Gardner and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Gardner and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3424 (29 September 2023)
Division:GENERAL DIVISION
File Number: 2023/5079
Re:Russell Gardner
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member R Maguire
Date of Decision: 29 September 2023
Date of Written Reasons: 24 October 2023
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 6 July 2023 and substitutes it with a decision to revoke the cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa.
...............................[SGD]...........................
Member R Maguire
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulation 1994 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
DOB18 v Minister for Home Affairs [2019] FCAFC 63; (2019) 269 FCR 636
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
XGHJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3474 (28 September 2021)
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Member R Maguire
29 September 2023
INTRODUCTION

By application made on 10 July 2023 Mr Russell Gardner (‘the Applicant’) seeks review of a decision[1] of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) dated 6 July 2023 made pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the decision made on 5 December 2022 to mandatorily cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (“the Visa”).
[1] G1, p 9.
Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period provided for in the Migration Regulations 1994 (Cth) (28 days in accordance with reg 2.52), and the decision-maker determines that the Applicant passes the “character test”, or, as provided under s 501CA(4)(b), there is another reason why the mandatory cancellation should be revoked. The Minister accepted that the Applicant had made the necessary representations within the prescribed period.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under s 501(6)(a) of the Act the person has a substantial criminal record as defined by s 501(7). Relevantly, s 501(7) states:
7For the purposes of the character test, a person has a substantial criminal record if:
...
(c)the person has been sentenced to a term of imprisonment of 12 months or more;...
The term “imprisonment” is defined to include any form of punitive detention in a facility or institution: s 501(12) of the Act.
On 8 December 2021, the Applicant was sentenced to 12 months’ imprisonment on a charge of disqualified driving, and immediately placed on parole and released back into the community.[2] It is clear from the sentencing transcript that the issue of the Applicant’s possible deportation was canvassed before the sentencing Magistrate , and the sentence was structured not to trigger the operation of s. 501(3A) of the Act by avoiding the requirement of sub-paragraph (b) of that section.
[2] G1, p 76.
Subsequent to his receipt of this sentence, the Applicant offended whilst on parole. On 4 March 2022, he faced Southport Magistrates Court on charges of offence to buy or possess S4 or S8 medications or hazardous poisons and failure to appear in accordance with undertaking. He was convicted and fined.
On 28 October 2022 he faced Southport Magistrates Court on charges of failure to give a statutory declaration, possession of dangerous drugs (x3), possess utensils and pipes (x2), possess property suspected of having been used in connection with the commission of a drug offence, and failure to properly dispose of a needle and syringe, including traffic offences including evade. The offending occurred in May and June 2022. He was convicted on all charges and given a probation period of two years. It was reported to Dr Yoxall, and the Tribunal accepts, that the Magistrate issued him a fine and 2 years’ probation which she said she understood would avoid deportation.
It is noted that on neither of these two most recent sentencing occasions was the Applicant sentenced to a further term of imprisonment which would have resulted in the immediate mandatory cancellation of his parole. The Parole Board nevertheless intervened to suspend the Applicant’s parole, and he was returned to custody.
On 5 December 2022, whilst the Applicant was in custody serving a term of imprisonment, the Respondent acted pursuant to s 501(3A) of the Act to mandatorily cancel the Applicant’s Visa because he did not pass the character test. The Applicant had a substantial criminal record as provided in s 501(7)(c) in consequence of being sentenced to 12 months or more imprisonment. Notice of this decision was given by hand to the Applicant on 5 December 2022.[3]
[3] G1, p 326
In accordance with reg 2.52(2)(b) the Applicant was invited in accordance with s 501CA(3)(b) of the Act to make representations to the Minister about revoking the cancellation decision within 28 days after he had received the notice. The Applicant made representations to the Minister within the period and in the manner specified.[4]
[4] G1, pp 83-84.
Following the decision pursuant to s 501CA(4) of the Act, the Applicant made the present application to this Tribunal for a review of that decision.[5] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.
[5] G1, pp 1-4.
