and ‘only involving [him]self in positive things’ is again diminished by his conduct in custody, including assaulting others, abusing custodial staff, and retrieving contraband at the request of negative peers.
[72] Ibid 38 [18]–[21].
There is no evidence to corroborate the Applicant’s claims about past completion of rehabilitative or vocational courses. His oral testimony about plans for release and to ‘move forward towards a prosocial future’[73] is currently founded on generalities. For example, he referred to a ‘passionate feel for art’, wanting to express himself as an artist, and intending to ‘link in with Islander groups’ involved in ‘rugby, basketball, gym, and mentoring’. He also expressed an intention to return to his former work in ‘forestry’ by making enquiries if released. There is no evidence the Applicant has meaningfully advanced these aspirations.
[73] Exhibit R2, 3.
The persuasive weight of evidence is that the Applicant has considerable unmet needs relating to addiction, anger, and family violence, which Ms Cokorilo has noted ‘will require a significant level of long-term support and supervision to reform his lifestyle’. That said, a decision in this matter should not be delayed for unmet rehabilitative needs to be addressed.[74]
[74] The Direction (n 20), cl 8.1.2(2)(b)(ii).
There are few if any protective factors disclosed by the evidence that might ameliorate the Applicant’s recidivism risk. His offending as an adult and continuing misconduct in custodial settings is such that he represents a high and unacceptable risk of harm to the Australian community. That is because of his: longstanding predisposition to alcohol and polysubstance abuse; the nexus between his substance abuse and violent conduct; past disengagement with educational and rehabilitative opportunities; relapses; continuing violent and aggressive conduct in custodial settings; susceptibility to negative influences; incomplete rehabilitation; unwillingness to accept expert advice about residential therapy; impulsivity leading to poor decision making; and lack of prosocial supports.
The Applicant has limited insight into his needs as evidenced by his belief that he is already rehabilitated. His past conduct reflects a disdain for authority and tendency to relapse into substance abuse when confronted with conflict, inconvenience, or adversity. His behaviour in custodial settings contradicts his claims about remorse, insight, and rehabilitation. The Tribunal has little confidence that things will be different if he is given another chance.
When the Applicant’s very serious offending and other misconduct is coupled with a high recidivism risk, and the potentially devastating harm resulting from a repeat of his violence, this primary consideration weighs substantially against revocation.

Family violence committed by the non-citizen

Clause 8.2(1) of the Direction reflects the Australian government’s serious concerns about conferring on non-citizens who commit acts of family violence the privilege of coming into or staying in Australia. Clause 8.2(2) provides that this consideration is relevant where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
In considering the seriousness of family violence engaged in by a non-citizen, the Direction requires the following factors at cl 8.2(3) to be taken into account where relevant:
a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.
The High Court has held that cl 8.2 of the Direction ‘involves a field of operation separate’ to the other primary considerations:
‘…the ‘potential relevance of the commission of family violence is not logically or reasonably confined either to the protection of the Australian community (under para 8.1) or the expectations of the Australian community under para 8.4 [of the Direction]. Paragraph 8.2 (“Family violence committed by the non-citizen”) is identifying a different relevance for family violence’.[75]
[75] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 [37], [39].
The Applicant’s convictions as an adult relate to offending against Ms LP and occurred despite witnesses being present. Ms LP was in the early stage of pregnancy and holding their infant child during the first incident in February 2022, and heavily pregnant with their second child during the August 2022 incident.
The devastating pervasiveness of violence against women and girls is not delimited by nationality, ethnicity, or status. Such violence, as is the case here, is all too frequently committed by an intimate male partner. Even one act of violence can have enduring consequences. Repeated punching, kicking, and threatening to kill a pregnant female partner while she holds an infant, constitutes family violence of a very serious kind. Slamming the same partner’s head into a car window and steering wheel some six months later, when she is eight months pregnant, and while on bail and subject to a FFVIO, only aggravates the seriousness of such conduct.[76] The FFVIO constituted a warning against further contact with or violence against the victim, which the Applicant ignored. Neither the presence of his infant child, witnesses, or the interests of his unborn child deterred his violent conduct. There is a dearth of evidence about any rehabilitation undertaken by the Applicant relevant to family violence that may have imparted strategies to assist him in avoiding any repeat. On balance, this primary consideration weighs very substantially against non-revocation.
[76] Exhibit R2, 21–25.

