DPGF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 556

DPGF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 556 (27 March 2024)
Division:GENERAL DIVISION
File Number(s): 2020/3419
Re:DPGF
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:27 March 2024
Place:Perth

The decision of the delegate of the Minister dated 25 May 2020 under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of the Applicant’s Global Special Humanitarian (XB-202) visa is set aside and substituted with the decision that the cancellation of the Applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Act.
.
.....[Sgd]......................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – s 501CA(4) of Migration Act – decision not to revoke mandatory cancellation of visa – conviction for serious assaults (choking) against partner – family violence – where the Applicant does not pass the character test – whether there is ‘another reason’ to revoke the cancellation – consideration of Ministerial Direction 99 - protection of the Australian community – links to the Australian community – the best interests of minor children in Australia – expectations of the Australian community – legal consequences of the decision – impediments if removed – extensive rehabilitation – low risk of reoffending – consideration of non-refoulement issues deferred under para 9.1.2(2) of Direction 99 - considerations in favour of revocation of cancellation outweigh those against revocation of cancellation – decision under review set aside and substituted.
LEGISLATION
Children (Criminal Proceedings) Act 1987 (NSW) s 14(1)(a)
Crimes Act 1914 (Cth) s 85ZR(2), 85ZS(1)(d)(ii)
Migration Act 1958 (Cth) s 36, 195A, 197AB, 197C, 197C(1), 198, 499, 499(1), 499(2A), 500(1)(ba), 501(3A), 501(6), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b), 501CA(4)(b)(i), 501CA(4)(b)(ii)
CASES
Anyang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] AATA 262
Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311
BCR16 v Minister for Immigration and Border Protection (No 2) [2017) 248 FCR 456; [2017] FCAFC 120
BKTS and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2733
Broom and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 2769
BYMD and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 1774
Crisp v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 252
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs [2019] FCA 500
JGNS and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3210
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6
Minister for Home Affairs v HSKJ [2018] FCAFC 217; [2018] FCAFC 217; 266 FCR 591
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Price v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 171
PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 14
SGTX and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2536
Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6
XRGY and Minister for Immigration, Citizenship, and Multicultural Affairs [2023] AATA 755
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA paras 4(1), 5.1, 5.2, 5.2(4), 5.2(5), 6, 7, 7(2), 8, 8.1, 8.1.1, 8.1.1(a), 8.1.1(1)(a)(ii), 8.1.1(1)(a)(iii), 8.1.1(1)(b), 8.1.1(b)(ii), 8.1(2)(a), 8.1.2, 8.2, 8.2(3)(a), 8.2(3)(b), 8.2(3)(c), 8.3, 8.4, 8.4(1), 8.4(4), 8.5, 8.5(1), 8.5(2), 8.5(2)(a)–(f), 9, 9(1), 9.1, 9.1(1), 9.1.1(1), 9.1.1(2), 9.1.2(2), 9.1.2, 9.2
REASONS FOR DECISION
Deputy President Boyle
27 March 2024
THE APPLICATION

The Applicant seeks review of the decision of a delegate of the Respondent (Minister) dated 25 May 2020,[1] under s 501CA(4) of the Migration Act 1958 (Cth) (Act) not to revoke the cancellation of the Applicant’s Global Special Humanitarian (XB-202) visa (the visa).
[1] R1/156.
The visa was cancelled on 4 October 2019 under s 501(3A) of the Act,[2] because the Applicant did not pass the character test by reason of having a “substantial criminal record” because he had been sentenced to a term of imprisonment of 12 months or more and he was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the Commonwealth, a State or a Territory.
[2] R1/191.
By a document dated 11 October 2019,[3] the Applicant made representations for the revocation of the cancellation of the visa, and on 25 May 2020, the delegate of the Minister made the decision not to revoke the cancellation of the visa (see [1] above).
[3] R1/199-217.
The Applicant was advised of the decision not to revoke the cancellation of the visa by letter dated 25 May 2020.[4]
[4] R1/153.
Section 500(1)(ba) of the Act allows an application to be made to the Administrative Appeals Tribunal for review of a decision of a delegate of the Minister made under s 501CA(4) of the Act not to revoke the cancellation of a visa.
This application for review was lodged with the Tribunal on 3 June 2020, which was within the nine days of the Applicant being notified of the decision as allowed for such applications under s 500(6B) of the Act.
ADMINISTRATIVE/JUDICIAL HISTORY
This application was initially heard by a differently constituted Tribunal which, by decision dated 17 August 2020, with written reasons dated 26 August 2020, affirmed the delegate’s decision dated 25 May 2020.[5]
[5] R1/1-68.
By orders dated 30 November 2020, Justice SC Derrington issued a writ of certiorari quashing the Tribunal’s decision dated 17 August 2020 and issued a writ of mandamus directing that the Tribunal determine the Applicant’s application according to law.[6]
[6] R1/69.
On remitter, by decision dated 6 September 2021, a differently constituted Tribunal affirmed the delegate’s decision dated 25 May 2020.[7]
[7] R1/72-146.
By orders dated 28 June 2023, Justice Perry issued a writ of certiorari quashing the Tribunal’s decision dated 6 September 2021 and issued a writ mandamus directing that the Tribunal determine the Applicant’s application according to law.[8]
[8] R1/148.
BACKGROUND
The Applicant was born in Khartoum, Sudan, on 27 December 1994. The Applicant, his father and siblings left Sudan when the Applicant was five years of age. They lived in Egypt until coming to Australia in 2006. The Applicant’s mother remained in Sudan where she still lives.
The Applicant and his family were granted humanitarian visas in September 2006 and the Applicant and his family arrived in Australia on 31 October 2006, at which time the Applicant was 12 years old.
Upon arriving in Australia, the Applicant initially lived with his family, however, in 2008, aged 13 years, the Applicant contacted the police about violence that he was being subjected to by his father.
The Applicant was placed in a refuge and then in a foster home. He moved to his cousin’s house and lived again with his father for a period before being formally fostered by a family friend with whom he lived until he was 18 years old.[9]
[9] Para 10 Applicant’s statement: A1/1-2.
The Applicant has two children from different mothers, the first child, a girl C, was born in June 2013. The second child, a girl A, was born in November 2016.
On 12 December 2018, the Applicant was convicted in the Magistrates Court of the Australian Capital Territory at Canberra of a number of offences, including intentionally and unlawfully, did choke another person, for which he was sentenced to 18 months imprisonment.[10]
[10] R1/189.
On 4 October 2019 the Applicant’s visa was cancelled (see [2] above).
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act relevantly provides that:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)...; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Act relevantly provides:
For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); ...
(Original emphasis.)
A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) ...
(b) ... or
(c) the person has been sentenced to a term of imprisonment of 12 months or more...
(Original emphasis.)
Section 501CA of the Act relevantly provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
...
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(Original emphasis.)
Section 499(1) of the Act provides that:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Section 499(2A) of the Act provides that “A person or body must comply with a direction under subsection (1).”
Direction 99
On 23 January 2023, the relevant Minister for the purposes of s 499 of the Act made a direction titled “Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 99). The commencement date for operation of Direction 99 was 3 March 2023. Upon its commencement, Direction 99 revoked the operation of “Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 90).
Paragraph 5.1 sets out the objectives of Direction 99. Relevantly, para 5.1 provides:
1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.
...
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
(4) The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of Direction 99 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke the cancellation of a visa under s 501CA of the Act. These principles are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable (sic) risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (sic) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable (sic) risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 99 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 99 (where such considerations are relevant) to determine whether the decision to cancel the visa under s 501(3A) of the Act should be revoked.
Guidance in relation to how the relevant considerations are to be taken into account is found in para 7 of Direction 99 which provides that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of Direction 99 is as follows:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
Paragraph 9 of Direction 99 is as follows:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) Legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests.
THE ISSUE FOR DETERMINATION
The issue for determination is whether I should exercise the power in s 501CA(4)(b) of the Act to revoke the cancellation of the Applicant’s visa under s 501(3A). This will require determination of:
(a) whether the Applicant passes the character test (as defined by s 501 of the Act); and
(b) if he does not pass the character test, whether there is “another reason” why the decision to cancel the Applicant’s visa should be revoked.
THE HEARING AND THE EVIDENCE
The application was heard on 23 February and 5 March 2024. The Applicant was represented by Ms A Martyn and the Minister was represented by Mr G Johnson. Both counsel appeared by video. The Applicant and his father gave evidence at the hearing. The Applicant’s father’s evidence was given through a Zande-speaking interpreter.
The following documents were admitted into evidence:
(a)Applicant’s Tender Bundle; received on 10 November 2023 (A1);
(b)Applicant’s Supplementary Tender Bundle, received 9 February 2024 (A2);
(c)Applicant’s Further Supplementary Tender Bundle, received 19 February 2024 (A3);
(d)Country of Origin Information, received 19 February 2024 (A4);
(e)Minister’s Consolidated Hearing Bundle, received 24 September 2023 (R1); and
(f)Minister’s Tender Bundle, received 8 December 2023 (R2).
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law. The character test is defined in s 501(6) of the Act (see [19] above). Under s 501(6)(a) of the Act, a person does not pass the character test if the person has “a substantial criminal record”. Section 501(7)(c) of the Act (see [20] above) 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...”. The Applicant has been sentenced to a term of imprisonment of more than 12 months and therefore he has a substantial criminal record and, as a result, does not pass the character test. The Applicant conceded that he does not pass the character test.[11]
[11] Applicant’s SFIC para 23.
The Applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution at the time of the cancelation of his visa on 4 October 2019. I am satisfied that the elements of s 501(3A) of the Act were satisfied and that the cancellation of the Applicant’s visa under that section was valid.[12]
[12] A valid cancellation decision is a pre-condition to the valid exercise of the revocation power under s 501CA(4) of the Act – see PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 14 and XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6.
As the Applicant does not pass the character test, he cannot rely on s 501CA(4)(b)(i) of the Act for the decision to cancel his visa to be revoked. The issue for determination, therefore, is whether the power under s 501CA(4)(b)(ii) should be exercised on the basis that there is another reason why the decision under s 501(3A) should be revoked.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)

