Faanoi and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 2071

Faanoi and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2071 (20 June 2024)
Division:GENERAL DIVISION
File Number: 2021/4101
Re:Vaosa Faanoi
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date of decision: 20 June 2024
Date of written reasons: 25 June 2024
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made on 10 June 2021 by a delegate of the Respondent to not revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
...........................[SGD]...........................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – remittal - non-revocation of mandatory cancellation of a visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – where the Applicant has been in Australia since he was two – where the Applicant is yet to undertake rehabilitation – where factors against revocation outweigh factors in favour of revocation - Tribunal finding there is no another reason to revoke the mandatory cancellation decision - decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Bartlett v The Minister for Immigration and Boarder Protection [2017] AATA 1561
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairsv Thornton [2023] HCA 17
PNLB v Minister for Immigration and Border Protection [2017] AATA 1561
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Walker v Minister of Home Affairs [2020] FCA 909
Secondary Materials
Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
Table of contents
Introduction
Procedural history
Legislative framework
The Applicant’s offending: A summary
The Applicant’s evidence given at the instant hearing
Primary Consideration 1: Protection of the Australian community
Primary Consideration 2: Family violence
Primary Consideration 3: The strength, nature and duration of ties to Australia
Primary consideration 4: The best interests of minor children in Australia
Primary Consideration 5: Expectations of the Australian community
Other Considerations
Conclusion
Decision
Annexure A
REASONS FOR DECISION
Senior Member Theodore Tavoularis
25 June 2024
INTRODUCTION

Mr Vaosa Faanoi (‘the Applicant’) is a 24-year-old man, born in New Zealand on 5 February 2000. Since his initial arrival in Australia on 13 September 2002 as a two-year-old, the Applicant has never departed Australia.[1] This means the Applicant has resided here for 92 per cent of his life.
[1] R1, p 424.
PROCEDURAL HISTORY
The Applicant’s visa history in this country has transpired thus:
·16 March 2020: he was notified of the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (‘the Visa’) pursuant to section 501(3A) of the Migration Act 1958 (Cth) (‘the Act’);
·2 April 2020: the Applicant sought revocation of the immediately preceding mandatory cancellation decision;
·10 June 2021: a delegate of the Respondent decided, pursuant to section 501CA(4) of the Act, not to revoke the mandatory cancellation decision. For the purposes of these Reasons, I will refer to this non-revocation decision as the ‘Decision Under Review’;
·23 June 2021: the Applicant applied to this Tribunal seeking review of the immediately preceding non-revocation decision made pursuant to section 501CA(4) of the Act;
·24 August 2021: this Tribunal (differently constituted) conducted a hearing relating to a review of the Decision Under Review;
·8 September 2021: by its decision on this date, this Tribunal (differently constituted) affirmed the Decision Under Review; and
·19 July 2023: the Federal Court of Australia remitted this Tribunal’s decision made on 24 August 2021 and, further, directed this Tribunal to re-hear the Applicant’s application seeking to set aside the abovementioned Decision Under Review.
This proceeding thus comprises the second ventilation of this application before this Tribunal. The evidence ventilated at the first hearing may be taken into consideration for the present determination. This second ventilation is a hearing de novo or a hearing anew. The Tribunal’s task is, by definition, a stand-alone merits-based review of the totality of the evidence adduced at both the first ventilation in this Tribunal and now in this second one.
The instant hearing proceeded before me on a hybrid basis[2] on 25 March 2024 and 20 May 2024 (‘the Hearing’). At the commencement of the Hearing, the parties agreed that the Tribunal’s list of material should be consolidated into an agreed Exhibit List[3] which is attached to these Reasons and marked as ‘Annexure A’.
[2] That is to say, both representatives appeared before me in-person while the Applicant appeared by video.
[3] See generally, Transcript, p 2, lines 22-33.
This Hearing received oral evidence from only one witness comprising the Applicant. The Hearing was adjourned after the first hearing day to facilitate the receipt of oral evidence from an additional witness. It transpired that on the second Hearing day, that particular witness was not available to give evidence and the parties made their closing oral submissions at the end of which I reserved this matter for the preparation and publication of the within written reasons.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4 The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied the Applicant made the representations required by section 501CA(4)(a) of the Act. I am also satisfied this Tribunal has jurisdiction to review the non-revocation decision pursuant to s 500(1)(ba) of the Act.
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; and if not
(b)whether there is another reason to revoke the mandatory cancellation of the Applicant’s Visa.
Does the Applicant pass the character test?
The Applicant does not pass the character test as a matter of law.[4] On 26 August 2019, the Brisbane District Court sentenced him to three terms of imprisonment, respectively comprising head custodial terms of (1) two years and six months; (2) two years; and (3) six months.[5] This cumulative three year custodial period comfortably meets the respective threshold requirements appearing in section 501(6)(a) of the Act (‘substantial criminal record’) and section 501(7)(c) of the Act (‘sentenced to a term of imprisonment of 12 months or more’). Accordingly, the Applicant cannot rely on section 501CA(4)(b)(i) of the Act for the mandatory cancellation of his Visa to be revoked. The Applicant does not cavil with this finding.[6]
[4] Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].
[5] R1, p 37.
[6] Transcript, p 4, line 40.
Is there another reason to revoke the mandatory cancellation of the Applicant’s Visa?
In considering whether there is another reason to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No. 99 – visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 99’) has application.[7]
[7] Direction No 99 commenced on 3 March 2023. It replaces Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a

non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2Non-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.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6
Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the

non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(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; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
THE APPLICANT’S OFFENDING: A SUMMARY
The Applicant’s offending history appears in the material.[8] In sentencing terms that history runs from 9 October 2013 (when the Applicant was aged 13 years) and concludes on
[8] R1, pp 247-251.
11 December 2019 (when the Applicant was aged 19 years). In terms of the dates on which he committed his first and final offences, the offending history says that he committed his first offence on 6 October 2013 (when he was aged 13 years) and that he committed his final offence on 17 November 2019 (when he was aged 19 years).
Critical for present purposes is that the Applicant committed a significant number of his offences as a juvenile and committed the balance of his offences as an adult. This invites discussion about the extent to which this Tribunal can have regard to convictions imposed on him as a juvenile at the respective sentencing hearings commencing with the one on 9 October 2013 (when he was aged 13 years) and concluding with the sentencing hearing on 30 November 2017 (when he was aged 17 years). The resulting question is whether the High Court’s decision in Thornton[9] restricts this Tribunal’s capacity to have regard to the convictions imposed on the Applicant between 9 October 2013 and 30 November 2017.
[9] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairsv Thornton [2023] HCA 17.
In assessing the extent to which Thornton binds this Tribunal, it must be understood Thornton specifically stands for the proposition that section 184 of the Youth Justice Act 1992 (Qld) and section 12(3) of the Penalties and Sentences Act 1992 (Qld) engage the provisions of section 85ZR(2) of the Crimes Act 1914 (Cth) such that where an offence is committed by a person when they were a child, and no conviction is recorded despite a finding of guilt, that offence is not to be taken as a conviction for any purpose.
Out of an abundance of caution and pursuant to the authority of Thornton, I will not take into account the Applicant’s convictions imposed upon him commencing from 9 October 2013 up to and including 30 November 2017. In addition, my findings about the nature and seriousness of the Applicant’s offending should be read in light of the extent to which Thornton applies to his criminal history for present purposes. Both representatives agreed with this position and confirmed that this Tribunal can only take into account offending committed by the Applicant that was convicted at sentencing hearings commencing on 13 February 2018 (when the Applicant was 18 years of age) up to and including the sentencing hearing on 11 December 2019.[10]
[10] See generally, Transcript, p 34, lines 1-31.
The sentencing hearing on 13 February 2018 convicted the Applicant on two counts of stealing committed on 11 February 2018 when the Applicant was aged 18 years. The sentencing hearing on 11 December 2019 convicted the Applicant on one count of committing public nuisance committed on 17 November 2019 when the Applicant was aged 19 years.
Thus, taking into account the impact of Thornton on the Applicant’s offending history, the totality of his offending that can be taken into account for the instant determination looks like this:
·total offences committed (as an adult): 19;
·period of offending (in terms of sentencing episodes as an adult): 13 February 2018 until 11 December 2019;
·period of offending (in terms of dates when offences were committed as an adult): 11 February 2018 until 17 November 2019;
·total sentencing episodes: four, commencing on 13 February 2018 until 11 December 2019;
·sentencing modalities imposed:
oconviction recorded: probationary period of nine months;
oconviction recorded: sentenced to imprisonment: six months;
oconviction recorded: sentenced to imprisonment: two years;
oconviction recorded: sentenced to imprisonment: two years and six months;
ofor breach of order(s): conviction recorded, fined: $200, referred to SPER[11], order(s) revoked, resentenced for original offence(s), on all charges (with new offences), conviction recorded, not further punished; and
oconviction recorded, fined $350, time to pay: 28 days.
[11] Denoting ‘State Penalties Enforcement Registry (Qld)’.
In tabulated form, the Applicant’s non-Thornton-affected offending which he committed as an adult, can be expressed thus:

Date

Court

Offence

Outcome

13/02/2018

Brisbane Magistrates Court

·           stealing (x2).

Conviction recorded
Probation: 9 months

26/08/2019

Brisbane District Court

·           stealing;

·           unlawful use of a motor vehicle; and

·           fraud (x2).

Conviction recorded

Imprisonment: 6 months

26/08/2019

Brisbane District Court

·           burglary and commit indictable offence.

Conviction recorded

Imprisonment: 2 yrs

26/08/2019

Brisbane District Court

·           robbery armed/in company/wounded/used personal violence

Conviction recorded

Imprisonment: 2 yrs, 6 months[12]

10/09/2019

Brisbane Magistrates Court

·           breach of probation order;[13]

For breach probation order: conviction recorded;

Fined $200;

Refer to SPER;

Order(s) revoked; and

Re-sentenced for original offence(s).

