Fear and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 3958

Fear and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3958 (22 November 2023)
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2023/6468

GENERAL DIVISION )
Re: Michael Scott Fear
Applicant

And: Minister for Immigration, Citizenship and Multicultural Affairs
Respondent
DIRECTION
TRIBUNAL:  Member W Frost
DATE OF CORRIGENDUM:            29 November 2023
PLACE:           Canberra

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the written reasons dated 24 November 2023 in this application:

the Solicitor for the Respondent noted on page 70 is amended to read:

Mr Matthew Sheedy, Sparke Helmore Lawyers

.............[SGD]......................................................
Member W Frost
Division:GENERAL DIVISION
File Number(s):2023/6468
Re:Michael Scott Fear
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member W Frost
Date of decision: 22 November 2023
Date of written reasons: 24 November 2023
Place:Canberra

Pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review not to revoke the mandatory cancellation of the Applicant’s visa under subsection 501(3A) of the Migration Act 1958.
..............[SGD]..........................................................
Member W Frost
Catchwords
MIGRATION – review of whether to revoke a decision to mandatorily cancel an Absorbed Persons visa – mandatory cancellation of visa under s501(3A) Migration Act – character test under s501(3A) Migration Act - criminal record of non-citizen – ‘substantial criminal record’ under s501(7) Migration Act – amount of time spent in Australia in formative years – consideration of Ministerial Direction 99 – protection of the Australian community from criminal or other serious conduct - conduct constituting family violence - strength, nature and duration of ties to Australia - best interests of minor children in Australia - expectations of the Australian community - legal consequences of the decision - extent of impediments if removed – ‘another reason’ why decision should be revoked under s501CA(4) – reoffending after being warned of consequences relating to migration status – citizen by chance and circumstance New Zealand citizen – potential impact on New Zealand relations – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975, s 43
Migration Act 1958, ss 189, 197C, 198, 499, 500, 501, 501CA, 501G
Crimes Act 1914, s 85ZR
Youth Justice Act 1992 (Qld), s 184
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454; [2019] FCAFC 185
Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94.
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs S12/2023
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Plaintiff M1 v Minister for Home Affairs [2002] HCA 17
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs, Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Joint Standing Committee on Migration, Parliament of Australia, The report of the inquiry into review processes associated with visa cancellations made on criminal grounds (2019)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
REASONS FOR DECISION
Member W Frost
24 November 2023
INTRODUCTION

This proceeding concerns a decision by a delegate of the Respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (Minister), not to revoke a decision to mandatorily cancel the Absorbed Person visa (Visa) of the Applicant, Mr Michael Scott Fear, under subsection 501(3A) of the Migration Act 1958 (Act).
Mr Fear is a New Zealand citizen who has resided in Australia since he was two years old. He has been convicted of multiple criminal offences in this country, including acts of family violence, assault and the supply of drugs. In August 2021, Mr Fear’s Visa was mandatorily cancelled because he had been sentenced to a term of imprisonment of 12 months or more. He sought revocation of the cancellation decision, but a delegate of the Minister refused this request. As a result, Mr Fear applied to the Administrative Appeals Tribunal (Tribunal) for merits review of the decision.
The Tribunal has considered all of the documents in the bundle of documents filed in this proceeding, pursuant to section 501G of the Act,[1] together with the parties’ respective Statements of Facts, Issues and Contentions,[2] and the additional bundles of documents filed by the parties.[3] For the following reasons, the Tribunal has decided to affirm the decision under review not to revoke the decision to cancel Mr Fear’s Visa.
[1] Exhibit 1.
[2] Applicant’s Statement of Facts, Issues and Contentions dated 13 October 2023, Respondent’s Statement of Facts, Issues and Contentions dated 3 November 2023 and the Applicant’s Reply to the Respondent’s Statement of Facts, Issues and Contentions dated 7 November 2023.
[3] Exhibits 2-4.
BACKGROUND
Mr Fear is a 57-year-old citizen of New Zealand.[4]
[4] Exhibit 1, pages 32 and 145-147.
In July 1966, aged just over two months old, Mr Fear first arrived in Australia from New Zealand.[5] The incoming passenger card listed the length of stay as one month and its purpose as a holiday.[6]
[5] Ibid., pages 239-240.
[6] Ibid., page 239.
In October 1968, aged two, Mr Fear re-entered Australia and settled permanently in this country.[7] Since this time, Mr Fear has left Australia once, between 25 February and 17 March in 1983, but has otherwise resided in Australia.[8] Mr Fear has not returned to New Zealand since leaving that country as a two-year-old.[9]
[7] Ibid., pages 145-146.
[8] Ibid., pages 147 and 241-242.
[9] Ibid., page 147.
In September 1994, Mr Fear was granted the Visa.[10]
[10] Exhibit 4, page 39.
Between 1986 and 2021, Mr Fear’s adult criminal record includes: the possession, supply, use and cultivation of drugs; firearm possession; driving offences; theft; destruction or damage to property; assault; contravention of apprehended domestic violence orders (ADVO); offences against police officers; assaults occasioning actual bodily harm; domestic violence; and dealing with the proceeds of crime.[11]
[11] Exhibit 1, pages 32-36.
In March 2008, the Minister’s department (Department) sent Mr Fear a notice of intention to consider cancellation of his Visa under subsection 501(2) of the Act, which provides that a visa may be cancelled if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that they pass the character test.[12]
[12] Exhibit 4, pages 41-46.
On 3 June 2008, a delegate of the Minister decided not to cancel the Visa under section 501 of the Act, however Mr Fear was given the following ‘formal warning’:[13]
Please note that visa refusal or cancellation may be reconsidered if fresh information comes to notice or if you incur a liability on new grounds. Disregard of this warning will weigh heavily against you if your case is reconsidered.
[13] Exhibit 1, pages 151-152 and Exhibit 3, pages 10-11.
On 12 June 2008, Mr Fear signed an acknowledgement of receipt of the notice from the Department deciding not to cancel his Visa and containing the formal warning.[14]
[14] Exhibit 1, page 153 and Exhibit 3, page 12.
In June 2011, the Department sent Mr Fear another notice of intention to consider cancellation of his Visa under subsection 501(2) of the Act.[15]
[15] Exhibit 4, pages 62-67.
On 26 October 2011, a delegate of the Minister decided not to cancel the Visa and issued Mr Fear with another ‘formal warning’, in the following terms:[16]
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.
[16] Exhibit 1, pages 148-149.
On 3 November 2011, Mr Fear signed an acknowledgement of receipt of the Department’s notice and formal warning.[17]
[17] Ibid., page 150 and Exhibit 4, page 76.
On 18 October 2018, Mr Fear was convicted of, among other things, the offence of ‘Supply prohibited drug > indict. quantity (not cannabis)’ and sentenced to one year and ten months’ imprisonment.[18]
[18] Exhibit 1, page 33.
On 17 May 2021, Mr Fear was convicted of ‘Assault occasioning actual bodily harm (DV)’ and sentenced to six months’ imprisonment.[19]
[19] Ibid.
On 3 August 2021, the Department notified Mr Fear that his Visa had been mandatorily cancelled under subsection 501(3A) of the Act and invited him to make representations seeking revocation of that decision.[20]
[20] Ibid., pages 154-159.
On 30 August 2021, Mr Fear requested revocation of the mandatory cancellation of his Visa, completed a personal circumstances form and provided submissions in support of the request.[21]
[21] Ibid., pages 160-190.
On 3 December 2021, Mr Fear was convicted of ‘Supply prohibited drug>indictable & <commercial quantity’ and ‘Recklessly deal with proceeds of crime >$5000’ and sentenced to an aggregate term of imprisonment of two years and nine months.[22]
[22] Ibid., page 33.
On 17 January 2023, the Department invited Mr Fear to comment on further information it had received that was relevant to his revocation request, including, among other things, various sentencing remarks from the courts and the two formal warnings issued by the Department in 2008 and 2011 respectively.[23] On 13 February 2023 and 8 March 2023, Mr Fear’s then representative provided a response to the Department.[24]
[23] Exhibit 3, pages 1-25.
[24] Exhibit 1, pages 191-208.
On 10 May 2023, the Department invited Mr Fear to provide further information, including about his rehabilitation and mental health.[25] On 19 May 2023, Mr Fear’s then representative provided further material in response to the Department’s request.[26]
[25] Exhibit 4, page 40.
[26] Exhibit 1, pages 209-214.
On 29 August 2023, a delegate of the Minister decided not to revoke the cancellation of Mr Fear’s Visa.[27] Mr Fear was notified of that decision by email to his authorised representative on 30 August 2023.[28]
[27] Ibid., pages 11-31.
[28] Ibid., pages 8-10.
On 1 September 2023, Mr Fear applied to the Tribunal for review of the decision not to revoke the cancellation of the Visa.[29]
LEGISLATION & MINISTERIAL DIRECTION
[29] Ibid., pages 1-7.
The Act
Subsection 501(3A) of the Act relevantly provides that the Minister must cancel a visa that has been granted to a person if satisfied that the person does not pass the ‘character test’ because they have a ‘substantial criminal record’, and the person is ‘serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory’.
Under subsection 501(6)(a) of the Act, a person does not pass the character test if they have a ‘substantial criminal record (as defined by subsection (7))’. Pursuant to subsection 501(7)(c) of the Act, a person has a ‘substantial criminal record’ if the person ‘has been sentenced to a term of imprisonment of 12 months or more’.
Pursuant to subsection 501CA(3) of the Act, when a decision has been made under subsection 501(3A) to cancel a visa that has been granted to a person, the Minister must give the person written notice setting out the cancellation decision, particulars of the relevant information and invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original cancellation decision.
Subsection 501CA(4) of the Act provides that 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.
Subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) of the Act. Accordingly, the delegate’s decision not to revoke the mandatory cancelation of the Visa is reviewable by the Tribunal.
The Direction
Under section 499 of the Act, the Minister may give written directions to a person or body, such as the Tribunal, having functions or powers under that Act, if the directions are about the performance of those functions or the exercise of those powers and are not inconsistent with the Act or the regulations made under it. The person or body to whom the directions are given must comply with them, pursuant to subsection 499(2A) of the Act.
On 23 January 2023, the Minister made a direction under section 499 of the Act, being Direction no. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99), which commenced on 3 March 2023 and applies in relation to the Tribunal’s consideration of Mr Fear’s application for review of the decision not to revoke the mandatory cancellation of his Visa.
The Preamble to Direction 99 sets out its objectives and principles, relevantly including:
(a)the objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test is liable for cancellation of their visa (paragraph 5.1(1));
(b)a non-citizen who has had their visa cancelled under subsection 501(3A) of the Act may request revocation of that decision under section 501CA of the Act (paragraph 5.1(3));
(c)where a decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case (paragraph 5.1(3));
(d)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community (paragraph 5.2(1));
(e)non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia (paragraph 5.2(2));
(f)the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (paragraph 5.2(3));
(g)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time (paragraph 5.2(4));
(h)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 (paragraph 5.2(5)); and
(i)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 mentioned in paragraph 8.5(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 5.2(6)).
Paragraph 6 of Direction 99 provides that, informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Section 8 in Direction 99 relevantly states that, in making a decision under subsection 501CA(4) of the Act, the following are ‘primary considerations’:
(1)protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(2)whether the conduct engaged in constituted family violence (Primary Consideration 2);
(3)the strength, nature and duration of ties to Australia (Primary Consideration 3);
(4)the best interests of minor children in Australia (Primary Consideration 4); and
(5)expectations of the Australian community (Primary Consideration 5).
Section 9 of Direction 99 relevantly provides that, in making a decision under subsection 501CA(4) of the Act, the following non-exhaustive list of other considerations must be taken into account, where relevant:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
Finally, paragraph 7 of Direction 99 states that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
ISSUES
The issues for determination by the Tribunal in this proceeding were:
(a)whether Mr Fear passes the ‘character test’ defined in subsection 501(6) of the Act; and
(b)if not, whether there is ‘another reason’ why the original decision mandatorily cancelling the Visa should be revoked under subsection 501CA(4)(b)(ii) of the Act.
EVIDENCE
Mr Fear
Mr Fear filed a written statement dated 13 October 2023 in support of his application to the Tribunal.[30] Additionally Mr Fear had previously, on 19 May 2023, made a Statutory Declaration in response to the Department’s request for further information in that month, and in advance of the decision under review being made.[31] The Tribunal has considered both of these documents in making its decision and preparing these reasons.
[30] Exhibit 2, pages 22-24.
[31] Exhibit 1, pages 209-210.
Mr Fear gave evidence by video from Villawood Immigration Detention Centre and recalled making his aforementioned written statements. He told the Tribunal he has lived in Australia for 55 years and arrived when he was two years old. Mr Fear confirmed that his parents went to New Zealand to visit his maternal grandmother who had married in that country. Mr Fear’s parents ended up staying in New Zealand for three years, but are Australian citizens. He told the Tribunal he has no remaining relatives in New Zealand and no connection to that country. Mr Fear described himself as an Australian born in New Zealand, not a New Zealander living in Australia.

