Brown and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 668

Brown and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 668 (24 March 2020)
Division:GENERAL DIVISION
File Number(s): 2020/0174
Re:Tony Barrie Brown
APPLICANT

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

DECISION
Tribunal:Deputy President Boyle
Date:24 March 2020
Place:Perth

The decision of a delegate of the Respondent made on 17 December 2019 not to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return (Permanent) visa under s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.
.................................[sgd]..................................
Deputy President Boyle
CATCHWORDS
MIGRATION – Migration Act 1958 (Cth) – mandatory visa cancellation – s 501CA(4) – substantial criminal record – another reason why the cancellation decision should be revoked – Direction 79 – protection of the Australian community – nature and seriousness of the conduct – the risk to the Australian community – best interests of the child – strength, nature and duration of ties – extent of impediments if removed – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 499(1), 499(2A), 500(1)(ba), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)
CASES
Berryman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 421
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
DKXY v Minister for Home Affair [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCA 500
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 363 ALR 325
NDBR v Minister for Home Affairs [2019] FCA 1631
Palmer and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 88
Pinder and Minister for Home Affairs [2019] AATA 1398
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Sach and Minister for Home Affairs [2019] AATA 5173
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA (Department of Home Affairs, 28 February 2019) – paras 6.1, 6.1(3), 7(1)(b), 6.2, 6.3, 8, 8(3), 8(4), 8(5), 13(2), 13.1, 13.1(2)(b), 13.1.1, 13.1.1(1), 13.1.1(a), 13.1.1(b), 13.1.1(d), 13.1.1(e), 13.1.1(f), 13.1.2, 13.1.2(1)(a), 13.1.2(1)(b), 13(2)(b), 13.2, 13(2)(c), 14(1)(a), 14(1)(b), 14(1)(c), 14(1)(d), 14(1)(e), 14.2, 14.2(1)(a), 14.2(1)(b), 14.4(1), 14.4(1), 14.5(1), Part C
REASONS FOR DECISION
Deputy President Boyle
24 March 2020
THE APPLICATION

The Applicant seeks the review of a decision of a delegate of the Respondent made on
17 December 2019 not to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return (Permanent) visa (the Applicant’s visa) under
s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
The Applicant’s visa was cancelled under to s 501(3A) of the Act because the Applicant does not pass the character test.
The application for review was made in accordance with s 500(1)(ba) of the Act, which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) of the Act not to revoke a decision to cancel a visa. The Tribunal is satisfied that the application has been made in accordance with the relevant legislation and that the Tribunal has the jurisdiction to review the decision.
THE ISSUES
The issue for determination by the Tribunal is whether the discretion in s 501CA(4) of the Act should be exercised in favour of revoking the cancellation of the Applicant’s visa.
The Tribunal will need to determine whether it is satisfied that:
a.the Applicant passes the character test (as defined in s 501 of the Act):
s 501CA(4)(b)(i); or
b.there is another reason why the cancellation decision made under s 501(3A) should be revoked: s 501CA(4)(b)(ii).
BACKGROUND
The Applicant is a 45 year old citizen of the United Kingdom (born 19 April 1974).
[1] R1, G17/68.
On 26 May 1986 he first arrived in Australia at the age of 12.[1]
The Applicant first started offending in 1991 and has been convicted of traffic offences, stealing a motor vehicle, a weapons offence, disorderly behaviour in public and most significantly and most recently, grievous bodily harm and unlawful wounding with circumstances of aggravation.[2] The Applicant’s most recent conviction was on 8 May 2018 for the latter two offences, for which he was sentenced to four years and six months imprisonment respectively.[3] He was also convicted at the same time for breach of protective bail conditions for which he received a term of imprisonment of six months.
[2] R1, G13/46-47.
[3] R1, G14/58.
The Applicant’s criminal and traffic record are attached as an Annexure to these reasons for decision.
On 16 May 2018 the Applicant was given notice that his visa had been cancelled under
[4] R1, G3/6-10.
s 501(3A) of the Act[4] on the basis that the Applicant had a substantial criminal record, had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory (ss 501(6)(a) and 501(7)(c)).
On 7 June 2018 the Applicant requested revocation of the cancellation of his visa.[5]
On 17 December 2019 a delegate of the Minister decided not to revoke the visa cancellation.[6] The Applicant was notified of the decision on 31 December 2019.[7]
[5] R1, G4-7/22-25.
[6] R1, G12/32-45.
[7] R1, G29/154.
[8] R1, G2/3-5.
On 9 January 2020 the Applicant sought review of this decision in the Tribunal.[8]
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides that:
The Minister must cancel a visa that has been granted to a person if:
(a)   the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)   ...; and
(b)   the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
A ‘substantial criminal record’ is defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a)   ...
(b)   ...
(c)   the person has been sentenced to a term of imprisonment of 12 months or more
Section 501CA of the Act provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
...
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Ministerial Direction 79
Section 499(1) of the Act provides that:
(1)The Minister may give written directions to a person or body having functions or powers under this Act ... if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Section 499(2A) of the Act states that:
[a] person or body must comply with a direction under subsection (1).
On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made a direction under s 499 of the Act, named “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under 501CA” (Direction 79). The commencement date for operation of Direction 79 was

28 February 2019 (Paragraph 2 of Section 1 of Direction 79).
Paragraph 6.1 sets out the objectives of Direction 79. Paragraph 6.1(3) relevantly provides:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a)

(on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction 79 provides general guidance as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test.

Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4) of the Act, including the Tribunal. They are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1)(b) of Direction 79 provides that, informed by the principles set out in paragraph 6.3, the decision-maker (in this case the Tribunal) must take into account the considerations in Part C of Direction 79 in order to determine whether the mandatory cancellation of the visa will be revoked.
Paragraph 13(2), which is in Part C of Direction 79, provides:
In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
Further guidance as to how a decision-maker is to apply the considerations in Direction 79 can be found in paragraph 8 of Direction 79 which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
THE HEARING
The application was heard on 13 March 2020. The Applicant represented himself and the Respondent was represented by Mr A Burgess of Sparke Helmore Lawyers.
The Applicant was the only witness to give evidence at the hearing.
The following documents were before the Tribunal:
(a)
The Applicant’s Response to G documents, received by the Tribunal on

21 February 2020 (Exhibit A1);
(b)
Department of Justice Individual Management Plan for the Applicant created

7 January 2020 (Exhibit A2);
(c)The G Documents produced by the Respondent (Exhibit R1);
(d)Two volumes of summonsed records produced by Western Australian Police Force and District Court of Western Australia (Exhibit R2); and
(e)Respondent’s statement of facts, issues and contentions (Exhibit R3).
THE EVIDENCE
The Applicant
No separate witness statement was provided by the Applicant for the purpose of these proceedings. There were various documents in the G Documents (R1) which had been completed by the Applicant which contained information relevant to these proceedings. Other than handwritten letters to the Department of Home Affairs attaching documents, the written statements provided by the Applicant were the request for revocation of cancellation of the visa, which included the Personal Circumstances Form,[9] and the Applicant’s response to the G Documents (A1). The Applicant confirmed under affirmation that the information contained in these documents was true and correct.
[9] R1, G24.
The reasons put forward for revocation of the cancellation of the visa given in the Applicant’s request were that:[10]
·the Applicant has lived in Australia for 32 years;
·he has three young children under the age of 12 in Australia;
·all his family lives in Australia;
·he has worked for most of his time after schooling; and
·he is 44 years of age and thought that he became a citizen when his family took residency.
[10] R1, G24/93.
In the Personal Circumstances Form[11] the Applicant stated that:
[11] R1, G24.
·he came to Australia with his parents and two brothers;[12]
[12] R1, G24/96.
·there are five minor children under the age of 18 whose interests may be affected by his visa cancellation. He identifies them as being his three daughters aged eight, 10 and 12 and two children of his half-brother, Kenneth Brown. One of the children of Kenneth Brown identified by the Applicant is no longer a minor and the other child is 16 years old;
·he currently has no contact with any of the children. Custody matters in relation to his children are presently before the Family Court;
·before the custody dispute with the children’s mother his relationship with his children was ‘limited due to work’;[13]
[13] R1, G24/100.
·he had a close bond with his children and treated then with respect and love and was very protective of them due to the loss of his son, their brother, who died at six and a half weeks;[14]
[14] R1, G24/100.
·he was involved in their schooling, homework, activities and birthdays as much as possible;
·
he was adopted as a child and fears that his children will go through similar things to that which he went through unless he is involved directly in their lives.