·           breach of bail (x5);

·           commit public nuisance;

·           possess utensils or pipes etc for use;

·           failure to appear in accordance with undertaking; and

·           stealing.

On all charges (with new offences): conviction recorded; not further punished.

11/12/2019

Southport Magistrates Court

·           commit public nuisance.

Conviction recorded

Fined: $350.00

Time to pay: 28D

[12] Note to reader: each of these custodial terms imposed by the Brisbane District Court on 26 August 2019 were ordered to be served concurrently.
[13] Note to reader: imposed for the Applicant’s breach of the nine month probation order imposed by the Brisbane Magistrates Court on 13 February 2018 consequent upon two convictions for stealing.
THE APPLICANT’S EVIDENCE GIVEN AT THE INSTANT HEARING

Prior to the Applicant being duly affirmed and commencing his oral evidence, his representative raised a ‘preliminary thing’[14] regarding the extent to which a claimed cognitive impairment and how ‘all of that is going to impact on his ability to give evidence’[15]. My initial concern was the risk of the Applicant’s oral evidence possibly being tainted or otherwise the subject of a later finding that it was somehow capable of being impugned. Ultimately, this point went nowhere because the medical evidence did not support any such finding. It is worth quoting the relevant passage from the transcript in full:
‘MS LENTON: The only other preliminary thing I would mention is just to confirm that given the evidence that the applicant has a number of medical conditions - in particular a cognitive impairment that impacts his verbal reasoning, his memory, his ability to understand information and instructions, his verbal comprehension - all of that is going to impact on his ability to give evidence.
So I just wanted to just to ask the Senior Member and the respondent solicitor please to take that into account in relation to the type of nature of the questions asked. Specifically in relation to drawing the applicant’s attention to the written material. The applicant is not able to quickly or easily read material, and so that’s something to keep in mind. And the second thing is just in terms of how the questions might be posed, just to keep that in mind.
SENIOR MEMBER: All right. But there’s no suggestion, is there, about the applicant’s capacity to participate in the hearing or to understand what’s being put to him?
MS LENTON: No, the medical evidence would not support that, so.’[16]
[14] Transcript, p 3, line 17.
[15] Transcript, p 3, lines 21-22.
[16] Transcript, p 3, lines 17-35.