Mr Fear told the Tribunal the possibility of his removal from Australia has led to him experiencing ‘anxiety attacks’; he cannot believe that he will be ‘thrown out of my country’. Mr Fear confirmed that he did not consider his Visa could be cancelled despite previously receiving two warnings to that effect from the Department.
Mr Fear said that his offending has ‘severely’ impacted his life and cost him ‘everything’, including his family, children and grandchildren. He confirmed to the Tribunal that he is remorseful for his actions because of the harm he has done to other people and his family. Mr Fear denied only being sorry because of his current situation.
Mr Fear told the Tribunal he is currently drug free. He confirmed that if he remains in Australia, his friends Sharyne and Tony will provide employment, accommodation and support, and help him ‘establish’ himself.[32]
[32] Ibid., page 209.
Mr Fear was referred to his witness statement from 13 October 2023 regarding the impact on being removed to New Zealand and stating that he is ‘aware of [his] weaknesses’.[33] Mr Fear told the Tribunal he will not be able to support himself in New Zealand, nor will he have any job or prospects or a place to live.
[33] Exhibit 2, pages 22-24.
Mr Fear’s representative took him to the Personal Circumstances Form he completed on 31 August 2021, in which he appeared to attribute some of his offending to his former partner.[34] He told the Tribunal that they were both ‘drug addicts’. In the form, Mr Fear also noted that his family would not be impacted by a cancellation decision.[35] Mr Fear now says that he wants to reconnect with his family, and was asked why he had not previously attempted to do so. Mr Fear said this was due to his ‘lifestyle’. He does not want his family to know that he has been a drug addict. Mr Fear confirmed that he will seek to reconnect with his family if he can ‘improve’ himself. He told the Tribunal that removal to New Zealand would give him ‘no chance’ to reconnect with family. Mr Fear’s hopes and plans for the future if he were to remain in Australia are to be a productive community member, see his family and remain drug and crime free.
[34] Exhibit 1, pages 165-180.
[35] Ibid.
By way of cross-examination, Mr Fear confirmed that his parents live in Australia, together with his brother and sister. He also has two adult children in Australia and two grandchildren, although he does not know the names of the latter. Mr Fear last spoke to his son ‘about five years ago’ and to his parents approximately ‘six or seven’ years ago. He confirmed that an uncle had recently conveyed his parents’ wish for their telephone number not to be provided to Mr Fear.[36]
[36] Exhibit 2, page 8.
Mr Fear told the Tribunal his most recent relationship began in 2000 and ended in 2021 at around the time he went to gaol for his most recent offending. Mr Fear confirmed that his daughter lived with him after he separated from another partner, his former wife, in 1999.[37] He continued to see his daughter until 2003, when her mother changed their address and details without notice.[38] Mr Fear further confirmed that the mother of his son is another former partner and their relationship ended in approximately 1990.
[37] Exhibit 4, page 58.
[38] Ibid., page 59.
Mr Fear was again referred to his Personal Circumstances Form from August 2021, in which he described there being no impact of an adverse Visa outcome on his family because they became estranged when he commenced the relationship with his now ex-partner 20 years ago in 2000.[39] He was asked by the Minister’s representative what the impact would be on his family if his Visa remained cancelled. Mr Fear said he could not speak for the rest of his family and did not know. If he were removed from Australia, Mr Fear said he would keep trying to contact his family so long as he was ‘drug free’.
[39] Exhibit 1, page 174.
Mr Fear told the Tribunal he did not become aware that he was not an Australian citizen until he received his first formal warning from the Department in 2008.[40] To this end, Mr Fear was referred to the letter from the Department dated 3 June 2008, which stated that on 13 March 2008 he had been given notice that he may be liable to have his Visa cancelled.[41] Mr Fear agreed to being aware in June 2008 that his Visa could be cancelled if he committed a further offence. To this end, Mr Fear agreed that he had received two formal warnings from the Department that it may reconsider the cancellation of his Visa if he committed further offending.[42]
[40] Exhibit 2, pages 22-24.
[41] Exhibit 1, pages 151-152.
[42] Ibid., pages 148-149.
The Minister’s representative referred Mr Fear to his criminal offending and firstly to the convictions from 28 February 2001 for, among other things, possessing an unauthorised firearm and prohibited drugs.[43] Mr Fear said he ‘vaguely’ recalled the offences and accepted that they occurred and had recently discussed them with Dr Freeman, Psychologist.[44]
[43] Ibid., page 36.
[44] Exhibit 4, page 203. See also Exhibit 2, page 11.
Mr Fear also agreed to the offending described in sentencing remarks by the District Court of NSW on 19 February 2002, which related to convictions for stealing a motor vehicle and larceny, although he could not recall the offending.[45] Mr Fear did recall the related incident from 16 May 2001 in which he stole vehicles from a premises.[46] In this regard, the sentencing remarks stated that Mr Fear had ‘intended to sell the property obtained from the unit to support his drug habit’.[47] He agreed that it was more than likely he would have made such a statement. Mr Fear told the Tribunal that a person had asked him to take these items because the victim owed that person money for a ‘drug debt’.[48]
[45] Exhibit 1, pages 36 and 97-112.
[46] Ibid.
[47] Ibid., page 103.
[48] See also Exhibit 2, page 11.
Mr Fear told the Tribunal he could not recall the background to four offences, including ‘destroy or damage property’, for which he was convicted on 14 March 2006.[49] He was taken to the NSW Police records from 6 February 2002, which referred to an incident with his then domestic partner.[50] Mr Fear told the Tribunal he did not recall the incident, but said it ‘probably happened’. He did not recall saying to her the reported words, ‘You will be dead by the end of the day’, however agreed that this incident led to his conviction on 14 March 2006.[51]
[49] Exhibit 1, page 35.
[50] Exhibit 4, page 196.
[51] Ibid. See also Exhibit 1, page 35.
Mr Fear was referred to his convictions from 6 March 2007 for possessing an unauthorised firearm and using an offensive weapon to prevent a police investigation (2007 Firearm Convictions).[52] He recalled the incident that resulted in these convictions. Mr Fear said he was unsure whether the particular words attributed to him were said, but agreed that the incident happened, including him standing up and pointing a gun at police. Mr Fear also agreed that negotiations continued with the police for 30 hours before he agreed to exit the premises. The Minister’s representative referred Mr Fear to a Pre Release Report dated 9 February 2009, in which it was recorded that, when discussing the victims and their families, Mr Fear stated that he had ‘not given any consideration to the victims, believing that he was a “victim” in some way as there were four police officers with guns’.[53] Mr Fear was asked by the Minister’s representative whether he considered himself the victim in that situation, to which he replied that he did ‘at the time’.
[52] Exhibit 1, pages 35 and 81-96.
[53] Exhibit 4, page 96.
Mr Fear was referred to a NSW Police Facts Sheet in relation to his convictions in 2007 for assault occasioning actual bodily harm and contravening an apprehended domestic violence order, and agreed that these related to his former partner.[54] He did not recall throwing a cabinet drawer at the victim, but said that it ‘must have’ happened.[55] Mr Fear agreed that the following events contained in the Facts Sheet occurred in early April 2006: he grabbed the victim by the hair and threw her onto a chair, he struck the victim twice to the head with a firearm, he said he would shoot her and he threw a cup at the victim causing a laceration to her head.[56]
[54] Exhibit 1, pages 35 and 130-133.
[55] Ibid., page 131.
[56] Ibid., pages 131-132.
The Minister’s representative referred Mr Fear to the Facts Sheet for an incident on 23 April 2006, which recorded that he approached the victim ‘whilst holding a piece of timber, described as what appeared to be a varnished coffee table leg about 30 centimetres in length’ and ‘struck the victim with the piece of timber’ to the ‘right side of her body and her back’.[57] Mr Fear told the Tribunal the event ‘must have’ happened, but he did not recall it due to being in ‘psychosis that whole time’.
[57] Ibid., pages 132-133.
On 24 November 2010, Mr Fear was convicted of, among other things, possessing a prohibited weapon and supplying a prohibited drug.[58] Mr Fear agreed that, at the time, he was on parole for using an offensive weapon and was in possession of drugs and associated material, together with an imitation pistol and cash.[59] Mr Fear further agreed that, at the same court appearance in 2010, he was also convicted of ‘Assault officer’ and ‘Resist officer’ in the execution of their duties.[60]
[58] Ibid., pages 34 and 72-78.
[59] Ibid., page 73.
[60] Ibid., pages 34 and 77.
Mr Fear accepted that an offence of ‘Assault occasioning actual bodily harm (DV)-T2’, committed in September 2015, related to his former domestic partner.[61] Mr Fear recalled the incident, which the NSW Police Facts Sheet recorded including him grabbing the victim by her hair and punching her twice to the face.[62] He agreed that these events occurred.
[61] Ibid., pages 33-34 and 118-120.
[62] Ibid., pages 118-120.
While Mr Fear could not recall pleading guilty to the supply of prohibited drugs and dealing with the proceeds of crime in October 2018, after the agreed facts from the District Court Judge’s sentencing remarks were put to him, he told the Tribunal he could ‘vaguely’ recall the incident.[63] That is, Mr Fear agreed with the sentencing remarks of the Judge setting out those facts resulting in the convictions.[64]
