Davis and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 1328

Davis and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1328 (25 May 2023)
Division:GENERAL DIVISION
File Number: 2023/1467
Re:Susan Davis
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:25 May 2023
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 1 March 2023, is affirmed.
...............[Sgd]...................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – mandatory visa cancellation – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s Visa – character test – substantial criminal record – offence of grievous bodily harm – Applicant is a 57 year old citizen of New Zealand who arrived in Australia as a 24 year old adult – Direction No 99 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – strength, nature and duration of ties to Australia – best interests of minor grandson – expectations of the Australian community – legal consequences of the decision – Australia’s international non-refoulement obligations – extent of impediments if removed to New Zealand – Reviewable Decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 499(1), 499(2A), 500(6B), 500(6L), 501, 501(3A) , 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)
Sentencing Act 1995 (WA) s 22(4)
CASES
Kohli and Minister for Immigration and Border Protection [2017] AATA 1326
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Moli and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 666
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Webb v Minister for Home Affairs [2020] FCA 831
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
SECONDARY MATERIALS
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (23 January 2023) paras 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 6, 7, 8, 8(1), 8(2), 8(3), 8(4), 8(5), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a)(i), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.1(1)(h), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.3, 8.3(1), 8.3(2), 8.3(3), 8.3(4), 8.4, 8.4(4), 8.4(4)(a), 8.4(4)(b), 8.4(4)(c), 8.3(4)(d), 8.4(4)(e), 8.4(4)(f), 8.4(4)(g), 8.4(4)(h), 8.5, 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 8.5(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.1(1), 9.1(2), 9.1(3), 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4(1)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
25 May 2023
BACKGROUND

The Applicant is a 57-year-old woman who was born in New Zealand. She came to Australia as a 24-year-old adult in January 1990 (G10/53).
On 24 February 2022, the Applicant was sentenced in the District Court of Western Australia to three years and six months imprisonment for the offence of “grievous bodily harm” (G7/47).
On 10 March 2022, the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (Visa) was mandatorily cancelled (Cancellation Decision) under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) on the basis that she had a substantial criminal record and was serving a full-time custodial sentence of imprisonment (G11/54).
The letter advising the Applicant of the Cancellation Decision advised that she could make representations to seek revocation of the Cancellation Decision. The Applicant sought revocation of the Cancellation Decision on 16 March 2022 (G12). She submitted a personal circumstances form, and evidence in support (G13-G15).
However, on 1 March 2023, a delegate of the Minister decided not to exercise discretion under s 501CA(4) of the Migration Act to revoke the Cancellation Decision (G4/25). This is the Reviewable Decision currently before me.
The Applicant was notified of the Reviewable Decision on 2 March 2023 (G3 and signed acknowledgment filed by the Respondent after the hearing).
On 9 March 2023, the Applicant lodged an application seeking a review of the Reviewable Decision in the General Division of this Tribunal (G2A; G2B). Therefore, the application for review was lodged within the nine-day period prescribed by s 500(6B) of the Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which an applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the 84-day period started running from 2 March 2023, meaning that I must hand down a decision on or before 25 May 2023.
ISSUES
The issues that I need to determine are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if she does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
THE HEARING AND THE EVIDENCE
The hearing of this application was held on 5 May 2023.
Ms Davis represented herself and appeared in person. Mr Dennis of Minter Ellison Lawyers represented the Respondent and appeared by Microsoft Teams.
The Applicant and her adult sons, J and A, gave evidence at the hearing in person. Her friend, D, gave evidence by telephone.
I admitted the following documents into evidence at the hearing:
(a)handwritten letter of the Applicant (undated) (Exhibit A1);
(b)character reference from D dated 7 March 2023 (Exhibit A2);
(c)email from the Applicant’s son, A, dated 7 March 2023 (Exhibit A3);
(d)email from the Applicant’s son, J, dated 7 March 2023 (Exhibit A4);
(e)email from the Applicant’s nephew, K, dated 7 March 2023 (Exhibit A5);
(f)“Documents provided under section 501G of the Migration Act (G Documents)”, labelled G1-G19, comprising pages 1-110 (Exhibit R1); and
(g)Respondent’s Supplementary Documents, labelled S1-S45, comprising pages 1-164 (Exhibit R2).
The Respondent filed a Statement of Facts, Issues and Contentions (SFIC) dated 12 April 2023 prior to the hearing. The Applicant did not file a SFIC or any equivalent written submissions.
LEGISLATIVE FRAMEWORK
Migration Act
Subsection 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
i. paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
ii. paragraph (6)(e) (sexually based offences involving a child); 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.
Subsection 501(6)(a) of the Migration Act provides that:
(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
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(Original emphasis.)
Section 501CA of the Migration Act further provides, in part:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
i.      a written notice that sets out the original decision; and
ii.     particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
i.      that the person passes the character test (as defined by section 501); or
ii.     that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No 99
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 23 January 2023, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 99) under s 499 of the Migration Act, which commenced operation on 3 March 2023. This Direction replaced the previous Direction No 90: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA made on 8 March 2021 (Direction No 90).
Paragraph 5.1 of Direction No 99 sets out “[o]bjectives”, with paragraphs 5.1(3) and (4) being relevant to the current application:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
(4)The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of Direction No 99 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. The principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)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 [sic] risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(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 [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in paragraph 5.2 of Direction No 99, when making a decision the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 99) must consider the primary considerations listed in paragraph 8 of Direction No 99, and the other considerations listed in paragraph 9 where relevant (see para 6 of Direction No 99).
Specifically, paragraph 8 of Direction No 99 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)       whether the conduct engaged in constituted family violence;
(3)       the strength, nature and duration of ties to Australia;
(4)       the best interests of minor children in Australia;
(5)       expectations of the Australian community.
Paragraph 9 of Direction No 99 lists other considerations to be considered as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)        legal consequences of the decision;
b)        extent of impediments if removed;
c)        impact on victims;
d)        impact on Australian business interests
Guidance as to how a decision-maker is to apply the considerations in
Direction No 99 can be found in paragraph 7, “[t]aking the relevant considerations into account”, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Minister may revoke the Cancellation Decision if the Minister is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
As I explained above, the Applicant does not pass the character test due to the operation of s 501(6)(a) of the Migration Act because she has a “substantial criminal record” as defined by s 501(7) of the Migration Act, having been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act). This is due to her “grievous bodily harm” conviction for which she was sentenced to a term of three years and six months’ imprisonment on 24 February 2022.
As the Applicant fails the character test, the statutory power to revoke will only be enlivened if there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
PRIMARY CONSIDERATIONS
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 99)
Paragraph 8.1(1) of Direction No 99 provides that:
(1)When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction No 99 then provides:
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 99)
Paragraph 8.1.1(1) of Direction No 99 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to 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, , [sic] or an offence against section 197A 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 re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.

Prior to coming to Australia, the Applicant had three minor drug convictions in New Zealand for which she received fines (G9/52). These were:
(a)“possess cannabis plant” in 1985 for which she received a $75 fine; and
(b)“possess cannabis plant” and “possess pipe or utensil for cannabis” in 1987 for which she received a $200 fine and a $50 fine.