He wants to provide a stable and secure lifestyle for his children;[15]
·he lists his parents, his two brothers, two aunties, four cousins and an ex sister-in-law as being other close relatives living in Australia;
·his family is hurt by his visa cancellation and do not want to see him deported as his life and family are in Australia;
·most of his criminal offending has been minor and he has now recognised that he has ‘depression, stress, anxiety and untreated trauma problems’;[16]
·he is seeking counselling and improving his life skills. His most recent convictions are out of character; and
·he does not believe that he will re-offend as he has never believed good comes from committing crimes and is disgusted by his crimes. He enjoys helping people and seeing the joy that that gives.
[15] R1, G24/100.
[16] R1, G24/102.
Other information is provided by the Applicant in the Personal Circumstances Form in relation to specific considerations under Direction 79. These are dealt with below.
The Applicant’s response to the G Documents (A1) takes issue with certain of the findings made in the statement of reasons attached to the reviewable decision.[17] Again, insofar as the comments made by the Applicant are relevant to the considerations under Direction 79, they are dealt with under the relevant consideration below.
[17] R1, G12.

As well as responding to some of the findings in the reasons for the reviewable decision, the Applicant’s document A1 sets out the Applicant’s goals, beliefs and his plans for moving forward. In summary they are:
Goals
(a)Get his immigration status sorted out by May 2020 to enable him to reside in Australia.
(b)Regain contact with his children through the Family Court.
(c)Gain employment and re-register his car.
(d)Establish a business/hobby based on recycling and green power.
(e)Help people who are less fortunate and ultimately establish a balanced, helpful lifestyle.
Beliefs
(f)You should treat people the best way that you can.
(g)All people are different and have different views.
Moving forward
(h)Establish a balanced lifestyle.
(i)Allow time for work, family, rest, entertainment, hobby and exercise.
(j)Notify family and workplace of counselling needs and VROs to ensure no accidental contact at family gatherings.
(k)Let his family know the support that he will need to establish normal life.
(l)Advise his family and workplace of his medications.
(m)Ask his family to be honest with him and tell him if they think he needs assistance.
Various letters of support were included in the G documents at G27. These were letters from:
(a)
The partner of a cousin of the Applicant who has known the Applicant for four and a half years. She stated that she spent time socialising with the Applicant, including going on camping trips and that he had been reserved and caring.

His mental health began to decline when he became stressed because of his divorce and because of his half-brother starting a relationship with his ex-wife.
(b)
The Applicant’s cousin (male) who has known the Applicant for almost the whole of his life. He says that the Applicant is a caring person and has always exhibited strong family values and an appetite for hard work. The Applicant had employed him is his landscaping yard business. He was a loving and caring father.

The Applicant had sacked his half-brother from his business because he was untrustworthy and lacked the same values as the Applicant. The Applicant became increasingly concerned with the bad influence that his half-brother was having on the Applicant’s daughters once the relationship between the Applicant’s

half-brother and the Applicant’s ex-wife started. It was this situation which lead to the ‘serious errors in judgment’ that the Applicant committed. The Applicant has a family in Australia who will support him and the Applicant’s cousin is concerned that the Applicant’s mental health would deteriorate if he were to be deported.
(c)The Applicant’s cousin (female) who says that the Applicant is a ‘magnificent husband and father’. He has no family or friends in the United Kingdom.
(d)The Applicant’s uncle through marriage who has known the Applicant since 1986. He says that he has known the Applicant to be of good character, friendly, hardworking and prepared to help others. He attributes the Applicant’s most recent offending to the breakdown of his marriage, his half-brother effectively taking over the Applicant’s life and role in the home which left the Applicant a ‘broken man’. He is not a violent person and his actions were out of character.
(e)Another cousin (female) of the Applicant who says that she has always known the Applicant as extremely generous, caring and trusting who is remorseful for what he has done.
(f)The Applicant’s aunty who describes him as mild-mannered, unassuming, hardworking and a devoted dad. His actions were out of character.
(g)The Applicant’s parents who say that the Applicant was never in trouble at school and a ‘run-of-the-mill kid’. He was hardworking and built a home for his wife and three children. What he did was out of character. He needs the support of his family to get his life back to normal.
CONSIDERATION
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law: Re Harrison and Minister for Immigration and Citizenship at [63]-[45].[18] The character test is defined in s 501(6) of the Act. Under s 501(6)(a) of the Act, a person will not pass the character test if the person has ‘a substantial criminal record’. This phrase, in turn is defined, relevant to this case, in s 501(7)(c) (see [10] above) which provides that a person will have a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.

That is clearly the case as the Applicant has been sentenced to terms of imprisonment totalling five years - see [6] above.
[18] [2009] AATA 47; (2009) 106 ALD 666.
The Applicant does not pass the character test and therefore cannot rely on