During his oral evidence-in-chief the Applicant confirmed he was 24 years of age and that he was born in New Zealand in February 2000. He recalled that he came to Australia in ‘…2003 or 4’[17] and that he came here with his mother. He further confirmed that he came to this country with his younger brother and that he has never left Australia since his initial arrival. He was asked to confirm the nature and extent of his relationships with his family. He confirmed: (1) that although he knew he had a mother, he had never met her; (2) that in terms of his younger brother, he does not have any regular contact with him and that the last time he had any contact with his younger brother was in 2016; and (3) that he did not know his biological father.
[17] Transcript, p 6, line 12.
In terms of extended family, the Applicant said:
‘MS LENTON: Do you have any other family?
APPLICANT: I’ve got my aunty and uncles in Logan.
MS LENTON: So when you say aunty or uncle, is that the brother or sister of your mother or father or a different relationship?
APPLICANT: It’s my mum’s first cousin.
MS LENTON: Do you have any contact with her?
APPLICANT: Yes. I talk to her kids. I haven’t talked to her (audio malfunction), but I talk to her kids, my cousins.’[18]
[18] Transcript, p 6, lines 42-45; p 7, lines 1-2.
He responded affirmatively when asked if he had any friends in Australia. In particular, he said he has ‘a lot’[19] of friends and that he is in contact with those friends ‘Every day’[20]. He spoke of having a ‘close friend’[21] about whom he spoke in these terms:
‘MS LENTON: Do you have the most - who’s your most close friend? The one you’re closest to?
APPLICANT: It’s my - basically (audio malfunction). He’s the closest I’ve - yes.
MS LENTON: Sorry, what was that?
APPLICANT: My cousin. He’s probably the closest, yes.
MS LENTON: What’s his name?
APPLICANT: His name is (indistinct).
MS LENTON: How old is he?
APPLICANT: He’s 25.’[22]
[19] Transcript, p 7, line 6.
[20] Transcript, p 7, line 8.
[21] Transcript, p 7, line 10.
[22] Transcript, p 7, lines 10-18.
The Applicant was then asked about his time in foster care in Australia. He said that he was placed into foster care ‘…as soon as I arrived in Australia’[23]. He is not aware of any specific reason behind his placement into foster care and thought it was probably due to his parents not being able to look after him and his sibling. He spoke of his life in foster care as ‘Challenging…Because I knew I wasn’t in a proper family’[24]. He told the instant Hearing that he had experienced something in the order of 10 foster care placements and that he had some of those placements with his brother, but not for all of them. He told the Hearing that in terms of being placed into foster care, both he and his brother were initially kept together ‘…when we first got here and then I think when I turned six years old, he would have been about three, that’s when we, yes, got split apart and then I got put into a different family and I would have visits here and there.’[25]
[23] Transcript, p 7, lines 23-24.
[24] Transcript, p 7, lines 30-32.
[25] Transcript, p 7, lines 42-45.
The Applicant thinks he may have been separated from his younger brother while they were in together in foster care because ‘…I think the foster carers at the time didn’t like me.’[26] Be that as it may, the Applicant told the Hearing before me that after they were separated, they would still see each other ‘Every week’[27] and that this weekly visitation arrangement continued for ‘A few years’[28]. The Applicant also spoke about his schooling and said the highset grade he attended was grade 9 and that during that school year he stopped going to school. He said he was aged 13 and the reason for him doing so was because ‘…I got expelled, and then after that just I didn’t want to go back to school. I just started getting into trouble.’[29] He said his foster carers tried to get him to go back to school ‘…but at that time I didn’t really listen’[30]
[26] Transcript, p 8, lines 1-2.
[27] Transcript, p 8, line 7.
[28] Transcript, p 8, line 9.
[29] Transcript, p 8, lines 16-18.
[30] Transcript, p 8, lines 22-23.
He was asked about whether he was suffering from any medical conditions and responded with the words ‘…ADHD[31] and post-traumatic stress[32]’. He was not aware of having any other psychological or physical maladies. He was then asked about his cognitive levels and the following transpired between him and his representative:
‘MS LENTON: Do you have difficulty in learning stuff?
APPLICANT: Yes.
MS LENTON: What kind of - why is learning difficult for you?
APPLICANT: I have a hard time focusing on stuff for like a period of time. Like, I can’t stand still and get real impatient learning things. I’m quick to give up on learning stuff.
MS LENTON: Do you ever have trouble remembering things?
APPLICANT: No.
MS LENTON: No trouble remembering things?
APPLICANT: No.’[33]
[31] Denoting ‘Attention Deficit Hyperactivity Disorder’.
[32] Denoting ‘Post-Traumatic Stress Disorder’ (‘PTSD’).
[33] Transcript, p 8, lines 31-39.
He was asked about whether he recalled attending any consultation with the psychologist, Dr Simone Baker in February 2022 but said that he did not recall attending any session with her. He was able to recall that he had once been prescribed medication for ADHD from the time he was first diagnosed up until 12 or 13 years of age. He said that he stopped taking that medication because ‘I didn’t really think I’d needed it anymore…..Just thought it wasn’t really helping me’[34]. Be that as it may, the Applicant said that if returned to the community he would try and obtain medical treatment for his ADHD and any other condition with which he may have been diagnosed.[35] The Applicant appeared to be oriented in terms of time and place. He knew, for example, that the instant proceeding was the result of the mandatory cancellation of his Visa and that this had occurred because of the extent of his criminal convictions in this country.
[34] Transcript, p 9, line 14; line 16.
[35] Transcript, p 10, lines 22-23.
The questions then focussed more on the Applicant’s offending and, in particular, why he started breaking the law. He responded with ‘Because I was young. I was just bored. And just people that I seen doing it and I just thought I needed to do it too. That’s why….At the time I thought it was cool.’[36] He now thinks that his commission of these offences was ‘Stupid’[37].
[36] Transcript, p 9, lines 30-35.
[37] Transcript, p 9, line 36.
He was asked about the likely orientation or trajectory of his life in the event of his return to the community. He said ‘I’m going to try my hardest to stay away from crime and all the people that will get me into trouble and just work’[38]. He spoke of having lined up employment as a removalist where he would be working with his cousin. He also spoke about residing with a ‘Family friend’[39] with a person he identified as ‘Clarence’[40]. This evidence was somewhat at loggerheads with his written statement in which he spoke about going to live with another friend whom he identified as ‘Saga Selsby’[41]. He said he tried to reconcile this aspect of his evidence by saying ‘I’ll probably stay with her [Saga Selsby] for a bit and then I’ll go back down to Logan because it’s closer to work.’[42] He spoke admirably of Ms Selsby and told the Hearing that ‘She helped me when I was on the street, and she took me into her home and her family’[43].
[38] Transcript, p 9, lines 38-40.
[39] Transcript, p 10, line 7.
[40] Transcript, p 10, line 11.
[41] Transcript, p 10, line 14.
[42] Transcript, p 10, lines 16-17.
[43] Transcript, p 10, lines 19-20.
He was adamant that he would not break the law if returned to the community. He said ‘I just feel like I’ve had enough of all this stuff now and I feel like I just need to grow up a bit - grow up now and stay away from all that stuff and become a better person.’[44] He was taken to the numerous incidents in which he has been involved during his time in immigration detention and did not appear to cavil with his conduct giving rise to the reported incidents.
[44] Transcript, p 10, lines 27-29.
He was then asked to explain the basis on which he says he is unlikely to reoffend, especially in the circumstances of his behaviour in immigration detention and he responded as follows:
‘MS LENTON: So why should the Tribunal member who is going to make the decision - why should they believe that you won’t reoffend again in the future since your behaviour in the [sic] immigration detention has not been very good?
APPLICANT: I don’t know. Honestly, I don’t know. I just feel like even though I’ve had incidents since I’ve been inside, I feel like for me I have changed a lot, and I’m not the person that I - sounds stupid, but I’m not the person that I was before I come into jail, and immigration centre too.
MS LENTON: How are you different?
APPLICANT: I feel like I’ve calmed down a lot, like – like I’ve – sorry, I don’t know how to answer this properly. I feel like I’ve become less aggressive. Despite all, like, what it says on there, I feel like I’ve become less aggressive and a more happier person, and I really want to change when I get out.’[45]
[45] Transcript, p 10, lines 35-47.
He was then asked to contemplate a scenario involving a compulsory return to New Zealand as a result of a possibility of him not being successful in the instant application. He was asked whether he knew anyone in New Zealand and he replied with ‘No…..I’ve got family members there but I don’t know them…’[46] He said that he did not remember New Zealand ‘at all’[47]. In terms of how he would be impacted as a result of a compelled removal and return to New Zealand, he said ‘I’d feel sad. I don’t know how I’d feel if I was to get sent back there. Yes, I’ve got nothing over there. I’ve got no one over there.’[48]
[46] Transcript, p 11, line 2 and 5-6.
[47] Transcript, p 11, line 8.
[48] Transcript, p 11, lines 11-12.
The Applicant was also cross-examined. The questions in cross-examination commenced with him being asked about some of his offending. In particular, he was taken to his conviction in February 2018 which involved the theft of alcohol from a bottle shop to which he returned for a second time later on the same day. Upon the second visit, the Applicant’s accomplice pulled a knife on the bottle shop attendant. He was specifically asked whether he knew that his accomplice had a knife and he responded with ‘No, I didn’t [know] at the time’.[49] He was invited to tell the Tribunal anything further about this incident and he said ‘I was being stupid that day. I didn’t really have a reason to do it’.[50]
[49] Transcript, p 11, lines 43-44.
[50] Transcript, p 11, lines 46-47.
He was then taken to the offence he committed in April 2018 which saw him convicted for armed robbery for which he received a head custodial term of two years and six months. The specific circumstances of the offending conduct were put to him which involved him unlawfully entering another person’s house through their balcony, taking their car keys, their purse and their credit card and then using the car keys to steal the person’s car. This was followed by him going to a petrol station and stealing some petrol and then using that credit card to purchase some groceries. This was followed by him going to a bottle shop with an accomplice who threatened the shop attendant with a knife as a result of which the Applicant and his accomplice stole some cash, cigarettes and alcohol.
He confirmed that he was able to recall the above circumstances of this offending conduct but denied having any knowledge that his accomplice was carrying a knife. Again, he was asked to explain his conduct to this Tribunal and he said ‘….I was just-no excuse for it, I was just being stupid, that’s all I can [sic] about that’[51].
[51] Transcript, p 12, lines 20-21.
The Applicant was then taken to a number of incidents in which he was involved during his time in prison. It suffices to say this ‘Violation History’ appearing in the material[52] contains references to some 36 recorded incidents during an incarceration period of 30 August 2017 to 12 June 2021. The Applicant readily conceded that during his time in prison he was involved in assaulting other prisoners, that he was aggressive towards prison officer, that he threatened those prison officers and that he damaged some prison equipment. He was asked to explain his conduct and, in particular, was asked to explain why he was becoming involved in fights with other prisoners:
‘MS ERVIN: We’ll start with the fights. Why were you getting into fights?
APPLICANT: I guess – I don’t know how to answer that, honestly. I guess, in prison it’s different. Sorry, I don’t understand how to answer that.
MS ERVIN: That’s okay. When you say that it’s different in prison, what’s different?
APPLICANT: In prison, if someone’s trying to fight you, you’ve got to defend yourself. I guess that’s what I was doing in those times.’
MS ERVIN: Okay. So each time you got into a fight in prison, it’s because someone else wanted to fight you, and so you felt the need to defend yourself?
APPLICANT: Yes.’[53]
[52] R1, pp 873-876.
[53] Transcript, p 12, lines 38-47.
He was then asked about his conduct involving him damaging prison equipment, specifically, a rowing machine. He recalled that incident and said he intentionally broke that rowing machine because ‘I was just having a bad day and I had an argument with the guard. And yes I just seen the rowing machine and just kicked it over. I took my anger out on it.’[54]
[54] Transcript, p 13, lines 5-7.
The Applicant was then taken to his conduct after being taken into immigration detention and he agreed that his behaviour in prison had been repeated in immigration detention. He was taken to an incident in May 2020 where he threatened detention staff and at which time he threatened to ‘bust up the joint’. He was asked to explain his aggression and said the following: ‘Just being in there, it just gets sometimes it gets hard for us and we get frustrated….I do get verbal aggressive…it’s just mainly words most times when I get angry. I do say stuff I don’t mean.’[55]
[55] Transcript, p 13, lines 15-20.
The Applicant agreed that much of his conduct is not limited to just verbally abusing others during his time in immigration detention. He agreed that in September 2022 he punched a microwave oven and that he also pushed and shoved detention officers and that he also broke some other detention equipment. He was taken to his purported explanation for this conduct in which he spoke of having had a bad night the night before and that he was also intoxicated at the relevant time. He said, by way of explanation for his conduct, ‘I was having a bad day and night. I shouldn’t have got intoxicated because it made things worse. I don’t really have any- I don’t have any excuses of my behaviour that night.’[56] As a result of this conduct, the Applicant was charged with common assault to which he pleaded guilty and received a sentence for three months.[57]
[56] Transcript, p 13, lines 36-38.
[57] See generally, Transcript, p 13, lines 44-46; See also R3, p 32. Note to reader: the ‘Check Results Report’ appearing in the material (R1, pp 31-35) is current to 26 February 2020. The material discloses that the Applicant did receive a further sentence of three months (R3, p 32) consequent upon this incident which occurred on 14 September 2022 (see R3, p 197). It is also notable that the Applicant committed this conduct just after a year following the first ventilation of this application in this Tribunal which occurred in August 2021.
After going back to prison to serve this three-month term, the Applicant returned to immigration detention. He agreed that after this assault incident, he was the subject of a ‘pat-down search’ as a result of which the detention officers found a syringe in his tobacco pouch. He agreed that the rules and regulations of the immigration detention centre forbade the possession of syringes in detention.
He was then taken to a further incident in March 2023 in immigration detention that involved him putting pressure on one of the catering staff of the detention centre to give him more food for his meal. Specifically, when one of the detention officers sought to intervene the Applicant became quite abusive and used profane language towards that officer. The Applicant was asked to explain his conduct and said ‘…I’m not sure. Just hungry that day. I was just hungry that day, and the guard got me frustrated, so I told him to back off’[58].
[58] Transcript, p 14, lines 25-27.
The Applicant was then taken to two incidents that occurred on 16 and 17 June 2023. These incidents involved detention centre officers observing him placing an item of contraband under a medication desk for the purposes of it being found by someone else. The Applicant’s vacuous explanation for this conduct was expressed in these terms:
‘MS ERVIN: These were the two times that the detention staff say you placed a contraband item under the medication desk so that someone else could find it. In your statement, you’ve described this by saying that there was a stick on the ground and you picked it up to put it back. Do you remember this incident?
APPLICANT: Yes.
MS ERVIN: Yes. Where did you think that the stick had come from?
APPLICANT: I seen it drop on the ground when I was getting my medication, and I seen it drop on the ground, so I picked it back up and just stuck it on there. I didn’t even pay attention to what was on there. I didn’t know there was, like, drugs on there, so yes.
MS ERVIN: So you picked it up and you stuck it to the underneath of the counter instead of putting it on the counter. Is that right?
APPLICANT: Yes.’[59]
[59] Transcript, p 14, lines 34-47.
The next incident to which the Applicant was taken occurred on 27 September 2023. While lunch was being served at the detention centre the Applicant became verbally abusive and threatening towards one of the detention officers which involved him saying ‘what the fuck do you want! I’ll fucken squash you cunt’[60] When an emergency response team was deployed to the incident, he called those people ‘Kiddy Fuckers Paedophiles’[61]. He was asked to explain this conduct and said it was ‘Because I got in a heated conversation with one of the guards…just because I had an extra piece of fruit, and he….walk out the door and he grabbed my hand, and he wouldn’t let me through the gate. So that’s why I got more heated, and more guards were called down. And yes, I got a bit verbal with them and a bit frustrated’[62].
[60] Transcript, p 15, line 22.
[61] Transcript, p 15, line 23.
[62] Transcript, p 15, lines 29-36.
The Applicant agreed that when he feels frustrated he has a tendency to become violent and this explains why after becoming angry towards the detention officers in the immediately preceding incident he punched a noticeboard.[63]
[63] See generally, Transcript, lines 38-43.
The cross-examination then moved towards whatever counselling and other supervisory or rehabilitative care the Applicant had undertaken. He recalled receiving some type of counselling from a Mr Tuifaasisina Leleisiuao (‘Tui’) in October 2016. The Applicant said ‘I learnt a lot of good things from Tui….Just culture-wise. How to reconnect with my cultural background….I was good with Tui. He is a good person.’[64] The Applicant stopped seeing Mr Tui in 2018 when the Applicant turned 18 because Mr Tui was only involved in counselling people under the age of 18. Mr Tui did not refer the Applicant on to any counsellor who counselled patients over the age of 18 years.
[64] Transcript, p 16, lines 7-11.
The Applicant was then taken to a document titled ‘Advice to Parole Board Report’ which was made on 14 January 2020.[65] In that report it is said that the Applicant’s abuse of illicit substances was directly related to his propensity for violent offending and that he had otherwise accepted that he required treatment for his substance abuse issues. Be that as it may, the Applicant told the Hearing that he had never received any such rehabilitation and that, further, during his time in immigration detention he did, on 3 August 2023, tell a Drug and Alcohol nurse as part of the preparation of a Drug and Alcohol health assessment that he ‘…does not want to engage with D&A team now. He is aware of self-referral process’[66]
[65] R1, pp 779-781.
[66] R3, p 20.