The Applicant has convictions for 11 driving offences between 29 April 1999 and 15 June 2011 (G6/38; R2/21). The offences were as follows (the dates stated are the conviction dates):
(a)29 April 1999: “no motor drivers licence” for which she received a fine of $100 and a three month disqualification;
(b)9 April 2003: “no motor drivers licence – under fines suspension” for which she received a $200 fine and “refuse to supply or provide false name and address” for which she received a fine of $100;
(c)17 June 2003: “no motor drivers licence – under fines suspension” for which she received a $300 fine;
(d)29 July 2003: “unlicensed vehicle” for which she received a $100 fine;
(e)27 June 2007: “no motor drivers licence – under fines suspension” for which she received a fine of $800 and a disqualification for six months;
(f)21 January 2011: “false number plate (not issued for that vehicle)” for which she received a $250 fine and “unlicensed vehicle (owner/driver)” for which she received a $200 fine; and
(g)15 June 2011: “false number plate (not issued for that vehicle)” for which she received a $500 fine, “driver fail to report an incident involving property damage” for which she received a fine of $100 and “unlicensed vehicle/owner driver” for which she received a $280 fine.
I do not accept the Respondent’s submission that there was a degree of dishonesty involved in the Applicant’s driving offences (transcript/69). At the hearing the Applicant readily admitted that she was aware she was driving without a licence, that her car was unregistered, and that she had false number plates (transcript/43). Although one of the offences involved false details being provided to police, the statement of material facts states that she gave her full name, but changed the first letter of her middle name, and that she changed her birth month and the numbers in her address. It further states that when the discrepancies were put to the Applicant, she “reluctantly admitted she had given false details … as she did not have a drivers licence” (R2/2). Although this offence involved an element of dishonesty to escape apprehension, I do not accept that all or some of the Applicant’s other driving offences demonstrated a degree of dishonesty.
The Applicant also has several speeding fines between 2006 and 2015 (R2/62).
On 21 November 2007, the Perth Magistrates Court recorded a spent conviction for the offence of “stealing” which occurred on 26 October 2007 and placed the Applicant on a 6 month community based order (R2/21). The Respondent’s legal representative took the Applicant to the statement of material facts for this offence at the hearing. The facts set out in that statement were that the Applicant had stolen several items valued at $39 from a “Red Dot” retail store by placing them in her bag and leaving the store without paying for them. At the hearing the Applicant conceded that the statement was an accurate description of what took place that day (transcript/44). Despite this concession and being able to consider conduct as well as offending, I give minimal to no weight to this conviction because it is a spent conviction.
After her last driving convictions on 15 June 2011, the Applicant was not convicted of any further offences until 24 February 2022, when she was sentenced to three years and six months imprisonment with parole eligibility, after pleading guilty to “grievous bodily harm” on 29 November 2021 (G7/40). The sentencing Judge described the offending as follows (G7/40-41):
The circumstances of your offending as I find them to be are as follows. As of 1 August 2020, your son J and the victim [name omitted] were living at [address omitted].
You had all been living at that address for about a year. Your son and the victim were mates. The victim [name omitted] was 37 years of age at the time of your offending, you were 56 years old at that time.
On the morning of 1 August 2020, you, your son J, and the victim [name omitted], together with two adult friends and two young children were all at the residence. Over the course of the previous evening, you’d made a number of comments to the victim to the effect of, “Fuck off out of my house, fucking dog”.
And it wasn’t unusual for you to engage in this type of conduct with the victim. You would regularly bang on his bedroom door at night and yell abuse at him. The victim tolerated your behaviour towards him because he knew you suffered from schizophrenia, and you were his mate’s mother.
Between 11 am and 12 pm on 1 August 2020, the victim was in the kitchen your son. They were talking and making breakfast. At this stage, you had been in your room all morning and hadn’t yet interacted with the victim that day.
You suddenly came out of your bedroom, entered the kitchen. The victim had his back to you. You came up behind the victim and you stabbed him in the anus with a kitchen knife that was between 10 to 15 centimetres long. The blade had been inserted fully into the victim’s anus.
At that time, the victim was wearing underwear and a pair of tracksuit pants. He suddenly felt something in his anus and, when he was stabbed, he reached around to feel the handle of a knife sticking out of his anus. You were mouthing off about how the victim was having – having attacked you.
The victim pulled the knife out of his anus and either dropped it on the floor, or placed it on the kitchen bench. He then went to lie down on the front verandah while waiting for an ambulance to arrive. One of the other adults there assisted the victim by applying pressure to his buttocks area with a rag.
When you stabbed the victim, your son J grabbed you by both upper arms, and walked you into the garage and sat you on a stool.
Shortly after, at about 12.30 pm, two police officers attended the residence – your residence who observed – who saw the victim bleeding profusely by the front door.
They then went to the garage and placed you under arrest. …
The Applicant’s grievous bodily harm offence is a violent offence, and therefore falls within a category of offending that Direction No 99 states should be “viewed very seriously” (para 8.1.1(1)(a)(i) of Direction No 99).
The sentencing Judge also described the grievous bodily harm offence as “serious”, the victim’s injuries as “significant and very serious” and that without medical treatment the victim’s life would have been endangered. The sentencing Judge also noted that there would have been a psychological impact of the offending on the victim, and that it was likely he would continue to experience trauma from the offending for a significant amount of time (G7/42-43).
Her Honour summarised the seriousness of the offending as follows (G7/47):
… you need to understand that your attack on the victim was very serious. Very serious. In my view, it was an unprovoked attack on a man who was vulnerable by his situation in that he was going about his business and had no idea you were about to attack him, and he had his back to you when you did this.
The attack occurred when there were two little children around the area. The victim was in his own home, a place where he was well entitled to feel safe. You used a weapon to cause this grievous bodily harm to the victim which in my view is aggravating. The nature of the injuries that you occasioned to him were very serious injuries. As I said to you, in my view your attack on him was vicious.
The seriousness of the offending and the likely impact, both physically and psychologically, on the victim is also demonstrated by the sentencing Judge imposing a lifetime violence restraining order, which amongst other things, prevented her from communicating with or approaching the victim (G7/48).
With respect to the Applicant’s driving offences, this Tribunal has often regarded driving offences as being serious (see Senior Member Poljak in Kohli and Minister for Immigration and Border Protection [2017] AATA 1326 at [20]). I find that they are at the lower end of seriousness of that type of offending because they did not involve driving dangerously or recklessly or under the influence of drugs or alcohol. They do, however, tend to indicate a disregard for laws and a disregard for the safety of innocent members of the community who share the roads. It is encouraging that the Applicant’s last driving conviction was in June 2011, and that she has not committed any further driving offences since that time.
A further indication that the Applicant’s driving offences are of a less serious nature is that she received fines and driving disqualifications for them. In contrast, her three-and-a-half-year sentence of imprisonment for the grievous bodily harm offence is, in my view, reflective of the seriousness of that offending (para 8.1.1(1)(c) of Direction No 99).
