Brownlie and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 1485

Brownlie and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1485 (26 May 2021)
Division:GENERAL DIVISION
File Number: 2021/1356
Re:Stephen Brownlie
APPLICANT

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

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:26 May 2021
Place:Melbourne

The Tribunal affirms the decision under review.
........[sgd]................................................................
Senior Member A. Nikolic AM CSC
Catchwords
MIGRATION – mandatory visa cancellation – citizen of the United Kingdom – Class BF Transnational (Permanent) visa – failure to pass good character test – substantial criminal record – alcohol and drug abuse issues – family violence – violent crimes – drug and dishonesty offences – conditional liberty offences – whether another reason to revoke the mandatory cancellation – Ministerial Direction no. 90 applied – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Bushell v Repatriation Commission (1992) 175 CLR 408
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
FYBR v Minister for Home Affairs [2020] HCA 056
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Hughes v The Queen [2017] HCA 20
HVLC v Minister for Home Affairs [2019] FCA 616
Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461
Meyrick v Minister for Home Affairs [2020] FCA 677
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Murphy v Minister for Home Affairs [2018] FCA 1924
Say v Administrative Appeals Tribunal [2020] FCA 1489
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Viane v Minister for Immigration and Border Protection (2018) 162 ALD 13
Secondary Materials
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Sentencing Advisory Council, Imprisonment < FOR DECISION
Senior Member A. Nikolic AM CSC
26 May 2021

The Applicant, Mr Stephen Brownlie, seeks review of a decision not to revoke the mandatory cancellation of his Class BF Transitional (Permanent) visa (the visa).
The hearing was held on 12 and 13 May 2021 by audio-visual link. The Applicant was represented by Mr Tony O’Donoghue of counsel. The Minister was represented by Mr Christopher Orchard, a lawyer with Sparke Helmore.
For the following reasons, the Tribunal affirms the decision under review.
BACKGROUND
The Applicant is a citizen of the United Kingdom[1] and arrived in Australia with his parents at the age of three.[2] He has lived here ever since, but never became an Australian citizen. The Applicant’s parents divorced when he was a teenager. His mother, who he was close to, died approximately five years ago. His father lives interstate with a new partner and their minor child. The Applicant’s father suffers from a terminal illness and, after many years of estrangement, resumed contact with the Applicant approximately a year ago. The Applicant also has an adult son, three siblings, and other relatives who live in Australia.[3]
[1] Exhibit R1, 38.
[2] Ibid, 116.
[3] Ibid, 46.
The Applicant has an extensive criminal history since he was a juvenile,[4] related to long term abuse of alcohol and illicit drugs. He first came to the attention of authorities at the age of 14 for theft and received a 12-month accountable undertaking.[5] His latest conviction on 1 October 2020 was for Unlawful assault at the age of 39. The Applicant has been found guilty of approximately 180 offences. A Corrections Victoria file note, which he did not dispute, states that he has been in prison custody 18 times since 1998.[6]
[4] Exhibit R2, 447-455.
[5] Ibid, 455.
[6] Exhibit R1, 111; Exhibit R2, 447–455.
The Applicant has been issued two warnings by immigration authorities as follows:
(a)In 2000, at the age of 19, the Applicant escaped from a youth training centre where he was serving 12-months’ detention.[7] He was recaptured and following convictions on 23 October 2001 for Attempted armed robbery and Theft, was sent a letter advising him that his visa was liable for cancellation.[8] The Applicant submits he never received this letter, which stated that because of his age it was decided not to consider cancellation at that time, but he should note:
…that cancellation of your visa may be considered in the event of further or fresh information coming to notice. Your visa may also be cancelled in the event of you incurring a liability for cancellation on new or different grounds. Any disregard of this warning will weigh heavily against you if you again come to notice.[9]
(b)In October 2008, the Applicant was sent a formal counselling letter while imprisoned, following multiple convictions earlier that year (2008 warning letter). These included two counts of Recklessly cause serious injury, Unlawful assault, Burglary, Theft, four counts of Fail to answer bail, Possession of a drug of dependence, and dishonesty offences. The Applicant accepts he received this letter, which stated in part:
The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in fresh consideration of the cancellation of your visa. The consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia and, in certain cases, bars on re-entering Australia.[10]
[7] Exhibit R2, 90.
[8] Exhibit R1, 117.
[9] Ibid, 117.
[10] Ibid, 119.
The Applicant continued to reoffend after receiving the 2008 warning letter and was convicted of multiple criminal offences in every year between 1998 and 2020, except for 2016 and 2019, during which he was imprisoned.
On 29 March 2018, the Applicant was convicted of Assault police officer, Make threat to kill, Unlawful assault, Commit indictable offence whilst on bail (four charges), Contravene a conduct condition of bail (four charges), Fail to answer bail (two charges), Theft-from shop (shopsteal) (five charges), and Attempt theft. He was sentenced to an aggregate term of 12 months’ imprisonment, to be served by way of a Drug Treatment Order (DTO). On 23 August 2018, the Applicant was found to have breached the DTO, which was cancelled. He was re-sentenced to serve the unexpired balance of 263 days imprisonment.
On 20 February 2019, the Applicant’s visa was mandatorily cancelled by a delegate of the Respondent under s 501(3A) of the Migration Act 1958 (the Act) (the cancellation decision).[11] The delegate was satisfied the Applicant had a substantial criminal record and was then serving a sentence of full-time imprisonment.[12]
[11] Ibid, 121-125.
[12] Ibid, 136.
On 19 March 2019, the Applicant made representations to have the cancellation decision revoked.[13] Further correspondence passed between the Respondent and Applicant regarding the visa cancellation process until November 2020.[14]
[13] Ibid, 33-86.
[14] Ibid, 209-223.
In May 2019, the Applicant was released from prison and taken into immigration detention where he has since remained.
On 3 March 2021, the Respondent decided not to revoke the cancellation decision (the non-revocation decision). The Applicant was advised of this by letter dated 4 March 2021.[15] He asked the Tribunal to review the non-revocation decision on 8 March 2021.[16]
[15] Ibid, 6-7; 27-28.
[16] Ibid, 1-5.
Pursuant to s 500(6L) of the Act, the Tribunal must discharge its review function within 84 days of the Applicant being notified of the non-revocation decision in accordance with s 501G(1). The 84^th day in this matter is 31 May 2021.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review non-revocation decisions.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), requires the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act, with s 501(6)(a) stating:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or …
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record, including if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
Under s 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and to invite the affected person to make representations. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
Direction 90
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. The Direction must be applied by all decision-makers, except for the Minister acting personally, such as the Minister’s delegates and the Tribunal.[17] On 8 March 2021, the Minister signed Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.[18] Both parties submitted that the Tribunal is bound to comply with the new Direction.[19]
[17] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
[18] Direction, cl 2-3.
[19] Applicant’s Statement of Facts, Issues and Contentions (ASFIC) dated 23 April 2021, 2 [8]; Respondent’s Statement of Facts, Issues and Contentions (RSFIC) dated 30 April 2021, 4 [17].
The Tribunal is not constrained to the evidence before the original decision-maker and must engage with the material currently before it.[20] There are no accrued rights under the
[20] Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J).
now-revoked Direction 79 and, pursuant to s 499 of the Act, the Tribunal finds it is bound to apply Direction 90 in these reasons.
The following principles in cl 5.2 of the Direction provide a framework within which
decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a

decision-maker must take into account the considerations identified in clauses 8 and 9, where relevant to the decision.
Clause 8 of the Direction identifies the following as primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The best interests of minor children in Australia; and
(d)Expectations of the Australian community.
Clause 9 of the Direction identifies a non-exhaustive list of other considerations:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests.
Clause 7(1) provides that, when taking the relevant considerations into account, ‘Information and evidence from independent and authoritative sources should be given appropriate weight.’
Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[21]
[21] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461 at [57]:
… the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
DOES THE APPLICANT PASS THE CHARACTER TEST?
Because of his March 2018 convictions and the imposition of a sentence exceeding the threshold statutory period of 12 months, the Applicant does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision.
ISSUE TO BE RESOLVED
It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the cancellation decision should be revoked. In Viane v Minister for Immigration and Border Protection[22], the Federal Court reflected on this task as follows:
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
EVIDENCE
[22] (2018) 162 ALD 13, [64] (Colvin J).
Documentary evidence
The documents taken into evidence at the hearing were:
(a)G-documents numbering 257 pages;[23]
[23] Exhibit R1.
(b)Tender bundle of material obtained under summons numbering 455 pages;[24]
[24] Exhibit R2.
(c)Five-page report from the Department of Justice dated 10 August 2018 to the Magistrate ahead of the Applicant’s hearing on 23 August 2018;[25]
(d)Three-page undated and unsigned document from the Applicant lodged with the Tribunal on 23 April 2021 and titled: Submission on the impact of the Applicant’s deportation on his son;[26]
(e)Email dated 30 April 2021 containing a letter from the Applicant’s adult son;[27]
(f)Email containing a statement from the Applicant’s father;[28]
(g)Undated single-paged statement from the Applicant’s nephew;[29]
(h)Two undated and unsigned letters from the Applicant titled ‘Medication Chart’ and ‘Drug and Alcohol Counselling Appointments and Documentations;’[30]
(i)One-page Medication Chart from the International Health and Medical Services dated April 2021, referring to three medications currently taken by the Applicant;[31]
(j)Email to the Applicant from Western Australia’s Mental Health Commission dated 21 April 2021 titled ‘Alcohol resources for you’ with accompanying materials;[32]
(k)Email from a United States-based online course provider called UniversalClass Portfolio Service, referring to the Applicant’s participation in an online course titled Drug and Alcohol Abuse 101;[33] and
(l)Email without identifying date from a business owner purporting to offer the Applicant employment as a service station attendant in Western Australia.[34]
[25] Exhibit R3.
[26] Exhibit A1.
[27] Exhibit A2.
[28] Exhibit A3.
[29] Exhibit A4.
[30] Exhibit A5.
[31] Exhibit A6.
[32] Exhibit A7.
[33] Exhibit A8.
[34] Exhibit A9.
Witnesses
The Applicant, his son, and father were the only witnesses called to give evidence at the hearing.
Applicant’s evidence
Mr O’Donoghue submitted that notwithstanding the Applicant’s past crimes, he had ‘realised the failure of his ways’ during the last seven months in immigration detention. Mr O’Donoghue said ‘one can’t be certain if the alleged new Stephen Brownlie would perform to that standard,’ but invited the Tribunal to find the Applicant would ‘live the life he aspires to’ as a result of developed insight and renewed motivation to change the course of his life. Mr O’Donoghue said the Applicant’s ‘clearly changed behaviour’, determination to continue rehabilitation, and long-term ties to Australia, constitute a ‘determinative reason’ to set aside the reviewable decision.
The Applicant’s oral evidence occupied most of the two hearing days. In addition to his statement, which he adopted as true and correct, the Tribunal has considered his earlier documentary materials.[35]
[35] Exhibit R1, 33-68; 71-73; 79-82.