Paragraph 8.1 of Direction 99 provides that, when decision-makers are considering the protection of the Australian community, they:
(1)... should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen's conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (para 8.1.1)
Paragraph 8.1.1 of Direction 99 relevantly provides:
1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed.
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)...
(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;
...
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;
...
The Applicant has an extensive criminal record dating back to when the Applicant was a juvenile.[13] The Applicant’s criminal record, as disclosed by the ACIC Check Results Report, is set out in the annexure to these reasons. He has convictions in the Australian Capital Territory, New South Wales, South Australia and Queensland.
[13] ACIC Check Results Report: R1/171-177.
The Applicant’s Statement of Facts, Issues and Contentions filed on 10 November 2023 (Applicant’s SFIC) made submissions relevant to this consideration to the following effect:
(a)The Applicant’s criminal history between 2011 and 2017 was relatively minor and involved offences of possessing prohibited drugs, resisting or hindering police, contravening directions of a police officer, using offensive language, failing to give personal details, breaching orders, affray and driving offences.
(b)He was involved in violent offending in 2017 and 2018. He was first imprisoned as an adult in 2017 for eight months following convictions for assault, making threats to kill and possession of cannabis. These offences involved the Applicant threatening a person with a knife while walking down a street and hitting a person with his vehicle causing them to fall onto the bonnet to steady themselves.
(c)In 2018, the Applicant was convicted of choke person render insensible, choke another, common assault and assault occasioning actual bodily harm. On 12 December 2018 he was sentenced to 18 months’ imprisonment.
(d)During 2017 and 2018 the Applicant was also charged with several other driving offences related to driving while uninsured, unregistered and unlicensed.
(e)The Applicant accepts that his criminal history is serious.
(f)He accepts that if he were to offend as he has in the past (presumably referring to the violent offences) that there could be physical or psychological harm to any future partner or to other members of the community.
(g)The offending occurred 11 years after his arrival and, while his offending was frequent, his violent offending is limited to a particular period of his life.[14]
(h)The other offences (presumably other than the violent offences) were less serious as reflected by fines and dismissal without conviction.
(i)The violent offences against strangers took place over the course of a few weeks in 2017 when he was having a particularly difficult time managing his emotions following the loss of his job due to a dispute regarding underpayment and consequently living in his car.
(j)The circumstances in which he engaged in this violent offending against the general public were contained.
(k)The Tribunal should consider the nature and seriousness of the offending in light of his childhood trauma and diagnosis of Post Traumatic Stress Disorder (PTSD) and Major Depressive Disorder.
[14] Note: I assume that the Applicant’s reference to the offending commencing 11 years after his arrival is a reference to his violent offending in 2017
The Minister’s Statement of Facts, Issues and Contentions dated 7 December 2023 (Minister’s SFIC) made contentions as follows relevant to this consideration:
(a)The Applicant has committed violent offences including choke person render insensible, reckless threat to kill, assault occasioning actual bodily harm, common assault and affray. In accordance with Direction 99, violent offences should be viewed very seriously: paragraph 8.1.1(a).
(b)The convictions in the A.C.T. Magistrates Court on 12 December 2018 for choke person render insensible, choke suffocate, strangle another, assault occasioning actual bodily harm, and common assault relate to a series of violent acts perpetrated by the Applicant towards his partner, Ms E, on 7 and 8 August 2018.
(c)The offences committed on 7 and 8 August 2018 should be viewed particularly seriously in circumstances where:
(i)the sentencing magistrate considered the choking person render insensible offence to be 'a very, very serious matter';[15]
[15] R1/186.
(ii)the Applicant's conduct demonstrated his indifference to the potential consequences of his actions;[16]
[16] Citing comment by the sentencing magistrate.
(iii)the Applicant held Ms E by her neck and applied force to her neck on a number of occasions between 7 and 8 August 2018;[17]
[17] Ibid.
(iv)the offences occurred in a family violence context and Direction 99 requires acts of family violence to be viewed very seriously, regardless of whether there is a conviction and the sentence imposed: para 8.1.1(1)(a)(iii);
(v)Direction 99 requires crimes of a violent nature perpetrated towards women or children to be viewed very seriously, regardless of the sentence imposed: para 8.1.1(1)(a)(ii);
(vi)the offending occurred whilst Ms E's infant daughter (who is also the Applicant's child) was present or able to hear the event which has a real potential to cause trauma to the child.
(d)The Applicant's reckless threat to kill and common assault convictions on 12 July 2017 (offence committed 20 January 2017) should also be viewed as particularly serious. The Applicant approached two male victims without any particular reason and said to them words to the effect 'I'm going to come to your house. I'm going to wear a mask. I'm going to shoot you. I'm going to kill you', whilst using his fingers to make the gesture of firing a gun at the victim. The Applicant later pulled a knife and pointed the knife at both victims saying 'mate, I'm going to kill you'. The Applicant then pulled one of the victims and kicked him in the ankle.[18]
(e)In sentencing the Applicant on 12 July 2017, the magistrate commented that the offence is viewed “'very seriously' under the legislation, and that the Applicant's offending can be 'regarded as serious and it's obvious … to any reasonable person that to threaten another, threaten to kill them in circumstances is a serious matter”
(f)The offences committed on 20 January 2017 involved a knife, the attack was unprovoked and there appeared to be no prior relationship between the Applicant and the victims. One of the victims found it a frightening experience and still has anxiety and experiences hypervigilance.
(g)The offences of which the Applicant was convicted 24 September 2018 (offences committed 14 May 2018) demonstrate the Applicant's tendency to act violently towards members of the general community and his use of a motor vehicle to cause impact with another person demonstrates his disregard for the safety of others and the possible consequences of his actions.
(h)The Applicant has been convicted of offences relating to resisting or failure to cooperate with police officers, including resist or hinder police officer in execution of duty, fail to state name and address when directed, and contravene direction or requirement of police officer: para 8.1.1(b)(ii) of Direction 99.
(i)The two sentences of eight months’ imprisonment imposed by the Court in relation to the reckless threat to kill offences and the two months’ imprisonment sentence in relation to the common assault offence are objective reflections of the seriousness of the Applicant's offences, noting that the sentencing courts have already taken into account various mitigating factors. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy.
(j)The Applicant's criminal history is extensive. He has offended frequently over a sustained period. The Applicant has been found guilty or otherwise responsible of more than 50 offences on some 20 court dates between 2011 and 2018.[19] The Applicant’s offending also shows a trend of increasing seriousness.
(k)The cumulative effect of the Applicant’s multiple driving offences has placed the Australian community at serious risk of harm. It is of significant concern that on some occasions, for example, in relation the conviction on 29 April 2018, up to four of these offences were committed concurrently and this demonstrates the Applicant's lack of respect for the safety of other road users and Australian laws.
(l)In relation to the Applicant’s contention that his offending should be seen in light of his diagnoses of PTSD and Major Depressive Disorder, these diagnoses appeared to have been recent and there is no evidence to suggest that onset of the relevant conditions preceded the offending. Further, there is no evidence of whether or how these conditions were related to the offending such that mitigating circumstances can be said to exist.
[18] Ibid.
[19] Note: This statement is incorrect. The Applicant’s record, as indicated by the ACIC Check Results Report (R1/171-177), shows 45 convictions for traffic and criminal offences, including one conviction as a minor for an offence committed when the Applicant was 17 years of age.
The most serious of the Applicant’s offences were those for which he was convicted and sentenced in the A.C.T. Magistrates Court on 12 December 2018. In sentencing the Applicant, Magistrate Theakston made the following findings and observations:
…the three offences occurred on two different days….Then on the second day, being 8 August this year, there are essentially a confrontation or a physical confrontation which essentially was one event involving the defendant and the complainant where he initially held the neck of the complainant and pushed her backwards and they both fell on the floor. At the time of doing so, he punched the complainant a number of times and then subsequent to that he choked the complainant while she was on a couch to such a stage that she lost consciousness. On all occasions, the defendant’s young infant or toddler daughter was present and observed or witnessed the events.
