Byers and Minister for Immigration and Multicultural Affairs (Migration) - [2024] ARTA 183

Byers and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 183 (5 November 2024)
Applicant/s:  David Mark Byers
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/5992

Tribunal:Deputy President K McMillan KC
Place:Brisbane
Date of Decision: 5 November 2024
Date of Written Reasons: 7 February 2025

Decision:The Tribunal sets aside the reviewable decision and makes a decision in substitution to revoke the cancellation of Mr Byers’ visa.

......................[SGD].......................
Deputy President K McMillan KC
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction no. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a 58 year old citizen of Malta – extent of impediments if returned to Malta – Non-Revocation Decision is set aside and substituted
LEGISLATION
Migration Act 1985 (Cth)
CASES
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337; [2016] FCA 1166
Khalil and Respondent for Home Affairs [2019] FCAFC 151
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 468
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1
Re Harrison v Minister for Immigration and Citizenship [2006] AATA 47
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
SECONDARY MATERIALS
Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
The decision in this matter was made and provided to the parties on 5 November 2024 with a note that written reasons would be provided within a reasonable time. These are those written reasons.0F[1]
INTRODUCTION
Decision under review
[1] See Khalil and Respondent for Home Affairs [2019] FCAFC 151 at [41].

On 21 March 2002, the Applicant was granted a Class BB (subclass 155) Five Year Resident Return visa (Visa).1F[2] On 5 July 2023, the Applicant's visa was cancelled under
[2] G-Documents, G16, page 227.
[3] G-Documents, G16, page 227.
[4] G-Documents, G6, page 52; see Migration Act, ss 501(6)(a) and 501(7)(c).
s 501(3A) of the Migration Act 1985 (Cth) (Migration Act) (Cancellation Decision).2F[3] This was because the applicant had a 'substantial criminal record' on the basis of having been sentenced to a term of imprisonment of 12 months or more, due to his convictions on 30 March 2023,3F[4] and was serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.
On 31 July 2023, the Minister's Department received representations from the Applicant to have the Cancellation Decision revoked under s 501CA of the Migration Act.4F[5]
[5] G-Documents, G7.
On 12 August 2024, the delegate found that the power under s 501CA(4) of the Migration Act to revoke the Cancellation Decision made under s 501(3A) was not enlivened (Non-Revocation Decision).5F[6] The Applicant was notified of the Non-Revocation Decision by letter dated 13 August 2024 sent to his representative by email.6F[7]
[6] G-Documents, G4, page 36.
[7] G-Documents, G3.
On 16 August 2024, the Applicant applied to the Tribunal for review of that decision.7F[8]
[8] G-Documents, G2.
The 84th day for the purposes of s 500(6L) of the Migration Act is 5 November 2024.
Background
The Applicant is a 58-year-old citizen of Malta, born in 1966. He was born in Australia8F[9] and previously held Australian citizenship until a declaration by the Applicant renouncing it was registered on 30 April 1985.9F[10] His Mother, two sisters and extended family reside in Australia. In Malta, he has elderly aunts and uncles, along with a number of cousins.10F[11] He has only visited Malta a couple of times11F[12] and does not speak Maltese.
[9] G-Documents, G7, page 93.
[10] Applicant’s Tender Bundle (ATB), page 20.
[11] G-Documents, G7, page 104.
[12] Applicant’s Supplementary Tender Bundle (ASTB), page 16 at [7].
The Applicant was raised in Marrickville, Sydney and completed ten years of formal education in Australia.12F[13]
[13] G-Documents, G7, page 106; G9, pages 173-4; ASTB, page 16 at [8].
In the material, the Applicant has asserted he was subject to substance abuse, child sexual abuse, and family violence in his formative years.13F[14] He was also involved in multiple car accidents in his teenage and adult years,14F[15] two of which resulted in him sustaining significant injuries,15F[16] and was hit by a car as a pedestrian when he was a child.16F[17] He received personal injury payments as a result.
[14] ASTB, pages 17-8 at [7] and [11].
[15] ASTB, pages 18-19 at [12]-[13].
[16] ASTB, page 19 at [13].
[17] ASTB, page 18 at [12].
His employment history until 1998 was varied and ranged from working as a delivery and courier driver, a storeman and packer, a porter at hotels, a car detailer, and at McDonald’s.17F[18]
[18] G-Documents, G9, page 137 at [48]-[49], pages 175-181.
As a car salesman, he was the victim of an armed holdup where he was assaulted, restrained, threatened, and secured in a car boot for a period of time.18F[19] Unsurprisingly, he suffered psychiatric difficulties as a result.19F[20]
[19] G-Documents, G9, page 130 at [15].
[20] ASTB, page 19 at [14].
In 1998, the Applicant was made redundant20F[21] and thereafter worked with his sister for a period.21F[22]
[21] G-Documents, G9, page 181.
[22] ASTB, page 43 at [15].
Child Sexual Abuse
Whilst incarcerated in 2022, the Applicant disclosed to another inmate that he had suffered sexual abuse by a staff member at his school. With some assistance, he engaged legal representatives to act on his behalf.22F[23]
[23] ASTB, page 52.
A statement dated June 2023 and signed 16 November 2023,23F[24] prepared for another purpose (which I infer is a claim for compensation) details the abuse he sustained.24F[25]
[24] G-Documents, G9, pages 135-145.
[25] G-Documents, G9, pages 140-5.
He did not disclose the abuse at the time, as he was ‘ashamed’ and ‘scared’.25F[26] He attributes this as having been a turning point in his life and ‘where things went wrong’.26F[27]
[26] G-Documents, G9 at [142]-[143].
[27] G-Documents, G9 at [33].
Criminal History
The Applicant has a lengthy criminal history in Australia comprising over 50 offences largely relating to drugs, traffic, and offences involving public officers, with a number of them arising out of the same incident.
The Applicant's traffic history commenced in 1985 up to and including 2023, with infringements ranging from driving whilst disqualified, driving under the influence of alcohol or drugs, and speeding.27F[28] The Applicant’s full criminal record is set out at Annexure A.
[28] G-Documents, G6, pages 52-57.
On 31 January 2021, the Applicant and a female were riding bicycles when stopped by police. Upon searching his backpack, the Police found two clip-seal bags containing methylamphetamine28F[29] and charged the Applicant with possess prohibited drug and supply prohibited drug >indictable & <commercial quantity-T1.
[29] RTB, pages 165-9.
On 30 March 2023 the Applicant was convicted in the Downing Centre Local Court of ‘Supply prohibited drug’ and sentenced to 16 months imprisonment.29F[30]
[30] G-Documents, G6, page 52; Respondent’s Tender Bundle (RTB), pages 163-4.