The Applicant has lived in Australia since the age of three. He agreed that his offending commenced while a teenager in Western Australia and continued throughout adulthood because of persistent alcoholism and drug abuse. The Applicant said he has been on the Methadone Program for approximately 20 years, and while ‘other substances’ are involved, alcohol has been his ‘main issue for a long time.’
The Applicant said he previously worked with the railways and as a bricklayer, but has primarily relied on Centrelink payments, including the Disability Support Pension (DSP) since 2013. No independent evidence to corroborate his past work claims or the reasons for the grant of a DSP were provided.
The Applicant does not dispute the contents of his criminal history[36] or the remarks of the Melbourne Magistrates’ Court dated 23 August 2018.[37] He agreed that he has been convicted of multiple criminal offences almost every year since 2000. He claimed, however, that there have been periods of his life when he was ‘sober, medicated, and law-abiding.’ When asked to identify these, the Applicant conceded they were ‘very brief’.
[36] Ibid, 87-95.
[37] Ibid, 99-109.
The Applicant claimed to have been very intoxicated when committing many of his crimes. In addition to illicit drug use, he routinely consumed a large bottle of vodka daily. He could not recall many of his crimes but agreed his offending involved violence, dishonesty, drugs, and repeated breaches of conditional liberty. The Applicant was asked about many offences and examples of his responses follow:
(a)The Applicant claimed that a conviction for Recklessly cause serious injury in 2008[38] resulted from ‘getting into a bit of a scuffle’ with a security guard. When put to him during cross-examination that this conviction related to a much more violent incident in September 2006,[39] the Applicant said this was possible, claiming he was hit from behind and reacted in self-defence. He agreed, however, there was no reference to him being struck first in the police report. He also agreed that he stabbed the victim in the face and head with a paint scraper, and that his then four-year-old son was accompanying him when this incident took place;
[38] Ibid 453.
[39] Exhibit R2, 71.
(b)The Applicant agreed he was once barred from a pharmacy, stating he ‘over-reacted’ by making a threat to kill after not receiving his methadone dose.[40] The Applicant said he was drunk and ‘a different person when drinking’;
(c)When asked about a reported violent incident with a former partner and her son in June 2013,[41] the Applicant said some aspects of the report were accurate, but he denied grabbing the child by the throat, pushing him up against a car, or making threats to the former partner. He claimed that when he subsequently spoke to this former partner, he realised police were ‘trying to push an IVO agenda’ and make him out to be a bad person. He stated: ‘Me and the police have had several run ins – some of these police are not nice people;’
(d)When asked about a 2014 conviction for Contravene Family Violence Order,[42] for which he was imprisoned, the Applicant stated: ‘I think the breach was regarding a phone call.’ When asked what led to the IVO, he responded: ‘A bit of an argument took place, but nowhere near what [former partner] is claiming.’ When asked why his son’s mother would have taken out an IVO because of an argument, the Applicant replied: ‘That’s something you’d have to ask Ms [name redacted]’. He attributed an improper motive to his former partner later in his evidence claiming she ‘wanted full custody’ and falsely portrayed him in a bad light by making claims about physical violence that were ‘total nonsense…false…made up;’
(e)In relation to an incident involving a subsequent partner in December 2015,[43] the Applicant again attributed a false motive for an IVO taken out against him:
We were all drinking…we had an argument in the kitchen. I said a few things, she said a few things…[the IVO]…was vindictive on her part...No threats were made to her…Police were called, we were spoken to for a few minutes and then they left’
(f)The Applicant said he met this woman at a rehabilitation centre, and she had ‘a lot of mental health problems.’ He said she and her mother took IVOs out against him and the latter remains in place until 2022. In an incident involving the same woman in June 2017,[44] the Applicant denied punching her to the head and the other conduct attributed to him, stating he was not charged. He agreed there had been an argument, but claimed it was the woman who first ‘became aggressive.’ He accepted that he ‘tried to stop her’ by grabbing her arm, but only to recover his phone from her bag and stated: ‘there was definitely no assault…I got my phone and she left…I’m not denying yelling and carrying on, but it’s not as severe as she made out.’ When asked if he knew the woman was subsequently taken to hospital to treat a cut to her head, the Applicant said he knew she had gone to hospital, but not what for;
(g)The Applicant ‘vaguely’ recalled a conviction for Threat to inflict serious injury in 2015, stating: ‘I let my temper get the better of me;’
(h)The Applicant was asked about an IVO taken out by a young female supermarket employee after a 2017 incident. He claimed she had spoken inappropriately to his son by accusing him of theft, after which he had his ‘two bobs’ worth.’ The Applicant said he ‘assumed she felt intimidated and took out the order’. He conceded that his conduct was aggressive but denied the reference in the police report that he gestured with his fingers as if shooting a gun at her head or claiming to be a member of an outlaw motorcycle gang;
(i)The Applicant was asked about a report prepared for a court in 2018 referring to an incident at his sister’s residence. The report stated police were called ‘for the purposes of a family violence incident,’ and resulted in the Applicant not being able to continue living at his sister’s house.[45] The Applicant said he and his sister ‘had an argument,’ but he was ‘not sure’ if this was a family violence incident;
(j)In relation to an incident in April 2018 leading to his most recent conviction for Unlawful assault,[46] the Applicant said he was drinking with a group at Cranbourne and he and another man ‘both liked the same girl’ and tried to ‘act macho’ in her presence with a ‘bit of push and shove.’ He described another conviction for Make threat to kill in August 2018 as resulting from intoxication, when he became ‘hot-headed and said a few things [he] shouldn’t have.’ He ‘vaguely’ recalled it was to one of the supervisors of his DTO.
[40] Ibid, 67.
[41] Ibid, 29.
[42] Ibid, 449.
[43] Ibid, 159-160.
[44] Ibid, 145-146.
[45] Exhibit R3, 3 [Housing].
[46] Exhibit R2, 447.
When challenged about his assertion that ‘there was no violence committed to my family’, the Applicant explained he did not consider the mother of his son or his ex-girlfriends to be part of his family. The Applicant nevertheless accepted he committed family violence in the past, had intervention orders taken out against him, and that one order remains in place until March 2022.[47] He claimed that he was unaware two IVOs were in place when he ticked ‘No’ in response to a question about these orders in his March 2019 Personal Circumstances Form.[48]
[47] Ibid, 442 [Additional Comments].
[48] Exhibit R1, 48.
The Applicant was asked about his minor son being present during the commission of some crimes.[49] In relation to an incident involving dishonesty in a shop, the Applicant claimed: ‘he was at the place, but wasn’t aware what I was doing.’ The Applicant agreed, however, it was unacceptable to have his son present when he was committing crimes.
[49] Exhibit R2, 19.
The Applicant was asked by Mr O’Donoghue about references to him lashing out at police when drug or alcohol affected. He agreed he had done so but claimed police also assaulted him because he was well known and ‘not very well liked’ by them. The Applicant said he regrets his conduct, understands Police were just doing their job, and deserve respect.
The Applicant was asked about the Magistrate’s assessment in 2018 that he constituted a significant risk to the community when alcohol or drug affected. He agreed that he was a different person on these occasions. The Applicant was also invited to respond to a risk assessment by the Department of Justice in August 2019, which found him to be a ‘High’ risk of reoffending.[50] The Applicant said this was in his past, he had changed after entering custody in 2018, and no longer posed a risk to the community.
[50] Ibid, 249-251.
When asked about multiple incidents of misconduct while imprisoned, including drug diversion and other misconduct,[51] the Applicant claimed his behaviour had improved significantly after entering immigration detention. When asked about continuing incidents of misconduct in detention,[52] the Applicant said his good behaviour was more apparent in the last four months. When asked about an incident where a white and burgundy pill was discovered in his possession on 15 January 2021 while in immigration detention, the Applicant said the drug was not his said he had been asked to hold it for another detainee. He also agreed that he displayed aggressive and abusive behaviour to detention staff, and that a letter addressed to him was found to contain fifteen orange strips secreted in a card. He claimed to have no knowledge of who sent this card. In relation to another incident on 21 February 2020 where contraband was found in his cell, the Applicant said the ‘suboxone strip and white powder substance’ discovered belonged to the other detainee in his cell.
[51] Exhibit R1, 111; 205-206.
[52] Exhibit R2, 441; 443-446.
It was put to the Applicant that many of the incidents recorded in prison and immigration detention did not persuasively reflect the actions of a person who had changed their ways. The Applicant responded: ‘Serco are known to be very quick on the reports,’ and claimed that if you don’t act a certain way or help certain people in custody, you get ‘stood over.’ He said there are a ‘lot of violent people in here and sometimes you make bad choices.’ He considers, however, that he is a ‘lot more responsible now.’