On any measure, these are serious matters. I just note that there was no plea of guilty.
In assessing the seriousness of the Applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction 99 relevant in this case, I find that:
(a)Paragraph 8.1.1(1)(a) – The Applicant has been convicted of violent crimes, crimes of a violent nature against women and crimes that constitute family violence (see [65] below). I am obliged by Direction 99 to take into account that the Australian Government and the Australian community consider that such crimes are to be “viewed very seriously”. In taking those views into account, I am mindful of the obligation under para 8.1(2)(a) of Direction 99 to assess for myself the seriousness of the Applicant’s offending, informed by the statement of executive policy in Direction 99.[20] In that regard, independently of the view of the Australian Government and the Australian community expressed in Direction 99, I consider the Applicant’s violent offences committed against women, in particular his partner Ms E which also constituted family violence, as very serious.
(b)Paragraph 8.1.1(1)(b) – As the Minister pointed out, the Applicant has been convicted of offences relating to resisting or failure to cooperate with police officers, including assault or obstruct police (22 January 2018) resist or hinder police officer in execution of duty (29 August 2012 and 6 June 2012). In relation to the resist officer offence committed on 6 June 2012, while this was a conviction in the Parramatta Childrens Court, the Applicant was at the time of the offence 17 years of age. Accordingly, ss 85ZR(2) and 85ZS(1)(d)(ii) of the Crimes Act 1914 (Cth) and s 14(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW) do not operate to preclude that conviction from being taken into account.[21] These offences are to be viewed as serious.
(c)Paragraph 8.1.1(1)(c) - The sentences of imprisonment imposed by the Courts, while not insubstantial (noting that imprisonment is the last resort in the sentencing hierarchy), were at the lower end of possible sentences.
(d)Paragraph 8.1.1(1)(d) – The Applicant has been convicted of over 40 offences as an adult and one as a 17-year-old between 2012 and 2018. His offending is clearly frequent. By far the most serious of the Applicant’s offences are those of which he was convicted on 12 December 2018 (see [41(b)-(c)] above) followed by the offences referred to in [41(d) and (g)]. There is a trend of increasing seriousness in the Applicant’s offending.
(e)Paragraph 8.1.1(1)(e) - The cumulative effect of the frequency and repetition of the same type of offences, with an increase in the seriousness of the offending, and a long and significant history of driving offences indicate that the Applicant is, or at least was, unwilling, or unable, to comply with the law.
(f)Paragraph 8.1.1(1)(f)-(h) – Not relevant.
[20] Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582 at [73] per Snaden; see also Price v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 171 at [71].
[21] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17; (2023) ALJR 488; Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6; and Crisp v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 252.
The Applicant conceded that his criminal record is serious. Given the number of convictions over a relatively short period and the nature of the violent offences of which the Applicant has most recently been convicted, I agree that his criminal record must be considered to be, at the least, serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
Paragraph 8.1.2 of Direction 99 relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the noncitizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of harm to individuals or the Australian community (8.1.2(2)(a))
The Applicant’s SFIC accepts that if he were to offend as he has in the past (presumably referring to the violent offences) that there could be physical or psychological harm to any future partner or to other members of the community (see [40(f)] above).
The Minister’s SFIC referred to the harm in relation to each category of the Applicant’s offending.
(a)In relation to the choke person render insensible offence, the Minister contended that the Applicant’s behaviour demonstrated an indifference to human life and serious physical harm. The sentencing magistrate stated that “death [was] not very far away and this matter could have been much more serious had the defendant continued to hold the complainant for a longer period”. The harm to individuals, including those who are in a close relationship with the Applicant, should he engage in similar conduct could include extremely serious physical or psychological injury or death.
(b)The Applicant's reckless threat to kill offences were directed at general members of the community. The Applicant produced a weapon (a knife) after making a threat to kill the victims. Such offences have the effect of placing the general public in fear of their safety in the community and the result of similar offending in the future could include serious physical or psychological injury.
(c)The Applicant continuing to engage in driving offences would continue to place the safety of other road users at risk of serious harm including serious personal injury and economic loss.
(d)Repeat of the Applicant’s conduct of behaving contrary to police directions or resisting/obstructing police in the course of their duties would present an unacceptable risk of harm to law enforcement personnel and place an additional burden on law enforcement efforts in Australia.
I accept the Minister’s description of the type of harm to individuals and the Australian community should the Applicant engage in the criminal conduct that he has in the past.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (8.1.2(2)(b))
The Applicant’s SFIC made submissions relevant to this consideration as follows:
(a)Since being released from prison, the Applicant has already spent a prolonged period of four years in immigration detention. While in detention he has been diagnosed with PTSD and Major Depressive Disorder. He has been engaged with IHMS counsellors and psychiatrists and has been prescribed antidepressant and antipsychotic medications.
(b)He has been proactive in his rehabilitation since his offending, which was now over five years ago. He has completed the following:
(i)‘First steps to anger management program’ run by the ACT Corrections Programs Unit in May 2017.
(ii)Alcohol Drug Awareness Prevention Training (ADAPT) in December 2018.
(iii)Rolling Readiness Group in February 2019.
(iv)Solaris Therapeutic Community Program (Solaris) which included modules on Family Violence and Victim Awareness in July 2019.
(v)Relapse Prevention Plan in October 2019.
(vi)Trauma counselling with IHMS in 2021 and 2022.
(vii)Online learning modules about anger management and family violence in 2022.
(viii)Brief Intervention Service – men’s family violence counselling in 2023.
(ix)SMART recovery in 2023.
(x)Trauma counselling with ASSETTS in 2023.
(c)There is a low risk of the Applicant engaging in serious offending in the future given the rehabilitation he has undertaken and the existence of supports. The risk is acceptable.
(d)The Applicant’s violent offending resulted from traumatic memories of violence in his childhood. He has taken significant steps to engage in rehabilitation and trauma counselling which have helped him deal with his past, change his thought patterns and significantly lowered the risk of his reoffending.
(e)Significant weight should be given to the number and variety of courses and counselling that the Applicant has undertaken since being incarcerated. He has committed to engaging in rehabilitation over a number of years. He has sought out help on his own initiative to better understand and deal with negative thought patterns.
(f)The ‘Solaris’ program, a six-month long program aimed at reducing recidivism. This program included modules aimed at preventing violent reoffending such as ‘anger’, ‘victim awareness’ ‘relationships’ ‘jealousy’ and ‘relapse prevention’. After completing some months in that program, the Applicant’s risk of reoffending was reassessed,[22] and was lowered from ‘medium’ to ‘medium-low’ by the time he entered immigration detention.[23] He has since engaged in further rehabilitative activities.
(g)The Applicant has attended trauma counselling sessions while in detention and engaged in Cognitive Behavioural Therapy which has provided him with an understanding of how his violent offending is linked to his own past trauma and negative thought patterns resulting from that trauma. He is currently engaged with ongoing trauma counselling provided by ASSETS.
(h)Significant weight should also be given to the fact that while in immigration detention, the Applicant has been diagnosed by a psychiatrist and prescribed medication to regulate his mood. This medication has been beneficial and has made him feel more in control of his emotions. The Applicant is committed to continuing to take his medication and engage in counselling following his release from detention.
(i)The Applicant has an employment history in the construction industry and links to the industry through his family, which will assist him to find work when released. He has the support of his extended family including his cousins.
(j)The Australian community would be willing to afford the Applicant a higher level of tolerance in respect of risk to the community given the length of time he has resided in Australia, being 17 years, and having arrived in Australia as a child (para 5.2(5) of Direction 99) and the fact that he held a permanent rather than limited stay visa (para 5.2(4) of Direction 99).
[22] A.C.T. Corrective Services Pre-sentence report dated 4 December 2018: A1/67.
[23] A.C.T. Corrective Services Sentenced Detainee Case Plan dated 29 October 2019: A1/72.

