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

FHND and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2647 (4 August 2020)
Division:GENERAL DIVISION
File Number: 2020/2933
Re:FHND
APPLICANT

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

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:4 August 2020
Place:Melbourne

The Tribunal affirms the decision under review.
.....................[sgd]..............................................
Senior Member A. Nikolic AM CSC
MIGRATION – Mandatory visa cancellation – citizen of New Zealand – Class TY Subclass 444 Special Category (Temporary) visa – failure to pass character test – whether another reason for revocation – protection of Australian community – interests of minor child – expectations of Australian community – whether non-refoulement obligations owed due to fear of gangs – interests of victims – strength, nature and duration of ties – extent of impediments if removed - decision affirmed
LEGISLATION
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
Ali v Minister for Home Affairs [2020] FCAFC 109
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
Director of Public Prosecutions v Aitchison [2015] VCC 225
Enfield City Council v Development Assessment Commission (2000) 199 CLR 135
Falzon v Minister for Immigration and Border Protection (2018) 351 ALR 61
FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294
FYBR v Minister for Home Affairs [2020] HCATrans 056
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hili v The Queen (2010) 242 CLR 520
Hodgson v Minister for Immigration and Border Protection [2017] FCA 1141
HVLC v Minister for Home Affairs [2019] FCA 616
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Ibrahim v Minister for Home Affairs [2019] FCAFC 89
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Maxwell v R (1996) 184 CLR 501
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Murphy v Minister for Home Affairs [2018] FCA 1924
Minister for Home Affairs v Omar (2019]373 ALR 569
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535
RZSN v Minister for Home Affairs [2019] FCA 1731
Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155
SZTAL v Minister for Immigration and Border Protection & Anor (2017) 262 CLR 362
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Viane v Minister for Immigration and Border Protection (2018) 162 ALD 13
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501C
Direction No. 75 – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b)
US Department of State, 2018 Country Reports on Human Rights Practices: New Zealand (Annual Report, 2018) < FOR DECISION
Senior Member A. Nikolic AM CSC
4 August 2020
INTRODUCTION

The applicant seeks review of a decision by a delegate of the respondent, made under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (“the visa”).
The hearing was held in Melbourne on 27 July 2020. Refugee Legal provided the applicant with legal assistance during the pre-hearing phase, but he was self-represented at the hearing. The Minister was represented by Mr Sypott from the Australian Government Solicitor.
For the following reasons the Tribunal affirms the decision under review.
CONFIDENTIALITY
Pursuant to subsection 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AATA”) the Tribunal can allocate an anonym to a party if it considers it appropriate to do so. The Tribunal has decided to make such an order because some offences for which the applicant was convicted involve domestic violence against his partner, whose interests and that of their minor child merit protection. Until further order, the Applicant’s name is replaced with the anonym “FHND.” His partner will be referred to as “Ms A.” The Tribunal will also not disclose the names of witnesses or character referees.
BACKGROUND FACTS
FHND is a 24-year old citizen of New Zealand.[1] Prior to arriving in Australia in 2014 at the age of 18, he was convicted in New Zealand of multiple offences.[2] In 2013 he was convicted of assaulting Ms A with a blunt instrument, and for committing wilful damage in a family violence context, for which he received a nine-month supervision order. He left New Zealand approximately six months after that order ended.
[1] Exhibit R1, 52.
[2] Ibid, 22-23.
FHND resumed his relationship with Ms A in Australia. Within eight months of his arrival, he was convicted of further violent offences against Ms A and police.[3] Over the next five years, he was convicted of offences involving violence, dishonesty, breaches of conditional liberty and drugs.[4]
[3] Ibid, 21.
[4] Ibid, 19-21.
In September 2019, FHND was convicted in the Sunshine Magistrates’ Court of several offences, for which he received a total effective sentence of 15 months’ imprisonment.[5] FHND appealed that decision and in February 2020, the County Court set aside the orders of the Magistrates’ Court, instead imposing a total effective sentence of one year, two months and two weeks imprisonment.[6]
[5] Ibid, 48 [15].
[6] Ibid, 180-181.
FHND’s 2019 convictions were the basis on which his visa was mandatorily cancelled on 15 November 2019.[7] He made representations to have the visa cancellation decision revoked,[8] but was advised on 15 May 2020 that his application was unsuccessful.[9]
[7] Ibid, 98-103
[8] Ibid, 52-97.
[9] Ibid, 138.
FHND asked the Tribunal to review the non-revocation decision, stating:
‘I believe this decision is wrong because my risk to the Australian community is outweighed by compelling reasons in favour of being allowed to stay in Australia. I have a strong connection to Australia as my partner and child are in Australia. In my circumstances, I respectfully submit that the Tribunal should make orders setting aside the decision of the Delegate and exercise the discretion to revoke the cancellation of my visa.’[10]
[10] Ibid, 1-6.
Pursuant to s 500(6L) of the Act, the Tribunal must discharge its review function in respect of this application by 7 August 2020.
APPLICABLE LEGISLATION
Section 25(1)(a) of the AATA and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review decisions under s 501CA.
Section 501(3A) provides:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The ‘character test’ is defined in s 501(6) of the Act and refers to a range of character matters that the Minister or their delegate must have regard to in deciding whether to revoke a mandatory visa cancellation. Section 501(6)(a) of the Act provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or …
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record for the purposes of the character test, including if the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)), or has received two or more sentences of imprisonment, with the total of those terms exceeding 12 months (s 501(7)(d)).
Section 501CA(4) of the Act provides that:
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
Direction No. 79
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Minister has done so in the form of Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”). The Tribunal is obliged to apply the Direction because of s 499(2A) of the Act.[11]
[11] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, 9 (Collier, Flick and Perry JJ).
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Clause 6.1 of the Direction sets out several objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’
By way of general guidance, cl 6.2 of the Direction provides that:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) ….
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to…revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered…in making a revocation decision are identified in Part C of this Direction.
The principles referred to in the Preamble of the Direction are reproduced below and constitute a framework within which relevant considerations are applied:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Clause 7(1)(b) of the Direction provides that, in cases relating to the mandatory cancellation of a visa, a decision-maker ‘…must take into account the considerations in Part C …’, with the following primary considerations at cl 13(2) of the Direction applied:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Clause 14(1) of the Direction requires that other considerations to be taken into account include but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Clause 8(2) of the Direction states that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Clause 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.’
Clause 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’
Clause 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 at [57] and [78]:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
ADDITIONAL STATEMENT AND COUNTY COURT APPEAL
On 22 July 2020, two business days prior to the scheduled commencement of the hearing, Ms Shelley Burchfield, a solicitor from Refugee Legal, contacted the Tribunal to raise two issues on FHND’s behalf as follows:
Additional statement and hearing preparations
(a)FHND had instructed that following his transfer from prison to the Melbourne Immigration Transit Accommodation (MITA) on 17 July 2020, he was ‘unable to access his property,’ including ‘material relevant to this review application.’ It was submitted this caused him ‘considerable stress’ and hampered ‘his ability to prepare for this review;’ and
County Court appeal
(b)Ms Burchfield submitted that because of FHND’s County Court appeal in February 2020,[12] his offending ‘no longer falls within the operation of s501(3A)(i) or (ii) of the Act. Ms Burchfield stated ‘the Tribunal ought to set aside the original decision and substitute a decision to revoke the cancellation,’ and that this point ‘should be given dispositive weight.’ Ms Burchfield explained:
[12] Ms Burchfield provided a copy of the appeal outcome, which was already contained in the G-documents at 180-181, and referred to in the Respondent’s Statement of Facts, Issues and Contentions (“RSFIC”) [7.4].
‘…[FHND’s]…visa was cancelled under section 501(3A) of the Migration Act 1958…on the basis that the decision-maker was satisfied that [FHND] did not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record) on the basis of paragraph (7)(c) (sentenced to a term of imprisonment of 12 months or more)...
The cancellation notice referred to [FHND’s] conviction and sentence to an aggregate term of 12 months imprisonment on 23 September 2019 for Attempted Burglary (two counts) and Burglary (12 counts).
....
[In] February 2020 [FHND] successfully appealed to the County Court of Victoria at Melbourne against the sentence of 12 months imprisonment recorded at the Magistrates Court of Victoria [in] September 2019 for the Attempted Burglary (two counts) and Burglary (12 counts). [In] February 2020 [the County Court] set aside the orders made at the Magistrates Court of Victoria [in] September 2019…
In relation to those 14 charges…[Her Honour] convicted and sentenced the Applicant to an aggregate term of imprisonment of 350 days.
As per the County Court Appeal Orders attached, other charges for which the Applicant was convicted and sentenced at the Magistrates Court of Victoria [in] September 2019 were also appealed and dealt with by [Her Honour] on the same day.
It is noted on page 2 of the County Court Result of Appeal Case…that the total effective sentence is 1 year, 2 months and 2 weeks. To ensure no confusion, on appeal, the applicant was not sentenced to a term of imprisonment of 12 months or more. The period of 1 year, 2 months and 2 weeks refers to the total of the various individual sentences of imprisonment imposed by Her Honour [in] February 2020 when added together. None of those sentences was for a term of 12 months or more, and none of the sentences of imprisonment imposed on that day fall within the definition of s501(3A)(a)(i) or (ii).
The basis for the cancellation of the Applicant’s visa under S501(3A) of the Act set out in the cancellation notice dated 15 November 2019, does not now exist because the sentence of the Magistrates Court of Victoria referred to in that Notice has been set aside by the County Court and an aggregate sentence of less than 12 months imposed (350 days).
The decision of the Respondent’s Delegate to refuse to revoke the cancellation under S501CA (4) of the Act, relied on the information in the cancellation notice. At the time of the refusal to revoke decision, the sentence referred to as attracting s501(3A) of the Act had been set aside.
The operation of s501(3A) (i) and (ii) of the Act is restricted to specific types of offending by way of sentence and type of crime, - namely where a non-citizen has a substantial criminal record under s501(6)(a) on the basis of paragraph (7)(a) (sentenced to death), (b) (sentenced to imprisonment for life), or (c) (sentenced to a term of imprisonment of 12 months or more) or paragraph (6)(e) (sexually based offences involving a child).
...
The original decision to cancel under s 501(3A) would not have been effected but for an invalid (now impugned) decision by a lower court, and as such, it would be unreasonable to allow the cancellation to remain in effect.
If the Tribunal does not accept our primary submission on behalf of the Applicant, it is submitted that the Tribunal ought to set aside the decision not to revoke and remit with the direction that the reduction of sentence be considered by the primary decision maker.
The Tribunal ought to do this as,
i) it would allow the primary decision maker to consider this important fact and,
ii) following this consideration, the Applicant will have time to properly present his case without the constraints of the 84 day statutory time-limit.