[63] Ibid., pages 60-71.
[64] Ibid. See also Exhibit 1, page 33.
Additionally, Mr Fear ‘vaguely’ recalled the events that led to his conviction on 17 May 2021 for ‘Assault occasioning actual bodily harm (DV)-T2’, with the facts referred to in the Magistrate’s sentencing remarks stating that he grabbed the victim around the throat, punched her face and pushed her into household furniture.[65] Mr Fear confirmed that the victim was his now former partner.
[65] Ibid., pages 33 and 57-59.
Mr Fear was again referred to his Personal Circumstances Form from August 2021, in which he stated that, with his relationship ‘terminated’, he was confident of not reoffending, and that he took ‘part of the responsibility’ for his offending, but that the ‘toxic relationship and ex-partner played a big part’, and later stated that she played a ‘huge role’ in his behaviour.[66] Mr Fear told the Tribunal that he disagreed with the proposition that his offending was his partner’s fault. However, he agreed that ‘sometimes’ he offended against her because she provoked him.
[66] Ibid., pages 175 and 178.
The Minister’s representative referred Mr Fear to a Pre Release Report from June 2003, which recorded that his second relationship between 1990 and 1999 ended ‘as a result of his heavy drinking and violent episodes, which he states were in part the result of provocation’.[67] Mr Fear told the Tribunal he accepted engaging in violent episodes related to his then partner and that ‘some of the time’ these occurred because she had provoked him.
[67] Exhibit 4, page 90.
Mr Fear was referred to the Judge’s sentencing remarks in the District Court on 3 December 2021 for the convictions of supplying a prohibited drug and dealing with the proceeds of crime.[68] He agreed with the facts as stated by the Court.
[68] Exhibit 1, pages 47-56.
Mr Fear also accepted that he had breached his parole on multiple occasions, which were reported on 13 May 2009, 10 July 2009, 30 October 2009, 11 November 2009 and 11 January 2010, for reasons including due to drug use.[69] Additionally, Mr Fear agreed that he had previously used drugs while incarcerated, which was recorded by Corrective Services NSW as resulting in five disciplinary matters relating to ‘fail urine analysis tests’ between 2008 and 2012.[70]
[69] Exhibit 4, pages 110-119.
[70] Exhibit 1, page 145.
Mr Fear told the Tribunal he had been diagnosed with schizophrenia and is taking Abilify medication by injection every 28 days. He also takes another medication which he recalled was for his blood pressure. Mr Fear said that reports regarding missed medications while he has been in immigration detention related to ‘Panadol Osteo’ for arthritis in the hips.[71]
[71] Exhibit 4, pages 77-80.
Mr Fear was referred to an entry from NSW Corrective Services from 19 October 2021, which recorded that he intended to sell ‘the home he owns with his former partner’.[72] Mr Fear told the Tribunal that, despite this intention, his former partner got to ‘keep the lot’.
[72] Exhibit 2, page 32.
In re-examination, Mr Fear was asked whether he still thinks he is a victim. He told the Tribunal, ‘Not necessarily’. When referred to the aforementioned incident with the police, Mr Fear said he did not now feel like the victim. He also said it was ‘definitely not’ alright to assault a person even if provoked. Finally, Mr Fear was referred to his previous breaches of parole and asked why it would be different this time if released into the community. He told the Tribunal that this time he wants to change and had ‘never wanted to’ beforehand.
Ms Sharyne Adam
Ms Adam provided a written statement dated 12 October 2023 in this proceeding, which has been considered by the Tribunal.[73] She gave evidence at the Tribunal hearing and confirmed that she is 50 years old. Ms Adam currently works in a mechanic shop she owns and operates with her partner in Western Sydney.
[73] Ibid., pages 25-26.
Ms Adam told the Tribunal she has known Mr Fear for approximately eight to nine years and they met through her partner. They all have an interest in cars and the mechanical side of vehicles. Mr Fear has previously holidayed with the couple and stayed at their property.
Ms Adam confirmed that she had offered to support Mr Fear if he remained in Australia. She was aware of Mr Fear’s criminal history, but not the detail of the offences. Ms Adam was also aware of Mr Fear’s drug dependency and acts of violence against former partners. Despite these issues, Ms Adam told the Tribunal that she was willing to support Mr Fear if he was released into the Australian community. This would include having Mr Fear seen by her general practitioner, who has indicated a willingness to treat him, and arranging his medical and other appointments such as ‘AA meetings’. Ms Adam also said that she would assist Mr Fear to attend to any parole or community corrections obligations. In this regard, Ms Adam said Mr Fear would be with her ‘all the time’.
Ms Adam confirmed to the Tribunal that she and her partner have offered employment to Mr Fear, but she would not ‘push’ this ‘straight away’ following any release. They would first allow him to get on top of his medical and other appointments; Mr Fear would be ‘put to work’ once he was able so as to keep him busy with life.[74]
[74] Exhibit 1, page 211.
Ms Adam told the Tribunal she lives with her partner and his parents on a property comprising just under six acres. It has two houses, sheds and a double garage, the latter having been converted into ‘granny flat’, which it is intended Mr Fear can use to have his own space and privacy. However, Mr Fear would eat meals with Ms Adam and her partner because there are no kitchen facilities in the converted garage. Ms Adam noted that Mr Fear had previously stayed in the granny flat before he was last incarcerated.
Mr Fear’s representative asked Ms Adam about the impact on him of being removed from Australia. She told the Tribunal that no one can really answer that question, but she was worried that Mr Fear ‘won’t handle it’; he has no support there, he does not know where to go and he does not have a doctor, whereas he would in Australia. Ms Adam also told the Tribunal she was concerned about Mr Fear’s mental and physical health and considered it would be ‘really stressful’ for him.
Ms Adam also said that she would be impacted by Mr Fear’s removal because she would be ‘very worried’ about him from the moment he goes to New Zealand. She noted that Mr Fear would not have access to money until he potentially commenced receiving social security payments. Ms Adam told the Tribunal she was already ‘stressed out’ about his possible return to New Zealand and her general practitioner was ‘well aware’ of Mr Fear’s circumstances. She takes medication for stress and will be ‘pretty disappointed and devastated’ if he was removed from Australia and ‘will probably get sick’.
Dr James Freeman – Psychologist
On 10 October 2023, following two assessments of Mr Fear on 29 September and 3 October 2023, Dr Freeman provided a report to Mr Fear’s solicitors for the purpose of this proceeding, which relevantly stated as follows:[75]
[75] Exhibit 2, pages 7-21.
MR. FEAR’S VERSION OF RECENT OFFENDING EVENTS
During the assessments, he consistently accepted responsibility for his offending history…as well as recent offences.
In regards to recent offending, he reported being intravenously dependent upon methamphetamines and in a relationship that was marked by reciprocal drug use. He stated supplying illicit substances to fund the dependencies e.g., “I was selling ice for both our addictions. One of my buyers got caught and they raided me later that afternoon.”
He received a concurrent custodial period for assaulting his partner sometime after apprehension, which is also reportedly linked to drug use e.g., “I got out on bail the next day and two weeks later I had a fight with her about her wanting more drugs.”
EXPRESSION OF REMORSE AND COMMENT ON OFFENCES
Despite struggling to formulate an articulate statement of remorse, Mr. Fear clearly regrets his past offending behaviour e.g., “It’s cost me everything. There is not much else I can say – it’s cost me my family, relationships, freedom, my country. I’m sorry for everything, you know, I don’t know how to put it into words.”
He was able to recognise how some components of his offending behaviour (e.g., supply) could have contributed to the larger problem of illicit drug usage in the community e.g., “I’m sorry for selling drugs – it ruins other people’s lives as well as my own.”
Mr. Fear reported (most recently) being incarcerated at the Clarence Correctional Centre before transitioning to the Villawood Detention Centre upon his parole eligibility. He reported consistently abiding by the conditions of a custodial environment, and was employed in the metal shop (without incurring breaches) until his transfer.
…
Structured Clinical Assessment
-    Alcohol Dependency Disorder (in remission)
-    Methamphetamine Dependency Disorder (partial remission in a controlled environment)
-    Cannabis Dependency Disorder (partial remission in a controlled environment)
-    Paranoid Schizophrenia (provisional diagnosis)
-    Adjustment Disorder (with anxious distress)
…
It is difficult to determine with psychological certainty the risk of recidivism, not least due to the different manifestations of recidivism for the applicant e.g., person versus property/drug supply. Nevertheless, utilisation of the actuarial risk scales (e.g., PCL-R, HCR-209) indicate such risk cannot be considered in the “low” category. When taken together, the primary risk appears to be relapsing into drug use, which is a direct contributor (and forms the aetiology) of most of his more recent offending. Given this, engagement in treatment and monitoring (to either strengthen relapse prevention skills and/or provide quick response to relapse) is likely to have a salutary effect upon the risk (and extent) of recidivism. Not surprisingly, relapse is likely to ensure that past behaviour is an efficient predictor of future behaviour…