The strength, nature, and duration of ties to Australia

Clause 8.3 of the Direction provides:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a. The length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.

Family ties in Australia

The Applicant has lived in Australia since he was an infant. There are references to his mother, two siblings, grandparents, and two infant children residing in Australia. The Applicant stated during oral testimony that his grandmother has died. There are no statements from these family members, and it is therefore not possible to definitively determine their visa status or whether they fall under cl 8.3(1) of the Direction. The IHMS documents refer to the ‘recent passing of [the Applicant’s] older brother,’[77] and to another brother with a criminal record who lives in New Zealand with an aunt, but who the Applicant has not seen since 2002.[78] This conflicted with the Applicant’s oral evidence in which he stated all three of his siblings are alive, and his brother in New Zealand is currently imprisoned. Dr Cokorilo’s report states the Applicant has had no contact with his siblings in recent years as they are ‘preoccupied with their own lives and families’.[79] The visitor logs from the detention centre reflect a single (non-family) visitor approval on 5 August 2023, but the approved visitor was subsequently noted to be a ‘no show’.[80] The Applicant claimed in oral testimony, however, that he currently speaks with his mother and siblings who are supportive of him. There is also reference in the evidence to the Applicant living with a maternal aunt and her husband, and his maternal grandfather at times,[81] although he did not advance this during the hearing.
[77] Exhibit R1, 168.
[78] Exhibit R2, 11.
[79] Ibid 11, 38 [22].
[80] Exhibit R1, 252–254.
[81] Exhibit R2, 6.
The Applicant has not provided any statements or other evidence from family members, despite having opportunity to do so. During the hearing he stated this was because he asked them, but they either did not respond or decided not to. In closing submissions, he claimed that he asked family members not to attend the hearing because he wanted to deal with his problems himself.
There is no evidence to corroborate the Applicant’s claims about past work in a panel beating shop or in ‘forestry’. When coupled with the dearth of evidence from family or friends, or about any positive contribution he has made, the strength of the Applicant’s ties is very limited. That said, the Tribunal accepts there may be some family and friends who would be upset or otherwise emotionally affected by a non-revocation decision.
The Tribunal accepts the Applicant has two minor children in Australia, but there is no evidence from Ms LP, her current partner, or other caregivers about the Applicant’s past or present relationship with the children. The children are clearly too young to express a view about the impact of a non-revocation decision. Given that Ms LP was a victim of the Applicant’s violence, the Tribunal is also cautious about accepting his evidence about the closeness of his relationship with Ms LP and their children.