Mr Sypott responded to these submissions on 23 July 2020, contending they were ‘misconceived,’ and proposing that the review application should be heard as scheduled on 27 July 2020. The respondent’s reply can be summarised as follows:
‘The applicant’s submission that it would be unreasonable for the mandatory cancellation decision to remain in effect fails to appreciate that the Tribunal’s task is to conduct a de novo merits review of the delegate’s non-revocation decision, rather than to conduct judicial review of the mandatory cancellation decision.
Revocation can only occur under s 501CA(4)(b)(i) if the Tribunal is satisfied that the applicant ‘passes the character test (as defined by section 501)’ (emphasis added). By contrast, the character test limb of s 501(3A), provides that:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) and (c);
(ii) paragraph (6)(e) (sexually based offences involving a child)…
The character test to be considered under s 501CA(4)(b)(i) is far broader than that to be considered for the purposes of mandatory cancellation; the Tribunal needs to be satisfied that the applicant passes the character test as defined by section 501. The fact that the applicant’s sentence of 12 months’ imprisonment has been reduced does not obviate the need for the Tribunal to consider the remainder of s 501(6) of the Act. As the applicant has received two sentences of imprisonment, with the total of those terms exceeding 12 months, he continues to have a substantial criminal record by virtue of s 501(7)(d). Accordingly, he does not pass the character test under s 501(6)(a) and the power to revoke does not arise by virtue of s 501CA(4)(b)(i).
The argument that there is ‘another reason’ to revoke the mandatory cancellation decision as a result of the reduction of the applicant’s sentence [in] February 2020 (and consequent non-enlivening of s 501(3A) if the matter were considered today) is contrary to the statutory scheme.
Section 501CA(4) explicitly envisages that, at the revocation stage, a person may fail to pass the character test on a different basis to the basis upon which they failed to pass the character test when their visa was mandatorily cancelled. To treat such a circumstance as ‘another reason’ to revoke the mandatory cancellation decision is inconsistent with the framework set out in s 501CA(4).
Further, the logical extension of the applicant’s argument is that a person whose period of incarceration has come to an end could argue that this was ‘another reason’ to revoke the mandatory cancellation decision made whilst they were incarcerated, as a prerequisite circumstance set out in s 501(3A) no longer existed. That would be perverse, and could not have been intended by Parliament.
A reduced sentence is only of some minor relevance to the nature and seriousness of conduct aspect of the protection of the Australian community consideration within Ministerial Direction 79.
The Tribunal’s task on review is to conduct a de novo review of the delegate’s non-revocation decision and to reach the correct or preferable decision. In every application for review that it hears, it will have new information before it in the form of additional material or submissions that were not before the original decision-maker. The present circumstances are unremarkable and do not provide any basis for setting aside and remitting the delegate’s decision.
The applicant’s suggestion that the matter should be remitted to the Department in order to circumvent the 84 day time limit prescribed by the Act should not be acceded to. Such a remittal would be for an improper purpose and contrary to law.
A Telephone Directions Hearing (“TDH”) to discuss the two issues raised by Ms Burchfield was held on 24 July 2020. She was unable to appear and Mr Hewaarachchi, also of Refugee Legal, represented the applicant.
The parties were advised that after receiving Ms Burchfield’s email, a Tribunal Officer was directed to contact MITA and enquire if FHND had access to his documents. A MITA staff member informed the Tribunal on 24 July 2020 that FHND did have his documents. Mr Hewaarachchi confirmed that Ms Burchfield had received the same advice from FHND during a telephone conversation a day earlier (23 July 2020).
When asked to elaborate on the submission that FHND was hampered in preparing for the hearing, Mr Hewaarachchi said FHND had drafted a hand-written statement but was prevented from lodging it because of the prison transfer and in-processing requirements at MITA. The Tribunal noted the following background to FHND’s application:
(a)Scheduling orders were made at the initial TDH on 20 May 2020, at which FHND was directed to lodge, amongst other things, ‘any witness statements and other evidence’ by Monday 29 June 2020. He was also directed to lodge any final materials on which he intended to rely by 22 July 2020, which was two full business days prior to the hearing pursuant to s 500(6J) of the Act. To assist FHND, the Tribunal provided him with an example document on which to base his outline of submissions, and details of potential pro bono legal assistance. FHND was advised he could submit his materials in any form convenient to him, such as email, fax, or letter;
(b)On 4 June 2020, prison authorities emailed five witness statements and various certificates to the Tribunal on behalf of FHND, but not a statement from him;
(c)Ms Burchfield contacted the Tribunal on 26 June 2020 attaching an Authority to Obtain Information on FHND’s behalf. She requested a copy of the G-documents, which were provided to her;
(d)The Tribunal corresponded with FHND on several occasions during June and July 2020, including whenever summons material was available for inspection;
(e)The Tribunal sent FHND an email reminder on 30 June 2020 after he failed to comply with scheduling directions a day earlier. The email re-emphasised the importance of lodging any final materials by 22 July 2020. This email was copied to Ms Burchfield; and
(f)On 30 June 2020, Ms Burchfield emailed the Tribunal in relation to the G-documents provided, stating: ‘Your assistance is much appreciated.’
When asked why FHND had failed to lodge his statement since 20 May 2020, Mr Hewaarachchi said he had no instructions about this. Mr Sypott objected to FHND lodging a written statement after 22 July 2020, stating that this would be inconsistent with 500(6J) of the Act. Given the hearing was scheduled for two days (27-28 July 2020), the Tribunal decided that FHND could lodge his statement and submissions would be heard about its admissibility at the commencement of the hearing. Mr Hewaarachchi verbally agreed to the Tribunal’s request that Refugee Legal represent FHND in relation to the admissibility of his statement, but repeated previous advice from Refugee Legal that they were not representing FHND for his substantive application. The Tribunal’s request was based on the premise that having raised the statement issue on FHND’s behalf, Refugee Legal should see it through to resolution.
At the commencement of the hearing on 27 July 2020, I was advised that FHND’s statement had not been lodged with the Tribunal or respondent. Ms Burchfield had sent an email on Sunday 26 July 2020 at 6:53pm, which stated:
As previously advised Refugee Legal has provided limited assistance to the Applicant who is self- represented in this review application.
Refugee Legal is not in a position to participate in the hearing.
Kind regards,
Shelley
FHND advised that he still wished to lodge his statement but had been unable to do so between his prison transfer on 17 July 2020 and the final submission date in scheduling orders (22 July 2020), due to COVID-19 processing requirements at MITA. When asked why he had not lodged the statement after receiving access to his materials on 23 July 2020, FHND said he had limited access to a mobile phone and email in immigration detention, but had provided the statement to Ms Burchfield on Friday 24 July 2020, who undertook to forward it to the Tribunal.
A Tribunal Officer contacted Refugee Legal by email at approximately 11:00am on 27 July, stating: ‘…If said statement is in the possession of Refugee Legal, could you please email a copy to the Tribunal as a matter of urgency.’ Ms Burchfield responded with a request that the Tribunal facilitate an opportunity for her to receive instructions from FHND, which the Tribunal did not consider appropriate in circumstances where Refugee Legal insisted they did not represent FHND, who had already begun his evidence in chief. Moreover, there seemed no impediment to the statement being provided, given this was precisely what Refugee Legal’s representation on 22 July 2020 had intended to achieve, presumably on FHND’s instructions. Ms Burchfield advised the Tribunal that:
Confirming that without instructions we are not in a position to progress this matter.
In view of our inability to get instructions, we suggest that the Tribunal facilitate the Applicant urgently providing the required information directly to the Tribunal himself.
FHND stated that his handwritten statement did not include information that was not already in evidence, most notably in his Personal Circumstances Form dated 12 December 2019 (“2019 PCF”). This document has several attached pages elaborating on answers provided.[13] The Tribunal accepted that FHND may have experienced impediments following the prison transfer and gave him leave to provide the handwritten statement by 10am on the following day (28 July 2020), which he undertook to do. The respondent was given leave to comment on the document by 5:00pm on 28 July 2020. The Tribunal would then make a determination about whether the statement would be received into evidence.
[13] Exhibit R1, 52-97.
On 28 July 2020, just after 10:00am, the Tribunal was advised that FHND had not submitted the statement. The Tribunal made enquiries with MITA and at 4:10pm on 28 July, an email was received from MITA’s Assistant Director of Status Resolution as follows:
Dear [Tribunal Officer],
…
This email is to advise that I have attempted to call [FHND] four times – once yesterday afternoon, and three times today (12:04 hours; 14:08 hours; and 16: 05 hours). Each time I called, a Serco officer asked [FHND] if he would accept a call from Status Resolution, to which he has declined.
I will try to call him tomorrow….
Kind regards,
*****
Assistant Director MITA Status Resolution
On Friday morning 31 August 2020, Tribunal staff noted an email was received from FHND overnight, attached to which was a brief handwritten statement. This was provided to the respondent, who again objected to it being taken into evidence because of s 500(6J) of the Act. Mr Sypott said the ‘Tribunal should not have regard to the statement.’
Tribunal consideration
Additional statement
FHND lodged five statements three weeks prior to the required submission date in scheduling orders, but not his own. He did not contact the Tribunal prior to Ms Burchfield’s email on 22 July 2020, which was the last day for submission of written materials in accordance with s 500(6J) of the Act. This is despite the Tribunal reminding FHND on 30 June 2020 that he had a further three weeks (until 22 July 2020) to lodge any final materials.
The Tribunal determined, however, that FHND may have been impeded in lodging his handwritten statement as a result of the transfer to MITA on 17 July 2020. Leave was given for him to lodge the statement, but he did not do so within the timeframe provided. There was no contact from FHND until he sought to tender the statement three days after the hearing ended, which was nine days after the statutory deadline prescribed by s 500(6J) of the Act. No explanation was provided for the delay. On reviewing the statement, the Tribunal noted it repeated aspects of FHND’s evidence already canvassed. In those circumstances, the Tribunal declined to accept the statement into evidence.