Dr Freeman gave evidence to the Tribunal and outlined his extensive qualifications and experience and confirmed that he recently undertook two one-hour audio assessments of Mr Fear. Dr Freeman described Mr Fear as ‘open’ and ‘genuine’ and that his answers were ‘authentic’. Dr Freeman further noted that Mr Fear demonstrated genuine remorse and was generally forthcoming in relation to his guilt; Dr Freeman had no concerns regarding the distortion of information provided by Mr Fear.
Dr Freeman told the Tribunal that Mr Fear was ‘very remorseful’ and ‘regretful’ and understands that it is his own actions which have led to the current situation. Dr Freeman did not consider Mr Fear’s inability to describe his remorse as anything other than a limited ability to highlight those matters, rather than deliberately avoiding doing so. Dr Freeman considered this limitation could be due to a combination of Mr Fear’s reduced education, perhaps the effects of his schizophrenia and also a previous head injury received as a child. In this regard, Dr Freeman told the Tribunal that the reason Mr Fear was unable to articulate a high level of perspective was not related to any genuine unwillingness to do so.
Dr Freeman was referred to his opinion that Mr Fear’s methamphetamine and cannabis dependencies were in ‘partial remission in a controlled environment’ and asked what was required to maintain his long period of abstinence. Dr Freeman noted that Mr Fear had an ‘intravenous addiction’ and that ‘monitoring and supervision’ would certainly be helpful, together with support within the community to help provide direction and assistance if he experienced episodes of relapse, and engagement with programs and the utilisation of strategies from those sessions.
Dr Freeman was also asked whether stable employment and living arrangements would assist. He told the Tribunal that ‘lifestyle stability’ was ‘really important’ in breaking the relapse cycle and also ‘avoiding a negative peer support group’. Dr Freeman said that Mr Fear presented as someone wanting to avoid his past peer support group and past relationships that may prove to be high risk for any relapse.
To this end, Dr Freeman told the Tribunal it would have been ‘very, very difficult’ for Mr Fear to break out of his former relationship, because if a person’s partner is motivated to use and obtain drugs, it is ‘very difficult’ to remove themselves from that relationship. He noted that Mr Fear attributed some offences to that relationship and Dr Freeman said that, when in that relationship, it would have been ‘much more difficult’ for him to change his lifestyle.
In this regard, Dr Freeman told the Tribunal that a reduction in drug use would ‘very much’ reduce Mr Fear’s risk of reoffending and further stated that, while not all of his offending was related to drug use, the aggregate data demonstrated a strong link between Mr Fear’s co-morbid addictions and his criminal behaviour. Therefore, Dr Freeman opined, if Mr Fear avoided a relapse, his behaviour in the community may be changed. Additionally, Dr Freeman agreed that Mr Fear had the potential to make a positive contribution to the community if his drug use was controlled, and told the Tribunal that he detected no significant cognitive impairments that could be considered a disability or that would affect Mr Fear’s transition into the community. That is, Mr Fear has the potential to contribute to the community and his intelligence and insight will not negatively affect his capacity to do so.
There were no other witnesses called to give evidence at the Tribunal hearing.
CONTENTIONS
Mr Fear
Mr Fear accepted that he did not pass the character test under subsection 501(6) of the Act because he has a ‘substantial criminal record’, as defined by subsection 501(7) of the Act. However, Mr Fear contended that there was ‘another reason’ why the original decision to cancel his Visa should be revoked pursuant to subsection 501CA(4)(b)(ii) of the Act.
Mr Fear submitted that Primary Consideration 3 in Direction 99, the strength, nature and duration of ties to Australia, weighed very strongly in favour of revocation of the cancellation decision due to the following factors:
·his family in Australia and the significant adverse impacts of physical separation, including on their potential reconciliation;
·Mr Fear’s non-immediate family relationships;
·the fact that he spent his formative years in this country; and
·the demonstration of his potential to make positive contributions through employment and community interactions.
Additionally, Mr Fear contended that the one relevant other consideration in Direction 99, being the extent of impediments if removed, weighed significantly in favour of revocation of the cancellation decision. He contended that the reasons for this included him having spent the majority of his life in Australia and therefore having no support network in New Zealand, as well as not having accommodation, immediate financial resources or a treating physician.
Mr Fear also submitted that three additional ‘other considerations’, not listed in Direction 99, all weighed strongly or heavily in favour of revocation, being: the circumstances and nature of Mr Fear’s New Zealand citizenship; the human rights implications; and the impact on Australia’s international relations with New Zealand.
Mr Fear submitted that the primary considerations weighing against revocation of the cancellation decision are outweighed by the other considerations and Primary Consideration 3, such that the Tribunal should decide to revoke the original decision mandatorily cancelling his Visa.
Minister
The Minister contended that there was not ‘another reason’ pursuant to subsection 501CA(4)(b)(ii) of the Act why the cancellation decision should be revoked. Accordingly, the Minister submitted, the correct or preferable decision was to affirm the decision under review not to revoke the mandatory cancellation of Mr Fear’s Visa. The Minister submitted that Primary Consideration 1, Primary Consideration 2 and Primary Consideration 5 all weighed very heavily against revocation of the mandatory cancellation of the Visa, and that Primary Consideration 3, together with the relevant other and additional considerations weighing in Mr Fear’s favour, did not outweigh the primary considerations against revocation of the cancellation decision.
CONSIDERATION
Does Mr Fear pass the character test under the Act?
On 18 October 2018, Mr Fear was sentenced by the Newcastle District Court to a term of one year and 10 months imprisonment for the offence of ‘Supply prohibited drug>indict. Quantity (not cannabis)’.[76] Under subsection 501(7)(c) of the Act, Mr Fear therefore has a ‘substantial criminal record’ because he has been sentenced to a term of imprisonment of 12 months or more. Pursuant to subsection 501(6)(a) of the Act, Mr Fear fails the character test due to having a substantial criminal record. Accordingly, for the purpose of subsection 501CA(4)(b)(i) of the Act, the Tribunal is satisfied that Mr Fear does not pass the character test as defined in subsection 501(6)(a) of the Act. The Tribunal also notes that Mr Fear accepted that he does not pass the character test under the Act.[77]
[76] Exhibit 1, page 33.
[77] Applicant’s Statement of Facts, Issues and Contentions dated 13 October 2023 at paragraph [21].
Is there another reason why the decision to cancel the Visa should be revoked?
As a result of the Tribunal’s finding that Mr Fear does not pass the ‘character test’, pursuant to subsection 501CA(4)(b)(ii) of the Act, it turns to consider whether there is ‘another reason’ why the mandatory cancellation decision should be revoked.
In accordance with subsection 499(2A) of the Act, the Tribunal must comply with Direction 99 in making a decision regarding a request for revocation of a mandatory cancellation decision pursuant to section 501CA of the Act. Paragraph 6 of Direction 99 provides that a decision-maker must take into account the primary and other considerations identified in Direction 99, where relevant to the decision. Accordingly, the Tribunal sets out below its evaluation of Mr Fear’s circumstances against the relevant considerations in Direction 99 and the additional considerations raised by Mr Fear.
Primary Consideration 1 – Protection of the Australian Community
Paragraph 8.1 of Direction 99, regarding Primary Consideration 1, states that:
(1)   When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2)   Decision-makers should also give consideration to:
a)     the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of Mr Fear’s conduct
Paragraph 8.1.1 of Direction 99 sets out a list of factors that decision-makers must have regard to in considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, which includes:
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.
Mr Fear has been convicted of criminal offences committed both as a juvenile andas an adult.[78] That necessarily gives rise to a consideration of which parts of Mr Fear’s criminal history may be taken into account in light of the High Court of Australia’s decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17 (Thornton). The High Court in Thornton held that, in considering whether to revoke a decision to cancel a person’s visa under subsection 501CA(4) of the Act, the decision maker could not consider the person's finding of guilt as a child for which no conviction was recorded, by operation of subsection 85ZR(2) of the Crimes Act 1914 (Cth) (Crimes Act). The plurality of the Court held that subsection 85ZR(2) of the Crimes Act was engaged by subsection 184(2) of the Youth Justice Act 1992 (Qld) as a law of a State under which a person is to be taken never to have been convicted of an offence.[79]
[78] Exhibit 1, pages 32-37.
[79] Thornton at [36], [73].
The Minister contended that Mr Fear’s circumstances are distinguishable because he was convicted in New South Wales (NSW) and not under the Queensland legislative regime. As a result, and having regard to the absence in the NSW legislation of a provision analogous to subsection 184(2) of the Youth Justice Act 1992 (Qld), the Minister submitted that the principle in Thornton was not engaged. Alternatively, the Minister contended that, if the Tribunal decided that Thornton was applicable in Mr Fear’s circumstances, it only prohibits reliance upon convictions, and would not prevent the Tribunal from considering the underlying conduct giving rise to the juvenile offending in considering Mr Fear’s overall conduct for the purpose of paragraph 8.1.1 of Direction 99.
The Tribunal notes that the issue of the applicability of the principle enunciated in Thornton to NSW legislation was heard on 16 November 2023 by the High Court in Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs S12/2023. The Court’s decision is reserved.
Accordingly, out of an abundance of caution, the Tribunal considers the safest approach is to proceed on the basis that Thornton binds the Tribunal in this proceeding such that it cannot consider the fact of any conviction of Mr Fear under the age of 18. In addition, the Tribunal will also not consider the underlying conduct giving rise to that offending. The Tribunal does not consider such an approach to be procedurally unfair to Mr Fear. As a result, the Tribunal proceeds to evaluate the nature and seriousness of Mr Fear’s conduct in relation only to his convictions as an adult, and with no regard to his convictions as a juvenile or any associated conduct.
Mr Fear has an extensive criminal record.[80] He has committed numerous offences including cultivating, possessing and supplying prohibited drugs, theft, assault, destroying or damaging property, dealing with the proceeds of crime, resisting and assaulting an officer in the execution of their duty, and assault occasioning actual bodily harm in a domestic violence setting.[81] Mr Fear has served multiple terms of imprisonment for his offending.[82] The Tribunal provides below some detail from examples of Mr Fear’s offending history.
[80] Exhibit 1, pages 32-36.
[81] Ibid.
[82] Ibid.
On 6 March 2007, Mr Fear was convicted by the NSW District Court of ‘Possess unauthorised firearm-T2’ and sentenced to one year and four months’ imprisonment, and also convicted of ‘Use etc offensive weapon to prevent police investigation-T1’, being the 2007 Firearm Convictions, for which he was sentenced to four years’ imprisonment, with the sentences to be served concurrently.[83] The Judge’s sentencing remarks noted that in the course of police enquiring into circumstances that required investigation at a property, Mr Fear ‘stood up and pointed a single barrelled shotgun’ at the Detective and ‘said words similar to, “Get out of my house pig, or I will fucking kill you”’.[84] Police exited the premises, a command post was established and specialist police deployed.[85] While two individuals later exited the premises, Mr Fear remained inside and negotiations with him ‘continued for the next thirty hours’.[86] He ultimately agreed to exit the premises and was arrested.[87] As the Judge stated, while the weapon was subsequently found incapable of being fired, the offences were ‘serious’ and the ‘situation which was created by the offender was extreme’.[88] Mr Fear reported to a psychiatrist, Dr Olav Neilssen, in October 2006 that ‘he had been taking Ice, that is to say, methamphetamine, continuously for a period of around six months prior to the commission of the offences’ and had not slept ‘for about three weeks’.[89]
[83] Ibid., pages 35 and 95.
[84] Ibid., page 84. See also Exhibit 4, pages 193 and 267.
[85] Exhibit 1, page 84.
[86] Ibid., pages 84-85.
[87] Ibid., page 85.
[88] Ibid.
[89] Ibid., pages 87-88.
On 21 March 2007, Mr Fear was convicted in the Local Court of the following offences (2007 Further Convictions): assault occasioning actual bodily harm (two counts), for which he was sentenced to two years’ imprisonment on each count; contravening an apprehended domestic violence order (two counts), for which he was sentenced to two years’ imprisonment on each count; and common assault, for which he was sentenced to 12 months’ imprisonment.[90] A NSW Police Facts Sheet noted, in relation to the two counts of assault occasioning actual bodily harm and two counts of contravening an ADVO (2007 DV Convictions), that Mr Fear and the victim had been ‘in a domestic relationship for the past six years’.[91]
[90] Ibid., pages 34-35.
[91] Exhibit 4, page 269.
The Police Facts Sheet further stated that, on 4 April 2006, an ADVO was granted protecting the victim from Mr Fear, ordering him to not engage in conduct that intimidated the victim, and not to ‘stalk, assault, molest, harass, etc, the protected person’, but allowing them to reside together.[92] The Facts Sheet also stated that, on 8 April 2006, Mr Fear continuously asked the victim to locate his mobile phone and she refused to do so.[93] Mr Fear was reported to have: taken a drawer out of a cabinet in the house and thrown it at the victim, striking her on her right forearm causing her pain; said to the victim “You're a lying bitch, I'm going to shoot you”; grabbed the victim by the hair and thrown her onto a chair; struck the victim twice in the head with a firearm, causing pain; thrown a cup at the victim striking the back of her head and causing a laceration and bleeding; dragged the victim from her car and kicked her to the right side of her chest area causing pain; said to the victim “Get back inside you mutt”; continued to yell at the victim to get inside the house; and following the victim crawling on her hands and knees into the house yelled at her, “Don’t call the police, I’ll get you sooner or later if you do”.[94] The victim reportedly did not inform police of this incident until two weeks later ‘fearing for her personal safety if she made a report of the matter’.[95]
[92] Ibid., pages 269-270.
[93] Ibid., page 270.
[94] Ibid., pages 270-271.
[95] Ibid., page 271.
The NSW Police Facts Sheet also recorded that, in a separate incident on 23 April 2006, Mr Fear arrived at the victim’s house, demanding his guns and ‘struck the victim’ multiple times with a ‘piece of timber’, causing ‘severe pain’.[96] The victim reportedly ‘fled the house to a nearby neighbour’, Mr Fear ‘went to that house and banged on the security door, demanding the occupants send the victim outside’; they closed the front door and Mr Fear left the premises and went to another victim’s house and proceeded to assault him, unrelated to the family violence offending.[97] The female victim of Mr Fear’s domestic violence told police that she was ‘in extreme fear’ for her life and feared that he ‘would continue to assault her and might kill her’.[98]
[96] Ibid., page 272.
[97] Ibid.
[98] Ibid.

