Dawson and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 2281

Dawson and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2281 (6 July 2022)
Division:GENERAL DIVISION
File Number: 2022/3581
Re:Phillip Dawson
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date of decision: 6 July 2022
Date of written reasons: 15 July 2022
Place:Melbourne

On 6 July 2022, the Tribunal affirmed the decision under review. These are the written reasons for that decision.
...................[sgd]..... ................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
MIGRATION – Mandatory visa cancellation – citizen of New Zealand – Class TY Subclass 444 Special Category (Temporary) visa – failure to pass good character test – substantial criminal record – prolonged juvenile and adult offending – Applicant refused to appear at directions hearing or substantive hearing – whether another reason to revoke the mandatory cancellation – Ministerial Direction No. 90 applied – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Crimes Act 1914 (Cth)
Crimes Act 1958 (Vic)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Youth Justice Act 1992 (QLD)
Penalties and Sentences Act 1992 (Qld)
CASES
Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67
Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113
Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106
Bushell v Repatriation Commission (1992) 175 CLR 408
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
CKL21 v Minister for Home Affairs [2022] FCAFC 70
CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101
DPP v Dawson [2020] VCC 247
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Hughes v The Queen (2017) 263 CLR 338
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Murphy v Minister for Home Affairs [2018] FCA 1924
QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394
Say v Administrative Appeals Tribunal [2020] FCA 1489
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 276 FCR 516
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
New Zealand Government, ‘Returning offenders order’, Department of Corrections (Web Page)
Ray Finkelstein and David Hamer (eds), Concise Australian Legal Dictionary (Lexis Nexis Butterworths, 5^th ed, 2015)
The Utility of Level of Service Inventory – Revised (LSI-R)
Don Andrews and James Bonta, The Level of Service Inventory–Revised (Multi-Health Systems Inc. 1995)
Sentencing Advisory Council, ‘Imprisonment,” < FOR DECISION
Senior Member A. Nikolic AM CSC
15 July 2022
INTRODUCTION

The Applicant, Mr Phillip Dawson, seeks review of a decision by a delegate of the Respondent not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (the visa).
The hearing was scheduled to be in person at the Tribunal’s Melbourne Registry on 5 and 6 July 2022. Mr Dawson refused to attend the hearing which is discussed later. The Respondent was represented by Mr Adrian Downie from the Australian Government Solicitor.
For the following reasons the Tribunal affirms the decision under review.
BACKGROUND
The Applicant, who has also been known as Phillip Marr,[1] is a 25-year-old citizen of New Zealand.[2] He first arrived in Australia in September 1999 with his mother and several half siblings when he was two years old.[3]
[1] Exhibit R1, 7; Exhibit R2, 96.
[2] Exhibit R1, 114; 144.
[3] Ibid 50 [10]-[11].
The Applicant’s documentary evidence about his family is inconsistent and difficult to reconcile. He has variously claimed not to have met his birth parents,[4] was deserted at the age of six,[5] ‘never had foster parents’,[6] and spent most of his life in state-sponsored residential units. Prison documents also record his claims about not having ‘any biological family’ and his ‘mates on the outside are his family’.[7] Expert evidence, however, states the Applicant remained in the care of his mother until his teenage years.[8] There are also references to him being in contact with family members in Australia,[9] a person he believes is his biological father in Canada,[10] and an uncle purportedly serving an 18-year sentence in an Australian prison.[11] Family members are listed on his authorised prison phone list and he previously expressed an intention to live with a sister and a sister-in-law if released.[12]
[4] Ibid 63; 69; 82.
[5] Ibid 243.
[6] Ibid.
[7] Exhibit R2, 17-18; 20; 26 (29 December 2020).
[8] Ibid, 89-90; 98; Exhibit R3, 17-18.
[9] Exhibit R2, 6-8; 15-16; 21.
[10] Exhibit R1, 243.
[11] Exhibit R2, 8.
[12] Ibid 19; 21; 22 (11 May 2020); 25 (18 October 2020); 49.
Since arriving in 1999 the Applicant has not departed Australia nor applied for Australian citizenship.[13] He stated in documentary evidence that as a ward of the state his citizenship should have been facilitated for him before he turned 18.[14] The Applicant has undertaken limited education in Australia, with reports he was expelled from several schools.[15] He has undertaken some work as an apprentice mechanic in 2018,[16] which ended after an ‘unprovoked and armed attack’ on his employer.[17]
[13] Exhibit R1, 132 [Q2].
[14] Ibid 82.
[15] Ibid 171 [26].
[16] Ibid 47-48 [2]-[4].
[17] Ibid 53 [18].
The Applicant began offending in 2012 when he was 15 years of age and has an extensive criminal history.[18] The Children’s Court dealt with some offending without recording convictions and released him at times on accountable undertakings, probation, good behaviour bonds, and youth supervision orders. On other occasions, convictions were recorded, and the Applicant was detained in Youth Justice Centres for periods of up to 16 months. His offending as a juvenile includes violence and the threat of violence, driving in a dangerous manner, reckless conduct endangering serious injury, armed robbery, burglary, theft of motor vehicles, possession of drugs, property damage, and breaches of conditional liberty. His conduct in youth justice settings has been consistently poor, with reports of challenging, defiant, aggressive, threatening, and violent behaviours.[19]
[18] Ibid, 24-29.
[19] Exhibit R3, 10 (11.1); 11 (11.6).
The Applicant’s first appearance in the adult jurisdiction was on 6 June 2016. He continued to engage in an extensive pattern of criminal behaviour involving violence, threats of violence, dishonesty, and breaches of conditional liberty. The Applicant was most recently convicted of multiple offences at two court appearances in March 2020.[20] These included: Aggravated Burglary – Person Present; Assault With Weapon; Threat to Inflict Serious Injury; Dangerous Driving While Pursued by Police; Common Law Assault; Theft of a Motor Vehicle; Contravene Community Correction Order (CCO); Failing to Answer Bail; and other dishonesty offences. Her Honour, Judge Hassan, noted the Applicant had spent most of his young life ‘committing crime and getting into trouble with the police’.[21]
[20] DPP v Dawson [2020] VCC 247.
[21] Exhibit R1, 51 [12].
On 7 May 2020, the Applicant’s visa was mandatorily cancelled under s 501(3A) of the Act (cancellation decision).[22] The Applicant acknowledged this on 7 May 2020[23] and made representations to have it revoked in conformance with s 501CA(4)(a) of the Act.
[22] Ibid 149-155.
[23] Exhibit R1, 156.