The Applicant told the Hearing that he did not now think he required any drug rehabilitation or similar therapy. He attributed this to the following explanation:
‘MS ERVIN: What made you think that you don’t need it anymore?
APPLICANT: Because since I’ve been in, I’ve stopped all that stuff. (Audio malfunction) since I was out last. There was one time in jail where I tested positive for – I think for morphine, but that was only one time and I haven’t done any of that stuff ever since.’[67]
[67] Transcript, p 17, lines 1-5.
He was challenged about this evidence in the circumstances of the incident in November 2022 when detention centre officers found a syringe in his tobacco pouch. The Applicant’s vacuous and obfuscatory response was concerning:
‘MS ERVIN: Okay. Then why did you have a syringe in your tobacco pouch?
APPLICANT: (Indistinct.). I don’t know how to explain that. I guess that was bad timing.
MS ERVIN: Sorry, did you say ‘bad timing’?
APPLICANT: Yes. I don’t know how to explain myself on that.
MS ERVIN: That’s all right. Take your time?
APPLICANT: I guess it was – I was holding it for someone, and that person wasn’t in the room at the time, and I didn’t want that person to get in trouble so I put it in my pouch.
MS ERVIN: Do you often do things like that?
APPLICANT: I beg your pardon, can you repeat that again?
MS ERVIN: Do you often look after other people’s syringes and those kinds of things for them?
APPLICANT: No. That was just that one time.
MS ERVIN: Why did you do it that time?
APPLICANT: Because they were coming to search our cells. So we had to – I didn’t want my friend to get in trouble.’[68]
[My emphasis]
[68] Transcript, p 17, lines 7-25.
The Applicant was then taken to an assessment[69] conducted by Dr Simone Baker[70] who examined the Applicant on 4 February 2022. The Applicant recalled meeting with Dr Baker and stated that he now thought he did need some help with his mental health ‘for my anger….mainly my anger, because that’s always been a problem for me growing up….so I think I need help with that the most.’[71] Be that as it may, the Applicant agreed that the IHMS[72] records contain at least six instances[73] where he had declined to attend an appointment relating to his mental health. He was specifically asked why he had repeatedly declined attendance or involvement in mental health appointments in circumstances where he now claims to need support for his mental health. The best response the Applicant could provide was ‘To be honest, I don’t really know. I don’t really have a good answer for that.’[74]
[69] A3, pp 5-36.
[70] Clinical Psychologist and Neuropsychologist.
[71] Transcript, p 17, lines 40-43.
[72] International Health and Medical Services.
[73] On 30 October 2023, 27 October 2023, 2 June 2023, 31 January 2023, 2 August 2022 and 21 March 2022.
[74] Transcript, p 18, lines 9-10.
The following further question was then put to the Applicant. His response was, again, vague and unconvincing:
‘MS ERVIN: Why should the Tribunal be confident that, if you are released into the Australian community, you will get the help that you need for your anger, given that you’ve been declining that help when it’s been available to you recently?
APPLICANT: I guess I just have to prove it, by doing everything that I say that I’m going to do. Yes.’[75]
[75] Transcript, p 18, lines 12-16.
The questions in cross-examination then moved into the realm of the Applicant’s family. In particular, he was taken to the Personal Circumstances Form (‘PCF’) [76] he completed when he was seeking to set aside the mandatory cancellation of his Visa. He was taken to specific people he had listed in that form and said the following:
[76] R1, pp 268-283.
·Mary-Jane Uluilakeba: this person is said to be the Applicant’s sister in the PCF.[77] He has accepted that this person was not his biological sister but that she is ‘someone that is like family’ to him. He said that he is still in contact with this person and that ‘I talk to her every day’[78];
[77] See R1, p 271 – bottom of the page.
[78] See generally, Transcript, p 19, lines 26-35.
·the PCF says Mary-Jane Uluilakeba has a son ‘Child S’ who is aged four years in respect of whom the Applicant claims to be his ‘uncle/godfather’[79]. The Applicant has never met this child in-person but says ‘I talk to him everyday on video chat’[80]. The Applicant told the Hearing that this child ‘….stays with the mum and the mum stays with her brother-her family now. So, yes, he stays with her/his family.’[81];
[79] R1, p 275.
[80] Transcript, p 19, lines 40-41.
[81] Transcript, p 19, lines 43-45.
·the Applicant was then asked about his claim that he has at least one cousin in Logan, South of Brisbane. He said that in fact he has ‘several cousins’[82]. He said that ‘I have got a lot of cousins’ and that he speaks to them ‘every day as well’[83]. He was then asked whether he is close to those cousins and he said ‘Yes, I am, yes’[84]. He said that in terms of their age, those cousins are ‘Around my age’[85] meaning that they are around their mid-20’s;
[82] Transcript, p 20, line 2.
[83] Transcript, p 20, lines 4 and 8.
[84] Transcript, p 20, line 6.
[85] Transcript, p 20, line 14.
·the Applicant was asked about his aunt in Logan and said ‘I speak to her every now and then, yes, but more-her children I talk to everyday.’;[86]
[86] Transcript, p 20, lines 10-11.
·the Applicant was then asked about his foster parents, namely, Mr and Mrs Bernard and Janice Cormick. He was asked whether he was still in contact with them and responded with ‘Janice passed away recently, but I talk to-I talk to Bernard McCormack [sic] every now and then, when I get the chance’[87];
[87] Transcript, p 20, lines 20-24.
·the Applicant was then asked about the further person he has described as an ‘aunty’ in his PCF, namely, Ms Saga Selsby. He confirmed that he is still quite close to Ms Selsby who has two children. He was asked whether he is close to Ms Selsby’s children and he said ‘Yes, I am….I haven’t spoken to them in a few weeks, but when I get the chance-because I was busy with work and that’[88]; and
[88] Transcript, p 20, lines 31-33.
·the Applicant was then taken to his claim about having lots of friends in Australia and said the following:
‘MS ERVIN: You said that you’ve got lots of friends in Australia too. Is that right?
APPLICANT: Yes.
MS ERVIN: Are you able to give any guess of kind of how many?
APPLICANT: I have a lot. Sorry.
MS ERVIN: Sure?
APPLICANT: There’s a lot.
MS ERVIN: How often do you speak to your friends?
APPLICANT: Most of them, probably – yes, basically – like, every – every chance I can get. So, yes, most days. Every day, basically. Not all of them at once, every day, but.
MS ERVIN: But you usually speak to someone each day. Is that what you mean?
APPLICANT: Yes. Yes, I keep in touch with them all the time.’[89]
[89] Transcript, p 20, lines 36-47.
The Applicant was then asked about what measures he would take to avoid negative peer groups and bad influences in the event of a return to the community and said the following:
‘MS ERVIN: You said this morning that one of the things that you’ll do if you stay in Australia is that you’ll make sure that you stay away from the people who would get you in trouble?
APPLICANT: Yes.
MS ERVIN: Who are the people who you think would get you in trouble?
APPLICANT: Not anyone in particular, it’s just – just Logan and – like, in general. Like, there’s always – there’s always people that are doing all sorts of things in the – in that area, you know. So just try and – just try and keep away from those sort of people, and just do me, and just try and better myself by staying out, and just work and keep busy, and try and prevent myself from going back into prison.’[90]
[90] Transcript, p 21, lines 1-11.
There followed some questions about proposed employment that the Applicant could undertake if returned to the community. His evidence changed slightly from what he said earlier in chief because he would not be returning to work as a furniture removalist. During cross-examination he said furniture removing ‘…that’s the old job.’[91] The particular work he would do now if returned to the community was removalist-type work but it involved delivering household appliances ‘Like, dishwashers and all of that stuff’[92]. He was then asked about the circumstances resulting in his ceasing work as a furniture removalist and said the following:
[91] Transcript, p 21, line 17.
[92] Transcript, p 28, line 18.
‘MS ERVIN: So with the old job when you were in furniture removal, you’ve said in your statement that you did that job for about a week, is that right?
APPLICANT: Yes.
MS ERVIN: And why did you stop?
APPLICANT: I’m not sure. I just - yes, I just didn’t cope well in being in that environment.
MS ERVIN: What was it about the environment? Sorry, what was it about that environment that made it hard for you to cope?
APPLICANT: Just being around a lot of people. Like, yes, and that - I don’t know how to explain that, yes.
MS ERVIN: And how would the job that your cousin has lined up be different from that?
APPLICANT: Because - well, I know this time it will keep me out of trouble and yes. I know if I work there I’ll stay out of trouble.
MS ERVIN: But it would still involve being around a lot of people, wouldn’t it?
APPLICANT: But people I know.’[93]
[My emphasis]
[93] Transcript, p 21, lines 19-34.
The Applicant was asked about the notation appearing in his PCF where he spoke about having ‘played sports in the community’[94]. He confirmed that he played rugby with the Browns Plains Bears for about a year and a half.[95] He was then asked about why he stopped playing rugby and he responded with ‘Started doing stupid stuff like crime and that. Yes.’[96]
[94] R1, p 280.
[95] See generally, Transcript, p 21, lines 43-46; p 22, line 1.
[96] Transcript, p 22, line 3.
Finally, the Applicant was asked about what steps he would take to try and obtain support and to otherwise put things in place to prevent him reoffending. His unconvincing and vacuous response was put in these terms:
‘MS ERVIN: If you stay in Australia and like you get your visa back and you go out into the community, what support - what steps will you take to try and get support or what things will you put in place to make sure that you don’t commit any further crimes?
APPLICANT: I guess I’ll just do whatever I need to do to - and just join any resources that I can to prevent me from doing that. Anger management and whatever else that can help me to stop all the bad things that I’ve been doing.
MS ERVIN: But you haven’t done anger management or things like that before, have you?
APPLICANT: When I was younger, yes.
MS ERVIN: You did it when you were younger. Did it help you when you were younger?
APPLICANT: To be honest it really didn’t when I was younger.
MS ERVIN: What makes you think that it would help you now?
APPLICANT: Because I know this time I really want to do it and I really - I think that I really need it.’[97]
[97] Transcript, p 22, lines 12-20.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to
keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by