The Tribunal accepts that Refugee Legal has always described its advice to FHND as ‘limited assistance.’ It is of concern, however, that an issue raised by Refugee Legal on FHND’s behalf was not seen through to conclusion. Mr Hewaarachchi’s verbal undertaking that Refugee Legal would continue to represent FHND about the admissibility of his statement, was inexplicably displaced by Ms Burchfield’s email just before 7:00pm on Sunday 26 July 2020. FHND was left to address the admissibility issue himself. It is unsatisfactory in the Tribunal’s view, that Refugee Legal made this representation on FHND’s behalf, refused to represent him after agreeing to do so, and then felt unable to lodge the statement in question when invited to do so. The Tribunal considers that in circumstances where Refugee Legal intervenes on an applicant’s behalf, they should see the issues raised through to conclusion.
Effect of County Court appeal
Ms Burchfield’s submissions about the County Court appeal enlivened consideration of the Tribunal’s jurisdiction. This arises from s 25(1)(a) of the AATA and s 500(1)(ba) of the Act. The Tribunal can only consider applications where the relevant legislation expressly confers a power of review. The Tribunal is unable to review applications of its own motion or make pronouncements about jurisdiction, which is the task of Australian courts.[14] To explain:
(a)Section 25(1)(a) of the AATA states that an enactment may provide for applications to the Tribunal for review of decisions under that enactment;
(b)Section 3 of the AATA defines ‘enactment,’ amongst other things, to mean an Act;
(c)Section 38 of the Acts Interpretation Act 1901 provides that ‘an Act passed by the Parliament of the Commonwealth may be referred to by the word “Act” alone;’
(d)The Migration Act 1958 (Cth) is an enactment enabling review of certain decisions by the Tribunal. Section 500(1)(ba) provides for review of applications in respect of ‘decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.’ Section 500(4A)(c) states that decisions under s 501(3A) of the Act ‘are not reviewable’ by the Tribunal.
[14] Enfield City Council v Development Assessment Commission (2000) 199 CLR 135 at [48].
The Tribunal’s jurisdiction under the Act relates to non-revocation decisions and it is not permitted to review original cancellation decisions under s 501(3A). Accordingly, Ms Burchfield’s submission that the Tribunal should remit the original visa cancellation decision under s 501(3A) of the Act is outside of the Tribunal’s scope of review.
FHND had not previously referred to the outcomes of his County Court appeal, the results of which must have been known to him some three months prior to the non-revocation decision being made. The County Court appeal outcome appears to have first become available to the Tribunal and respondent in documents received under summons from Victoria Police. These were subsequently included in the G-documents.[15] It is worthy of note that situations where material is lodged with the Tribunal, which was not before a previous decision maker, are unexceptional. The Tribunal conducts de novo reviews based on the evidence and merits of each case. That work is not limited to the reasons of an earlier decision maker or the evidence available to them.
[15] Exhibit R1, 180-181.
The ‘Result of Appeal’ document provided by Ms Burchfield in her 22 July 2020 email is consistent with the appeal information in the G-documents and the RSFIC. This material discloses a relatively small reduction in FHND’s total effective sentence and fixed parole period. To be clear, in place of the total effective sentence of 15 months’ imprisonment with a non-parole period of nine months awarded by the Magistrates’ Court, the County Court instead imposed a total effective sentence of ‘1 year 2 months and two weeks’ imprisonment, with a non-parole period of ‘8 months 2 weeks.’ The reduction in sentence was made in respect of the twelve burglary and two attempted burglary offences committed by FHND. In place of the 12-month sentence of imprisonment imposed by the Magistrates’ Court, the County Court instead imposed a sentence of 350 days. The Magistrates’ Court’s sentence of six months imprisonment for other offending on 23 September 2019 was undisturbed. The Refugee Legal submissions rely on the relatively small reduction in sentence for the burglary offences, but the total effective sentence still exceeds 12 months.
DOES FHND PASS THE CHARACTER TEST?
While the Tribunal accepts that FHND no longer fails the character test by virtue of s 501(7)(c) of the Act, he nevertheless continues to have a substantial criminal record by virtue of s 501(7)(d). Because of the effect of ss 501(6)(a) and 501(7)(d) of the Act, the Tribunal finds FHND does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation of his visa.
ISSUE TO BE RESOLVED
It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the mandatory visa cancellation should be revoked. The task of identifying ‘another reason’ was elaborated upon by the Full Court of the Federal Court of Australia in Viane v Minister for Immigration and Border Protection [2018] 162 ALD 13 per Colvin J at [64]:
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
EVIDENCE
The following was tendered into evidence:
(a)A volume of documents lodged by the respondent titled ‘G’ Documents, numbering 357 pages;[16]
(b)A certificate of completion and four statements of results dated between September 2019 and December 2019;[17]
(c)County Court Result of Appeal dated February 2020;[18] and
(d)Various Media reports from New Zealand dated in 2007, 2008 and 2009.[19]
[16] Ibid.
[17] Exhibit A1.
[18] Exhibit A2.
[19] Exhibit R2.
Witnesses
FHND, Ms A and FHND’s church pastor gave oral evidence at the hearing and were cross-examined.
National Criminal History and sentencing remarks
With the exception of the County Court appeal results dated February 2020, FHND does not dispute the accuracy of the sentencing remarks from the Sunshine Magistrates’ Court dated in September 2019 (“2019 sentencing remarks”).[20] These state in part:
[20] Exhibit R1, 24-50.
‘HER HONOUR: …there are then two exercises: one is the contravention of the community corrections order. It's the second chance at that order and the contravention report sets out what was not done on the second occasion. There were some limited inroads…but obviously what's before the court is now the second contravention, where still the lion's share of the community development remains outstanding.
There were some small number of hours done in this second version of the order but of course…we have the reality that there were a vast number of charges that have occurred…after the imposition of that community corrections order…
There are a number of theft charges which are not quantified, Mr Brown, but the vast number are and it's over $120,000. Those are significant charges. What did you want to put on behalf of [FHND] in regard to those two exercises - the contravention of the community corrections order and the now much larger consolidation…?
MR BROWN: Your Honour, there is no denying they are serious charges. There is no denying that the compliance with the corrections order has been unsatisfactory…[FHND’s] offending, as your Honour is no doubt aware from previous hearings, has largely been in the context of drug use. He has experienced extended periods of homelessness and this offending occurred in that context also…
He has had some supports from Melbourne City Mission since 2017, has engaged with a local church. He has a support worker…and some church involvement but, your Honour - I should add…he does have a partner by ·the name of [Ms A], and a three year-old son.
HER HONOUR: …When your client commenced to appear in front of me, alcohol was equally an important cause of concern. So there are a number of issues he has to attend to. That's why the court gave him the second opportunity of a community corrections order, but obviously that went as well as the contravention report and the further commission of…offences shows.
There is a very serious concern here in regard to the limitation of sentencing, [FHND], because the court has tried a community corrections order once. We've tried a community corrections order twice. Now [FHND] finds himself before the court for a pre-existing consolidation where I hadn't yet sentenced him, which now has to be tagged on to a huge volume of fresh charges which are, in their own right, far more serious than even the most serious charges I had in the pre-existing consolidation…I wouldn't be entertaining any further community corrections order. I've gone down that path twice.
…
MS PETROVSKI: Your Honour, if I can indicate - this is the fourth opportunity on that current order. This is the fourth time it's been contravened.
HER HONOUR: Thank you, Ms Petrovski. I had thought it was only two.
MS PETROVSKI: No, this is the fourth time.
HER HONOUR: But in any event, Mr Brown, the reality is there have been contravention proceedings before these contravention proceedings. That's always an unhelpful starting point and it's obviously entirely unhelpful when there is such a vast amount of offences that occur in breach. [FHND] well understands that when I made the original version of the consolidation I had left the sentencing for that in abeyance to give [FHND] this further opportunity on the community corrections order with the indication and clear understanding held by [FHND] that if he were to successfully complete the order ultimately then I would consider on the original charges that I had before me - a far lesser number and of a very different nature to the Templeton matters - then perhaps a further community corrections order with hours alone could be imposed to complete that outstanding sentencing. What has transpired, unfortunately, in the meantime is [FHND] (a) hasn't completed the order, the community corrections order, in its fullness but further, there have been the offences…which are of a very, very serious nature. I don't consider that there can appropriately be any engagement further with corrections in terms of further community corrections on this re sentencing.
HER HONOUR: …You may or may not recall, [FHND], what I discussed with you when I gave you this opportunity on the community corrections order…I indicated to you I will give you a chance on that community corrections order again: do the remainder hours of the hours you had not previously done on the various previous impositions of that community corrections order. Then if you got your way through that successfully I would entertain some further community work hours potentially in regard to those charges…[FHND], you then ultimately did not engage as well as you could have with the community corrections order…Then you had subsequently gone into custody…So it is fair to say, [FHND], that the complexion of this matter has changed very, very significantly since it commenced before me now some substantial time ago…
I have found the contravention proven. I have cancelled that order. What it does, [FHND], is it brings back before the court the original charges you got the community corrections order for, for a re-sentencing exercise. I note that ultimately you did do some small number of hours of this version of the order but still well over 163 hours outstanding in regard to the community corrections order requirements…
Now I move on to the second set of matters and sadly, they are far more serious than the matters in the contravention of the community corrections order. The reality of the summaries and the charges themselves in regard to the burglaries and attendant thefts, [FHND], is a value well in excess of $120,000, so not in anybody's language insignificant or other than very serious.
…
[FHND], that is a total effective sentence of 15 months' imprisonment and I fix in relation the sentence a non-parole period of nine months. [FHND], I have made a clear note in terms of the court's orders, that but for the plea of guilty I would have imposed a sentence of a 21-month sentence with a 15-month non-parole period.
…
[FHND]: So basically I'm doing what, 15 months?
HER HONOUR: You're doing one year and three months as the head sentence, with a non-parole period of nine months in regard to the fresh consolidation; two charges attracting fines, for one charge you've been convicted and discharged.’
FHND’s evidence