The Applicant said he completed a two-year DTO in or about 2013 but agreed that he failed to complete the most recent DTO in 2018. The latter resulted in him serving the unexpired portion of his sentence. The Applicant was challenged about claiming to have successfully completed the first DTO, based on an entry in his criminal history dated 13 October 2014, which stated: ‘Treatment and supervision and custodial part of Drug Treatment Order cancelled.’[53] The Applicant cavilled at the suggestion he had ‘breached’ conditions on his first DTO, insisting these were properly termed ‘variations.’ He agreed, however, that he served several periods of imprisonment because of these ‘variations’, reflecting his failure to undertake counselling or comply with other DTO conditions. He was also referred to a Corrections Victoria record that referred to these incidents as ‘Breach DTO’ between June and September 2013.[54] He nevertheless insisted he completed the DTO and received a certificate ‘on graduation,’ but no longer had it.
[53] Exhibit R2, 449.
[54] Exhibit R1, 232.
The Applicant referred to ‘numerous treatments, classes, and counselling sessions’ undertaken in the past, but agreed he had not taken these seriously. He claimed it is only after entering immigration detention that he realised what he stands to lose, particularly being with his son and helping look after his terminally ill father. The Applicant claimed that since being imprisoned in July 2018 he had benefitted from courses focussed on relapse prevention and cognitive thinking. He also claimed to have undertaken a 12-steps program but agreed this ‘doesn’t appear in the list’ of courses recorded in custody.[55]
[55] Ibid, 111-115.
The Applicant said he participated in a Men’s Group in October 2020, which he explained was ‘a group environment’ where detainees talked about their situation. He said discussion focussed on preventing drug and alcohol relapse and included ‘cognitive thinking’ that enabled him to ‘think more about myself.’ When asked by Mr O’Donoghue how this Men’s Group stopped him drinking and taking drugs, the Applicant responded: ‘The course didn’t do that, being in custody did that.’ When asked about the ‘learnings’ he had gained, the Applicant said the Men’s Group assisted his anger management by ‘taking negativeness away’ and helping him accept what he’d done rather than trying to minimise it.
The Applicant was subjected to extensive questioning about evidence regarding the cancellation of his 2018 DTO. He accepted Mr O’Donoghue’s characterisation of this period of his life as ‘chaotic,’ and agreed he had not given the DTO a ‘good go.’ He said this was because his ‘drinking was still an issue’, and he was ‘finding it hard to adjust’ because of accommodation problems. He agreed that he was frequently intoxicated during the DTO but claimed drugs were not involved ‘at that stage.’ The Applicant said he contemplated cancelling the DTO because he ‘wasn’t ready’ and needed ‘something more suitable.’ He agreed that he had requested the DTO, which the Court granted.
The Applicant was challenged about his drug abstinence claims since being imprisoned in 2018, given that testing during the DTO disclosed numerous drug testing failures.[56] The Applicant explained that he meant to say he had ‘no drug problems’ rather than ‘no drug use,’ insisting that alcohol was always his main issue. It was put to the Applicant that his conduct during the DTO, despite close supervision, did not inspire confidence in his claims about insight, rehabilitation, and recidivism risk. He conceded that he was not on his ‘best behaviour during the DTO,’ but insisted his ‘situation now is completely different.’
[56] Exhibit R3, 3 [Testing].
The Applicant said he was currently sober, medicated, and better able to express his feelings. He again claimed that immigration detention was the catalyst for this transformation because losing everything in Australia was something he had never faced before. When challenged that the 2008 warning letter put him on notice about what he stood to lose with any further offending, the Applicant disagreed. He claimed variously that he did not understand the meaning of the letter, thought it was a ‘mix-up’ because he was already an Australian citizen, or did not take it seriously because of his addictions. When taken through key aspects of the letter, the Applicant said he understands the implications now, but did not at the time of receiving it. When asked if he rang the toll-free telephone number provided to make further enquiries, the Applicant said he had not, because he was a different person then and ‘didn’t care’ about such things. He also claimed other prisoners and prison officers told him the letter was a mistake and to ignore it. When put to the Applicant that his evidence was implausible, he disagreed. When pressed, he accepted that it was his responsibility to follow up on the letter rather than ignore it as he had done.
The Applicant said he intended to continue his rehabilitation if released and had made enquiries about services in regional Western Australia.[57] He wanted to get away from bad influences in Melbourne and where he was ‘not known to police.’ He considered that this was a ‘significant part of [his] rehab’ and would also enable him to help care for his father who has a terminal illness. He claimed to have been given an appointment the day after the hearing ended. This was corroborated in a subsequent letter from IHMS dated 18 May 2021, which stated the Applicant was now on a ‘waitlist’ for group and individual drug and alcohol counselling.[58] The Applicant said he also intends discussing with a doctor how to safely cease the Methadone he has taken for approximately 20 years, but only when he ‘felt comfortable.’ The Applicant agreed he was previously unable to cease Methadone and during the last few years in custody had increased his Methadone dose to 100mg daily.
[57] Exhibit A5 and Exhibit A7.
[58] Exhibit A10.
When asked if he thought his rehabilitation needs were ‘complex,’ the Applicant responded: ‘I don’t believe they’re complex – alcohol’s the main thing.’ He believed he was now ‘clear-headed’ and could overcome his addictions ‘this time’. When asked if he had a full driver’s licence to enable him to attend rehabilitation meetings in country Western Australia, the Applicant replied: ‘No.’ When asked how he would get to the rehabilitation location two hours’ drive each way, the Applicant responded: ‘I’m sure my father and his girlfriend will work it out between them.’ He also thought he may be able to catch public transport.
The Applicant’s submissions often returned to wanting to be a better parent to his now adult son. He claimed to have been a single parent for much of his son’s life, but in response to questions, clarified that his now deceased mother had guardianship of and cared for his son for protracted periods. The Applicant explained that when using drugs and alcohol he knew his mother would care for his son, and perhaps that caused him to take the child’s safety for granted. When challenged that he regularly put his own interests before his son, the Applicant responded with an outburst that he ‘may have had a few moments of drinking,’ but said the child was fed, clothed, and financially supported. He claimed to have always been there at sports training, games, and parent-teacher meetings. He said Human Services were never called and they would have intervened if he failed in his son’s care.
The Applicant agreed he had not enrolled his son in school for the entirety of Year 9. When asked why, he claimed his son was expelled from school. When asked if it had taken him a year to re-enrol his child, the Applicant responded: ‘I guess so, my lifestyle wasn’t exactly me being the greatest dad.’ The Applicant insisted he had not been ‘lazy’ as stated in a police report, however, claiming he had done his best, but ‘wasn’t in a position to be a good father.’ The Applicant agreed with the comment in the police report that he left his son at home alone each day from midday until 10:30 each night but disagreed this was so he could go and drink at Frankston. He claimed to have ‘attended several appointments’, took his then partner to lunches, and ‘numerous other things.’
The Applicant said the ‘perfect situation’ would be for his son to accompany him to Perth. Notwithstanding his son’s evidence about intending to remain in Melbourne, the Applicant was confident he could persuade him to move to Western Australia. He said this was important because he ‘needed to be there to father’ his son and ‘show him his mistakes.’ He claimed that his son was ‘easily influenced,’ has ‘learning difficulties’, and only returned to football because of the Applicant’s encouragement. When challenged that this did not reflect his son’s presentation and evidence at the hearing, the Applicant insisted his son had difficulties that only the Applicant could assist with. He claimed that his son was nervous and did not understand the questions being asked during his oral testimony. When challenged that his son had made a life for himself in Melbourne with a relationship, fulfilling work and sport, the Applicant insisted his son would leave that and accompany him to Western Australia. When asked what he would do if his son remained in Melbourne, the Applicant stated: ‘That’s something I’d weigh up. If [son’s name] needs me there, we’d work it out as a family.’
When asked about being able to provide for himself if released, the Applicant said there were no medical conditions stopping him from working. He claimed to have previously been diagnosed with bipolar disorder, for which he receives medication. There is no expert corroboration of this diagnosis, however, and besides his daily Methadone dose, the current evidence shows he takes two other medications for ‘symptoms of depression.’[59]
[59] Exhibit A6.