On 5 July 2023, while the applicant was imprisoned for the ‘Supply prohibited drug’ offence, the Applicant's visa was subsequently cancelled under s 501(3A) of the Migration Act.30F[31]
[31] G-Documents, G16, page 227.
THE HEARING AND THE EVIDENCE
The hearing was held on 21, 22 and 24 October 2024 at the Tribunal’s Sydney Registry. The Applicant was represented by Mr Pham instructed by Legal Aid NSW. The Respondent was represented by Ms Tattersall of Sparke Helmore Lawyers. All parties appeared in-person.
At the hearing, the Applicant gave oral evidence and was cross-examined. The Applicant also called the following witnesses who gave evidence and were cross-examined:
(a)Ms Susan Reddy, the Applicant’s sister, who appeared in-person;
(b)Ms Darelle Williams, Co-ordinator Watershed Day Program, who appeared by phone;
(c)Dr Travis Wearne, Clinical Neuropsychologist, who appeared by phone.
LEGISLATIVE FRAMEWORK
Migration Act
Under s 501(3A), the Minister must cancel a visa that has been granted to a person if, relevantly:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph 501(6)(a) (substantial criminal record), on the basis of paragraph 501(7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by s 501(7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Where a visa has been cancelled as set out above, the Minister has a power under
[32] Migration Act, s 501CA(4).
s 501CA(4) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked.31F[32]
Where the cancellation decision is not revoked, the applicant’s right of review is to the Tribunal.32F[33]
[33] Migration Act, s 500(1)(ba).
ISSUES
The determinative issues for the Tribunal are:
(a)whether the Applicant passes the character test for the purposes of s 501 of the Migration Act, as defined in s 501(6); and
(b)if not, whether there is another reason why the original cancellation decision should be revoked.
The Applicant properly conceded that he does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a ‘substantial criminal record’ as defined under s 501(7).33F[34] It follows that the Applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked. Hence the question in issue is whether there is another reason why the original cancellation decision should be revoked.
[34] Applicant’s Statement of Facts, Issues and Contentions (ASFIC) at [26].
In deciding that question as to whether there exists another reason why the cancellation decision should be revoked, I adopt the concise reasoning of Deputy President O’Donovan 34F[35], who in turn referred to Federal Court decisions.35F[36]
“(a) The decision-making process is a single stage process: if I am satisfied that there is another reason why the cancellation decision should be revoked I do not have a discretion to nonetheless refuse to revoke it;
(b) Section 501CA(4)(b)(ii) requires me to examine the factors for and against revoking the cancellation. If satisfied following an assessment and an evaluation of those factors, that the cancellation should be revoked, I am obliged to act on that view.^[3]
6 In considering whether there is another reason why the cancellation decision should be revoked, the Tribunal must have regard to the matters contained in a ministerial direction issued under section 499 of the Migration Act. The relevant direction is Direction No 110 which was executed on 7 June 2024 and commenced on 21 June 2024 (the Direction). Informed by the principles identified in the Direction, I must take into account the considerations identified in sections 8 and 9 when I am determining whether there is another reason why the cancellation should be revoked.”
[35] Gray and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 3363 (13 September 2024)
[36] PLAINTIFF M1/2021 V MINISTER FOR HOME AFFAIRS (2022) 96 ALJR 497 AT [22], LPDT V MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS [2024] HCA 12 AT [35] .
Section 501CA(4)(b)(ii) of the Migration Act requires the Tribunal to examine the factors relevant to a decision to assess if there is ‘another reason’ why the Cancellation Decision should be revoked. This involves an evaluative process, requiring the Tribunal to examine factors for and against revoking the cancellation, and to undertake an assessment and evaluation of those factors leading to the formation of a view as to whether the cancellation should be revoked.36F[37] Deciding whether or not to be satisfied that ‘another reason’ exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending.
[37] Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337; [2016] FCA 1166 at [38] per North ACJ
THE DIRECTION
The Tribunal is bound by s 499(2A) to comply with any directions made under the Migration Act. In this case, Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) has application.
For the purposes of deciding whether to refuse a non-citizen’s visa or whether to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision-maker’s application of the primary and other Considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction are as follows:
1Australia 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.
2The safety of the Australian Community is the highest priority of the Australian Government.
3Non-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.
4The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
5Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
6With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
7Decision-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.
8The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measurable risk of causing physical harm to the Australian community.
Informed by the principles in paragraph 5.2 above, I must take into account the primary and other considerations in the Direction.
The primary considerations are:37F[38]
1protection of the Australian community from criminal or other serious conduct;
2whether the conduct engaged in constituted family violence;
3the strength, nature and duration of ties to Australia;
4the best interests of minor children in Australia;
5expectations of the Australian community.
[38] Paragraph 8 of the Direction.
The other considerations are:38F[39]
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on Australian business interest.
[39] Paragraph 9(1) of the Direction.
The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.39F[40] One or more primary considerations may outweigh other primary considerations.40F[41]
CONSIDERATIONS
[40] Paragraph 7(2) of the Direction
[41] Paragraph 7(3) of the Direction
Protection of the Australian community – paragraph 8.1 of the Direction
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. As required by paragraph 8.1(2) of the Direction, I give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct – paragraph 8.1.1 of the Direction
The Applicant’s full criminal record is set out at Annexure A.
The Applicant properly accepted that his offending should be considered to be serious but nonetheless contended it should be viewed on an overall lower scale of objective seriousness.41F[42] He submits that his offending should be viewed through the prism of being sexually abused as a child, and in support of this cites sections of the Bugmy Bar Book.42F[43]
[42] ASFIC at [62].
[43] ATB, pages 3-17.
As raised with both legal representatives in the hearing, whilst there may be a causal link between the alleged abuse and his offending, the current evidence before the Tribunal does not reach that level of satisfaction and as much was conceded by the Applicant’s counsel. The Applicant has retained legal representation in connection with an ‘Institutional Abuse Claim’ but the allegations have not advanced past a preliminary stage. This is in contrast to the armed robbery, where the Applicant was diagnosed with resultant psychiatric sequelae43F[44] and compensated for it.44F[45]
[44] ASTB, page 19 at [14].
[45] RTB, pages 69 and 320.

In addressing his offending, I have excluded any conviction whilst a juvenile45F[46] and conduct for which he has not been convicted.46F[47]
[46] Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6, [34] (Beech-Jones J) Annexure A marked with *
[47] See ASFIC, [23] citing Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 468, [54].
The Tribunal has been assisted by the detailed outline by the Respondent47F[48] and I have incorporated the most relevant points in addressing this consideration:
[48] RSFIC, [23]
(a)acts of family violence, regardless of whether there is a conviction or sentence imposed;48F[49]
[49] Paragraph 8.1.1(1)(a)(iii) of the Direction.