I now turn to the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness (para 8.1.1(1)(d) of Direction No 99). The Applicant has 11 driving offences committed over a 12-year period between 1999 and 2011, and so overall, her offending cannot be considered frequent. There is a slight increase in seriousness in some of her driving offences which is indicated by higher fines for repeated offences. For example, the fines imposed for “no motor drivers licence – under fines suspension” started at $200, and then increased to $300 and $800 on subsequent occasions (G6/38). There was a period of approximately 11 years (from 2011 until 2022) when she did not commit any offences at all, culminating in her most recent offence, the grievous bodily harm offence, which was her only violent offence and the most serious. The sentencing Judge observed that: “The current offending constitutes a serious escalation in your offending” (G7/46). I agree with that assessment.
There is a slight cumulative effect of repeat driving offending given the number of court appearances and fines, however, the Applicant has only committed one criminal offence and has been sentenced to one sentence of imprisonment, so I do not regard that offending to have a cumulative effect (para 8.1.1(1)(e) of Direction No 99).
I am also required to consider whether the Applicant has provided false or misleading information to the Department of Home Affairs, including not disclosing prior criminal offending (para 8.1.1(1)(f) of Direction No 99). There is an undated statement from the Applicant which she wrote from prison which states that she failed to declare her New Zealand convictions on an incoming passenger card when she travelled to New Zealand and returned to Australia in 2014 (G15/82). The incoming passenger card is missing from the materials and the Respondent did not put this to the Applicant at the hearing. I therefore accept the Applicant’s explanation in her undated statement that she forgot to mention her convictions and that her sister filled out the card for her and was unaware the Applicant had any convictions.
Paragraph 8.1.1(1)(g) of Direction No 99, requires me to consider whether the Applicant previously received any formal or other written warnings that further offending may affect her migration status. She has not received any such warnings.
As I mentioned above, the Applicant has three cannabis possession offences in New Zealand, which similarly would be offences under Western Australian law (para 8.1.1(1)(h) of Direction No 99).
In summary, the Applicant’s driving offences, and the conduct of stealing which she admitted to, but which did not result in a charge or conviction, are of a low degree of seriousness. However, as indicated by factors including the violent nature of the offending, the injuries suffered by the victim, the sentence imposed and the sentencing Judge’s comments about the seriousness of the offending, her grievous bodily harm offence, which resulted in the Cancellation Decision, was very serious.
Overall, I find that paragraph 8.1.1 of Direction No 99, the nature and seriousness of the conduct, weighs very strongly against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 99)
Paragraph 8.1.2(1) of Direction No 99 provides:
(1)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.
Paragraph 8.1.2(2) of Direction No 99 provides, in part, in relation to assessing risk:
(2)In assessing the risk that may be 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).
…
Nature of the harm (para 8.1.2(2)(a) of Direction No 99)
Broadly speaking, I am required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should she engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 99).
If the Applicant were to commit a further violent offence, it could result in loss of life. Victims of violent offending may also suffer physical injuries, temporary or permanent impairment and psychological harms. Victims may suffer financial detriment if their physical and psychological injuries impact their ability to work. There may also be a burden, both financial and emotional, on the loved ones and the family members of victims who may have to provide additional physical, financial and emotional support to victims following a violent offence.
Additionally, driving offences can potentially be serious and can result in physical and psychological injuries to innocent road users, as well as fatal consequences. Licensing rules exist to ensure that persons driving cars are appropriately qualified and safe to do so. Although the Applicant has driven while her licence has been suspended and with false number plates, she does not appear to be a dangerous or negligent driver. Nevertheless, an underlying objective of these laws is road safety, including ensuring persons are appropriately qualified to drive and ensuring vehicles are roadworthy. Further contraventions of such laws could result in a range of consequences, from minor to serious.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 99)
Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if she were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (para 8.1.2(2)(b)(i) and sub-para (ii) of Direction No 99).
Given that the Applicant has not committed any driving offences for approximately 12 years, I think there is a very minimal possibility of further offences of that kind in the future. The main concern, or in other words the main risk, is regarding further violent offending.
The Applicant was assessed by prison treatment assessors as being a low risk of reoffending. She scored six out of 22 when the Risk of Reoffending-Prison Version screening tool was administered with the range of scores being one to 22 (with 22 being the highest risk of reoffending). As a result, she was not assessed for criminogenic programs (R2/114 and 115). At the hearing, the Applicant said that before she left prison, she had approximately three drug and alcohol counselling sessions with an organisation called Holyoake (transcript/30-31). She also mentioned that she was going to do an online course called “Beyond Violence” but had not had the chance to do it yet (transcript/31-32 and 51).
The Applicant’s situation is somewhat complicated because she has a history of drug use and schizophrenia. Her situation is further complicated because she does not think that her drug use is related to her schizophrenia or to her grievous bodily harm offence. She also denies having a schizophrenic episode when she attacked the victim of her grievous bodily harm offence. Often, there is a link between drug use and offending, and mental health and offending. Sometimes, drug use can negatively impact mental health, which can be contributing factors to offending behaviour. It is therefore important, in my view, to consider these issues with respect to the Applicant in more detail and to determine their relevance to her risk or likelihood of reoffending.
I first turn to the Applicant’s schizophrenia. She has suffered from it for over 30 years, having developed it after her pregnancy when her first son was approximately seven months old. The Applicant stated that she was diagnosed with schizophrenia in 1994 (G2B/9). She described that she started hearing voices and seeing images (transcript/35). In the year leading up to her grievous bodily harm offence, the Applicant had lapsed with taking her schizophrenia medication and was only taking it every third day instead of every day (transcript/36-37 and 47). She said that she stopped taking her medication because she lost her appetite and was having trouble sleeping (transcript/48). Since she went to prison, as well as in immigration detention, the Applicant has had a monthly depot injection and she also takes a tablet each morning for her schizophrenia (transcript/23; R2/135). She described having lapsed in taking her medication “a couple of years ago” when she came back from New Zealand during a period when she had broken up with her boyfriend and was not looking after herself (transcript/23). According to her movement records, the Applicant travelled to New Zealand in September 2014, so I infer from this evidence there was a lapse in taking her medication in approximately 2014 as well as in the year leading up to the grievous bodily harm offence.
The sentencing Judge did not accept the Applicant’s explanation that she attacked the victim in self-defence because he had assaulted her the previous day by kneeing her to the ribs and punching her to the hip. Her Honour described this explanation as “actual delusions” which the Applicant had acted on (G7/43). The sentencing Judge also observed that the Applicant had stopped taking her medication at the time of the offending (G7/45). Relevantly, the sentencing Judge, who had the benefit of a pre-sentence report and a psychiatric report (G7/43) (which were not made available to me by the Court due to the prohibition in s 22(4) of the Sentencing Act 1995 (WA)), stated (G7/46):
I turn now to consider your prospects of rehabilitation. Your biggest challenged [sic] is to remain medicated for your schizophrenia.
When you go off your drugs and if you do go off your drugs, then bad things happen, bad things occur. And we don’t want that to happen, so you must stay medicated.