non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(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.
I will consider each in turn.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Application of factors appearing at paragraph 8.1.1(1) of the Direction
Paragraph 8.1.1(1)(a): the chapeau to paragraph 8.1.1(1)(a) contains a list of three offending modalities that are viewed very seriously by the Australian Government and the Australian community. I have recounted conduct by this Applicant that was dealt with at the Brisbane District Court on 26 August 2019. This was the offending that saw the Applicant receive a head custodial term of two and a half years. This is clearly violent offending falling squarely within the auspices of paragraph 8.1.1(1)(a)(i) of the Direction. Accordingly, this finding very strongly militates in favour of a further finding that this Applicant’s offending[98] in this country has been of a ‘very serious’ nature.
[98] That is, the offending that is not Thornton -affected. See [14]-[20] of these Reasons.
Paragraph 8.1.1(1)(b): the chapeau to paragraph 8.1.1(1)(b) of the Direction lists four offending modalities that are considered ‘serious’ by the Australian Government and the Australian community. Two of those offending modalities do not apply to the instant facts. They are: (1) whether the Applicant has caused a person to enter into a forced marriage or being a party to such a marriage;[99] and (2) whether any conduct of the Applicant which in my opinion may ground a finding that he does not pass the character test.[100] I have already found that as a matter of law, the Applicant does not pass the character test. I am therefore not required to form any additional opinion about the Applicant’s conduct vis-à-vis the character test.
[99] Paragraph 8.1.1(1)(b)(i) of the Direction.
[100] Paragraph 8.1.1(1)(b)(iii) of the Direction.
However, the Applicant has committed offences falling within two of the offending modality auspices stipulated in paragraph 8.1.1(1)(b) of the Direction. First, as noted earlier, the Applicant was convicted of common assault (committed in or about September 2022) against two detention centre officers for which he received a three-month custodial term. He served that three-month term in prison and returned to immigration detention in or about May 2023. To my mind, the assault committed against the detention officials falls within the auspices of paragraph 8.1.1(1)(b)(ii) of the Direction. This is because the conduct was perpetrated against ‘…government representatives or officials…in the performance of their duties’. Accordingly, this finding strongly militates in favour of a further offending that the totality of the Applicant’s unlawful conduct in this country has been, at the very least, ‘serious’, more likely ‘very serious’.
Second, the Applicant’s abovementioned conduct towards the immigration detention officers resulted in a conviction for common assault. This constitutes ‘…a crime while [the Applicant] was in immigration detention…’. As such this conduct falls within the auspices of paragraph 8.1.1(1)(1)(b)(iv) of the Direction and this strongly militates in favour of a further offending that the totality of the Applicant’s unlawful conduct in this country has been, at the very least, ‘serious’, more likely ‘very serious’.
I mindful that in my discussion around paragraphs 8.1.1(1)(b)(ii) and (iv), I have applied the Applicant’s abovementioned conduct against immigration detention officers which resulted in a conviction for common assault and a three-month custodial term. Be that as it may, I am satisfied that pursuant to the High Court authority of Ismail[101] it is not ‘repetitious weighing’ or ‘double counting’ to apply this conduct to the separate purposes of paragraphs 8.1.1(1)(b)(ii) and (iv) of the Direction. For present purposes I am satisfied that the Applicant’s abovementioned violent conduct against the detention officers can be separately referred to for the purposes of (1) ascertaining whether the conduct constituted a crime against a specific class of persons defined in paragraph 8.1.1(1)(b)(ii) and (2) ascertaining whether the Applicant can be safely found to have committed a crime while in immigration detention pursuant to paragraph 8.1.1(1)(b)(iv).
[101] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2.
Paragraph 8.1.1(1)(c): in applying this particular paragraph, I am precluded from taking into account sentences imposed on this Applicant for:
(i)any violent offending he may have committed against women and children;[102]
(ii)acts of family violence;[103] and
(iii)any sentence(s) he may have received relating to conduct whereby he caused a person to enter into (or became a party to) a forced marriage.[104]
[102] Paragraph 8.1.1(1)(a)(ii) of the Direction.
[103] Paragraph 8.1.1(1)(a)(iii) of the Direction.
[104] Paragraph 8.1.1(1)(b)(i) of the Direction.
None of the Applicant’s offending committed as an adult falls within any of the abovementioned three modalities of offending. This means regard can be had to all 19 of his offences committed as an adult that were dealt with at four separate sentencing episodes commencing on 13 February 2018 and concluding on 11 December 2019. The sentencing modalities imposed on this Applicant for his offending as an adult have comprised (1) the imposition of a period of probation; (2) multiple (i.e. three) custodial terms of imprisonment; and (3) the imposition of two fines. It is well established that the imposition of a custodial term represents a judicial sentencing officer’s last resort in the hierarchy of sentencing options available to him/her. The imposition of a custodial term should be viewed as a reflection of the objective seriousness of the offending involved.[105]
[105] PNLB v Minister for Immigration and Border Protection [2017] AATA 1561 at [43].