(i)material produced under summons from the New South Wales Police Force reveals there are two situations where family violence is alleged to have occurred. One situation resulted in an apprehended violence order for two years,49F[50] The other situation did not proceed to any intervention by police.50F[51] The material emanating from the police records was objected to and is discussed below;
[50] RTB, page 334.
[51] RTB, pages 382-3.
(b)with certain exceptions, the sentence imposed by the Court(s) for a crime or crime(s);51F[52]
[52] Paragraph 8.1.1(1)(c) of the Direction.
(i)the Applicant has been sentenced to numerous terms of imprisonment for his offending and, as they are the last resort in the sentencing hierarchy, are a reflection of the gravity of his offending;52F[53]
[53] ReHarrison v Minister for Immigration and Citizenship [2006] AATA 47 at [63].
the Applicant has committed offences against government officials, namely police, in the performance of their duties and those offences must be considered to be serious;53F[54]
[54] Paragraph 8.1.1(1)(b)(ii) of the Direction.
(c)the frequency of the offending and any trend of increasing seriousness;54F[55]
[55] Paragraph 8.1.1(1)(e) of the Direction.
(i)the Applicant's offending has also been characterised by its frequency over an extended period of time, with over 50 offences resulting in convictions between May 1985 and March 2023. Whilst there have been gaps between other types of offending, the traffic related offences have been consistent since 2017.55F[56]
(ii)the multiple serious driving offences are compounded by the factors of being under the influence of illicit substances, driving whilst disqualified or suspended, driving negligently and speeding. The Tribunal has found driving offences to be serious;56F[57]
(iii)his penultimate offence on 14 July 2022, for which he was convicted in March 2023, included driving whilst disqualified, illicit drugs and ‘resisting or hindering police officer in the execution of duty’;57F[58]
(iv)the gravity of his offending is such that he has been sentenced to imprisonment on a number of occasions, and the sentencing Magistrate in March 2023 commented upon the unacceptable risk to the community.58F[59] As a counterpoint, the Applicant points to remarks made in the course of his last sentence which are favourable to his rehabilitation;59F[60]
(v)the commission of the last offence on 25 January 2023 included hindering or resisting a police officer and assaulting a police officer in the execution of their duty. He pled guilty to the offences on 30 August 2023.60F[61]
(vi)the multiple drug offences relate to both possession and supply, and the Respondent’s submissions as to the societal impacts of such offences are uncontroversial;61F[62]
(d)whether the non-citizen has re-offended since being formally warned of the consequences of re-offending;62F[63]
(i)the Applicant was notified of the decision not to cancel his visa under s 501(2) of the Migration Act and signed an acknowledgement of receipt of the decision on 24 March 2011.63F[64] In doing so, he was notified that he could ‘again be considered for refusal or cancellation’.64F[65] In his written and oral evidence, the Applicant claimed he misunderstood the situation.65F[66] I take into account that on his formal assessment by Dr Wearne, he scored average if not below in certain areas of cognition and skills,66F[67] however, he accepted it was his signature acknowledging its receipt, and went to the extent of providing supporting statements, . I do not accept his evidence on this issue.
[56] RSFIC, [23(d)].
[57] See QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1.
[58] Paragraph 8.1.1(1)(b)(ii) of the Direction.
[59] G-Documents, G6, pp 63-4.
[60] TB226
[61] RTB, pp 1-6; RSFIC, [10].
[62] See RSFIC, [23(f)]. A3p36
[63] Paragraph 8.1.1(1)(h) of the Direction.
[64] G-Documents, G13, page 217.
[65] G-Documents, G13, page 217.
[66] G-Documents, G9, page 116.
[67] See ASTB at [22]-[25].
I find that, in applying Direction no. 110 the Applicant has a substantial criminal history, which has spanned a lengthy period of time and has resulted in a number of terms of imprisonment. This is notwithstanding earlier opportunities offered within sentencing regimes to rehabilitate.
The applicant's offences roughly fall into three categories. First, offences directly relating to the possession of drugs including for distribution to the community, secondly, traffic offences including offences for driving dangerously, without a licence or while under the influence and offences relating to confrontations with the police. If the applicant were to repeat his drug offences that could result in Members of the community suffering physical and phycological harm through drug use. If her were to repeat his driving offences this could result in harm or death to others using our roads. If he repeats his offences relating to confrontations with officials, this could lead to injury to our police officers. I consider all three types of offending serious and the nature of each type of offence could lead to serious harm to members of the Australian community.
The Tribunal regards the Applicant’s conduct as very serious and finds it weighs heavily against revoking the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – paragraph 8.1.2 of the Direction.
In considering the need to protect the Australian community from harm, I have regard to the Government’s view that:67F[68]
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 repeated, is so serious that any risk that it may be repeated may be unacceptable.
[68] Paragraph 8.1.2(1) of the Direction.
As required by paragraph 8.1.2(2) of the Direction, I also 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 non- citizen 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).
Nature of harm – paragraph 8.1.2(2)(a) of the Direction
The Applicant has, as identified earlier in these reasons, a lengthy criminal history in Australia,68F[69] largely relating to drug offences, traffic offences, and offences involving public officers.
[69] See G-Documents, G6, pages 52-7; RTB, pages 412-442.
The Applicant contends that the offending should be viewed on the lower end of objective seriousness, being primarily non-violent offences. In respect of the singular violent offence, he pled guilty and received no additional penalty pursuant to the relevant legislation.69F[70]
[70] See ASFIC, [62]; ATB, p 2; G-Documents, G6, pages 69-71.
The Respondent submits that the offences, and the harm caused by them, are sufficiently serious to constitute an unacceptable risk70F[71] and, broadly speaking, relevantly highlights:71F[72]
(a)the significant harm to members of the community that is likely to result from further drug offending. Given the potential effects of methylamphetamine on an individual includes violent and aggressive behaviour, further drug offending is likely to affect families, communities and frontline workers, including Police Officers; and
(b)the potential catastrophic impact of driving offences.
[71] Paragraph 8.1.2(1) of the Direction.
[72] RSFIC, [27].
As an example of the latter, one of the Applicant’s traffic offences involved the motor vehicle ‘fishtailing’ through an intersection. The potential consequences for other vehicles and pedestrians were grave. It is also relevant that numerous offences involved the combination of both driving and drug offences which, in my view, elevated the risk of harm to community members. Furthermore, recent offending was against police officers in the discharge of their duties.72F[73] If the Applicant were to engage in similar conduct again, it would pose both a significant immediate and long-term risk to the community.
[73] RTB, pages 1-16
Likelihood of further conduct – paragraph 8.1.2(2)(b) of the Direction
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J (as she then was) in Tanielu v Minister for Immigration and Border Protection.73F[74] Her Honour (as she then was) said ‘a risk of harm posed by an individual can only be ascertained by evaluating the seriousness of any future harm which might be caused and the likelihood of that harm occurring’.74F[75]
[74] [2014] FCA 673 (Tanielu).