s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

The issue therefore is whether the discretion under s 501CA(4)(b)(ii) should be exercised. In other words, is there another reason why the original decision should be revoked?
PRIMARY CONSIDERATIONS
First primary consideration: Protection of the Australian community from criminal or other serious conduct (Direction 79 para. 13(2)(a))
Paragraph 13.1 of Direction 79 provides that when decision-makers are considering the protection of the Australian community, they:
(1)...should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
a. The nature and seriousness of the non-citizen’s conduct to date; and
b. The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paragraph 13.1(2)(a))
Paragraph 13.1.1(1) of Direction 79 provides:
1. In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)    The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)    The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)     The cumulative effect of repeated offending;
g)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
The Respondent contends that the Applicant’s offending should be viewed as very serious pointing to the factors identified in paragraph 13.1.1 of Direction 79. Not surprisingly the Respondent concentrates on the convictions in May 2018 arising out of the confrontation on 19 November 2015, in particular the grievous bodily harm and unlawful wounding convictions for which the Applicant received sentences of four years and six months cumulative.
The facts of that incident are set out in the sentencing remarks of Sleight DCJ as follows:[19]
[19] R1, G14/50-53.
The statement of material facts has been read out by the prosecutor today and are not essentially in dispute. I adopt those material facts for the purposes of sentencing. Both offences occurred on 19 November 2015.
The history to this matter are that you and your ex-wife separated over - for a - had been separated for about three years at the time and she was in a relationship with your half-brother, Kenneth Brown. There are three daughters by your relationship with your ex-wife. There was also a son who tragically passed away when he was very young.
There has been a history of Family Court orders in place in relation to custody of the children of your marriage and also other matters. There had been an earlier incident outside the Family Law Courts involving you and your ex-wife which led to you being charged with assault on your ex-wife. On 19 November 2015 you were on bail for this matter.
On 19 November 2015 you went around to your former matrimonial home to speak to your wife. She was pregnant at the time with your half-brother's child. I am satisfied that at the time you were in an agitated and aggressive state.
This is confirmed by the telephone call that you made to your ex-wife's phone threatening to seriously hurt her. You were very upset by what you believed to be deliberate attempts by your ex-wife to ignore Family Court orders and deny your - and deny you access to your children.
As your counsel has put it to me today you were certainly anxious and frustrated. You came to the front door and this was opened by your ex-wife's father, Mr Raymond Wormal. A verbal argument occurred between you over custody related issues.
Fortunately at the time the three children were not present as they were down the street with their grandmother. There had been previous arguments and fights between you and Mr Wormal. He is aged or was aged 62 at the time. During the course of the argument Mr Wormal grabbed you by the throat.
You described in the police interview that Mr Wormal was not trying to choke you and essentially what he was trying to do was restrain you. You removed a knife from your pocket and stabbed him three times. Mr Kenneth Brown sought to intervene by grabbing you around the body and was also stabbed by you.
You then left the house. You rang the police on 000 and drove to the Rockingham Police Station where you participated in an electronic recorded interview. You made substantial admissions to the police, admitting that you'd stabbed both Mr Wormal and your half-brother.
It is clear that you have had great deal emotionally dealing with the situation of your brother forming a relationship with your ex-wife. You expressed to police your ongoing disapproval about that relationship.
I accept that you did not go around the house to stab Mr Wormal or your half-brother but you certainly went around there in an aggressive state of mind to speak to your ex-wife about access issues. I'm satisfied that when arguing with Mr Wormal you became enraged to such an extent that you were barely aware of what you were doing.
Mr Wormal stated in his police statement that you were in a rage and that he'd never seen you so angry. You stabbed Mr Wormal three times with such force he thought you were punching him and he suffered numerous broken ribs. Such was your rage you said to the police you didn't realise that you'd even stabbed him until you'd heard Mr Wormal say that he'd been stabbed.
I'm satisfied that you were aware of what you were doing in the sense that it         was a willed act but it did not dawn on you until you saw the blood and him claiming that you had stabbed him of the enormity of your offending behaviour. After the stabbing incidents you dropped the knife and got into your vehicle.
Mr Kenneth Brown attempted to get into the vehicle on the passenger side but eventually fell out from the vehicle as you drove off.   You made contact or drover [sic] over his foot as you did so. That was the subject of a charge against you but was subsequently withdrawn by the State.
Mr Wormal was taken by ambulance to the Royal Perth Hospital and admitted there from 19 November. He had two stab wounds to the left chest and one to the left, upper abdomen. He also had a deep laceration to the base of the thumb on the left hand.
He also suffered multiple, left-sided rib injuries or fractures, as I've mentioned, and had internal bleeding from a diaphragm artery. Mr Wormal also suffered a laceration to the membrane that surrounds the heart. He underwent emergency surgery and was discharged on 23 November 2015.
He was readmitted to hospital on 25 November 2015 and found to have a collection of blood and serum in the left side of his chest and a partially collapsed lung. He was discharged the next day. The injuries that Mr Wormal suffered were of such a nature as to be likely to endanger life or cause permanent injury to health if not for medical treatment.
He has received treatment not only for his physical injuries but also for symptoms of anxiety and panic. Also he is likely to suffer permanent injury to his left hemidiaphragm causing breathlessness on exertion and continuing panic and anxiety attacks as a result of the trauma of the attack upon him.
Mr Kenneth Brown suffered a 2.5 centimetre wound to the left of his chest.           He was admitted to the Fiona Stanley Hospital. His wounds were cleaned and sutured. He was then released.
At the time of the incident your wife who was present in the house was heavily pregnant and experienced stomach cramps after. As a precautionary measure she was taken by ambulance to hospital for a check-up.
It is to be expected that this sort of attack by you would have had a significant effect psychologically or emotionally on both Mr Wormal and your brother, Kenneth Brown, as well as your ex-wife who was present at the time. I've received victim impact statements from all of them.
Mr Wormal expressed surprise that he was attacked. He says he has tried to help you through the difficulties of your marriage breakup. He was your employer at the time. His efforts to help you were acknowledged by you in your police interview and also during your 000 call to the police.
It is clear from the victim impact statement of Mr Wormal and the other two that there were great fears that Mr Wormal would die from his injuries at the time.        This fear of death and the nature of the attack upon him has left him with serious psychological scars. He's on medication for his psychological issues. It has affected his capacity to run his business. He lives in fear that you may at some time in the future harm his daughter and his grandchildren. Physically he has been affected by the injuries to his lungs.
Your half-brother has also suffered psychologically as a result of the attack on him and Mr Wormal. Your half-brother as I've already mentioned thought that Mr Wormal might die. The trauma your half-brother experienced has affected his sleep and general wellbeing. He says that he suffered injuries, but I understand that they are related to the other matter, the driving incident which is not the subject of a charge for sentencing before me.
The attack on both Mr Wormal and Mr Brown has affected your ex-wife who was present at the time. As I've already mentioned, she was pregnant at the time of the incident. She lives in fear and anxiety. Her fear is not only for herself, but understandably for her children. The trauma of the incident has affected her sleep and her ability to concentrate. She feels guilty that her father and her husband were stabbed over family incidents or family disputes between you and her.
The Respondent says that the Applicant’s offending should be viewed as very serious because:
Firstly, the Applicant has committed violent crimes (paragraph 13.1.1(1)(a) of Direction 79) including violent crimes against his half-brother and ex-wife’s father which are very serious (paragraph 13.1.1(b)).
Second, the Applicant’s most serious offending involved him stabbing a vulnerable member of the community, namely an elderly man, three times. (paragraph 13.1.1(c) of Direction 79).
Thirdly, regard must be had to the fact that the Applicant has been sentenced to a significant term of imprisonment (paragraph 13.1.1(1)(d) of Direction 79). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy. Accordingly, where a Court has sentenced an offender to a term of custodial imprisonment, this must be viewed as a reflection of the objective seriousness of the offences involved.
Fourthly, the Applicant’s conduct has increased in seriousness over time (paragraph 13.1.1(1)(e) of Direction 79).
Fifthly, the Tribunal must have regard to the cumulative effect of repeated offending (paragraph 13.1.1(1)(f) of Direction 79). The Applicant has been convicted of 12 separate offences dating back to when he was 20 years of age.
Sixthly,
the Applicant has previously provided false information to the department by way of his incoming passenger cards dated 24 May 2004, 1 July 2010 and 9 June 2012.

On those incoming passenger cards, he answered “No” to whether he had any criminal convictions despite having convictions for weapons, stealing and traffic offences dating back to 1994 (paragraph 13.1.1(1)(g) of Direction 79).[20]
[20] R1, G8/27.
The Applicant disputes certain aspects of the Court’s version of the events of

19 November 2015. While Sleight DCJ’s description of the events of that day is not inconsistent with the Statement of Material Facts[21] and his Honour says in his sentencing comments that ‘the statement of material facts has been read out by the prosecutor today and are essentially not in dispute’,[22] it appears that the statement of material facts that was read to the court was not the statement of material facts included in R2.
[21] R2/8-11.
[22] R1, G14/50.
As noted by his Honour, the prosecutor had read what the prosecutor described as

‘the State’s amended statement of material facts’.[23] Counsel representing the Applicant at the sentencing hearing advised the Court that the facts as read were ‘broadly admitted save for the matters referred to at the end relating to an incident involving the vehicle and Mr Ken Brown’.[24] The facts as read by the prosecutor[25] set out the facts as stated by his Honour as cited at [36] above.
[23] R3/15.
[24] R3/21-22.
[25] R3/15-16.
In his response to G Documents (A1), the Applicant does apparently seek to contest, indirectly at least, some of the facts as expressed in the statement of material facts read to the Court at the time of sentencing. He disputes the statement in paragraph 19 of the delegate’s reviewable decision[26] that he went to his ex-wife’s house on the day in question in ‘an agitated and aggressive state’. He says that he ‘went there happy and looking forward to the weekend’ and that it was Mr Wormal who became aggressive. That claim, however, is inconsistent with the Applicant’s counsel’s statement to the Court at the time of sentencing that:[27]
…during the course of the day he had been trying to contact his ex-wife to make arrangements to have the children over the weekend but he wasn’t getting any clear answer from his ex-wife...
He was quite anxious and frustrated because he wasn’t getting any clear response in relation to the children.
[26] R1, G12/37.
[27] R3/22.