On 11 December 2020 the Respondent wrote to the Applicant inviting him to comment on sentencing remarks from the Magistrates’ Court of Victoria and County Court of Victoria.[24] On 20 April 2021, the Applicant was asked if he wished to comment about a newly introduced Direction.[25] On 16 March 2022 the Applicant was asked to respond to reports of misconduct during imprisonment.[26]
[24] Ibid 159.
[25] Ibid 189.
[26] Ibid 275.
On 28 April 2022, a delegate of the Minister decided not to revoke the mandatory cancellation decision (non-revocation decision),[27] which the Applicant acknowledged on the same day.[28]
[27] Ibid 282-284.
[28] Ibid 291.
On 4 May 2022, the Applicant asked the Tribunal to review the non-revocation decision, which is within the permissible nine-day period under s 500(6B) of the Act.[29]
[29] Ibid 1.
At an initial Case Management Telephone Directions Hearing (CMTDH) on 10 May 2022, the Applicant said he would be legally represented and undertook to provide the Tribunal with details. The Tribunal nevertheless provided contact details for potential sources of pro bono assistance, which the Applicant said he would consider if required. The Tribunal also provided him with an example of a draft outline of submissions to assist his understanding about the primary and other considerations that would be applied to his case. Scheduling orders were issued giving the Applicant until 10 June 2022 to provide witness statements and other materials he intended to rely upon. He failed to file any materials by this date.
On 17 June 2022 the Tribunal held a CMTDH to enquire about the Applicant’s non-compliance. While attempting to connect the Applicant, advice was received from a Detention Officer that the Applicant refused to participate, despite initially agreeing to attend. The Tribunal emailed the Applicant on 28 June 2022 and 1 July 2022 to ascertain his intentions. The Respondent also made several attempts to contact him, including by letter dated 29 June 2022.[30] The Applicant did not respond to the Tribunal or solicitors for the Minister, nor did he file any materials prior to the hearing.
[30] Exhibit R3, 1.
At approximately 08:30 am on 5 July 2022, the Tribunal was advised by a Detention Officer that the Applicant refused to attend the hearing. When the matter was called for hearing at 10:00am, there was no appearance by the Applicant or on his behalf. Given the Applicant had not withdrawn his application, the Tribunal remained under a statutory obligation to decide this matter by 21 July 2022.[31] The Tribunal made enquiries with Australian Border Force during an adjournment and, at 12:22 pm on 5 July 2022, received an email from Detention Operations as follows:
I can confirm that Mr DAWSON, Phillip declined to attend today’s AAT hearing. Mr DAWSON advised staff that there is no point in going, as he does not have a lawyer.
[31] Pursuant to the so-called ’84-day rule’ under s 500(6L) of the Act.
At approximately 4:00 pm on 5 July 2022, advice was received from Detention Operations that the Applicant told officers he intended to appear at the second hearing day on 6 July 2022. Escort and other arrangements were put in place to facilitate this. Approximately an hour before the hearing commenced on 6 July 2022, however, an email was received from Detention Operations to the effect that the Applicant again refused to attend. A further email was received soon after stating the Applicant asked officers to ‘re-arrange this via video link’. The Tribunal gave leave for the Applicant to appear by video and arrangements were made to facilitate this. Approximately 10 minutes prior to the scheduled commencement of the hearing, the Tribunal received a further email from Detention Operations stating:
…the Serco officers went to advise Mr Dawson of the Video Link…and to take him up to our interview rooms.
Mr Dawson proceeded to advise the officers he did not want to attend.
The Tribunal has made several efforts to facilitate the Applicant’s appearance at the hearing, but he declined each opportunity with little notice. He has not asked for an adjournment and there is no evidence he is unwell or has another valid reason for non- attendance. Given Mr Dawson has received reasonable notice of the hearing, the Tribunal will determine the application in his absence.[32]
[32] Pursuant to s 40(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).
DOES THE APPLICANT PASS THE CHARACTER TEST?
Because of the Applicant’s criminal convictions in March 2020 and imposition of prison sentences exceeding the threshold statutory period of 12 months, the Tribunal is satisfied he does not pass the character test.[33] Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the original decision. It therefore remains to be determined whether there is another reason within the meaning of s 501CA(4)(b)(ii) of the Act to revoke the visa cancellation.[34] This task was elaborated upon by the Full Court (FCAFC) in Viane:[35]
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
[33] Sections 501(6)(a) and 501(7)(c) of the Act.
[34] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J); [103] (O’Bryan J).
[35] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
DIRECTION 90
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. Except for the Minister acting personally, the Direction must be applied by decision makers under the Act.[36] On 8 March 2021, the Minister signed Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.[37] The Tribunal finds it is bound to apply the Direction in these reasons, based on the material currently before it.[38]
[36] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
[37] Direction, cls 2-3.
[38] Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ).
Direction 90 contains mandatory and aspirational considerations guiding the exercise of power.[39] The following principles at cl 5.2 of the Direction also inform decision-making:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
[39] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, [45].
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must consider clauses 8 and 9 where relevant to the decision. Clause 8 of the Direction identifies the following as primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The best interests of minor children in Australia;
(d)Expectations of the Australian community.
Clause 9 of the Direction identifies a non-exhaustive list of other considerations:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims;
(d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia;
(ii)Impact on Australian business interests.
Clause 7(1) provides that, when taking the relevant considerations into account, ‘information and evidence from independent and authoritative sources should be given appropriate weight.’

Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[40]
[40] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop[41] at [57]:
…the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
EVIDENCE
[41] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461.
Documentary evidence and witnesses
Documents tendered into evidence were:
(a)G-documents collectively numbering 291 pages;[42]
(b)Supplementary G-documents numbering 303 pages;[43] and
(c)Further Supplementary G-documents numbering 105 pages.[44]
[42] Exhibit R1.
[43] Exhibit R2.
[44] Exhibit R3.
Applicant’s evidence
The Tribunal has considered the Applicant’s documentary evidence.[45]
[45] Exhibit R1, 59-70; 80-98; 103-143; 242-244; Exhibit R2, 49-50
Respondent’s Evidence
The Tribunal has considered the Respondent’s Statement of Facts, Issues and Contentions dated 24 June 2022 and Mr Downie’s oral submissions.
PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
Clause 8.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Tribunal consideration: The nature and seriousness of the conduct
Clause 8.1.1 of the Direction sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
Pursuant to the reasoning of the Full Court of the Federal Court of Australia in Thornton,[46] the Tribunal has not considered the Applicant’s juvenile offending where convictions were not recorded.
[46] Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23, [37] (Katzmann, SC Derrington and Banks-Smith JJ), citing Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, 40. It is acknowledged that Thornton ([36]-[38]) is based on the interaction of s 184 of the Youth Justice Act 1992 (QLD), and s 12(3) of the Penalties and Sentences Act 1992 (Qld), with s 85ZR(2) of the Crimes Act 1914 (Cth), and that there is no comparable youth justice legislation in Victoria.