[75] Tanielu, [155]
The Respondent outlines the aspects it contends are relevant as to the likelihood of the Applicant’s reoffending as follows,75F[76] I will evaluate each in turn upon the evidence:
[76] Respondent’s Statement of Facts, Issues and Contentions (RSFIC) at [28]-[35].
28The Minister understands that the Applicant attributes his offending to drug use following: the death of his father on 18 August 2017; trauma, anxiety and depression following being the victim of an armed robbery in 1996 and sexual abuse at [his school]; and injuries following car accidents in 2012 and 2013.76F[77] The Applicant asserts that it is unlikely that he will engage in further criminal conduct as:77F[78]
[77] G-Documents, G7, page 105; G9, pages 119, 130, 140-1.
[78] G-Documents, G9, page 125.
(a)he accepts responsibility for his offending;
(b)his time in prison and immigration detention has had a salutary effect;
(c)he has been attending SMART recovery and has remained abstinent from drugs and alcohol; and
(d)he has significant family and community support.
29The Minister contends that the Applicant's claims to have now reformed should be treated cautiously, and that there is insufficient evidence for the Tribunal to be satisfied that he is now rehabilitated such that there remains an unacceptable risk of the Applicant re-offending for the reasons that follow.
30First, the Court has a long history of trying to help the Applicant. He has been placed on numerous bonds and community service orders and has also had the benefit of numerous parole orders.78F[79] As noted by the sentencing Magistrate on 30 March 2023, those efforts have failed to curb his offending behaviour.79F[80] Notably, it was stated ‘I just cannot accept that community safety is other than adversely compromised by me giving you a community-based order’.80F[81]
31Second, the Applicant's mental health issues are long standing. He has consistently obtained mental health treatment following the armed robbery in 1996 however continued to use illicit substances as a treatment.
32Third, the Applicant has a long history of asserting to have accepted that he needed to find effective ways to maintain his psychological wellbeing rather than through the use of drugs and that he was, or would, abstain from drug use.81F[82]
33Fourth, the Applicant's present rehabilitation efforts are very recent, consistent with the rehabilitation he has undertaken previously and his plans upon release are also consistent with his previous plans.82F[83]
34Fifth, although the Applicant has now made disclosures in relation to sexual abuse whilst he was at [his school],83F[84] such disclosures are recent, his statement was prepared for the purpose of another legal matter84F[85] and the outcome of that matter is unclear. In any event, such disclosures do not excuse his frequent and significant offending particularly in light of the ongoing opportunities he has had to engage in rehabilitation.
35Sixth, the Applicant has variously been assessed to present a medium/low to medium risk of reoffending.85F[86]
[79] G-Documents, G6, pages 52-7.
[80] G-Documents, G6, page 63.
[81] G-Documents, G6, page 64.
[82] RTB, pages 70-5, 150, 298, 302, 321-2, 236; G-Documents, G13, page 219.
[83] RTB, pages 299, 303, 308, 312-4, 319; G-Documents, G9, page 137.
[84] G-Documents, G9, pages 135-45.
[85] See ASFIC at [13].
[86] RTB, pages 304, 322, 327.
The Applicant does not cavil with the above, but asks the Tribunal to accept that the following mitigate the risk of his reoffending:
(a)his responsibility, including remorse and insight into his offending;86F[87]
(b)his familial and professional support;87F[88]
(c)his rehabilitation;88F[89]
(d)his abstinence whilst incarcerated and latterly whilst in immigration detention.89F[90]
(e)expert evidence from Mr Wearne
[87] ASFIC, [71].
[88] G-Documents, G9, page 131, [22]-[26].
[89] ASFIC, [69].
[90] ASFIC, [72]. See also G-Documents, G9, pages 130-2.
His family’s support extends to accommodation and employment. He is able to stay with his Mother in the family home upon his release,90F[91] and he would be eligible in the future for community housing.91F[92] His sister has offered him employment in her business if he is released from immigration detention and is licensed to drive.92F[93]
Rehabilitation
[91] G-Documents, G9, page 132.
[92] G-Documents, G9, page 132; ATB, page 23.
[93] ASTB, page 43.
The Applicant spoke enthusiastically in his oral evidence about his rehabilitation and attendance and facilitation of the SMART programme which he has been attending weekly since late 2022.93F[94] He is supported by both the written and oral evidence of Ms Darelle Williams, the co-ordinator of the Watershed Day Program at Lives Lived Well.94F[95] She has lengthy correctional services experience and understood the ‘landscape’ of rehabilitative programs. She confirmed the Applicant been accepted by, and will be paid by, Lives Lived Well to attend training as a Smart Recovery Peer Facilitator.95F[96]
[94] Transcript, page 179.
[95] See ATB, pages 18-9; see also ASTB, pages 50-1.
[96] ATB, page 18.
Ms Williams’ evidence regarding the SMART rehabilitation programme currently in place96F[97] is that it can be adapted to the Applicant’s current circumstances by way of a hybrid model in circumstances where he cannot attend the Watershed Day Program, which is usually run in person as an outpatient rehabilitation program.97F[98]
[97] ASTB, page 50.
[98] Transcript, page 173.
Were the Applicant released, there is evidence available indicating that he will be eligible for the Watershed Day Program, and then subsequently the Aftercare Program. She emphasised that the SMART program concentrates on contemporary issues facing individuals and would not assist, for instance, in facing historical traumas.98F[99]
[99] Transcript, pages 172-3.
Mr Comacho, a psychologist, has been providing monthly support to the Applicant since October 2020, although the extent of it is opaque.99F[100] The Applicant conveyed his obvious pride and commitment to assisting others, and expressed a desire to attend a residential programme if released.100F[101]
Wearne Report
[100] G-Documents, G9, page 48.
[101] Transcript, page 173.
Dr Travis Wearne, a neuropsychologist, provided a report and gave oral evidence. He saw the Applicant for five hours via audio visa link101F[102] and his report was comprehensive.102F[103] I regarded his oral evidence as impressive.
[102] ASTB, page 17.
[103] ASTB, pages 12-30.
On formal testing, the Applicant’s overall intellectual functioning was ‘on the cusp of “low average” to “average” range, with “low average” verbal intellectual skills… and “average” non-verbal/visual intellectual skills’.103F[104] His verbal skills were thought to be linked to his ‘limited engagement with schooling and formal education’.104F[105] There was an indication that the Applicant had difficulties with inhibition, specifically relating to executive functioning and cognitive functioning.105F[106]
[104] ASTB, page 23.
[105] ASTB, page 23.
[106] ASTB, page 24.