On 22 February 2016, Mr Fear was convicted by the Local Court of ‘Assault occasioning actual bodily harm (DV)-T2’ and sentenced to a 12-month good behaviour bond, to strictly comply with an ADVO (2016 DV Conviction).[99] A NSW Police Facts Sheet indicated that Mr Fear had been in a de facto relationship with the victim for 15 years.[100] On 15 September 2015, while at their home, Mr Fear had reportedly ‘set the victim’s clothes alight’, and when she returned to the premises he ‘grabbed the victim by the hair’, yelled and screamed at her and punched her ‘to the face at least two times’ whilst she was on the ground.[101] The victim ran to a nearby shop and asked that the police be called.[102] When police arrived, they observed that the victim was ‘very upset, extremely emotional and irate with the attending police’, she had ‘redness to both her eyes and nose’, there was ‘blood coming from her left ear lobe where the victim claims the accused ripped out her earrings as well as a small cut to the victim’s right hand ring finger’.[103]
[99] Exhibit 1, pages 33-34.
[100] Exhibit 4, page 225. See also Exhibit 1, pages 117-120.
[101] Exhibit 4, page 225.
[102] Ibid.
[103] Ibid.
On 18 October 2018, Mr Fear was convicted in the NSW District Court of ‘Knowingly deal with proceeds of crime-SI’ and ‘Supply prohibited drug >small & <=indictable quantity-T1’, and sentenced to 6 months’ imprisonment for each these offences.[104] On the same day, Mr Fear was also convicted by the Court of ‘Supply prohibited drug >indict. quantity (not cannabis)-SI’, for which he received a sentence of 1 year and 10 months’ imprisonment.[105] The Judge’s sentencing remarks referred to Mr Fear having possessed over 111 grams of cannabis and 24 grams of methylamphetamine in his home, which was located next to a school for disabled children.[106] Her Honour stated that the facts of the case ‘clearly disclose serious objective criminality’, and that the crime of supplying drugs ‘is regarded by the courts as extremely serious in circumstances where there are very significant detrimental effects to the community’, noting that the supply of prohibited drugs ‘destroys the lives of individuals’.[107] The Judge further noted that supplying drugs ‘disrupts families and generates a significant cost to the community, both socially and financially’ and that the community ‘expects and is entitled to expect that persons who commit these offences will face condign punishment’.[108] Her Honour was satisfied that Mr Fear was ‘involved in the supply of prohibited drugs to support his long-standing drug dependency’, was ‘properly characterised as a user/dealer’ and had not held paid employment ‘for the past 20 years’, being ‘usually in receipt of a disability support pension’.[109]
[104] Exhibit 1, page 33.
[105] Ibid.
[106] Ibid., page 60.
[107] Ibid., page 63.
[108] Ibid.
[109] Ibid., pages 64 and 67.
On 17 May 2021, Mr Fear was convicted by the Local Court of ‘Assault occasioning actual bodily harm (DV)-T2’ (2021 DV Conviction) and sentenced to six months’ imprisonment.[110] The victim was Mr Fear’s domestic partner against whom he had committed earlier offences.[111] According to the NSW Police Facts Sheet and the Judge’s sentencing remarks, in February 2021, Mr Fear ‘grabbed the victim around the neck and began to squeeze her around the neck’, he ‘began to punch the victim in the face’ and then ‘pushed the victims [sic] head into the bench, then the cupboard and lastly the kitchen sink where the victims [sic] head has struck the tap, causing a laceration to the back of her head’.[112] The victim was observed by police and paramedics to be ‘covered’ in blood and ‘extremely upset’.[113] She was reported to have told police she was ‘extremely scared’ of Mr Fear and concerned that he ‘may further assault her’.[114] The Judge noted that Mr Fear had an ‘extensive criminal history’, the offence was ‘committed whilst on bail for other matters, which makes this offence worse’ and that the ‘facts in the matter are serious’.[115]
[110] Ibid., pages 33 and 57-59.
[111] Ibid., page 57 and Exhibit 4, page 210.
[112] Exhibit 4, page 210. See also Exhibit 1, page 58.
[113] Exhibit 4, page 211.
[114] Ibid.
[115] Exhibit 1, page 58.
On 3 December 2021, Mr Fear was convicted by the NSW District Court of ‘Recklessly deal with proceeds of crime >$5000-T1’ and ‘Supply prohibited drug >indictable & <commercial quantity-T1’ and sentenced to an aggregate term of two years and nine months’ imprisonment.[116] The Judge noted that police found over 21 grams of methylamphetamine and over $15,000 in cash at Mr Fear’s premises and that the amount of drugs was ‘four times the indictable quantity’, but ‘a long way short of the commercial quantity’.[117] His Honour assessed the objective seriousness of the ‘supply offence’ as ‘well below a notional mid-range offence, but clearly not at the bottom of the range’ and assessed the proceeds of crime offence as ‘being well below a notional mid-range offence, but not at the bottom of the range’.[118] It was further noted that Mr Fear had ‘quite a significant criminal history’ and had ‘served a number of terms of full-time imprisonment’.[119] The sentencing remarks disclosed that in his evidence Mr Fear acknowledged his extensive criminal history, longstanding drug addiction and that ‘he expected ultimately to be deported to New Zealand upon expiry of his non-parole period’.[120] The Judge stated that it ‘was a little surprising’ that Mr Fear’s evidence was that he had not engaged in any significant drug rehabilitation program ‘given the number of times he has previously been on parole in the community’ and that Mr Fear ‘acknowledged in his evidence that he has had past opportunities, but has not taken them’.[121] His Honour noted that there was ‘no specific evidence as to the future risk of reoffending, although his record suggests that it is not low’ and his ‘prospects for rehabilitation are guarded, bordering on poor, in my view’.[122]
[116] Ibid., page 33.
[117] Ibid., pages 47-48.
[118] Ibid., page 49.
[119] Ibid.
[120] Ibid., page 50.
[121] Ibid.
[122] Ibid.
Based on the evidence before the Tribunal, Mr Fear’s criminal offending included violent crimes, crimes of a violent nature against women and acts of family violence, each of which are viewed ‘very seriously’ by the Australian Government and the Australian community, pursuant to paragraph 8.1.1(1) of Direction 99. For the avoidance of doubt, the Tribunal also finds these crimes and conduct of Mr Fear to be very serious.
Furthermore, the Tribunal finds that Mr Fear’s conduct engages paragraph 8.1.1(b)(ii) of Direction 99, because it included crimes committed against government officials due to the position they hold, or in the performance of their duties. That is, on 24 November 2010, Mr Fear was convicted of ‘Assault officer in execution of duty-T2’ and ‘Resist officer in execution of duty’.[123] The Tribunal is accordingly satisfied that, pursuant to paragraph 8.1.1(b) of Direction 99, these crimes are considered by the Australian Government and the Australian community to be ‘serious’. The Tribunal is also so satisfied. Additionally, as set out above in these reasons, in 2007 Mr Fear was convicted of using an offensive weapon to prevent a police investigation, being one of two convictions comprising the 2007 Firearm Convictions.[124] In contrast to Mr Fear’s aforementioned convictions for assaulting and resisting a police officer, the Tribunal is not satisfied that the 2007 Firearm Convictions wholly amounted to crimes committed specifically against a government official as contemplated by paragraph 8.1.1(b)(ii) of Direction 99. However, the Tribunal is satisfied that Mr Fear engaged in threatening conduct that hindered the police in the performance of their duties, including by threatening to kill the officer if they did not leave the premises and refusing to exit the premises for thirty hours, involving the use of police resources. While paragraph 8.1.1(b) of Direction 99 sets out the types of crimes or conduct that are considered by the Australian Government and the Australian community to be serious, it also states that the range of conduct that may be considered serious is not limited by that list. In this regard, the Tribunal finds that Mr Fear’s conduct that resulted in the 2007 Firearm Convictions was serious.
[123] Ibid., page 34.
[124] Ibid., page 35.
Turning to consider the sentence imposed by the courts for a crime or crimes pursuant to paragraph 8.1.1(c) of Direction 99, plainly a sentence of imprisonment is the last resort in the sentencing hierarchy and must be viewed as a reflection of the objective seriousness of the offending.[125] The overall seriousness of Mr Fear’s criminal offending is demonstrated by the multiple sentences of imprisonment imposed upon him by the courts over a substantial period of time.[126] As set out above, and by way of example, in 2007 Mr Fear was sentenced to four years’ imprisonment for using an offensive weapon to prevent a police investigation, in 2018 he was sentenced to one year and 10 months’ imprisonment for supplying a prohibited drug, being methylamphetamine, and in 2021 Mr Fear was sentenced to two years and nine months’ imprisonment again for supplying the prohibited drug, methylamphetamine.[127]
[125] PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22]. See also Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50].
[126] Exhibit 1, pages 32-36.
[127] Ibid., pages 33-35.