The Minister’s SFIC made submissions to the following effect:
(a)The Minister agreed that the risk assessments made by the A.C.T. Corrective Services (see [49(f)] above) should be given appropriate weight.
(b)The Applicant has a history of repeat offending over a sustained period, and despite the various opportunities given to him in the form of non-convictions and non-custodial sentences, he has proceeded to commit further (and often, more serious) offences. The Applicant was sentenced to an 8-month sentence for the reckless threat to kill offence in 2017 and despite having been incarcerated, he proceeded to reoffend and committed more serious violent offences after his release.
(c)The Applicant has breached a number of judicial orders between 2013 and 2018 such as good behaviour bonds, probation conditions, bail orders and has failed to appear in court. The Applicant had two of his convictions resentenced as a result of breaching court orders.
(d)The Applicant has sought to minimise his culpability. He did not plead guilty to the choke person render insensible offence and, whilst he pleaded guilty to the reckless threat to kill offence, the magistrate noted that it was 'late in the day' and on legal advice but he continued to engage in victim blaming.
(e)The Applicant continued to victim blame in relation to the reckless threat to kill offence because saying that the victims almost hit him with a car, and that when he approached the victim, the victim 'looked like he was ready to fight me'. In relation to the choke person render insensible offence, the Applicant said that the victim just started yelling at him and she was trying to fight him. The pre-sentence report also noted that the Applicant denied any use of violence beyond pushing his victim, and 'focused more on his partner's behaviour than his own'.[24]
[24] A1/67
(f)The Applicant demonstrated the same minimisation of culpability and victim blaming in the course of the previous Tribunal proceedings.
(g)The Applicant's repeated and sustained attempts to minimise or externalise his culpability suggests that he has not fully assumed responsibility for his conduct and has limited insight into his own role in the offending. Further, the fact that the Applicant has altered his account of the events had changed over time suggests that he had not been forthcoming with the Tribunal on at least some occasions.
(h)The Applicant has identified his brother and his father as protective factors against him reoffending. The Applicant gave evidence in the first Tribunal proceeding that his brother was also in custody. Therefore, it is unlikely that the Applicant's brother would be able to provide any support in the near future.[25]
(i)In relation to his father being a protective factor, it was as a result of domestic violence allegedly caused by his father that the Applicant was removed from his family home and placed in foster care. Therefore, there is currently a lack of evidence to suggest that the Applicant has appropriate support from immediate family members in the community to prevent him from reoffending.
(j)There is no evidence that the Applicant will live with either Ms E or his first partner, the mother of his older daughter who now has re-partnered.
(k)The Applicant claims to have connections with the construction industry through his family, however, the Applicant has not provided evidence of qualifications that would assist him with securing employment in the industry, nor evidence to suggest that he would likely be offered a job if he is released into the community. There is no evidence that the Applicant will have sufficient funds to sustain himself or secure stable accommodation upon his release.
(l)In relation to the Applicant’s claims relating to rehabilitation, in relation to the anger management and drug programs the Applicant has undertaken, after the Applicant attended similar programs whilst he was incarcerated in 2017, he relapsed into further and more serious offending, being the choking offence in 2018. The evidence available does not establish that the Applicant's risk of reoffending would be materially reduced after attending these programs.
(m)The evidence suggests that the Applicant has continued to conduct himself inappropriately whilst he was in custody. The Applicant accepted at the second Tribunal hearing that he was involved in a fight with another inmate and was subjected to three days' cell confinement as a result and also accepted that he engaged in an abusive exchange with a prison officer because the officer 'kept on targeting' him.
(n)The Applicant has continued to engage in abuse or aggressive conduct whilst in immigration detention notwithstanding having received counselling on a regular basis and being prescribed medication in 2021. The weight of the evidence suggests that the Applicant continues to behave aggressively in immigration detention towards staff and other detainees including after he received counselling and medication.
(o)In relation to the Applicant being granted parole, the matters that the parole board is required to take into consideration in deciding whether to grant the Applicant parole are qualitatively different to the task presently before the Tribunal in determining whether to revoke the mandatory cancellation of the Applicant's visa.
[25] Note: The Applicant’s evidence at the hearing was that his brother was still in prison and that he did not know what was happening with his brother’s case or even whether it was a criminal matter or an immigration matter: Transcript at 79-80.
The Applicant was cross-examined on the assaults and the choking offence committed on 7 and 8 August 2018:[26]
COUNSEL: So was there a particular reason that you behaved in the way that you did on this particular day? Let me put it this way: I know you’ve given some evidence this morning about how [Ms E] was acting and that she was intoxicated and you felt unhappy about that, and she was meant to be caring for your daughter. You’ve said all that, but what was the reason for your particular violent reaction to that situation in August 2018?
APPLICANT: To be honest with you, it went from argument into – like, it got physical, you know. Like, say when it got physical I was trying to restrain her, and then she’s trying to fight back. I don’t know why, it just, like – you know, like, I just found myself, you know, holding her down and choking her. I don’t understand why, like, I did that honestly, you know.
COUNSEL: Is it something to do with the trauma that you’ve suffered in your past or something to do with your personality or you can’t say?
APPLICNAT: No, to be honest with you, like, say I do have – like, I do have a short temper. You know, I do have a short temper, I admit to that, you know. But just how everything happened, it happened so quick, you know. Like, say one minute we’re talking, and then one minute, you know, it got physical. It went from me trying to restrain her, you know, to serious. You know, it went like – it got serious so quick.
[26] Transcript at 47.
Asked by counsel whether he would react in the same way if he found himself in a similar situation, the Applicant’s evidence was:[27]
No, no, not this time, no. I sat down for, like, what, five years now, you know. This is the only thing I think about. And I’ve been seeing counsellors, I’ve been seeing, you know, like, the Trauma and Torture. Now, like, I’m even scared of being in a relationship without knowing the other person, you know. So, like, all this changed me, you know. Like, it kind of changed me. Like, I’m scared to be in a relationship actually if - I actually got to know that person, got to know background, you know, details. I got to see signs, you know. So, like, it’s really, really different now.
[27] Transcript at 47.
The Applicant was also cross-examined on the reckless threat to kill offence on 12 July 2017 when he threatened two strangers with whom he had an altercation with a knife. Counsel asked the Applicant why, in previous Tribunal hearings, the Applicant had denied that he used a knife to threaten. He conceded that he had used a knife and that he had denied this in the previous hearing to “minimise” his action.[28]
[28] Transcript at 55.
The Applicant was also cross-examined about incidents while in detention. His evidence was that in some cases the reports prepared by the Serco employees were not accurate. His evidence was that he had in several cases made formal written complaints about the behaviour of detention centre staff and the reports prepared by them. A number of the complaint forms submitted by the Applicant and the Serco responses were included in A2.[29] These complaints and the responses were generally consistent with the Applicant’s evidence.
[29] A2/99-143
The Applicant provided a psychiatric report dated 14 February 2024 by Professor Suresh Sundram, consultant psychiatrist.[30] Professor Sundram is the Chair and Head, Department of Psychiatry, School of Clinical Sciences, Monash University. The letter of request for the report did not ask for, and the report did not provide, an assessment of the risk of the Applicant re-offending. The report did, however, make the following observations potentially relevant to this consideration:
(a)At para 36, the Applicant believed that his pharmacotherapy and his psychotherapy were very helpful, and he was fully adherent to his treatment regimen;
(b)At para 39, the Applicant was willing to engage with treatment and Professor Sundram observed improvement in his condition as noted in the medical records.
(c)At para 40, the Applicant’s response to treatment was encouraging. The sertraline dose of 50mg daily is low and would be considered very low for PTSD. There is a good argument for the dosage to be raised.
(d)At para 41, the trajectory of his prognosis is positive in the mainstream context.
[30] A3.
It is unquestionable that the Applicant has undertaken a significant number of rehabilitation programs since his last incarceration and detention (see [49(b) above). The Minister’s observation that after the Applicant attended similar programs whilst he was incarcerated in 2017, he relapsed into further and more serious offending is a fair one. I think that the difference is, firstly, that the programs more recently undertaken by the Applicant were, not only multiple, but were focused at addressing the apparent causes of the Applicant’s offending, in particular his anger management issues. Secondly, it was only during the Applicant’s most recent incarceration and immigration detention that the Applicant has been diagnosed by a psychiatrist and prescribed medication to regulate his mood and has received specific counselling. I accept that Applicant’s evidence that that diagnosis and treatment has enabled the Applicant, for the first time, to understand the drivers of his angry and anti-social behaviour and to be equipped to deal with those issues.
The Minister’s observation that the Applicant has in the past sought to minimise his offending and to engage in victim blaming is also a fair one. The Applicant, in effect, conceded as much at the hearing (see [53] above). Albeit in perhaps an incremental process, it appears that the Applicant has come to accept responsibility for his past actions. This is, in my view, likely to be due to the Applicant’s extended time in detention, the additional courses, the counselling that he has undertaken, and the medication now taken by the Applicant. I found the Applicant’s evidence at the hearing in this regard to be sincere and honest and, as Professor Sundram accepted, I also accept the Applicant’s evidence of his commitment to continue with his counselling and maintaining the medication regime if he were to be released into the community.
I accept the Minister’s submissions that the supports and other usual stabilising factors (family, employment, community) may not be strong in the present case. However, notwithstanding that, I assess the risk of the Applicant offending as he has in the past to be low. The last formal risk assessment was that in the A.C.T. Corrective Services Detainee Case Plan in October 2019 which assessed the Applicant to be a medium’ to ‘medium-low’ risk (see [49(f)] above). Since that assessment, the Applicant has been formally diagnosed by a psychiatrist and has undertaken further targeted rehabilitation courses, personal counselling and is now on medication.
While I assess the Applicant to be only a low risk of offending as he has in the past, the seriousness of the impact and the harm that this type of offending can have is such that this consideration, the protection of the Australian community, weighs against revocation of the cancellation of the Applicant’s visa and moderate weight should be given to it.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
Paragraph 8.2 of Direction 99 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 noncitizen, 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 4(1) of Direction 99 relevantly defines family violence as follows:
family violence means 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. Examples of behaviour that may constitute family violence include:
a) an assault; or
b) …
...
(Original emphasis)
Member of a person’s family is defined in para 4(1) of Direction 99 as follows:
member of person’s family, for the purpose of the definition of the definition of family violence, includes a person who has, or has had, an intimate personal relationship with the relevant person.
(Original emphasis)
The Applicant concedes that that his “offending involved serious family violence” but contends that, following extensive rehabilitation he is a low risk of reoffending.[31]
[31] Applicant’s SFIC para 43.
The Minister’sSFIC submitted that:
(a)The Applicant has been involved in a number of offences involving family violence. Most notably, the Applicant's choke person render insensible, choke suffocate strangle another, assault occasioning actual bodily harm, and common assault offences on 7 and 8 August 2018. The Court found that the Applicant choked Ms E on at least two occasions over the two-day period, and also assaulted her. The assaults were also carried out in front of the Applicant and the victim’s infant daughter.
(b)The Applicant also admitted in his statement dated 10 November 2023 that “[w]hen [Ms E] did things that made me feel upset or angry I was violent towards her on a few occasions. I was unable to manage my anger or think about more appropriate ways of dealing with it”.[32]
(c)The Applicant's former partner, Ms C, gave evidence during the first Tribunal hearing that the Applicant lived with her for around a year between 2013 and 2014 and on one occasion the Applicant pushed her.[33] The Applicant and Ms C lived together and had one child together. Ms C is therefore to be considered a family member of the Applicant.
(d)The incidents against Ms C and Ms E evince a pattern of family violence culminating in the choking offence, evincing a trend of increasing seriousness.
(e)It is evident from the detention records that the Applicant has not successfully addressed his anger management issues.
[32] A1/1-9.
[33] R1/17.
The offences committed against Ms E were clearly acts of family violence. They involved assaults against a member of the Applicant’s family. Ms E and the Applicant were in, or at the least, had been in an intimate personal relationship, they being the parents of the Applicant’s second daughter. Similarly, Ms C who was the victim of the Applicant’s previous violence (see [64(c)] above) was at the relevant time, or at the least had been, in an intimate personal relationship with the Applicant being the mother of his first daughter. Both Ms C and Ms E therefore come within the definition of a member of the Applicant’s family (see [62] above).
It is difficult to assess the frequency of the Applicant’s family violence (para 8.2(3)(a) of Direction 99), however, the evidence discloses multiple acts of family violence against Ms E and at least one act of family violence against Ms C. The Applicant and Ms C stopped living together when their daughter was about one year old, and Ms C moved back to Adelaide.[34] As that child was born in June 2013 that would have been around 2014. The Applicant started his relationship with his second partner, Ms E, in 2014.[35] Accordingly, the family violence against Ms C must have been at the latest in 2014 and we know that the family violence committed against Ms E was in August 2018. There is, however, a trend of increasing seriousness in the Applicant’s family violence with the most serious attacks being those on Ms E on 7 and 8 August 2018.
[34] R1/17 at [48].
[35] Applicant’s statutory declaration dated 10 November 2023; A1/2.
The cumulative effect of the acts of family violence, apart from the obvious physical and psychological harm caused to the victims, is that it evidences an inability on the part of the Applicant to control his anger (para 8.2(3)(b) of Direction 99).
The Applicant’s rehabilitation (para 8.2(3)(c)) is addressed in [49]-[59] above. As also noted above, while the Applicant has sought to downplay the offences of which he has been convicted and to blame others, over time he has come to accept responsibility for his actions and come to an appreciation of the consequences of those actions and the impact that they have on others (see [57] above). In his statement dated 9 February 2024 stated:[36]
23. Recently we have been talking about triggers and also understanding my past actions and offending.
24. The minister has brought up some of my past comments about my offending and how I said things aren’t my fault. I want to make clear that my offending and the harm I have caused weighs on me and plays on my mind a lot.
[36] A3/1-5.

