DJTW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

DJTW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3822 (5 October 2021)
Division:GENERAL DIVISION
File Number: 2021/4832
Re:DJTW
APPLICANT

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

Decision
Tribunal:Senior Member P. Q. Wood
Date of Decision: 5 October 2021
Date of Written Reasons: 19 October 2021
Place:Melbourne

The decision under review is affirmed.
...........................[SDG]........................................
Senior Member P. Q. Wood
Catchwords
MIGRATION – Mandatory cancellation of visa – non-revocation of mandatory visa cancellation – Class TY Subclass 444 Special Category (Temporary) visa – failure to pass character test – Applicant concedes fails character test – where Applicant made representations seeking revocation of visa cancellation – where delegate not satisfied another reason to revoke visa cancellation – where Applicant seeks review by Tribunal – contents of Direction 90 – substantial criminal offending – protection of the Australian community – expectations of the Australian community – Applicant’s mental health – Applicant’s substance abuse – links to the Australian community – other relevant considerations – non-refoulement obligations – extent of impediments if removed – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Omar v Minister for Home Affairs [2019] FCA 279
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
Suleiman v Minister For Immigration and Border Protection (2018) 74 AAR 545
Tara Euna and Minister for Immigration and Border Protection [2016] AATA 301
Secondary Materials
Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA(made 8 March 2021/commenced 15 April 2021)
Ogilvie, Katherine, Submission No 343 to Victorian Parliament Legal and Social Issues Committee, Inquiry into homelessness in Victoria (March 2020)
REASONS FOR DECISION
Senior Member P. Q. Wood
19 October 2021
Introduction

The Applicant seeks review of a decision made by a Delegate of the Respondent on 13 July 2021, under section 501CA of the Migration Act 1958 (the Act) not to revoke a mandatory cancellation of his Class TY Subclass 444 – Special Category (Temporary) visa.
The hearing before the Tribunal in this matter was held in Melbourne on 22, 23, 27 and 28 September 2021 by videoconference as permitted by section 33A of the Administrative Appeals Tribunal Act 1975 (AAT Act), and consistent with the Tribunal President’s Special Measures Practice Direction issued in relation to the current public health emergency.
The Applicant was represented by Mr Nikolic and Ms Vu, solicitors from Carina Ford Immigration Lawyers. The Minister was represented by Ms Ho, a solicitor from Clayton Utz.
I have read and had regard to all the written evidence, which was compiled into an agreed Exhibit Register, a true and correct copy of which is attached hereto and marked Annexure A. The Tribunal has summarised the central aspects of the witness testimony of each of the witnesses who appeared before it below.
On 5 October 2021, I made a decision to affirm the decision under review. The following are the written reasons for that decision.
CONFIDENTIALITY
On 4 October 2021, the Tribunal made an order under section 35 of the AAT Act, to prohibit the publication of the name of the Applicant in these proceedings. Having regard to the specific circumstances of the case, the Tribunal considers it appropriate to refer to the Applicant by the pseudonym “DJTW”. The identity of other persons or features that might tend to identify him will be anonymised .
Background
The Applicant is a 32-year-old citizen of New Zealand who first arrived in Australia in 2001, aged 12.[1] He has departed Australia twice on 13 January 2002 and 29 March 2006.[2]
[1] Ibid, 89.
[2] Ibid. In his oral evidence, the Applicant stated that one of those departures was a holiday prior to settling in Australia, and that he had only spent 17 days outside of Australia since his family had settled here.
Having been born in New Zealand in 1989, the Applicant was brought to Australia to reside after his parents separated. His family unit comprises his mother, stepfather, stepbrother and sister. He does not have any contact with sister or his biological father.
The Applicant has a low level of functioning and has a family history of mental illness. The Applicant, his grandmother and uncle have each been diagnosed with schizophrenia. The Applicant’s Statement of Facts, Issues and Contentions (ASFIC), dated 25 August 2021, summarises his circumstances in this respect as follows:[3]
Past diagnoses including schizophrenia, depression, post-traumatic stress disorder, borderline (emotionally unstable) and antisocial personality disorder and unspecified intellectual disability. Reports of auditory hallucinations, deliberate self-harm with suicidal intent and also in response to auditory hallucinations and distressing recollection of traumatic events
History of sexual assault
History of intellectual disability, attention deficit hyperactivity disorder, behavioural and disturbances dating back to early adolescence, psychotic symptoms and emerging psychotic illness
Most recently, established intellectual disability in the mild range, recurrent depressive disorder or dysthymic disorder; or alternatively of a protracted adjustment disorder with mixed anxiety and depressed mood, post-traumatic stress disorder and missed (sic – error in original) personality disorder with borderline and antisocial traits
[3] ASFIC [8].
The Applicant also has a history of abusing alcohol and illicit drugs.
Whilst not mentioned in the ASFIC, the Applicant told the Tribunal that he also suffers from epilepsy (and resulting seizures), something which during his oral testimony the Applicant explained has had a profound impact upon his life and, together with other factors, has limited his ability to maintain regular employment.
The Tribunal was provided with a psychiatric report from Dr Danny Sullivan, psychiatrist, dated 27 May 2021,[4] which was prepared for the purposes of the Applicant’s revocation request to the Respondent. The Tribunal has read and had regard to this report.
[4] R1, 291.
The Applicant has a history of criminal offending from 2005, comprising:[5]
(a)on 27 January 2005 he was sentenced to a Good Behaviour Bond without conviction in the Frankston Children’s Court for theft-from shop (shopsteal).
(b)on 11 November 2008 he was convicted of theft of a motor vehicle and two charges of criminal damage by fire (arson) and sentenced to a Community Based Order (CBO) for 12 months and 200 hours of community service.
(c)on 6 May 2009 he was convicted of recklessly cause injury in the Frankston Magistrates Court and fined $300.
(d)on 29 January 2010 his CBO was cancelled and he was sentenced to 3 months imprisonment, suspended for 18 months for theft of a motor vehicle and 9 months imprisonment, suspended for 18 months for criminal damage by fire (arson).
(e)on 22 November 2011 he was convicted of recklessly cause serious injury and theft and sentenced to a total of 14 months imprisonment. He was also convicted and fined $200 for use cannabis.
(f)on 28 September 2016 he was convicted of assault with weapon. No sentence was imposed.
[5] Ibid, 44-45.
The Applicant claims to have been the victim of sexual offending as a teenager and later in his early 20s. The second instance relates to the person that he stabbed in 2011; something which was recently rejected by His Honour Judge Tinney of the County Court of Victoria (as His Honour then was) who described the Applicant’s claim as “plainly false”.[6]
[6] Ibid, 53.
The previous decision not to cancel his visa
On 24 January 2012, a delegate of the Minister considered cancelling the Applicant’s visa under section 501 of the Act. On 18 April 2012, the delegate decided not to cancel the Applicant’s visa. The Applicant was given a formal warning and advised that ‘disregard of this warning will weigh heavily against you if your case is reconsidered’.[7] The Applicant acknowledged receipt of this letter on 8 July 2012.[8]
[7] Ibid, 87.
[8] Ibid, 86.
Recent offending and visa cancellation
On 15 June 2020, the Applicant was sentenced in the County Court of Victoria to 30 months imprisonment for recklessly cause injury in relation to an incident where he stabbed his victim in the neck on 31 August 2019.[9] (This constituted the third occasion on which the Applicant has appeared in court in relation to offending with a knife).
[9] Ibid, 44.
At the time of this offending on 31 August 2019, the Applicant had resumed using illicit drugs.
On 13 August 2020 a delegate of the Minister cancelled the Applicant’s visa under section 501(3A) of the Act as he had a “substantial criminal record” and was serving a full time custodial sentence.[10]
[10] Ibid, 76.
The Applicant requested revocation of the mandatory visa cancellation decision on