Aboriginality

Even if an applicant makes no submissions about aboriginality, nor advances any connection to the Australian Aboriginal community, this is no longer the end of the matter. Justice Feutrill held in Brownlie that neither the absence of an express representation nor materials that disavow the relevance of this consideration are determinative.[82] In Brownlie, the Applicant stated he was born in Wales and expressly stated he did not identify as an Aboriginal or Torres Strait Islander person. No claims about Aboriginality were advanced by the Applicant or his barrister. His Honour noted at [80] of Brownlie:
‘There is no reference to indigenous heritage or identification as Aboriginal person. Indeed, under Citizenship Details ‘No’ is circled in hand writing in response to the question ‘Do you identify as Aboriginal or Torres Strait Islander? Similarly, in the applicant’s application in the Tribunal for review of a decision ‘No’ is written in a box under the question: ‘Are you of Aboriginal or Torres Strait Islander origin?’
[82] Brownlie vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 436 (‘Brownlie’).
In quashing the Tribunal’s decision, however, his Honour held that the Tribunal’s task extended to searching for a connection to Aboriginality that may be ‘unarticulated but manifest from the materials before the Tribunal’.[83] The Tribunal is therefore currently required to closely review the lodged materials and identify any conflict between an applicant’s express non-identification as Aboriginal and any contrary unarticulated representations or ‘integers’ in the available materials,[84] even if such a claim is not advanced. His Honour held that failing to do so is sufficiently material to constitute jurisdictional error.
[83] Ibid [101].
[84] Ibid [50], [54], [102].
In a pre-sentence report dated 15 June 2020, adjacent to a question about ‘Indigenous Status’, it states the Applicant is: ‘Neither Aboriginal nor TSI origin’.[85] The Applicant did not advance any aboriginality claims in oral evidence. When asked in his application if he is of Aboriginal or Torres Strait Islander origin, he responded ‘no’. He did not lodge any materials for this hearing and the documents lodged by the Respondent do not disclose any evidence about the Applicant’s recognition or acceptance as an Aboriginal or Torres Strait Islander from anyone enjoying traditional authority in these communities.
[85] Exhibit R2, 1.
The Tribunal is unable to identify any conflict between the Applicant’s express non-identification as Aboriginal, and other integers or contrary references in the materials that raise an unarticulated case to the effect that he identifies as an Aboriginal Australian with ties to the Australian Aboriginal community.
Although only limited weight is placed on the Applicant’s family and other ties in Australia, and any positive contributions made, his lifelong residence in Australia nevertheless carries substantial weight in favour of revocation.

Best interests of minor children in Australia

Clause 8.4 of the Direction requires decision-makers to determine, where relevant, whether the best interests of minor children in Australia are served by the grant or refusal of the visa.[86] This provision applies only if the child is, or would be, under 18 years old at the time the application is decided. If there are two or more relevant children, the best interests of each affected by the decision should be given individual consideration, to the extent their interests differ.
[86] RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2002) 295 FCR 365, [44].
The Court has referred to the Applicant having two infant children, one of whom was a three-month-old daughter being held by Ms LP on 25 February 2022 when the Applicant assaulted Ms LP.[87] A FFVIO was imposed by the Court the next day, which meant the Applicant was not permitted to approach or remain within 5 metres of Ms LP or their daughter.[88] The Applicant breached his bail conditions and the FFVIO when again committing family violence some six months later on 31 August 2022. Ms LP was then eight months pregnant with their second child. The Applicant has never met this second child.
[87] Exhibit R1, 36 [10].
[88] Ibid [22], 37 [40]; Exhibit R2, 22.
The Applicant told IHMS staff that he does not like to maintain contact with his children because he feels ‘triggered’ after these phone calls.[89] He explained during the hearing, however, that since telling IHMS staff this in December 2023, he has made more of an effort to build a relationship with his children and claims to speak with them weekly via telephone or videocalls. Again, there is no independent corroboration of this from Ms LP or other caregivers. The Applicant said if returned to New Zealand he intends continuing his telephone contact with the children.
[89] Exhibit R1, 168.
It is not possible on current facts to differentiate between the interests of these children who are under two years of age. The Applicant did not lodge any evidence and there is no independent corroboration of the children’s current circumstances. He has spent most of the children’s lives without any direct contact with them because of the FFVIO or being in custodial settings. The children’s interests do not appear to have previously been a moderating influence on his violence and aggression. Less weight is placed on this primary consideration because of the Applicant’s limited meaningful contact with the children and long absence from their lives. His violence against Ms LP can only have had a negative impact on the children and the Tribunal considers they continue to be at some risk of being exposed to family violence if the Applicant is released in Australia. This follows from his past breach of bail and a FFVIO, which did not prevent him trying to see his eldest child or harming Ms LP, both of whom were protected persons under the FFVIO.