A magistrate, judge, and the Applicant’s counsel have referred to the serious nature of the Applicant’s offending,[47] which can be categorised as follows:
(a)Offences involving violence or the threat of violence. These include: Assault with weapon; Affray; Make threat to kill; Threat to inflict serious injury; Intentionally cause injury (9 August 2018); Assault emergency worker on duty; and Common law assault. In January 2018 for example, while employed as an apprentice mechanic, the Applicant swore at and pushed his employer, resulting in immediate dismissal. He returned to the workplace a short time later with an iron bar intending to strike his employer.[48] In the ensuing struggle, during which a co-worker tried to intervene, the employer sustained bruising and an abrasion. The Applicant was arrested and bailed but failed to appear in court and was remanded in custody. The Applicant has also threatened strangers, including female victims, while he and co-offenders robbed them;
(b)Conditional liberty offences. This includes failing to answer bail, committing indictable offences while on bail, contravening community corrections orders, and breaching probation and supervision orders;
(c)Dishonesty offending. This includes: Aggravated burglary – Person present; Theft; and Obtain property by deception. The Applicant has entered private dwellings to steal vehicles, motorcycles, wallets, and credit cards, later making purchases with stolen credit cards; and
(d)Driving offences. This includes: Dangerous driving when pursued by police; and Fail to stop vehicle on police direction. The Applicant has previously attempted to evade police in a stolen car, including after the tyres were deflated by road spikes. The Applicant only held a learner’s permit at this time.
[47] Exhibit R1, 42 [26]; 44 [14]; 45 [28]; 53 [18].
[48] Exhibit R2, 197.
There are several references to the Applicant engaging well with staff in custodial settings, being polite, compliant, and incident free.[49] His prison and immigration centre records, however, also refer to multiple incidents of non-compliance, abuse, aggression, and violence. This includes a reported incident while on remand, which was referred to police.[50] He is reported as being unreceptive to a suggestion that he include the objective ‘Remain incident free’ as one of his goals in custodial settings.[51] Incidents recorded against the Applicant include the following:
[49] Ibid 13-14; 21 (27 April 2020); 22 (19 May 2020); 25 (18 and 24 October 2020).
[50] Ibid 20 (26 March 2020).
[51] Ibid, 23 (18 June 2020).
(e)Category 1 – Minor Incident. On 28 January 2022 a makeshift bong was reportedly found in a room the Applicant shared with another person after heavy smoke activated an alarm.[52] Attending staff discovered a pile of toilet paper on fire, which burned a wall and the floor. The Applicant and the other person denied knowledge of the fire or drug paraphernalia, claiming to have both been asleep.
[52] Exhibit R1, 253-254.
(f)Category 2 – Major Incident. On 2 January 2022 the Applicant reportedly engaged in aggressive and abusive behaviour by kicking an Officer Station door twice and breaking it.[53] This reportedly occurred after he was told by a female Detention Officer to wait for the issue of a razor. Upon entering, he reportedly attempted to grab the arm of the female Officer, abused her, and took razors from the office. He then reportedly ripped an intercom off a wall and threw it at a window.[54] The Applicant was reportedly placed in restraints after resisting lawful directions.[55]
[53] Ibid 255; 257-258.
[54] Ibid 259.
[55] Ibid 256.
(g)Category 1 – Minor Incident. On 1 January 2022 the Applicant reportedly engaged in abusive behaviour by calling the Duty Manager a ‘Dog’ and a ‘Rat’ in an aggressive manner and being non-compliant with instructions.[56]
[56] Ibid 261.
(h)Category 1 – Minor Incident. On 30 December 2021 the Applicant reportedly damaged a wall in his cell and covered the camera in his cell all night.[57]
(i)Category 1 – Minor Incident. On 30 December 2021 the Applicant was reportedly placed in flexi-cuffs after displaying ‘non-compliant behaviour’ during a search, causing him to be housed in ‘high care accommodation’.[58]
(j)Category 1 – Minor Incident. On 30 December 2021 the Applicant was reportedly found in possession of a sharp object that he used to ‘make a hole in the window covering’.[59] This contraband item was seized and disposed of.
(k)Category 1 – Minor Incident. On 29 December 2021, contraband (razor blade) was reportedly found in a cell shared by the Applicant and another cellmate.[60] Both reportedly denied ownership of the item.
(l)Category 3 – Critical Incident - Riot. On 27 December 2021 the Applicant was reportedly involved in a riot.[61] Conduct attributed to him includes damaging a gate, using a toolbox to open gates and doors between compounds, covering cameras to impede surveillance, using fire hoses, climbing onto the roof, taking items, and placing them in a storage bag, and opening an Officer’s Station Door.
(m)Category 1 – Minor Incident – Assault - Minor. On 21 December 2021 the Applicant reportedly became abusive regarding the whereabouts of a parcel he was expecting. He reportedly tried to enter the Officer’s station and when prevented, pushed the officer in the chest.[62] He reportedly retreated into the day room, picked up a pool cue, raised it and threatened officers by stating: ‘I will take all of you cunts on.’
(n)Category 1 – Minor Incident – Minor Disturbance. On 10 December 2021 the Applicant reportedly received an item through a fence and was observed placing an unopened tobacco pouch behind one of the computers in his compound, which was suspected to be a ‘contraband pass’.[63]
(o)30 October 2021 – Prison Incident Report: On his last day in prison and just prior to transfer to immigration detention, the Applicant reportedly squeezed the contents of a carton under another cell door, containing what ‘appeared to be human excrement’.[64]
(p)4 July 2021: The Applicant reportedly called a prison officer a ‘fucking rat’ for not letting him attend the gym because he was on restrictions.[65]
(q)30 May 2021: The Applicant was reportedly removed to a different area of the prison following a ‘prisoner on prisoner assault’.[66]
[57] Ibid 260; 262.
[58] Ibid 263-264.
[59] Ibid 265.
[60] Ibid 266.
[61] Ibid 267-270.
[62] Ibid 273.
[63] Ibid 274.
[64] Exhibit R2, 5.
[65] Ibid 10.
[66] Ibid, 12.
Tribunal findings: The nature and seriousness of the conduct
The Tribunal places weight on the available sentencing remarks and contemporaneous custodial records. This material routinely forms part of the evidence in visa cancellation cases and the latter are usually obtained under summons. They do not assume the status of evidence until admitted. The Tribunal is not bound by the rules of evidence[67] and although some records may not have been substantiated in court, there is nothing preventing the Tribunal from considering them as ‘other conduct’ pursuant to cl 8.1.1(1) of the Direction.[68] Nevertheless, absent agreement by an applicant that police or custodial records not leading to charges or convictions are accurate, they must be treated with caution. Kenny J has pointed out the Tribunal should acknowledge the ‘limits to the material before it that was said to evidence such conduct, including its cogency and reliability’.[69] Anastassiou J has similarly expressed the need for care about ‘reaching a view that criminal conduct has occurred, absent a prosecution and conviction’.[70]
[67] AAT Act, s 33(1)(c).