If you come off your medications, then what happens is that you then become a big risk of doing something awful.

I accept the comments of the sentencing Judge (who, as I have pointed out had the benefit of reviewing the pre-sentence and psychiatric report) that the Applicant’s schizophrenia was a factor in her offending and that it is essential that she remain on her medication. There are currently no firm plans in place regarding the Applicant’s mental health if she is released into the community. She intends to continue to take her medication (transcript/24), to go to a general practitioner to get a mental health plan and said she would make appointments to see a psychiatrist if released into the community (transcript/50).
The Applicant maintained that she was not having a schizophrenic episode at the time of the offending. To the contrary, I find, based on the sentencing Judge’s comments and the Applicant’s admission that she had lapsed in taking her medication prior to the offending, that her schizophrenic delusions did contribute to her offending. However, in the following exchange, the Applicant indicated that she did not accept that if she came off her medication that there would be a risk of reoffending (transcript/26-27):
SENIOR MEMBER: … do you think that if you come off your medication in the future that there is a risk that you might do something awful?
APPLICANT:             No, it’s not my character really. I am not a violent person.
SENIOR MEMBER: Yes.
APPLICANT:             It’s just ---
SENIOR MEMBER: Because the judge seemed to think that there was a risk if you came off your medication.
APPLICANT:           Yes, I understand that, because of my offending I did, but I am not a violent person, you know. I am very remorseful for what I have done.
SENIOR MEMBER: But I suppose the problem is you did come off your medication, and you did do something violent.
APPLICANT:             Yes, but ---
SENIOR MEMBER: So, that’s a concern. So, I am just trying to get a ---
APPLICANT:              I’ve done the mistake of not having my medication and it won’t happen again, you know?
SENIOR MEMBER: Okay. So, it sounds like you might be agreeing that if you come off your medication that there might be a risk of doing something awful?
APPLICANT:             I don’t think so.
SENIOR MEMBER: Okay.
APPLICANT:             I am not a violent person, so, no, it won’t happen again.
I am concerned about this lack of insight and note that the Applicant has lapsed with her medication in the past. If she does so again, I think there is a likelihood that she will reoffend, or as the sentencing Judge stated, that there would be “a big risk of [the Applicant] doing something awful”.
The Applicant does not have a history of violent offending prior to the grievous bodily harm offence. This is a factor in the Applicant’s favour because a person with a history of violent offending may be more likely to commit another violent offence in the future. However, her explanation that she will not offend again because she is not a violent person is perplexing, given that she committed a serious violent offence. I also found her explanation that she would not offend again because “I’ve learnt my lesson” (transcript/41) to be insufficient.
The Applicant also sought to place blame on the victim for her offending. She stated that there was evidence before the sentencing Judge that the victim had been hurting her but that the sentencing Judge had accepted the victim’s version of events (transcript/28). The Applicant said that the victim was not a nice person and that she had had enough of being “picked on” by him (transcript/49). She stated that the victim took advantage of her, her son and her grandson, that the victim “was hurting me before I stabbed him” and that “he was coming behind me, pushing me over, and it is probably why I’ve got a sore hip, he was kneeing into my hip” (transcript/27). The Applicant’s explanations for stabbing the victim also included (transcript/28):
APPLICANT: … prior to my stabbing him he was hurting me, and in just the spur of a moment, I just picked up a knife and just lunged it at him.
…
SENIOR MEMBER: Yes. So, I guess how was he hurting you if he had his back to you?
APPLICANT: Just saying horrible things. My son was there, and - yes. A couple of weeks or a week before he was pushing me over, and punching into me, and hurting me. It was the spur of the moment, I just - yes, heat of the moment.
There is no evidence to support the Applicant’s claims that the victim provoked her, and even if he did (which I do not accept based on the sentencing Judge’s findings), her response in stabbing the victim in the anus from behind was entirely disproportionate to any provocation or threat that the victim may have posed. I am concerned, based on her evidence, that there are unmet treatment needs in terms of the Applicant’s impulsivity and consequential thinking.
The Applicant also lacked insight into the impact that her offending would have had on the victim. The following exchange illustrates this (transcript/28-29):
SENIOR MEMBER: Okay. And then you were sentenced. All right. And what sort of impact, do you think, you know, that might have had on the victim, because the injuries were pretty serious?
APPLICANT:             Yes, I understand. It was a big mistake.
SENIOR MEMBER: How do you think that might have affected him?
APPLICANT:            I wasn’t thinking at the time, honestly. It was just a big mistake; I wasn’t thinking at the time.
SENIOR MEMBER: And what do you think about it now, when you think about it now?
APPLICANT:            I would really like to turn back time to where it didn’t happen now.
SENIOR MEMBER: Yes. And when you think about the effect on him now.
APPLICANT:             Yes.
SENIOR MEMBER: You said you weren’t thinking at the time, but you know, you’re thinking about it now, what do you think the impact might have been on the victim, it was [victim’s name omitted], wasn’t it?
APPLICANT:             Yes.
SENIOR MEMBER: Yes. How do you think this might have affected him?
APPLICANT:             I am not sure. I am very sorry (indistinct) after what I did.
SENIOR MEMBER: Yes.
APPLICANT:            I just wish I didn’t do it.
I mentioned above that there is often a link between drug use and offending, however, in this case, there is little, if any, evidence to support that connection. At the hearing I took the Applicant through her history of drug use which included cannabis from the age of approximately 18 to 21 years old which she would use once a fortnight, and heroin and amphetamines from the age of approximately 38 which she would use once every three to four weeks, which she would use intravenously. She did not think that there was any connection with her drug use and mental health issues because she was smoking marijuana in New Zealand and did not have any mental health issues until after her first son was born (transcript/32-35). I do note her three cannabis offences in New Zealand which were due to her cannabis use, but there are no other Australian offences connected to drug use.
The Applicant also gave evidence that she was not on drugs at the time of the grievous bodily harm offence (transcript/36). In the sentencing Judge’s remarks, Her Honour briefly outlined the Applicant’s history of drug use when she was recounting the “salient aspects” of the Applicant’s life (G7/44-46). However, there was no mention of any link between the Applicant’s drug use and her mental health or offending. In closing submissions, the Respondent’s legal representative made the submission that, “it would be open to the tribunal to find that in Ms Davis’ circumstances drug use has been relevant to her criminal history and if she were to take drugs again, that in itself would be a criminal offence and could lead to further criminal offending” (transcript/68). Whilst the Applicant’s cannabis use may have been relevant to her three cannabis offences in 1985 and 1987 in New Zealand, there is no evidence before me upon which I can conclude that there was any link between the Applicant’s driving offences, or her grievous bodily harm offence, and her drug use.
The Applicant’s evidence was that she has not used drugs since she went to prison and has said that she would not use drugs again because she does not like them (transcript/51). Given her long history of drug use and the absence of rehabilitation (apart from three counselling sessions with Holyoake towards the end of her prison term), there is a possibility she may use drugs again. I agree that if the Applicant used illicit drugs again, possessing them would be a criminal offence, however it would be speculative for me to conclude she would be at increased risk of other types of offending.