8 September 2020.[11]
[11] Ibid, 165.
On 13 July 2021, the delegate decided not to revoke the mandatory cancellation decision.[12] The Applicant was notified of that decision on 13 July 2021.[13]
[12] Ibid, 14.
[13] Ibid, 7.
The Applicant lodged an application for review of the delegate’s decision with the Tribunal on 20 July 2021.[14]
[14] Ibid, 1.
At the time of this review, the Applicant was being held at the Metropolitan Remand Centre in Ravenhall, Victoria.
Witness evidence
The Tribunal received oral evidence from:
(a)the Applicant.
(b)the Applicant’s mother.
(c)the Applicant’s stepfather.
(d)the Applicant’s stepbrother.
(e)the Applicant’s aunt, HKL.
The Applicant
The Applicant provided a statement dated 17 September 2021.[15] In the statement he contends that:
[15] Exhibit A1.
(a)he wrote a statement on 8 September 2020 which he continues to rely on.
(b)he is sorry for his offending, regrets it every day and thinks about it a lot in prison.
(c)the period he has spent in prison has been very difficult for him, he was unable to see his family due to COVID-19 restrictions and there is constant movement within the prison as people came in and out of lockdown. It has been a very frightening experience for him and coming out of 5 days in isolation has been an experience causing him anxiety.
(d)his mental health is “not good”, he needs and wants to get help but cannot get it in prison.
(e)his family are his biggest supporters and he relies on them heavily in all aspects of his life. It has been hard for him not being able to see them for a long time. Thinking about not being able to see them ever again makes him think there is “no reason to be there”.
(f)he cannot return to New Zealand and will not be able to survive there. He does not have family there, has never been back and will not know anything.
(g)if he had to return, he would rather not live at all.
(h)he has thought about his behaviour and learnt a lot in prison. If faced with another difficult situation, he would talk it out and seek support from his family.
(i)if he was able to return to the Australian community he will ”decide his life to getting better”. He wants to get better and have a bright future as a member of the Australian community.
As referred to above, the Applicant provided a statement dated 8 September 2020 in support of his request for revocation.[16] In the statement, the Applicant contends that:
[16] Ibid, 159.
(a)he is sorry to the person he hurt and to his family for putting them through the hurt and stress they have experienced.
(b)before COVID-19 he saw his family every Sunday, now he calls them almost every second day, depending on his phone account.
(c)he has a single cell to himself in prison and looking at photos of his dog helps him cope. He is in protective custody for medical reasons. He has been told that he is vulnerable from other people.
(d)he often finds it hard to speak for himself as he stutters and gets the shakes from anxiety.
(e)he found it very hard not having the medication he had in the community. He is now on medication for epilepsy as well as anti-psychotic and anti-depressant medication. He finds the right medication hugely helpful.
(f)he has nightmares of people going to hurt him due to his past history of suffering sexual abuse, the prison officers do not always understand mental health. There are few people he can talk to;
(g)in prison he worked in baking but had to stop due to his epilepsy and he now works in a cleaning role. He was going to start screen-printing but this was stopped due to COVID-19.
(h)he has done courses on drug and alcohol and traffic controller and is going to start a course on controlling violence and anger, making better choices and other drug, alcohol and anger management courses as they become available.
(i)he has been going to church once a week.
(j)he has talked to his prisoner peer support worker which has been helpful.
(k)he has witnessed some horrible things in prison but has stayed away and all his drug and urine screens have been clear.
(l)he spends a lot of time doing art for his family. He tends to use art as a distraction and also does word finds, uses music to relax, watches animals and calming TV shows. His family send him post cards regularly.
(m)his parole officer told him that he is eligible for the Bridge program which will give him support for 2 years after he is released.
(n)he would like to go to an art group and would like to go to narcotics anonymous to get help for his drug misuse which invovles meetings each week.
(o)he started counselling with the South East Centre Against Sexual Assault (SECASA) prior to going to prison, it ceased when he moved to a boarding house; SECASA counselling will give him access to a psychologist to discuss being sexually assaulted and help him work through assault and associated anger to help him move on in life.
(p)he just wants to be a normal person and get the help he needs, he can’t do this without his family. He has a dog that will give him something positive to focus on.
(q)State Trustees ordinarily look after his money.
(r)he made poor choices over people he associated with and this will not happen again, he has a good network of support and knows he will never go back to unsupported living.
(s)he does not want to go back to New Zealand as he has not lived there since he was 12 years of age and would be lost as everything has changed and he would have no family or friends, be alone and unsupported.
(t)he acknowledges that he has committed serious offences and knows that he is responsible for what he did. He is determined not to offend again.
(u)he has asked his brother to arrange work, and asked his parole officer for programs when he is released from custody. He did programs before, but they stopped when he was released, this time they will be ongoing. He is determined to keep getting ongoing help for the long term.
(v)when he has support, avoids drugs and has control over medication, he feels like an immensely different person.
(w)when the delegate made the decision not to cancel his visa, he did not get into trouble for a long time. His biggest mistake was that he went back to live in an unsupported place and did not deal with his trauma and anger problems, but things are different now.
The Applicant confirmed the contents of his written statements in his oral evidence were true and correct. Importantly, the Applicant told the Tribunal that:
(a)he does not have any contact with his biological father.
(b)he has limited family living in New Zealand, making reference to his elderly grandmother who has dementia, and an aunt who is caring for her husband who has cancer.[17]
[17] In a statement provided in support of the Applicant’s request for non-revocation, at page 407 of Exhibit R1, the Applicant’s aunt KN stated that she would not know how to support the Applicant, is employed as a full-time academic which requires her to work late and on weekends, and that she is caring for her husband who has recently been diagnosed with cancer.
(c)he believes that he has strong family support in Australia.
(d)in terms of his schooling, he experienced learning difficulties when attending Mornington Secondary College, so transferred to Caulfield Park Community College, which he attended until year nine. He gave evidence that, he also undertook speech therapy.
(e)in terms of his employment history, he commenced an apprenticeship in baking, working for more than one employer in this field before epileptic seizures led to his cessation. He has also worked as a cook in a hotel and, more recently, delivering pamphlets.
(f)he was first introduced to drugs as teenager when he was when working in baking. He said that he was drug free for a period of time, but was reintroduced to them when he was living at a Community Care Unit (CCU).
(g)he has previously attempted to commit suicide and does little things to help his own mental health, including keeping his cell tidy, counting and doing art. He said he did these things to be able to cope until he could get help after being released.
(h)while he was in prison, routine was very important to him and that he had to specific tasks at specific times.
(i)he has lived most of his life with his parents, apart from a short period of time living with a former partner, at a CCU and independently in Frankston prior to his offending.
(j)he believes it is best for him to reside with his parents because they can provide him with support, assist him with his medication and assist him to attend appointments. He said that he had not used drugs while living at the family home, though he experienced an alcohol relapse. He said the 2016 incident occurred when he was unwell.
(k)he takes responsibility for his offending, agrees his offending has been serious, regrets his offending and acknowledges that people have been hurt by his offending. In cross-examination he agreed that he had committed acts of violence but denied that they have been related to money. He said he did not want to tell everyone that he was sexually assaulted.
(l)at the time of his most recent offending, he was residing away from the family home and using a combination of marijuana, ecstasy and ice every few days. He said that he did not remember making a call to emergency services and telling them he had been the victim of an attack. He also said that he was residing away from the family home at the time of his 2011 offending.
(m)he has undertaken a number of courses in prison, including courses in relation to responsible service of alcohol, finance, traffic control, computing and horticulture. He also said that he would like to do further courses but has been limited in this respect due to COVID-19 restrictions. He said he had taken these courses to give him new skills so that he might be able to get a job when he was released.
(n)he is taking all prescribed medication whilst he is in prison and has refrained from drug activity and passed random drug tests in prison, despite drugs being available in prison. He told the Tribunal that he did not take his medication on an occasion when it did not work for him. When he does not take his medication, he feels suicidal. He said his medication helps him to function and live day to day.
(o)he had some mental health counselling in the community, including with SECASA but that he had not completed counselling and had been through multiple different counsellors due to his complex needs. He said that he did not remember the details as his family organised the sessions for him.
(p)he has started drug and alcohol programs before but has not completed them and intends to do so when he is released.
(q)in prison, he has been allocated a single cell. He has observed several fights between inmates but attempts to stay out of trouble and has learned to reach out and ask for help when he needs it. He said that he has never been “slotted” for violent incidents in prison but had been put into 24-hour management for self-harm or safety concerns. He said he was put in a single cell because of mental health reasons, he does not cope being with people.
(r)he enjoys art, draws for others and has attended a church group in prison.
(s)upon his release, he intends to resume involvement with SECASA, participate in the Bridge program (something which was previously not available to him), which will link him in for support services for up to two years after his release, reside at home with his family (including with his mother who is a trained psychiatric nurse), refrain from offending and looks forward to being reunited with his much loved dog. He said that his aunt who also lives nearby is a retired disability nurse who will, along with his other family, provide him support.
(t)he was unable to drive due to his epilepsy and that his parents will drive him wherever he needs to go.
(u)he would not know how to access support services in New Zealand and would not have anyone to organise programs for him. He would not know what to do or where to go.
(v)he understood that if his visa cancellation was revoked, and he then re-offended, that he would be deported.
HKL