The Self-Appraisal/Assessment Questionnaire (SAQ) risk of general and violent offences completed by the Applicant reflected a 'low-moderate’ to a ‘high-moderate’ category of recidivism risk, and maps into seven subscales associated with recidivism such as criminal tendencies, alcohol and drug abuse, and anger.106F[107] The subscales pointing towards recidivism in Applicant’s case were criminal history, and alcohol and drug abuse.107F[108]
[107] ASTB, page 25.
[108] ASTB, page 26.
The risk of general recidivism was ‘low-moderate’ based on the SAQ and his age tending toward a decline into the future.108F[109] He would benefit with psychological treatment targeting his criminogenic needs and Dr Wearne’s report referred to the inroads he has made in regards to his mental health and substance abuse whilst incarcerated/in detention.109F[110]
[109] ASTB, page 28 at [33].
[110] ASTB, page 28 at [33].
Dr Wearne’s assessed that the Applicant’s risk of general recidivism is assessed as ‘“low-moderate” relative to other offenders, based on findings of the SAQ, and as a man in his mid to late fifties, his risk of recidivism is expected to decline in the future with his advancing age’ (emphasis added).110F[111]
[111] ASTB, page 28.
It must be caveated by the fact that the Applicant is yet to demonstrate sustained abstinence in the community.111F[112] Under cross-examination, it was further conceded by Dr Wearne that whilst his family provide a protective factor, their lack of knowledge of past traumas, the extent of his offending, and the degree of substance abuse would heighten his psychological vulnerability.112F[113] Further aspects such as prior attempts at rehabilitation,113F[114] degree of historical substance use,114F[115] future stressors like his mother’s health,115F[116] and the failure to explore past traumas, such as institutional abuse, with the Applicant’s treaters116F[117] are likely to heighten his vulnerability.
[112] ASTB, page 28 at [33].
[113] Transcript, pages 188-9.
[114] Transcript, page 191.
[115] Transcript, page 190.
[116] Transcript, page 192.
[117] Transcript, page 193.
In sum, whilst the Applicant has shown a clear and sustained intention of rehabilitation for nearly two years, and has progressed to training as a facilitator in the SMART program, he is yet to show an ability to both abstain from substances and continue to access appropriate supports in the community. He has been a beneficiary of alternative sentencing options in the past, acknowledging his conduct and a desire to rehabilitate which have not been effective in addressing his criminal behaviour and substance use. Whilst the financial and emotional support of his family is a protective behaviour and the care for his Mother is a ‘meaningful occupation’,117F[118] their lack of knowledge of the cyclical relationship between past traumas, criminal offending, and substance use diminish this. I would accept Dr Wearne’s opinion that the applicant has a low-moderate risk of re-offending. I consider that such a risk represents a real risk to the community.
[118] Transcript, page 192.
Conclusion as to protection of the Australian community – paragraph 8.1 of the Direction.

The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens. Whilst the Applicant has impressed Ms Williams and Dr Wearne as to his commitment to accessing professional support, I assess the protective factors of his family in Australia, his current risk of deportation, and the needs of his Mother as powerful incentives to rehabilitate.
Nonetheless, given the serious nature of much of the applicant’s offending, the harm that could result to members of the community if that offending were repeated and the real risk of reoffending in the Applicant’s case, the primary consideration of the protection of the Australian community weighs significantly against the revocation of the Cancellation Decision.
Family Violence – paragraph 8.2 of the Direction
In the written material, it emerged that there were allegations of family violence toward a number of the Applicant’s former partners. The Respondent refers to a provisional apprehended violence order (AVO)118F[119] and various applications for AVOs recorded in the COPS reports.119F[120] The Applicant objected at the outset of the hearing to the admission of the material, noting that these reports did not record any outcome and ought not be accorded the weight of sentencing remarks. I reserved the decision of that until after the hearing concluded, and it was upheld save for specific documents which were put to the Applicant, and I have considered his evidence in response to those allegations.
[119] RTB, pages 23 and 334.
[120] RTB, page 376.
The uncontroversial submission was made that where an AVO is made or granted, it is often made by consent and without admissions. The relevant AVO in favour of the Applicant’s partner Ms V was made operative until 2025.120F[121] The circumstances of the order remain opaque, but concurrent charges with the AVO were dismissed upon a verdict of not guilty after a hearing.121F[122] The Applicant’s of evidence as to these allegations was somewhat convoluted asserting the partners involved suffered mental health difficulties and in one case he was attempting to prevent the victim from self-harm.122F[123]. that. On the basis of the above, I am limited as to findings to be made. There has been one AVO and the dismissal of an associated criminal charge. There is no evidence of any breach of that order. This factor is I assess as neutral
[121] RTB, page 334.
[122] RTB, page 441.
[123] See Transcript pages 110, 114-5.
Strength, Nature and Duration of Ties to Australia – paragraph 8.3 of the Direction.
This primary consideration provides:
1Decision-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.
2Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant was born in, and has lived in, Australia his entire life with his immediate family, who continue to reside here. His family have lived continuously in Australia since his parents migrated from Malta .He provided numerous photos indicating his extended family celebrating events over the years. He has visited Malta on two occasions and does not speak Maltese. He had Australian citizenship by birth but surrendered it at his Mother’s urging at age 18.123F[124] He understood this was to assist him obtaining a Maltese passport. He has elderly aunts and uncles in Malta and some cousins but the information as to them is scant.124F[125]
[124] G-Documents, G9, page 130 at [11]-[12].
[125] Transcript, pages 43-4, 158.
He has a close and supportive relationship with his Mother and sisters who provided written statements. One of his sisters also gave oral evidence. At one point, he was employed by one of his sisters she has offered to do so again.125F[126]If he is to remain in Australia, he intends to care for his Mother who has been hospitalised after a fall, to share the load with his sisters.126F[127] There is information before the Tribunal that the health of the Applicant’s mother is precarious, as a result of these proceedings, it could worsen should the Applicant be removed to Malta. Clinical notes from mental health consultations in immigration detention record that the Applicant’s ‘mother fell into depression and blames herself for not applying for his citizenship and paperwork’.127F[128]
[126] ASTB, page 43 at [15].
[127] ASTB, page 6 at [67].
[128] G-Documents, page 148.
I accept his, and his sisters’, assertion that he will be supported emotionally and financially if he remains in Australia. His sister was doubtful she could provide support if he was resident in Malta and I accept again she is operating a business and her generosity could only extend so far.
I accept it would have a considerable impact on his elderly, unwell Mother and his sisters if he were unable to remain in Australia. This is in terms of him sharing the role of caring for their Mother, their aspiration for the Applicant to live with their Mother after she is discharged from rehabilitation, and the relief it would bring if he were able to assist in this role. His sister is able to provide employment for him, however it is unclear how that would logistically work with caring for their Mother.
This consideration weighs very significantly in favour of the Applicant.