The Prisoners’ Review Board of Western Australia (PRB) made a parole order with respect to the Applicant on 25 January 2023 (R2/131). The reasons for granting parole included:
1.    You have not had the opportunity to participate in treatment programs in custody to meet any outstanding treatment needs as you have not met the criteria set by Corrective Services for inclusion in such programmes. However, the Board is satisfied that any treatment needs can be adequately addressed in the community whilst on parole by attending supervision by Adult Community Corrections and engagement with mental health services.
2.    The Board notes your visa to remain in Australia has been cancelled. Nevertheless, if you are subsequently successful in the revocation of the cancellation of your visa, the Board determines that your release in Western Australia does not pose an unacceptable risk to the safety of the community as long as you have appropriate accommodation available.
3.    Your commitment to engage with mental health services and adhere to a mental health care plan to address the factors contributing to your offending behaviour.
4.    The salutary impact of your first term of imprisonment and your first opportunity for parole supervision.
5.    You have no previous history of violence.
6.    Your positive prison conduct which indicates an ability to comply with directions.
The PRB also imposed numerous additional requirements on the Applicant as part of the parole order (R2/132):
1.    You must not commit an offence.
2.    You must not use or be in possession of any illicit drug, including cannabis.
3.    To have no direct or indirect contact with the victim.
4.    To proceed immediately to the immigration detention centre and not to be released to the community unless Adult Community Corrections have approved suitable accommodation where you can stay.
5.    To attend for random urinalysis for all illicit substances as directed by the Community Corrections Officer and provide a valid sample.
6.    To comply with mental health treatment as directed by a medical practitioner or a Community Mental Health Team member.
7.    To attend programs and counselling as directed.
8.    Once released to the community, to reside at an address approved by a Community Corrections Officer and not to change the address without the prior approval of Community Corrections Officer.
9. To immediately advise Prisoners Review Board in writing, details of your intended date of return (or release) and an Australian address, if you were required to leave Australia under the Migration Act and you subsequently return to Australia before your sentence expiry date (or you challenge your removal and are successful in the revocation of the cancellation of your visa).
The Applicant’s parole period does not expire until 31 January 2024, and so if she is released into the community, she will have the opportunity of a period of approximately seven months parole supervision and targeted treatment for her mental health issues. This will assist her rehabilitation, especially as she has not done any targeted treatment for violence and is likely to assist in her reintegration into the community, including finding stable accommodation (because she will not be released if Community Corrections is not satisfied with her accommodation) and employment. My concern is that, after the expiry of her parole period, the Applicant will be residing in the community unsupervised. As I mentioned above, she has previously lapsed with her schizophrenia medication, and that if she stops taking her medication in the future, there is an elevated risk that she may reoffend.
The prison records also state that the Applicant has exemplary prison conduct, that she was quiet and maintained a low profile, and that she lived in a self-care unit for prisoners who demonstrated exemplary conduct, attitude, and self-management. Prison records also state that she was a textile worker and was hard working, reliable and required minimal supervision, completing her work to a high standard (R2/103). I also note that the Applicant tested negative to numerous random drug tests in prison (R2/102). She was initially in maximum security but was downgraded to medium, and then minimum, security by March 2022 due to her good behaviour (R2/77, 91 and 99). Although prison is a controlled environment, the Applicant’s positive behaviour and her ability to obtain a trusted position in the prison is encouraging.
As well as working in textiles in prison for two and a half years, the Applicant has previously worked at a factory undertaking alterations (transcript/18-19). Prior to going to prison she was in receipt of a disability support pension. She also mentioned that she had engaged with an organisation called ReSet who would assist her with accommodation and employment, and that Outcare would help her to find accommodation as well. Prison records refer to her engagement with ReSet (R2/148). She stated that she had discussed working at the airport packing lunches with ReSet (transcript/20). Her skills as a seamstress may assist her to find work and to make meaningful use of her time if she is released into the community. If she is able to obtain some work through ReSet that would also assist in that regard. Stable accommodation and employment are likely to be protective factors that will assist the Applicant not to reoffend. The Applicant also mentioned that she would like to undertake charity work and to join a church if released into the community (transcript/19), which would, in my view, also be protective activities.
The Applicant also has the support of her two adult sons who want her to stay in Australia and who are aware of the offending. Her younger son A said that he and his brother want to take care of their mother and for her to remain in Australia (G2F/14). They are aware of her mental health issues and the need for her to take medication (transcript/58). Her eldest son was in the house at the time of the offence and was the one who called the police (transcript/56). The support of her pro-social sons is likely to give the Applicant emotional support. She also seems to have support from K, who referred to the Applicant as his “Aunty” (G2H/16; A5), although his references contained minimal details and so it is unclear as to the nature of the support he could give, if any. I also have some doubts about how protective the ongoing support from the Applicant’s sons will be because the Applicant appears to have had a good relationship with them at the time of the grievous bodily harm offence, and indeed her grandson was in the house, yet she committed the extremely violent offence.
The Applicant has not seen her grandson for approximately three years and wants to continue her role as a mother and a grandmother in the community (transcript/17-18). She is now facing removal to New Zealand in circumstances where it may be difficult for them to visit her, and where she may see them infrequently. The cancellation of her Visa and the prospect of living in a different country from her sons and grandson may provide her with motivation to continue taking her medication and not to reoffend.
The Applicant has some health issues including arthritis in her hip which she takes painkillers for (transcript/21). She was experiencing these issues at the time of the grievous bodily harm offence, and yet still stabbed the victim, and so I am not of the view that any health issues would make her unable to commit a violent offence in the future.
For completeness, I note that the sentencing Judge stated, “I am told … that you are … subject to a guardianship order” (G7/46). However, prison records confirmed that the Applicant insisted that she was not the subject of such an order and that she thought the sentencing Judge was referring to a person who was her landlord and that there may have been a misunderstanding (G13/83).
In summary, the following factors are protective and may reduce the likelihood of the Applicant reoffending:
(a)She has no prior history of violent offending prior to the grievous bodily harm offence.
(b)She was assessed by prison assessors as being a low risk of reoffending.
(c)Her exemplary prison conduct, including being downgraded from maximum to minimum security, attaining a position of trust in a self-care unit and returning numerous negative drug tests.
(d)Her experience working with textiles, as well as work experience as a seamstress, and her engagement with ReSet and Outcare to obtain employment and accommodation.
(e)Her willingness to engage in mental health treatment in the community and to engage in community work.
(f)The seven-month period left of the Applicant’s parole where she will be required to undertake mental health treatment and rehabilitation in the community under supervision. This supervision will also ensure she has stable accommodation and makes meaningful use of her time.
(g)The support she has from her two adult sons, and her desire not to be separated from her sons and grandson.
In contrast, the following factors suggest that there is some likelihood of the Applicant reoffending:
(a)The link between her schizophrenia and her offending (which she does not accept), and the lack of certainty as to whether she will continue to take her medication, noting the sentencing Judge’s comments that “bad things” could happen if she lapses with her medication.
(b)Her lack of insight into her offending, including her view she will not reoffend because she is “not a violent person”.