The Tribunal was provided with a statement from the Applicant’s aunt, who will be referred to as “HKL”, dated 25 August 2021, in which she states that:[18]
[18] Exhibit A2.
(a)she first met the Applicant when he accompanied his family on a visit to Melbourne where they stayed with her husband and herself.
(b)the Applicant and his family lived with her and her husband until establishing a household of their own nearby.
(c)she maintains close contact with the Applicant’s family.
(d)the Applicant was an “amiable individual” whom she observed had difficulties in school as his academic ability was behind that of his peers. He left mainstream schooling and was enrolled in “a more appropriate school for his needs” where he continued to struggle and left school without completing year nine.
(e)the Applicant did not succeed at work and his desire to be liked established inappropriate friendships with persons who took advantage of him. He was used by others as a “pawn”.
(f)the Applicant would discuss his situation with both her and her husband and they would together provide him with non-judgemental advice.
(g)the Applicant has been identified and documented under the “Intellectual Disability Act” and receives a disability payment, which is now controlled by State Trustees. He has had various diagnoses from different professionals including intellectual disability, schizophrenia, ADHD, epilepsy, depression and anxiety. These diagnoses, combined with his vulnerability within mainstream society has resulted in the Applicant experiencing drug and alcohol abuse.
(h)the Applicant remained loving and generous but became more sensitive to perceived criticism, he needs constant positive reinforcement to feel content.
(i)she is aware of the Applicant’s offending and believes that his mental condition impaired his ability to make reasonable judgement, think clearly, or appreciate the wrongness of his actions.
(j)she has visited the Applicant once while he was incarcerated but has not been able to do so since due to the onset of the COVID-19 pandemic. She sends him postcards.
(k)deportation would weigh more heavily on the Applicant than another person due to his complex needs. It would have a significant adverse effect on his and his family’s mental health.
(l)she believes that he is less likely to reoffend if he is released to his family and receives assistance to re-assimilate in the community.
(m)she will be available to support the Applicant, to discuss matters with him and to accompany him to appointments if he wishes her to.
HKL also provided a statement in support of non-revocation in substantially similar terms which the Tribunal has read and had regard to.[19]
[19] R1, 224-226.
HLK confirmed the contents of her written statements in her oral evidence. Importantly, HKL told the Tribunal that:
(a)the Applicant is unable to manage his own medication and needs his family to supervise him to ensure that he takes his medication at the correct time. The Applicant is a different person when he stops taking his medication. She said that the Applicant responds well to people with good communication skills, who can talk quietly, clearly, without ambiguity and in a way that he did not perceive to be confrontational.
(b)upon his release, she will continue to support the Applicant, including through socialisation and assisting to take him to appointments.
(c)the Applicant’s immediate family can support him. She told the Tribunal her views as to who would be available from within the Applicant’s family to support him in Australia.
(d)she believes that an aunt in New Zealand might be able to provide a limited amount of time, but that it would be impossible for the Applicant’s family in New Zealand to meet his needs. She acknowledges that support services are available in New Zealand, but that the Applicant would not know how to access such services.
(e)the Applicant is thoughtful when he is stable and happy.
(f)she is aware of the Applicant’s criminal history, including his three offences involving the use of a knife.
(g)the Applicant finds it difficult to relate to others and make friends.
(h)she is aware that the Applicant has used marijuana and ice and that the Applicant becomes delusional when he is on drugs. In cross-examination she said that she did not recall the Applicant seeing her when he was on drugs. She said she has expressed her concerns about the Applicant’s use of drugs and said that he had told her that he does not want to use them anymore.
(i)she believes the Applicant needs access to additional programs, including, psychiatric treatment, programs that target drug use and rehabilitation and access to a community conduit to provide extra supervision.
(j)the Applicant is aware that he must get his life back on track.
The Applicant’s stepbrother
The Applicant’s stepbrother provided a statement on 17 September 2021 which states: [20]
(a)he provided a statement on 8 September 2020 in support of the Applicant’s request for revocation on which he continues to rely.
(b)he is the younger stepbrother of the Applicant, he is a qualified chef and lives at the family home.
(c)the Applicant has had a difficult life, which he has seen first-hand as his brother. He will continue to support the Applicant when he is released.
(d)he has visited and talked with the Applicant in prison where possible and sent him postcards.
(e)the Applicant remembers New Zealand as the country he left when he was a child and has never returned, he has no family there.
(f)he cannot support the Applicant in New Zealand as he does not have the money to fly there and see him, he needs a lot of support that can only be given if he is physically in Australia at the family home.
[20] Exhibit A3.
The Applicant’s stepbrother’s statement, dated 7 September 2020 states: [21]
[21] R1, 212.
(a)his and the Applicant’s parents moved them to Australia in 2002 and they have lived there ever since.
(b)he believes the Applicant struggled at school because he has learning difficulties. After the Applicant left school he seemed to do well until his seizures and drug misuse caused him to be fired.
(c)the Applicant struggled to make real friends and the people who he hung around with were always a bad influence and the Applicant got into trouble as he was always eager to please them.
(d)since the Applicant was first in prison he has worked hard to stay clean and sober and was trying his best to integrate into the community, including seeing a psychologist, he seemed happier in life.
(e)when the Applicant was in the CCU things seemed to be going well for him, he was correctly medicated, participated in group therapy and worked on developing skills to become more independent.
(f)that other residents were stealing from the Applicant and it really upset him. He said that people have taken advantage of the Applicant’s vulnerability and stolen from him in the past.
(g)after leaving the CCU, the Applicant was placed in a boarding house which took almost half of his disability pension.
(h)he tried to visit the Applicant when the Applicant was in the CCU and has visited the Applicant in prison when he has been able to do.
(i)the Applicant has been put into protective custody in prison due to his medical conditions, seizures and vulnerability to being bullied.
(j)if the Applicant was deported, he would struggle to find a place to stay and begin a new life there. The Applicant’s finances are under the care of State Trustees.
(k)the family are able to support the Applicant when he has seizures, on one occasion he had to render first-aid to the Applicant and call an ambulance, he does not feel the Applicant is safe living by himself without nearby support.
(l)he feels the Applicant is genuinely remorseful and wants to improve his life for the better.
The Applicant’s stepbrother confirmed the contents of his written statements in his oral evidence. Importantly, the Applicant’s stepbrother told the Tribunal that:
(a)he is presently unemployed due to the COVID-19 pandemic, but ordinarily works as a chef.
(b)whilst “all the uncles and aunties on both sides”, his grandmother and cousins, continue to reside in New Zealand, the family is not in contact with them.
(c)the Applicant struggled and was bullied at school.
(d)the Applicant had worked in bakeries, as a cook and delivered pamphlets. He said that the Applicant had not worked in recent years.
(e)he has always visited the Applicant in prison where possible and maintains contact via the telephone, letters and postcards.
(f)he was aware of the Applicant’s offending, that the Applicant offends because of drugs and has expressed remorse to him for his offending. He only found out about the Applicant’s drug use after the fact.
(g)the Applicant left the CCU after 6 months, he did not know why.
(h)he has witnessed the Applicant experience seizures and that he does not believe that it is safe for the Applicant to live alone.
(i)the Applicant is unable to drive due to his seizures and is driven to his appointments by his stepfather. No one in New Zealand can do this for him.
(j)if the Applicant was to return to New Zealand if would be really difficult for him.
(k)if the Applicant were forced to return to New Zealand, it would destroy the Applicant’s mother and stepfather who have done a lot to try to assist the Applicant and are not in a position to return to New Zealand. He said that the Applicant’s mother is the only income earner for the family as he was not currently working and the Applicant’s stepfather is retired and the Applicant being forced to return to New Zealand would put an added financial burden on the household.
(l)the family would be unable to visit the Applicant in New Zealand due to COVID-19 restrictions. If these restrictions were eased, it would still be difficult for him and his mother to get time off to visit the Applicant.
(m)he does not believe the Applicant will reoffend as he now appreciates the seriousness of the situation he finds himself in.
The Applicant’s stepfather
The Applicant’s stepfather provided a statement on 17 September 2021 which states:
(a)he provided a statement on 7 September 2020 on which he continues to rely.
(b)he is married to the Applicant’s mother and is the Applicant’s stepfather. The couple has another son, the Applicant’s stepbrother.
(c)he has known the Applicant since he was 22-years-old and the Applicant was one-years-old. He considers the Applicant an extremely important part of his life. He has a close relationship with the Applicant, he considers him to be his son and the Applicant refers to him as his father. He has supported the Applicant all his life as a father figure and will continue to do so.
(d)the Applicant experienced some difficulties at school but was very happy with his family. When the Applicant was living at home, the Applicant took part in bowling and walking groups. The Applicant would help him with housework and they would provide support to each other.
(e)he is aware of the Applicant’s criminal history. The Applicant has expressed genuine remorse for what he has done. He took the Applicant to all his appointments when he needed a support person, including going to the doctor each fortnight and the SECASA support group. When the Applicant was living in the boarding house, he would pick the Applicant up to go grocery shopping every Thursday.
(f)when the Applicant was living away from home, the family was unable to support him but when he was living with the family, he did not offend. During this time,
he was taking care of the Applicant’s appointments and acting as his main carer as he does not work. He will continue to do this and set up a timetable with the Applicant’s mother to ensure that the Applicant gets the help he requires.
(g)it has been very difficult to see the Applicant in prison but pre-COVID-19 he was able to visit him once per week, now he is unable to see him in-person. The Applicant calls him several times a week. The Applicant has been strongly affected by the feeling that he may never step foot in the Australian community or the family home, and this is a strong factor for his rehabilitation. If he is able to remain in Australia, he will commit to changing.
(h)the Applicant cannot look after himself, and when he was away from the family his behaviour was bad. The Applicant’s stepfather believes the Applicant will not get in trouble if he remains in a stable family home. The Applicant is able to confide in him and they discuss his wants and needs in great detail.
(i)the Applicant has no support networks in New Zealand and will not know how to access the services he requires. He does not have a relationship with family members in New Zealand, and they will not be able to take care of him. He left New Zealand as a child and has never returned.
(j)the family has no support or connections in New Zealand, there is nothing for them or the Applicant there and the family cannot relocate there. COVID-19 makes it even more difficult for them to visit the Applicant. They are not financially capable of supporting the Applicant in New Zealand and they do not know what will happen to him without support. They have deep concerns for his mental health and ability to survive without them.
(k)if the Applicant returns to New Zealand, the Applicant’s mother will not be able to continue her employment as a mental health nurse.
The Applicant’s stepfather also provided a statement dated 7 September 2020, which was in substantially similar terms.[22]
[22] R1, 217.
The Applicant’s stepfather confirmed the contents of his written statement in his oral evidence. Importantly, the Applicant’s stepfather told the Tribunal that:
(a)he treats the Applicant as his son, having been in each other’s lives since the Applicant was one year of age.
(b)he has not worked since 2014 when he was assaulted at work and has since been diagnosed with post-traumatic stress disorder (PTSD). He said that he and the Applicant could relate to each other about this as they had both been diagnosed with PTSD and they discussed it together a lot. He said he had a very close relationship with the Applicant, and that he was the first person the Applicant had told about being sexually assaulted.
(c)he is still in contact with his sister and mother who live in New Zealand and he has returned to New Zealand for family emergencies, including funerals.
(d)the Applicant’s extended family, comprising uncles and aunts in New Zealand are not in a position to assist the Applicant if he were forced to return to New Zealand, they all have their own families to support, do not have a relationship with the Applicant and cannot provide the same level of support.
(e)the Applicant previously lived in a CCU in Frankston where he was placed in order to learn coping skills and participate in art therapy. Whilst the Applicant was meant to be there for 12 months, after approximately three months he was moved to a nearby boarding-house. He lived in a one-bedroom studio unit where he was “left to his own devices”. He understood the Applicant was meant to receive regular visits from support workers, but such visits proved sporadic.
(f)when the Applicant was at the boarding house, he visited him three to four times a week. In cross-examination, he said that at the time he had been unaware the applicant was using illicit drugs and only found out after the Applicant’s offending.
(g)he has always visited the Applicant in prison where possible and maintains contact via the telephone.
(h)he would welcome the Applicant returning to live in the family home.
(i)the Applicant is unable to take himself to appointments because he experiences anxiety and gets stressed on public transport. He told the Tribunal that the Applicant does not drive.
(j)when he takes the Applicant to appointments, he is able to talk to him before and after the Applicant’s appointments and he can speak to the practitioners regarding the Applicant’s progress.
(k)the Applicant is keen to participate in the Men’s Shed program. He would also participate in appointments with treating psychologist, psychiatrist, and general practitioners.
(l)at the time in 2016 when the Applicant assaulted his mother with a knife, the Applicant was hearing voices telling him to harm himself and harm others. In cross-examination he said that at this time he did not know the Applicant was abusing alcohol at home.
(m)he did not think the Applicant would not be able to engage with services without support. His mother organises everything and the family stick to the diary.
(n)if the Applicant were forced to return to New Zealand, the Applicant’s mother would be torn apart, she is already not coping and not in a position to take time off work to assist the Applicant in New Zealand. The family does not have capacity to move to New Zealand.
(o)the Applicant cannot manage money and is reliant on State Trustees to manage his money.
(p)he does not believe the Applicant will reoffend as he knows that his previous offending was wrong and is now remorseful.
The Applicant’s mother
The Applicant’s mother provided a statement on 17 September 2021 which states:[23]
[23] Exhibit A5.
(a)she made a statement on 8 September 2020 in support of the Applicant’s request for non-revocation which she continues to rely on.
(b)she is the Applicant’s mother and is married to the Applicant’s stepfather and has a daughter and another son.
(c)she has an advanced diploma in mental health nursing and is employed as a mental health nurse in different hospital settings. Due to her work schedule, her husband stays home and takes care of the family home.
(d)the Applicant has experienced a number of issues in his childhood, including abuse, neglect and trauma.
(e)the Applicant has no contact with his biological father. He grew up in Australia and has been here since he was a young child. He has no connection with New Zealand.
(f)she and the Applicant support each other, when he was at home they were a happy family. The Applicant had difficulties at school and in maintaining employment but when there was structure and support, he did not get into trouble. He would take care of his dog and help his stepfather.
(g)she is aware of the Applicant’s criminal history, including his most recent offending. She states that the Applicant has a history of mental illness and substance abuse. She said that when he was living at home it was good and positive, but when he did not have this support he was using drugs and offending.
(h)the Applicant lived in the family home for six years and remained out of trouble. In 2018, the Applicant was moved into a CCU where he was meant to stay for at least a year to learn skills to manage his complex needs. Instead his medication was reduced and he was placed in boarding housing after two months, with no follow-up support.
(i)the Applicant did not cope without structure and support to re-integrate him into the community and began using drugs again, including ice, which he was using on the day of the most recent knife attack.
(j)the family was unaware of the extent of the Applicant’s issues and if they had known they would not have left him alone as he has complex needs and requires significant care. The family is committed to taking care of the Applicant to ensure that he can access the services that he requires.
(k)the Applicant has expressed severe remorse and is aware of the consequences of his actions and the importance of getting help. He has faced many difficulties in prison and never wants to return there.
(l)in prison, the Applicant has been in protective custody due to his mental health, intellectual disabilities and “other co-morbidities”. He has self-harmed on more than one occasion and required hospitalisation and stiches after the last attempt and suffered a seizure.
(m)the Applicant has requested to take further courses in prison but these have been disrupted due to COVID-19 restrictions.
(n)if the Applicant were able to return to the Australian community he would have the family’s support and she, as a mental health nurse, will be able to plan and implement treatment for the Applicant. The Applicant would be able to live with the family and her and her husband will work together to care for him, with her husband as a main carer and her reorganising her schedule to be available for important appointments or when required.
(o)in the Australian community he would also be able to continue to access specialist counselling through SECASA and Community Support Frankston, an anger management, counselling and support service. The family would enrol him in these and make sure he attends his appointments. He will also be able to keep seeing his General Practitioner (GP), Dr Jack Knobel, whom he has developed a trusting relationship with. With the support of his family, he is not a threat to the Australian community.
(p)the Applicant is open to getting better and really wants to get better. All he wants is to be with his family in the family home.
(q)the family visited the Applicant for one to two hours every Sunday before in-person visits were ceased due to COVID-19 and they have not seen him in-person for about seven months. They speak for ten minutes every day or second day and send post cards.
(r)leaving the Applicant in New Zealand will cause him great distress, anxiety and exacerbate his mental and physical health conditions. Due to COVID-19 the family will be unable to return with him, there is no accommodation there for him and no one to help him. They do not have financial capacity for flight tickets or to setup accommodation in New Zealand to provide him with support.
(s)the family cannot re-locate to New Zealand, she is the sole income earner and they have a mortgage. Sending the Applicant to New Zealand would break up the family and cause pain to everyone.
(t)she asks the Tribunal to give the Applicant a final warning, and that he is aware that anything minor will send him out of the country. She says that breaking up the family will cause pain and impact everyone’s mental health.