With respect to paragraphs 8.1.1(d) and (e) of Direction 99, Mr Fear has engaged in frequent and sustained criminal offending for approximately 20 years, the cumulative effect of which the Tribunal finds is very serious. Among other crimes, Mr Fear has engaged in repeated acts of family violence, supplying prohibited drugs, assault and possessing firearms, and has been found guilty of those crimes in Australia. While Mr Fear was not convicted of any offence between 1987 and 2001, since that time there has been a trend of increasing seriousness in his offending, as set out above in these reasons. Additionally, Mr Fear continued to offend despite being the subject of an ADVO and while on bail for other offences, and, in this regard, having been given the benefit of remaining at liberty in the community.
Furthermore, the Tribunal finds that Mr Fear continued his criminal conduct after receiving formal warnings or notification from the Department about the consequences of further offending in relation to his migration status, and in particular, the prospect that the Visa may be cancelled under the Act.[128] On two occasions, in 2008 and 2011, Mr Fear received notices from the Department regarding its intention to consider cancellation of his Visa under subsection 501(2) of the Act due to his substantial criminal record.[129] On both occasions, the Department decided not to cancel Mr Fear’s Visa, but issued him with a formal warning about future reconsideration of cancellation if he committed any further offences or otherwise breached the character test under the Act.[130] In 2008 and 2011, Mr Fear acknowledged receipt of these notices and warnings, but continued to commit criminal offences and was convicted by the courts in 2010, 2011, 2013, 2015, 2016, 2018 and 2021 and sentenced to terms of imprisonment on a number of those occasions.[131]
[128] Exhibit 4, pages 41-46 and 62-67.
[129] Ibid.
[130] Exhibit 1, pages 148-149 and 151-152.
[131] Ibid., pages 33-34, 150 and 153.
For completeness, the Tribunal notes that paragraphs 8.1.1(f) and (h) are inapplicable in Mr Fear’s application. In this regard, Mr Fear has not provided false or misleading information to the Department and his offending was not committed in a country other than Australia.
Having regard to all the evidence and the relevant considerations in paragraph 8.1.1 of Direction 99, the Tribunal finds that this limb of Primary Consideration 1, the nature and seriousness of Mr Fear’s conduct, weighs very heavily against revocation of the original decision to cancel his Visa.
The risk to the Australian community should Mr Fear commit further offences or engage in other serious conduct
Paragraph 8.1.2 of Direction 99 provides as follows:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the 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 their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
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 Tribunal turns to consider the risk to the Australian community pursuant to paragraph 8.1.2 of Direction 99. Given the Tribunal’s findings about the objective seriousness of the offences committed by Mr Fear, it follows that the nature of the potential harm to the Australian community should he again engage in similar criminal or other conduct is very serious; it would likely involve significant physical and psychological harm to members of the community. To this end, based on the evidence before the Tribunal, the Tribunal is satisfied that the conduct and the harm that would be caused, if it were to be repeated by Mr Fear, is so serious that any risk of it being repeated is unacceptable, pursuant to paragraph 8.1.2(1) of Direction 99.
As previously set out in these reasons, Mr Fear has been convicted of numerous serious offences over a sustained period of time, including the commission of violent crimes and acts of family violence.[132] For example, the Tribunal refers to the aforementioned 2007 Further Convictions, the 2007 DV Convictions, the 2016 DV Conviction, and the 2021 DV Conviction. The Tribunal does not accept that the nature of the harm to individuals or the Australian community may be lessened because a significant proportion of Mr Fear’s offending related to drug and theft offences as a result of drug addiction and/or mental health issues, rather than acts of violence, and that those acts of violence he did commit were relatively isolated from the majority of his other offending. As set out above, Mr Fear has since 2001 been convicted of an extensive and wide-ranging array of crimes that include serious and very serious offences, such as those related to domestic violence, and other acts of violence, and offences against members of the police force in the performance of their duties. The circumstances surrounding Mr Fear’s crimes do not derogate from their seriousness or the nature of the harm that would likely be caused if he engaged further criminal or other serious conduct. Accordingly, the Tribunal is satisfied that the nature of the harm to individuals or the Australian community should Mr Fear engage in further criminal or other serious conduct is likely to be significant. The Tribunal finds that this weighs very heavily against revocation of the decision to cancel his Visa.
[132] Ibid., pages 32-36.
In relation to the likelihood of Mr Fear engaging in further criminal conduct or other serious conduct, under paragraph 8.1.2(2)(b) of Direction 99, based on the evidence before the Tribunal, it is not satisfied that the likelihood is presently low. In reaching this finding, the Tribunal has had regard to information and evidence on Mr Fear’s risk of re-offending and evidence of his rehabilitation.
In relation to the risk of re-offending, Mr Fear submitted, among other things, that he previously had a significant period while not incarcerated, being up until 2001; much of the offending was connected with his drug use and addiction and mental health issues; he has ceased using drugs since his latest imprisonment and detention; he will remove himself from antisocial influences in the community; Mr Fear has shown ‘a consistent determination to attempt to overcome his drug addiction through the completion of various programs’; and completed the ‘Remand DV Program’ from 18 February 2021 to 3 March 2021 immediately after the most recent domestic violence event.
Mr Fear acknowledged in his submissions that a significant proportion, if not all, of his criminal offending has been associated with his drug use and addiction and/or mental health issues. Despite Mr Fear’s contention regarding him having a reduced risk of recidivism, the Tribunal considers that his ability to avoid further drug use in the community is uncertain. To this end, Dr Freeman, Psychiatrist, opined that Mr Fear was in ‘partial remission in a controlled environment’ in relation to both ‘Methamphetamine Dependency Disorder’ and ‘Cannabis Dependency Disorder’.[133] That is, Mr Fear’s incarceration and detention has limited his access to these illicit substances. His abstinence in the community is therefore plainly untested. In this regard, Dr Freeman also observed that ‘relapse is likely to ensure that past behaviour is an efficient predictor of future behaviour’.[134]
[133] Exhibit 2, page 12.
[134] Ibid., page 18.
Additionally, Dr Freeman noted that the risk of recidivism was difficult to determine with ‘psychological certainty’, although he stated that ‘such risk cannot be considered in the “low” category’ and that the primary risk appears to be relapsing into drug use, which was ‘a direct contributor (and forms the aetiology) of most of his more recent offending’.[135] To this end, Dr Freeman reported that Mr Fear’s score for the ‘HCR-20’, being the Historical, Clinical and Risk Management Violence Assessment Scheme, placed him in the ‘moderate’, or medium, category for future acts of violence.[136] Dr Freeman opined that ‘engagement in treatment and monitoring (to either strengthen relapse prevention skills and/or provide quick response to relapse) is likely to have a salutary effect upon the risk (and extent) of recidivism’.[137] In addition to drug use, Dr Freeman also noted that the primary risk factors appeared to be Mr Fear’s ‘versatility of past offending’, reduced support network and impulsivity.[138] Moreover, Dr Freeman noted that Mr Fear ‘has shown criminal versatility (e.g. personal, property, drug offences) and committed further offences while on supervision orders (e.g. bail), which is reflective of his vulnerability to relapse and/or fail to recognise high-risk situations’.[139]
[135] Ibid.
[136] Ibid., page 15.
[137] Ibid., page 18.
[138] Ibid.
[139] Ibid., page 13.
The Tribunal notes that paragraph 8.1.2(2)(b)(ii) of Direction 99 requires a decision-maker to take into account evidence of rehabilitation achieved by the time of the decision and notes that decisions should not be delayed in order for rehabilitative courses to be undertaken. In this regard, the Tribunal acknowledges that Mr Fear traces the origin of drug addiction, mental health problems and subsequent criminal activity to a childhood head injury and that the potential link between this injury and the aforementioned issues has not been adequately investigated such that, if established, treatment could be administered which may aid in reducing his risk of re-offending. The prospective investigation and treatment is not a rehabilitative course, however the Tribunal accepts that the possibility of a link between Mr Fear’s traumatic head injury in childhood and his subsequent issues moderate the weight in favour of not revoking the cancellation decision under this consideration.