(c)Her continuing to attribute blame to the victim for the offence.
(d)Her less than fulsome remorse for her grievous bodily harm offence and her lack of insight as to the likely impact on the victim.
(e)The unprovoked and disproportionate nature of the offence which raises concerns about unmet treatment needs for impulsivity and consequential thinking.
(f)Her lack of any rehabilitation for violent offending, although I note that she was assessed as not being eligible for treatment programs in prison. However, her lack of insight, including explanations that she will not reoffend because she is not a violent person, raises doubts in my mind as to whether such rehabilitation is required to reduce the risk of future reoffending.
(g)At the time of her offending, she had a relationship with her sons and grandchild (with her son J and grandchild being present in the house), and yet she committed the grievous bodily harm offence.
It is difficult to assess the degree of risk due to their only being a prison risk assessment, and due to the Applicant’s complex circumstances (including her schizophrenia and the lack of evidence regarding the relationship between drug use, her mental health, and her offending).
Overall, after balancing the protective factors against those that suggest a likelihood of reoffending, I find that the Applicant is likely to be a low to moderate risk of reoffending.
However, given the serious and violent nature of the grievous bodily harm offence, and the harm that could result to innocent members of the Australian community if the Applicant reoffended in a violent manner, I am of the view that even a low risk of such conduct occurring again is unacceptable.

I therefore find that paragraph 8.1.2 of Direction No 99, being the risk to the Australian community should the Applicant commit further offences, weighs very strongly against the revocation of the Cancellation Decision.
Summary on para 8.1 of Direction No 99
I have found that paragraphs 8.1.1 and 8.1.2 both weighed very strongly against revocation of the Cancellation Decision. Therefore, overall, I find that primary consideration 8.1, being the protection of the Australian community, weighs very strongly against the revocation of the Cancellation Decision.
Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 99)
Paragraph 8.2 of Direction No 99 requires decision-makers to have regard to family violence committed by the non-citizen. Although the victim was living in the Applicant’s house, he was a house tenant and not a member of her family. There is no other evidence to suggest that she has committed any family violence and so this primary consideration is not applicable.
The strength, nature and duration of ties to Australia (paras 8(3) and 8.3 of Direction No 99)
Paragraph 8.3(1) of Direction No 99 provides that:
(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.
Paragraphs 8.3(2) and (3) of Direction No 99 direct decision-makers to consider the non-citizen’s ties to any children, and the strength, duration, and nature of any family or social links to members of the Australian community who are citizens, permanent residents or who have an indefinite right to remain in Australia:
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
Further, in paragraph 8.3(4) of Direction No 99, decision-makers are required to consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. Specifically:
(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)The length of time the non-citizen has resided in the Australian community, noting that:
•    considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
•    more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
•    less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant came to Australia in January 1990 because two of her sisters were living here, but they returned to live in New Zealand approximately eight years ago. She has another sister in Melbourne, and two nieces that she knows of in Brisbane. She also has a brother but does not know where he is. She is not close to her interstate family members (transcript/11-12). Consequently, I find that there would be little to no impact on these family members if the Applicant had to return to New Zealand.
I consider the Applicant’s 11-year-old Australian citizen grandson, G, as part of the best interests of minor children primary consideration below. G is the Applicant’s only grandchild, and he is indicative of a close tie to Australia for the Applicant.
The Applicant has two adult sons who are Australian citizens. J is 30 years old, and A is 22 years old. Both the Applicant’s sons gave evidence at the hearing in support of their mother being able to stay in Australia.
J stated that it would be “devastating” if his mother was returned to New Zealand and that it would just be him, his brother and his son, without her. J also thought that “it would hurt [his younger brother A] a lot” if their mother was returned to New Zealand because “mum’s all he knows … he never met his father” (transcript/57-58). In a written statement J said (G2G/15): “Please don’t send my mother away my brother and i have felt lost over the past 2-3 years thinking once our mother comes back we could settle onec again so please help that happen” (as original).
A also gave evidence that he had a close relationship with his mother, that it comforts him to talk to her, and that he speaks to her on the telephone every day (transcript/60). A’s father committed suicide a week before he was born, and when J was eight years old (G14/80), and so they have a close relationship with their mother.
Given their close relationship with their mother, I find that J and A would suffer emotional detriment if the Applicant was returned to New Zealand.
There are also reference emails in support of the Applicant staying in Australia from K who stated that the Applicant is his “aunty” (G2H/16; A5). He described the Applicant as always having been there for him. The emails are brief, and I do not have any information regarding the impact on K if the Applicant was returned to New Zealand.
The Applicant’s friend D gave evidence at the hearing (see also G2E/13 and A2). D lives in Melbourne and speaks to the Applicant once or twice a week by video call. Although she said that she would feel she was losing a friend if the Applicant was returned to New Zealand, she has not seen the Applicant in person for approximately 30 years (transcript/62-64). As D admitted that they would still be able to maintain the same level of friendship if the Applicant returned to New Zealand, I find that D would suffer minimal or no detrimental impact if the Applicant was returned there.
The Applicant has resided in Australia for approximately 33 years, having arrived when she was 24 years old.
The Applicant has worked as a seamstress and has made some contributions to the community by doing volunteer work for a church where she packed food for the homeless (transcript/18 and 19). It is unclear when she did this work and for how long. It does, however, add some weight to the amount of time she has resided in Australia.
The Applicant’s first driving conviction was in April 1999, approximately nine years after she arrived in Australia. Her grievous bodily harm offence took place on 1 August 2020, and by that date the Applicant had resided in Australia for approximately 30 years. Thus, she did not offend shortly after arriving in Australia.
Although the Applicant’s 33 years in Australia is a considerable amount of time, it does not include her formative years which were spent in New Zealand. This slightly lessens the weight of the time she has spent in Australia.
The Applicant’s ties to her sons and grandson in Australia are strong, but her ties to other friends and family members and to the community more generally do not appear to be strong and the relationships could be maintained from New Zealand. She has resided in Australia for a substantial amount of time but not during her formative years. She has undertaken some community work and did not offend shortly after arrival. On balance, I find that the strength, nature and duration of the Applicant’s ties to Australia should weigh moderately in favour of revocation of the Cancellation Decision.
Best interests of minor children in Australia affected by the decision (paras 8(4) and 8.4 of Direction No 99)
Paragraph 8(4) of Direction No 99 states that in making a decision under s 501CA(4), “the best interests of minor children in Australia” is a primary consideration.
Direction No 99 states that decision-makers must determine whether the decision under review is, or is not, in the interests of a child affected by the decision. The first three paragraphs of 8.4 provide:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.4(4) of Direction No 99 sets out the factors that the decision-maker must consider where relevant:
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the 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’s grandson
The Applicant has an 11-year-old grandson, who I will refer to as G. G is the only child of the Applicant’s eldest son, J.