Notably for present purposes, this Applicant has an adult offending history that runs for less than two years. Yet during that period his offending has been of such a level of seriousness that it has attracted a cumulative period of head custodial time of five years. I am satisfied that the sentences imposed on this Applicant for his non-precluded offending most certainly militate in favour of a finding that his offending has been ‘very serious’.
Out of an abundance of caution, I have not referred to the Applicant’s abovementioned sentence of three months for the common assault conviction resulting from his conduct towards immigration detention officers. As mentioned earlier, the ‘Check Results Search’ before the Tribunal dates from 26 February 2020.[106] The Applicant’s violent conduct against the immigration detention officers occurred in September 2022. If anything, this conduct would only serve to augment my finding around this paragraph 8.1.1(1)(c) because it would increase the totality of head custodial time imposed on him for his offending as an adult from five years to five years and three months.
[106] R1, pp 31-35.
Paragraph 8.1.1(1)(d): this paragraph poses two questions. First, has the Applicant’s offending been frequent? I have found that the period of the Applicant’s offending (as an adult) – in terms of when offences were committed – ran from 11 February 2018 to 17 November 2019. If we look at this period on the basis of sentencing episodes dealing with that offending, we are talking about a period of running from 13 February 2018 until 11 December 2019. Either way, his offending history (as an adult) runs for just short of two years. The commission of 19 offences in a circa 20 month period is plainly frequent offending. It is offending committed at the rate of one offence per month.
The second question posed by this paragraph is whether there is a detectable trend of increasing seriousness across the history of the Applicant’s offending? His first offences as an adult resulted in two convictions for stealing. This arose from the abovementioned conduct involving the Applicant entering a bottle shop and the Applicant’s accomplice pulling a knife on the bottle shop attendant. This is plainly very serious offending which, less than two months later, was followed by his abovementioned conduct that saw him convicted for armed robbery resulting in a conviction of two and a half years. There followed some convictions for less serious offending in the form of relatively minor drug offending and breaches of previously made orders in the form of probation and bail. Be that as it may, I will not find that these later convictions do not, in any way, point to a decreasing level of seriousness in the nature of the offending. I am comfortably satisfied that this Applicant’s offending (as an adult) was very serious at its commencement and remained so throughout its duration.
I am therefore satisfied that the first component of this sub-paragraph 8.1.1(1)(d) is satisfied because of my finding that the Applicant’s offending has been frequent. I have also found that his pattern of offending as an adult does not display a trend of increasing seriousness because it has been very serious from its outset. Accordingly, this paragraph 8.1.1(1)(d) very strongly militates in favour of a finding that the nature of his offending has been ‘very serious’.
Paragraph 8.1.1(1)(e): this paragraph looks for any cumulative effect(s) resulting from the Applicant’s repeated offending. To my mind, there are at least four cumulative effects resulting from the Applicant’s pattern of offending as an adult:
·no deterrent effect: while I cannot take his juvenile offending into account, one cannot ignore the reality that favourable and non-custodial terms were imposed on the Applicant for his offending as a juvenile. One would have thought he may taken some kind of deterrent message from those sentences into his life as an adult. But not so. As an adult, his first two convictions resulted in the imposition of a non-custodial probation period of nine months. Yet his next series of convictions committed well inside a few months from his first two convictions, attracted cumulative head custodial time of five years. I am well-satisfied that this Applicant has not experienced virtually any deterrent effect from the sentences imposed on him and that this constitutes a cumulative effect of his repeated offending;
·no respect for lawful authority: the Applicant agitates for a Visa to facilitate his return to the Australian community. Our community is governed and regulated by laws, rules and consequential requirements which must be duly met by its populace. Two such requirements imposed on the Applicant during his adult offending history were (1) a requirement to meet the terms of a grant of bail and (2) a requirement to meet the terms of a probation order imposed upon him for a period of nine months consequent upon his first two convictions as an adult. In short order, it can be safely found that as an adult, the Applicant has breached bail on five occasions, that he has failed to appear in accordance with an undertaking on one occasion, and that he has breached the terms of the abovementioned nine-month probation order imposed upon him for his first two convictions as an adult. I am satisfied that this Applicant has not developed any modicum of respect for the lawful authority governing the Australian community into which he now seeks re-admission and that this constitutes a cumulative effect of his repeated offending;
·lack of respect for the personal rights of others: the Applicant has referred to having unresolved issues in the management and control of his anger. His default reaction when presented with a difficulty giving rise to a feeling of frustration is to very often impose a physical outcome against the person he perceives as creating that difficulty. That difficulty can be in the form of an immigration detention officer directing him to do or refrain from doing something or a retail store attendant/shop assistant having responsibility for the sale of goods from that given retail outlet. In either scenario if such a person gets in the way of the Applicant, that person has been on the receiving end of very seriously violent conduct by this Applicant. I am satisfied that the Applicant does not have a sufficient level of respect for the personal rights of others and that this constitutes a cumulative effect of his repeated offending; and
·lack of respect for the property rights of others: people in the Australian community overwhelmingly work very hard to acquire their property. As a result, a member of our community has the right to enjoy whatever item of property they have lawfully acquired. Any person outside the milieu of ownership of another person’s property has absolutely no right to interfere with the lawful owner’s right to use and enjoy that property. This Applicant does not understand that demarcation. Whether it be a microwave oven in a detention facility, or another person’s motor vehicle, or another person’s money or credit card or a retail outlet’s stock which it must sell for profit in order for the business to survive, none of these scenarios have resonated with the Applicant in the sense of pointing out to him the inherent illegality of unlawfully taking or otherwise wilfully damaging property belonging to another. I am satisfied that the Applicant does not respect the property rights of others and that this constitutes a cumulative effect of his repeated offending.
I am comfortably satisfied that the four abovementioned cumulative effects of the Applicant’s offending cause this paragraph 8.1.1(1)(e) to very strongly militate in favour of a finding that this Applicant’s offending in Australia has been ‘very serious’.
Paragraph 8.1.1(1)(f): this particular paragraph looks for evidence about whether a non-citizen has provided false or misleading information to the Respondent’s Department. As mentioned earlier, this Applicant came here as a two-year-old and has never departed Australia. He has therefore never been required to complete any incoming passenger card or equivalent document upon re-entry into Australia. I am not aware of the material containing any other reference to this Applicant providing false or misleading information to the Respondent’s Department. This sub-paragraph can be put to one side and rendered neutral for present purposes.
Paragraph 8.1.1(1)(g): the material is silent about the provision of any formal written warning to the Applicant about the consequences of him further offending in term of his migration status to remain here. This sub-paragraph is not propounded by the Respondent against the Applicant. It should be put to one side and rendered neutral for present purposes.
Paragraph 8.1.1(1)(h): the Applicant came here from New Zealand as a two-year-old. He was thus too young to commit any offences in New Zealand prior to coming here. This sub-paragraph should be put to one side and rendered neutral for present purposes.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction to the evidence. The relevant paragraphs applicable to the instant facts safely lead me to the conclusion (and finding) that the totality of this Applicant’s unlawful conduct in this country can be readily characterised as ‘very serious’. I so find.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
I have reviewed the 19 offences committed by the Applicant which are non-Thornton affected and which I can take into account for present purposes. To my mind, the totality of that offending can be categorised into the following offending modalities:
·offences against property involving:
ostealing;
ounlawful use of a motor-vehicle;
oburglary; and
orobbery whilst armed.
·offending against the person involving:
othe use of ‘personal violence’ when committing a robbery; and
oviolent conduct while in immigration detention resulting in receiving a custodial sentence of three months.
·offences of dishonesty involving:
ofraudulently using the credit card of another for his own benefit; and
odishonestly making off without paying.
·administrative-type offending involving:
oat least five breaches of bail; and
oone breach of a probation order;
·offending against public order involving two convictions for ‘commit public nuisance’.
As noted by the Respondent, the Tribunal is (1) entitled to have regard to damage resulting from the Applicant’s past offending when assessing the nature of harm to individuals or the Australian community in the event of him reoffending; and (2) is not limited to only looking at past harm in assessing the nature of any future harm. [107]
[107] R2, p 14 [35]-[36], citing Minister for Home Affairs v Stowers [2020] FCA 407, [58]; BSJ16 v Minister for Immigration & Border Protection [2016] FCA 1181, [68].
Administrative-type offending: the Applicant’s abovementioned breaches of lawfully made instruments compelling him to do or refrain from doing something points to a demonstrated lack of respect for the lawful authority governing the Australian community back into which he now seeks admission. That conduct has consumed the community’s law enforcement and judicial sentencing resources in having to address conduct that would not otherwise require remediation if he complied with instruments such as a bail order and a probation order in the first place.
Offending against public order: the community is entitled to enjoy publicly available amenities without gratuitously disruptive conduct depriving them of that enjoyment. The Applicant’s two convictions for ‘commit public nuisance’ have deprived the community of their enjoyment of such amenities and, in turn, this conduct has again consumed the community’s law enforcement and judicial sentencing resources for the purposes of its remediation.
Dishonest offending: the Applicant fraudulently used the credit card of another person for his own personal benefit. He also exited a retail outlet and took goods for his own use without paying for those goods. This offending deprives both individuals and businesses of property to which they are lawfully entitled and, without question, results in measurable financial harm to those categories of victims.
Offending against property: members of the community are entitled to the quiet use and enjoyment of property they have lawfully acquired. Unlawfully depriving those property owners of the use of their property strikes at the heart of one of the fundamental freedoms of our society. People are entitled to individually own-via having undisputed lawful title to-specific chattels and other items of property. Conduct amounting to the wanton deprivation of such items from those lawful owners clearly results in measurable financial harm to them. This harm is exacerbated by the psychological trauma resulting from the commission of such property offending when it is allied to threats of physical harm to victims.
Offending against the person: not only is the infliction of personal violence an abhorrence, it can also existentially threaten the wellbeing and overall safety of a victim. At one end of the scale, we have the Applicant’s mostly stupid and petulant conduct in immigration detention that saw him placed into criminal custody in late-2022. At the other end of the scale there is the Applicant’s use of ‘personal violence’ when he committed his robbery offending. All too often, one hears of catastrophic outcomes resulting from an initially threatened use of violence to induce a desired outcome in the course of a robbery.
Having regard to the nature of the non-Thornton offending conduct I can take into account for present purposes, I am satisfied that in the event of recommission of this type of offending, I have categorised in the preceding paragraphs, the nature of the harm it would cumulatively represent to either individual and/or business-type victims and the Australian community more generally would range from (1) undue consumption of the community’s law enforcement and judicial sentencing resources; (2) interference with the community’s right to enjoy its public amenities; (3) measurably material/financial harm; (4) psychological harm; (5) actual physical harm; and (6) quite conceivably, catastrophic harm. I so find.
I will also find, pursuant to paragraph 8.1.2(1) of the Direction, that the harm resulting from the Applicant’s recommission of offending convicted as (1) ‘stealing’; (2) ‘fraud’; (3) ‘burglary’ ; and (4) ‘robbery while armed/in company/wounded/used personal violence’ is so serious that any risk of its recommission would be unacceptable to the Australian community.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s evidence
It will be recalled that during the Applicant’s evidence-in-chief, he could not recall attending any consultation with the psychologist, Dr Simone Baker in February 2022. He could recall that he once was on medication for ADHD from the time he was first diagnosed with until his very early teen years but that he unilaterally ceased that medication because ‘….I didn’t really think I’d needed it anymore…Just thought it wasn’t really helping me.’
His explanation about why he started breaking the law he attributed to the result of him being (1) ‘young’; (2) ‘just bored’; (3) led by negative peers; and (4) thinking that such conduct was ‘cool’. His best evidence about how he would avoid a recidivist return to the community was to say ‘I’m going to try my hardest to stay away from crime and all the people that will get me into trouble and just work.’ The evidence is likewise confused and muddled about where the Applicant would reside in the community. He spoke of residing with a family friend identified as ‘Clarence’ yet elsewhere in his evidence he spoke of going to reside with Ms Selsby.
His evidence about remaining law-abiding in the community rose no higher than him saying (1) that ‘I have had enough of all this stuff now’; (2) ‘I feel like I just need to grow up a bit’; and (3) ‘stay away from all that stuff and become a better person’. He was specifically asked why this Tribunal should now accept his will be a non-recidivist future in the community and he responded with ‘I don’t know. Honestly, I don’t know’ and ‘I feel like….I have changed a lot, and I am not the person….that I was before I come [sic] to jail, and immigration centre too’. He was asked how he is now different to what he was during the time of his offending and he said ‘….I don’t know how to answer this properly’.
During cross-examination he was taken to specific incidents in his offending history and had mostly vacuous responses. For example, he was taken to the conduct where his accomplice pulled a knife on a bottle shop attendant and by way of explanation of that conduct, he told the instant Hearing ‘I was being stupid that day. I didn’t really have a reason to do it.’ He had a similar and unhelpful response when asked to explain his abovementioned conduct in April 2018 involving the unlawful entry into a victim’s house followed by his attendance at a petrol station resulting in multiple convictions. He said there was ‘…no excuse for it, I was just being stupid, that’s all I can [sic] about that’.
His evidence around his violent offending was similarly deficient. He was asked to explain why he became involved in physical altercations with other prisoners while he was in a strictly controlled jail environment in May 2021 and he said ‘In prison if someone’s trying to fight you, you’ve got to defend yourself. I guess that’s what I was doing in those times’. The obvious corollary to that question is the very real possibility that someone may seek a physical altercation with the Applicant in the community. The answer he gave about his life in prison does not suggest he would react differently if confronted with a similar challenge upon a return to the uncontrolled environment of the general community.