His Honour then asked the Applicant’s counsel whether the Applicant admitted making threats on that day against his ex-wife to which the Applicant’s counsel responded:[28]
Yes. That may well have – that would have happened, it’s in the transcript…but that was not the purpose of his visit.
[28] Ibid.
The transcript to which the Applicant’s counsel was referring was the transcript of the audio from the Applicant’s dash camera which, amongst other things, recorded the Applicant’s journey to his ex-wife’s house and the telephone call that he made to his ex-wife in which he said to her:[29]
I’m going to seriously hurt you.
[29] R3/20.
The Applicant was asked about this inconsistency at the hearing. He denied making any threat against his wife and claimed that the transcript taken from his dash camera, to which the sentencing judge had referred and the correctness of which had been admitted by his counsel at the sentencing hearing, was incorrect. The following exchange took place at the hearing:[30]
[30] Transcript at 25.
TRIBUNAL:…when you read the full text of that, the statement that his Honour the Chief Judge reads out saying:
I'm going to seriously hurt you —
that's from the transcript from your dash cam. So it's not a question of speculation. Your statement that:
I'm going to seriously hurt you —
was recorded?
APPLICANT: From my dash cam?
TRIBUNAL: Yes
APPLICANT: Well, I don't believe that at a lot of— all the transcript from my dash cam is correct either because in — so the phone call that I made to my brother, my brother even spoke to a lawyer about it because he said that I was just in doubt of what had happened because I was — because I kept saying I think I've done this. I don't really know what's happened. But yet you don't hear any of that. There's also the police interview. The police interview shows the interview from start to finish but it shows that there was no real break whereas I remember that we had a break. And just before the break, I had said to the police, "Why are you trying to put words into my mouth?" And they said, "How?" And I said, "Well" - - -
TRIBUNAL:Okay. But in relation to — if you go back to page 19, at the middle of that page, the prosecutor is explaining to his Honour that the transcript is from the dash camera footage. That's from your own vehicle. So that recorded the telephone conversation that you made to your wife as you were driving to her house. And the transcript shows, according to the record of the — what the District Court was shown, that transcript shows you saying to her, "I'm going to seriously hurt you."?
APPLICANT: Well, I've never said that to her.
TRIBUNAL:You then — your counsel, presumably under instructions, then says,"Well, if that's in the transcript then that's what — the threat that was made." But you're saying that's all false?
APPLICANT: I've never made that threat. I've never, ever said that I - - -
TRIBUNAL:Notwithstanding that it apparently appears in a transcript?
APPLICANT: Well, I — I've never said that to my ex-wife, ever.
The Applicant’s evidence on this, and other issues, was unconvincing. The Tribunal rejects the Applicant’s denial of making the threat to his wife while driving to her house on 19 November 2015 and accepts the evidence of the transcript from the dash camera and the Applicant’s counsel’s admission as to its accuracy at the sentencing hearing.

Further, the Applicant’s denial of the threat notwithstanding clear evidence and an admission by his lawyer is indicative of the Applicant’s denial of wrongdoing and a propensity to blame others.
In his response to G Documents (A1) the Applicant also disputes the comment in paragraph 29 of the statement of reasons for the reviewable decision[31] in which the delegate notes the sentencing judge’s remark that the Applicant was enraged to an extent where he was barely aware of what he was doing but ‘was satisfied that he was aware of what he was doing “in that it was a willed act”’.[32] The Applicant says that:
I lost awareness when grabbed by the throat, as far as a willed act this is not true….
I believe I feared for my life as I have been attacked by Mr Wormal and Mr Kenneth Brown on previous occasions and have been told to watch my back and that I would be dead.
[31] R1, G12/38.
[32] A3/33.
The Applicant pleaded guilty to the charges of grievous bodily harm and unlawful wounding. He was legally represented and had negotiated the dropping of one charge and the reduction of another. If, as the Applicant now claims, he feared for his life when attacked by Mr Wormal, or that in fact his actions were not the result of the exercise of his will, he would have had defences to one or both of the charges. He still, presumably with legal advice, pleaded guilty to both charges.
At the hearing the Applicant sought to further resile from his pleas of guilty on the grievous bodily harm and aggravated unlawful wounding charges, the admissions made by his counsel at the sentencing hearing and the facts upon which the convictions were based. His evidence was:[33]
[33] Transcript at 29.
COUNSEL:Well, you plead guilty to stabbing your father-in-law?
APPLICANT: I plead guilty because my lawyers would not properly represent me, because when asking them why the police had falsified the knife evidence they refused to answer me and avoided the question.
APPLICANT: So do you now deny that you stabbed anyone?
APPLICANT: I can't deny it, because I don't know if I did or not.
…
APPLICANT: I was grabbed by the throat and I was dizzy. My — my legs — my legs just — I don't know. They felt like jelly, I suppose, is the only way I can explain it. Everything was spinning…
COUNSEL:I will take you back to the judge's remarks. If I can take you to page 19. This is a discussion of the — again, the dash cam recording from your car when you were leaving the scene of the assault. You say midway down:
I stabbed the wrong person. It should have been my piece of shit brother.
You can't possibly expect the court to believe now that you say you didn't stab anyone, or you're not sure whether you stabbed anyone?
APPLICANT: No. No. My — I did not —I did not know if I had stabbed anyone. I was on the phone. I don't know how that has even come about, because I was on the phone to my other brother and said to him, Bas, I don't know what's just happened. I think I've stabbed Ray Wormal. I'm not sure. Kenny was there. I just don't know what has gone on. My brother Barry even spoke to other lawyers, saying, hey, look, you know, what's the go, because this is what my brother said to me on the phone, and they've even said, look, there's doubt. There's obviously doubt there.
COUNSEL:Well, you would accept there's no doubt in what you said, "I stabbed the wrong person"?
APPLICANT: No. I probably said the wrong person got stabbed. It should have been me that got stabbed because I had actually believed that my brother had stabbed my father-in-law.
COUNSEL:Do you recall exactly what you said?
APPLICANT: But I couldn't — I may have said the wrong person got stabbed. It should have been me, is probably more — would have been my words, because that's how I felt at the time.
COUNSEL:So you would accept that the transcript from the dash cam recording would be a better …indication of what you said?
APPLICANT: …has discrepancies in it.
COUNSEL:Well, you would accept that a recording …of what you said is going to be more accurate - - -?
APPLICANT: Am I on trial again for this offence?
COUNSEL:Well, just answer - - -
TRIBUNAL:Mr Brown, it's a straightforward question. Your — there is a transcript evidence —
APPLICANT: Well, I've accepted that the transcript is wrong.
TRIBUNAL:There is just the transcript evidence is that you said, "I stabbed the wrong person"?
Are you saying your recollection now - - -?
APPLICANT: I would never have said that I stabbed the wrong person because I didn't even know if I had stabbed anyone at that time.
TRIBUNAL:So again, that transcript is wrong there, is it?
APPLICANT: ---Yes. Yes. Just - - -
…
COUNSEL:Okay. Well, you got to the police station and you gave a statement to the police?
APPLICANT: I did ring the police on the way and said, I think I've stabbed somebody.
COUNSEL:Okay?
APPLICANT: I got the police station. I tried to tell them what had happened. I felt — I mean, I was upset because me father-in-law had just been stabbed. I thought my brother had done it. I couldn't understand why he had done it, but then I couldn't understand, why would he have done it? And then thought that, well, I must have done it, and I was just totally confused with the whole situation. I couldn't think properly. I suffer from bad anxiety, depression, and so my head was just spinning. I got to the police station, and the police continued to just say to me, you know you did this, you know you did that, did you know you did this? And it was never — they weren't ever asking. They were always implying.
…
COUNSEL:Yes. You called someone in the car and you said:
I need to go to Rockingham. I'm going to be arrested so I need to talk to the Rockingham Police Station. It's a —
and then you say:
…
I don't want — I just want to die. My life's fucking gone anyway because I stabbed the wrong person. It should have been my piece of shit brother.
Hello. Hello. Hello. Tony, what's happened, man?
…
And then it says:
I just stabbed Ray —
Ray being your father-in-law?
APPLICANT: Ray — yes, Ray Wormal. Ray.
COUNSEL:You say:
I'm fucked, mate. Yes, I — yes, I stabbed him. He was the only person that was actually fucking helping me, half-decent, you know. He — he attacked me.
Do you accept that that's an accurate representation of what you said?
APPLICANT: No. Okay?---Definitely not.
COUNSEL:So it's another time the transcript is incorrect?
APPLICANT: Well, yes. I would have to say yes. I've never — I've never, ever said that I stabbed my father-in-law. I've always been doubtful about it.
In relation to the stabbing of his brother, the Applicant’s evidence at the hearing was:[34]
[34] Transcript at 33.
COUNSEL:If I can take you to the statement of material facts for the grievous bodily harm conviction. That's at page 55. In this police statement of material facts, it states that:
A verbal altercation occurred ... Mr Wormal ... during which he grabbed the accused by the throat. The accused reached into his pants pocket, removed the knife and stabbed him three times, puncturing his chest near a nipple, his arm and his abdomen.
COUNSEL:Then Mr Brown, that's I believe your brother, assisted the victim by grabbing you around your body, and he was stabbed as well, punctured in the chest. Do you accept that that's the way it actually happened?
APPLICANT: No
COUNSEL:Now, at the time you were on protective bail conditions?
APPLICANT: That's correct.
COUNSEL:And you weren't to act in an intimidatory manner towards your brother?
APPLICANT: That's correct.
COUNSEL:Yes. But you accept that you stabbed your brother during that time?---
APPLICANT: No. Well - - -?---I definitely didn't stab my brother. I know that for a fact.
COUNSEL:You pled guilty to that, didn't you?
APPLICANT: I was told to. And I would rather plead guilty to something that I haven't done, get four years, to plead not guilty and — and get found guilty, anyway, because of all the lies and - -
…
COUNSEL:Your father-in-law also sustained a number of broken ribs from the incident, didn't he?
APPLICANT: As far as I know of what I've read, well, I guess so.
COUNSEL:And the police attributed that to the force that the knife went in, and your fist followed?
APPLICANT: Well, I don't believe that.
In a similar vein the Applicant disputes the comments at paragraph 30 of the statement of reasons for the reviewable decision[35] wherein the delegate referred to the sentencing judge’s comments that the Applicant had previously been aggressive towards his wife and that on the day of the offending had become so enraged that he hardly knew what he was doing. The Applicant says that these comments ‘are both completely false’.
[35] R1, G12/39.
The Tribunal does not accept the Applicant’s version of events. The assertions made by the Applicant in his response to the G documents and at the hearing are belied by the evidence and the unequivocal admissions made by the Applicant’s counsel at the time of sentencing. When it was pointed out to the Applicant that his denial of making any threat to his ex-wife on the day in question was disproved by the transcript of the recording from the dash camera, the Applicant claimed that the transcript was fabricated. The Tribunal does not accept that.
In any event, apart from not believing the Applicant when he now claims that he was not exercising free will when he stabbed Mr Wormal, and that he did not stab his half-brother, the Tribunal cannot go behind or impugn the convictions or the essential facts on which they were based. In the present case the cancellation of the Applicant’s visa was based on the Applicant’s convictions on 8 May 2018 for grievous bodily harm and unlawful wounding with circumstances of aggravation (see [6] and [7] above and R1, G3/7).