All acts of family violence are unacceptable and are to be viewed very seriously. In the present case the degree of physicality of the assaults on Ms E were significant and potentially life-threatening. He had also committed an act of family violence against the previous woman with whom he had been in an intimate domestic relationship, Ms C. In most cases this consideration would have to weigh heavily against the revocation of the cancellation of the visa, however, I accept that the Applicant has undertaken specific rehabilitation to address the behaviour that results in family violence and that he now has an appreciation of the harm that is caused by family violence. I also accept that the Applicant is now better equipped to avoid circumstances escalating into family violence than he was when he committed the acts of family violence.
The Minister referred to the Applicant’s record in detention as evidencing the Applicant not having addressed his anger management and aggression issues. I do not accept that. A person’s behaviour in the fraught, inherently aggressive and often violent environment of immigration detention is not,[37] in my view, a fair indication of how that person would behave in the community. The Applicant described the environment of detention in his statement of 9 February 2024 as follows:
Detention is an unsafe environment for me. I have felt scared and threatened there every day. The environment in detention is very tense so we are all on edge. Everyone is suspicious of each other.
[37] The Applicant witnessed his friend being knifed to death in immigration detention and he has been beaten and stabbed: A2/1 at para 5.
Given the above factors, while the acts of family violence committed by the Applicant clearly weigh against the revocation of the cancellation of his visa, in the present case only moderate weight should be given to this consideration.
Third primary consideration: The strength nature and duration of ties to Australia (para 8.3)
Paragraph 8.3 of Direction 99 provides:
(1) Decision-makers must consider any impact of the decision on the non- citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) The length of time the non-citizen has resided in the Australian community, noting that:
(i) Considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
(ii) more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii) less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant’s SFIC made submissions to the following effect relevant to this consideration:
(a)The Applicant of Australia has been a resident since he arrived as a 12-year-old in 2006 and was resident in Australia during his formative years.
(b)He grew up in state care, firstly in a refugee and then with a family friend who became his foster parents. His carers failed to apply and obtain Australian citizenship for him, which would have provided him with stability in his upbringing and offered him protections as a child which he was not otherwise afforded.
(c)The Applicant has significant ties to Australia. He has a large extended family in Australia including his two daughters, father, stepmother, brother, 11 uncles and aunts, eight nieces and nephews, 30 cousins and four grandparents.
(d)He has re-established a relationship with his father and stepmother, who will be devastated by the removal of their son from Australia. He is close to and speaks regularly with members of his family in Australia including his cousins. His family members would be significantly affected by his continued detention or deportation and would suffer irrecoverable loss if he were removed from Australia. If he were returned to Sudan the constant risk of the Applicant’s death will weigh heavily on his family.
The Minister’s SFIC was to the following effect:
(a)The Minister accepted that the Applicant has immediate family members residing in Australia, including his children, father, and stepmother (who are all Australian citizens), and brother and accepted that the Applicant's removal would cause hardship on his immediate family, as they would not be able to have physical contact with him.
(b)Of his immediate family members, only his father provided a statement in support of the Applicant in these proceedings.
(c)Whilst the Applicant has provided some small amounts of money to his children on various occasions, it does not appear that they presently rely on him for financial support. It is unclear whether the Applicant's removal would have a significant financial impact on his immediate family members.
(d)Outside his immediate family, the Applicant has extended family in Australia, including uncles and aunts, nieces and nephews, and cousins. The Minister accepted that the non-revocation of the original decision would have an adverse impact on the Applicant's extended family. Given the extended time that the Applicant has spent in prison and immigration detention, it is unclear whether he maintains a close relationship with all of his extended family.
(e)Further, it appeared that the Applicant maintained contact with members of his family via electronic means as his family lived in different parts of Australia, and whilst the removal of the Applicant would prevent him from having physical contact with members of his family in Australia, that does not prevent them from engaging in communications via electronic means or for members of his family to visit him.
(f)The Minister accepted that the Applicant has been employed in a number of jobs for various employers. However, it appears that his employment had not been consistent, particularly noting his periods of incarceration, and the extensiveness of his criminal conduct. The Applicant's contribution to the Australian community through employment is limited.
(g)The Minister accepted that considerable weight should be given to the fact that the Applicant has been ordinarily resident in Australia since their formative years, regardless of when their offending commenced.
(h)The Minister accepted that this primary consideration weighs in the Applicant's favour.
The Applicant does have immediate family members and considerable extended family members in Australia. In his personal circumstances form, provided as part of his representations to the Department on revoking the cancellation of the visa (see [3] above), the Applicant identified his father, step mother, one brother, the mothers of his two children, 11 uncles/aunties, eight nieces/nephews, 30 cousins and four grandparents as relatives living in Australia.[38] As noted by the Minister, the only member of the Applicant’s family who provided a statement in these proceedings is the Applicant’s father.[39] Neither that statement nor the Applicant’s father’s evidence at the hearing addressed the impact that a decision may have on him or any other members of the Applicant’s family.
[38] R1/212.
[39] A1/10.
Statements of support were also provided by three of the Applicant’s friends (Richard (a cousin), Ngokia and Jook).[40] Statements of support had also been provided, apparently for the prior Tribunal hearings, by friends of the Applicant (Baboth, Jook, Angasyo, Pingidi, Babajide, Richard),[41] the Applicant’s brother,[42] Ms C,[43] and the chairman of the Azande Community Association of Queensland.[44] While these statements evidence the Applicant having personal associations in Australia and being well thought of by members of the community, none made any comment on the impact that an adverse decision would have on those individuals.
[40] A2/6-13.
[41] R1/338-343.
[42] R1/353.
[43] R1/352.
[44] R1/362.
While there was evidence that the Applicant is making or has made some payments to support his older daughter, his evidence at the hearing was that he did not pay anything towards the support of his younger daughter.[45] Otherwise, there is no evidence that any members of the Australian community would be financially impacted if the cancellation of the Applicant’s visa were no to be revoked. However, I accept that members of the Applicant’s family, as well as the those who provided letters of support, would be likely to be emotionally impacted by such a decision.
[45] Transcript at 72.
The Minister accepted that the Applicant has contributed to the community through his employment, accepted that considerable weight should be given to the fact that the Applicant has been ordinarily resident in Australia during and since his formative years and accepted that this primary consideration weighs in the Applicant's favour. I agree that that is the case. Because the Applicant’s ties do not appear to be particularly extensive and because of the paucity of evidence as to the impact that an adverse decision would have on members of the community, including the Applicant’s immediate family, only minor to moderate weight can be given to this consideration.
Fourth Primary Consideration: Best interests of minor children in Australia affected by the decision (para 8.4)
Paragraph 8.4 of Direction 99 provides:
(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.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant’s SFIC identified his two daughters aged 10 and seven as being relevant. He claims that he has “maintained a parental relationship with his children”.[46]
[46] Applicant’s SFIC para 49.
He says that the mother of his older daughter is committed to facilitating contact and a relationship between the Applicant and his daughter and that he does provide some ongoing financial support notwithstanding his incarceration and detention.
The Applicant says that he has developed a relationship with his younger daughter who he calls once a week. These contacts are through his parents in Brisbane who have regular visits from this daughter.
The Applicant says that if he were forced to return to South Sudan it would be very unlikely that he could maintain a relationship with his children.
The Applicant’s SFIC also referred to what he claims is a close relationship with his cousin and her children with whom he stays in touch. He says that before he was incarcerated, he would spend time with those children whenever he was in Brisbane and would babysit at that time.
In his statement dated 10 November 2023, the Applicant referred to his cousin and her three children whom, he said, he knows and is close to. These children are aged 19, nine and three. In that statement, the Applicant made the following statements about his two daughters:
Older daughter
(a)This daughter lives in Adelaide with her mother, but he is very involved in her life even though he has been detained for five years. He speaks to her on the phone weekly. This child’s mother facilitates the calls because she wants her to know who her father is.
(b)He does all that he can to support this child. Whenever he has any spare money, he sends it to her mother to buy something for her. The daughter has epilepsy and sometimes needs medicine or to go to the doctor.
(c)In detention he uses points earned for good behaviour to buy cigarettes which he then sells to other detainees and uses that money to send gifts to his older daughter and for doctor’s appointments and school materials.
(d)When he gets out, he will properly provide child support. He wants his daughters to have the medical care and other care they need. He is a hard worker and is determined to find a job and earn money so that he can ensure that his older daughter has a stable life.
(e)He was involved in all of the big decisions after this child was diagnosed with epilepsy. He counselled the child’s mother not to take her to South Sudan as it would not be safe.
(f)He loves her a lot and she means everything to him. He wants to do whatever he can to help and guide her as a teenager into becoming a woman.
Younger daughter
(g)He has an ongoing relationship with his younger daughter who is often cared for by his ex-partner’s parents, who are good friends of the Applicant’s parents whom they see frequently.
(h)The younger daughter visits the Applicant’s parents once a week with her grandparents. During these visits, the Applicant’s father will facetime a meeting with the Applicant for him to talk to his daughter. He sends her money.
(i)He wants her to come and stay with him and his parents sometime so that he can have a proper relationship with her.
The Minster’s SFIC made submissions relevant to this consideration to the following effect:
(a)The Applicant’s older daughter currently lives with and is cared for by her mother in South Australia and the younger daughter lives with and is cared for by her mother in Queensland.
(b)The three minor cousins (once removed) live in Queensland.
(c)The Minister accepts that the Applicant has previously had some connection with his children in Australia and that it is generally accepted that it is in a child's best interests for his or her parent to remain in Australia. In the circumstances of the present case, the impact of any non-revocation decision on the best interests of the Applicant's children is limited.
Younger daughter
(d)There is no evidence to suggest that the Applicant has a close relationship with his younger daughter. The Applicant has been in custody for more than five years since she was born and therefore has been physically absent for most of her life. That long period of absence precludes the Applicant from being able to establish a meaningful relationship with his younger daughter.
(e)In relation to the Applicant’s assertion that he speaks to his younger daughter once a week when she visits his parents, in the second Tribunal proceeding, the Applicant's father was asked how often he saw this child and his response was 'I’m quite busy, I don’t see her often. Like, I see her once in a long, long time'. The Applicant also gave evidence at that hearing that he spoke to the child through his father, and this occurred 'probably … once a week, or once in two weeks'.
(f)The younger daughter is currently in the custody of her mother who was the victim in the choke person render insensible offence and the Applicant has admitted to being violent towards her 'on a few occasions'.
(g)The choke person render insensible offence occurred in front of this child. The fact that the Applicant pushed the victim whilst she was holding their infant daughter on a flight of stairs also demonstrates his disregard for the safety of his daughter. It is in the best interest of this child not to be exposed to domestic violence.
(h)The Applicant has an extensive history of criminal conduct, aggressive behaviour (including violence in a family context against his intimate partner). There is a likelihood that the Applicant would reoffend. Such behaviour would have a negative impact on this child. This is not in the best interest of the child.
Older daughter
(i)The Applicant's relationship with her mother, Ms C, ended in 2014 and he moved to Canberra. The child was approximately one year of age at the time. The Applicant's in-person contact with the child had been limited, and there appears to have been no in-person contact since 2018.
(j)The nature and duration of the Applicant's relationship with this child is also limited.
(k)The child has remained in the care of her mother who has since re-partnered. The mother gave oral evidence at the first Tribunal hearing that she had been wholly responsible for making decisions in relation to this child.
(l)The Applicant claims that he provides ongoing financial support to this child despite being detained. The Applicant claimed that he sends $100 per fortnight to assist with medical appointments and school appointments etc., however, the Applicant has only provided corroborating evidence for approximately $475 in transfers to Ms C between 2019 and 2022.
(m)The Applicant's relationship with Ms C also appeared to be a difficult one, and Ms C gave evidence that the Applicant pushed her on one occasion. The Applicant's capacity to play a positive parental role is limited in light of the limited opportunities for the Applicant to be involved in this child's life.
(n)The Minister accepted that, if the Applicant is removed from Australia, the possibility that he would be able to have physical contact with his older daughter would be limited. However, given the fact that the Applicant has had limited physical contact with this child, and that he would be able to maintain communication with her via electronic means, the impact of the Applicant's removal from Australia is limited.
Applicant’s cousin’s children
(o)These children are under the care of their parents. Direction 99 requires less weight to be given in circumstances where the relationship is non-parental. A decision not to revoke the cancellation is unlikely to impact significantly on the interests of these children.