[68] Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 276 FCR 516, [64].
[69] CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101, [98]-[100].
[70] QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394, [74], citing Brown v Minister for Immigration and Citizenship [2009] 112 ALD 67, [85] (Edmonds J) and echoed by the Full Court on appeal in Brown v Minister for Immigration and Citizenship [2010] 183 FCR 113, [128] (Nicholas J, with whom Moore and Rares JJ agreed).
Police and custodial records are routinely put to applicants for comment in the interests of procedural fairness. This was not possible on this occasion because the Applicant refused to attend the hearing. Procedural fairness does not require the authors of such records to be cross-examined for weight to be placed on their reports.[71] Having read these documents, the Tribunal does not discern any motive for their authors to have recorded other than what they saw or was conveyed to them. Moreover, the Applicant has readily acknowledged much of his offending and other objectionable conduct in the past and there are recurringly consistent themes in the available material from different authors, on different days, and over a prolonged period. This adds to the persuasiveness of these records.
[71] Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106 [53], [69] (Anderson J).
The following aspects of cl 8.1.1(1) of the Direction are relevant to the specific circumstances of the Applicant’s case:
(a)8.1.1(1)(a): The Applicant has a lengthy history of convictions for violence or the threat of violence. This includes offending against police, emergency workers, strangers, and the ‘unprovoked and armed attack of [his then employer] who was doing nothing more than trying to help [him]’.[72]
(b)8.1.1(1)(c): The Tribunal acknowledges the sentences awarded to the Applicant are well below the available statutory maximums. For example, Aggravated Burglary can attract a sentence of up to 25 years imprisonment depending on the circumstances.[73] That said, frequent imposition of custodial sentences, the most severe sentencing order available to our courts,[74] reflects the objective seriousness of the Applicant’s conduct.
(c)8.1.1(1)(d): There is a trend of increasing seriousness in the Applicant’s offending. This includes for repeated crimes like armed robbery, burglary, assault, car theft, and dangerous driving. There are no meaningful breaks in offending since 2012 and his conduct during the last decade reflects a persistent disregard for Australian law and the authorities that enforce it.
(d)8.1.1(1)(e): The cumulative effect of the Applicant’s frequent offending has imposed substantial costs on numerous victims and the broader community. This includes through the costs of intervention by police, courts, and the corrections system.
[72] Exhibit R1, 53 [18].
[73] Crimes Act 1958 (Vic) s 77; Exhibit R1, 47 [1].
[74] See for example: Sentencing Advisory Council, ‘Imprisonment,” <
The Applicant’s conduct in custodial settings has been very bad. The totality of his offending and other conduct is objectively very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction states:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Clause 8.1.2(2) of the Direction relevantly provides that in assessing the risk posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
This aspect of the Direction requires the Tribunal to assess the risk posed by an applicant to the Australian community in the event they reoffend, taking into consideration both the nature of any harm and its probability. This is a future-focussed requirement;[75] where evidence of a past offence may not of itself be significantly probative of the committing of another offence.[76] The FCAFC has noted that despite future unpredictability:
…it is possible to assess the degree of likelihood of an event occurring in the future based on past and current circumstances…In assessing the likelihood of a future event, the key facts will include the regularity with which the event has occurred in the past, the conditions under which the event occurred in the past and the likelihood that those conditions have since changed or other events have intervened to interrupt the cycle of regularity.[77]
[75] Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, 574-579; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [59] (Katzmann J); Murphy v Minister for Home Affairs [2018] FCA 1924, [37] (Mortimer J); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133, [81]; Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120, [63]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133, [81].
[76] Hughes v The Queen (2017) 263 CLR 338, 392 (Nettle J).
[77] CKL21 v Minister for Home Affairs [2022] FCAFC 70, 74 (Moshinsky, O’Bryan and Cheeseman JJ)..

Expert evidence relating to the risk of an applicant reoffending may be relevant.[78] The Tribunal has considered a neuropsychological assessment by Dr Yasmin Baliz dated December 2012,[79] which was undertaken while the Applicant was a 14-year-old resident of a Youth Justice Centre. The report is somewhat dated but incorporates information obtained from the Applicant’s mother about family history in New Zealand and Australia. It includes reference to their troubled existence in New Zealand, the Applicant’s substance abuse from a young age, and his ‘longstanding conflictual relationship with family members, including his mother’.[80] Dr Baliz assessed the Applicant as satisfying the diagnostic criteria for ‘Conduct Disorder’, but did not consider he met the diagnostic criteria for ADHD.
[78] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; (2019) 271 FCR 595 at [72] (Mortimer J).
[79] Exhibit R2, 89-95.
[80] Ibid 91.
A Forensicare pre-sentence report dated June 2017 was prepared for the Court by clinical psychologist Dr Francis Puccio.[81] Dr Puccio assessed the Applicant as indicative of a ‘personality style associated with numerous features of Antisocial Personality Disorder including; likely involvement with criminal activity including physical aggression towards others, a likely history of conduct disorder during adolescence and probable unreliability and irresponsibility.’ Dr Puccio applied the HCR-20 assessment methodology to determine the Applicant’s risk of further violent recidivism, finding it to be ‘high’ and requiring further ‘offence specific intervention’.[82]
[81] Ibid 96-105
[82] Ibid 107.
The Applicant has previously stated his smoking, drug, and alcohol use commenced when he was approximately 14 years of age.[83] He claimed to have felt ‘drawn to the excitement of being part of a gang and the feeling he received when engaging in alcohol and other drug use’.[84] He has previously refused offers to engage in treatment for drug and alcohol abuse.[85]
[83] Ibid 77-78.
[84] Ibid 79.
[85] Ibid 78.