FHND adopted his 2019 PCF as his statement in this matter.[21] He accepted that his New Zealand and Australian criminal histories, and the 2019 sentencing remarks accurately reflected his past offending. Given his self-represented status, the Tribunal reminded FHND on several occasions that he had a right to silence and against self-incrimination, which he understood. This included occasions when he was asked about violence against Ms A beyond recorded convictions, and if drugs found by police on two occasions were for his own personal use or other purposes. FHND chose to exercise his rights and the Tribunal drew no negative inference when he did so.
[21] Ibid, 52-97.
In his oral evidence, FHND focussed on the interests of his child and Ms A, stating that he had previously let them and his church down. He said imprisonment had been a salutary experience, but he was now rehabilitated and determined to live a law-abiding life. He aspired to immediately return to work, be a better father and partner, and reconnect with his church community. Key aspects of FHND’s evidence can be summarised as follows:
Offending in New Zealand
(a)FHND said he was educated in New Zealand to Year 9, following which he undertook some carpentry, automotive, electrical and plumbing training. He worked ‘for a short time’ in New Zealand as a forklift driver and in warehouses. FHND contextualised his offending in New Zealand as arising from intoxication, cannabis use, and being ‘hard-headed.’ When asked about a weapons offence in 2011, he said this arose from him being drunk and engaging in a dispute with a neighbour, during which he ‘pulled out a BB gun.’ Police were called and FHND said ‘they tried to arrest me, but I resisted.’ When asked what the dispute was about, FHND recalled he was ‘being too loud and drunk on the street.’ When asked why he carried a weapon, FHND said it was ‘for protection in case I came across other gang members.’ When asked about evidence relating to him also carrying a knife at times, FHND said he only did so when ‘there was a lot of heat’ in the area he lived in;
(b)FHND could not recall the circumstances of his conviction for driving a vehicle in a dangerous manner, claiming to have been ‘too intoxicated.’ When asked if he had unlawfully taken the vehicle in question, FHND responded: ‘It doesn’t say I stole it.’ FHND could not recall the circumstances of the ‘Possess pipe or utensil for Cannabis’ or ‘Resist police’ offences he was convicted of in 2012;
(c)FHND remembered his convictions for family violence offences in 2013, agreeing they related to Ms A, but claimed he could not recall what happened because he ‘was intoxicated…off my head.’ When asked if he had subsequently spoken about these incidents with Ms A, he responded: ‘Not really.’ When asked what the blunt instrument was that he struck Ms A with, FHND stated he could not recall because of intoxication;
(d)When asked about breaching conditions of supervision in New Zealand, FHND recalled he was bailed and ‘got community service,’ which was conditional on him ‘staying out of trouble,’ but he ‘ended up committing another crime.’ He could not recall why he failed to answer police bail in 2013; and
(e)FHND said he recalled all of his court appearances in New Zealand, which were ‘scary.’ He remembered being detained for six months in a Youth Justice Centre, which he also found ‘scary.’ When asked why he continued to reoffend following these experienced instead of taking advantage of rehabilitative opportunities, FHND explained he could not escape the influence of alcohol and drugs.
Offending in Australia
(a)FHND agreed that he arrived in Australia in August 2014, approximately six months after completing a supervision order in New Zealand. He recalled working as a ‘pick packer’ for six or seven months, and doing other intermittent work for a casual hire agency on the basis of ‘one day here, two days there,’ including as a labourer and loading / unloading containers.
(b)FHND agreed he was convicted of multiple offences within eight months of arriving in Australia. He accepted that his offending during the past six years is serious, but claimed he could not recall much of it because his memories were ‘blurry’ from the effects of drugs and alcohol. He was referred to specific incidents in his criminal history as follows:
(i)FHND could not recall hitting Ms A twice to her face with the back of his hand at a railway station, following which he was arrested. He claimed to have never previously struck or threatened Ms A. When asked if he could recall whether the arrest on that occasion was ‘easy or difficult,’ FHND responded: ‘I know all of my arrests weren’t easy arrests;’
(ii)When referred to police records stating that he had spat on police, struck police, and yelled 'fuck the police’ while being arrested, FHND said he could not recall these incidents;
(iii)FHND could not recall threatening members of a disabled football team, causing them to hide behind a roller door, or stealing one of the player’s bags, for which he was convicted in September 2015;
(iv)FHND remembered being ‘capsicum sprayed’ and trying to escape from police while handcuffed in November 2017, but could not recall trying to pick a fight with or assaulting police. He recalled being found with 27 grams of cannabis and some Valium tablets, which he said were for personal use. He agreed that he was also arrested on a subsequent occasion near a kindergarten, again with cannabis in his possession, which he stated was also for personal use;
(v)On more than one occasion, FHND acknowledged previous offending, but was unwilling to refer to specific details. By way of example, he acknowledged a theft he committed in a major supermarket in February 2018. When asked by Mr Sypott what it was he stole, FHND told Mr Sypott to ‘read it for himself’. When pressed, FHND agreed he stole seven or eight electric toothbrushes ‘to make money,’ which he said was needed to buy milk powder and nappies for his child. He rejected the proposition that he intended to spend any of the money on drugs, but agreed he spent some of his money on alcohol as he could afford it;
(vi)In respect of the 12 burglary and two attempted burglary charges, FHND agreed he stole goods worth approximately $120,000, which he intended to either sell or give to someone to sell on his behalf. FHND claimed he did not know who the stolen items would go to for sale. While agreeing he used a car rented by Ms A for this offending, FHND said Ms A was unaware of this. When asked if he stole the car from her, FHND disagreed, stating: ‘No, I had it in my possession.’ When asked if any of the funds he gained from his crimes in 2019 were for heroin, FHND responded: ‘A little bit,’ but claimed he also sent some of the proceeds to his parents in New Zealand and to support his child.
Drug and alcohol use
(a)FHND said he began using cannabis and alcohol while living in New Zealand when 14 or 15 years old. He recalled periods of heavy use of both, which reduced to around ‘once a week or just on the weekend’ while working. This was also the pattern of his drug and alcohol use after arriving in Australia. He claimed that on some occasions when he drank, he ‘drank a lot.’ He said that he stopped cannabis use for ‘almost a year’ after his son’s birth in late 2016 and also ‘limited’ his alcohol use;
(b)FHND said he resumed cannabis use in 2017, using ‘two or three days a week.’ His alcohol use was up to ‘two six packs a day.’ FHND said he was living apart from Ms A and their son at this time because Ms A’s family kicked him out of their home after a ‘big fight.’ When asked what the fight was about, FHND stated: ‘It was over me causing trouble and being intoxicated.’ He claimed to have become homeless ‘for a few years…[from]…around the end of 2017 onwards,’ during which he lived in his car, ‘couch-surfed’ and frequented a ‘squat.’ FHND claimed that he nevertheless visited Ms A and their child, mostly on weekends or evenings because Ms A worked very long hours. These visits occurred away from Ms A’s family home and FHND said he was never intoxicated or drug-affected when seeing his son;
(c)FHND stated his cannabis use lessened in 2018 to ‘once in a blue moon,’ and his alcohol consumption was ‘once or twice a month.’ He relapsed in 2019, however, using cannabis daily prior to his arrest on the burglary offending. At times he drank a 24-pack ‘slab’ of beer at a single sitting. FHND said he also started using heroin in 2019, recalling that there could be up to ‘three or four days straight of heroin use,’ up to ‘twice each day.’ After this he slept for two days and then ‘got back on it,’ although his pattern of use differed. FHND said he last took illicit drugs about a year ago, just prior to his arrest.
(d)When asked what he meant by experiencing ‘psychosis’[22] during heroin use, FHND asked what ‘psychosis’ meant. When told this was in his statement and asked whether he typed the statement himself, FHND responded: ‘I typed it.’ When asked why he used a word that he did not know the meaning of, FHND said he had forgotten what it meant and had been ‘told to use big words.’ When asked who told him to do this, FHND said it was a friend of his, but did not wish to disclose their identity. When pressed, FHND claimed a fellow prisoner called ‘Rob’ had typed the statement on his instructions but he could not recall Rob’s last name.
[22] Ibid, 69.
Risk, rehabilitation, conduct in prison and work intentions
(a)FHND said there was no chance he would reoffend because his life is now ‘on track.’ He claimed to be more mature and aware of the consequences of his actions, which he had taken responsibility for. He referred to having a ‘clean slate’ without ‘any court cases on [his] back,’ and intended to ‘step up’ by putting his partner and son first ‘instead of myself and old habits.’ FHND said he would do this by severing ties with bad influences and changing his surroundings. Instead of ‘being around squat houses’ and putting his addictions first, he would be law-abiding and provide for his family. When asked if the burden of court cases in the past contributed to his abuse of drugs and alcohol, FHND said it had. He described the pressures he experienced as causing him to feel like he had ‘too much on [his] plate to take in, so [he] turned to drugs and alcohol.’ When asked about the Community Corrections Order (“CCO”) Report in 2015 assessing his risk of reoffending as ‘High,’[23] FHND agreed this was the case at that time. He also agreed that he had committed his most serious offences after 2015, but insisted there would be no repeat.
[23] Ibid, 178.
(b)When asked if he would seek additional courses or counselling upon release for his addictions, FHND said there was ‘no point’ because he was ‘already rehabilitated’ while imprisoned from July 2019 until July 2020. He claimed to have volunteered for drug testing in prison and consistently returned ‘clean urine’ tests. FHND referred to the three-hour and 24-hour drug and alcohol modules he completed. When asked what he learned during these courses, FHND said it included knowing what services were available ‘on the outside,’ and mainly related to ‘communication…listening, who to talk to and how to control whatever’s triggering…old habits.’ When asked what triggered his old habits, FHND said it was ‘hanging around the wrong crowd and saying yes to everyone.’ In the future, if he thought his abstinence was at risk, he would seek help by ‘talking to people’ or ‘seeing a counsellor.’ FHND claimed to have ‘cut the line’ with previous negative influences and now intended to focus on his family and relationships with ‘church people.’ When asked if he thought the bad influences would approach him again, FHND said they would not, because they knew they had ‘done wrong’ by deserting him after his imprisonment.