The Applicant’s mother also provided a statement in support of non-revocation dated
[24] R1, 206.
8 September 2020 which the Tribunal has read and had regard to.[24]
The Applicant’s mother confirmed the contents of her written statement in her oral evidence. Importantly, the Applicant’s mother told the Tribunal that:
(a)she is employed as an “agency” nurse, which means that if she does not work, she does not get paid. She said that this was one of the reasons why she could not go to New Zealand to assist the Applicant.
(b)the Applicant’s diagnoses include epilepsy, schizophrenia, post-traumatic stress disorder, depression, anxiety, dissociative disorder, ADHD and a mild/moderate intellectual disability. In cross-examination she confirmed that Dr Sullivan had also diagnosed him with a mixed personality disorder following a short consultation by videoconference, though she noted that the Applicant had previously participated in more extensive consultations with other health practitioners.
(c)the Applicant and her are very close and they share things with each other. The Applicant has told her that he is hearing voices and they are telling him to harm himself.
(d)the Applicant’s career in baking and as a cook was cut short by his epilepsy (or more specifically, the resulting seizures).
(e)she said the family did not find out until a year later that the victim of his 2011 offending had sexually assaulted the Applicant and his girlfriend at the time.
(f)following the 2011 offence, the Applicant himself made contact with SECASA, as the family were not able to do it for him, and he received counselling.
(g)she was aware of the Applicant’s criminal history. She said that when the Applicant assaulted her with a knife in 2016, he was hearing voices and experiencing a “psychotic break”. She said that she did not fear for her safety, has a “good understanding” of his mental health and that the Applicant had never been violent within the household before the 2016 incident. She said that she called emergency services to transport the Applicant to hospital but instead Victoria Police attended and charged the Applicant.
(h)she regretted the Applicant going to the CCU in 2018 because it was there that a psychiatrist took him off his medication and he was transferred into a boarding house without support. She said the Applicant had not used ice before and she believed someone there introduced him to it.
(i)if the Applicant was allowed to return to the family home, the family can take him to his appointments, link him back up with SECASA and get him a peer support worker. She told the Tribunal that the Applicant has mostly offended when he has been away from the family home. She told the Tribunal that the Applicant has a very supportive GP (Dr Knobel) and that there are groups available where the Applicant could work on anger management, art and making friends. She specifically referenced the Men’s Shed program, the Bridge program, a men’s behaviour change program and Lifeworks in Mornington. She said some of these programs were not available when the Applicant was first released after his 2011 offending.
(j)she has always visited the Applicant where possible, but has been restricted in recent times because of the COVID-19 pandemic, and has therefore maintained contact by telephone.
(k)in prison, the Applicant has been in protective custody and has attempted suicide, is very remorseful and needs assistance with his medication. When he was in the family home, her and the Applicant’s stepfather administered the correct medication at the correct times. He has had difficulty getting the correct dosages in prison.
(l)if the Applicant were forced to return to New Zealand, he would not be able to navigate service providers and would go into isolation.
(m)her husband’s family in New Zealand have not seen the Applicant since he was a young child and they are all in their 60s. She said that her sister who lives in New Zealand has kept in touch with the Applicant via postcards, which has helped him in prison, but that her sister is also in her 60s and caring for her husband who has cancer. She said that the Applicant would experience difficulty accessing any government support, opening a bank account and purchasing a telephone because he does not have the required identification documents and cannot look after his own money. She said that she feared that the Applicant would take his own life if he were forced to return to New Zealand.
(n)if the Applicant was forcefully returned to New Zealand it would be like losing her son. She cannot relocate or return to New Zealand frequently, which is what the Applicant needs, due to COVID-19 restrictions, her role as the sole earner for the family household and having her own life in Australia.
(o)the Applicant’s aunt, HKL is a big support to the Applicant and that HKL’s husband also provides encouragement and support to the Applicant.
(p)previously the Applicant had been drinking her husband’s homebrew without their knowledge, but that their household is now alcohol free.
(q)that she doesn’t believe that the Applicant will reoffend.
The Applicant’s General Practitioner
The Applicant provided a statement from a GP, Dr Jack Knobel, dated
8 September 2021, which the Tribunal has read and had regard to. In the statement
Dr Knobel advised that:
(a)the Applicant has been his patient for the last 6 years and he is familiar with the Applicant’s medical history of schizophrenia, anxiety, depression and epilepsy.
(b)the Applicant requires considerable emotional support to function even at a low level. Not having his family with him would be a huge impediment to his recovery as he is not able to interact with people well, has few friends and poor social skills.
(c)the Applicant has a trusting relationship with him, which is important if he is to move forward. He is comfortable with Frankston psychiatric services including the nursing staff and psychiatrists. It would be confronting for him to start these services anew.
(d)it would not be in his best interests to place him in an environment without his usual support networks in view of his psychiatric background.
Issues
Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this sub-section provides that:
(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.
As referred to above, the Applicant has previously made the necessary representations required by section 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. It is appropriate to refer to the Full Court of the Federal Court of Australia’s remarks in Minister for Home Affairs v Buadromo:[25]
…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…[26]
[25] [2018] FCAFC 151.
[26] Ibid [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 [38] (North ACJ); Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues now before the Tribunal:
(1)whether the Applicant passes the character test; and
(2)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Where an Applicant makes out on either ground, there is a line of authority to the effect that the Tribunal is compelled to find that the cancellation of the Applicant’s visa must be revoked.[27] The Tribunal considers each of these issues below.
[27] Ibid.
If a person in the migration zone applies to the Tribunal for a review of a decision under section 501CA(4) of the Act not to revoke the mandatory cancellation of his or her visa, section 500(6L) of the Act provides that if the Tribunal has not made a decision 84 days after the date on which the person was notified of the decision, the decision is taken to have been affirmed by the Tribunal. Accordingly, it was necessary, to avoid this self-executing clause to have effect, for the Tribunal to make a decision in this case by 5 October 2021. The Tribunal did so.
(1) Does the Applicant pass the character test?
The character test is defined in section 501(6) of the Act. Under section 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase is defined in section 501(7)(c) of the Act, which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
As mentioned above, on 15 June 2020, the Applicant was sentenced to a total of 30 months imprisonment on one count of recklessly cause injury.[28] In the ASFIC the Applicant concedes that he does not pass the character test, and that the issue before the Tribunal is whether there is another reason why his visa cancellation should be revoked.[29] The Respondent in its Statement of Facts, Issues and Contentions (RSFIC) also submits that this is the sole issue for the Tribunal’s determination.
[28] G2, 44.
[29] ASFIC, 1.
On the basis of his 15 June 2020 conviction, the Tribunal finds that the Applicant does not pass the character test pursuant to section 501(6)(a) of the Act. It follows that he cannot rely on section 501CA(4)(b)(i) of the Act for the revocation of the cancellation.
(2) Is there another reason for the revocation of the cancellation of the Applicant’s visa?
In considering whether to exercise the discretion in section 501CA(4) of the Act, the Tribunal is bound by section 499(2A) to comply with any directions made under the Act.
DIRECTION 90
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.[30] Accordingly, the Tribunal is bound to apply the Direction.
[30] Direction, [paragraph 2–3].
The Principles in Paragraph 5.2
Paragraph 5.2 of the Direction is designed to ‘provide a framework within which decision-makers should approach their task’ under section 501 or 501CA of the Act, as the case may be.
Summarised where appropriate, the principles are:
(a)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.
(b)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.
(c)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
(d)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 non-citizens 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 non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(e)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 measurable risk of causing physical harm to the Australian community.
Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four “Primary Considerations”, and four “Other Considerations” which the Tribunal must be guided by in making my decision.
The Primary Considerations which the Tribunal must take into account are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia; and
(4) expectations of the Australian community.[31]
[31] Direction [8].
The Other Considerations which, where relevant, the Tribunal must take into account include but are not limited to:
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.[32]
[32] Ibid [9(1)].
Paragraph 7 of the Direction also provides guidance as to how to take into account each primary and other consideration. Briefly summarised, the Direction instructs decision-makers that:
(a)Information from independent and authoritative sources should be given appropriate weight;
(b)Primary Considerations should generally be given greater weight than Other Considerations; and
(c)One or more Primary Considerations may outweigh other Primary Considerations.
The guidance in paragraph 7 of the Direction summarised above does not differ materially from the guidance which appeared in former directions. Justice Colvin said of the former Direction 65 that:
…Direction 65 [a predecessor to Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[33]
[33] Suleiman v Minister For Immigration and Border Protection (2018) 74 AAR 545 [23].
The Tribunal now turns to addressing the abovementioned Primary and Other considerations.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to have regard to the principle that the:
Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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.
Application of Factors in Paragraph 8.1.1(1) of the Direction
The nature and seriousness of the non-citizen’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that 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 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).”

Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes;[34] crimes of a violent nature against women or children (regardless of the sentence imposed);[35] or acts of family violence[36] (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
[34] Ibid, [8.1.1(1)(a)(i)].
[35] Ibid, [8.1.1(1)(a)(ii)].
[36] Ibid, [8.1.1(1)(a)(iii)].
In his ASFIC, the Applicant concedes that his offending is serious and that this consideration weighs against him.[37] In oral submissions, the Applicant’s representative conceded that the Applicant’s criminal history included violent offences that fell within the “very serious” category of offending.
[37] ASFIC [17].
The Applicant contends that the weight given to this consideration should be moderate in the context of his circumstances at the time of his offending, and that the underlying risk that led to his offending were his mental health and substance abuse.
The Respondent contends that much of the Applicant’s offending is very serious. The Respondent refers to the Applicant’s sentences for recklessly cause injury and assault with weapon and highlights that these are violent offences.
In respect of his most recent offending in August 2019, the Respondent contends that the offence was violent and extremely dangerous.[38] The Respondent also submits that the Applicant’s 2016 conviction for assault with weapon, as well as a family violence offence, is a violent crime committed against a woman, namely the Applicant’s mother. In oral submissions, the Respondent referred to paragraph 8.1.1(1)(a)(ii)(iii) which provides that violent offences against women and family violence offences are viewed very seriously regardless of the sentence imposed.[39]
[38] RSFIC, 7.
[39] Ibid, 8.
In sentencing the Applicant in relation to his most recent knife attack in August 2019, His Honour Judge Tinney (as His Honour then was) outlined the circumstances as follows:[40]
you knew your 38-year old victim, [redacted], from your time together at the Community Care Unit in Frankston. That was from February 2019. By August of that year you had both left the unit and were living in separate boarding houses in Frankston. You still had contact. In mid-August you had asked your victim for a loan and he lent you a small sum of money. Just $70. You agreed to pay it back when you got your next pension. Over the next two weeks you paid him back $32, leaving the grand sum of $38. You offered to give him some drugs and your sunglasses to settle the debt. He declined the drugs but said he would take the sunglasses. You had made the offer, not him. It had not involved him raising it or pressuring you.
On 31 August, he agreed to meet you so that you could give him the sunglasses. You sent him a message saying that he could come around now and that you were sick of people trying to stand over you. That was a strange text when regard is had to the texts set out in the materials. There had been no animosity at all. You then sent another text saying you would come over to his place to hand over the glasses. In due course you texted to tell him you had arrived and he came out onto the street.
Your victim had no inkling that there would be any assault or unpleasantness. You handed him the sunglasses and then, without any warning at all, you struck him to the side of his neck. You were holding a small flick-knife and that knife inflicted a nasty enough wound. You walked off, leaving your victim trying to control the bleeding from his neck. You walked to your home, which was a dozen minutes away. Your victim rang you up asking why you had stabbed him. You said, “That is what you get for standing over me”.
He sought assistance from some of his fellow residents. An ambulance was called. That was at 4.18 pm. You contacted 000 at 4.31 pm and reported that you had been robbed of your phone and sunglasses at knifepoint and had taken the offender’s knife away and used it on him in self-defence. This was of course all totally false. You said the offender had run away. You did not mention the name of the other, or that you knew him or the address where he lived, but said that you did not want the other man to die.
[40] R1, 48-49.
Taking into account all of the evidence, the Tribunal finds that sub-paragraph (a) of paragraph 8.1.1(1) of the Direction militates in favour of a finding that the Applicant’s criminal offending has been of a very serious nature.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that 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 197A of the Act, which prohibits escape from immigration detention.
Justice Tinney’s sentencing remarks (to which the Tribunal has referred above) make clear that the victim of the Applicant’s most recent knife attack was known to the Applicant from their time together in a CCU. At the time of the offending, the Applicant and victim were living in separate boarding houses. With a recent history in a CCU, and living in unstable accommodation, the Tribunal is satisfied that the victim can properly be regarded as a vulnerable member of the community as contemplated by the Direction.[41]
[41] Boarding houses are well understood to be criminogenic. See: Katherine Ogilvie, Submission No 343 to Victorian Parliament Legal and Social Issues Committee, Inquiry into homelessness in Victoria (March 2020) <>
Taking into account all of the evidence, the Tribunal finds that sub-paragraph (b) of paragraph 8.1.1(1) of the Direction militates in favour of a finding that the Applicant’s criminal offending has been of a serious nature.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker to consider certain sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/Applicant. The relevant sentences have been outlined above.
The Applicant’s representative submitted in oral submissions that less weight should be given to the fact that the Applicant had been sentenced to imprisonment by courts, in the context in which these sentences had enlivened the Tribunal’s discretion. The Applicant’s representative submitted that the Applicant had received half of the maximum sentence for his offending.
In all the circumstances, the Tribunal finds that sub-paragraph (c) of paragraph 8.1.1(1) militates in favour of a finding that the Applicant’s offending must be viewed as very serious.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction directs a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Tribunal is concerned by the frequency of the Applicant’s knife offending in that it has occurred at intervals every few years since 2011.
In terms of seriousness, the 2019 knife offending cannot be said to be less serious than the 2016 or 2011 incidents. Indeed, whilst the 2011 offending involved a more serious count (recklessly cause serious injury), the 2019 offending resulted in a longer term of imprisonment.
Justice Tinney’s sentencing remarks (to which the Tribunal has referred above) describe the 2011 offending:
You used a knife in an unprovoked and serious attack upon a victim in 2011 in the not dissimilar circumstances of a debt being owed by you. That man was stabbed in the chest and you caused serious injury on that occasion.
You were gaoled and one would have hoped that might have taught you a lesson never to carry a knife again or to use a knife on a person ever again, yet here you were years later using a knife in another unprovoked attack.
As such, in all the circumstances, the Tribunal is of the view that the Applicant’s criminal offending is frequent, which enlivens the application of sub-paragraph (d) of paragraph 8.1.1(1) of the Direction, in favour of not revoking the mandatory cancellation of the Applicant’s visa.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision-maker to give consideration to “the cumulative effect of repeated offending” of the non-citizen.
The Respondent contends that the cumulative effect of the Applicant’s repeated offending should be viewed very seriously, that much of the Applicant’s offending is very serious in nature and that its severity appears to have increased over time.[42]
[42] RSFIC, 9.
The Respondent contends that while some of the Applicant’s convictions may be considered less serious, the cumulative effect of the Applicant’s repeated offending should be viewed very seriously.
The Tribunal considers that the Applicant's repeated acts have had a cumulative effect, especially in the context of the considerable resources required to hold him responsible. For example, the police resources required, the expense borne by the Courts, justice and correctional systems, and the consequences of the Applicant's criminal activity on his victims and the broader community.
It follows that the Tribunal is of the view that the cumulative effect of the Applicant’s repeated offending enlivens the application of sub-paragraph (e) of paragraph 8.1.1(1) of the Direction in favour of a finding that the Applicant’s offending is of a very serious nature.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. This consideration is not relevant to the Applicant.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction requires a decision-maker to consider:
whether the non-citizen has re-offended since having been 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 (observing that the absence of such a warning is not considered to be in the non-citizen’s favour).
As mentioned above, the Applicant received a formal warning about the effect of his continued offending in 2012.
In materials submitted to the delegate in support of his request for revocation, the Applicant stated that he did not read the warning and relied on third parties to assist him in understanding the form.
The Respondent contends that there is no doubt the warning put the Applicant on notice about the consequences of further offending, as the Applicant and his family agreed with the delegate’s statement regarding medical advice and treatment and the Applicant agreed that the formal warning was "beneficial” to his progress.[43]
[43] Ibid.
The Tribunal considers that the Applicant was warned in the manner that sub-paragraph (g) of paragraph 8.1.1(1) of the Direction contemplates and has plainly reoffended, as set out above, since.
The Tribunal finds that sub-paragraph (g) of paragraph 8.1.1(1) of the Direction weighs against revocation of the cancellation of the Applicant’s visa.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of the Direction provides that in considering the risk to the Australian community, a decision-maker 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 the Direction provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)Where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Paragraph 8.1.1(2)(a) of the Direction compels an inquiry into the risk to the Australian community in the event the Applicant were to re-engage in further criminal or serious conduct. Specifically, this sub-paragraph requires an assessment of the nature of the harm likely to be suffered by or occasioned upon individuals or the Australian community were the Applicant to re-offend.
The Applicant contends that he has insight into his offending, the consequences of his actions and the effects on others.[44] He says that he is determined never to be incarcerated again in the future.
[44] ASFIC, 22.
The Applicant’s representative contended that his offending was not of a type where it could reasonably be said that any risk in unacceptable.
The Respondent submits that should the Applicant continue to offend, it could foreseeably result in serious injury or death. The Respondent highlights the Applicant’s arson conviction, repeated use of a knife as a weapon and contends that were the Applicant to engage in further such offending, the harm that would be caused is extremely dangerous and so serious that any risk that it may be repeated is unacceptable.[45]
[45] RSFIC, 10.
There is little to be said against the contention that the nature of the harm to individuals, in the event of the Applicant re-committing similar or identical unlawful conduct for which he was most recently sentenced would, without question, involve (at the very least) serious physical, psychological and financial harm with a more than realistic possibility of such harm resulting in disastrous consequences.
The terms of the Direction have clear application to the facts of the Applicant in this case. Put simply, having regard to the Applicant’s record of criminal offending, were that offending to be repeated, its resulting consequences and harm may very well be so serious that any risk of similar conduct in the future is unacceptable.[46] The Tribunal is of the view that reasonably minded members of the Australian community would regard the Applicant’s history of knife assaults as so serious that they would refuse to accept any risk of recurrence.
[46] Direction 8.1.2(1).
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant contends that many of the causative factors that resulted in the Applicant’s offending no longer exist: there is evidence of various support available to him at home upon his release, that he recognises the harms caused by his offending, that he is motivated to become an active member of society and has plans to engage services and avoid re-offending.
Dr Sullivan’s report states that the applicant’s offending “appears associated with mental health difficulties, substance abuse and antisocial peer groups”[47] and later “without wraparound supports and stable supported living, I consider that he is at significantly escalated risk of further offending”.[48]
[47] R1, 298.
[48] Ibid.
The ASFIC contends that the Applicant’s risk of reoffending is at a lower degree because of his insight into his offending and commitment to rehabilitation. The ASFIC makes reference to a number of programs that the Applicant and his mother both referred to in their oral evidence.[49]
[49] ASFIC, 23.
In oral submissions, the Applicant’s representative argued that the Applicant’s family was a significant protector factor that the Tribunal should give considerable weight and that the Applicant had shown himself capable of living offence free in a supportive environment and living with his family was the best place to provide this support. It was submitted that the Applicant and his family had concrete plans as to his rehabilitation, and the Applicant’s mother and HKL had a unique understanding of his situation due to their knowledge and professional experience. The Applicant’s representative noted that he was found to have reasonable prospects of success by the sentencing judge of the County Court.
The Applicant’s representative submitted that the Applicant’s ability to disengage from volatile situations was born out by the fact that he had not had any disciplinary matters formally recorded against him while he was in prison.
The Respondent’s position is that there is a significant risk the Applicant will re-offend.[50]
[50] RSFIC, 12.
The Respondent highlights that the various sentencing dispositions previously imposed upon the Applicant have not been sufficient to deter the Applicant from reoffending.
The Respondent contends that the Applicant’s history of providing false accounts concerning his offending, described by Justice Tinney in His Honour’s sentencing remarks,[51] indicates he has less insight into his offending than he would like the Tribunal to believe. In this respect, the Tribunal observes that Justice Tinney was guarded on the issue of remorse at the time of sentencing in June 2020.[52]
[51] R1, 50; 55.
[52] Ibid, 57.
The Respondent submits that the Applicant has not sufficiently addressed his mental health and only intermittently sought counselling and treatment and continued to abuse substances. The Respondent’s solicitor told the Tribunal that the Applicant is either unwilling or unable to adhere to the requirements of managing his mental health.
The Respondent made reference to the number of programs that the Applicant would like to complete. The Respondent highlighted that the Applicant’s previous involvement in rehabilitative programs has not stopped him from reoffending in the past.
In oral submissions, the Respondent told the Tribunal that the Applicant had demonstrated aggressive behaviour towards prison staff, noting that this was evidence the Applicant had not sufficiently addressed his anger issues and anti-social behaviours.
The Respondent contends that despite the family’s commitment to supporting the Applicant, and his mother’s expertise as a mental health nurse, the family were not aware of the changes to the Applicant’s mental health he experienced in 2011 and 2019 until after he offended.
The Respondent submitted that the support of the Applicant’s family, including his mother, has not previously stopped the Applicant from reoffending.