The commission of these offences (falling within the auspices of sub-paragraph 8.5(2)(c)) means that the Australian community expects the Australian Government can and should refuse to set aside the mandatory cancellation of his Visa.
The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4), (5) and (6) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;
(b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[176]
(c)Australia will generally afford a higher level of tolerance towards criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age;[177]
(d)the community’s level of tolerance will rise based on the length of time a non-citizen has spent in this country and, in particular, whether their formative years were spent here;[178]
(e)the nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen;[179] and
(f)if a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f)(inclusive) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[180]
[176] Paragraph 5.2(4) of the Direction.
[177] Paragraph 5.2(5) of the Direction.
[178] Paragraph 5.2(5) of the Direction.
[179] Paragraph 5.2(6) of the Direction.
[180] Paragraph 5.2(6) of the Direction.
In relation to sub-paragraph (a) of the immediately preceding paragraph [173], the term ‘limited stay visa’ is not defined in the Act. The Applicant in this case held a Class TY Subclass 444 Special Category (Temporary) visa until it was mandatorily cancelled on
[181] R1, pp 260-267.
[182] Regulation 444.511 of the Migration Regulations 1994 (Cth).
[183] Walker v Minister of Home Affairs [2020] FCA 909 at [29].
16 March 2020.[181] This Visa permits a citizen of New Zealand to remain in Australia indefinitely.[182] As the Visa permitted the Applicant to remain in Australia without any limit on the duration of his stay, the Visa held by the Applicant cannot be classified as a limited stay visa.[183] Therefore, this sub-paragraph (a) is not applicable to the Applicant.
In relation to sub-paragraph (b) of the abovementioned paragraph [173], the Applicant has spent about the last 22 years in Australia since arriving here as a two-year-old in 2002. He has spent 92 per cent of his life in this country and is currently aged 24 years. He has a minimal work history in Australia. He has not fathered any children in Australia and is not otherwise involved in the care of a stepchild/ren in Australia. Whatever participation in, and contribution to, the Australian community he may have made during his time here can be safely found to have been ‘short’. Therefore, the Australian community’s tolerance is lowered by this part of the principles in 5.2(4) of the Direction.
In relation to sub-paragraph(c) of the abovementioned paragraph [173], I repeat that the Applicant has, since his arrival in 2002, spent about 22 years or 92 per cent of his life in Australia and that he has spent his formative years here. He is currently 24 years of age and has spent over nine-tenths of his life in this country. This means the Australian community has a higher than usual tolerance of criminal or other serious conduct by this Applicant.
In relation to sub-paragraph (d) of the abovementioned paragraph [173] I am of the view that the length of time the Applicant has spent here (i.e. 22 years since his arrival in 2002) facilitates a raising of the community’s level of tolerance for his offending. This finding can be augmented due to him having spent his formative years in this country.
In relation to sub-paragraph (e) of the abovementioned paragraph [173], I am not of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing his criminal offending of the same type and magnitude already committed and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the sheer scope and extent of his offending and its resulting harm thus far has been of such a serious magnitude as to dispel any applicable countervailing considerations.
In relation to sub-paragraph (f) of the abovementioned paragraph [173], I have found that at least one mode of conviction in the Applicant’s criminal history is captured by sub-paragraph 8.5(2)(c) of the Direction. Given that finding, even strong countervailing considerations in his favour may not assist the Applicant. Therefore, my finding must be that the nature of his offending effectively precludes any countervailing considerations working in his favour.
Having regard to the above discussion around sub-paragraphs (a)–(f) (inclusive) referenced in paragraph [173] of these Reasons, I am of the view that the Australian community’s expectations are not modified such that the community does not have a higher than usual tolerance of criminal conduct by the Applicant. Because of the very serious nature of the Applicant’s offending convicted between 13 February 2018 and 11 December 2019, this Primary Consideration 5 compels a finding that the community expects the Australian Government can and should refuse to set aside the mandatory cancellation of the Applicant’s Visa. I so find.
Conclusion: Primary Consideration 5
Primary Consideration 5 confers a heavy level of weight in favour of this Tribunal affirming the Decision Under Review.
OTHER CONSIDERATIONS
Other Considerations (a): Legal consequences of the decision; (c): Impact on victims and (d): Impact on Australian business interests
Neither SFIC propounds any application of the abovementioned three Other Considerations (a), (c) and (d) to the instant facts.[184] This position did not change during closing submissions at the instant Hearing before me.[185]
[184] See A2, pp 19-20 [89]- [94]. See also, R2, p 21 [75], p 23 [83] and [85].
[185] Transcript, p 44, lines 38-46; p 47, lines 1-2; 13-14.
I will find that the totality of the evidence before the Tribunal does not otherwise compel ventilation or analysis of any of the three abovementioned Other Considerations (a), (c) and (d) of the Direction. I will put these Other Considerations to one side and allocate neutral weight to each of them.
Other Consideration (b): Extent of impediments if removed
The evidence around impediments
In his oral evidence to the instant Hearing, the Applicant was asked about whether he knew anyone in New Zealand with whom he could make contact in the event of his removal to that country consequent upon an adverse decision in the instant proceeding. He responded with a definitive ‘No’[186]. He was asked whether he has any family or friends in New Zealand and he said ‘I have got family members there, but I don’t know them’[187]. In response to the question of whether he remembered anyone at all in New Zealand, the Applicant said ‘No. Not at all.’[188] Finally, he was asked to describe the impact he would experience in the event he was compulsorily removed to New Zealand. He responded with ‘I’d feel sad. I don’t know how I’d feel if I was to get sent back there. Yes. I have got nothing over there. I have got no one over there.’[189]
[186] Transcript, p 11, line 2.
[187] Transcript, p 11, lines 5-6.
[188] Transcript, p 11, line 8.
[189] Transcript, p 11, lines 11-12.
In the SFIC filed on his behalf, there are two primary impediments propounded against his removal to New Zealand. They are said to be (1) his ‘significant psychiatric conditions and cognitive impairments…’[190]; and (2) his ‘…lack of connection to New Zealand’.[191] In his most recent statement before the Tribunal,[192] the Applicant contemplates what would occur in the event of his compulsory removal to New Zealand. He says:
‘42. I don’t have[sic] know what to do if that happens. I don’t have plans. I’ve got no one I know over there. I don’t have anyone to give me accommodation or financial support.
…..
43. I would be affected big time if my visa stays cancelled. I would be very upset. My life in Australia is all I know. I grew up here. I don’t know New Zealand. There’s nothing for me over there. Australia is where I grew up, went to school, where my friends and family are. I think my life would be over.’[193]
[190] A2, p 20 [95](a).
[191] A2, p 20 [95](b).
[192] A1.
[193] A1, pp 4-5 [42]-[43].
In its SFIC, the Respondent ‘….acknowledges that the Applicant does not presently have a relationship to New Zealand or its people.’[194] There is a further acknowledgement that ‘…the Applicant is likely to face emotional hardship if removed to New Zealand.’[195] The Respondent’s SFIC concludes with the words that ‘Overall, the Respondent acknowledges that the impediments the Applicant may face if returned to New Zealand weigh in favour of revocation, but contends that this consideration is outweighed by Primary Considerations 1 and 5.’[196]
[194] R2, p 22 [78].
[195] R2, p 22 [79].
[196] R2, p 22 [81].
In her earlier statement made on 6 August 2021, Ms Selsby says the following in terms of impacts the Applicant would experience if removed to New Zealand:
‘7. If [the Applicant] was to be deported from my knowledge he has no one in NZ. He is not connected to any family nor does he know of any family that live in NZ.
8. …..If he was to be deported he would once again be alone with no support, no connection, no family, no place to live.’[197]
[197] R1, p 56 [7]-[8].
Ms Selsby’s evidence carries a similar tone in the more recent of her statements before the Tribunal.[198] There, she says removing the Applicant to New Zealand:
‘14. ….would amount to sending him to a foreign country where he will be homeless, which will send him right back into a cycle of reoffending. He has nothing in New Zealand. He has no financial support, no accommodation, no blood relations, no family members. He would be alone, and he would be separated from the few support systems (me and my family) that he has. ’[199]
[198] A4.
[199] A4, p 2 [14].
Factors to be taken into account
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Paragraph 9.2(1)(a): In his PCF the Applicant ticked the ‘No’ box in response to the question: Do you have any diagnosed medical or psychological conditions?[200] He did not cite the name of any medication he may have been taking for any condition. Nor did he cite the name of any clinician under whose care he may have been for the management and treatment of any symptoms. It can, I think, be safely found that at 24 years-of-age, the Applicant is a young man in robustly good physical health. As best as I understood the evidence there is no physical health impediment to the Applicant’s return and resettlement in New Zealand.
[200] R1, p 280.
The definitive evidence about his mental health issues is to be found in the opinion of Dr Simone Baker dated 25 February 2022. In that report, Dr Baker opines thus:
‘Opinion Regarding Psychological Functioning
Regarding [the Applicant]’s current clinical psychological functioning, according to self-report, history, presentation, and responses to psychometric and neuropsychological tests, he DOES currently appear to meet clinical criteria for a Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) diagnoses:
• Major Depressive Disorder – Recurrent - Moderate, (296.32).
• Attention Deficit Hyperactivity Disorder – Combined Presentation (314.01).
• Reactive Attachment Disorder.’[201]
[201] A3, p 25.
Clearly, these diagnosed conditions are the subject of a relatively recent clinical examination and report (i.e. February 2022) by Dr Baker. As is the case with the Respondent, this Tribunal accepts that the Applicant does suffer from the mental health issues as diagnosed by Dr Baker. It will be recalled that Dr Baker stipulates a quite particular regime of treatment for the Applicant to follow.[202] New Zealand is a country with standards of publicly available healthcare that are comparable to what is available to the Applicant in Australia. As a citizen of New Zealand the Applicant will be able to access that generally available healthcare to the same extent as is generally available to other citizens of that country. The impediment referrable to the Applicant’s mental health issues is to be found in (1) the Applicant’s (perhaps) lack of familiarity with New Zealand’s public healthcare system and (2) whatever difference in comparable levels of that healthcare between Australia and New Zealand. Therefore, only the Applicant’s state of mental health can now be found to represent any form of impediment to his return and resettlement in New Zealand.
[202] See paragraph [120] of these Reasons and, in particular, the third dot point of that paragraph.
Paragraph 9.2(1)(b): the evidence is not suggestive of any substantial language or cultural barriers impeding the Applicant’s re-settlement in New Zealand. True it maybe that he has spent something like 92 percent of his life in Australia and that he has never left Australia since arriving here as a two-year-old. He has remained in Australia on a constant basis since first arriving here in 2002. This Tribunal (differently constituted) has previously noted: ‘New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand.’[203] This is my view (and finding) as well. There are no substantial language or cultural barriers impeding the Applicant’s return and resettlement in New Zealand.
[203] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301, [101].
Paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and/or economic support available to the Applicant in New Zealand. There seems little to cavil with the proposition-rightly conceded by the Respondent-that the Applicant will likely suffer emotional and sentimental difficulties if removed to New Zealand.[204] There is little to be said against the proposition that at least an initial period of isolation and resultant loneliness will confront the Applicant if compelled to return to a country for the first time in 22 years. As against that, there is the Applicant’s evidence at the instant Hearing where he spoke of having family in New Zealand but not actually either knowing them or being known to them. It follows that this absence of social support and contacts will impede the Applicant’s return and resettlement in New Zealand.
[204] R2, p 22 [78].
The Applicant has an unconvincing and insubstantial history of remunerative employment in Australia. It is difficult to ascertain precisely (or even generally) what type of work he could do if returned to New Zealand. He is a physically well man and it is logical to assume he could readily find employment, as for example, a builder’s labourer or, in terms of less physically arduous work, as a retail assistant in the hospitality sector. The evidence before me says his most recent means of financial sustenance has been via government social security-type payments. Ms Selsby says the Applicant previously received a disability pension.[205] Dr Baker opines that the Applicant’s intellectual disability should be regarded as a ’…permanent impairment with no likely improvement predicted across the lifespan.’[206]
[205] A4, p 2 [12].
[206] A3, p 29.
It is thus probable that the Applicant would qualify for similar government benefits in New Zealand to which he would be entitled as a citizen of that country. Therefore, it would not be safe to find that the Applicant faces any fatal economic impediment to his return and resettlement in New Zealand. To the extent this maybe any impediment, I am certainly of the view that it is not an insurmountable one. I have already referred to the similarity between publicly available medical health facilities in Australia and New Zealand. To the extent the Applicant may face such any type of medical impediment in New Zealand, I am not of the view that such an impediment is insurmountable.
Findings about impediments
My findings about impediments are as follows:
·the Applicant’s age and state of physical health are not impediments to his return and resettlement in New Zealand;
·his mental health conditions do represent an impediment to his return and resettlement in that country but that is conditioned by the two factors I have identified at [192] of these Reasons;
·there are no substantial language or cultural barriers impeding the Applicant’s return and resettlement in New Zealand;
·the Applicant is likely to experience an impediment in the form of social isolation and loneliness if returned to New Zealand. Therefore, the lack of social support available to him in that country is an impediment to his return and resettlement there;
·he is not likely to experience any economic impediment upon a return to New Zealand because (1) he could do the same remunerative work there as he could do here and (2) he would most likely qualify for the same type of government benefits there as he would here. I am of the view that this economic impediment is not insurmountable and is one of a short - term nature; and
·he is not likely to experience any significant medical (i.e. physical health) impediment upon a return to New Zealand and, to the extent he may, I am not of the view that such an impediment is insurmountable.
Given my findings about each of the three sub-paragraphs to this paragraph 9.2 of the Direction, I am of the view that this Other Consideration (b) confers, at best, a strong, but not determinative, level of weight in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.
Other Consideration (e): raised by the Applicant
The starting point for considering a further consideration raised by a party is paragraph 9.1 of the Direction which relevantly provides that in making a decision under section 501CA(4) of the Act, a decision maker is not limited to the considerations prescribed by the Direction. In the instant proceeding, the Applicant’s SFIC raises a further consideration under a heading comprising ‘Compassionate and compelling circumstances affecting The Applicant.’[207] These circumstances are said to derive from two factors:
·‘key deficiencies in the care provided by Child Safety, which has resulted in significant suffering and instability for the Applicant, in the context of his care of the Queensland government’;[208] and
·‘a failure on behalf of the State of Queensland to apply for the Applicant to be granted Australian citizenship at a young age, before he commenced offending’.[209]
[207] A2, p 4.
[208] A2, p 4 [22].
[209] A2, p 10 [43].