Paragraph 9.1(1) of Direction 99 provides that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198 of the Act, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime detention under section 189, noting also that subsection 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
Accordingly, the Tribunal acknowledges that, as an unlawful non-citizen, Mr Fear is presently in immigration detention in Australia and, following an adverse decision in this proceeding, liable to removal from this country to New Zealand as soon as reasonably practicable pursuant to the Act.
As set out in paragraph 9.1(2) of Direction 99, a non-refoulment obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. This obligation on Australia arises under international law pursuant to various international treaties and covenants. However, as noted in paragraph 9.1(3) of Direction 99, international non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
That is the situation in this proceeding. Mr Fear did not contend that any international non-refoulment obligation was applicable to him in this proceeding and the Tribunal is satisfied on the available evidence that the circumstances do not indicate that there would be any non-refoulement claim, noting again that Mr Fear is a citizen of New Zealand, and no protection visa application or protection finding as defined by section 197C of the Act has been made in relation to Mr Fear. Accordingly, this other consideration in Direction 99 is not relevant and the Tribunal gives it no weight in this decision.
Extent of impediments if removed
Paragraph 9.2(1) of Direction 99 requires consideration of the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
Mr Fear is a citizen of New Zealand but has not lived in that country since he was two years old. He is now 57.[174] The Tribunal accepts the evidence that Mr Fear presently has multiple health issues. He has being diagnosed with, and receives monthly medication for, Paranoid Schizophrenia, and gave evidence that he takes medication for high blood pressure and arthritis, together with Dr Freeman’s diagnoses of Mr Fear being in remission or partial remission for a range of disorders, being Alcohol Dependency Disorder, Methamphetamine Dependency Disorder and Cannabis Dependency Disorder.[175] In his report of 10 October 2023, Dr Freeman also diagnosed Mr Fear with ‘Adjustment Disorder (with anxious distress)’ due to the ‘emotional stress associated with his current situation e.g., ongoing incarceration, concern about visa status, etc.’.[176] This includes ‘mainly worrying about having to start again in New Zealand’.[177] In this regard, on 22 September 2023, a general practitioner made a diagnosis of ‘Anxiety’, which largely accords with Dr Freeman’s subsequent diagnosis of Adjustment Disorder with anxious distress.[178] Accordingly, the Tribunal is satisfied that Mr Fear’s age and particularly his health will likely present impediments in establishing himself and maintaining basic living standards if he is removed from Australia, and therefore weighs heavily in favour of revocation of the cancellation decision.
[174] Exhibit 1, pages 2, 32 and 147.
[175] Exhibit 2, page 12. See also Exhibit 1, page 177.
[176] Exhibit 2, pages 12-13.
[177] Ibid., page 13.
[178] Ibid., page 27.
Mr Fear conceded that there are no substantial language or cultural barriers should he be returned to New Zealand. Mr Fear speaks English, went to school in Australia up until Year 9, leaving in Year 10, and has been employed for some period of time in the community and has worked while in gaol.[179] Accordingly, the Tribunal is satisfied that Mr Fear would face no substantial language or cultural barriers if removed from Australia to New Zealand. The Tribunal therefore finds that this factor does not weigh in favour of revocation of the cancellation decision and weighs marginally in favour of non-revocation.
[179] Exhibit 1, pages 143-144, 176 and Exhibit 2, page 9.
The Tribunal accepts that Mr Fear has no present social ties or support network in New Zealand and that this will likely result in him experiencing difficulties in establishing himself in that country, especially when compared to the aforementioned support he has available in Australia from Ms Adam and her partner together with their networks, such as a general practitioner, if he were to remain in this country. Additionally, Mr Fear will likely face initial impediments in securing the appropriate medical support, treatment and medication required for his health conditions, including his numerous psychological disorders presently in remission or partial remission and his schizophrenia. To this end, the Tribunal further accepts that there would be a period of adjustment for Mr Fear if removed from Australia and returned to New Zealand and that he will likely experience some initial difficulties in establishing himself in that country, including in relation to accommodation, employment and financial, health and social support. In this regard, there was no evidence before the Tribunal that Mr Fear would have any immediately available accommodation in New Zealand, and it accepts that the prospects of him securing paid employment in the short to medium term are likely to be slim due to his health, criminal history, employment history and level of education. Additionally, given Mr Fear’s past history, there is also a real chance that he may experience a relapse in his treatment for drug addiction and schizophrenia, leading to potentially negative consequences for his mental health and general wellbeing and also potentially the wellbeing of others, noting again that he remains a ‘moderate’ risk of reoffending and has stated that he will likely reoffend if removed because of the difficulty in securing accommodation and employment.[180] As a result, the Tribunal finds that all of the aforementioned factors in relation to Mr Fear and the impediments he is likely to face if removed to New Zealand weigh heavily in favour of revocation of the cancellation decision.
[180] Exhibit 1, page 178.
However, the Tribunal is satisfied that, as a citizen, Mr Fear would enjoy the same rights and support available to other citizens of New Zealand and would therefore be able to establish himself and maintain basic living standards in the context of what is generally available to other citizens. In this regard, the Tribunal is satisfied that New Zealand has broadly comparable economic, health and social supports to Australia and that Mr Fear would have access to the same level of supports that are generally available to any other citizen of New Zealand, such as from the social security and health systems. There was no evidence before the Tribunal to the contrary. The Tribunal finds that these matters weigh marginally in favour of non-revocation.
The Tribunal acknowledges that being removed from Australia would be very difficult emotionally for Mr Fear. He has lived in this country for the overwhelming majority of his life and since he was two years old. As a result, the Tribunal accepts that the accompanying emotional distress and hardship if removed would present challenges for Mr Fear, including the possibility that he may relapse with one or more addictions presently in remission, and having to re-start his life in New Zealand, where he has not spent any time since he was a young child, 55 years ago. In this regard, the Tribunal also accepts that it is possible that Mr Fear may suffer further psychological symptoms during this period. While acknowledging that such a circumstance would be very difficult, there was no evidence before the Tribunal that Mr Fear could not access the same health support, including any required medication, that is available to other citizens of New Zealand to address this and other conditions. The Tribunal accepts that there are very real, and potentially dramatic, consequences of its decision and finds that these matters weigh in favour of Mr Fear and revocation of the cancellation decision. To this end, the Tribunal accepts the Australian Human Rights Commission’s (AHRC) submission to a Parliamentary Joint Standing Committee on Migration, contained in Mr Fear’s Statement of Facts, Issues and Contentions in this proceeding, that:[181]
Long-term residents whose visas are cancelled on character grounds may be deported to a country where they have spent little time (or have never lived); where they do not speak the language; and where they have few or no social or family connections. Those returned to these circumstances may face serious difficulties in securing safe housing and a source of income (due to factors such as language barriers and lack of social networks).
[181] Exhibit 2, page 180.
It is for the applicable reasons mentioned in the AHRC submission that the Tribunal has found that the impediments likely to be faced by Mr Fear if removed from Australia weigh heavily in favour of revocation of the cancellation decision. However, as set out above, the Tribunal is satisfied that, if removed from Australia, and despite some likely initial difficulties, Mr Fear would be able to establish himself and maintain basic living standards in New Zealand, in the context of what is generally available to other citizens of that country. The Tribunal again notes that Mr Fear would have no language or cultural barriers to overcome if he returned to New Zealand and there was no evidence that he could not access the social, medical and economic support in New Zealand that is generally available to other citizens.
Accordingly, having regard to the totality of the evidence and the various factors involved in this consideration, the Tribunal finds that this other consideration, the extent of impediments if removed, weighs in Mr Fear’s favour. However, for the reasons set out above, including because there are no language or cultural barriers and there was no evidence that Mr Fear could not access the medical and other support services available to other citizens of New Zealand, the Tribunal finds that this other consideration weighs moderately in favour of revocation of the cancellation decision.
Impact on victims
Paragraph 9.3 of Direction 99 relevantly states that decision-makers must consider the impact of the section 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available. In the absence of any evidence in relation to this other consideration, the Tribunal finds that it is inapplicable in this proceeding. Both parties agreed that this consideration did not apply in the Tribunal’s review. Accordingly, the Tribunal gives this other consideration no weight in its decision.
Impact on Australian business interests
Paragraph 9.4 of Direction 99 provides that:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Tribunal again notes that there was evidence of Mr Fear having been employed during his time in Australia. However, paragraph 9.4 of Direction 99 relevantly states that an employment link would generally only be given weight where the decision under section 501CA of the Act would significantly compromise the delivery of a major project or delivery of an important service in Australia. There was no evidence before the Tribunal that the decision would have any such impact and Mr Fear made no such submission. Both parties agreed that this consideration was inapplicable to the Tribunal’s review. Accordingly, the Tribunal finds that this other consideration is not relevant and is given no weight in its decision.
Additional other considerations
As noted above, paragraph 9(1) of Direction 99 states that the ‘other considerations’ to be taken into account by a decision-maker are ‘not limited to’ those set out under paragraph 9 of Direction 99. This accords with the wide discretionary power under subsection 501CA(4)(b)(ii) of the Act, which provides that the Minister, or here the Tribunal, may revoke the original decision, being the decision to cancel the Visa, if there is ‘another reason’ why the original decision should be revoked.[182] To this end, Mr Fear raised three additional considerations which the Tribunal addresses in turn below.
[182] Plaintiff M1 v Minister for Home Affairs [2002] HCA 17 at [22]. See also Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94.
The circumstances and nature of Mr Fear’s New Zealand citizenship
The first additional other consideration raised by Mr Fear related to the circumstances and nature of his New Zealand citizenship. Mr Fear is a New Zealand citizen by birth, not by descent or any other mechanism. His parents are Australian citizens and were so at the time of his birth. They moved to New Zealand before Mr Fear was born in that country and resided there for approximately three years. One of Mr Fear’s two siblings was also born in New Zealand, the other sibling having been born in Australia and being an Australian citizen. At the age of two, Mr Fear, with his parents, arrived in Australia and he has resided in this country since that time. Both of Mr Fear’s biological children are Australian citizens.
Mr Fear submitted that he is an anomaly in his family and is essentially a New Zealand citizen by chance and circumstance, with no ties to that country except his citizenship. He pointed to a submission made in 2018 from the NSW Council for Civil Liberties to the Parliamentary Joint Standing Committee on Migration that people, especially those who have come to Australia at a very young age, and are on absorbed visas in Australia who are not citizens as being ‘an accident, a loophole’.[183] Mr Fear also pointed to a submission to the same Committee from the then New Zealand High Commissioner to Australia about this country’s responsibility for those long-term resident New Zealanders who have made their life in Australia, have the weight of their family in this country and ‘are essentially products of the Australian system’.[184] Mr Fear submitted that he is such a person. He referred to the Joint Standing Committee’s report dated February 2019, which noted that ‘many New Zealand citizens affected by visa cancellations have been resident in Australia for many years and have not taken up citizenship because, under previous laws, it did not seem necessary or beneficial for a range of reasons’.[185] The Committee then commented that it believed ‘these special circumstances applying to New Zealanders who have lived in Australia for many years should be taken into account by all decision-makers in section 501 cancellations’.[186]
[183] Exhibit 2, page 108.
[184] Ibid., page 114.
[185] Ibid., page 118.
[186] Ibid.
However, the Tribunal notes that the Committee’s subsequent paragraphs relevantly stated that:[187]
A specific provision should be included in the Ministerial Directions which allows the historic special immigration status of New Zealand citizens, and its impact on take up of citizenship in Australia, to be considered. However, it should be a secondary consideration and not considered in cases where the person has ever been convicted of a serious violent crime, such as rape, murder, sexual offences involving children, aggravated assault or armed robbery.
…
Long-term permanent residents of Australia, from all countries, including New Zealand, must understand that, unless they become citizens, they are not protected from possible deportation for criminal activity, regardless of the length of time they have lived in Australia.
[187] Ibid.
Despite the Committee’s comments, no such specific provision in relation to New Zealand citizens is contained in Direction 99, although the now Primary Consideration 3, the strength, nature and duration of ties to Australia, was moved from an ‘other consideration’ to a primary consideration when Direction 99 was made earlier this year. In addition, even if there were such a provision, it is plain that, in the form contemplated by the Committee, Mr Fear would not be able to avail himself of that consideration in light of his serious criminal offending. As the Committee stated, long-term residents of Australia, without citizenship of this country, are not protected from deportation for criminal activity regardless of how long they have resided in Australia. Such is the lot of Mr Fear.
Mr Fear submitted that, had his parents applied for Australian citizenship on his behalf as a child, he would have become an Australian citizen as of right.[188] The Tribunal accepts this contention. Mr Fear noted that he had been informed by his parents that they made an intentional decision not to apply to have him registered as an Australian citizen while a minor, notwithstanding that they had permanently returned to Australia. The Tribunal had no evidence to support this contention but accepts, in the absence of evidence to the contrary, that it is accurate for the purpose of this consideration.
[188] Ibid., page 36.
Mr Fear submitted that his parents’ decision not to apply to have him registered for Australian citizenship, when he was a minor and when they had responsibility for doing so, has operated prejudicially against him because he would not, as an adult, satisfy the Minister that he is of ‘good character’ to be granted citizenship by descent. That is, Mr Fear contended, the test for the grant of Australian citizenship would have operated negatively against him from early in his adulthood to the present day, despite his very strong ties to Australia and practically no ties to New Zealand. Mr Fear contended that his parents’ decision not to apply for citizenship had prejudiced him, and by the time he understood these matters it was too late to apply for citizenship himself, including because the ‘good character’ requirement would have operated negatively against him. As a result, Mr Fear argued, the mandatory cancellation of the Visa appeared to be an unfortunate result of the automatic machinery of the legislation and is not the type of situation that the provision of the Act sought to address. Mr Fear therefore submitted that the decision not to revoke the cancellation decision was an improper exercise of the discretion afforded to the decision-maker, and was a strict application of the law without proper regard to the negligible ties he has to New Zealand and the completeness of his ties to Australia. Accordingly, Mr Fear submitted, this matter carries strong moral and normative weight and strongly weighs in favour of revocation of the cancellation decision.
The Tribunal notes that it has considered the strength, nature and duration of Mr Fear’s ties to Australia under Primary Consideration 3 and found that they weigh heavily in favour of revocation of the cancellation decision.