The relationship between the Applicant and G is non-parental. G’s mother and father (the Applicant’s son, J) are separated. G lives with his mother and so prior to her going to prison the Applicant would see G every second weekend and for a week during the school holidays because that was when J had access to G (transcript/17). J said that the Applicant would help to care for G during those times when J had to work and described G and the Applicant as having a “beautiful” relationship (transcript/56). In her personal circumstances form the Applicant said that G “will be very upset and not able to come to terms with his grandmother not being around” if she had to leave Australia (G13/72). There has been a period of absence whilst the Applicant has been in prison and immigration detention, and at the hearing she confirmed that she last saw or spoke to G nearly three years ago. She wrote to G in prison, but he did not write back (transcript/17) (para 8.4(4)(a) of Direction No 99).
There are approximately seven years until G turns 18. This is a substantial amount of time covering G’s formative years. J does not have a father who could be a grandparent to G, and so he may benefit from having his grandmother in his life. The Applicant is very keen to play the role of a grandparent to G, and to have regular contact with him, if she can remain in Australia (transcript/18). If the Applicant continues to be compliant with her medication, abstains from drug use and if she does not reoffend, she is likely to be a positive role model to G (para 8.4(4)(b) of Direction No 99).
There is no evidence to suggest that the Applicant’s prior conduct has had a direct negative impact on G. I do note, however, that G was present in the house at the time of the grievous bodily harm offence, and at that time he would have been three months away from his ninth birthday. J was present at the time of the offence and his evidence was that at the time the victim was stabbed, he and G were in the bedroom sleeping. J did not think that G saw any of the aftermath of the offending (transcript/56). Even so, the fact that a small child was present in the house during the occurrence of such a serious and violent offence is concerning. In terms of future conduct, if the Applicant recommences her relationship with G, and was to lapse with taking her medication again, it may have a negative impact on G if she reoffends and is incarcerated or deported (para 8.4(4)(c) of Direction No 99).
The Applicant could maintain contact with G by telephone or via the internet (such as Skype) if she is returned to New Zealand. However, I recognise that this would not be as beneficial to G as having his grandmother physically present to spend time with him, and to help care for him when he is staying with his father (para 8.3(4)(d) of Direction No 99).
G has parents who care for him and who fulfil a parental role. As I mentioned above, G’s parents are separated. G primarily lives with his mother who takes good care of him. The Applicant described G’s mother as “a lovely mum” (transcript/18 and 56) (para 8.4(4)(e) of Direction No 99).
There are no known views of G (para 8.4(4)(f) of Direction No 99).
I have already noted concerns that G was in the house at the time of the Applicant’s grievous bodily harm offence. However, there is no evidence that G has been or is at risk of being abused or neglected by the Applicant (para 8.4(4)(g) of Direction No 99). There is no evidence that G has experienced any physical or emotional trauma from the Applicant’s conduct (para 8.4(4)(h) of Direction No 99).
After considering and weighing the factors in paragraphs 8.4(4)(a) to (h) of Direction No 99, I find that revocation of the Cancellation Decision is in the best interests of G. I find that G’s interests weigh moderately in favour of the revocation of the Cancellation Decision.
Expectations of the Australian community (paras 8(5) and 8.5 of Direction No 99)
A decision-maker must consider the expectations of the Australian community when making a decision under ss 501 or 501CA.
These expectations are set out in paragraph 8.5 of Direction No 99, which provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, 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. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a) acts of family violence; or
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; or
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; or
f)     worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community's expectations in the particular case.
I must give effect to the “norm” stipulated in paragraph 8.5(1) of Direction No 99, being that the Australian community expects non-citizens to obey Australian laws whilst in Australia. This will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future. The Applicant has breached this expectation by not obeying Australian laws. She committed the very serious offence of “grievous bodily harm” where she stabbed the victim from behind with a kitchen knife causing him “significant and serious” injuries (G7/42). Consequently, the expectation of the Australian community would be that the Applicant’s Visa should remain cancelled (para 8.5(1) of Direction No 99).
As is evident from the reference to the “norm” in paragraph 8.5(1) of Direction No 99, I am being told unequivocally what the community’s expectations are. Further, paragraph 8.5(4) of Direction No 99 confirms more explicitly that the Australian community’s expectations are what the Government deems them to be, because decision-makers are directed to proceed based on the Government’s views about community expectations without independently assessing them (see Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68 at [41]-[44]).
I agree with the observations of Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143, which were adopted by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman). I note that Deputy President Boyle was writing about the previous Direction No 90, however the wording in Direction 99 is identical in this regard, and therefore they equally apply to Direction No 99.
In Wightman, Deputy President Boyle stated, at [85]–[86]:
… Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH) at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
195.It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196.It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...
(Original emphasis and footnotes omitted.)

Further detail about the Australian community’s expectations with respect to certain types of conduct is given in paragraph 8.5(2) of Direction No 99. That paragraph states that the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paragraphs 8.5(2)(a)–(f). The Applicant’s offending does not fall within any of these sub-paragraphs but as I concluded with respect to the first primary consideration above, it is nevertheless a serious violent crime.
Paragraph 8.5(3) of Direction No 99 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Thus, even though I found above that the Applicant is likely to pose a low to moderate risk of reoffending, the community’s expectations as stated apply regardless.
Further, paragraph 8.5(4) of Direction No 99 tells decision-makers that this consideration is about the expectations of the Australian community as a whole. It directs decision-makers to proceed based on the Government’s articulated views without assessing the community’s expectations in the particular case. I therefore cannot speculate about what the community’s views might be about the Applicant.
Overall, I find that the primary consideration in paragraph 8.5 of Direction No 99, being the expectations of the Australian community, weighs strongly against the revocation of the Cancellation Decision.
OTHER CONSIDERATIONS (PARA 9(1) OF DIRECTION NO 99)
As I outlined above, Direction No 99 directs decision-makers to have regard to a non-exhaustive list of several other considerations to the extent they are applicable.
Legal consequences of decision under section 501 or 501CA (para 9(1)(a) and 9.1 of Direction No 99)
Paragraph 9.1 of Direction No 99 identifies the legal consequences that decision-makers must bear in mind when making a decision under s 501 or 501CA of the Migration Act.
The first sub-paragraph, 9.1(1), of Direction No 99, outlines that a non-citizen is liable for removal from Australia, notwithstanding any non-refoulement obligations:
(1)Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
In other words, if I affirm the Reviewable Decision, the Applicant will likely be removed to New Zealand as soon as is reasonably practicable and she will remain in immigration detention until she is removed.
Further, if she is removed to New Zealand, it is likely that the Applicant will face a range of restrictions which would make it unlikely that she would meet the criteria under the Migration Act for a visa to enable her to re-enter Australia (for a comprehensive overview with respect to Special Category (subclass 444) visas, see Senior Member Burford in Moli and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 666 at [167]-[169]).
The next two sub-paragraphs, 9.1(2) and (3), address Australia’s non-refoulement obligations:
(2)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3)International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
As contemplated by sub-paragraph 9.1(3), the Applicant has not raised any non-refoulement obligations, nor do they arise from the Applicant’s circumstances or on any of the materials before me.
The Applicant’s removal is a consequence of the operation of Australia’s migration laws, and as there are no non-refoulement considerations that would apply to the Applicant, I give this consideration neutral weight.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 99)
Paragraph 9.2(1) of Direction No 99 provides:
(1)Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
b) whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The Applicant is 57 years of age.