Dr Baker notes that:
‘The Office of the Public Guardian (OPG) and the Queensland Ombudsman have both identified significant deficiencies in the care provided to [the Applicant] under the long-term guardianship order, including:
(a)failure to progress [the Applicant]’s permanent residency and citizenship applications within a timely fashion,
(b)failure to maintain family relationships and connection to culture,
(c)failure to maintain safe and stable placement, and
(d)lack of access to therapeutic supports.’[210]
[210] A3, p 8.
In response to a specific question put to her about the impact of the above items on the Applicant’s propensity to offend, Dr Baker opined that the Applicant’s ‘…significant and longstanding childhood experience of neglect and abuse has directly impacted and contributed to his current disabilities and offending behaviour.’[211] Be that as it may, this specific component of Dr Baker’s opinion must be read in conjunction with her abovementioned stipulated regime of treatment necessary for the Applicant to undertake in order to effectively deal with and manage factors predisposing him towards unlawful behaviour.
[211] A3, p 34.
While this Other Consideration (e) may attract a certain measure of weight in favour of the Applicant, that weight is not sufficient to displace the very heavy weight I have allocated (on an overall basis) to Primary Consideration 1. This is because although the Applicant’s circumstances in foster care have been sad and unfortunate and may have well have contributed to predispositive factors behind his offending, he has nevertheless failed to engage with any rehabilitative process which may have gone a long way towards management and control of those predispositive factors. That failure to engage with rehabilitation and its consequential impact on the Applicant’s recidivist risk profile has significantly contributed to the very heavy weight I have allocated to Primary Consideration 1. Perhaps more to the point, it cannot now be said that the Applicant’s adverse experiences in foster care have given rise to his demonstrated attitude of indifference and disengagement towards rehabilitation.
Therefore, on the one hand, strong weight should be allocated to this Other Consideration (e) raised by the Applicant. But on the other hand, this weight must be tempered (as being non - determinative) by the reality that (1) a defined rehabilitative journey has been proposed by Dr Baker and that (2) the Applicant is yet to embark on such journey and, (3) indeed, has a demonstrated history of indifference and a lack of commitment towards rehabilitation. Overall, I will allocate a strong but not determinative level of weight to this Other Consideration (e) in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.
Findings: Other Considerations
The allocation of weight to the Other Considerations in the present matter can be summarised as follows:
(a)legal consequences of the decision: is of neutral weight;
(b)extent of impediments if removed: is of strong, but not determinative, weight in favour of revocation;
(c)impact on victims: is of neutral weight;
(d)impact on Australian business interests: is of neutral weight; and
(e)the further other consideration raised by the Applicant is of strong, but not determinative, weight in favour of revocation.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied there is another reason, pursuant to the Direction, to revoke the cancellation decision. As noted (and found) previously in these Reasons, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the power afforded by s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s Visa, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: carries a very heavy level of weight in favour of affirming the Decision Under Review;
·Primary Consideration 2: is of neutral weight;
·Primary Consideration 3: is of a moderately strong weight in favour of setting aside the Decision Under Review;
·Primary Consideration 4: is of very moderate weight in favour of setting aside the Decision Under Review;
·Primary Consideration 5: carries a heavy weight in favour of affirming the Decision Under Review.
I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined respective weights I have allocated to Primary Considerations 3 and 4 plus Other Considerations (b) and (e) are outweighed by the combined respective weights I have allocated to Primary Considerations 1 and 5.
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding there is not another reason to revoke the mandatory cancellation of the Applicant’s Visa.
The Tribunal is appreciative of the support and assistance afforded to it by the parties’ representatives. In particular, the Tribunal respectfully notes and commends the pro-bono basis upon which the Applicant’s solicitor conducted the matter on behalf of the Applicant.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made on 10 June 2021 by a delegate of the Respondent to not revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

I certify that the preceding 210 (two hundred and ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

..............[SGD].................
Associate
Dated: 25 June 2024

Dates of hearing: 25 March 2024 and 20 May 2024

Solicitor for the Applicant: Ms Victoria Lenton (Principal Solicitor)

Lenton Migration Law & Consultancy

Solicitor for the Respondent: Ms Kate Ervin (Senior Associate)

Clayton Utz Lawyers
ANNEXURE A

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

RESPONDENT SUBMISSIONS

R1

Remittal bundle

Various

12 January 2024

R2

Statement of Facts, Issues and Contentions

20 February 2024

20 February 2024

R3

Bundle of detention records

Various

20 February 2024

APPLICANT SUBMISSIONS

A1

Applicant’s statement

Undated

20 March 2024

A2

Statement of Facts, Issues and Contentions

30 January 2024

30 January 2024

A3

Bundle of additional material

Various

30 January 2024

A4

[Unsigned] Statutory declaration by Sandra Selsby

Undated

20 March 2024

Date	Court	Offence	Outcome
13/02/2018	Brisbane Magistrates Court	· stealing (x2).	Conviction recorded Probation: 9 months
26/08/2019	Brisbane District Court	· stealing; · unlawful use of a motor vehicle; and · fraud (x2).	Conviction recorded Imprisonment: 6 months
26/08/2019	Brisbane District Court	· burglary and commit indictable offence.	Conviction recorded Imprisonment: 2 yrs
26/08/2019	Brisbane District Court	· robbery armed/in company/wounded/used personal violence	Conviction recorded Imprisonment: 2 yrs, 6 months[12]
10/09/2019	Brisbane Magistrates Court	· breach of probation order;[13]	For breach probation order: conviction recorded; Fined $200; Refer to SPER; Order(s) revoked; and Re-sentenced for original offence(s).
10/09/2019	Brisbane Magistrates Court	· breach of bail (x5); · commit public nuisance; · possess utensils or pipes etc for use; · failure to appear in accordance with undertaking; and · stealing.	On all charges (with new offences): conviction recorded; not further punished.
11/12/2019	Southport Magistrates Court	· commit public nuisance.	Conviction recorded Fined: $350.00 Time to pay: 28D

Dates of hearing:	25 March 2024 and 20 May 2024
Solicitor for the Applicant:	Ms Victoria Lenton (Principal Solicitor)
Lenton Migration Law & Consultancy
Solicitor for the Respondent:	Ms Kate Ervin (Senior Associate)
Clayton Utz Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
RESPONDENT SUBMISSIONS
R1	Remittal bundle	Various	12 January 2024
R2	Statement of Facts, Issues and Contentions	20 February 2024	20 February 2024
R3	Bundle of detention records	Various	20 February 2024
APPLICANT SUBMISSIONS
A1	Applicant’s statement	Undated	20 March 2024
A2	Statement of Facts, Issues and Contentions	30 January 2024	30 January 2024
A3	Bundle of additional material	Various	30 January 2024
A4	[Unsigned] Statutory declaration by Sandra Selsby	Undated	20 March 2024