Justice Moshinsky in NDBR v Minister for Home Affairs[36] at [47] said:
I accept the proposition that, where a conviction or sentence, or both, are the foundation of the exercise of a power vested in the Minister, it is not open to the Tribunal, when reviewing the decision of the Minister, to impugn or go behind the conviction or sentence or both (as the case may be): see Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 39 ALR 649; 5 ALD 135 at 138-139 per Fisher and Lockhart JJ; Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 42 ALR 209; 63 FLR 441 at 445-446, 449-450 per Fox J, at 468-469 per Sheppard J; SRT at [40]-[48] per Branson, Lindgren and Emmett JJ; Ali at [42] per Branson J; LFF at [42] per Beach, McLeish and Niall JJA. As noted by the applicant, these cases were helpfully reviewed by Bromberg J in HZCP at [41]-[77].
[36] [2019] FCA 1631.
As noted by Moshinsky J in the above passage, Justice Bromberg in HZCP v Minister for Immigration and Border Protection[37] at [41] to [77] summarised the relevant authorities and, at [78], concluded:
I would respectfully adopt the distillation of the case law described by Beach, McLeish and Niall JJA in LLF. On that basis the applicable principles are these:
(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
[37] [2018] FCA 1803.
The essential facts upon which the convictions and sentences were based were set out by Sleight DCJ in his sentencing remarks cited at [36] above and they are the facts upon which this Tribunal proceeds.
In relation to the Applicant’s other offending being the driving offences, the stealing of a motor vehicle, the possession of an offensive weapon and the disorderly behaviour, the Respondent submits that regard should be had to the cumulative effect of the Applicant’s repeated offending (13.1.1(1)(f) of Direction 79). While it is the case that none of these other offences of which the Applicant has been convicted is particularly serious, it is the case that he has repeatedly offended since he was around 18 years old.
Also as the Respondent points out, the Applicant has provided false or misleading information to the department in the past on his incoming passenger cards.[38] The Applicant was asked about the false declarations on the incoming passenger cards at the hearing. His evidence was unconvincing and contradictory. While the Applicant conceded that he had signed the declaration on the passenger cards, he on three occasions made the point that his ex-wife, not he, had filled out the incoming passenger cards[39] in what appeared to be an attempt to blame her for the false information contained on the cards. Somewhat contradictorily, his evidence also was that he thought when the passenger card asked ‘Do you have any criminal convictions?’ it was asking whether he had been sentenced to a term of imprisonment.[40] That, in the Tribunal’s view, is not a credible explanation.
[38] R1, G16.
[39] Transcript at 19.
[40] Transcript at 20.
Either way, the Tribunal is satisfied that the Applicant made the declarations in the incoming passenger cards knowing them to be false. This is a factor that weighs against the Applicant in considering the nature and seriousness of the Applicant’s offending (Paragraph 13.1.1.(1)(g) of Direction 79).
The Tribunal finds that the nature and seriousness of the Applicant’s offending is to be viewed as very serious. As noted by the Respondent, the grievous bodily harm and unlawful wounding, being crimes of violence, must be viewed as very serious under paragraph 13.1.1(1)(a) of Direction 79. Further the stabbing of Mr Wormal, a violent crime against a vulnerable member of the community (para. 13.1.1(c)) must be viewed seriously. The imprisonment sentences imposed by the court for those crimes of four and a half years (para. 13.1.1(d)), the frequency of the Applicant’s offending, with a trend of increasing seriousness (para. 13.1.1.(e)) and the cumulative effect of the repeat offending (para. 13.1.1(f)) cause the Tribunal to treat the Applicant’s criminal offending as being very serious. This weighs heavily against the revocation of the cancellation of the Applicant’s visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (13.1(2)(b))
Paragraph 13.1.2 of Direction 79 provides:
(1) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a. The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b. The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Senior Member Dr M Evans in CZCV and Minister for Home Affairs[41] (CZCV) summarised the task for the Tribunal as follows:
56.In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]- [43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
[41] [2019] AATA 91.
In BSJ16 v Minister for Immigration and Border Protection[42] Moshinsky J stated, at [68]:
…there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.”
[42] [2016] FCA 1181.