In terms of financial support, the Applicant said he had relied for most of his adult life on Centrelink payments. He claimed there had been periods of work many years ago, but he was now determined to return to the workforce and had been offered a job at a service station where his father’s new partner works.[60]
[60] Exhibit A9.
The Applicant said Australia is his home and he has no family or other support in the United Kingdom. He believes it will be difficult finding work in a country that he has no memory of, and would arrive there with ‘no money, no job, no ties, no car.’ When asked if he thought he would be treated any differently to other UK citizens if returned, the Applicant said he did not know and was unaware of how to apply for support.
Evidence of the Applicant’s son
The witness adopted his statement as true and correct. Due to his restricted availability, he was interposed, and his evidence heard before the Applicant’s. The Tribunal found him to be a genuine and impressive young man who has successfully overcome significant obstacles in his life. His oral evidence is summarised as follows:
(a)The witness lost contact with his mother from about the age of three until approximately 13. He then decided he ‘wanted to see Mum,’ contacted her, and subsequently lived with his mother for approximately two years in country Victoria. She has three other children with another partner and the witness periodically returned to live with her for shorter periods, including after the breakdown of her relationship. At 16 years of age, however, he returned to live with the Applicant in Melbourne in approximately 2018. The Applicant was soon imprisoned, however, and has remained in custodial settings since;
(b)The witness said that while growing up he recalled living predominantly with the Applicant in Melbourne. His paternal grandmother looked after him for extended periods until she died five or six years ago, but he still talked to his grandfather. At other times he resided with two paternal aunts for periods of up to six months and on some weekends with a paternal uncle;
(c)The witness said he has little to do with his paternal grandfather in Western Australia and last talked to him in November or December 2020. He knew that his grandfather was ‘very sick’ and thought it may be ‘tumours in the head.’ When asked by Mr O’Donoghue about potential relocation to Western Australia with his father, the witness said he intended to remain in Melbourne where he had a girlfriend, worked, and played football. He had always lived in Melbourne and thought the Applicant might go to Western Australia for two months at most. The witness was unaware of a job offer the Applicant had received in Western Australia.
(d)In terms of schooling, the witness completed Year 10 high school but left during Year 11 to commence work. He did not have any diagnosed conditions or learning difficulties, never repeated a year at school, and said he was ‘good’ at English, Maths, and sports. The witness recalled that while growing up, the Applicant attended his football and basketball games and was ‘sometimes a water boy’ at these games. The witness discussed leaving school with the Applicant, who was by then in immigration detention. The Applicant supported this decision, stating: ‘whatever is best for you;’
(e)When asked about the Applicant’s work history, the witness responded: ‘He hasn’t worked for while.’ When asked when the last time was, the witness responded: ‘Probably when I was a toddler.’ He explained this was because the Applicant was ‘in and out of jail, making bad choices;’
(f)During cross-examination, the witness was referred to a police report dated December 2015, which stated that he was ‘left to fend for himself…[and]…hasn’t attended school for some time although he wants to. States Brownlie just too lazy to enrol him.’ The witness said he attended Years 7 and 8 while living with his mother in country Victoria but then did not attend school for an entire year after relocating to live with the Applicant in Melbourne, and ‘missed Year 9.’ The witness agreed the Applicant left their home daily around noon with his then partner and returned around 10:30pm each night. The witness explained ‘every day Dad left for his appointments – he had to get his medication[61]…and would chill in Frankston for the day.’ The witness said he knew this was the case, because ‘once in a blue moon I’d go with him and chill in Frankston for the day’;
[61] The Tribunal understood the reference to ‘medication’ to be the Applicant’s Methadone dose.
(g)In terms of his life since the Applicant’s most recent imprisonment in 2018, the witness said about 18 months ago he moved in with his girlfriend. He gets up around 04:45am each day and said he has ‘turned [himself] into a man’ by living independently and holding down the same job for almost a year. He does hard physical work and often feels ‘pretty sore and tired.’ His girlfriend and her parents motivate him to work and he is employed at the same location as his girlfriend’s stepfather. The witness earns approximately $600 weekly, which is sufficient for his needs and to provide a small financial contribution to his girlfriend’s mother. The witness continues to play football. He has been selected as captain of football teams in the past and aspires to play professionally. He also has plans to commence an apprenticeship as a carpenter or builder;
(h)Approximately two months ago, the witness moved back in with a paternal aunt and her son, so he and his girlfriend ‘could have some space.’ Notwithstanding practical living issues in a two-bedroom unit, he described this as a ‘really good’ arrangement, including because he and his cousin are ‘best friends’;
(i)When asked by Mr O’Donoghue to elaborate on the effect that the Applicant’s absence was having on him, the witness responded: ‘just that he’s away from me.’ When asked to elaborate further, the witness said he was upset and angry that the Applicant could not be with him, describing him as: ‘pretty much my best mate.’ He kept in contact with the Applicant during the last three years by visiting him whenever possible and through frequent telephone conversations. The witness said during these conversations they discuss sports and other issues;
(j)The witness agreed he has not seen the Applicant face-to-face for approximately two-and-a-half years and found this very difficult. When asked by Mr O’Donoghue to elaborate, the witness responded: ‘It’s bringing me down that he’s not here.’ When asked how it would help him if the Applicant was released, the witness responded: ‘It would just be 10,000 times better, I need my dad back.’ When asked what sort of activities they would do, he responded: ‘We’ve always been home people and would watch movies, go to lunch, we’d do things every single day;
(k)During cross-examination, the witness was asked about police reports in evidence relating to the Applicant’s involvement in domestic violence. This included:
(i)An incident in December 2014, where the Applicant reportedly became drunk and punched the witness’s mother in the back and in the back of the head, while the witness and the victim’s two other children were present. The witness said he had no recollection of this incident and was ‘not too sure’ what the relationship was between the Applicant and his mother, or whether she had previously taken out IVOs against him;
(ii)An incident in December 2015,[62] which he recalled the circumstances of. He agreed that he called police and informed them he ‘didn’t want to be there that night,’ but explained this was not because he did not want to be with the Applicant, just not on that night because of the Applicant’s drinking and arguing. He had stayed elsewhere that evening but subsequently returned to live with the Applicant. The witness said he had no knowledge about the references in police reports to IVOs being taken out by police to protect him;
(iii)An incident in June 2016,[63] which the witness had no memory of. He accepted the police report was accurate and said he previously called the police for such matters. When asked why he felt assistance from police was required, the witness explained it was ‘mostly the arguing’ and he was ‘worried for my dad that he was going to do anything worse;’ and
(iv)An incident in a supermarket in February 2017.[64] He agreed that he was at a supermarket with the Applicant and a female employee accused him of stealing. The witness agreed he spat on the floor and accused the female employee of ‘discrimination.’ He recalled that the Applicant then became involved and drew the attention of security staff. The Applicant said he could not remember the Applicant gesturing at the female employee’s head with his hand as if holding a gun.
(l)In response to questions from Mr Orchard, the witness said the Applicant had ‘always been a drinker,’ but insisted ‘he doesn’t drink heavily.’ The Tribunal does not accept this given other more persuasive evidence about the Applicant’s lifelong alcoholism. The Tribunal interpreted this aspect of the witness’s evidence as an understandable desire to reflect positively on the Applicant, which lacked objectivity. The witness was asked difficult questions about his past circumstances, which he handled in a composed and thoughtful way. He agreed that the Applicant had acted violently in the home, explaining it was ‘alcohol based’ and the ‘littlest things’ would set him off when drunk. When the witness was 16, he told the Applicant to stop drinking but he had failed to do so. Now that he is ‘a bit older,’ he thought the Applicant would listen to him;