The Minister contended that the consideration of the best interests of the younger daughter weighs only to a very limited extent in favour of the Applicant in light of the family violence that he perpetrated on the child’s mother. The Minister accepted that the best interests of the older daughter and the Applicant's cousins weigh in the Applicant's favour, but only to a limited extent. Overall, according to the Minister, the interests of the minor children in Australia weigh marginally in the Applicant's favour.
It emerged at the hearing that the Applicant’s relationship with his younger daughter may be even more uncertain than it was at the time of his statutory declaration dated 10 November 2023 and the preparation of the SFICs. It appears that Ms E’s parents, the grandparents of the Applicant’s younger daughter, are now demanding a “dowry” of around two to three thousand dollars to allow the Applicant’s parents or the Applicant to see or talk to the younger daughter. According to the Applicant’s evidence at the hearing, this was a traditional or cultural matter.[47] The Applicant’s evidence at the hearing was that the younger daughter is now often in the care of her maternal grandparents and that the Applicant does not know where the child’s mother lives.[48]
[47] Transcript 24-25.
[48] Transcript at 72-73.
There is no arrangement between the Applicant and either of the mothers of his daughters relating to access to or the sharing of care for the daughters if the Applicant were to be released. At best, contact between the Applicant and his older daughter living in Adelaide would be ad hoc, as in effect, it was before the Applicant’s arrest. He was living in either Brisbane or Canberra and would “visit” his older daughter who lives with her mother in Adelaide.[49] There is no plan, or even apparent intent, that the Applicant would live with his older daughter who, it appears, is cared for adequately by her mother.[50]
[49] Transcript at 77.
[50] Transcript at 78-79.
Similarly, the Applicant does not intend living with his younger daughter but would again, once the “dowry” is sorted out, visit his younger daughter.
Considering the factors identified in para 8.4(4) of Direction 99:
(a)In relation to the Applicant’s two daughters, while the relationship is obviously a parental one, the Applicant has had only limited physical contact with these children for many years and has no contact with the mother of his younger daughter. The evidence suggests that the Applicant has provided only limited financial support to his older daughter only. It would, in my view, be fair to characterise the Applicant as having a limited relationship with his daughters and having played only a limited role in their lives. He lived with each of his daughters for only very limited periods when they were very young.
The role that the Applicant has played in the lives of his cousin’s children is even more limited. The relationship is obviously also not a parental one.
(b)The role that the Applicant is likely to play is, like the role that he has played in the past, limited. There is no evidence of any arrangements being in place with the mother of either of his daughters upon which an assessment of the role, if any, that the Applicant would be likely to play in his children’s lives could be assessed. I do, however, accept that the Applicant clearly loves his daughters and would do everything he can to ensure their welfare. This appears to be particularly strong in relation to his older daughter who faces medical challenges in the future.
On the evidence before me it is not possible to make any meaningful assessment of the likely role that the Applicant would play in the lives of his cousin’s children
(c)The impact of the Applicant’s prior conduct on his daughters, in particular his younger daughter, could not have been positive. The possible ameliorating factor would be that his daughter was an infant at the time of the assault. As it is highly unlikely that the Applicant will live with either of the mothers of his daughters, future conduct is unlikely to have any effect.
(d)The lack of physical contact with their father will likely have an impact on the Applicant’s daughters. As the Minister correctly pointed out, however, the Applicant’s physical contact with his daughters has been very limited for the majority of their lives and what relationship the Applicant has, has in effect been established through electronic connection. While obviously not ideal, there is no reason why (other than potentially inferior telecommunications coverage in South Sudan) that contact cannot be maintained through electronic means if the Applicant were to be deported.
(e)As far there was evidence, it appears that others presently fulfil the parental role for the Applicant’s children and his cousin’s children. While there does seem to be some question over the care provided to the Applicant’s younger daughter by her mother, it does seem that that child’s maternal grandparents are providing, or also providing, care for that child.
(f)There was no evidence as to the views of any of the relevant children.
(g)The Applicant’s younger daughter was exposed to the family violence perpetrated against her mother by the Applicant. My assessment that the Applicant is a low risk of reoffending, and the fact that it is extremely unlikely that the Applicant will live in a family setting with either of his daughters, means that the risk of either child being exposed to family violence perpetrated by the Applicant is very low.
(h)The issue of the psychological harm likely to have been caused by the Applicant’s family violence has been dealt with above.
I agree with the Minister’s assessment that the interests of minor children weigh in favour of the Applicant. However, I think that this consideration weighs more than marginally in favour of revocation of the cancellation of the Applicant’s visa as contended by the Minister. In the case of the Applicant’s daughters, in particular the Applicant’s older daughter who is facing enduring health issues, I consider that this consideration, the best interests of minor children, weighs moderately to heavily in favour of revocation of the cancellation of the Applicant’s visa.
Fifth primary consideration: Expectations of the Australian community (para 8.5)
Paragraph 8.5 of Direction 99 relevantly provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
...
(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;
...
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The Applicant’s SFIC made submissions to the following effect:
(a)Taking into account the other relevant countervailing considerations in Direction 99, especially the Applicant’s traumatic background, the strength nature and duration of ties, the best interests of children and the legal consequences, little relative weight should be given to the deemed community expectation.
(b)The Applicant cited FYBR v Minister for Home Affairs,[51] and Minister for Immigration, Citizenship and Multicultural Affairs v HSRN.[52]
(c)Even if the Tribunal finds that, prima facie, the Australian community would expect that a person should not hold a visa, that consideration is capable of being outweighed by countervailing considerations particular to the relevant to the case.
(d)This approach is consistent with the approach taken by the Tribunal in recent decisions applying Direction 99.[53]
(e)While the Applicant accepted that the deemed expectation of the Australian community weighs against the revocation of the cancellation of his visa, when regard is had to his traumatic background and other countervailing considerations, in particular the time he has spent in Australia on a permanent humanitarian visa (cl 5.2(4) and (5) of Direction 99) and the prospect of indefinite detention, the Tribunal should give little or no relative weight to this consideration in making its decision.
[51] (2019) 272 FCR 454.
[52] [2023] FCAFC 68.
[53] Citing JGNS and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3210 and Broom and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 2769.
The Minister’s SFIC made submission to the following effect:
(a)Decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.[54]
(b)In relation to the Applicant’s reference to HSRN, the Court was discussing the situation where a failure to pass the character test should, in itself, result in the visa being cancelled should be confined to particularly egregious types of cases set out in the then paragraph 8.4(2) (now replicated in paragraph 8.5(2)). The Court does not state that expectations within paragraph 8.5 generally only apply in such particularly egregious cases.
(c)The starting point for the Tribunal's consideration is that the Australian community would have an expectation that the Applicant's visa should remain cancelled. The Applicant has engaged in a number of very serious offences and domestic violence incidents against women, in particular, the choking rendering insensible offence. The Applicant has also engaged in offences against the police. Paragraph 8.5(2) of the Direction provides that non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In light of the extensive nature and seriousness of the Applicant's criminal offending and the likelihood that the Applicant will reoffend, the Minister contended that the Australian community's expectation is that he should not be permitted to remain in Australia.
(d)The Minister accepted that the Applicant has been in Australia since 2006 having arrived at 11 years of age. Paragraph 5.2(5) of Direction 99 provides that the Australian community would generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in Australia for most of their life.
[54] Citing FYBR.
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 para 8.5 of Direction 99, without independently assessing the community’s expectations in the particular case. The principles set out in para 5.2 of Direction 99, as set out in [26] above, are also relevant to this consideration.
In FYBR the Full Court of the Federal Court of Australia considered the operation of the corresponding provisions in Ministerial Direction No 65 (Direction 65), a predecessor to Direction 90 and Direction 99: see [24] above. The relevant provisions of Direction 99 contain generally similar wording to the corresponding provisions in Direction 65. Some provisions, in particular those dealing with the expectations of the Australian community (para 8.5(1)), were expanded by Direction 90 and subsequently incorporated into Direction 99.
In Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs I summarised the effect of the Full Court’s judgment in FYBR as follows:[55]
The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’ – expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Rehman). See also decisions of the Hon. John Pascoe AC CVO, Deputy President in Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [77]-[78].
[55] [2020] AATA 3953 at [156].
Justice Stewart in FYBR found at [89]-[91]:
It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.
(Emphasis omitted.)
In FYBR Justice Charlesworth observed at [75] and [79]:
Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
...
...The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
(Emphasis omitted.)
That “narrow view” found by Perry J at first instance in FYBR v Minister for Home Affairs,[56] approved by the Full Court in FYBR, is reflected in the amendments to the Ministerial Direction which resulted in the additions in para 8.4(1) of Direction 90 subsequently caried over into para 8.5(1) of Direction 99. Due to the application of the “norm”, as it is now referred to in para 8.5(1), and the deeming operation of the corresponding Direction as found by the Full Court in FYBR, this primary consideration weighs against the revocation of the cancellation of the person’s visa.
[56] [2019] FCA 500.
The operation of this provision was considered by the HSRN. While the Full Court in HSRN was considering Direction 90, the wording of the corresponding provisions in Direction 99 is the same. Relevantly, the Full Court found at [40] and [44]:
It is to be observed that s 499(2A) of the Act, as mentioned, provides that a person or body “must” comply with a direction given under s 499(1) – reference is expressly made to that requirement in para 5.1(4) of Direction No. 90. Also, the Direction provides that the decision-maker “must”, amongst other things, consider the expectations of the Australian Government as expressed in the Direction (para 5.2(4), 5.2(5) and 6 read with 8.4(4)), and that expression of the expectations applies as a “norm” (para 8.4(1)). In that context, “should” in para 8.4(4) is indicative of a requirement that must be followed; it is mandatory. That is because it would be inconsistent to read, for example, para 6 as being mandatory because of its use of the word “must”, with the result that the relevant consideration must be taken into account, but reading para 8.4(4) as merely offering guidance thereby permitting the decision-maker to arrive at its own view or assessment of what the expectations of the Australian community are. It is to be noted that one of the meanings of “should” is to convey duty or obligation rather than merely guidance: Oxford English Dictionary online version, “shall” (meaning no. 18.a). Reading “should” as indicating only guidance would also be inconsistent with what was held in FYBR, and the acceptance by the Court in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] that a failure to comply with the relevant Direction’s express requirements as to the conditions to be brought into account and the manner in which those considerations were to be weighed in deciding whether to revoke a visa cancellation would be jurisdictional.
...
Leaving aside whether the Tribunal can permissibly have independent regard to community expectations as assessed by it, which must be considered at least doubtful given the Direction’s express provisions with regard to that subject which can be expected to cover the field, the submission fails on the facts. That is because the Tribunal did not take account of its own assessment of community expectations “outside the prism of para 8.4(4)”. On the contrary, it made its own assessment of community expectations expressly within the context of its consideration of para 8.4. That is a clear error.