(c)When asked about the multiple non-custodial sentences he received in New Zealand and Australia, and whether he did anything during these times to address his drug and alcohol problems, FHND said he ‘was 50-50 on that one.’ He explained that part of the reason he did not taken advantage of these opportunities was because he was ‘in a rough patch…and had no guide or goal and couldn’t handle it.’ He had not previously taken drug and alcohol referrals or counselling opportunities seriously. In relation to counselling opportunities during his Australian CCO’s, FHND said he attended appointments but did not do his community service. He claimed homelessness made it hard for him to ‘maintain the community corrections stuff.’ He said his priority was to find a stable place to stay, particularly after losing the job organised by his Pastor in March or April 2019, but found himself enmeshed in ‘heroin and hanging around the squat house;’
(d)FHND agreed that his current abstinence correlated with his time in prison and immigration detention. He also agreed that although the loss of jobs in the past triggered drug-taking and offending, he offended and took drugs while employed between October 2017 and 2019. When put to him that work was not a persuasive protective factor mitigating his risk of reoffending, FHND disagreed, stating: ‘A job will help me, it’s just when I am intoxicated that I get into trouble;’
(e)FHND said he intended to return to work immediately, agreeing that the vocational programs he had completed would assist him. He thought the opportunities in Australia would be more favourable than in New Zealand. When asked what sort of jobs he would apply for, FHND said he recently completed a certificate-level qualification in welding and wanted to work as a welder;
(f)When asked about parole opportunities during imprisonment, FHND said he applied when eligible but ‘never got an answer.’ He thought this was because of the intention to move him directly from prison to immigration detention at the end of his sentence. When asked about his behaviour in prison, FHND conceded there had been two incidents. The first was while he was at Melbourne Remand Centre ‘around October 2019,’ when he ‘got into a fight with a random person.’ He stated the fight arose due to ‘allegations by other people,’ which he was unwilling to elaborate on. When asked what occurred after this fight, FHND said he was transferred to Barwon Prison. FHND said the second incident at Barwon Prison related to his swearing at an officer, who ‘wrote him up.’ He said this resulted in him being transferred to Port Phillip Prison in mid-April 2020;
(g)It was put to FHND that the two incidents he referred to did not suggest he was rehabilitated, and any rehabilitative progress was in the context of a structured custodial environment. FHND responded: ‘My past doesn’t define my future. I know right from wrong.’
Remorse
(a)On several occasions FHND expressed remorse for his offending and apologised to victims. When asked to elaborate, he spoke about the owners of the factories he burgled, who were ‘trying to make a living.’ FHND claimed, however, that he should not have been convicted for ‘most’ of his offences in Australia, claiming: ‘there’s no CCTV footage – it could have been anyone.’ He said that when he went to court ‘there was no evidence,’ but he pleaded guilty anyway because he ‘can’t be bothered’ and did not ‘want to be involved in all these court cases.’ The Tribunal reminded FHND it was not open to him or the Tribunal to impugn convictions recorded against him.
Relationship with Ms A, their child and other family and friends in Australia
(a)FHND said he had a ‘good’ and ‘strong’ relationship with Ms A, who he had known since 2012 in New Zealand. He still considered her his partner and they kept in contact during his imprisonment and immigration detention through telephone calls and visits. FHND claimed that Ms A had experienced stress as a result of his imprisonment and detention, having to ‘play the part of both parents,’ with no one to ‘help with the bills’ or look after their child. When pressed about the level of family support available to Ms A, FHND said her sister, who lived five minutes away, mother and other family members supported her, including by looking after their child while she worked. He agreed Ms A had enjoyed stable fulltime employment in the same company for several years. FHND said he now had a ‘plan and purpose’ if allowed to remain in Australia, which was to be law-abiding, marry Ms A in their church, be a better father, and establish a home for his family;
(b)FHND repeated the information in his documentary evidence about a strong relationship with his son, who he kept in touch with through daily telephone calls. He said that in the past he looked after their child while Ms A worked and this arrangement ‘was good’ until he ‘ended up at the squat places.’ FHND said Ms A facilitated visits ‘every weekend’ with their son, who enjoyed these times and would wrap his body around FHND’s leg when it was time for the visit to end. He said his son kept asking for him on a daily basis;
(c)FHND said Ms A would not accompany him to New Zealand because she had established herself in Australia and would have to ‘start over’ in New Zealand. FHND said Ms A returned to New Zealand ‘now and then for emergencies,’ estimating she had visited on three occasions over the last six years. He was unsure if Ms A would visit him in New Zealand, stating: ‘I don’t control my partner;’
(d)FHND agreed that if Ms A remained in Australia, her family and their church community would continue to assist her. When asked if he would send money to help support their son, FHND said he would if he found a job. FHND said he would keep in touch with Ms A and their son by telephone and video calls, although this was ‘not the same as physical contact;’
(e)FHND claimed that although Ms A’s family had previously asked him to leave the family home as a result of his behaviour, he had ‘patched up everything’ and their relationship was now ‘OK.’ He claimed to be close to Ms A’s mother, sister, and brother. When asked what he thought the effect on them would be if he was repatriated, FHND responded: ‘there would be more impact on my son than them.’ FHND said Ms A’s mother, sister and brother went to New Zealand ‘now and then,’ but he was ‘not sure’ if they would visit him if he was returned;
(f)FHND said he had some extended family in Brisbane and Sydney, who he spoke to ‘here and there,’ but is ‘not really close to them;’
(g)FHND said he was previously involved in the church community that Ms A and other family members attended, and aspired to reconnect with the congregation if released. He was close to the pastor of this church and had previously attended ‘prayers, church events, outreaches (sic).’ When asked how his repatriation might affect the pastor and the church community, FHND responded: ‘Hard to say, I can’t speak for anyone else. It would be sad and a loss for the church if one of their members was gone;’
Relationships in New Zealand
(a)FHND said he had visited his parents and six siblings in New Zealand during September 2017. He is the oldest child and his siblings are currently aged between 13 and 21. He speaks to them and other friends in New Zealand ‘from time to time.’ FHND said he is on good terms with his mother who still lives in New Zealand, but the relationship with his father is ‘on and off’ because he was ‘hardly around.’ FHND also referred to aunts, uncles, cousins and school friends in New Zealand who he claimed not to talk to. When asked if he would get any assistance from family members in New Zealand if required to resettle there, FHND said he was ‘not too sure.’ When pressed, he said he would not ask his family or friends for support because he did not wish to impose, stating: ‘Why should I make my problems their problems.’
(b)In light of his oral evidence about relatives and friends in New Zealand, FHND was asked about the claim in his statement that he knew ‘no-one’ in New Zealand. FHND agreed this claim was incorrect and what he intended to convey was an absence of support if returned.
Fears about repatriation to New Zealand
(a)FHND claimed that his two older step-brothers were killed and his father was shot as a result of gang violence in New Zealand. He was unwilling to provide details, but claimed to have been ‘right there’ when it happened. Mr Sypott referred to media reports, including in relation to the death of a person in 2006 with the same first name FHND referred to during the hearing. These articles were provided to FHND and the Tribunal.[24] FHND agreed these reports related to the gang violence he referred to. He was unaware of what happened to the people who harmed his relatives, stating: ‘yes they were caught, but I don’t know what happened after that.’ FHND accepted the reports, however, that the people responsible were convicted and jailed. FHND agreed he was around 11 years of age at the time of these incidents;
(b)When asked which New Zealand gangs he feared, FHND referred to the ‘Crips and the Bloods.’ When asked why these gangs would be interested in someone who was 11 years old when these incidents occurred, FHND said it was because he was a witness to the manslaughter of his step-brother, and has ‘other issues’ with gangs in New Zealand, which he was unwilling to discuss. He feared that if returned to New Zealand, gang members would take revenge. FHND conceded that while living in New Zealand, he ‘was getting involved in that stuff,’ which the Tribunal inferred to mean gang involvement. He claimed to have received death threats via social media after arriving in Australia, but he also met ‘ex members of that crew’ after they moved to Australia. When asked for more specific information, FHND said he felt ‘uncomfortable’ revealing any further details and said the Tribunal would have to rely on his word alone;
(c)FHND was asked how he was able to return to New Zealand for a holiday in 2017 to visit family and friends if he feared gangs. He said this visit was only for a few weeks and it would be different if he lived there permanently, which would result in risks to his and his son’s life. The Tribunal asked FHND how any risk to his son was relevant when he claimed that Ms A and their son would not accompany him to New Zealand. FHND said his fear arose in circumstances where Ms A changed her mind about a return to New Zealand;
(d)FHND rejected asking for police assistance in New Zealand if threatened by gangs, stating: ‘Basically I’ll be a snitch and you know what happens to snitches.’ FHND said he would not report threats nor seek police protection under any circumstances. When asked why he could not live away from the gang environments he referred to, FHND responded: ‘gangs are everywhere there.’
Contribution to Australia
(a)FHND said he had done more work than indicated in his 2019 PCF, but could not recall employer details. When asked if there was any evidence to corroborate his claims about work and paying taxes, he said there was not.
[24] Exhibit R2.
Evidence of Ms A