(m)If the Applicant could remain in Australia, the witness said they would resume living together. When asked where that would be, the witness said it would be around Phillip Island. He had discussed this with the Applicant who responded: ‘sounds perfect’ and that it was ‘totally [the witness’s] decision’ where they lived. When asked by Mr Orchard if they discussed relocating to live in Western Australia, the witness responded: ‘No.’ When put to the witness that this was because the life he had made for himself was in Victoria, he responded: ‘Correct.’
(n)If the Applicant was returned to the United Kingdom, the witness said this would affect him ‘ten times worse’ and he would ‘have to talk to someone about [his] feelings’. When pressed about what he would do in this circumstance, he responded: ‘I’d keep moving on.’
[62] Exhibit R2, 159-60.
[63] Ibid, 152.
[64] Ibid, 12.
Evidence of the Applicant’s father
The Applicant’s father, who lives in Western Australia, gave evidence by telephone. He was interposed towards the end of the first hearing day due to appointments the next day. The witness adopted his statement as true and correct.
The witness said he had lived in Western Australia for 22 years since separating from the Applicant’s mother when the Applicant was 13 or 14 years of age. The Applicant moved with him and remained in Western Australia for 18 months before returning to Melbourne because he missed his mother and other siblings. The witness is aware of the criminal offences committed by the Applicant as a juvenile in Western Australia. He was not aware of the Applicant’s subsequent criminal history, however, because they had ‘very limited’ contact after he moved to Melbourne and then no contact for many years.
In subsequent years, the witness said he has re-partnered and now has a 10-year-old child. The Applicant has not previously met his new partner or child, but they have spoken on the telephone in the last year. When asked how contact was resumed, the witness said his eldest daughter told him the Applicant was in immigration detention in Perth. The witness contacted the Applicant and they have talked frequently by telephone since. He has not visited the Applicant, however, because the Applicant thought it would be too upsetting to have a reunion ‘behind glass’ and without physical contact.
The witness said he has been diagnosed with a terminal illness and has a life expectancy of approximately five years. He produced a letter from his treating specialist dated 18 May 2021, which the Tribunal accepts.[65]
[65] Exhibit A11.
The witness said he and his wife would ‘gladly welcome’ the Applicant into their home and expected he would assist them. The witness said he has a vehicle licence and currently drives, but that may change as his health inevitably worsens. He and his wife currently travel to Perth for medical appointments and shopping about ‘every three weeks.’ He thought the Applicant could help with this. He was not aware if the Applicant had a driver’s licence.
The witness said his wife worked full-time and their son was at school, meaning he was often at home alone. He hoped the Applicant could schedule work hours, so someone was always at home to assist him. His wife’s employer had offered the Applicant work as a service station attendant and was confident a satisfactory shift arrangement could be agreed. He envisaged the Applicant staying with him for the next five years. The witness said he is aware of the Applicant’s long-term alcohol problems, but insisted there would be no alcohol in their home because he and his wife ‘wouldn’t permit it.’
The witness said he is aware the Applicant has a son in Melbourne and had ‘rung him a few times for a good chat’ during the last few months. He said the Applicant’s son ‘is working and seems to be doing fine.’ When asked if the Applicant leaving his son in Melbourne without a father figure was in his son’s best interests, the witness responded: ‘No.’
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Clause 8.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Clause 8.1.1 of the Direction sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)    violent and/or sexual crimes;
(ii)   crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)    causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)   crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
Tribunal consideration: The nature and seriousness of the conduct
The Tribunal has considered the remarks of the Melbourne Magistrates’ Court dated 23 August 2018.[66]
[66] Exhibit R1, 99-109.
The Applicant concedes he has a ‘lengthy criminal record which has a cumulative effect.’[67] He referred to the ‘majority of his offending in the last 10 years,’ however, as ‘petty crime involving shop thefts (bottle shops), altercations with authority figures…’. Mr O’Donoghue’s submissions highlighted the Applicant’s lifelong residence in Australia as enlivening the principle that ‘Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age’: cl 5.2(4).[68] It was further submitted that ‘any conduct that lasts 25 years is serious,’ but that much of the Applicant’s criminal conduct was of a ‘minor nature,’ driven by ‘chronic substance abuse,’ and the ‘custodial terms imposed were largely less than 12 months.’[69]
[67] ASFIC, 3 [16].
[68] Ibid, [15].
[69] Ibid, [17]-[18].
Mr O’Donoghue conceded the Applicant had re-offended frequently, including after the 2008 warning letter, which was a ‘mark against him’. He contended, however, that the Applicant was alcohol and drug free since his imprisonment in 2018 and acknowledged by the Court as an ‘insightful and intelligent person when free of alcohol and drugs.’[70] He said the Applicant would continue his rehabilitation if released and had ‘made contact with the Salvation Army in respect of a rehabilitation programme…in…Western Australia where [the Applicant] wishes to live with his father.’[71]
[70] Ibid, [21].
[71] Ibid, [23].
Mr Orchard submitted that the Applicant’s offending was ‘serious, repeated, escalated,’ and weighed heavily against him. This included repeated violence against police and in a family violence context. He said the Applicant’s claims that police discriminated against him and have an ‘IVO agenda,’ should be of concern to the Tribunal. Mr Orchard submitted that the Applicant’s conduct displayed a ‘complete and utter disregard’ for police, the courts, and rehabilitative services who were trying to help him.
Tribunal findings: The nature and seriousness of the conduct
The Applicant first came to the attention of authorities for theft at the age of 14, for which he received an ‘accountable undertaking for 52 weeks’.[72] He has reoffended frequently since, being found guilty of approximately 180 offences between 1998 to 2020. He has repeat offending in several categories as follows:
(a)Violent crimes. The Applicant has been convicted of multiple offences involving violence, the threat of violence, or possession of weapons, which are viewed very seriously: cl 8.1.1(1)(a)(i) of the Direction. These include recklessly cause serious injury, armed robbery, make threat to kill, threaten to inflict serious injury, possess prohibited weapon, assault, and assault with weapon. He has threatened others and possessed weapons like a machete and a knife.[73] In 2006 while at a train station with his son, the Applicant repeatedly stabbed a victim to the head and face with a paint scraper.[74] The Applicant has also been convicted of assaulting, resisting or hindering police in 2000, 2005, 2010, 2014, and 2018, which is viewed seriously: cl 8.1.1(1)(b)(ii) of the Direction;
(b)Violent crimes against women. It is uncontested the Applicant has committed crimes of a violent nature against women, which is viewed very seriously regardless of the sentence imposed: cl 8.1.1(1)(a)(ii) of the Direction. This includes contravening family violence intervention orders, unlawful assault, and threat to kill;[75]
(c)Conditional liberty offences. The Applicant escaped from a Youth Training Centre in 2001 and has frequently breached court orders. This includes failing to answer or contravening bail conditions in 2000, 2004, 2005, 2007, 2008, 2010, 2012, 2014, 2015, 2017, 2018. He has also contravened Community Based, Community Corrections, Suspended Sentence, Community Work, and DTOs;
(d)Drug offences. The Applicant has been convicted of trafficking heroin, possessing other drugs of dependence, and obtaining prescriptions through false representation. He has also engaged in drug-related misconduct in custodial settings;
(e)Dishonesty offences. The Applicant has been found guilty of perjury and multiple dishonesty offences since 1995. The latter includes burglary, theft of motor vehicles, deal property suspected proceeds of crime, obtain property by deception, attempt to obtain property by deception, theft from shops, and handle / receive / retain stolen goods;
(f)Public nuisance, damaging property and driving offences. These include behave in riotous manner whilst drunk, criminal damage (intend damage or destroy), wilfully damage property, public drunkenness, behave in offensive manner in public place, use insulting words in public place, use obscene language in public place, damage/disorderly, use threatening language, spit on/from vehicle, spit on railway premises, deposit litter on railway premises, possess open container of liquor on railway premises, and place feet on furniture in carriage.
[72] Exhibit R2, 455.
[73] Ibid, 75; 77; 83-84; 87-88; 94; 98; 134-35; 145-46.
[74] Ibid, 71.
[75] Ibid, 12; 448 [29 March 2018].