As I discussed with Ms Martyn at the hearing, a number of the Applicant’s submissions on this issue seemed to proceed on the basis that a finding in this application that non-refoulement obligations were owed would constitute a protection finding for the purposes of s 197C of the Act preventing a non-citizen from being removed. That is not the case. As noted in para 9.1.1(1) of Direction 99, “protection finding” is defined in s 197C of the Act which defines such a finding as arsing in the context of an application for a protection visa under s 36 of the Act. This is not such an application.
I do, however, agree with the Applicant’s contention that, even if I go down the path of having the issue of protection and non-refoulement obligations assessed through the purpose-designed process of a protection visa application, I should still give weight to the Applicant’s claims to fear harm if returned to the South Sudan and the consequences to his mental health if that were to happen. In that regard Professor Sundram’s evidence was that the was not aware of what specialist treatment or medication was available in South Sudan, however, if for whatever reason, that medication and treatment were to stop, there is “a high likelihood that he will become unwell again” and that that “relapse will be exacerbated by separation from his children and the psychological stressors he will experience in being forced to survive in a foreign country”.[63]
[63] A3/11 paras 42 and 43.
I do accept that, even if the Applicant were to make an application for a protection visa, until that application was resolved the Applicant would be subject to continued detention for a potentially extended period.
Accordingly, while I consider the appropriate course to be to defer the consideration of the Applicant’s non-refoulement claims to the more appropriate forum, namely a protection visa application as contemplated by para 9.1.2(2) of Direction 99, I find that weight should be given to this consideration.
The Applicant submitted that he will not make an application for a protection visa and that, accordingly, it is somehow incumbent on this Tribunal to determine the Applicant’s non-refoulement claims in these proceedings. I explored this proposition with Ms Martyn at the hearing. She said that the “real motivation” was that if the Applicant were to make an application for a protection visa, he “is going to be stuck in detention for quite” a while. That seems to be odd logic to me given that the only way that a “protection finding” for the purposes of s 197C of the Act that would prevent the Applicant’s removal under s 198 of the Act is in an application for protection visa under s 36 of the Act.
In the end whether the Applicant chooses to make an application for a protection visa based on the non-refoulement claims that he has made in these proceedings is a matter for him. However, para 9.1.2(2) of Direction 99 makes it clear that the option of deferring non-refoulement issues to an application for a protection visa arises “where it is open to the non-citizen to apply for a protection visa”. That is the case here.
I give weight to the non-refoulement related claims made by the Applicant, however, because at the end of the day they will (or should) be determined through the more appropriate process of a protection visa application, only minor to moderate weight should be given to this consideration. In doing so I recognise that if the Applicant were to make an application for a protection visa, he will face a further period of detention while the application is determined, and I am mindful of the fact that the Applicant has now been in immigration detention for over five years. Professor Sundram’s opinion was that the protracted and indeterminant detention and continued separation from his children will cause the Applicant “distress, frustration and anger” which will “continue to stymie a recovery and adversely impact his prognosis”.[64]
[64] A3/11.
Extent of impediments if removed (para 9.2)
Paragraph 9.2 of Direction 99 provides:
(1) Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
The Applicant’s SFIC made submissions to the following effect:
(a)The greatest impediment to the Applicant would be that he would face the real risk of persecution and significant harm.
(b)The Applicant left Sudan around the age of five before South Sudan became a country and has no contact with family overseas.
(c)The Applicant’s ability to subsist in dire humanitarian situation in Sudan will be exacerbated by his mental health issues.
(d)He would face significant cultural and societal barriers due to his lack of familiarity with, and connections in, South Sudan. He would struggle to find safe and permanent accommodation or other social, medical and economic support.
(e)Although he is young and of working age, there is a dire lack opportunities to make a livelihood and, as referred to above, would be at risk of forced recruitment.
The Minister’s SFIC made the following submissions:
(a)The Minister accepted that the Applicant would face cultural barriers and emotional hardship at first should he be returned to South Sudan and further accepted that country information in relation to South Sudan suggests that access to welfare and medical services (noting his mental health diagnosis) is limited and violence and civil unrest is common.
(b)However:
(i)the Applicant is relatively young at 30 years of age;
(ii)there is evidence to suggest that he and his father have family members in South Sudan;
(iii)the Applicant has knowledge of Zande (although he claims that he is not fluent), Arabic and English. Zande is a language spoken by the Zande people. English is the official language of South Sudan; and
(iv)the Applicant has transferable skills.
While the Minister accepted that it would be open to the Tribunal to find that this consideration weighs in favour of the Applicant, the Minister submitted that it does not weigh strongly in the Applicant’s favour noting the circumstances outlined in [123(b)] above.
The Minister is correct to concede that this consideration weighs in favour of the revocation of the cancellation of the Applicant’s visa. As noted by the Applicant, he left Sudan as a five-year-old, and while the Applicant can speak Zande and English, his understanding of the culture of South Sudan must be limited and dependent on what he has heard from his father and other Sudanese in Australia. He will have, in effect, no lived experience of the culture in South Sudan.
The Applicant’s evidence at the hearing was that he has no family living in South Sudan.[65] He said that the last relatives of whom he was aware, from discussions with his father, were his grandfather who was now dead and his grandmother but that he did not know anything about his grandmother because she had left when his father was young.[66] However, the Applicant’s father’s evidence was that his mother and father, who are both very old (around 80), still live in South Sudan. His evidence also was that his sister still lives in South Sudan, not far from his parents, and that he sends money to her for his parents.[67] He also has other siblings or people who he treats as siblings still living in South Sudan with whom he stays in touch. While not necessarily his biological brothers and sisters, these people are considered by him to be his “extended family”. His evidence was:[68]
To make it very clear, me, like, same father, same mother, we are only three. But some significant other is, like, the son of my elder brother, my – the son of my – these relatives, there are many.
[65] Transcript at 85.
[66] Transcript at 85.
[67] Transcript at 110.
[68] Transcript at 112.
The Applicant’s father’s evidence at the hearing as to family still living in South Sudan was not only contrary to the Applicant’s evidence in that regard, but contrary to his own statement (A1) wherein at para 22 he said “[the Applicant] has no family in South Sudan”). This inconsistency was pointed out to the Applicant’s father whose explanation was “Yes, there’s family there, but no one knows him. He was not born there”.[69] That statement is also questionable in that, while it may be technically correct that the Applicant was not born in South Sudan as South Sudan did not come into existence as a country until July 2011, he was born in Sudan part of which subsequently became South Sudan. Relevantly, however, it is clear that the Applicant does have family living in South Sudan. There is, however, no way of telling how much assistance could or would be provided by these extended family members in the Applicant establishing and maintaining basic living standards if he were to be returned to South Sudan.
[69] Transcript at 117.
I accept, as the Minister does, that the Applicant will face cultural barriers and emotional hardship if he is returned to South Sudan and that country information in relation to South Sudan suggests that access to welfare and medical services is limited and violence and civil unrest is common. I am particularly mindful of the Applicant’s mental state and Professor Sundram’s opinion that if the Applicant were returned to South Sudan and is unable to maintain his treatment regime, in particular his medication, the is a high likelihood that he will become unwell.[70] These would be impediments to the Applicant establishing and maintaining basic living standards.
[70] A3/11.
I find that this consideration weighs in favour of revocation of the cancellation of the Applicant’s visa and that moderate weight should be given to it.
Impact on victims and Impact on Australian business interests and Impact on Australian business interests
The Applicant made no submission on either of these considerations. The Minister contended that there was no evidence relevant to the consideration of the impact on victims and that the consideration of impact on Australian business interests, even applying Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs is neutral.[71] I agree.
[71] [2022] FCA 1311 at [68]-[71].
THE WEIGHING EXERCISE
Direction 99 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 99 sets out the way in which the relevant considerations are to be taken into account (see [28] above).
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under earlier Ministerial Directions issued under s 499 of the Act (see [24] above), the same considerations apply to the exercise required by Direction 99 which is materially in the same terms to those earlier Ministerial Directions. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection,[72] and the Full Court judgment in Minister for Home Affairs v HSKJ.[73] See also XRGY and Minister for Immigration, Citizenship, and Multicultural Affairs for analysis of those cases.[74]
[72] [2018] FCA 594.
[73] [2018] FCAFC 217; [2018] FCAFC 217; 266 FCR 591.
[74] [2023] AATA 755 at [182]- [183].
The Full Court of the Federal Court considered the operation of Direction 90 (relevantly materially the same as Direction 99) in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[75] At [35] the Full Court described the process as follows:
The balancing process is directed to determining whether there is “another reason” why the visa cancellation should be revoked. It requires an identification of the matters that may constitute “another reason” and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.
[75] [2023] FCAFC 138.
In criticising the Tribunal’s reasons, the Full Court at [38] found:
...They do not disclose that there was any process by which the Tribunal grappled with the competing considerations, each of which had been ascribed a different descriptor of weight and some of which had the status of being “primary” considerations and others not, in order to bring them to bear in forming a state of satisfaction as to whether there was “another reason” to revoke the cancellation. The statutory task is not fulfilled by ascribing a descriptor of weight, such as “strong”, “significant”, “considerable” or “moderate” (in favour of or against revocation) to the different considerations, primary and other, and then stating a conclusion as if that conclusion was made inevitable by the application of a mathematical formula.
And at [43]:
... the Tribunal recognised in paragraph [113] that it was required to weigh “all the Considerations” (emphasis added), and because it had expressly gone through the process of considering each of the “other considerations in turn”, as explained above, it cannot be concluded that the Tribunal failed to consider the “other considerations”. However, there is nothing in the concluding section of the Tribunal’s reasons, or indeed anywhere, which reveals any process of balancing and evaluation... Nor is there anything which demonstrates that in reaching its ultimate conclusion, the Tribunal brought to bear its assessment of the weight of the various “other considerations”. After summarising, and rephrasing, its earlier ascription of descriptors of weight to each of the primary considerations, the Tribunal then simply concluded in paragraphs [114] and [115] by use of the words “therefore” and “consequently” that the visa cancellation should not be revoked. Such a conclusion does not inevitably or necessarily follow from those unexplained, un-balanced and un-weighed descriptors of weight; it may be that such a conclusion is justified by what preceded it but it is not apparent that the Tribunal undertook the required process of evaluation in order to reach its decision. It is not even apparent that the Tribunal considered that the weight of all the primary considerations were compelling against revocation of the cancellation of the visa, since it placed “significant weight” on one of those considerations, the interests of minor children, as favouring revocation.
And at [44]:
...What it did, on the face of its reasons, is ascribe weight to the various considerations having considered each in isolation and then express a conclusion without demonstrating that it actually weighed the various considerations against each other and undertook a proper evaluation of whether there was indeed “another reason” why the cancellation should be revoked.
What I understand the Full Court to be saying is that giving a weight to each consideration by ascribing a particular quantitative or qualitative adjective and then stating a conclusion without explaining how the conclusion flows from or arises out of a described process of assessing the weight of each consideration against each other consideration, is not discharging the statutory function. Applying those principles to the case of the exercise of being “satisfied ... that there is another reason why the original decision should be revoked” (s 501CA(4)(b)(ii)), I take the Full Court to be directing the decision-maker to give appropriate weight to each relevant consideration, explain why such weight is given to the consideration and then, through a described, logical process, compare and balance all of the applicable considerations to determine whether there is another reason why the original decision should be revoked.
Following the above-described process, I have ascribed a weight to each of the relevant considerations under Direction 99 and explained the basis upon which I have assessed the weight to be given to each consideration. I now compare and balance the considerations to determine whether I am satisfied that there is another reason why the original decision should be revoked.
Applying the direction provided by the above cases, I find that the first primary consideration, the protection of the Australian community, weighs against revocation of the cancellation of the Applicant’s visa and moderate weight should be given to it (see [59] above).
The second primary consideration, family violence committed by the Applicant, weighs against the revocation of the cancellation of the Applicant’s visa and moderate weight should be given to this consideration (see [71] above).
The third primary consideration, the strength, nature and duration of the Applicant’s ties to Australia, weighs moderately in favour of revocation of the cancellation of the decision to cancel the Applicant’s visa (see [78] above).
The fourth primary consideration, the best interests of minor children in Australia affected by the decision, weighs moderately to heavily in favour of revocation of the cancellation of the Applicant’s visa (see [92] above).
I find that the fifth primary consideration, the expectations of the Australian community, weighs against revocation of the cancellation of the Applicant’s visa but that only moderate weight should be given to it (see [104] above).
In relation to the “other considerations” identified in para 9(1) of Direction 99, I find that the consideration of the legal consequences of the decision weighs in favour of revocation of the cancellation of the Applicant’s visa and that minor to moderate weight should be given to it (see [120] above).
The only other consideration relevant in the present case, the extent of impediments in the Applicant establishing and maintaining basic living standards, weighs in favour of revocation of the cancellation of the Applicant’s visa and I find that moderate weight should be given to this consideration (see [129] above).
I am mindful that para 7(2) of Direction 99 states that primary considerations should generally be given greater weight than the other considerations (see [28] above). Nothing has been presented which would indicate that that general principle should not apply in the present case. Having weighed the considerations in favour of revoking the decision to cancel that Applicant’s visa and those against revoking the decision to cancel the Applicant’s visa, I find that the considerations in favour of revoking the decision to cancel the Applicant’s visa outweigh those against revocation. In particular I find that the considerations of the strength, nature and duration of the Applicant’s ties to Australia, the best interests of minor children, the legal consequences of the decision and the impediments to the Applicant establishing and maintaining basic living standards if he were to be returned to South Sudan, outweigh those considerations weighing against the revocation of the cancellation of the visa. In making that comparison, I am influenced by my assessment that, while some of the Applicant’s offences have been serious, he is now a low risk of reoffending. Accordingly, I find that there is another reason why the original decision should be revoked and that the discretion to revoke the cancellation of the Applicant’s visa should be exercised.
DECISION