The Tribunal is very concerned that the family support upon which the Applicant relies greatly, has proved to be a demonstrably insufficient protective factor previously.
In the Tribunal’s view, it is significant that Dr Pandurangi determined that the Applicant was not psychotic on the day of the August 2019 stabbing and could not establish any causal link between any mental illness and the offending.[53] In sentencing the Applicant, Justice Tinney held:[54]
It is not at all easy to see any realistic connection between any of your many conditions and the attack upon your victim. That is what it was, an attack, and your conduct after the event was quite calculated and dishonest.
[53] R1, 54.
[54] Ibid.
The Tribunal is also concerned that the Applicant has also been aggressive to prison staff and on one occasion surrendered a knife to prison officers.[55]
[55] Exhibit R2, 13-14.
The Tribunal has given careful consideration to all relevant information regarding the Applicant's risk of recidivism. The Tribunal is not convinced that the Applicant is as remorseful as he would like the Tribunal to believe. In all the circumstances, the Tribunal considers that whatever rehabilitative benefit the Applicant may have received, including through programs, is still so premature to fall well short of the level necessary to conclude favourably in relation to his likelihood of reoffending.
Conclusion: Primary Consideration 1
The Tribunal finds that:
(a)the nature of the Applicant’s offending to date is very serious;
(b)were the Applicant to reoffend in a similar way, the nature of the resulting harm would involve very serious physical and/or psychological harm and/or economic harm to the Australian community, quite conceivably, to a disastrous level; and
(c)in terms of risk of recidivism, there is a reasonable likelihood that he will engage in further very serious offending if returned to the Australian community.
In consideration of all the evidence, and each of the relevant factors contained in the Direction, the Tribunal finds that this Primary Consideration 1 weighs very strongly in favour of non‑revocation.
PRIMARY CONSIDERATIONS 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)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.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must 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 non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
Paragraph 8.2(1) of the Direction compels a decision-maker to make a determination about any family violence committed by the non-citizen.
The Applicant’s representative conceded, in oral submissions, that the Applicant had committed family violence against his mother, that should be viewed seriously, but submitted that this was an isolated incident in the context of a psychotic episode for which he did not receive any sentence. It was submitted that the Applicant had acknowledged the offending and the impact it had on his mother, that he was not removed from the family home following this incident and that he was now determined to remain drug and alcohol free.
The Respondent contends that the Applicant’s conviction on 28 September 2016 for assault with a weapon, in which a Victoria Police incident summary report describes the Applicant pushing his mother up against a drawer while holding a knife following a verbal argument, is evidence he has been convicted of an offence involving family violence and that this should be viewed very seriously regardless of the sentence imposed.[56]
[56] RSFIC, 15.
The Applicant’s mother told the Tribunal that emergency services were called because they felt that the Applicant needed an ambulance to provide care because, in her view, he was experiencing a psychotic episode. Despite wanting an ambulance, Victoria Police attended and charged the Applicant.
The Tribunal acknowledges that the Applicant’s mother told the Tribunal that she was not fearful during the 2016 incident.
The Tribunal has considered the definition of family violence which is contained in the Direction. Family violence is defined to mean 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.[57] The Tribunal is satisfied that the 2016 incident involved conduct by the Applicant which was violent, threatening, coercive and controlling towards his mother, even though she may not have been fearful.
[57] Direction 9(4)(1) definition of ‘family violence’.
The Respondent submits that the Applicant has not sufficiently addressed his anger issues or pre-disposition towards violence and that this primary consideration weighs in favour of affirming the decision of the delegate.[58]
[58] RSFIC, 15.
The Tribunal has already considered a number of the matters of which it must consider in its consideration above of Primary Consideration 1 and is careful not to re-canvas or double count in this analysis here of Primary Consideration 2. That said, the fact that the 2016 offending involved family violence weighs strongly against revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 2
Primary Consideration 2 weighs strongly against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 3: BEST INTERESTS OF MINOR CHILDREN
Paragraph 8.3 of Direction No 90 provides, in part:
(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 8.3(4) of Direction No 90 continues to outline the factors that a