The Tribunal agrees with and adopts the approach indicated in the above cases.
Nature of harm to individuals or the Australian community (13.1.2(1)(a))
The nature of the harm to individuals and to the community if the Applicant were to offend violently as he has in the past is obvious and serious. As noted by Sleight DCJ, the injuries that Mr Wormal suffered were of such a nature as to be likely to endanger life or cause permanent injury to health if not for medical treatment.
The Applicant’s poor driving record is also of concern. It is, in the Tribunal’s view, indicative of the Applicant having little regard for the law generally.
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (13.1.2(1)(b))
In his Personal Circumstances Form[43] the Applicant seeks to explain his stabbing of his former father-in-law and half-brother on depression, anxiety and trauma problems in his life. He says that he is seeking counselling and that his offending was out of character.
[43] R1, G24/102.
The Applicant says that he does not believe that he will re-offend as he has never believed good comes from committing crimes and is disgusted by his crimes. He enjoys helping people and seeing the joy that that gives. The letters of support provided by the Applicant[44] support that claim to a degree.
[44] R1, G27.
While in prison the Applicant completed the Stopping Family Violence Program (A2).
The Tribunal asked the Applicant about that program:[45]
[45] Transcript at 43.
TRIBUNAL:Can you just tell me about what that — it's called Stop Family Violence?
APPLICANT: Yes. So it was basically recognising — recognising our — our offending behaviour, recognising like — like predicting failure and — yes, I can't really remember at all, sorry. It was basically trying to — so we had to do a map and write down everything that lead up to our offending behaviour and then try and recognise what were — what were our main failures, you know, what was — yes, where all the mistakes were that lead us up to that offending behaviour.
TRIBUNAL:And when you undertook that exercise what did you identify in the map — mapping process as being the failures that lead - - -?
APPLICANT: My — my biggest failure — well, I've always known that I've had, you know, anxiety and trauma issues, but when I did that program it made me realise how — how extensive my anxiety has been. You don't really — I didn't believe that the program was going to work initially to be honest, but, yes, it opened my eyes and I, yes, I really, really got a good insight on how — how much my anxiety has had an impact on my life. So from that I've — I've now finally got a form of counselling and I'm on medication, also, to help with the anxiety, but I have — even though, as I said before, that I — I — there's no PSSO order made — if I do get to stay here, I have written a letter to the Parole Board requesting that — or asking them if there's any programs that I can do through them, even though I won't be on their records as a paroled prisoner, to help me manage my anxiety for future — you know, to — to be able to, like, move forwards in life.
TRIBUNAL:So, in relation to your anxiety, what role do you think that — when you're talking about the offending, presumably, we're talking about 19 November 2015?---
APPLICANT: Yes,…I think a big –
TRIBUNAL:I think it was interesting, your comment that this was to identify the mistakes that you made. What — did you identify that?
APPLICANT: I think — I think my — look, I think it was, like — well, obviously, the failure, you know — so when — obviously, when my father-in-law answered the door he was there in an agitated state because of what I had told Family Court. I should have really just jumped in my car and gone then, you know, but I think because of — I think that was my anxiety. I was — I was — so I wanted to try and tell him that I didn't make those allegations about him and that it was his —his daughter that made those allegations, and I only repeated what she said to the court, and I — I just wanted to make that clear with him, because I know that I would have gone away thinking that he thought that it was me that had made those allegations, and that's sort of how my anxiety affects me. I think, also, with the actual offence itself, I — I — I've always got fear there. I fear about even the unknown, or even if it's not going to happen I still have that fear of it happening.
…
TRIBUNALBut in relation to the offending, it's interesting, in your description, when — I understood the exercise to be to identify the mistakes that you made, but in describing the incident of the 19th you were actually still portraying your father-in-law as being the aggressor. Do you still not … have any insight into any offending on your part?
APPLICANT: Look, I mean, I — I can — look, as — as far as, you know, my fear and all that, I — the problem is I — I cannot remember actually stabbing my father-in-law — is my biggest problem. As much as I try to remember, I cannot actually remember stabbing him. What has made it even harder to believe that I've done it, even though I've accepted it — my hand — I'm right-handed. The joint in my right wrist — there's no cushioning there. How I was — impossible to stab someone with such force. Well, it's impossible, but either way, look, my — I've accepted it because I know how bad my anxiety is. I've accepted it because I knew how bad my depression had been at the time. You know, and I just believe that — I believe of the possibility, I guess, you know, but either way, doing the offence map and seeing your — all these different things that had happened in my life up to that day — I — I was able to see the possibilities that says, yes, I must have done that, you know, or, yes, I did do that, you know, but there's still that underlying problem of me not remembering it. However, with the — with that course that I did, now knowing how to map things out, I believe that that will help me avoid any situations escalating any further than — well, any further than, you know, what I see on that bit of paper, I guess, or when I start mapping things out and — because that's how I plan to do — is just write every day, you know, like a diary, and if I start seeing any of these discrepancies, you know, in this diary of— you know, "Look, they're hot thoughts," or, you know, "That's predicting failure," or, you know, things like that — I will know then that, obviously, something is wrong that could be leading up to something, and so now I've got the skill to enable me to pull back from that and, you know - - -
In closing submissions the Respondent’s counsel commented on the Applicant’s rehabilitation, and more particularly on the course that the Applicant had undertaken, as follows:[46]
If the Applicant did attend that program, his evidence was that he couldn't remember what it was covered other than drawing this map and that identifying his mistakes, he identified the mistakes of his father-in-law, again, playing down his own actions and demonstrating a lack of any insight. Whilst the applicant says he accepts what happened, his evidence clearly is to the contrary.
[46] Transcript at 50.
The Tribunal agrees with the Respondent’s counsel’s characterisation. Both in his written submissions and his evidence at the hearing, the Applicant, while claiming that he accepted responsibility for what he had done, did exactly the opposite. He repeatedly, in effect, denied having committed the offences of which he has been convicted and to which he pleaded guilty, and sought to blame others for the situation in which he finds himself today whether that be the victims of his crimes or the lawyers representing him. The Applicant has little insight into his offending behaviour and does not take responsibility in any real sense for his actions. His description of what he has learned from the course that he undertook while in prison provides no indication that there has been any real rehabilitation.
The Tribunal is aware that the Applicant was denied parole by the Prisoners Review Board. There were, however, no documents before the Tribunal relating to this refusal. The Tribunal assumes that parole was not granted because the time at which the Applicant became eligible for parole was only a matter of weeks after he was sentenced and he had not at that time undertaken any rehabilitation program. As much was confirmed by counsel for the Respondent.[47] The Tribunal does not consider the Applicant being refused parole as a relevant consideration in these circumstances.
[47] Transcript at 5.
The Tribunal accepts that the serious offences committed by the Applicant in

November 2015 might be considered to be out of character and were committed in circumstances where the Applicant was under stress. The various letters of support provided by the Applicant’s family and friends (see [30] above) suggest that that is the case. It is, however, of concern that the Applicant has such little insight into his offending behaviour and still seeks to deny culpability and to blame others. This does not augur well for meaningful rehabilitation.
In the above circumstances the Tribunal assesses the Applicant’s likelihood of reoffending as moderate to medium. The harm that would be caused if the Applicant were to repeat the offending that he has engaged in in the past as serious. The Tribunal finds that the first primary consideration weighs heavily against revocation of the cancellation of the Applicant’s visa.
Second primary consideration: Best interests of minor children in Australia affected by the decision (13(2)b))
Paragraph 13.2 of Direction 79 provides:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)    The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)    The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)    The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)    The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)    Whether there are other persons who already fulfil a parental role in relation to the child;
f)     Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)    Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)    Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has three daughters and a 16 year old niece. She is the daughter of his half-brother whom the Applicant stabbed. The Applicant concedes in his Personal Circumstances Form[48] that he currently has no contact with any of the children (see [26] above). Custody matters in relation to his children are presently before the Family Court. Before the breakdown of his marriage he had what he called a ‘close bond’ with his children. The letters of support also refer to that being the case.[49]
[48] R1, G24.
[49] R1, G27.
There was reference in the evidence at the hearing to there being a violence restraining order in respect of the Applicant’s three daughters and the daughter of his half-brother being in place.[50] This appears to be the order issued by the Rockingham Magistrates Court in February 2018.[51] This, however, on the face of that document, appears to have expired on 9 February 2020.
[50] Transcript at 36.
[51] R2/107.
Included in the documents produced under summons (R2) were Detected Incident Reports prepared by WA Police which dealt with allegations that the Applicant had sexually abused two of his daughters and his niece. The Applicant was cross-examined in relation to these allegations. The Applicant strongly denied the allegations and said that his ex-wife had manipulated the children, his daughters and his niece, to make these allegations.
The Applicant confirmed that the police had attended Casuarina Prison and spoken to him about the allegations of sexual abuse. He thought that that interview with police had occurred sometime before May 2018.[52]
[52] Transcript at 42.
The allegations of sexual abuse are just that, allegations. There was no corroborating evidence and the police have not charged the Applicant with any such offending.

The Tribunal makes no finding on whether the Applicant abused his daughters and his niece. However, even if the Applicant’s assertion that his daughters and niece have been manipulated by his ex-wife into making these allegations, it is indicative of the total breakdown in the relationship between the Applicant and his ex-wife. This seemingly toxic dispute between the Applicant and his ex-wife, unfortunately, makes the likelihood of a normal, constructive and positive relationship between the Applicant and his daughters, if not impossible, at least less likely.
The Respondent points to the provisions of paragraph 13.2(4) of Direction 79 and contends that:
(a)the Tribunal should take into account the Applicant’s relatively long period of limited or no contact with the children (13.2(4)(a));
(b)the Applicant’s criminal history and the Applicant’s turbulent relationship with his ex-wife, particularly in light of the threat made to his ex-wife before the stabbings on 19 November 2015, are likely to have a negative impact on the children (paragraph 13.2(4)(b) and (c));
(c)there is no independent evidence of the effect that separation would have on the children given that they currently have no contact with the Applicant and there appears to be no impediment to the Applicant maintaining contact through electronic means if he were to be deported, assuming that such contact was permitted by the Family Court (paragraph 13.2(4)(d)); and
(d)
the Applicant’s ex-wife, the mother of his daughters, and the Applicant’s