The available sentencing remarks state the Applicant:
(a)Had shown while offending on 24 October 2018 to be ‘a person unable to control [his] temper…[or]…remain calm and act in [his] own best interests’.[86] Her Honour stated the Applicant’s prospects of rehabilitation were ‘poor’ and he had a ‘complete lack of support in the community’;[87]
(b)‘Expressed no remorse and [had] no insight into [his] offending’.[88] The Applicant was observed to exhibit ‘bravado and a blasé attitude’ while speaking with Senior Clinical Neuropsychologist and Forensic Psychologist Dr Nielsen about his offending, such that he seemed ‘resigned to committing further criminal activity in the future’.[89] The court also referred to Dr Nielsen’s observation that the Applicant’s attitude masks ‘low self-esteem’ and difficulty in ‘imagining a positive pro-social future’;[90]
(c)Was unsuitable for CCOs because of his criminal history, past breaches of court orders, attitude to offending, and lack of any community support;[91]
(d)Told Dr Nielsen he used alcohol and illicit drugs since the age of 12 or 13, including methamphetamines and ecstasy. He claimed it would be ‘fairly easy to give up drugs, but…[he was]…unlikely…[to]…stop drinking’.[92] The Applicant stated to prison staff upon commencing his most recent sentence that he consumed three or four grams of cannabinoids daily. Other records state the Applicant ‘admitted to using alcohol and ice regularly before being incarcerated’;[93]
(e)Was assessed by Dr Nielsen ‘as scoring in the very high range for general reoffending [and]…in the high range risk for violent reoffending, presenting with most of the 20 risk factors used in the assessment’;[94]
(f)Was assessed by Dr Nielsen as ‘likely’ having sustained a ‘mild acquired brain injury’ based on the history he gave and the contents of two other neuropsychological reports dated 2012 and 2019.[95] The sentencing remarks noted the Applicant’s refusal to be expertly assessed on two separate occasions made it difficult to give an informed opinion. Her Honour stated that based on the material before the Court, however, it ‘could not be established’ the Applicant ‘suffered an acquired brain injury, or had an intellectual disability, or had any diagnosed mental health condition’ to attract the application of Verdins principles, which was accepted by the Applicant’s counsel.[96]
[86] Exhibit R1, 53 [18].
[87] Ibid 54 [19]
[88] Ibid 54 [19].
[89] Ibid 52 [14]
[90] Ibid.
[91] Ibid 54 [21].
[92] Ibid 52 [14].
[93] Exhibit R2, 57.
[94] Exhibit R1, 52 [15].
[95] Ibid 52 [16].
[96] Ibid 53 [17].
The Applicant contextualised his offending as arising from a very difficult life in state care. He claimed that ‘D.H.S…didn’t do much to take care of [him],’ which is why he has a ‘bit of a criminal record because being locked up was safer than living in the care of D.H.S’.[97] He claimed to be a product of ‘the Australian system’,[98] and ‘just wanted to fit in’.[99] He also claimed there was a period where he ‘turned [his] life around’, but after ‘another ruff patch’[100] (sic) found himself imprisoned again. The period of stability referred to by the Applicant is unidentified. When asked to detail any courses or programs completed to help him avoid future offending, the Applicant wrote: ‘Honestly no courses will help you stop offending – it’s up to me to stop offending’.[101] In relation to his recidivism risk, the Applicant wrote: ‘There will be no offending because this deportation stuff has opened my eyes and I’ll just get back in to work if I get my visa back’.[102]
[97] Ibid 82.
[98] Ibid 97.
[99] Ibid 67 [Q10].
[100] Ibid.
[101] Ibid 67.
[102] Ibid.
The Applicant was dismissed from employment while imprisoned due to abusive and aggressive conduct.[103] Risk assessments noted he has a ‘history of significant violence’ and constitutes a high or very high recidivism risk.[104] In 2020 he was classified as a ‘maximum security rated prisoner’.[105] The Applicant’s risk was assessed using the Level of Service/Risk, Need, Responsivity methodology, which is an internationally validated actuarial tool used to assess an offender’s recidivism risk and identify criminogenic needs.[106] The Applicant’s ‘Risk/Need Profile’ was noted to be high or very high across several factors, including ‘Alcohol/Drug Problem’, ‘Companions’, ‘Procriminal Attitude/ Orientation’, and ‘Antisocial Pattern’. He is identified as having problems with compliance, self-management, anger management, and social skills. He is also noted to have a history of intimidating, controlling and violent behaviour, assaulting authority figures, denying and minimising his past conduct, and using weapons. Insufficient community support and accommodation are identified as barriers to release.
[103] Exhibit R2, 8; 10; 21 (23 April 2020); 39.
[104] Ibid 2; 30, 32, 34; 51.
[105] Ibid 61-63.
[106] The Utility of Level of Service Inventory – Revised (LSI-R).
The Tribunal has considered somewhat dated references for the Applicant from Mission Australia[107] and the Applicant’s employer during the 2018 apprenticeship.[108] It is this employer the Applicant violently attacked three months later.[109]
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
[107] Exhibit R2, 74.
[108] Ibid 75.
[109] Exhibit R1, 47 [2].
There is little if any break in the Applicant’s offending since a young age, reflecting a disturbing cycle of offending, punishment, release, and reoffending. The Applicant lacks meaningful insight into the link between his drug and alcohol abuse and offending. He has been unwilling to meaningfully engage with past offers of treatment and his misconduct has persisted in custodial settings.
The Applicant is a violent offender with an extensive history of concerningly impulsive and aggressive behaviours against multiple victims. The potential harm arising from a repeat of his offending is physical and psychological in nature, with potentially catastrophic results. For example, a sentencing judge said the Applicant’s driving, while trying to evade arrest by police, was ‘almost breathtakingly bad’.[110] Such conduct has the potential to kill road users or pedestrians. If he were to again attack someone with a steel bar, the victim could be seriously injured or killed.
[110] Ibid 174.
The Applicant undoubtedly experienced a difficult life in New Zealand, with reports that his family required substantial involvement from social services. At least one of his half-siblings appears to have been permanently taken into state care in New Zealand without returning to his mother’s care.[111] These difficult circumstances appear to have continued after the Applicant’s family arrived in Australia, again requiring extensive support, including the Applicant’s placement in foster homes because of his unwillingness to reside with his mother.[112] The extensive support he has received since a young age has not succeeded in nudging his life in a law-abiding direction. To the contrary. He has previously expressed a preference to remain in custodial settings.[113] A sentencing Magistrate observed in March 2020 that the Applicant is ‘not uncomfortable in gaol’,[114] which was echoed by the Applicant’s counsel who stated: ‘Mr Dawson is not all that concerned about staying in custody’.[115] The Applicant has made similar claims in his documentary evidence,[116] and previously declined applying for parole, preferring to complete terms of imprisonment.
[111] Exhibit R3, 27 [2].
[112] Ibid.
[113] Exhibit R2, 78.
[114] Exhibit R1, 41.
[115] Ibid 42.
[116] Ibid 128.
Very difficult life circumstances in no way excuse the persistent infliction of harm on others. The Applicant’s conduct reflects a disregard for his victims, the authorities, and the broader community. The Tribunal does not accept the Applicant’s submissions about the course of his life being a consequence of the ‘Australian system’.[117] Despite being cared for since a young age, with supervision and educational opportunities provided at considerable taxpayer expense, and receiving assistance to commence an apprenticeship, the Applicant has made persistently bad personal choices. This is most recently reflected by his refusal to attend the hearing and explain how he intends to lead a more productive and law-abiding life if released. He instead blames others and refuses offers of assistance.