decision-maker must consider when determining the best interests of a child affected by the decision:
(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.
Conclusion: Primary Consideration 3
In his revocation request, the Applicant did not identify any minor children whose interests would be negatively impacted. The Tribunal also did not identify any minor children whose interests would be negatively impacted. This consideration is of neutral weight.
PRIMARY CONSIDERATION 4: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[59] The Direction further states:
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 [in paragraph 8.4(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.[60]
[59] Direction, [8.4(3)].
[60] Ibid [8.4(4)] – paragraph 8.4(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185.
In assessing the weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides two separate propositions which are necessary to examine separately. The first is that “the Australian community expects non-citizens to obey Australian laws while in Australia”. The second proposition is that “where a non-citizen has engaged in serious conduct in breach of the community’s expectations, 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”.
In addition to the guidance provided by paragraph 8.4(1) of the Direction, paragraph 8.4(2) of the Direction directs that a:
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 are 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.
The Tribunal also notes, based on the principles in paragraph 5.2 of the Direction, that:
(a)The Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[61]
(b)Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life;[62] and
(c)The nature of a 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 a visa outcome adverse to the non-citizen.[63]
Analysis – Allocation of Weight to this Primary Consideration 4
[61] Ibid, [5.2(4)].
[62] Ibid.
[63] Ibid, [5.2(5)].
The Tribunal refers to its observations above, that the Applicant has been convicted of offending with a knife on separate occasions over an extended period of time. This all amounts to conduct in breach of the Australian community’s expectation that non-citizens in Australia will obey the law. Therefore, by virtue of paragraph 8.4(1) of the Direction, the Australian community, as a “norm” expects the Government to remove the Applicant.
The next question is whether there are any factors which might vitiate or, perhaps more conservatively, counteract the Australian community’s expectation that the Applicant cease to hold a visa.
The Applicant’s representative made oral submissions that in circumstances where the Applicant has lived in Australia since the age of 12 and has spent very limited time outside of the country, greater tolerance should be afforded to him pursuant to 5.2(b) of the Direction and that this consideration should not be given weight against the Applicant.
The Tribunal recognises that the Applicant is an individual who has lived in Australia since the age of 12 and has only spent the briefest periods outside the country and as such affords him greater tolerance than it would a person who had arrived more recently and had spent more time offshore.
Otherwise, other than matters that are properly considered elsewhere in these reasons, there are no other factors that counteract the expectation of the Australian community.
Overall, the Tribunal considers that this is a case that engages the principle in paragraph 5.2(5) of the Direction:
the nature of the non-citizen’s conduct, and the harm resulting from it, is so serious that even the strong countervailing considerations are insufficient (at least so far as the Australian community’s expectations are concerned) to justify revoking the mandatory cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 4
In consideration of all the evidence and each of the relevant factors contained in the Direction, the Tribunal finds that this Primary Consideration weighs strongly in favour of non‑revocation.
OTHER CONSIDERATIONS OF THE DIRECTION
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. The Tribunal will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International Non-Refoulement Obligations
Paragraph 9.1 of the Direction directs a decision maker to weigh any non-refoulement owed obligations owed in respect of the Applicant against the Applicant’s criminal offending.
In submissions made to the delegate when requesting the revocation the Applicant’s former representative contended that his removal from Australia would be contrary to the International Covenant on Civil and Political Rights (ICCPR) which states that no person should be subjected to “torture or to cruel, inhumane or degrading treatment or punishment”. Because of his mental health situation, the Applicant contends that his removal from Australia would amount to cruel treatment and a further punishment, in addition to that imposed by the County Court of Victoria.[64] (The Tribunal notes that these submissions were not pressed in the ASFIC or in oral submissions before the Tribunal).
[64] R1, 136-138.
There is numerous open source country information available concerning New Zealand and it is a reference country which is well understood by this Tribunal.
The Tribunal has considered that New Zealand is a signatory to the ICCPR. The Tribunal is satisfied that human rights are a primary consideration of New Zealand lawmakers.
The country information suggests that New Zealand has advanced health, education and social security systems. Acknowledging that the Applicant will need some assistance to practically access services, and this is discussed further below, day-to-day, there is no information before the Tribunal to suggest that the Applicant would be ineligible to access all required services, as can any other New Zealand citizen.[65]
[65] Country Report on Human Rights Practices 2016 - New Zealand’, US Department of State, 3 March 2017.
The Tribunal does not consider that the Applicant has a well-founded fear of persecution or that there are substantial grounds for believing there is a real risk he will suffer significant or serious harm, as those terms are defined in the Act, if he is forced to return to New Zealand. Indeed, having read and having had regard to all the submissions and evidence, the Tribunal is not satisfied that there is “a serious and substantive basis in fact and in law” on which to base a finding that the Applicant’s return to New Zealand would breach Australia’s non-refoulement obligations.[66]
[66] Omar v Minister for Home Affairs [2019] FCA 279 at [82].
This consideration is of neutral weight.
(b) Extent of Impediments if Removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account
“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 any substantial language or cultural barriers; and
c)any social, medical and/or economic support available to that non-citizen in that country.”
The Tribunal will address each of the three components of this Other Consideration in turn.
First, it is necessary to consider the Applicant’s “age and state of health”.[67]
[67] Direction, [9.2(1)(a)].
In oral submissions, the Applicant’s representative referred to the opinion of Dr Sullivan regarding the Applicant’s care needs and the impact on the Applicant’s health of being forcefully returned to New Zealand,[68] in addition to the evidence of the Applicant’s family members on this point.
[68] R1, 298.