I conclude that, given the Applicant was born in, and lived his entire life in, Australia, and has a close relationship with his family, that this consideration be given a very heavy weighting in favour of revoking the Cancellation Decision.
Best interests of minor children – paragraph 8.4 of the Direction
I must determine whether the non-revocation of the cancellation of the Applicant’s visa is, or is not, in the best interests of a child who is affected by the decision. The following factors that I must consider where relevant to this application include:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct
The Applicant provided photos of, and spoke warmly of, his extended family including a niece to whom he is very attached to.128F[129] He has been able to maintain contact with his family whilst incarcerated and in detention.129F[130] He has not, and there is no evidence to support that, he will play a parental role with her.
[129] ASTB, pages 8-11.
[130] Transcript, pages 51-2.
He had, prior to his incarceration, been in a relationship with Ms V who has two sons. Whilst claiming in his written material that he had a close bond with them,130F[131] in his oral evidence he accepted the domestic violence order in force impacted on his ability to have contact with them in the future. He does not nor would it be expected he will play any significant role on their lives.
[131] ASTB, page 6 at [65]; G-Documents, G9, page 133 at [42].
I find that the non-revocation of the applicant's visa is not in the best interests of the applicant's niece and that it would be in her best interests for the cancellation of his visa to be revoked this weighs slightly in favour of the Applicant
Expectations of the Australian community – paragraph 8.5 of the Direction
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 remain in Australia.
The Applicant has failed to obey the laws of Australia and would therefore be expected to be removed from the community. The Applicant’s criminal conduct was serious, but I do not consider that there is an unacceptable risk of further re-offending.
However, the principles also note the increased tolerance afforded to non-citizens who have been in the community from a very young age.131F[132] This increased tolerance applies to the Applicant who was born in Australia and has lived here his entire life. The Tribunal finds he would be afforded some additional tolerance for his offending behaviour in light of that principle. Overall, and given that the safety of the Australian community takes the highest priority,132F[133] this primary consideration weighs moderately against revocation.
[132] Paragraph 5.2(6) of the Direction.
[133] Paragraph 5.2(2) of the Direction.
Other Considerations
In deciding whether there is ‘another reason’ to revoke the cancellation of the Applicant’s visa, I must also take into account the ‘other considerations’ listed in the Direction, but these are not exhaustive.
Legal Consequences of Decision – paragraph 9.1 of the Direction
In assessing the consequences of this decision, the Tribunal accepts that it must ‘read, identify, understand and evaluate the plaintiff's representations made in response to the invitation issued to him under s 501CA(3)(b) that raised a potential breach of Australia's international non‑refoulement obligations’.133F[134] This is necessary to properly assess whether there is any other reason why the mandatory cancellation of the Applicant’s visa should be revoked.
[134] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [9] (Keifel CJ, Keane, Gordon and Steward JJ (with whom Gageler J agreed)).
The Applicant is currently in detention after the conclusion of his sentence of imprisonment pending resolution of these issues. It is accepted that prolonged detention or detention of unknown duration is causing the Applicant hardship and has caused his ongoing separation from his family.
It was the Applicant’s position in his material contended he was pursuing the issue of his citizenship, during the hearing and in the supplementary submissions made by the Counsel for the Applicant it was conceded that it is unlikely he is an Australian citizen.134F[135]
[135] Applicant’s Submissions in Reply at [37].
Both parties accepted that should the decision not be revoked there is the very real prospect he will be removed to Malta. It is accepted that if that occurs, the effect of the exclusion and other visa applications would cause permanent or at least extended separation from his family members and considers some weight should be placed on that prospect. Nonetheless, those impacts arise as an intended outcome of the failure to satisfy the character requirements of the Act, the Tribunal affords only slight weight to those consequences in favour of non-revocation.
Extent of impediments if removed – paragraph 9.2 of the Direction
The extent of any impediments the Applicant would face if removed to his ‘home country’135F[136] must be considered noting that, in this case, he has never lived in Malta.
[136] Paragraph 9.2(1) of the Direction.
Issues of establishing himself and maintaining basic living standards are relevant including his age and health, any language and cultural barriers, and any social, medical and/or economic support available to him in that country. The Applicant is in his fifties and has a range of physical, mental health, and cognitive issues which would make it difficult for him to establish himself and undertake employment in Malta. Specifically, the Applicant has been diagnosed with Post Traumatic Stress Disorder; Anxiety with depression; and substance use disorder.
He asserted he started using drugs to cope with the child sexual abuse he experienced, and Dr Wearne opined that the Applicant would currently fulfil the criteria for substance misuse in remission. The Applicant has impaired mobility with a number of physical health conditions which have, and is likely to, affect him in employment, such as impinged vertebrae at the cervical level, neuropathic pain, and back pain.
He has had semi-skilled work in Australia and the offer of employment tailored to his needs is available in Australia. He does not speak Maltese. He has no current relationships with relatives in Malta. The Tribunal has no information as to what professional support is available in Malta, however he has structured and appropriate treatments in place in Australia. The lack of certainty of such supports in Malta should the Applicant be removed would be detrimental and put his mental health at risk, as opined by Dr Wearne 136F[137] that it would have a “huge psychosocial issue that would deteriorate his mental health” and I weigh this factor very heavily in favour of revocation of the Cancellation Decision.
[137] T2-3-2-4
Impact on Australian business interests – paragraph 9.3 of the Direction
There is no evidence of impact on Australian business interests within the meaning of the Direction. This factor is neutral.
CONCLUSION
The Applicant does not pass the character test under s 501(6) of the Migration Act as conceded by his legal representatives. Therefore, the task of the Tribunal is to synthesise the relevant considerations to reach a single dispositive finding as to whether there is ‘another reason’ why the mandatory Cancellation Decision ought to be revoked.
In doing so, I have had regard to all of the primary and other considerations and I am now required to carry out the evaluative exercise of weighing up the considerations upon the evidence and findings made, within the overarching framework provided by the Direction.
The primary consideration of the protection of the Australian community weighs heavily against revocation of the Cancellation Decision.
The primary consideration of family violence is neutral based on the evidence.
The strength, nature and duration of the Applicant’s ties to Australia weigh very heavily in favour of revocation of the Cancellation Decision, noting that he has lived in Australia all of his life and had Australian citizenship until age 18.
The best interests of the minor children weigh slightly in favour of revocation.
The expectations of the Australian community would be that the visa ought to be cancelled and therefore this consideration weighs moderately against revocation of the Cancellation Decision.
Of the ‘other considerations’ identified in the Direction, the Tribunal finds that the impediments to removal weighs significantly in favour of revocation of the Cancellation Decision.
The legal consequences of his removal weigh slightly against the revocation of the Cancellation Decision.
In clear terms, paragraph 7(2) of the Direction 110 states that primary considerations should generally be given greater weight than the other considerations. Further, it states that primary consideration 8.1 (protection of the Australian community) is generally to be given greater weight than other primary considerations.