Ms A adopted her statement dated 1 December 2019.[25] She referred to her relationship with FHND after they met in New Zealand in 2012 as a ‘bit rough at first,’ agreeing it was because of his offending, including against her. When asked about FHND’s assault against her in 2013 with a blunt instrument, Ms A stated that he hit her on the head with a wooden stool. She could not recall the reason for that, but thought he was either drunk or affected by drugs.
[25] Exhibit R1, 90-91.
Ms A said she moved to Australia before FHND did for employment reasons. She ‘did not want to be a bum living on benefits’ in New Zealand and said Australia offered ‘a better life.’ Ms A said FHND joined her in Australia, because he wanted to ‘change what he was like in New Zealand,’ which included ‘trouble with the police.’ When asked if FHND was scared of anyone in New Zealand, Ms A said he may have gotten into some people’s ‘bad books,’ but she was unaware of the specifics. Ms A said FHND ‘grew up with gangs and what not…a really bad childhood with violence and gangs.’ She understood some of his family members also had gang involvement. When asked if FHND was present during a gang-related killing of a close relative, Ms A responded ‘I don’t think he was there’ and FHND had never told her that. Given the closeness of their relationship, she thought he would have told her if he was present at this incident.
After they commenced living together in Australia, Ms A recalled FHND hitting her twice in the face at a railway station, for which he was convicted in 2015. They lived at her parent’s home for a time, but her family kicked FHND out as a result of his drunkenness and being ‘really loud.’ When asked what FHND’s relationship was currently like with her family, Ms A said ‘they still support him and accept him.’
Ms A claimed there were one or two other occasions of violence after the incident at the railway station, when FHND slapped her, including after the birth of their child. Ms A said in addition to FHND’s physical abuse, he threatened her on two occasions, including around the end of 2017. On that occasion she said: ‘He was using our son as a way of getting back at me and said he would take him away from me and I wouldn’t see him again…He said he would fight for custody as well.’ Ms A agreed that FHND’s most serious offending occurred after the birth of their son.
When asked about FHND’s relationship with their son, Ms A responded: ‘He’s good with him…he knows he’s missing out on a relationship with his son...Their relationship is good.’ She had never seen FHND under the influence of drugs or alcohol in the presence of their child. Ms A said their son was ‘always asking for his Dad pretty much every day,’ and she had told him his dad ‘is on holidays.’ When asked how FHND’s imprisonment and immigration detention had affected her, Ms A responded: ‘To be honest I’ve been alright.’ Ms A said her mother, sister, stepbrother and church community would continue to help her if FHND was repatriated.
When asked if she thought FHND would reoffend, Ms A said she was ‘50-50’ on that issue. However, she did not think he would harm her again if he returned to the church community, believing things ‘will be different then.’
Ms A said she would not return to New Zealand if FHND was repatriated because she was settled in Australia and did not want to start over. She has been in stable work for some years and currently earns around $1,500 per fortnight. She and her son live in a rental property with her father and a cousin. If released, she said FHND would live with them, which her father and cousin had accepted.
When given an opportunity to ask questions of the witness, FHND declined to do so.
Evidence of church pastor
FHND’s pastor adopted his statement dated 8 December 2019.[26] He first met FHND in mid-2018 at church, which FHND had been invited to attend by members of their congregation. Ms A accompanied him and the pastor recalled this ‘was when they were most open and happy.’ The pastor said he was aware of FHND’s drug and alcohol history, and tried to counsel him. The pastor said he secured FHND a job at his own workplace and they worked together for ‘about six months’ during which he was ‘doing well.’ The pastor said FHND ‘lost his way again’ after this six-month period, associating with bad influences. FHND would call him ‘when something was wrong.’ The pastor estimated they had about five or six telephone conversations during FHND’s year of imprisonment.
[26] Ibid, 97.
If FHND was repatriated to New Zealand, the pastor said he and the congregation would be ‘sad that he’s gone.’ If that occurred, the church community would continue to support Ms A and her child. When asked if FHND had ever expressed any fears of returning to New Zealand, the pastor responded: ‘The only fear was leaving his family behind.’ When asked if FHND had ever expressed a fear of any groups in New Zealand, or had referred to witnessing a close family member being killed in the past, the pastor said he had not.
When given an opportunity to ask questions of the witness, FHND had no questions.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Clause 13.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. 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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(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.
Clause 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to factors including:
a)    The principle that, without limiting the range of offences that may be considered serious, violent and / or sexual crimes are viewed seriously.
b)    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)    The principle that 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, are serious;
d)    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)     The cumulative effect of repeated offending;
g)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)    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);
i) Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act.
Tribunal consideration: The nature and seriousness of the conduct
The 2019 sentencing remarks refer to FHND answering ‘significant charges,’ which his then lawyer conceded were ‘serious.’[27] It was also conceded that FHND’s past compliance with CCO’s was ‘unsatisfactory,’[28] with the Court accepting there had been four previous contraventions.[29] The Court referred to FHND being afforded several opportunities to avoid imprisonment, which he failed to take advantage of. Instead he committed a ‘vast amount’ of ‘very, very serious,’ offences, which were considered were ‘far more serious than even the most serious charges’ he previously answered.
[27] Ibid, 38 [7]; 39 [6].
[28] Ibid, [9].
[29] Ibid, 45 [29].
FHND agreed his offending fell into several categories encompassing crimes of violence, dishonesty, breaches of conditional liberty, and drugs. While expressing remorse for his conduct, he concurrently claimed that he should not have been convicted for ‘most’ of his crimes in Australia, ‘because there’s no CCTV footage – it could have been anyone.’ FHND said that when he went to court ‘there was no evidence,’ but he pleaded guilty because he ‘can’t be bothered’ and did not ‘want to be involved in all these court cases.’
Mr Sypott submitted that FHND’s offending is very serious, as reflected by his commission of ‘76 offences in Australia and New Zealand’ between July 2011 and July 2019. These included violence against a woman, police officers and multiple counts of burglary. Mr Sypott referred to the frequency of FHND’s offending and the sentences of imprisonment awarded in 2019 as an indicator of the objective seriousness of his offending. Mr Sypott contended that FHND’s addictions provided some context, but did not lessen the seriousness of his offending, which persisted for eight years. Mr Sypott noted that FHND’s misbehaviour while imprisoned, involving violence against another prisoner and abuse of a prison officer, further reflected the seriousness of his conduct.
Tribunal findings: The nature and seriousness of the conduct
The Tribunal accepts well-established authority that the essential factual basis of a conviction or sentence is not reviewable by the Tribunal, but the circumstances of the conviction are ‘for a purpose other than impugning the conviction itself’.[30] As Colvin J held in HZCP at [180]-[182], ‘it is a serious matter for a person convicted of a criminal offence to seek to contradict the factual matters that provide the foundation for the conviction or the imposition of the sentence.’ That is because ‘the fact of the conviction or sentence’ provides ‘the foundation for the exercise of the power.’ As Murphy J held in Singh v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 556 at [56]:
Where a conviction or sentence is the basis for an administrative decision-maker or reviewing tribunal's jurisdiction, the decision-maker or tribunal may not review the essential factual basis of a conviction or sentence…[but]…an applicant may present to the Tribunal matters pertaining to a conviction or sentence provided they do not contradict the facts a court found in arriving at a conviction or sentence…
(citations omitted)
[30] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 (“HZCP”), referring with approval to Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155.
FHND’s contentions that he should not have been convicted of ‘most’ of his crimes in Australia, and that he pleaded guilty to be rid of the court cases, is rejected. His past pleas of guilt constitute acceptance of all elements of the offences he was convicted of.[31]
[31] Maxwell v R (1996) 184 CLR 501, at [19].
FHND’s criminal history discloses several categories of offending as follows:
(a)Offences involving violence, or weapons:
(i)In New Zealand he was convicted of: ‘Present firearm/Restricted Weapon’ in 2011; ‘Resist police’ in October 2011, July 2011, and February 2012; ‘Assault person with blunt instrument (family violence)’ in March 2013; and ‘Wilful damage (family violence)’ in June 2013;
(ii)In Australia he was convicted of: ‘Unlawful assault,’ ‘Resist police,’ and ‘Assault Police’ in April 2015; ‘Assault police officer’ in September 2015; ‘Assault protective services office,’ ‘Assault emergency worker on duty,’ ‘Resist emergency worker on duty,’ and ‘Resist person assisting police officer’ in September 2019.
(b)Conditional liberty offences:
(i)In New Zealand he was convicted of ‘Failure to answer police bail’ and ‘Breach of conditions of supervision’ in August 2013; and
(ii)In Australia he was convicted of multiple contraventions of CCOs between 2017 and 2019, 12 counts of committing an indictable offence whilst on bail, and two charges of fail to answer bail.
(c)Drug offences: FHND has been convicted of multiple drug-related offences involving cannabis. Based on his oral evidence regarding prolonged drug use, the Tribunal finds his involvement with illicit drugs traverses a more extensive period than that reflected solely by his drug convictions, and includes use of heroin and unprescribed Valium;
(d)Dishonesty offences: FHND was convicted in New Zealand on two occasions of unlawfully taking a motor vehicle. In Australia he has been convicted of eleven counts of theft, twelve counts of burglary, two counts of attempted burglary, eleven counts of theft from shops, and being equipped to ‘steal / cheat.’ The Court referred in the 2019 sentencing remarks to FHND committing ‘burglaries and attendant thefts [to] a value well in excess of $120,000,’ which was considered ‘very serious;’[32] and
(e)Public nuisance, vehicle/driving offences: In New Zealand FHND was convicted in December 2012 of driving a vehicle in a dangerous manner. In Australia FHND was convicted in 2015 and 2019 of being drunk and disorderly in a public place, behaving in an offensive manner in a public place, intentionally damaging property, spitting on rail premises, smoking on a train platform, and refusing to state his name and address.
[32] Exhibit R1, 47 [22].
The following aspects of cl 13.1.1(1) of the Direction are relevant to the specific circumstances of FHND’s case:
(a)13.1.1(1)(a): FHND has committed multiple violent crimes that are considered serious. His dishonesty and conditional liberty offending is also serious;
(b)13.1.1(1)(b): FHND has committed crimes of a violent nature against a woman, which are viewed very seriously, regardless of the sentence imposed;
(c)13.1.1(1)(c): FHND’s theft from a disabled football team is an offence against vulnerable members of the community within the meaning of the Direction. He has also committed multiple crimes against police and emergency workers in the performance of their duties, which is considered very serious;
(d)13.1.1(1)(d): The nature and seriousness of FHND’s offending is reflected in the 2019 sentencing remarks, on which the Tribunal places considerable weight. The sentence of imprisonment awarded to FHND following his County Court appeal in February 2020 reflects the objective seriousness of his crimes;
(e)13.1.1(1)(e): FHND has committed multiple and frequent offences in both New Zealand and Australia. His offending in Australia from 2015 until February 2019 was dealt with through CCO’s unpaid community work, and fines. He received his first sentences of imprisonment in September 2019 for numerous offences that are also his most serious. His conduct reflects a concerning trend of increasingly serious offending over time; and
(f)13.1.1(1)(f): The cumulative effect of FHND’s repeated offending and other misconduct since 2011 has imposed significant costs and consequences on his victims and the broader community.
For the reasons outlined above FHND’s offending is objectively very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 13.1.2 of the Direction states in part:
(1)In considering the risk 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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
This aspect of the Direction requires the Tribunal to assess the risk FHND poses to the Australian community in the event he reoffends, taking into consideration the nature of any harm and its probability.
Katzmann J, in Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, reasoned at [59] that the ‘risk of harm posed by the conduct in which the person has engaged in is obviously relevant to the risk…he might in the future engage in.’
In Murphy v Minister for Home Affairs [2018] FCA 1924 at [37], Mortimer J reflected on the Tribunal’s task regarding risk of recidivism as follows:
That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community… of how serious the risk was, or whether the risk should be “tolerated.”
In Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 Her Honour considered, at [154], the purpose of assessing an applicant’s risk of reoffending:
…an assessment of such a risk is a necessary part of exercising the power for the purpose for which it was conferred: namely, protection of the Australian community, using “protection” in its broadest sense.
Determining what constitutes an unacceptable risk was elaborated upon in Nigro v Secretary to the Department of Justice (2013) 304 ALR 535 at [111]:[33]
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
(citations omitted)
[33] Cited with approval by Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117 at [42]-[43].
The 2019 sentencing remarks reflect an element of exasperation regarding FHND’s repeated breaches of conditional liberty orders and inability to use the opportunities provided by non-custodial sentences to make meaningful and enduring changes in his life.[34] His then lawyer conceded that ‘this is a man who needs to deal with his drug addiction,’[35] to which the sentencing magistrate added that alcohol was ‘an equally important cause of concern.’[36]
[34] Exhibit R1, 39 [17]-[26]; 45 [24]-[30].
[35] Ibid, 39 [7].
[36] Ibid [11].
The only expert independent evidence regarding FHND’s recidivism risk is a 2015 CCO Report, which was compiled at the Court’s request and states:
Community Correctional Services has assessed the accused's general risk of re-offending as being High according to the Level of Service Risk Assessment Tool.[37]
[37] Ibid, 178.
In his 2019 PCF, FHND explains his offending in the following terms:
At the time of my offending I found myself the subject of some very unusual and terrible circumstances which collectively caused my normal judgment and sense of reckoning to, seemingly, abandon me.
In hindsight, I now recognise that the loss of my employment was the initial trigger for a raft of other poor decisions which ultimately led to my offending. My loss of employment was a point of great embarrassrnent to me and as a result I was unable to talk to my partner as I felt that news may cause her to be upset or anxious as we may suffer financial hardship. At that time I wanted to find a way out of the problem on my own so it didn't trouble my partner.
Stemming from the loss of employment, and with considerably more time on my hands, I began to hang around with other people who were unemployed and living a semi-homeless life. I found myself drinking excessive amounts of alcohol with these people, and later smoking marijuana, and occasionally heroin.
The psychosis that developed from the consumption of these products, coupled with the sleep deprivation, lack of proper meals, and rough sleeping, became a toxic mixture which distorted my normal thinking, and encouraged me to be influenced by peer group pressure.
Throughout this period, I felt I had let my partner down, and the congregation at my Church. It was a period of great unease and discomfort for me. I felt I had failed. I was embarrassed, and I felt desperate, and a sense of hopelessness…
I recognise now that the offending was not the solution that it seemed to be at that time. I recognise that it was wrong by the values my parents and broader family had taught me, and against every teaching the Church had taught me.
I wish to bring to the attention of the Minister or his delegate the comments mention in the support letters…that at the time of my offending I was in the company of others who are described as 'bad company'. Incarceration, rehabilitation programs, and maturity have identified this, and I am determined to never repeat the mistakes of the past.’[38]
(Errors in original. Emphasis added)
[38] Ibid, 69.