Whilst speculative, the Tribunal accepts that the best interests of each child would be advanced by revocation. This finding is speculative because there is no evidence from Ms LP or other caregivers, and no expert evidence about the effect that continued separation from the Applicant may have on them. That said, as the children mature, they may wish to have a relationship with the Applicant, which would be much more difficult if he was living in New Zealand with little if any prospect of return to Australia. In that sense non-revocation inevitably results in any future relationship being long distance in nature.
Only slight weight is attributed to this primary consideration, however, because the Applicant does not play a parental role. The Applicant has never met the youngest child and his past involvement with the eldest child is limited. He has no direct role in the children’s day-to-day care and there is no evidence he makes a financial or other contribution to their needs. Any parental role the Applicant could play in the future is uncertain and contingent on him addressing his unmet rehabilitative needs, remaining law abiding, and gaining some sort of agreement from Ms LP or the courts about access. For the reasons earlier expressed, the Tribunal is unpersuaded by his assurances alone in this regard.

Expectations of the Australian community

Clause 8.5(1) of the Direction identifies the expectations of the Australian community:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Clause 8.5(2) of the Direction states that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Clause 8.5(3) provides that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. As per cl 8.5(4), this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in a particular case.
Clause 8.5(4) of the Direction correlates with the reasoning in FYBR.[90] Notwithstanding the different pathways in judicial reasoning, the plurality held that this primary consideration is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government. The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[91] The High Court refused an application for special leave to appeal from the orders in FYBR.[92]
[90] FYBRv Minister for Home Affairs (2019) 272 FCR 454, 471–2 [66] (Charlesworth J), 476 [91] (Stewart J) (‘FYBR’).
[91] Ibid 473 [75]–[76] (Charlesworth J).
[92] FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
The Applicant has committed violent crimes against Ms LP that raise serious character concerns within the meaning of this primary consideration. Having regard for the norm described as the expectations of the Australian community, little tolerance would be extended to him, and he should expect to forfeit the privilege of remaining in Australia.[93] This primary consideration carries substantial weight against revocation.
[93] The Direction (n 20) cls 5.2(1)–(2).

OTHER CONSIDERATIONS

No submissions were made by the parties regarding cl 9.3 (Impact on victims), and cl 9.4 (Impact on business interests). Having considered the available evidence, the Tribunal agrees and does not consider these aspects of the Direction further.