The Applicant has offended frequently, repeatedly landing him in prison custody since 1998. Imprisonment is the harshest penalty in our criminal justice system.[76]
[76] See for example: Sentencing Advisory Council, ‘Imprisonment,” <
A trend of increasing seriousness is apparent and the cumulative effect of the Applicant’s offending during the last twenty years has caused considerable harm to the community: cl 8.1.1(1)(e) of the Direction. This includes harm to the victims of his crimes and the costs of law enforcement, court appearances, and imprisonment.
The Applicant has reoffended frequently since being formally warned in writing in 2008 about the consequences of further offending:[77] cl 8.1.1(1)(g) of the Direction.
[77] Exhibit R1, 119.
The persistent nature and seriousness of the Applicant’s offending reflects a contumacious disregard for Australia’s law enforcement framework and the rights of others. This weighs very substantially against revocation.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction states:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Clause 8.1.2(2) of the Direction relevantly provides that in assessing the risk posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
This aspect of the Direction requires the Tribunal to assess the risk the Applicant poses to the Australian community in the event he reoffends, taking into consideration both the nature of any harm and its probability. In Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, Katzmann J reasoned at [59] that the ‘risk of harm posed by the conduct in which the person has engaged in is obviously relevant to the risk…he might in the future engage in.’ In Murphy v Minister for Home Affairs [2018] FCA 1924 at [37], Mortimer J explained:
That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community… of how serious the risk was, or whether the risk should be “tolerated.”
The High Court held in Guo that past actions can be legitimate predictors of future behaviour.[78] The majority observed, however, that past events ‘are not a certain guide’ and, depending on circumstances, the probability of an event occurring could be so low as to be ‘safely disregarded,’ or at the other extreme ‘may border on certainty.’ The majority also observed there are a number of factors arising in making such evaluations, and that it is ‘ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed about past events.’[79]
[78] Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, 578-579.
[79] Guo at 574-575.
In Hughes v The Queen [2017] HCA 20 (Hughes), Nettle J observed that evidence of a past offence ‘is not, of itself, significantly probative’ of the committing of another offence:
Without more, it establishes only that the accused is the kind of person who has committed an offence. To make evidence of previous offending or misconduct significantly probative of a subsequent offence there needs to be something more about the nature of the offences or the circumstances of the offending in each case…[80]
[80] Hughes at [154].
In Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132, Mortimer J reasoned at [78] that:
…[t]he nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending.
During the Applicant’s appearance in the Melbourne Magistrates’ Court on 23 August 2018, a report about his engagement with a DTO was provided to the Court, which stated:[81]
[81] Exhibit R3.
Having been deemed suitable for a Drug Treatment Order on the basis that he reside with a pro-social family member, Mr Brownlie commenced his DTO on the 29/03/2018…
…
During his appointment on 11/04/2018 Mr Brownlie…advised of an alleged family violence incident at his current address and spoke about his frustrations with his housing situation.
…
On 17/04/2018 at his next Court review, Mr Brownlie was given a warning for timeliness, not to bring people to DCH, to be polite respectful and punctual and not to take prescription medication unless prescribed…
…
On 27/04/2018 the writer and the Officer in Charge (OIC) served Mr Brownlie with a notice of expectations as a result of his non-attendance, aggressive behaviours and honesty. Mr Brownlie presented as very annoyed with his case manager as he "couldn't believe the CM was doing this to him at this time" given that he had just been evicted from his property. After this appointment, the Operations Manager (OM)…advised this service that Mr Brownlie had left a plastic bag under a chair in the waiting room. OM retrieved this bag during the appointment and noted that it contained a paper cup, orange juice and a three quarters full 700ml bottle of vodka. Mr Brownlie presented at reception on completion of his appointment and requested the bag be returned, OM had discussions around the seriousness of bringing alcohol into DCH.
…
Mr Brownlie's next appointment was rescheduled due to safety concerns, with this service speaking with Mr Brownlie over the counter due to his interactions at DCHAP the week prior. On this day this service also spoke with Mr Brownlie over the phone and was advised that his behaviours with DCHAP had been unacceptable. Mr Brownlie took on this feedback extremely well and was open to addressing this moving forward.
At his next court review hearing, Mr Brownlie's sanctions were activated as a result of his behaviours towards the DC team. Upon his release, Mr Brownlie met with both the OIC and OM for the purposes of going over the notice of expectations documentation again and to reinforce the core requirements of the DTO.
…
On 22/05/2018 Mr Brownlie again contacted DC stating that he had a medical certificate and would be unable to attend Court. His review date was adjourned to the following day, however no contact was made by Mr Brownlie and no medical certificate provided. As a result, a warrant was issued for Mr Brownlie's arrest.
Due to Mr Brownlie's failure to hand himself in on the warrant, his DTO was suspended on 07/06/2018. This service had no contact with Mr Brownlie, until his subsequent arrest on 15/07/2018 for the warrant and alleged further offending.
Throughout Mr Brownlie's time on the DTO, he was subject to therapeutic responses such as homework and Court observations, which Mr Brownlie failed to attend. When asked about this he advised that he had bigger problems and this was the last thing on his mind. Due to the chaos in Mr Brownlie's life at this time, he was provided an extension on his homework to further assist him however this was never provided to the DC team...
Testing
Mr Brownlie has tested on thirteen (13) occasions. Throughout the DTO he has admitted to Alcohol on six (6) occasions, Cannabis on ten (10) occasions, Benzodiazepines on two (2) occasions, Valium on three (3) occasions, Methamphetamine on two (2) occasions, Lyrica on one (1) occasions and Lexapro on one (1) occasion.
He also failed to admit Methamphetamine on two (2) occasions and Alcohol on one (1) occasion.
Mr Brownlie failed to test on nine (9) occasions. Medical documentation was provided on two (2) of these occasions.
…
At DTO commencement, Mr Brownlie was living with his sister...
While he had initially stated that residence was a positive one, on 11/04/2018 this service was made aware by Mr Brownlie that an alleged family violence incident had occurred at the home. Checks with police confirmed they had attended the address on 10/04/2018 for the purposes of a family violence incident.
Mr Brownlie was referred to DCHAP to assist with housing issues and to allow Mr Brownlie to work towards his own accommodation. On 11/04/2018 DCHAP workers placed Mr Brownlie in emergency accommodation at the…Motel, however Mr Brownlie was asked to leave this accommodation the next day due to smoking in the hotel room. Mr Brownlie was then placed at the…Motor Inn.
On 13/04/2018 DCHAP contacted…Caravan Park who advised there was a vacancy however Mr Brownlie's application was unsuccessful. As a result DCHAP advised that Mr Brownlie would be continue to be motelled at the…Motor Inn…over the weekend.
At this time DCHAP advised this service that Mr Brownlie had been requested to attend at DCHAP at 9:30AM but did not attend until 12:30PM. Mr Brownlie was advised by DCHAP at this time that he must attend on time in order to work effectively. This service also received information from DCHAP Mr Brownlie had been rude to DCHAP staff. He remained at the…Motor Inn until the 15/04/2018.
On 16/04/2018 DCHAP advised that Mr Brownlie had an appointment with a landlord in Dandenong….
On 17/04/2018 this service received information that Mr Brownlie had been involved in a verbal altercation with another WAYYS client in the waiting area. Information received stated that Mr Brownlie was verbally abusive and physically stood over the woman in a concerning way. Three (3) workers asked Mr Brownlie to vacate the building. Due to safety concerns, Mr Brownlie was seen over the reception counter. On this night Mr Brownlie was again motelled at the…Motor Inn.
Mr Brownlie returned to DCHAP on the 18/04/2018 and apologised to staff for his behaviour, noting that he acknowledged that his alcohol use fuels his anger. He was again motelled on this night. He remained at the motel until the 21/04/2018, on which date he was due to move into a studio apartment in Cranbourne.
On 26/04/2018, this service received notification that Mr Brownlie had been evicted from his property in Cranbourne. This service contacted the police who confirmed they had attended the property the night prior to evict Mr Brownlie.
Mr Brownlie attended DCHAP on 27/04/2018 and was advised that there was no further assistance DCHAP could provide as a result of being evicted from his property three (3) days after being provided $2240 for bond and rent in advance. Information received indicated that Mr Brownlie then began to raise his voice and tell DCHAP the eviction was illegal. Records indicate that Mr Brownlie then began to interact with another client, which escalated to Mr Brownlie asking the other client to a fight. As a result DCHAP asked Mr Brownlie to leave, which he ignored.
DCAP contacted 000 and requested police attend…Mr Brownlie then left the building and continued his verbal aggressive behaviour for a further five (5) minutes. Police attended after Mr Brownlie left and took statements from DCHAP workers.
On 30/04/2018 Mr Brownlie attended DCH advising his intention to return to DCHAP, he was advised by his Case Manager that he may be turned away due to his previous presentation to that service…
As a result of his behaviours Mr Brownlie's sanctions were activated on 02/05/2018 and he was placed into custody for eight (8) days.
On 08/05/2018 this service was advised that DCHAP will only see Mr Brownlie at DCH moving forward.
Upon his release on 09/05/2018, Mr Brownlie met with OIC and OM at DCH. He advised at this time he was residing with another participant's mother…After this time Mr Brownlie was closed with DCHAP due to having stable accommodation.
This service received information from the participant whose mother Mr Brownlie was residing with advising that Mr Brownlie was not welcome at the home any longer, however by this time Mr Brownlie had absconded from the DTO.
…
Mr Brownlie presented as extremely chaotic, aggressive towards staff members, brining alcohol into DCH and attending under the influence. As a result of the above, a notice of expectations was lodged however did not proceed as Mr Brownlie's compliance did improve for a period of time before he absconded from all contact with this service.
The initial assessment report for Mr Brownlie advised that if Mr Brownlie were to live with a pro-social family member during the DTO, this would outweigh his previous non-compliance, however this has not occurred on the DTO.
This service has been unable to apply interventions with respect to reducing Mr Brownlie's risk of recidivism due to chaotic nature of his circumstances upon his time on the DTO. This service also holds concerns that Mr Brownlie absconded from the DTO with no contact and concerns for safety of the DC team.
Taking the above factors into consideration, it is respectfully recommended that Mr Brownlie's DTO is cancelled and he be re-sentenced on the original charges.
(Emphasis in original)
Magistrate Bryant stated that when the Applicant is alcohol or drug affected, he is a ‘significant risk’ to the community:[82] His Honour explained:
[82] Exhibit R1, 107.
I mean, I guess prima facie, at first blush, I take the view that often we have nothing to lose by allowing people on a Drug Treatment Order an opportunity to transfer from prison to residential rehab.
But in considering whether or not that is an appropriate course of action to take for anyone, I have to look at their performance on the Drug Treatment Order, and make an assessment as to their capacity, and their genuine willingness and desire to undertake residential rehabilitation, and I think, as you see from the report that has been provided by Corrections, Mr Brownlie, at no stage during the time that he was on this particular Drug Treatment Order, demonstrated either a capacity or a willingness to engage with the Drug Treatment Order.
In fact, to the contrary, in many respects. He was, and this may well be rooted in his mental health issues, but he was on occasions rude, impolite, aggressive, belligerent, and had put not only drug court staff but way staff in fear, because of the way in which he was conducting himself, and you only have to look at the test results that Mr Brownlie provided on the occasions that he did test to draw the conclusion that there was little or no control over his drug use and his consumption of alcohol on the Drug Treatment Order.
Which of course leads to the inevitable conclusion that Mr Brownlie is not so much motivated by a genuine desire to rehabilitate but rather a desire to return to the community, and what we - of course, and I don't use this a precedent or a guiding sign for me, but we also have to look at whether or not if Mr Brownlie was given the opportunity of going to MARP or the Basin in the proceeding weeks. If he left, is he the sort of person that would hand himself in to the drug court, and if you look at Mr Brownlie's history, and in particular the last warrant that was issued for him on 23 May, he didn't hand himself in. He'd actually disengaged from the program.
And so, I couldn't have any confidence that if Mr Brownlie was given that opportunity of going to the Basin or MARP and if it wasn't suitable to him, that he wouldn't leave and we wouldn't see him again until such time as the police picked him up. So, I have some real concerns about him absconding, and I have some real concerns about whether or not he has the capacity, and whether or not his willingness is genuine or not.
…
I can understand, Mr Brownlie, your strong desire to return to the community as soon as possible, and I understand your motivation in wanting to look at residential rehabilitation.
…
As I said to you, and remarked before, we're often dealing with two Stephen Brownlies. There's an insightful, intelligent, engaged Stephen Brownlie when you are sober and when you are absent from drugs, and when you are medicated, and then there is a very different Stephen Brownlie that we have to deal with when you are affected by drugs and alcohol. And it's that second Stephen Brownlie that concerns me, because I think when you are not on your medication, when you are alcohol affected, when you are drug affected, you're a significant risk not only to yourself, but also to the community.
Drug Treatment Orders aren't predicated or based on giving endless opportunities to participants. There will always come a time when the Court, reflecting community values, say, "Look, enough is enough. We have given you multiple opportunities to engage with us, and for whatever reason it may well be it's just not the right time in a person's life, you give us no other option but to cancel the Drug Treatment Order. You've heard what I've had to say about the risk of you absconding and the fact that you didn't hand yourself back in when you were on the warrant that was issued back on 23 May, and I think that is still a real and valid concern for the Court and the community.
You have offended whilst on the Drug Treatment Order, and your level of engagement, quite frankly, on the Drug Treatment Order would suggest to me that you're just not right in your mindset to give a Drug Treatment Order another go. So, I'm afraid today, Mr Brownlie, I'm not going to adjourn the matter for another two weeks. I am going to proceed today to cancel your Drug Treatment Order.[83]
[83] Ibid, 102-103; 106-108.
The Applicant has been on the Methadone Program for 20 years and continues to receive a daily dose of 100mg in immigration detention.[84] This has incrementally increased since his last imprisonment in 2018, when he was receiving 70-75 mg daily.[85] He aspires to cease taking Methadone when he feels ‘comfortable’ to do so, and intends discussing this with a doctor if released.
[84] Exhibit A7.
[85] Exhibit R2, 219 [24/01/2018]; 252.
While imprisoned in August 2018, the Applicant’s recidivism risk was assessed under the Level of Service, Risk, Need and Responsivity (LS/RNR) methodology. He was found to constitute a ‘high’ risk of re-offending.[86]
[86] Ibid, 249-251.
The Applicant’s claims about risk and rehabilitation can be summarised as follows:
(a)He never received the 2002 warning from immigration authorities because of a change of address,[87] but acknowledges receipt of the 2008 warning while imprisoned. He thought the 2008 letter was an ‘error’[88] and therefore did not ‘comprehend the severity of the situation;’[89]
(b)Since entering immigration detention, the Applicant has learned ‘something needs to change,’ appreciates the ‘repercussions of any further offending,’[90] and believes he has the ‘tools…[to]…continue to remain abstinent and offending free;’[91] and
(c)The visa cancellation process is a ‘wake up call’[92] causing the Applicant to become a ‘completely different person’[93] whose recidivism risk is ‘extremely low’ after completing ‘courses addressing [his] alcoholism;’[94] He intends continuing his rehabilitation if released.
[87] Exhibit R1, 81.
[88] Ibid, 47; 53.
[89] Ibid, 63.
[90] Ibid, 63.
[91] Ibid, 72 [8].
[92] Ibid, 57.
[93] Ibid, 72 [11].
[94] Ibid, 47; 72 [5]; [8].