Another fear FHND expresses is that his feared harm from gangs will cause him to have ‘significantly less opportunity to secure employment’ to support himself. No evidence was provided to corroborate that submission. As for the concerns FHND expressed about being able to access medical support or other Government-funded support if required, these issues are addressed in ‘Extent of impediments if removed.’
In respect of broader risks of harm falling under Australia’s non-refoulement obligations, the Tribunal notes New Zealand is a signatory to the ICCPR, having ratified it approximately 40 years ago. A report prepared by the US Department of State titled, '2018 Country Reports on Human Rights Practices: New Zealand' states, in relation to torture and other cruel, inhuman or degrading treatment or punishment: ‘The law prohibits such practices, and there were no reports government officials employed them.’[65] There is nothing in FHND’s evidence giving rise to concerns about such risks.
[65] US Department of State, 2018 Country Reports on Human Rights Practices: New Zealand (Annual Report, 2018) <>
FHND stated during his oral evidence that he was told by Refugee Legal he could apply for a Protection Visa (s 501E(2) of the Act). Were he to do so, Direction No. 75 – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b), which binds decision-makers other than a Minister, requires that any refugee or complementary protection claims raised by an applicant are assessed and determined before any consideration is given to ineligibility criteria like character concerns.
On the limited evidence relied upon by FHND, the Tribunal finds he does not have a well-founded fear of persecution. There are also no substantial grounds for believing there is a real risk he will suffer significant harm if repatriated. Australia’s non-refoulement obligations are not enlivened and this consideration carries neutral weight.
Tribunal consideration: Strength, nature and duration of ties
Clause 14.2(1) of the Direction states:
… Reflecting the principles at 6.3, decision-makers must have regard to:
a)        How long the non-citizen has resided in Australia, including whether the non‑citizen has arrived as a young child, noting that:
i.          less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.         More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)        The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
FHND said his repatriation would have a serious and detrimental impact on Ms A, with whom he shares a mutually reliant and loving relationship:
‘My partner, [Ms A] and I came to Australia in 2012 to start a new life, and importantly to start a new life together. We love each other dearly and cannot consider a life apart. Currently [Ms A] works fulltime and often for shift longer than 10 hours which necessarily is tiring and emotionally demanding, on top of being a great Mum to our son. Whilst [Ms A] tries to be very strong in the current circumstance I notice that she is struggling emotionally, and on occasions has displayed behaviour on the verge of a nervous breakdown. In many regards this was linked to the financial stress that [Ms A] describes in her supporting letter…We consider ourselves as a team in everything we do, and this necessarily includes parenting, working, and supporting each other. We love each other.
The support that we receive from our Church community is very welcome, however it cannot be a substitute for my wife's emotional and physical needs. I love [Ms A] and I want my life to be with her, and she feels the same. [Ms A] struggles when we discuss the possibility of deportation to New Zealand. [Ms A] are people who live for each other…she lives for the day when I am released from prison so we can be together as a family. We left New Zealand for very important reasons and chose Australia because we wanted to build a life together here...
The Tribunal acknowledges the evidence of Ms A, who referred in her statement to FHND helping look after their son while she ‘worked 12 hours most days.’ No reference is made to her being reliant on FHND for financial or practical support on the occasions he was not living in the family home, or during his imprisonment or immigration detention. To the contrary, the evidence paints a picture of Ms A being the one who has worked consistently, currently earning around $1500 per fortnight, and providing FHND with financial and practical support. Ms A stated that she and FHND ‘plan to get married in future’ when they are ‘both financially stabled’ (sic).
The Tribunal has considered the evidence of FHND’s brother-in-law,[66] sister-in-law,[67] and mother-in-law,[68] who support his application and ask that he be allowed to remain in Australia with Ms A and their child.
[66] Exhibit R1, 93.
[67] Ibid, 95-96.
[68] Ibid, 94.
When asked in his 2019 PCF to list any positive contributions he had made to the Australian community, FHND stated:[69]
I was an active member of our Church community…I actively participated in the Church's 'Outreach' program to assist people within the broader community who had fell upon hard times and required emotional and logistical support. This work gave me great satisfaction, and a sense of pride. As an extension to this program I contributed to the Church's regular hip-hip [sic] concerts, and buffets.
I am a very hard worker and always paid my fair share of taxation.
It is worthy of mention that I am a young man who has tried within the limitations of my years to contribute to my community.
[69] Ibid, 72-73.
The Tribunal acknowledges the evidence of FHND’s pastor, referring to efforts he made to lead FHND ‘in a positive direction…in helping him make right decisions and taking responsibility for his life.’[70] The pastor referred in his oral evidence to finding a job for FHND, which he held for about six months before relapsing into substance abuse and reoffending. This corroborates FHND’s claim that he was in paid employment from November 2018 until July 2019.’[71]
[70] Ibid R1, 97.
[71] Ibid, 71.
FHND also claimed in his 2019 PCF to have worked for a year between October 2017 and October 2018 as a ‘laborer’ for which there is no independent corroborating evidence. During his oral evidence FHND also referred to shorter periods of work with a labour hire company. There is no evidence in the form of work references or tax certificates, to support FHND’s claim that he is a ‘very hard worker’ and has paid his ‘fair share of taxation,’ but there is also no evidence to contradict FHND’s submissions in this regard.
The Tribunal has had regard for the respondent’s written submissions relating to this consideration.[72]
[72] RSFIC, [66]-[72].
Tribunal findings: Strength, nature and duration of ties
FHND spent the first 18 years of his life living in New Zealand, and the last six years in Australia. Within two months of arrival in Australia he committed serious offences, including violence against a woman and the police. He has continued to offend on numerous occasions since. Less weight is given to this consideration because FHND began offending very soon after arriving in Australia.
While the Tribunal has taken into consideration FHND’s claims about the extent of his contribution to Australia, these claims are general and largely uncorroborated. The Tribunal accepts on the evidence of his pastor that FHND did some unspecified work for approximately a year and made a contribution to the life of his church. The Tribunal also accepts FHND undertook other periodic work prior to that. Some weight is placed on his positive contribution through employment.
The Tribunal accepts FHND has close relationships with some Australian citizens, residents and people with an indefinite right to remain in Australia. That includes his son, members of Ms A family, former work colleagues, his pastor, and perhaps members of his church community. With the exception of Ms A, there would be an emotional but not a practical impact on these people. Ms A’s evidence is that she is a New Zealand citizen on a Class TY Subclass 444 Special Category (Temporary) visa, but the Tribunal accepts FHND’s repatriation would have an adverse effect on her. Her oral evidence is that she is ‘alright’ and expressed her concerns about FHND’s repatriation in terms of having someone else to help look after their son while she works. The Tribunal accepts, however, that Ms A relies on FHND for emotional support and on those occasions FHND was working, it is likely he made a financial contribution to Ms A and their son.
The Tribunal finds on balance that this consideration weighs moderately in favour of revocation.
Impact on Australian business interests
Clause 14.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence that any work performed by FHND, or the business aspirations he expresses, enliven consideration of Australian business interests within the meaning of the Direction. The Tribunal gives this consideration neutral weight.
Impact on victims
Clause 14.4(1), of the Direction states:
Impact of a decision not to revoke 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 that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The Federal Court has previously held that this consideration ‘requires a particular focus upon the consequences of the exercise of discretion to grant a visa with the result that the applicant will remain in Australia,’ where that information is available.[73]
[73] HVLC v Minister for Home Affairs [2019] FCA 616, 13 (Colvin J). Perram J has recently dealt with this issue in Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646.
FHND made no submissions about impact on victims, but Ms A is a multiple victim of his violent offending, who expresses a preference for him to remain in Australia.[74] The Tribunal notes there is authority for the proposition that where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously.[75]
[74] Exhibit R1, 91-92.
[75] Hodgson v Minister for Immigration and Border Protection [2017] FCA 1141 at [40] per Tracey J; RZSN v Minister for Home Affairs [2019] FCA 1731 at [67] per Anderson J.
Given the evidence about family violence offences committed by FHND against Ms A and the Tribunal’s earlier finding about the unacceptable risk he poses of committing further violent offences, the Tribunal has treated Ms A’s letter with caution. That is particularly so given her oral evidence about other instances of threats and violence by FHND towards her. The submissions she makes about her relationship with FHND, and their aspirations for the future, are considered under ‘Strength, nature and duration of ties’ and ‘Extent of impediments if removed.’
The Tribunal finds this consideration has neutral impact.
Tribunal consideration: Extent of impediments if removed
Clause 14.5(1) of the Direction states that:
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.
When asked in his 2019 PCF if he had ‘any diagnosed medical or psychological conditions,’ FHND ticked ‘No’[76] and did not enter any text in the space provided, or in attached pages as he had done when expanding on other answers he gave. A Department of Justice report some five years ago refers to him suffering concussions while playing rugby, which may have indicated some cognitive impairment.[77]
[76] Exhibit R1, 13 [12].
[77] Ibid, 178.
In relation to his concerns about returning to New Zealand, FHND stated in his 2019 PCF that he has:
‘not kept in touch with people in New Zealand because I was trying to get away from these people. In essence I will know no-one, and will not be able establish myself there for fear I will be killed. As a result I will have significantly less opportunity to secure employment that may support me financially. Consequently, l will be financially disadvantaged within a country which has high insurance premiums, and high medical costs.
Additionally, my return to New Zealand would effectively spell the end to my relationship with my partner. She will not return to New Zealand due to the security fears she holds for my life...’[78]
[78] Ibid, 75.
Mr Sypott conceded FHND would be confronted by a period of adjustment if returned to New Zealand, having not resided there for almost six years. This adjustment would be more difficult if Ms A and their son do not return to New Zealand with him, which would cause emotional difficulties. However, it was submitted that FHND:
is young and healthy, has some qualifications and employment experience and will not face cultural or linguistic barriers upon return to New Zealand. He should be able to re-establish himself and maintain basic living standards in New Zealand.
Mr Sypott referred to the courses and work experience undertaken by FHND in Australia as assisting him in finding work. He submitted that FHND’s claim that he has not kept in touch with people in New Zealand and that he does not know anybody there, ‘is difficult to reconcile with his September 2017 visit to New Zealand, one of the purposes of which was to [visit] friends or relatives’. Mr Sypott pointed out that FHND’s evidence was that he was closer to his mother and had a father, six siblings and friends in New Zealand, but claimed he would not ask them for any support if repatriated. He said this was FHND’s choice, but should not count as an impediment if he exercised this choice. Mr Sypott submitted that this consideration should be given only ‘limited weight’ in favour of revocation.
Tribunal findings: Extent of impediments if removed
There are no discernible language or cultural impediments to FHND’s repatriation, given he was raised, educated and worked in New Zealand until the age of 18. He has only lived outside of New Zealand for the past six years.
On his own evidence, FHND is a fit and healthy 24-year-old man. There is no evidence that he is impecunious or unable to support himself, or apply for income, housing or other government-funded support available to all New Zealand citizens. As for his concerns about being ‘financially disadvantaged’ because New Zealand ‘has high insurance premiums, and high medical costs, there is no corroborating evidence that he is required to take out any insurance policy, or would be denied healthcare if required in the future, or be treated any differently in respect of health services to any other New Zealand citizen. The purported impediment of ‘high medical costs’ is also of questionable relevance in circumstances where FHND claims no diagnosed medical conditions.
In relation to his claim that ‘the money’s not great’ in New Zealand compared to Australia, the Tribunal’s task under the Direction relates to an applicant’s ability to establish themselves and maintain basic living standards ‘in the context of what is generally available to other citizens of that country,’ rather than by comparison with Australia.
FHND’s evidence is that he wants to return to work immediately. There is no evidence he is impeded in applying for work or is unable to competitively apply for work. The Tribunal accepts his evidence that the vocational courses he completed in Australia, coupled with past work experience, may assist him in this regard. There is no evidence that if he needed it, he would not have the same entitlement to income, housing or other support available to all New Zealand citizens who meet the required prerequisites.
The Tribunal does not accept FHND’s claims that since arriving in Australia he has ‘not kept in touch with people in New Zealand’ or that he will ‘know no-one’ if returned, which would affect his ability to re-establish himself. He was raised, educated and worked in New Zealand for the first 18 years of his life. During his oral evidence he referred to multiple relatives and friends in New Zealand, and his movement record discloses he visited relatives and friends just under three years ago.
The Tribunal accepts FHND will be confronted with some hardship if returned to New Zealand, particularly after living here for six years. This hardship would be exacerbated if Ms A chose to remain in Australia with their child. On balance, the Tribunal finds this consideration weighs moderately in favour of revocation.
Other Considerations
No additional considerations were advanced by the parties and I have not identified any additional ‘other considerations’ relevant to the specific circumstances of this case, as provided for at cl 14(1) of the Direction.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(d) of the Act, FHND does not pass the character test. In determining if there is ‘another reason’ why the mandatory cancellation of his visa should be revoked, the Tribunal has applied the considerations at Part C of the Direction to the specific circumstances of his case. Given the findings arising from the evidence, the Tribunal considers it is appropriate to give greater weight to the primary considerations than the other considerations (cl 8(4) of the Direction).
FHND is not yet 25 years of age but has an extensive criminal history in New Zealand and Australia spanning almost eight years. This includes repeat offending in several categories, including violence against a woman, police and other officials. He has committed multiple dishonesty offences and drug offences, with many of his crimes occurring while under conditional liberty. The Tribunal has placed significant weight on the seriousness and prolonged nature of FHND’s crimes during the six years he has resided in Australia. In these circumstances, and in accordance with the principles at cl 6.3 of the Direction, he should expect to be denied the privilege of remaining in Australia.
FHND was assessed as being a ‘High’ risk of reoffending in 2015. That report presciently foreshadowed further serious crimes between 2017 and 2019. He constitutes an unacceptably high risk of reoffending if released, which would expose the Australian community to a significant risk of substantial harm.
FHND has not been the present and nurturing father in his child’s life that he aspires to be. It is accepted he loves his son and has a relationship with him. But his most serious offences were committed after the birth of his child in 2016. Their relationship since has been marked by periods of absence and limited meaningful contact. FHND’s capacity to play a more meaningful parental role cannot be reliably predicted. This depends on his ability to abstain from drugs, stop abusing alcohol, and stop offending.