As previously stated, the Tribunal accepts that if, when he was a minor, Mr Fear’s parents had applied to have him registered for Australian citizenship by descent he would have become an Australian citizen. However, that did not occur. The Tribunal had no evidence from Mr Fear’s parents regarding the circumstances as to why they did not apply for him to become an Australian citizen. The Tribunal must deal with the facts are they stand. As unfortunate or idiosyncratic as it may be, Mr Fear is not an Australian citizen. He is a citizen of New Zealand. The Tribunal accepts that he considers himself Australian and has been prejudiced by his parents’ decision not to apply for him to become an Australian citizen when he was a child, because as an adult he would likely not pass the character test for Australian citizenship. The Tribunal sympathises with Mr Fear’s situation.
However, the Tribunal does not accept that the mandatory cancellation of Mr Fear’s Visa was an unfortunate result of the automatic machinery of the legislation and not the type of situation that the Act was seeking to address. If the Parliament had wanted the legislation to operate in a different manner in relation to people in Mr Fear’s circumstances, it presumably would have passed amendments to the Act to that effect. To this end, as noted above, Direction 99 does not contain the specific provision regarding consideration being required to be given to the special historical immigration status of some New Zealanders, as recommended by the Joint Committee on Migration, and also again notes that such a consideration, as contemplated by the Committee, would not apply to Mr Fear given the nature of his offending in Australia. The Tribunal has given consideration to Mr Fear’s circumstances under this additional other consideration and also made findings regarding the strength, nature and duration of his ties to Australia under Primary Consideration 3 in these reasons. The Tribunal again notes that Mr Fear is not a citizen of Australia, despite the length of time he has lived in this country, and he was therefore liable to have his Visa cancelled due to his serious criminal offending, such as occurred in 2021, despite having received two formal warnings in 2008 and 2011 about the impact of future offending on his migration status in this country. To this end, the Tribunal accepts that Mr Fear is facing removal from Australia because he is not an Australian citizen, but also because he does not pass the character test under the Act due to his significant criminal record and the finding that there is not another reason why the cancellation decision should be revoked. As a result, the Tribunal does not accept that a decision not to revoke the cancellation decision would be unjust and oppressive in the circumstances.
Accordingly, for the above reasons, the Tribunal finds that this additional other consideration weighs marginally in Mr Fear’s favour and for revocation of the cancellation decision.
Human rights implications
The second additional other consideration raised by Mr Fear related to Australia’s human rights obligations, and he contended that these weighed heavily in favour of revocation of the cancellation decision. In this regard, Mr Fear referred to the aforementioned AHRC submission from 2018 to the Joint Standing Committee on Migration. For completeness, the Tribunal sets out below the paragraphs from that submission referred to by Mr Fear:[189]
Removing long-term residents from a country in which they have lived for a long period of time, and perhaps for their whole lives, raises human rights issues. Under article 12(4) of the ICCPR, Australia has an obligation not to arbitrarily deprive a person of the right to enter their own country. As noted by the [United Nations] Human Rights Committee, article 12(4) ‘does not distinguish between nationals and aliens’, thus Australia’s obligations under this article are not limited to Australian citizens. The Human Rights Committee advises that article 12(4) ‘embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien’.
In a case dealing with the removal from Australia of a permanent resident who was born in Sweden, who arrived in Australia when he was 27 days old, and who had remained in Australia ever since, the Human Rights Committee said:
There are factors other than nationality which may establish close and enduring connections between a person and a country, connections which may be stronger than those of nationality. The words ‘his own country’ invite consideration of such matters as long standing residence, close personal and family ties and intentions to remain, as well as to the absence of ties elsewhere.
…
‘One’s own country’ in this context extends to the country to which special ties or claims have arisen. Deporting long-term residents whose visas have been cancelled on character grounds may therefore lead to violations of Australia’s obligations under article 12(4), particularly if the person concerned has no meaningful connection to their country of origin.
[189] Ibid., pages 179-180 (internal references excluded).
Mr Fear subsequently submitted that he was not relying on Australia’s human rights obligations as a source of right, but that Australia is a signatory to the International Covenant on Civil and Political Rights, giving rise to international obligations and expectations on Australia, regardless of whether all aspects of that instrument have been implemented through domestic legislation. Therefore, Mr Fear contended, whether or not an international treaty has been given full effect by the Parliament is not decisive as to whether Australia’s international obligations warrant consideration by the Tribunal.
To the extent that Mr Fear’s contention regarding Australia’s human rights obligations raises issues in relation to his ties to Australia or the impediments he may face if removed from this country, the Tribunal again notes that it has considered and made findings, under Primary Consideration 3, in relation to the strength, nature and duration of Mr Fear’s ties to Australia, and found that these weigh heavily in his favour. The Tribunal has also considered and made findings about the extent of impediments if Mr Fear was removed from Australia.
Most relevantly, the Tribunal notes that the plurality of the High Court of Australia in Plaintiff M1 v Minister for Home Affairs [2002] HCA 17 at [20] held that:
In point of constitutional principle, an international treaty (or customary international law obligations of a similar nature) can operate as a source of rights and obligations under domestic law only if, and to the extent that, it has been enacted by Parliament. It is only Parliament that may make and alter the domestic law. The distinction also has significant consequences for discretionary decision‑making under powers, such as s 501CA, conferred by statute and without specification of unenacted international obligations: such obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error.
As previously stated in these reasons, Mr Fear is not a citizen of Australia, despite the length of time he has lived in this country, and he was therefore liable to have his Visa cancelled due to his serious criminal offending, such as occurred in 2021, despite two formal warnings in 2008 and 2011 about the impact of future offending on his migration status in this country. To this end, the Tribunal accepts that, despite being a long-term resident of Australia, Mr Fear is facing removal from this country because he is not an Australian citizen, but also because he does not pass the character test under the Act due to his significant criminal record and the finding that there is not another reason why the cancellation decision should be revoked. The Tribunal sympathises with Mr Fear’s situation to the extent that he has resided in Australia for the overwhelming majority of his life and considers this country his home.
To the extent that Australia’s human rights obligations, as submitted, are a relevant consideration in this application, the Tribunal accepts that there may be human rights issues attached to the removal of long-term residents, however whether such removal due to the cancellation of a visa on character grounds leads to violations of Australia’s international human rights obligations is not a matter for determination by the Tribunal. The Parliament has enacted those elements of international treaties or customary international law obligations it considers appropriate for Australia. In this way, the Parliament has made the applicable law in relation to the Tribunal’s review process in this proceeding, specifically through the Act. The Minister has also, as provided for under the Act, made Direction 99, to guide decision-makers in the review process presently being undertaken by the Tribunal. having considered Mr Fear’s submissions on this matter, the Tribunal is not satisfied that any human rights obligations on Australia are directly applicable to Mr Fear in this proceeding, other than those enacted in domestic legislation by the Parliament. To this end, the Tribunal has considered the various factors in issue in this proceeding and made specific findings on those matters. Accordingly, the Tribunal finds that this additional other consideration weighs only marginally in Mr Fear’s favour and for revocation of the cancellation decision.
Impact on New Zealand international relations
The third additional other consideration raised by Mr Fear related to how the New Zealand government would view the cancellation of his Visa, or non-revocation of that cancellation decision, in circumstances where it has previously been very critical of the deportation by Australia of persons in similar situations. As a result, Mr Fear contended that this other consideration weighed strongly in favour of revocation of the cancellation decision.
Mr Fear referred to the New Zealand government having publicly condemned decisions of the Australian government to return New Zealand citizens when they have significant tenure of residence in, and strong ties to, Australia, and to a newspaper article which stated that ‘New Zealand has repeatedly objected to the deportation of people “who have lived in Australia for a long time and are essentially Australians”’.[190] Mr Fear also referred to reported comments from 2019 made by then New Zealand Prime Minister Jacinda Ardern, where she acknowledged that some deportation cases were ‘completely legitimate’, but not those where the deportee had ‘almost no connection’ to New Zealand.[191] It is noteworthy that these comments preceded the change brought about by Direction 99 in January this year making the strength, nature and duration of ties to Australia a primary consideration, rather than an other consideration as it was under the earlier Direction 90. Mr Fear contended that his matter appeared to be at the limit of tolerance, given the context in which he has New Zealand citizenship.
[190] Ibid., page 240.
[191] Ibid., page 249.
Mr Fear referred to comments made in February 2023 by then New Zealand Prime Minister Chris Hipkins, in response to this change in Direction 99 made by the Australian Government, that he welcomed ‘the acknowledgement on the Australian side that actually some of the people that we are talking about have had a long history in Australia’ and that ‘[s]ome of them have been there since they were very young children, and sending them to New Zealand when they have no connections here other than a very historic one isn’t really a fair or just outcome’.[192]
[192] Ibid., pages 243-244.
Mr Fear submitted that:
(a)he meets the category of person whom the change in policy is intended to protect; and
(b)a non-revocation decision resulting in deportation to New Zealand would be viewed very negatively by that government, due to him having resided in Australia almost all of his life, having only spent the first two years of his 57 years in New Zealand, and the majority of his biological family, including his parents, being Australian citizens with a short tenure of residence in New Zealand.
Without elevating the importance of the Tribunal’s role, it accepts this decision, and those of a similar nature, may have an impact on Australia’s relations with New Zealand and may be viewed negatively by the New Zealand government. These factors therefore weigh in Mr Fear’s favour. However, the weight attributable to this additional other consideration is minimal.
The management of Australia’s foreign policy is not a matter for the Tribunal. It is squarely a matter for the Australian Government, which also plainly has policy responsibility for Australia’s migration system and has, through the Minister, made Direction 99 that earlier this year made the strength, nature and duration of a person’s ties to Australia a primary, rather than ‘other’, consideration for a decision-maker to evaluate under the Act. The Tribunal, pursuant to the Act and Direction 99, has undertaken a thorough consideration of all relevant matters in relation to Mr Fear’s application for review and made specific findings on those matters. The Tribunal again notes that it has found that the strength, nature and duration of Mr Fear’s ties to Australia, being Primary Consideration 3 under Direction 99, weighs heavily in favour of revocation of the cancellation decision. The Tribunal does not accept the submission that the change in policy by making the strength, nature and duration of ties to Australia a primary consideration was intended to protect a certain category of person such as Mr Fear, that is, New Zealand citizens who are long-time residents of Australia with little connection to New Zealand. Primary Consideration 3 is but one of many considerations the Tribunal is required to evaluate and weigh in its decision-making process. To this end, the Tribunal has found that the three other relevant primary considerations in this proceeding weigh heavily against revocation of the decision to cancel Mr Fear’s Visa and that none of the relevant considerations in favour of Mr Fear either individually or collectively outweigh those weighing heavily against him.
For all of these reasons, the Tribunal is satisfied that the impact of Australia’s international relations with New Zealand as a result of its decision is likely to be negligible. Accordingly, the Tribunal finds that this additional other consideration weighs only marginally in Mr Fear’s favour and for revocation of the cancellation decision.
CONCLUSION
The Tribunal has found that Mr Fear does not pass the ‘character test’ as defined in subsection 501(6) of the Act because of his ‘substantial criminal record’. Following this finding, the critical issue for determination by the Tribunal was whether there was ‘another reason’ why the original decision to cancel Mr Fear’s Visa should be revoked. This required a consideration of Direction 99. The Tribunal has found that there is not another reason why the original decision should be revoked.
The Tribunal is satisfied, based on its assessment of all considerations, that the four relevant ‘other’ considerations, which include three additional other considerations raised by Mr Fear, together with Primary Consideration 3, regarding the strength, nature and duration of ties to Australia, which all weigh in favour of revocation, do not outweigh the three remaining relevant primary considerations, being the protection of the Australian community, family violence committed by the non-citizen and the expectations of the Australian community, which all weigh heavily against revocation of the cancellation decision. The Tribunal again notes that, pursuant to paragraph 7(2) of Direction 99, primary considerations should generally be given greater weight than other considerations. In this regard, the Tribunal has found that Primary Consideration 1, Primary Consideration 2 and Primary Consideration 5 outweigh those considerations in favour of Mr Fear and revocation of the decision to cancel his Visa. Accordingly, Mr Fear’s application before the Tribunal is unsuccessful.
DECISION
Pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review not to revoke the mandatory cancellation of the Applicant’s visa under subsection 501(3A) of the Act.

I certify that the preceding 201 (two hundred and one) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

..................[SGD]......................................................
Associate
Dated: 24 November 2023

Date(s) of hearing:

Date final submissions received:

13 November 2023

7 November 2023

Solicitor for Applicant:
Mr Reece Morrison, Corney and Lind Lawyers

Solicitor for Respondent: Mr Matthew Sheedy, HWL Ebsworth Lawyers

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2023/6468
GENERAL DIVISION	)