The Applicant also referred to a minor child aged 10, who is his father’s stepson from a new relationship, and therefore the Applicant’s step-brother.[128] There is an almost 30-year age gap between the Applicant and his stepbrother, about whom the Applicant made no claims during his oral evidence. The Applicant’s father stated in his evidence that the Applicant has never met this child, but they have talked on the telephone about video games.
[128] Ibid, 86.
Tribunal findings: Best interests of minor children
The Tribunal rejects the Applicant’s uncorroborated assertion that his son has the dependency of a 13 or 14-year-old child. His son’s evidence is that he progressed through school normally, was good at English and Maths, left after Year 10 to work, currently earns enough for his needs, plays in a football competition, aspires to do an apprenticeship, is in a longstanding romantic relationship, and provides some financial support to his girlfriend’s mother. The Tribunal finds that the interests of the Applicant’s adult son are not relevant under this primary consideration.
The Direction acknowledges the importance of a child having a relationship with both parents, providing that is not contrary to the child’s best interests.[129] This is assessed by considering the nature of the relationship and the impact of separation if known. The Tribunal accepts the Applicant has some relationship with his two nieces and the ten-year-old child of his father’s new partner but has never met the latter. The Applicant plays no parental role for these children and there is limited evidence of recent contact. Moreover, their geographic location and the protracted nature of the Applicant’s past addictions and offending has adversely affected his ability to develop closer relationships with them. There have been long and continuing periods of absence and limited meaningful contact between the Applicant and his two nieces. Given the extent of the Applicant’s history, including his involvement in domestic violence, parenting deficiencies regarding his own child, and the extent of his unmet rehabilitative needs, the Tribunal is unconvinced he is well placed to play a positive role in these minor children’s lives. It is also difficult on the currently available evidence to discern any impact in the lives of these children if the Applicant were removed. There is no evidence that any existing relationships are unable to be maintained by electronic means as is currently the case.
[129] Meyrick v Minister for Home Affairs [2020] FCA 677, 63 (Jackson J).
The Tribunal is unable to conclude that the best interests of these minor children would be served by revocation. This primary consideration weighs neutrally at best.
Tribunal consideration: Expectations of the Australian Community
Clause 8.4(1) of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Clause 8.4(1) of the Direction states that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:
(a) acts of family violence;
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery;
(f) worker exploitation.
Clause 8.4(3) states that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Clause 8.4(4) states that this consideration is ‘about the expectations of the Australian community as a whole’ and directs decision-makers to proceed on the basis of the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in the particular case.
Clause 8.4(4) of the Direction correlates with the reasoning of the Full Court of the Australian Federal Court (FCAFC) in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR). Notwithstanding the different pathways in judicial reasoning, the plurality in FYBR held that Expectations of the Australian community is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[130]
[130] FYBR (2019) 272 FCR 454, at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).
The reasoning in FYBR establishes that the deemed community expectation will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[131]
[131] Ibid at 473 [75]–[76] (Charlesworth J).
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[132]
[132]FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
Mr O’Donoghue submitted that the Applicant’s criminal conduct has not been such that by its very nature it dictates he should not hold a visa. He said the Tribunal is not prevented by the Direction from ‘independently considering the individual circumstances of the applicant.’[133]
[133] ASFIC, 4 [28]-[29].
Mr Orchard said because of the cumulative nature of the Applicant’s offending over 25 years, this primary consideration weighs very heavily against him.
Tribunal findings: Expectations of the Australian community
FYBR requires decision-makers to focus on what the Government has deemed the community’s expectations to be, to have due regard to those views, and to generally afford them more weight than other non-primary considerations: cl 7(2) of the Direction.[134]
[134] FYBR, [74] (Charlesworth J). See also Say v Administrative Appeals Tribunal [2020] FCA 1489, [39] (Charlesworth J).
Notwithstanding the Applicant’s 36-year residence in Australia, which may afford him a higher level of tolerance for his crimes, the seriousness and protracted nature of his offending and other misconduct, is such that the Tribunal finds this primary consideration weighs very substantially against revocation.
OTHER CONSIDERATIONS
Tribunal consideration: International non-refoulement obligations
The Tribunal has considered cl 9.1 of the Direction against the specific circumstances of this case. No claims were advanced by the parties for this consideration. The Tribunal finds it is not enlivened and carries neutral weight.
Tribunal consideration: Extent of impediments if removed
Clause 9.2(1) of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) the non-citizen's age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
The Applicant is 39 years of age. He claims to have been diagnosed with Bipolar Disorder in his ‘late teens,’ is currently prescribed a daily anti-psychotic, and undergoes counselling to address his anxiety and ‘behavioural choices.’[135] He has been on the Methadone Program for approximately 20 years. The Applicant said he was ‘deemed eligible’ for DSP in 2013,[136] although there is no reliable evidence to corroborate what this was granted for.
[135] Exhibit R1, 49.
[136] Ibid, 48.
The Tribunal has considered medical records in evidence, including from his most recent periods in custody, which refer to the Applicant having anxiety with depression, a history of Hepatitis C that he claimed had cleared, and ‘Hepatitis B status Hep B core AB psotive’ (sic) in December 2018.[137] It remains unclear to the Tribunal the extent to which this represents confirmed diagnoses, or records the Applicant’s self-reported claims about his health.
[137] Exhibit R2, 193.
When asked about current medical conditions at the hearing, the Applicant said he received a daily Methadone dose and suffered psychological conditions for which he received medication. He stated there was nothing from a health perspective that would stop him from working if released.
In his documentary evidence the Applicant expressed the following concerns about being returned to the United Kingdom:
I have no family or connection to Wales.
I will have no employment, family, housing, finances or community whatsoever in Wales.[138]
[138] Exhibit R1, 35; 50.
Tribunal findings: Extent of impediments if removed
There are no discernible language or cultural barriers to the Applicant being returned to the United Kingdom. There is also no evidence the Applicant would be treated any differently to other citizens of the United Kingdom in relation to social, medical and economic support. That said, after a lifetime in Australia, the Applicant would likely experience adaptation issues in a country he last lived in as a child, and without any comparable family or other support. He would likely require assistance with how to apply for services like continuity of his current medications,[139] although there is no evidence these are not available in the United Kingdom, or that he could not access other health support if needed.
[139] Exhibit A6.
The Applicant is still relatively young and notwithstanding his claims about nothing impeding his aspiration to immediately return to work if released, it is clear he would be unfamiliar with and have no comparable networks to draw upon when searching for work in the United Kingdom. He has not worked for most of the last 20 years and may find it difficult to competitively apply for jobs given his work history and background. There are practical difficulties associated with all these things, which, while not insurmountable, constitute impediments. During the hearing, however, the Applicant presented as articulate and capable of applying for support services as he has done in Australia throughout his life.
On balance, the Tribunal finds this consideration weighs moderately in favour of revocation.
Tribunal consideration: Impact on victims
The Tribunal has considered cl 9.3(1) of the Direction against the specific circumstances of this case. No claims were advanced by the parties about victims within the meaning of the Direction. The Tribunal finds this consideration is not enlivened and carries neutral weight.
Tribunal consideration: Links to the Australian community
Clause 9.4 of the Direction provides that decision makers must, reflecting on the principles at clause 5.2, have regard to cl 9.4.1 relating to the Strength, nature and duration of ties to Australia, and cl 9.4.2 relating to Impact on Australian business interests. There is no evidence that a decision in this matter risks compromising the delivery of a major project or an important service in Australia. The presumption in the Direction is therefore not displaced and cl 9.4.2 of the Direction carries neutral weight.
Tribunal consideration: The strength, nature, and duration of ties to Australia
Clause 9.4.1 of the Direction states:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
(a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Tribunal has considered supportive emails and letters in evidence from the Applicant’s family members. In considering references from family members and friends, however, the Tribunal is mindful they can often provide the best possible perspectives about an Applicant’s crimes, which other members of Australian society might consider unacceptable. Care must therefore be taken about the weight placed on references from family members and friends, particularly those with only a limited understanding of the Applicant’s past drug and alcohol abuse and criminal history.
The Applicant arrived in Australia as a three-year-old and has lived here for 36 years. His offending commenced soon after reaching the age of criminal responsibility and has continued for approximately 25 years.
The Applicant claimed that his former partner left him when their son was four months’ old, and they had no contact for six or seven years.[140] He claimed she had a drug addiction, which required the Applicant to raise his son as a single parent, helped by his mother, who is now deceased. He said parenting responsibilities precluded him from working and ‘Single Parent Pension’ was paid to him for 17 years, ‘even while incarcerated.’[141] He then claimed to have been ‘deemed eligible’ for the DSP in 2013.[142]
[140] Exhibit R1, 50.
[141] Ibid, 50.
[142] Ibid, 48.
In terms of previous work, the Applicant referred to two periods of employment between 2007 and 2014 as a bricklayer and in railway maintenance,[143] for which there is no independent corroboration. In terms of positive contributions to Australia he claimed to have been a voluntary ‘Maintenance Officer’ at his son’s kindergarten, for which there is no corroboration. He also claimed to have ‘actively participated’ in his son’s ‘Junior Footy Club.’ Given that his son is now an adult, these claims relate to purported contributions many years ago.
[143] Ibid, 48.
The Applicant stated in his revocation submissions that he is ‘recently separated.’[144] All his immediate family live in Australia and he relies on the following relationships:
(a)Applicant’s son: The Applicant’s son is now an adult. The Applicant claimed to have been granted custody of his son in approximately 2004 and has since been a sole parent. The Applicant said he has an ‘extremely close’ relationship with, and continues to play a major role in his son’s life.[145] He claimed that his son is immature, has learning difficulties and ‘lacks the ability to socialize’,[146] is not very independent as a ‘lazy’ teenager,[147] and associates ‘with troublesome friends.’[148] The Applicant said if he is not in Australia to ‘challenge’ his son’s behaviour, ‘he will have no adult figure to support him financially and guide him through adulthood’.[149] He fears that without his presence, his son ‘would go down a very destructive path of unemployment, no studies… instead of honesty and integrity with my guidance;’[150] This contradicts the evidence of the Applicant’s son, who said he progressed through school normally, left after Year 10 to work, earns enough for his needs, currently plays football, aspires to do an apprenticeship, and is in a relationship;
(b)The Applicant has stated variously that he will live with his son if released,[151] which contrasts with other claims that he is ‘not financially stable [and] it could be years before [he] could spend time with [his] son.’[152] His evidence during the hearing appears to be that if his son decided to stay in Melbourne, the Applicant would still relocate to Western Australia because that is best for his rehabilitative needs, and to help care for his father;
(c)Applicant’s father: The Applicant submitted that if released he would live with his father who is terminally ill and provide for his care.[153] The Tribunal has considered a letter dated 25 January 2021 from the Applicant’s father, which states that he has recently been diagnosed with a terminal illness.[154] The Applicant’s father stated he is unable to travel and believes that if the Applicant is repatriated, he would never see him again. The Applicant’s father said he and the Applicant have ‘tiressely (sic) worked to better our relationship over the duration of his detention.’ His wife is the ‘sole income earner’ and she finds it hard to combine her work life and caring for him and the needs of their younger son. He said if the Applicant were to reside with them in Western Australia, it would relieve his wife’s workload. He agreed, however, that the Applicant has never met his stepmother, her son, or been to their home;
(d)Applicant’s stepmother: The Applicant’s stepmother was not called as a witness and could not be cross-examined. She and the Applicant have not previously met. The Tribunal has considered an email from her[155] in which she stated that the Applicant’s father is ‘gravely ill.’ She said if the Applicant is released into the community to live with them it would ‘alleviate a lot of stress’ for her and her 10-year-old son;
(e)Applicant’s siblings: None of the Applicant’s three siblings were called to give oral evidence. The Applicant claimed they ‘would be devastated’ if he was repatriated.[156] Other records refer to him having ‘minimal contact’ with his sisters[157] and the Tribunal has earlier referred to a family violence incident at his elder sister’s home requiring police attendance. The Applicant said although his eldest sister sees his son ‘a lot,’ she is a single, unemployed mother in government housing, who would ‘feel guilty’ about not being able to provide the Applicant’s son with practical or financial support.[158] He claimed that this sister is currently reliant of the Applicant’s ‘saving account’ to support his son, which is his son’s ‘only means of monetary support;’[159]
(f)The Tribunal has considered correspondence from the Applicant’s eldest sister dated 6 November 2020,[160] and 1 February 2021,[161] reflecting warmly on the Applicant’s role in her life and positive changes made to be ‘substance free and eager to take on his responsibilities as a father and memeber (sic) of his family.’
(g)Applicant’s nephew: The Applicant’s adult nephew, now aged 20, was not called to give oral evidence, but the Tribunal has considered an undated letter from him.[162] The Applicant referred to his nephew as someone he is ‘extremely close’ to.[163] He claimed to have taken his nephew to ‘footy games, scouts, even Father’s Day concerts,’ and ‘tried to be a positive role model’ for him.[164] The Applicant believed that in the event of a negative outcome, his nephew ‘would be most affected’ by not having a ‘male family member there to help guide him.’
Tribunal findings: The strength, nature, and duration of ties to Australia
[144] Ibid, 41.
[145] Exhibit A1, 2 [14]; Exhibit R1, 35.
[146] Exhibit A1, 1 [6].
[147] Exhibit R1, 53
[148] Ibid, 56.
[149] Ibid, 35.
[150] Ibid, 43.
[151] Exhibit R1, 42.
[152] Exhibit A1, 2 [15]
[153] ASFIC 5, [35]; Exhibit R1, 80.
[154] Exhibit R1, 75.
[155] Ibid, 86.
[156] Ibid, 46.
[157] Exhibit R2, 202 [23/01/2019].
[158] Exhibit R1, 46; 52.
[159] Ibid, 56.
[160] Ibid, 69.
[161] Ibid, 77-78
[162] Exhibit A4.
[163] Ibid, 44-45.
[164] Ibid, 45.