[117] Ibid 97.
There are several references in the sentencing remarks to the Applicant’s candour when questioned by police and acceptance of criminal responsibility. This was never followed, however, by meaningful periods of abstinence from substance abuse and crime. There is a paucity of evidence to suggest the Applicant has learned from his mistakes or gained better control over his impulsive violent tendencies. This includes in custodial settings, where he has not been cooperative or compliant for meaningful periods. This only exacerbates concerns about his recidivism risk. Someone inured to custodial settings, which is the most severe sanction available to the courts, seems unlikely to be dissuaded from reoffending by the prospect of further imprisonment. The Tribunal is unpersuaded by the Applicant’s bare assertion that the prospect of removal from Australia has now ‘opened his eyes’ and ameliorated his recidivism risk to an acceptable level.[118]
[118] Ibid 167.
It remains difficult to understand how the Applicant can meaningfully progress his rehabilitation and reduce his recidivism risk to an acceptable level. The Tribunal does not accept his written assurances alone about this because:
(a)He has not previously been dissuaded from reoffending following release on conditional liberty, or other non-custodial / custodial penalties.
(b)Little if any rehabilitative progress can be discerned from the Applicant’s past supervision, including while under court-ordered CCO conditions, which the Applicant has repeatedly breached.[119] Any offence-specific rehabilitation has failed to moderate his aggressive, abusive, and violent tendencies.[120] The most recent risk assessments state the Applicant represents a high risk of violent reoffending. He has significant unmet rehabilitation needs for illicit drug abuse, alcohol abuse, anger management, violent tendencies, and emotional regulation. Prison records refer to him as having a ‘dismissive attitude’ towards self-improvement and being uninterested in drug and alcohol programs.[121] He is recorded as declining treatment from rehabilitation services provider Caraniche.[122] He is also reported to have declined mental health screening and ‘refused to engage’ in immigration detention.[123] The Tribunal notes, however, that decisions should not be delayed for rehabilitative courses to be undertaken.[124]
(c)The Applicant has returned positive drug and breath tests while imprisoned,[125] and engaged in multiple incidents of abusive, aggressive, violent, and anti-social behaviour. This has led to fines and other sanctions like withdrawal of privileges. His non-compliance with conditional liberty arrangements and in custodial settings only exacerbates concerns about how he will conduct himself if released. The persistence of his criminal and anti-social conduct is a far more persuasive guide about how he might conduct himself than his assertions alone.
[119] Exhibit R2, 66-69.
[120] Ibid 70-76.
[121] Ibid 20 (26 March 2020); 21 (23 April 2020); 55; 65.
[122] Ibid 24 (2 September 2020).
[123] Ibid 123.
[124] Clause 8.1.2(2)(b)(ii) of the Direction
[125] Exhibit R1, 251-252.
In terms of protective factors, the Applicant has no evident prospects of work, no offer of stable accommodation, or practical and emotional support from family or friends. He eschews family ties in Australia and on the currently available material, has no known sources of pro-social support. Evidence about friends he could rely upon if released include those he used to offend with.[126] The Tribunal considers the circumstances into which the Applicant would be released are comparable to those of the past. The Applicant told Dr Nielsen he is ‘unlikely…[to]…stop drinking’[127] and the risk factors informing Dr Nielsen’s ‘high’ and ‘very high’ assessments are still in place. The Applicant would again be exposed to a comparable environment and stressors, suggestive of an inevitability that he will again abuse alcohol and drugs, reoffend, and cause further serious harm to the community.
[126] Exhibit R2, 20 (31 March 2020).
[127] Exhibit R1, 52 [14].
The Applicant has previously benefited from considerable latitude by the courts and received significant assistance at public expense. He has nevertheless continued to engage in serious crimes. His recidivism risk is very high and unacceptable. Notwithstanding any positive features of his case, the nature and seriousness of his offending and other conduct, coupled with his recidivism risk, is such that this primary consideration carries very substantial weight against revocation.
TRIBUNAL CONSIDERATION: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
Clause 4(1) of the Direction defines family violence as: ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member) or causes the family member to be fearful’.
Clause 8.2(1) of the Direction reflects the Australian government’s concerns about conferring on non-citizens who commit acts of family violence the privilege of coming into or staying in Australia. Clause 8.2(2) provides that this consideration is relevant in circumstances where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
In considering the seriousness of the family violence engaged in by the non-citizen, the Direction requires the following factors at cl 8.2(3) to be considered where relevant:
a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.
The Respondent referred to two charges against the Applicant as a juvenile in 2012, for Contravene Family Violence Intervention Order.[128] These related to an incident involving his mother and, although the charges were proven, the Court did not record a conviction.[129] The Tribunal expressed concerns about taking this conduct into consideration given binding authority in Thornton. Mr Downie submitted that the reference in the Direction to ‘information or evidence from independent and authoritative sources indicating that the non-citizen has been involved in the perpetration of family violence’ means there is no need to consider convictions in breach of Thornton, and there is sufficient evidence to find family violence was engaged in within the meaning of cl 8.2.
[128] Respondent’s Statement of Facts, Issues, and Contentions (RSFIC) dated 24 June 2022, [30]-[34].
[129] Exhibit R2, 301-302.
Tribunal findings: Family violence committed by the non-citizen
Consistent with Thornton, the Tribunal finds that because no convictions were recorded for the Applicant’s family violence as a juvenile in 2012, it is not relevant to this consideration.[130] This is particularly so given the Applicant’s mother stated they were violent against each other, and she held ‘back from punching him too hard’ in retaliation’.[131] The Applicant may have seen the Respondent’s Statement of Facts, Issues and Contentions in which this issue is canvassed, but the Tribunal is unsure of that and does not consider he has been afforded sufficient procedural fairness for a reliable finding to be made. It follows there is insufficient evidence to persuasively conclude he has committed family violence offences within the meaning of the Direction.
[130] Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, 40.
[131] Exhibit R3, 19.
This primary consideration weighs neutrally.
TRIBUNAL CONSIDERATION: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Clause 8.3 of the Direction requires decision-makers to determine whether revocation is in the best interests of minor children in Australia affected by the decision. This provision applies only if the child is, or would be, under 18 years old at the time when the application is decided. If there are two or more relevant children, the best interests of each child should be given individual consideration, to the extent their interests may differ.
The Applicant did not advance the interests of any children within the meaning of the Direction in his documentary claims, and none are disclosed by the evidence.[132]
[132] Exhibit R1, 65-66.