She has physical and mental health issues which I will now outline.
An IHMS summary dated 24 February 2023 (G18/85) for the Applicant states that she has hypertension, hypercholesterolemia (high cholesterol), right hip pain/ high grade osteoarthritis, and that she had an abnormal chest x-ray in February 2023 which was suggestive of emphysema. At the hearing the Applicant stated that the emphysema did not affect her, but that she takes several types of painkillers for the pain in her hip and thinks that she may require a hip replacement. She can walk with a limp and can get herself around but experiences hip pain. The IHMS summary stated results were pending for hepatitis C, but at the hearing the Applicant said those tests were “all clear” (transcript/21-22). The Applicant also suffers from long-term insomnia for which she takes melatonin (G18/87; R2/135).
The Applicant also suffers from schizophrenia which commenced shortly after the birth of her oldest son, J, in 1993. Her symptoms included hearing voices and seeing images, but she described not listening to them when she previously came off her medication because she has lived with schizophrenia for approximately 30 years. Her schizophrenia is managed by a monthly depot shot and an oral anti-psychotic tablet taken daily (transcript/23-24; R2/135). When asked at the hearing whether she could manage her mental health in New Zealand the Applicant’s evidence was that “I’ll be onto it when I get there if that’s a possibility but I see no problem”, that she would engage with health services in New Zealand and continue to take her medication if she was returned there (transcript/52).
Although the Applicant has lived in Australia for the last 33 years, since she was 24 years old which comprises most of her adult life, there are unlikely to be any language or cultural barriers if she were to return to New Zealand. It is not an unfamiliar country, and the Applicant travelled back there for seven days for a holiday in September 2014 (G10/53).
If she is returned to New Zealand, she will be separated from her two adult sons and her grandson and is likely to suffer emotional detriment as a result.
The Applicant will also have access to the same social, medical and economic supports as other citizens of New Zealand, which are equivalent to those available in Australia (Webb v Minister for Home Affairs [2020] FCA 831 at [98]; Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [68]- [69]). Her schizophrenia and hip pain (and possible need for a hip replacement) make the Applicant’s situation more complex than that of a person in good physical and mental health. It will be necessary for her to access those supports and she has indicated a willingness to do so.
The Applicant’s elderly mother lives in New Zealand in a farmhouse. If the Applicant is returned to New Zealand, she will live with her mother. As I mentioned above, her two older sisters who were in Australia now reside in New Zealand. One of her sisters helps to care for their mother who is in poor health following a recent heart attack. One of these sisters has six children and the other is single with no children (transcript/12-14). The Applicant said that she is only in contact with her sisters approximately once a year, but they know that she is facing deportation to New Zealand. She has other extended family in New Zealand (aunties, uncles, cousins) who she does not speak to, however, she thinks her mother would be in contact with them (transcript/52). She has school friends in New Zealand but does not really talk to them (transcript/21). I therefore find that the Applicant is likely to have at least some emotional support from her mother and sisters in New Zealand.
Although there were many years when the Applicant did not work due to raising her sons and being on a disability support pension, she has skills as a seamstress which may assist her to find employment. The Applicant stated that (transcript/52), “Where my mum lives it’s on a farm, so I wouldn’t be looking for work straight away because it’s just too far from town and there’s not really much employment in the area where my mum is, so I’m not sure if I would working straight away, so I’d be on disabilities full pension for a while”. If this is the case, it may be more difficult for the Applicant to find work, but she indicated an awareness that she could access social security benefits to support herself.
I find that the impediments to the Applicant being able to establish herself and maintain basic living standards if she was returned to New Zealand are not insurmountable. The main impediment is likely to be emotional due to the Applicant being separated from her sons and grandson if returned to New Zealand. Consequently, this consideration only weighs slightly in favour of the revocation of the Cancellation Decision.
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 99)
Paragraph 9.3(1) of Direction No 99 provides that:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no information before me regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations).
The Respondent incorrectly submitted that this consideration weighs heavily against revocation of the Cancellation Decision due to the significant impact that the grievous bodily harm offence would have had on the victim (transcript/10). That submission is plainly wrong. Paragraph 9.3(1) of Direction No 99 contemplates that decision-makers must consider the impact of the s 501 or 501CA decision on the victim, and not the impact that the offending had on the victim (which is a matter relevant to the first primary consideration). I therefore reject this submission.
I have no information regarding the impact of my decision on the victim of the Applicant’s grievous bodily harm offence or his family members.
Consequently, I give this other consideration neutral weight.
Impact on Australian business interests (paras 9(1)(d) and 9.4 of Direction No 99)
Paragraph 9.4(1) of Direction No 99 states that decision-makers should consider the impact of a decision whereby the Applicant is not allowed to remain in Australia on any business interests. It provides:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This consideration does not arise on the material before me and is therefore not relevant.
THE WEIGHING EXERCISE
The Applicant does not pass the character test under s 501 of the Migration Act.
I have therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 99.
For the reasons set out above, I made the following findings about the relevant primary considerations in Direction No 99. These were:
(a)The protection of the Australian community from criminal or other serious conduct primary consideration weighed very strongly against the revocation of the Cancellation Decision.
(b)The strength, nature and duration of the Applicant’s ties to Australia weighed moderately in favour of the revocation of the Cancellation Decision.
(c)The best interests of the Applicant’s minor grandson, G weighed moderately in favour of the revocation of the Cancellation Decision.
(d)The expectations of the Australian community weighed strongly against the revocation of the Cancellation Decision.
I made the following findings with respect to the other considerations that were relevant. These were:
(a)I gave neutral weight to the legal consequences of the decision other consideration.
(b)The extent of impediments if removed other consideration weighed only slightly in favour of the revocation of the Cancellation Decision.
(c)I gave the impact on victims other consideration neutral weight.
I find that the primary considerations of the protection of the Australian community, which weighed very strongly against the revocation of the Cancellation Decision, and the expectations of the Australian community, which weighed strongly against the revocation of the Cancellation Decision, outweigh the primary and other considerations that weigh in the Applicant’s favour. These were the strength, nature and duration of the Applicant’s ties to Australia and the best interests of the Applicant’s minor grandson, G, primary considerations, which both weighed moderately in favour of the revocation of the Cancellation Decision, and the extent of impediments if removed other consideration, which weighed only slightly in favour of the revocation of the Cancellation Decision.
I therefore find that there is not another reason why the Cancellation Decision should be revoked. Therefore, the correct or preferable decision is to affirm the Reviewable Decision.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 1 March 2023, is affirmed.

I certify that the preceding 161 (one hundred and sixty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

..............[Sgd]......................................................
Associate
Dated: 25 May 2023

Date of hearing: 5 May 2023

Representative for the Applicant: Self-represented

Representative for the Respondent:

Mr L Dennis, Minter Ellison Lawyers

Date of hearing:	5 May 2023
Representative for the Applicant:	Self-represented
Representative for the Respondent:	Mr L Dennis, Minter Ellison Lawyers