half-brother fulfil parental roles in relation to the three daughters (paragraph 13.2(4)(e)).
and contends that little weight should be given to this consideration.
In relation to the other minor child, the 16 year old daughter of his half-brother, the Respondent contends that little weight should be given to this consideration due to the animosity between the Applicant and his half-brother. The Applicant’s evidence at the hearing, however, was that his niece had visited him with her mother while he was in prison and that it was she who had advised him that his ex-wife had been manipulating the Applicant’s daughters to make allegations against the Applicant.
The Respondent contends that this consideration, the interests of minor children, does not weigh in the Applicant’s favour.
The Tribunal accepts that in normal circumstances the best interests of a child are served by having their father in their life. That norm is, however, diminished in the present case because of the factors identified by the Respondent as set out in [78] above and by the fact that, on the Applicant’s version of the circumstances, his daughters are, in effect, being used as a weapon against him by his wife. The children are the innocent victims in this circumstance.
In relation to his niece, the Applicant does not play any parenting role and, apart from visiting the Applicant in prison on one or two occasions, there does not appear to have been much significant contact between the Applicant and his niece. It is difficult to see how this child would be impacted by the Applicant’s removal from Australia.
The Tribunal finds that, on balance, the best interests of minor children in Australia would be served by revocation of the cancellation of the Applicant’s visa, however, finds that little weight should be given to this consideration for the reasons set out in [81] and [82] above.
Third primary consideration: Expectations of the Australian community (13(2)(c))
Paragraph 13.3 of Direction 79 provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Tribunal also refers to the principles and expectations set out in paragraph 6.3 of Direction 79 (see [17] above).
The proper construction of paragraph 13.3 of Direction 79 has been the subject of much judicial analysis. The starting point for most of the recent analysis was Justice Mortimer’s decision in YNQY v Minister for Immigration and Border Protection[53] (YNQY). The two approaches that emerged following her Honour’s decision in YNQY were the so-called broad approach of the type taken by Griffiths J in DKXY v Minister for Home Affair[54] (DKXY) and the so-called narrow approach of the type taken by Perry J in FYBR v Minister for Home Affairs[55] (FYBR) (for an analysis of those approaches see [99]-[114] of Pinder and Minister for Home Affairs[56]).
[53] [2017] FCA 1466.
[54] [2019] FCA 495.
[55] [2019] FCA 500.
[56] [2019] AATA 1398.
That debate as to which approach is correct appears to have been resolved by the

Full Court of the Federal Court in FYBR v Minister for Home Affairs[57] (FYBR (FC)).

The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’ – expressing

‘an expectation deemed by the government to be held by the Australian community’ (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[58] (Rehman).
[57] [2019] FCAFC 185.
[58] [2019] AATA 4424.
As Member Burford put it in Rehman:
173.It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view deeming the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold the visa. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or “deemed” in the Direction, they weigh against revocation with respect to “serious crimes”.
174.However, it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.

The Tribunal finds that the Applicant has committed serious, violent crimes and that the Australian community would expect that the Applicant should not hold a visa, that is, that the cancellation of his visa should not be revoked. This weighs against the revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
Paragraph 14 of Direction 79 provides:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant.These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
International non-refoulement obligations (14(1)(a))
The Tribunal finds that there are no non-refoulement obligations owed by Australia to the Applicant and that this is, therefore, not a relevant consideration in this matter.
Strength, nature and duration of ties (14(1)(b))
Paragraph 14.2 of Direction 79 is as follows:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a. How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b. The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant arrived in 1986 as a 12 year old child with his adoptive parents. He has lived in Australia ever since. He lists his adoptive parents, his two brothers, two aunties, four cousins and an ex-sister-in-law as being close relatives, other than his children, living in Australia.[59]
[59] R1, G24/101.
The Tribunal gives weight to the fact that the Applicant arrived in Australia as a child.

The Tribunal also gives weight to the fact that the Applicant has been gainfully employed for most of his adult life and has through that employment, including running his own business (see [30(b)] above), contributed positively to the Australian community.
Having lived in Australia for the last 34 years, all his social links are in Australia. It does not appear that anyone is financially dependent on the Applicant. It is clear that he is well thought of by those who provided letters of support.[60] There was no evidence, however, of the impact that the Applicant being removed from Australia would have on any of those who gave letters of support. Some of those who provided those letters expressed the view that the best interests of his daughters would be served by them being able to have contact with their father. Some also expressed concern as to the Applicant’s ability to establish himself in the United Kingdom if he were to be deported and that his deportation would cause the Applicant anguish.
[60] R1, G27.
This consideration weighs in favour of the revocation of the cancellation of the Applicant’s visa.
Impact on Australian business interests (14(1)(c))
The Applicant made no submissions on this consideration and the Tribunal finds that it is not relevant in this matter.
Impact on Australian community including victims (14(1)(d))
Paragraph 14.4 of Direction 79 provides:
(1) Impact of a decision not to revoke on members of the Australian community, including the victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
As this Tribunal has noted in previous matters (Berryman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[61] Sach and Minister for Home Affairs[62] and Palmer and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[63]) the above paragraph directs the decision-maker to consider the impact of a decision not to revoke cancellation of the visa on members of the Australian community, including the victims. That is curious given that a decision not to revoke the cancellation of the visa would result in the non-citizen being removed from Australia. It is not clear how the offending non-citizen being forced to leave Australia would impact victims, other than positively.
[61] [2020] AATA 421.
[62] [2019] AATA 5173
[63] [2020] AATA 88.
The Tribunal adopts the course taken in the above matters. The considerations listed in paragraph 14 of Direction 79 are not exhaustive and the Tribunal assumes, in any event, that paragraph 14.4(1) was meant to direct the decision maker to consideration of the impact of revoking the cancellation rather than not revoking the cancelation. The Tribunal therefore considers the former consideration.
Insofar as the broader Australian community is concerned, there is no evidence of what impact the deportation of the Applicant would have. The only letter of support[64] which refers to there being any impact, other than an impact on his daughters and on the Applicant, is the letter provided by the Applicant’s cousin’s partner who says that the Applicant’s family and friends will suffer a ‘great loss’ if he is deported.[65]
[64] R1, G27.
[65] R1, G27/112.
Considering the impact of the Applicant remaining in Australia, that is considering the impact of revoking the cancellation of the Applicant’s visa, fairly obviously the interests of the victims would be served by the Applicant’s visa remaining cancelled and the Applicant being removed from Australia as that would effectively reduce to zero the possibility of the Applicant re-offending against those victims. While there are lifetime violence restraining orders against the Applicant communicating with or approaching Mr Wormal, the Applicant’s half-brother Kenneth and the Applicant’s ex-wife,[66] the Applicant has in the past failed to adhere to protective bail conditions and there obviously remains the possibility that he will breach the violence restraining orders.
[66] R1/101-106.
Unfortunately there was no evidence put before the Tribunal as to the attitude of the Applicant’s victims to his remaining in Australia. The Tribunal finds that given the nature of the offences committed against the Applicant’s above identified victims, the fact that, as far as the Tribunal is aware, the victims still reside in Western Australia and given the Tribunal’s finding that the Applicant has not adequately addressed and has little insight into his offending behaviour and the fact that the Applicant has in the past breached orders prohibiting him approaching one of his victims, the victims’ best interests would be served by not revoking the cancellation of the Applicant’s visa.
The Tribunal finds that this consideration weighs against the revocation of the cancelation of the Applicant’s visa.
Extent of impediments if removed (14(1)(e))
Paragraph 14.5(1) of Direction 79 provides:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen’s age and health;
b) Whether there are substantial language or cultural barriers; and
c) Any social, medical and/or economic support available to them in that country.
In the Impediments to Return section of his Personal Circumstances Form[67] the Applicant identified his medical conditions as asthma, eczema, anxiety and arthritis. He identified his then current medication as being Panadol Osteo, for his arthritis, and Ventolin for his asthma. He did not identify any current treatment administered by a medical practitioner.
[67] R1, G24/104.
In that document in response to the question of whether he had any concerns or fears about returning to the United Kingdom, the Applicant responded that he would lose the direct moral support that he needs and would go backwards in his life development due to his anxiety, stress and depression being exacerbated.[68] In response to the question whether there were any other problems that he would face if he were to be returned to the United Kingdom, the Applicant advised that he had no family in the United Kingdom, and that his family in Australia provided him with moral support and he was a very family oriented person.[69]
[68] R1, G24/104.
[69] R1, G24/105.
At the hearing the Tribunal asked the Applicant about his medical condition. The Applicant said that in addition to his eczema, asthma and anxiety, he also had an issue with his right wrist for which he had received a cortisone injection at Bunbury Hospital. He thought that it might be gout or carpel tunnel related. In relation to medication, the Applicant advised that he was taking some medication at night which helps him ‘switch off’ but he did not know what it was. He is not being seen by the doctor in the prison although he had asked for counselling but there had been difficulties with arranging counselling because of his being moved from Casuarina Prison to Bunbury Regional Prison.[70]
[70] Transcript at 45.
Direction 79 requires the Tribunal to consider impediments in the Applicant establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of the United Kingdom. This is to be assessed taking into account the Applicant’s age, health, language or cultural barriers and any social, medical and economic support that would be available to him.
The Tribunal accepts that his removal from Australia would have an impact on the emotional state of the Applicant. While the Tribunal accepts that there may be some impediments to the Applicant establishing himself, there is no evidence that he would not be entitled to the same social and medical services available to other citizens of the United Kingdom. The Applicant is not an old man and was working up to the time of his arrest. While he suffers from some medical conditions, there was no evidence that they would be an impediment to the Applicant working. There are obviously no language barriers and there are unlikely to be, and the Applicant has not argued that there would be, cultural barriers in the Applicant establishing a basic standard of living.
This consideration does no weigh in favour of the revocation of the cancellation of the Applicant’s visa.
The Weighing Exercise
Guidance is given by Direction 79 as to how the decision-maker should apply the primary and other considerations. Paragraphs 8(3), (4) and (5) of Direction 79 are relevant. They provide:
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While these cases were generally looking at that exercise under Direction 65, the same considerations apply to the exercise required by Direction 79 which is materially in the same terms. The leading case in this regard is Suleiman v Minister for Immigration and Border Protection.[71] (See also the Full Court of the Federal Court decision in Minister for Home Affairs v HSKJ[72]).
[71] [2018] FCA 594.
[72] [2018] FCAFC 217; (2018) 363 ALR 325.
Senior Member Dr M Evans in CZCV at [164] summarised the legal position following the various cases referred to above as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving another consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so.
This Tribunal agrees with the approach taken by Senior Member Dr Evans.
Looking at the first primary consideration, the protection of the Australian community, the relevant consideration is whether the risk is an unacceptable one taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the behaviour and the likelihood of that occurring. For the reasons set out above, the Tribunal finds that the likelihood of the Applicant re-offending is moderate to medium and that the harm that would be caused would be serious. The Tribunal finds that in the present case this consideration weighs heavily against of revocation of the cancellation of the Applicant’s visa.
The second primary consideration, the best interests of minor children, the Tribunal finds that the best interests of minor children in Australia would be served by revocation of the cancellation of the Applicant’s visa, however, finds that little weight should be given to this consideration for the reasons set out in [81] and [82].
The third primary consideration, the expectations of the Australian community, weighs against the revocation of the cancellation of the Applicant’s visa.
In relation to the “other considerations”, the consideration of strength, nature and duration of the ties that the Applicant has to Australia (Direction 79 paragraph 14(1)(b)), weighs in favour of the revocation of the cancellation of the visa. The consideration of the impact on Australian community, including victims (14(1)(d)), weighs against the revocation of the cancellation of the visa and the consideration of the impediments that the Applicant would face if he is returned to the United Kingdom (14(1)(e)) does not weigh in favour of revocation and is, at best for the Applicant, neutral.
Having undertaken the weighing of the consideration for and against the revocation of the cancelation of the Applicant’s visa, the Tribunal finds that the considerations which weigh against the revocation of the cancellation of the visa in particular the first primary consideration, the protection of the Australian community, outweigh the considerations which weigh in favour of the revocation of the cancellation of the Applicant’s visa. Accordingly, the Tribunal finds that there is not another reason why the original decision should be revoked.
DECISION
The decision of a delegate of the Respondent made on 17 December 2019 not to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return (Permanent) visa under s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.