Tribunal findings: Best interests of minor children in Australia

This primary consideration weighs neutrally.
TRIBUNAL CONSIDERATION: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Clause 8.4(1) of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Clause 8.4(2) of the Direction states that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:
(a) acts of family violence;
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; 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.
Clause 8.4(3) states that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Clause 8.4(4) states that this consideration is ‘about the expectations of the Australian community as a whole’ and directs decision makers to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in particular cases.
Clause 8.4(4) of the Direction correlates with the reasoning in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR), albeit under a different direction. Notwithstanding the different pathways in judicial reasoning, the plurality in FYBR held that ‘Expectations of the Australian community’ is a deeming provision with normative principles, ascribing an expectation aligning with that of the Executive Government. It is not for the Tribunal to determine the expectations of the Australian community based on the Applicant’s individual circumstances or evidence about those circumstances.[133] FYBR requires decision-makers to focus on what the Government has deemed the community’s expectations to be, to have due regard to those views, and to generally afford them more weight than other non-primary considerations: cl 7(2) of the Direction.[134]
[133] FYBR (2019) 272 FCR 454, at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).
[134] Ibid [74] (Charlesworth J). See also Say v Administrative Appeals Tribunal [2020] FCA 1489, [39] (Charlesworth J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine.’[135] The Tribunal notes the High Court refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court’.[136]
[135] Ibid at 473 [75]–[76] (Charlesworth J).
[136]FYBR v Minister for Home Affairs and Anor [2020] HCATrans 056.
Tribunal findings: Expectations of the Australian community
The Applicant has lived in Australia for over twenty years. His circumstances are such that he would be afforded a higher level of tolerance by virtue of having come to Australia at a young age and living here for most of his life.
Aspects of the Applicant’s offending raise serious character concerns within the meaning of cl 8.4(2)(c)-(d) of the Direction.[137] He has not obeyed Australian laws and most of his residence here has been on some form of conditional liberty, or imprisoned, or in immigration detention. Non-revocation is considered appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect the Applicant should not hold a visa. Notwithstanding the Applicant’s long residence in Australia, this primary consideration carries very substantial weight against revocation.
OTHER CONSIDERATIONS
[137] Exhibit R1, 25-27; 31 [29]; 35 [27]; Exhibit R2, 102; 192.
Tribunal Consideration: International non-refoulement obligations
In his documentary evidence the Applicant responded ‘yes’ to a question about whether he has any fears about a return to New Zealand, citing homelessness. This is more properly addressed under the next consideration (Extent of impediments if removed). The Tribunal did not discern any non-refoulement claims from the available evidence.
Tribunal findings: International non-refoulement obligations
This consideration is not enlivened and carries neutral weight.
Tribunal consideration: Extent of impediments if removed
Clause 9.2(1) of the Direction states that:
(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’s documentary claims refer to a learning disability, ‘adhd and add’,[138] which the Tribunal inferred was Attention-Deficit/Hyperactivity Disorder and Attention Deficit Disorder. The Applicant does not know when he was diagnosed with these conditions.[139]
[138] Exhibit R1, 130.
[139] Ibid.
Prison records refer to the Applicant telling staff he ‘is not on any medication and…his physical and mental health are good’.[140] Other than paracetamol tablets being issued to him on two occasions, most recently on 1 February 2022,[141] there are few noteworthy features in the available medical records. The Applicant’s health assessments with general practitioners and primary health nurses in immigration detention state:[142]
nil health issues
fit and healthy
no meds
no allergies
not asthmatic
…
Physical assessment unremarkable.
[140] Exhibit R2, 20 (26 March 2020).
[141] Ibid 133.
[142] Ibid 128; 130.
There is no dispute the country of return in the event of repatriation is New Zealand. The Applicant claims to have a current New Zealand passport.[143] There is material in evidence stating he has no family in New Zealand and does not know anyone there. An IHMS record, however, records him telling the author he wants to return to New Zealand and has ‘supportive family’ there.[144]
[143] Exhibit R1, 64 [Q3].
[144] Exhibit R2, 130.
In response to a question on his Personal Circumstances Form about fears relating to a return to New Zealand, the Applicant stated he would be homeless and unable to provide for his daily needs because he does not know anyone there.[145] He claimed: ‘I would probably kill myself out of sevier depresion’ (sic).[146]
[145] Exhibit R1, 69.
[146] Ibid 97.
Tribunal findings: Extent of impediments if removed
The Applicant is a young man at 25 and the evidence discloses several references to him being in good health in custodial settings. There is no persuasive evidence he would be unable to work if he wanted to because of currently diagnosed conditions. Given the expert evidence of Dr Yasmin Baliz dated December 2012,[147] the Tribunal does not accept the Applicant suffers ADHD or ADD. The Court also held at his most recent sentencing in March 2020 that it ‘could not be established’ the Applicant ‘suffered an acquired brain injury, or had an intellectual disability, or had any diagnosed mental health condition’ attracting the application of Verdins principles, which was accepted by the Applicant’s counsel.[148] The Applicant’s claims about potentially suffering depression if returned to New Zealand are speculative, but possible given his circumstances. If that were the case, there is no evidence he would be denied or could not access treatment for any emergent psychological condition.
[147] Exhibit R2, 89-95.
[148] Exhibit R1, 53 [17].
There are no discernible cultural or language impediments to the Applicant’s removal to New Zealand. Having left there as an infant, however, he is likely to confront practical issues such as understanding how to access support. There is likely to be an unsettling period of adaptation, which is not insurmountable on these facts.
The Applicant has limited work skills, scant past employment, an extensive criminal history, and persistent lack of motivation to change the course of his life. Unless he does so, he will confront impediments irrespective of where he lives. If he were unable to independently provide for his needs, however, there is no evidence he would be denied the same support available to other New Zealand citizens. This includes support for any emergent physical or psychological issues, such as the suicidal ideation he claims may result from removal. Mr Downie referred the Tribunal to New Zealand’s Returning Offenders (Management and Information) Act 2015, as an example of reintegrative assistance and supervision available to returning offenders to New Zealand, who have served a term of imprisonment of more than one year in another country. This is available irrespective of whether the offender is deported, removed, or returns voluntarily.[149]
[149] New Zealand Government, ‘Returning offenders order’, Department of Corrections (Web Page).
It is not possible given conflicting evidence, to reliably conclude whether the Applicant has any family members in New Zealand and, if so, whether they might be able to provide any practical or emotional support. On balance, this is considered unlikely.
Given the Applicant’s long residence in Australia and unfamiliarity with New Zealand support systems, this consideration weighs moderately in favour of revocation.