Having weighed the considerations against each other, the Tribunal finds that the first and fifth considerations weigh against revocation of the Cancellation Decision, being the primary considerations of the protection of the Australian community, and the expectations of the Australian community, are weigh heavily and moderately respectively against the of revocation of the Cancellation Decision. The issue of family violence is neutral in relation to the revocation of the decision. The third primary considerations of the strength, nature and duration of ties to Australia weigh very heavily in favour of the revocation of the Cancellation decision., as do the other considerations being the legal consequences of the decision and the extent of impediments if removed. The best interests of a child/children weigh slightly in favour of revocation of the Cancellation decision .
In relation to the other considerations the legal impediments to removal weigh heavily in favour of the revocation of the Cancellation decision.
Whilst the first and fifth primary considerations weigh heavily and moderately against the revocation, the third consideration in conjunction with the impediments to removal ought to be afforded heavier weight in this case, given the outcome that they signify. In conclusion, having regard to all primary considerations and other considerations in the Direction, I am satisfied that there is ‘another reason’ to revoke the Cancellation Decision.
The decision of the Tribunal is to set aside the Non-Revocation Decision and to substitute a decision so as to revoke the Cancellation Decision.

I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President K McMillan KC

Date of hearing: 21, 22 and 24 October 2024

Solicitors for the Applicant: Mr McCarthy, Legal Aid NSW

Solicitors for the Respondent: Ms Tattersall, Sparke Helmore Lawyers
ANNEXURE A
TABLE OF THE APPLICANT’S OFFENDING HISTORY IN AUSTRALIA
Offending table details drawn from the Australian Criminal Intelligence Commission ‘Check Results Report,’ dated 17 May 2023137F[138] and the New South Wales Police Force ‘Criminal History – Bail Report’ dated 19 September 2024.138F[139]
[138] G-Documents, G6, pages 52-57.
[139] RTB, pages 412-442.

Conviction Date	Court	Offence	Offence Date(s)	Court Result
1.	15 April 2024	Burwood Local Court	Possess prohibited drug	1 November 2022	s 10A conviction with no other penalty
2.	30 August 2023	Sutherland Local Court	Assault police officer in execution of duty w/o abh-T2	25 January 2023	s 10A conviction with no other penalty
3.	30 August 2023	Sutherland Local Court	Goods in personal custody suspected being stolen (not m/v)	25 January 2023	s 10A conviction with no other penalty
4.	30 August 2023	Sutherland Local Court	Hinder or resist police officer in the execution of duty	25 January 2023	s 10A conviction with no other penalty
5.	30 March 2023	Downing Centre Local Court	Supply prohibited drug > indictable & < commercial quantity – T1	31 January 2021	Imprisonment: 16 months
6.	30 March 2023	Downing Centre Local Court	Possess prohibited drug	22 November 2022	s 10A conviction with no other penalty
7.	30 March 2023	Downing Centre Local Court	Drive motor vehicle during disqualification period – 2nd+off	20 October 2021	(Call up) breach, no action on breach
8.	30 March 2023	Downing Centre Local Court	Drive motor vehicle during disqualification period – 2nd+off	22 September 2021	(Call up) breach, no action on breach
9.	30 March 2023	Downing Centre Local Court	Possess prohibited drug	22 September 2021	(Call up) breach, no action on breach
10.	30 March 2023	Downing Centre Local Court	Resist or hinder police officer in the execution of duty	22 September 2021	(Call up) breach, no action on breach
11.	30 March 2023	Downing Centre Local Court	Not comply with noticed direction re s 7/8/9 – COVID-19	22 September 2021	(Call up) breach, no action on breach
12.	23 November 2022	Newtown Local Court	Detention application – arrest	22 November 2022	Breach of bail established
13.	2 November 2022	Burwood Local Court	Detention application – arrest	10 October 2022 – 1 November 2022	Breach of bail established
14.	14 July 2022	Downing Centre Local Court	Possess prohibited drug	22 September 2021	Fine: $500 Community Correction Order (CCO): 12 months Supervision: 12 months
15.	14 July 2022	Downing Centre Local Court	Not comply with noticed direction re s 7/8/9 – COVID-19	22 September 2021	Fine: $500 CCO: 6 months Supervision: 6 months
16.	14 July 2022	Downing Centre Local Court	Resist or hinder police officer in the execution of duty	22 September 2021	CCO: 12 months Supervision: 12 months
17.	14 July 2022	Downing Centre Local Court	Drive vehicle, illicit drug present in blood etc – 2nd+off	22 September 2021	s 10A conviction with no other penalty Auto/Statutory period-driver
18.	14 July 2022	Downing Centre Local Court	Drive motor vehicle during disqualification period – 2nd+off	22 September 2021	CCO: 12 months Supervision: 12 months Auto/statutory period-driver
19.	14 July 2022	Downing Centre Local Court	Drive vehicle, illicit drug present in blood etc – 2nd+off	5 March 2022	Fine: $500 Disqualification – driver: 12 months
20.	14 July 2022	Downing Centre Local Court	Drive vehicle, illicit drug present in blood etc – 2nd+off	5 March 2022	Fine: $500 Auto/Statutory period-driver
21.	27 May 2022	Downing Centre Local Court	Drive vehicle, illicit drug present in blood etc – 2nd+off	CCO: 18 months Disqualification – driver: 12 months
22.	27 May 2022	Downing Centre Local Cort	Drive motor vehicle during disqualification period – 2nd+off	20 October 2021	Community Correction Order (COO): 18 months Disqualification – driver: 12 months
23.	27 May 2022	Downing Centre Local Court	Drive vehicle, illicit drug present in blood etc – 2nd+off	18 January 2021	CCO: 18 months Disqualification – driver: 12 months
24.	1 April 2022	Downing Centre Local Court	Detention application notice after breach etc	5 March 2022	Breach of bail established
25.	4 November 2021	Newtown Local Court	Variation application notice after breach etc	20 October 2021	Breach of bail established
26.	23 September 2021	Newtown Local Court	Detention Application – arrest	22 September 2021	Breach of bail established
27.	23 June 2021	Liverpool Local Court	Drive vehicle, illicit drug present in blood etc – 2nd+off	31 December 2020	Fine: $1,000 Disqualification – driver: 6 months