I certify that the preceding 121 (one hundred and twenty -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

.................................[sgd]..................................
Associate
Dated: 24 March 2020

Date(s) of hearing: 13 March 2020

Applicant: In person

Counsel for the Respondent: Mr A Burgess

Solicitors for the Respondent: Sparke Helmore Lawyers
ANNEXURE – APPLICANT’S CRIMINAL RECORD

Jurisdiction

Offence Date

Court Date

Offence

Court Result

WA

30.07.1991

16.10.1991

No motor vehicle driver’s license.

Fine: $100 License disqualified: 3 months

WA

Unknown

15.10.1993

Stealing- motor vehicle

Probation: 12 months

WA

18.07.1994

19.07.1994

Blood Alcohol Content excess 0.08%

Fine: $300 License disqualified: 9 months

WA

Unknown

20.06.1996

Possess offensive weapon

Fine: $250

WA

14.06.1996

20.06.1996

Dangerous driving

Fine: $200

WA

02.09.1997

25.03.1998

No motor driver’s license

Fine: $50

WA

16.08.1999

14.10.1999

No motor vehicles driver’s license- under fines suspension

Fine: $400 License disqualified: 9

months

WA

14.09.2001

20.11.2001

No motor vehicles driver’s license- under fines suspension

Fine: $400 License disqualified: 9

months

WA

01.08.2004

21.09.2004

Careless Driving

Fine: $250

WA

21.02.2009

19.10.2009

Fail to pass to left of turning vehicle

Fine: $100

WA

24.03.2009

20.08.2010

No authority to drive- disqualified/suspended

Fine: $400

License disqualified: 9 months

WA

29.07.2015

15.02.2018

Disorderly behaviour in public

No punishment

WA

14.11.2015

14.11.2015

Threats towards victim

72-hour police order issued

WA

19.11.2015

08.05.2018

Breach of protective bail conditions

Imprisonment: 6 months served concurrently from 19.11.2015.

WA

19.11.2015

08.05.2018

Grievous bodily harm

Imprisonment: 4 years concurrent from 19.11.2015

Family Violence Restraining Order for: Mr Raymond John Wormal,
Mr Kenneth John Brown and Ms Carly Sue Brown.

WA

19.11.2015

08.05.2018

Unlawful wounding with a circumstance of aggravation

Imprisonment: 6 months cumulative from 19.11.2015

Date(s) of hearing:	13 March 2020
Applicant:	In person
Counsel for the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers

Jurisdiction	Offence Date	Court Date	Offence	Court Result
WA	30.07.1991	16.10.1991	No motor vehicle driver’s license.	Fine: $100 License disqualified: 3 months
WA	Unknown	15.10.1993	Stealing- motor vehicle	Probation: 12 months
WA	18.07.1994	19.07.1994	Blood Alcohol Content excess 0.08%	Fine: $300 License disqualified: 9 months
WA	Unknown	20.06.1996	Possess offensive weapon	Fine: $250
WA	14.06.1996	20.06.1996	Dangerous driving	Fine: $200
WA	02.09.1997	25.03.1998	No motor driver’s license	Fine: $50
WA	16.08.1999	14.10.1999	No motor vehicles driver’s license- under fines suspension	Fine: $400 License disqualified: 9 months
WA	14.09.2001	20.11.2001	No motor vehicles driver’s license- under fines suspension	Fine: $400 License disqualified: 9 months
WA	01.08.2004	21.09.2004	Careless Driving	Fine: $250
WA	21.02.2009	19.10.2009	Fail to pass to left of turning vehicle	Fine: $100
WA	24.03.2009	20.08.2010	No authority to drive- disqualified/suspended	Fine: $400 License disqualified: 9 months
WA	29.07.2015	15.02.2018	Disorderly behaviour in public	No punishment
WA	14.11.2015	14.11.2015	Threats towards victim	72-hour police order issued
WA	19.11.2015	08.05.2018	Breach of protective bail conditions	Imprisonment: 6 months served concurrently from 19.11.2015.
WA	19.11.2015	08.05.2018	Grievous bodily harm	Imprisonment: 4 years concurrent from 19.11.2015 Family Violence Restraining Order for: Mr Raymond John Wormal, Mr Kenneth John Brown and Ms Carly Sue Brown.
WA	19.11.2015	08.05.2018	Unlawful wounding with a circumstance of aggravation	Imprisonment: 6 months cumulative from 19.11.2015