As referred to above, the Applicant is 32 years of age. His state of health has already been set out above.
Second, it is necessary to consider whether there are any “substantial language or cultural barriers”[69] to the Applicant returning to New Zealand.
[69] Direction [9.2(1)(b)].
There are none. As found by this Tribunal (differently constituted) in a previous case:
New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the Applicant if he returns to New Zealand. […].[70]
[70] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 (“Tera Euna”), [101].
Third, Paragraph 9.2 of the Direction requires an enquiry into the extent of any “social, medical and/or economic support available” in New Zealand.[71]
[71] Direction [9.2(1)(c)].
The Applicant contends that he requires immediate family support and, without the presence of that support in New Zealand, if he is returned to New Zealand without family support he will not be able to manage his mental health and therefore will not be able to seek out the available social, medical, and or/ economic support that may be available.[72]
[72] Applicant Reply SFIC 3.
The Respondent’s representative gave oral submissions that the Applicant’s age and training qualifications would assist him in finding employment in New Zealand. The Tribunal was surprised by this submission, given the Applicant’s work history to date.
Dr Sullivan’s report states [at para 76]:[73]
In the event of deportation, the Applicant is unlikely to be able to manage his life without the support of others. His judgement is poor. I doubt that he has the intellectual capacity to manage linkage to appropriate services without significant support and assistance. His low frustration tolerance renders it likely that he will disengage without support or if he does not consider his needs met. He is also unlikely to manage his own finances without formal administration or support, and is at risk of homelessness, substance abuse and deterioration in mental health as a consequence. This would include increased risk of self-harm.
[73] R1, 298.
In her evidence, the Applicant’s mother shared Dr Sullivan’s views.
HKL speculated that deportation would result in the Applicant’s death.
It is appropriate to again refer to this Tribunal’s findings in Tera Euna, wherein it was noted:
New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The Applicant will have access to those services as a New Zealand citizen.[74]
[74] Tera Euna [101].
The Tribunal accepts that the Applicant is someone who will require practical assistance to engage with service providers. The Tribunal is satisfied that such assistance would be available to the Applicant in New Zealand.
In all the circumstances, the Tribunal considers that this is Other Consideration (b) weighs moderately in favour of the Applicant.
(c) Impact on Victims
Paragraph 9.3(1) of the Direction states that:
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.
The Applicant’s representative made oral submissions that this evidence should be considered in relation to considering the impact on victims of the Applicant’s offending in addition to the Applicant’s Links to the Australian community (see below).
The Applicant’s representative submitted that DKN20[75] could be distinguished from these circumstances in that the terms of Direction 90 were different to those of Direction 79, which was considered by the Court in DKN20, and that unlike in that case, here there was evidence from the Applicant’s mother that is direct, relevant evidence of the impact on a victim.
[75] DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97.
The Respondent contended that DKN20 should be applied to the extent that the evidence of the Applicant’s mother is not made in her capacity as a victim of the offending.
PGDX[76] makes clear that DKN20 can be distinguished in cases such as this Applicant’s where there is direct, relevant evidence available to the Tribunal. In this case, the relevant evidence that the Tribunal has before it is that of the Applicant’s mother. The Tribunal has set out her evidence above and so refers. It is clear that she would be devastated if the Applicant were forced to return to New Zealand. The evidence is that each of her family members would also be greatly saddened if the Applicant were forced to return to New Zealand.
[76] PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235.
The Tribunal has also taken into account the impact on the Applicant’s mother under the heading of “Links to the Australian community” below.
Accordingly, the Tribunal is of the view that this Other Consideration (c) weighs moderately in favour of the revocation of the cancellation decision.
(d) Links to the Australian community
Paragraph 9.4 of the Direction requires that decision-makers must have regard to the following two factors. They comprise; 9.4.1. the strength, nature and duration of ties to Australia; and 9.4.2. the impact on Australian business interests.
9.4.1. Strength, Nature and Duration of Ties
With reference to the first part of this Other Consideration, it is necessary to consider three elements. First, it is necessary to have regard to the impact of any non-revocation decision on the Applicant’s immediate family where those people have a right to remain in Australia indefinitely. Second, it is necessary consider the impact of a non-revocation decision by taking into account the strength, nature and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to have regard to the strength, nature and duration of any family or social links the Applicant may have with people who have indefinite right to remain in Australia.
The Tribunal has already accepted above that the evidence is clear that the Applicant came to Australia at 12 years of age.
The Tribunal refers to its remarks above concerning the composition of the Applicant’s family and their evidence concerning their connection with the Applicant. The Tribunal accepts that the Applicant has a close connection with each of his family members here in Australia and finds that each will be negatively impacted, as described above, if the Applicant were forced to return to New Zealand. The consistent evidence was the Applicant’s mother would suffer the most.
The Tribunal observes that the Applicant has been involved in the congregation of church services in Australia (both in the community and in prison).
As referred to above, the Applicant’s stepfather gave evidence, which the Tribunal accepts, that the Applicant has previously been involved in bowling and walking groups in Australia.
The Tribunal accepts that the Applicant has positively contributed to the community through brief periods of employment and other community involvement.
The Tribunal has had regard to the associations that the Applicant would have developed through the years from involvement as described above.
As per the Direction, the Tribunal considers that as the Applicant has resided in Australia the majority of his life he is entitled to a higher level of tolerance of criminal conduct.
The Tribunal takes into account and has had regard to all of the evidence relating to:
(a)the impact of the Applicant’s removal on his family members in Australia;
(b)the length of time he has resided in Australia; and
(c)the extent of the strength, duration and nature of his family or social links with people who have an indefinite right to remain in Australia.
Overall, the Tribunal finds that the Applicant’s ties to Australia weigh moderately in favour of the revocation of the cancellation decision.
9.4.2 Impact on Australian Business Interests
The Tribunal is mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on “Australian business interests”. This phrase is sought to be given some measure of definition in the text of paragraph 9.4.2(3) because weight can “generally only” be allocated in this instance where a non-revocation decision “would significantly compromise the delivery of a major project, or delivery of an important service in Australia”.
This second part of Other Consideration 4 is not relevant to determination of this application.
Weight allocable to Other Consideration 4: links to the Australian community
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations 1, 2 and 4, each of which weigh in favour of non‑revocation. The weight allocable to the Other Considerations relevant to the present matter can be summarised as follows:
(a)International non-refoulement obligations: neutral;
(b)Extent of impediments if removed: moderate weight in favour of the Applicant;
(c)Impact on victims: moderate weight in favour of the Applicant; and
(d)Links to the Australian community: moderate weight in favour of the Applicant.
CONCLUSION
Is There Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under section 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As the Tribunal has noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before it, there is not another reason for the Tribunal to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by section 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the considerations referred to in the Direction. The Tribunal finds as follows:
(a)Primary Consideration 1: weighs very strongly in favour of non-revocation;
(b)Primary Consideration 2: weighs strongly in favour of non-revocation;
(c)Primary Consideration 3: is not relevant and is therefore neutral;
(d)Primary Consideration 4: weighs strongly in favour of non-revocation;
(e)The Tribunal has outlined the weight attributable to the Other Considerations. The Tribunal does not consider that the totality of the weight attributable to the relevant Other Considerations outweigh the weight that it has attributed to Primary Considerations 1, 2 and 4.
The Tribunal does not exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
OTHER MATTERS
On 22 September 2021 the Applicant was serving a sentence at the Metropolitan Remand Centre and placed in a room alone, without an intercom, to participate in the Tribunal hearing. What this meant was that when the Applicant required assistance, he was required to knock on a door, wave and otherwise try to get the attention of prison officers. The Tribunal witnessed the Applicant experience difficulty in getting the attention of prison officers. Indeed, for a period, he was unable to raise the attention of prison officers.
Given the Applicant’s constitution and history of seizures, including that the Applicant had experienced seizures in the days prior to the hearing, the Tribunal was surprised that the Applicant would be put in such a situation. The Tribunal brought the Applicant’s situation to the attention of the Deputy Secretary within the Department of Justice and Regulation responsible for Corrections and the relevant Deputy Commissioner on the day. The Tribunal is grateful to both, who stopped what they were doing to ensure that the Applicant’s circumstances were brought to the attention of prison management.
The Tribunal notes that on subsequent hearing days a special purpose video conference room (“Court Room 17”) was made available to the Applicant. The Tribunal would encourage the use of such facilities for vulnerable prisoners at all times in the future.
DECISION
The decision under review is affirmed.

195.

196. I certify that the preceding 194 (one hundred ninety four) paragraphs are a true copy of the reasons for the decision herein of Senior Member P.Q. Wood

.............................[SDG].......................................
Associate
Dated: 19 October 2021

Date of hearing:

22, 23, 27 and 28 September 2021

Counsel for the Applicant:

Mr D Nikolic

Solicitors for the Applicant

Carina Ford Immigration Lawyers

Counsel for the Respondent:

Ms G Ho

Solicitors for the Respondent: Clayton Utz
EXHIBIT REGISTER

File No 2021/4832
Between DJTW (Applicant)
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Respondent)

Heard on 22, 23, 27 and 28 September 2021
Before Senior Member P. Q. Wood

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF LODGEMENT

A1

Statement of DJTW dated 17 September 2021

Applicant

17 September 2021

A2

Statement of HKL dated 25 August 2021

Applicant

25 August 2021

A3

Statement of DJTW’s stepbrother made on 17 September 2021 (dated 17 October 2021)

Applicant

17 September 2021

A4

Statement of DJTW’s stepfather made on 17 September 2021 (dated 17 October 2021)

Applicant

17 September 2021

A5

Statement of DJTW’s mother made on 17 September 2021
(dated 17 October 2021)

Applicant

17 September 2021

A6

Letter of Dr Jack Knobel dated 8 September 2021

Applicant

17 September 2021

R1

Section 501G ‘G’ Documents

Respondent

3 August 2021

R2

Bundle of Selected Summons Materials

Respondent

10 September 2021

[2021] AATA 3822

5 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Standing

Statutory Construction

Date of hearing:	22, 23, 27 and 28 September 2021
Counsel for the Applicant:	Mr D Nikolic
Solicitors for the Applicant	Carina Ford Immigration Lawyers
Counsel for the Respondent:	Ms G Ho
Solicitors for the Respondent:	Clayton Utz

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF LODGEMENT
A1	Statement of DJTW dated 17 September 2021	Applicant	17 September 2021
A2	Statement of HKL dated 25 August 2021	Applicant	25 August 2021
A3	Statement of DJTW’s stepbrother made on 17 September 2021 (dated 17 October 2021)	Applicant	17 September 2021
A4	Statement of DJTW’s stepfather made on 17 September 2021 (dated 17 October 2021)	Applicant	17 September 2021
A5	Statement of DJTW’s mother made on 17 September 2021 (dated 17 October 2021)	Applicant	17 September 2021
A6	Letter of Dr Jack Knobel dated 8 September 2021	Applicant	17 September 2021
R1	Section 501G ‘G’ Documents	Respondent	3 August 2021
R2	Bundle of Selected Summons Materials	Respondent	10 September 2021