Legal consequences of the decision

The Applicant’s claims during the hearing focussed on impediments to establishing a new life for himself in New Zealand and other practical impediments, which is considered under Extent of impediments if removed.[94] In closing submissions, however, the Applicant raised for the first time a concern that he may be approached by motorcycle gangs in New Zealand who purportedly target ‘people like [him] with no family’. He also raised for the first time that his father, who he earlier claimed never to have spoken to, and an older brother, who he claims is currently serving a sentence of imprisonment in New Zealand, may have a past association with a motorcycle gang. He further claimed that his mother was ‘forced out of New Zealand’ because of unspecified gang-related issues.
[94] The Direction (n 20) cl 9.2.
The Tribunal acknowledges that the Applicant’s claims are not required to meet predetermined benchmarks and, under s 501CA(4) of the Act, consideration of his claims is in the context of ‘another reason’ for revocation, which is less categorical that the Protection Visa process under s 36A of the Act. Given the scant basis for his very recent submissions, however, it is appropriate to defer assessment of them, to the more comprehensive and conclusive process under s 36A of the Act. If the Applicant does apply, his protection claims would be assessed first before consideration was given to any character or security concerns.
In a general sense, the Applicant’s convictions resulted in visa cancellation, rendering him an unlawful non-citizen within the meaning of s 14 of the Act. In the event of non-revocation, he would continue to be detained under s 189 of the Act until removed or granted a visa.[95] Because of the operation of s 501E of the Act, he would be prevented from applying for another visa, other than a Protection Visa or a Bridging R (Class WR) Visa, pursuant to reg 2.12A of the Migration Regulations 1994 (Cth). There is no evidence that removal of the Applicant to New Zealand is not reasonably practicable, although how long this takes is uncertain because of choices he might make in the event of a non-revocation decision. This includes possible lodgement of a Protection Visa application, or an appeal to the Federal Court, or an application for the exercise of a non-compellable ministerial discretion,[96] or voluntary removal. If the Applicant did apply for a Protection Visa, but this was rejected, he would be on a pathway to removal as soon as reasonably practicable.[97] If he was found to be owed non-refoulement obligations, then s 197C(3) of the Act provides that s 198 does not require or authorise removal of a person for whom a protection finding is made.
[95] The Act (n 8), s 196.
[96] For example, The Act (n 8) s 195A or s 197AB; Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, 191 [16].
[97] The Act (n 8), s 198(2B).
Irrespective of future decisions yet to be made or options that might emerge, the Tribunal accepts that non-revocation would be a significant, adverse outcome for the Applicant. Having identified some of the potentialities, the Tribunal is not required to engage in speculation or fact-finding about future events,[98] and respectfully adopts the reasoning in Aliv Minister for Immigration and Border Protection (‘Ali’):[99]
The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised – and was in fact exercised – by reference to the facts and circumstances then prevailing...
[98] BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199.
[99] [2018] FCA 650 [33].
In DOB18 v Minister for Home Affairs at [35],[100] Griffiths J reflected favourably on the reasoning in Ali and similarly cautioned against speculating about the course of future decision-making:
… In my respectful view, it properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making...
[100] DOB18 v Minister for Home Affairs [2018] FCA 1523.
The Applicant’s submissions came across as very recent, general, and speculative. There is no persuasive basis for the claim that motorcycle gangs in New Zealand may approach him or to conclude on current evidence that he is confronted by a real risk of harm relevant to Australia’s protection obligations. This consideration carries neutral weight.
Extent of impediments if removed
Clause 9.2(1) of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;

(b)Whether there are substantial language or cultural barriers; and

(c)Any social, medical and/or economic support available to them in that country.
The Applicant turns 22 on 16 March 2024 and has spent almost all his life in Australia. He did not advance any language or cultural barriers, and none are discernible from the evidence. The Applicant has stated his Māori heritage is important to him and he wants to reconnect with it.[101] His primary concern about removal to New Zealand centres on being able to re-establish himself due to a lack of support and feeling like an ‘outsider’. The Applicant said his elder brother is currently imprisoned in New Zealand and could not assist him. He said that he likely has other relatives in New Zealand but does not know them and has never been in contact with them. During the hearing the Tribunal noted the possibility of some reintegrative support and management in New Zealand for offenders returning from overseas,[102] but the Applicant said he has no knowledge of this. The Applicant did not dispute, however, that when it came to benefits like health, housing, and income support, he would be treated no differently than other New Zealand citizens.
[101] Exhibit R2, 11.
[102] Returning Offenders (Management and Information) Act 2015 (NZ).
The Tribunal has considered the Applicant’s oral claims about his health and the IHMS records.[103] The Applicant said he has been abstinent from illicit drugs and alcohol since imprisonment in August 2022, has been exercising regularly, trying to live a healthy lifestyle, and there is no impediment to him being employed if released. When asked about a reference to lower back pain, the Applicant said this condition is ‘fine’ and he treats it with a foam roller massage when visiting the gym. When asked about a reference to asthma, the Applicant said he has a puffer but does not use it. There are also references to the Applicant being prescribed Avanza as a ‘restart’ of medication for ‘increased stress levels and poor sleep’.[104] Other reports, however, document his claims about having adequate sleep and not raising any mental health or medical concerns.[105] Some of the IHMS records state that the Applicant has refused to attend review appointments relating to mental health, his care plan, and medication ‘without any given reason’.[106] In his oral testimony the Applicant claimed he has Post Traumatic Stress Disorder (“PTSD”) arising from his violence against Ms LP. He explained that he only slept for around two hours each night because he can ‘hear [his] daughter crying’. The thrust of the Applicant’s evidence seemed to suggest that he is a victim of his own violent conduct. That said, there is no expert corroboration for PTSD and the Applicant’s claim seemed inconsistent with his earlier evidence that he could not recall his violent offending at all because of the extent of his intoxication.
[103] Exhibit R1, 163–222.
[104] Ibid 166.
[105] Ibid 173.
[106] Ibid 169–170, 179–181.
The Applicant has a limited and sporadic work history in Australia. He claims to currently be in good health and work ready. The Tribunal inferred from some of his evidence that he considers opportunities in Australia are better than in New Zealand. The requirement under the Direction, however, is to consider an applicant’s ability to establish themselves and maintain basic living standards ‘in the context of what is generally available to other citizens of that country,’ rather than by comparison with Australia. There is no evidence that if he needed it, the Applicant would not have the same entitlement to healthcare, income, housing, or other support available to all New Zealand citizens who meet required prerequisites, such as to constitute an impediment to removal.[107] This includes reintegrative support that may be available through legislation enacted in New Zealand to support returnees in the Applicant’s circumstances.[108]
[107] GXXS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 468, [57], [60]–[62] (Derrington J).
[108] Pursuant to the Returning Offenders (Management and Information) Act 2015 (NZ).
The Tribunal accepts that after living in Australia for almost all his life, the Applicant will be confronted by some hardship if returned. On balance, however, this consideration weighs moderately at best in favour of revocation, including because of impediments that may arise from the Applicant’s intellectual, cognitive, and mental health issue.