It is not possible to attribute much weight to the Applicant’s positive contribution to Australia, because the evidence overwhelmingly reflects a negative contribution. The Tribunal considers his claims about being the sole source of financial support for his son to be uncorroborated assertion at best. The Tribunal finds the Applicant’s mother and stepfather have instead played a significant parental role in the child’s life,[165] including during those occasions when the Applicant was in the thrall of his addictions or serving sentences of imprisonment. The Tribunal rejects the Applicant’s evidence about his son’s deficiencies and purported dependency on him. For the last three years at least, the Applicant’s adult son has lived independently, worked, been in a relationship, and pursued his talents in football. For reasons adduced earlier, the Tribunal rejects the Applicant’s evidence that his son will accompany him to Western Australia to support his rehabilitation. The Tribunal finds the Applicant’s son intends remaining in Melbourne where he has made a positive life for himself without the Applicant’s direct involvement.
[165] Exhibit R2, 25.
The Tribunal finds that the Applicant’s reliance on the relationship with his siblings attracts little weight. He claims to speak to his younger sister about once per week and there is evidence of past conflict with his eldest sister. None of his siblings gave oral evidence at the hearing, so the precise nature of their current relationship remains uncertain.
The Tribunal places little weight on the Applicant’s relationships with his father and his father’s new partner and child. He only reconnected with his father in the last year after many years of no contact. He has never met his father’s new partner, her child, or been to their home. His plans for a new life with them is aspirational at best and dependant on the Applicant overcoming practical impediments to progressing his rehabilitation and remaining abstinent and law-abiding, which the Tribunal is unpersuaded he will do.
The Tribunal accepts the Applicant’s son, father, siblings, nephew, nieces and perhaps others may be disappointed and emotionally affected by a non-revocation decision. The Applicant would be unable to pursue his aspiration to be a more present father and assist in the care of his own father. That has the potential to add to the emotional distress experienced by these family members. Given the Applicant’s history, however, his family members have demonstrated a consistent and commendable ability to get on with their lives without his contribution.
On balance and given the Applicant’s long residence in Australia since childhood, however, what relationships he has are here in Australia. This consideration weighs very substantially in favour of revocation, but the Tribunal does not accept it is determinative as submitted by Mr O’Donoghue.
Tribunal consideration: Impact on Australian business interests
The Tribunal has considered cl 9.4.2 of the Direction against the specific circumstances of this case. No claims were advanced by the parties. The Tribunal finds it is not enlivened and carries neutral weight.
Additional considerations
No additional considerations were advanced by the parties and I have not identified any ‘other considerations’ relevant to the specific circumstances of this application, as provided for by the non-exhaustive list of considerations at cl 9(1) of the Direction.
CONCLUSION
The Tribunal thanks Mr O’Donoghue for acting on a pro bono basis
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining whether there is ‘another reason’ why the mandatory cancellation of his visa should be revoked, the Tribunal has applied the Direction to the specific circumstances of his case. Having regard for the evidence, the Tribunal does not consider it necessary to depart from the guidance in the Direction, that greater weight ‘should generally be given’ to the primary considerations than the other considerations.
The Applicant’s criminal history is extremely serious, encompassing repeat offending in several categories. He has caused significant harm to members of the community for over twenty years and constitutes an unacceptably high risk of continuing to do so. Notwithstanding his long residence in Australia since a child, the community would expect he should not hold a visa.
The Applicant is confronted by challenges in re-establishing himself in the United Kingdom without any family support. These include practical considerations such as accommodation, income support, and continuity of medications. There is no evidence, however, that the support he has received in Australia is not available in the United Kingdom, or that he would be treated any differently to other citizens.
The Tribunal accepts that members of the Applicant’s immediate family may be disappointed and emotionally affected by a non-revocation decision. What ties the Applicant has are here in Australia and this consideration weighs most heavily in his favour.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the decision to cancel the Applicant’s visa should be revoked. That is because the primary considerations ‘Protection of the Australian community,’ Family violence committed by the non-citizen, and ‘Expectations of the Australian community,’ substantially outweigh the combined weight to be given to the countervailing considerations in this matter.
DECISION
It follows that the Tribunal affirms the decision under review.

I certify that the preceding 161 (one hundred and sixty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

......[sgd].................................................................
Associate
Dated: 26 May 2021

Dates of hearing: 12-13 May 2021

Counsel for the Applicant: Mr Anthony O’Donoghue

Advocate for the Respondent: Mr Christopher Orchard

Solicitors for the Respondent: Sparke Helmore Lawyers

Dates of hearing:	12-13 May 2021
Counsel for the Applicant:	Mr Anthony O’Donoghue
Advocate for the Respondent:	Mr Christopher Orchard
Solicitors for the Respondent:	Sparke Helmore Lawyers