28.	29 January 2021	Newtown Local Court	Drive vehicle, illicit drug present in blood etc – 2nd+off	19 July 2019	Fine: $1,800 Disqualification – driver: 6 months
29.	13 December 2019	Waverley Local Court	Drive while licence cancelled – 2nd+off	9 June 2018	Conditional Release Order w/o conviction: 12 months
30.	4 April 2018	Newtown Local Court	Possess prohibited drug	18 September 2017	Bond s 9: 2 years supervised NSW probation service for counselling, educational development or drug and alcohol rehabilitation
31.	18 January 2018	Downing Centre Local Court	Drive vehicle, illicit drug present in blood etc – 1st off	5 October 2017	Fine: $750 Disqualification – driver: 4 months
32.	10 December 2017	Parramatta Local Court	Detention application – arrest	10 December 2017	Breach of bail established
33.	30 November 2017	Newtown Local Court	Variation application notice after breach etc	27 October 2017	(Call up) no action on breach
34.	26 March 2015	Downing Centre District Court	Possession of equipment for administering prohibited drugs	27 November 2013	Taken into account on form 1
35.	26 March 2015	Downing Centre District Court	Supply prohibited drug >indict. quantity (not cannabis)-SI	27 November 2013	Imprisonment: 2 years 5 months
36.	26 March 2015	Downing Centre District Court	Supply a prohibited drug	27 November 2013	Imprisonment: 1 year 3 months
37.	26 March 2015	Downing Centre District Court	Knowingly deal with proceeds of crime-SI	27 November 2013 – 28 November 2013	Imprisonment: 3 months
38.	30 March 2009	Sydney District Court	Driver/rider state false name/address	26 July 2007	Taken into account on form 1
39.	30 March 2009	Sydney District Court	Drive while disqualified from holding a licence	26 July 2007	Imprisonment: 6 months Disqualification: 2 years
40.	30 March 2009	Sydney District Court	Accessory before fact to an offence – do act etc w/i to pervert	N/A	Imprisonment: 2 years 2 months
41.	30 March 2009	Sydney District Court	Supply prohibited drug >indict. quantity (not cannabis)-SI	N/A	Imprisonment: 5 years
42.	30 March 2009	Sydney District Court	Manufacture prohibited drug	26 September 2007	Taken into account on form 1
43.	30 March 2009	Sydney District Court	Supply prohibited drug >indict. quantity (not cannabis)-SI	26 September 2007	Taken into account on form 1
44.	30 March 2009	Sydney District Court	Goods in personal custody suspected being stolen (not m/v)	26 September 2007	Taken into account on form 1
45.	30 March 2009	Sydney District Court	Deemed supply prohibited drug – supply prohibited drug >indict	N/A	Indicted for imprisonment: 1 year 8 months
46.	8 April 2008	Sydney District Court	Supply a prohibited drug	17 December 2000	(Call up) no action on breach
47.	8 April 2008	Sydney District Court	Supply a prohibited drug	17 December 2000	(Call up) no action on breach
48.	3 March 2008	Burwood Local Court	Class A m/v exceed speed > 30km/h and <= 45km/h	11 August 2006	Fine: $600 Costs-court: $70 Disqualification: 3 months
49.	11 December 2007	Parramatta District Court	Drive on road etc while licence suspended	11 June 2006	Conviction confirmed In lieu fine: $500 Disqualification: 12 months
50.	11 December 2007	Parramatta District Court	Drive while disqualified from holding a licence	9 December 2006	Conviction confirmed In lieu imprisonment: 9 months Disqualification: 2 months
51.	23 November 2007	Blacktown Local Court	Drive on road etc while licence suspended	11 June 2006	Imprisonment: 9 months Disqualification: 2 years
52.	23 November 2007	Blacktown Local Court	Drive while disqualified from holding a licence	9 December 2006	Imprisonment: 9 months Disqualification: 2 years
53.	23 August 2007	Sydney District Court	Supply a prohibited drug	17 December 2000	(Call up) on action on breach
54.	31 July 2007	Blacktown Local Court	Class A m/v exceed speed > 15km/h and <= 30km/h	11 June 2006	Fine: $300
55.	11 July 2007	Downing Centre Local Court	Class A m/v exceed speed > 30km/h and <= 45km/h	22 November 2006	Fine: $450 Costs-court: $70 Disqualification: 6 months
56.	11 July 2007	Downing Centre Local Court	Drive while disqualified from holding a licence	22 November 2006	Fine: $1,000 Costs-court: $70 Disqualification: 2 years
57.	17 November 2006	Burwood Local Court	Class A m/v exceed speed > 30km/h and <= 45km/h	11 August 2006	Fine: $500 Costs-court: $67 Disqualification: 3 months
58.	17 November 2006	Burwood Local Court	Drive on road etc while licence suspended	11 August 2006	Fine: $1,000 Costs-court: $67 Disqualification: 12 months
59.	4 May 2005	Sydney District Court	Supply a prohibited drug	17 December 2000	(Call up) Imprisonment: 2 years Suspended on enter bond s 12: 2 years supv NSW prob service particularly for treatment for drug addiction
60.	4 May 2005	Sydney District Court	Supply a prohibited drug	17 December 2000	(Call up) Imprisonment: 2 years Suspended on enter bond s 12: 2 years supv NSW prob service including any directions particularly need for treatment for drug addiction
61.	27 October 2004	Sydney District Court	Supply a prohibited drug	17 December 2000	(call up) no action on breach
62.	10 July 2003	Sydney District Court	Supply a prohibited drug	17 December 2000	Indicted for community service order: 400 hours
63.	10 July 2003	Sydney District Court	Supply a prohibited drug	17 December 2000	Bond s 9: 2 years supv NSW prob service obey directions regarding the use of illegal substances advise registrar any change of address
64.	31 July 1998	Balmain Local Court	Licence cancelled drive vehicle cancelled for	5 June 1998	Fine: $500 Disqualification: 12 months Costs-court: $51
65.	31 July 1998	Balmain Local Court	Motor vehicle/cycle exceed speed > 15kmh but <= 30kmh	5 June 1998	Fine: $250 Costs-court: $51
66.	4 February 1993	Newtown Local Court	Disq driver	N/A	Community Service Order: 40 hours Lic Disq: 6 months Court costs: $45
67.	22 December 1992	Kogarah Local Court	Low PCA	N/A	Fine: $300 Court costs: $45 Dis: 4 months
68.	18 December 1990	Wollongong Local Court	Offensive language	N/A	Fine: $150 on each charge
69.	18 December 1990	Wollongong Local Court	Resist arrest (4 counts)	N/A	Fine: $150 on each charge
70.	6 June 1985	Newtown Local Court	Fail to supply particulars	N/A	Fine: $150
71.	6 June 1985	Newtown Local Court	Drive stolen conveyance	N/A	Recog s 558 self $400 GB 2 years recog entered Hayes LCM
72.	6 June 1985	Newtown Local Court	Negligent driving	N/A	Fine: $250

Date of hearing:	21, 22 and 24 October 2024
Solicitors for the Applicant:	Mr McCarthy, Legal Aid NSW
Solicitors for the Respondent:	Ms Tattersall, Sparke Helmore Lawyers