The decision of the delegate of the Minister dated 25 May 2020 under s 501CA(4) of the Act not to revoke the cancellation of the Applicant’s Global Special Humanitarian (XB-202) visa is set aside and substituted with the decision that the cancellation of the Applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Act.

I certify that the preceding 145 (one hundred and forty - five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

..[Sgd]......................................................
Associate
Dated: 27 March 2024

Date(s) of hearing: 23 February & 5 March 2024

Counsel for the Applicant: Ms Alison Martyn

Solicitors for the Applicant: Ms Emma Svehla

Counsel for the Respondent: Mr Greg Johnson

Solicitors for the Respondent: Mr Alexander Zhang
ANNEXURE
Table of offences

Date of conviction	Date of offence	Court	Offence	Result
12.10.2011	21.09.2011	Parramatta Children’s Court (NSW)	Fail to state name and address when directed	Guilty - dismissed with caution under s 33(1)(a)(i) of the Children (Criminal Proceedings) Act 1987
			In restricted area not make ticket available for inspection	Guilty - dismissed with caution under s 33(1)(a)(i) of the Children (Criminal Proceedings) Act 1987
			Smoke on train or in roofed area	Guilty - dismissed with caution under s 33(1)(a)(i) of the Children (Criminal Proceedings) Act 1987
30.05.2011	03.02.2021	Parramatta Children’s Court (NSW)	Not pay train fare and hold valid ticket	Guilty - dismissed with caution under s 33(1)(a)(i) of the Children (Criminal Proceedings) Act 1987
06.06.2012	30.04.2012	Penrith Local Court (NSW)	Fail to state name and address when directed	Fined $100.00
			Not pay train fare and hold valid ticket	Fined $100.00
			Wilfully use offensive language on train or public area	Fined $100.00
			Resist officer in execution of duty	Fined $300.00 plus court costs $81
29.08.2012	07.06.2012	Queanbeyan Children's Court (NSW)	Resist or hinder police officer in execution of duty	Guilty - dismissed under subparagraph 33(1)(a)(i) of the Children (Criminal Proceedings) Act 1987
29.08.2012	07.06.2012	Queanbeyan Children's Court (NSW)	Use offensive language in/near public place/school	Guilty - dismissed under subparagraph 33(1)(a)(i) of the Children (Criminal Proceedings) Act 1987
21.11.2012	26.09.2012	Parramatta Children’s Court (NSW)	Offence goods in personal custody suspected being stolen (not motor vehicle)	Fined $500.00
09.01.2012	15.12.2012	Ipswich Magistrates Court (Qld)	Contravene direction or requirement of police officer	Fined $900.00. Drivers licence suspended for 4 months
17/01/2013	06.07.2012	Blacktown Local Court (NSW)	Possession of prohibited drug	Fined $200.00 plus court costs $83 Drug to be destroyed
12.04.2013	21.01.2013	Richlands Magistrates Court (Qld)	Failure to leave premises under Liquor Act	Fined $300.00 No conviction recorded
08.02.2013	Failure to appear in accordance with undertaking	Richlands Magistrates Court (Qld)	Fined $300.00 No conviction recorded
16.05.2013	18.04.2013	Holland Park Magistrates Court (Qld)	Contravene direction or requirement of police officer	Fined $250.00 No conviction recorded
24.06.2013	01.06.2013	Holland Park Magistrates Court (Qld)	Possess dangerous drugs	Good behaviour period 4 months recognisance $250.00 Drug diversion No conviction recorded
30.07.2013	12.06.2013	Brisbane Magistrates Court (Qld)	Possess dangerous drugs	Fined $250.00
08.06.2013	Contravening direction or requirement of police officer	Brisbane Magistrates Court (Qld)	Fined $250.00
23.08.2013	24.06.2013	Holland Park Magistrates Court (Qld)	Re breach of order dated 24 June 2013	Recognisance of $250.00 forfeited
29.08.2013	24.06.2013	Holland Park Magistrates Court (Qld)	Re breach of order dated 24 June 2013	Re-sentenced 1 month imprisonment suspended for 3 months
22.06.2015	20.12.2013	Adelaide Magistrates Court (SA)	Fail to comply with bail agreement	Fined $100.00
	03.01.2014		Fail to comply with bail agreement	Fined $100.00
	20.06.2015		Stating false personal details	Fined $100.00
06.02.2017	02.08.2015	Queanbeyan Local Court (NSW)	Affray	Warrant issued for arrest under subsection 25(2) of the Crimes (Sentencing Procedure) Act 1999 (relating to absent offenders)
	21.01.2016		Fail to appear in accordance with bail acknowledgment (beach - non conviction)	Warrant issued for arrest under subsection 25(2) of the Crimes (Sentencing Procedure) Act 1999 (relating to absent offenders)
	14.01.2017		Use unregistered registrable class A motor vehicle on road	Fined $220
			Use class A vehicle with illegal number plate	Fined $440
			Use uninsured motor vehicle	Fined $220
			Licence expired less than 2 years before - first offence	Fined $660
12.07.2017	20.01.2017	ACT Magistrates Court (ACT)	Reckless threat to kill (2 counts)	For each count, 8 months' imprisonment to be suspended after 6 months subject to good behaviour obligations for a period of 12 months
			Common assault	Released on entering good behaviour bond - 12 months
			Possess prohibited substance (cannabis 50 g or less)	Fined $500.00
02.01.2018	05.01.2015	Richlands Magistrates Court (Qld)	Failing to appear in accordance with undertaking	Fined $750.00
02.01.2018	15.01.2015	Richlands Magistrates Court (Qld)	Failing to appear in accordance with undertaking	Fined $750.00
22.01.2018	20.05.2014	Brisbane Magistrates Court (Qld)	Enter premises and commit indictable offence	Failed to appear
	09.11.2014		Possession of dangerous drugs
			Nuisance licenced premises or in vicinity of licenced premises
			Possession of knife in public place or a school
	15.11.2014		Commit public nuisance
	15.11.2014		Assault or obstruct police officer
24.09.2018	05.01.2017	ACT Magistrates Court (ACT)	Common assault	2 months imprisonment
			Unlicensed driver / rider	Fined $300.00
			Number plate / rego not properly issued or issued for another vehicle	Fined $400.00
			Crash - not give particulars to other driver	Fined $200.00
	08.01.2017		Number plate / rego not properly issued or issued for another vehicle	Fined $300.00
	08.01.2017		Unlicensed driver / rider	Fined $400.00
	29.04.2018		Use of an unregistered/suspended vehicle	Fined $600.00
			Drive while right to drive suspended	Fined $400.00, disqualified from holding licence for 1 month
			Use uninsured vehicle	Fined $600.00
			Drive motor vehicle with alcohol in blood/breath (reading of .087 - Level 3)	Fined $500.00, disqualified from holding licence for 1 month
	14.05.2018		Unlicensed driver / rider	Fined $200.00
			Possess plate / document / device calculated to deceive	Fined $300.00
			Use unregistered / suspended vehicle	Fined $400.00
			Use uninsured vehicle	Fined $400.00
24.09.2017	12.07.2017	ACT Magistrates Court (ACT)	Re breach of his suspended sentence order 12 July 2017	Resentenced to 2 months imprisonment
12.12.2018	07.08.2018	ACT Magistrates Court (ACT)	Assault occasioning ABH	2 months imprisonment concurrent
	08.08.2018		Choke, suffocates, strangles another	6 months imprisonment concurrent
			Choke person render insensible	18 months imprisonment concurrent, non-parole period of 12 months
			Common assault	6 months imprisonment concurrent

Date(s) of hearing:	23 February & 5 March 2024
Counsel for the Applicant:	Ms Alison Martyn
Solicitors for the Applicant:	Ms Emma Svehla
Counsel for the Respondent:	Mr Greg Johnson
Solicitors for the Respondent:	Mr Alexander Zhang