FHND has repeatedly breached the community’s general expectation that non-citizens should be law-abiding and respect important institutions like the police and courts. He has instead committed multiple acts of violence against police and repeatedly breached court orders. This is contrary to the privilege of being allowed to remain in Australia.
The Tribunal is unpersuaded by FHND’s non-refoulement claims. After claiming to witness the killing of a relative when around 11 years of age, he continued to live and work in New Zealand until the age of 18. He visited friends and relatives in New Zealand just under three years ago. His claim that he left New Zealand because he feared being ‘forced to engage in criminal activity’ and ‘wanted nothing to do with this kind of life,’ does not ring true in circumstances where he committed multiple criminal offences between 2011 and 2013, before moving to Australia.
The Tribunal accepts that FHND has some close relationships with Australian citizens, residents and/or people who have an indefinite right to remain in Australia. His repatriation would have a particularly adverse effect on Ms A, who although a New Zealand citizen, would be confronted with a difficult decision as to whether she and her son follow FHND to New Zealand. In terms of impediments to repatriation, FHND is a young man with no diagnosed conditions and aspires to an immediate return to work if released. Although re-establishing himself in New Zealand would not come without challenges, none of these are considered insurmountable.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the decision to cancel FHND’s visa should be revoked. That is because the primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ each weigh very substantially against revocation. These considerably outweigh the other primary consideration ‘Best interests of minor children,’ which weighs slightly in favour of revocation, and the relevant other considerations ‘Strength, nature and duration of ties,’ and ‘Extent of Impediments if removed,’ which each weigh moderately in favour of revocation.
DECISION
It follows that the Tribunal affirms the decision under review.

I certify that the preceding 169 (one-hundred-and-sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

……………[sgd]……………….
Associate
Dated: 4 August 2020

Date of hearing: 27 July 2020

Applicant: In-Person (by Videoconference)

Advocate for the Respondent:

Mr Keith Sypott

Solicitors for the Respondent:

Australian Government Solicitor

[2020] AATA 2647

4 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Appeal

Date of hearing:	27 July 2020
Applicant:	In-Person (by Videoconference)
Advocate for the Respondent:	Mr Keith Sypott
Solicitors for the Respondent:	Australian Government Solicitor