CONCLUSION

The Applicant does not pass the character test. In determining whether there is ‘another reason’ for revocation, the Tribunal has applied the Direction to the specific circumstances of his case. There is no reason on current facts to depart from the guidance in the Direction that greater weight ‘should generally be given’ to primary considerations.
The Applicant has committed significant violence against Ms LP and continues to act in violent, aggressive, and non-compliant ways in custodial settings. The former raises serious character concerns within the meaning of the Direction and any repeat has the potential to cause serious physical or psychological injury or death to a victim or their child. The Applicant should expect to forfeit the privilege of remaining in Australia.
The Applicant has considerable unmet rehabilitative relating to addiction, anger, and violence. The Tribunal does not accept his claim that he is already rehabilitated. There are limited protective factors disclosed by the evidence and the Tribunal remains concerned he will relapse into drug and alcohol abuse, re-engage with negative peers, and commit further offences if released into the community.
Despite living in Australia since he was an infant, the strength and nature of the Applicant’s community ties is limited. He did not provide any statements or other evidence from immediate family or prosocial friends despite having the opportunity to do so. There is no evidence from Ms LP about the Applicant’s purported close relationship with her and their children. There is also a dearth of evidence about any past positive contribution to the community. That said, the Tribunal accepts there may be some family and friends who may be upset or otherwise emotionally affected by a non-revocation decision. A non-revocation decision would also be a significant, adverse outcome for the Applicant who would be confronted by some impediments if returned. There is no persuasive evidence, however, that he could not re-establish himself and provide for his daily needs in the context of what is generally available to other New Zealand citizens.
Having weighed all the relevant considerations individually and cumulatively, the Tribunal is not satisfied there is another reason to revoke the cancellation decision. That is because the primary considerations of protection of the Australian community, family violence committed by the non-citizen, and expectations of the Australian community, substantially outweigh the primary considerations of strength, nature and duration of ties, best interests of minor children, and the other countervailing consideration.

DECISION

It follows the Tribunal affirms the reviewable decision.

I certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

…………[sgd]……………………….
Associate
Dated: 8 March 2024

Date of hearing:

29 February and 1 March 2024

Advocate for the Applicant:

Applicant in person

Advocate for the Respondent:

Ms Samantha Liddy

Solicitors for the Respondent:

Sparke Helmore Lawyers

Date of hearing:	29 February and 1 March 2024
Advocate for the Applicant:	Applicant in person
Advocate for the Respondent:	Ms Samantha Liddy
Solicitors for the Respondent:	Sparke Helmore Lawyers