Tribunal consideration: Impact on victims
Clause 9.3(1) of the Direction provides that the Tribunal must consider the impact of a non-revocation 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 this information is available.
Tribunal findings: Impact on victims
There is no evidence about the impact of a decision in this matter on victims of the Applicant’s past offending. This consideration is of neutral weight.
Tribunal consideration: Links to the Australian community
Clause 9.4 of the Direction provides that decision-makers must, reflecting on the principles at cl 5.2, have regard to cl 9.4.1 relating to the ‘Strength, nature and duration of ties to Australia,’ and cl 9.4.2 relating to ‘Impact on Australian business interests.’ There is no evidence that a decision in this matter risks compromising the delivery of a major project or an important service in Australia. It follows that the presumption in the Direction is not displaced and this consideration is of neutral weight.
Tribunal consideration: Strength, nature, and duration of ties
Clause 9.4.1 of the Direction states:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
(a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant is single[150] and has lived in Australia for all except two years of his life. He previously claimed not to know his parents or other biological relatives,[151] although there is reference in the materials to him arriving in Australia with his mother,[152] contacting a person he believes may be his father in Canada,[153] speaking with relatives overseas, and having several half siblings, including a sister that he previously expressed an intention to live with if released. It is clear from other evidence he has had a tumultuous relationship with his mother and refused to live with her on several occasions.[154] In other evidence he reportedly told staff he has no family in Australia ‘apart from his best mate’[155] who he speaks to by telephone and zoom. There was no evidence about who this person is. An information sheet completed for the Applicant while he was imprisoned stated he does not have any contact details for this friend and does not know their address.[156] There is also reference in the evidence to the Applicant having been in several foster homes, ‘but not in contact now’.[157]
[150] Exhibit R1, 88.
[151] Ibid 82; 85; 132-133.
[152] Ibid 242.
[153] Ibid 243.
[154] Exhibit R3, 18-21.
[155] Exhibit R1, 130; Exhibit R2, 23 (19 June 2020).
[156] Exhibit R1, 244.
[157] Exhibit R2, 65.
The Applicant stated he ‘never did much schooling’ in Australia and learned how to read and spell on ‘Facebook and the internet’.[158] He referred to undertaking some vocational training at a TAFE for an unspecified period towards becoming a mechanic.[159] He also claimed to have undertaken volunteer work for a program called ‘Hand Brake’ but provided no corroboration of either how far he progressed in his TAFE studies or any volunteer work. The apprenticeship he refers to ended after a relatively brief period and appears to be the only job he has held since arriving in Australia.[160]
[158] Exhibit R1, 129.
[159] Ibid 95.
[160] Exhibit R2, 75 (last sentence, first paragraph).
Tribunal findings: Strength, nature, and duration of ties
The Applicant has lived in Australia for over twenty years. The Tribunal accepts he has been estranged from his immediate family members for many years, although there is reference to him having contact with an uncle who is purportedly serving 18 years in an Australian prison.[161] This person is not otherwise identified, and their immigration or citizenship status is unknown. No reliable basis exists, therefore, to consider the impact of a non-revocation decision on people falling within the meaning of cl 9.4.1(1) of the Direction.
[161] Exhibit R2, 8 (05/08/2021).
In terms of the strength, nature, and duration of other ties the Applicant has in Australia, these are very limited. There are no statements from the ‘best mate’ or his ‘best mate’s family’ in Australia that he refers to and the available evidence is that the Applicant does not have their contact details or know where they currently live.[162] Other evidence suggests this friend is someone the Applicant committed crimes with.[163] During sentencing in March 2020, her Honour stated the Applicant had a ‘complete lack of support in the community’.[164] The highest the Applicant’s evidence gets in terms of the strength, nature, and duration of ties is the inference that he is likely to have made some social contacts and friendships. These relationships are of insufficient strength, however, for them to provide the Applicant with supportive statements or other practical and emotional support if he is released.
[162] Exhibit R1, 244.
[163] Ibid 101 (Relationship History).
[164] Ibid 53 [19]
The Applicant’s offending started while he was still a juvenile and has continued throughout adulthood. Evidence about any positive contribution to the community is scant and uncorroborated. Despite no evidence about his work history, the Tribunal accepts he briefly worked as an apprentice. Most of the Applicant’s time in Australia has been spent on some form of conditional liberty, imprisoned, or in immigration detention.
The Applicant did not advance immediate family ties in Australia or particularly close relationships with others. There is no evidence the impact of non-revocation on those he knows in Australia would be other than emotional.
For someone who has lived in Australia for over two decades, the Applicant’s ties to the community are extremely limited and there are no discernible sources of practical or emotional support. However, what ties he has in Australia are clearly stronger than anywhere else by virtue of residence here for most of his life. On balance, this consideration weighs moderately in favour of revocation.
CONCLUSION
The Applicant does not pass the character test. In determining if there is ‘another reason’ why the mandatory cancellation of his visa should be revoked, the Tribunal has applied the Direction to the specific circumstances of his case. The Tribunal does not consider it necessary to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations.
The Applicant’s persistent criminal offending since a young age is disturbing. It reflects serious breaches of the privilege afforded to non-citizens to enter and remain in Australia. Although the Australian community would afford him a higher level of tolerance, the frequency, seriousness, and repeat nature of his offending, despite considerable supports, is such that he should expect to forfeit the privilege of staying in Australia. This is particularly so given he represents a very high risk of reoffending and causing further harm.
In the absence of persuasive evidence to corroborate the Applicant’s written assurance that ‘there will be no offending’ if he is released, the Tribunal places little weight on this claim. His conduct in custodial settings only exacerbates concerns about the continuing harm he might cause to others if released.
Most of the Applicant’s life in Australia has been under some form of conditional liberty, or imprisonment, or immigration detention. The Tribunal accepts this sad history will confront him with challenges in establishing himself in New Zealand.
Having weighed the relevant considerations in the Direction individually and cumulatively, the Tribunal finds there is not another reason to revoke the mandatory cancellation of the Applicant’s visa. That is because the only two relevant primary considerations in this matter substantially outweigh the combined weight given to the countervailing considerations.
DECISION
It follows that the Tribunal affirms the decision under review.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

……………[sgd]…………………….
Associate
Dated: 15 July 2022

Date of hearing: 5 and 6 July 2022

Advocate for the Applicant:

No appearance by or on behalf of the Applicant

Advocate for the Respondent: Mr Adrian Downie

Solicitors for the Respondent: Australian Government Solicitor

Date of hearing:	5 and 6 July 2022
Advocate for the Applicant:	No appearance by or on behalf of the Applicant
Advocate for the Respondent:	Mr Adrian Downie
Solicitors for the Respondent:	Australian Government Solicitor