By operation of s 500(6L) of the Act, when an application is made to the Tribunal for a review of a decision under s 501CA(4) of the Act not to revoke a decision to cancel a visa, and the decision relates to a person in the migration zone, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision under review in accordance with 501G(1), the Tribunal is taken at the end of that period to have made a decision under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) to affirm the decision under review. At the hearing, it was agreed that for the purposes of this review, and s 500(6L)(c), the 84th day is 29 September 2023. It was therefore open to the Tribunal to make a decision prior to midnight, on that date.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Applicant has made the representations required by s 501CA(4)(a) of the Act. Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is another reason why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the Applicant which the Tribunal is required to read, identify, understand and evaluate.[6]
[6] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, at [22] and [36].
If the Tribunal exercises the power conferred by s 501CA(4) and in giving reasons makes a finding of fact, the Tribunal must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Tribunal's personal or specialised knowledge or by reference to that which is commonly known. It is open to the Tribunal to adopt the accumulated knowledge of the Department.[7]
[7] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [17]-[20].
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; and if not
(b)whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[8]
[8] Ibid.
Does the Applicant pass the character test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. In addition, and as an alternative, s 501(7)(d) provides that a person will have a substantial criminal record if the person “has been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more.” Section 501(7A) provides that for the purposes of the character test, if a person has been sentenced to two or more terms of imprisonment to be served concurrently (whether in whole or in part) the whole of each term is to be counted in working out the total terms.
At the hearing the Applicant conceded that he did not pass the character test, and it is clear from the evidence that this is the case.
The Tribunal therefore finds that the Applicant does not pass the character test pursuant to s 501(6)(a) of the Act and that the Applicant therefore cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
The remaining question therefore is found in s 501CA(4)(b)(ii) of the Act, namely whether there is another reason why the original decision should be revoked.
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
In considering whether there is another reason to exercise the power in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No. 99 – visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction” or “Direction 99”) has application.[9]
[9] Direction No 99 commenced on 3 March 2023. It replaces Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
Relevantly, the Direction states that:[10]
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
[10] Direction No 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction/ Direction 99”), page 5, Part 2, 6 – Making a decision.
.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 7(1) of the Direction provides that in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 7(2) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia:
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
The Tribunal notes the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[11]
“…Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply”.
[11] [2018] FCA 594 at [23].
The Tribunal now turns to addressing these considerations.
The Applicant’s history of offending and other serious conduct
Within the Respondent’s Statement of Facts, Issues and Contentions (“SFIC”) is a table which helpfully outlines the Applicant’s criminal history in Australia and New Zealand in addition to his movement history.[12] At the hearing, the Applicant accepted the accuracy of his offending record as set out in the Respondent’s SFIC and the G Documents. Tribunal adopts the history as set out in the SFIC for present purposes.
EVIDENCE AT HEARING
[12] R1, pp 1-9.
Applicant’s evidence at hearing
In his evidence, the Applicant confirmed that he did not pass the character test, and that his former partner who shall be referred to as Ms L was a member of his family for the purposes of the relevant family violence provisions in the Direction.
The Applicant told the Tribunal that his offending in Australia started with a catalyst event, the death of a very close friend in 2012, which led to murder charges being laid. His drug use prior to that time had not led him into crime. The friend had been at his home earlier on the day that he died. His death put the Applicant on a downhill spiral, and until recently he had lacked the tools to take action on his addiction. He felt he had come a long way sorting out his mental health.
The Applicant said that after moving to Australia in 2007, he had worked and lived in the community without offending until his friend’s death. He acknowledged the stupidity and seriousness of his disqualified driving offences.
His relationship with Ms L had endured over five years, and had been on and off depending on whether he was in jail. The Applicant did not substantially dispute his recorded conduct in respect of the episodes relied on as constituting family violence, other than to say he had pushed Ms L against a car rather than thrown her, but strongly denied ever hitting any females.
The Applicant said that he failed to disclose his criminal convictions in New Zealand because at the time he thought he did not have any criminal convictions because he had only been fined, and not sent to prison. However the judge had told him he was being convicted.
The Applicant discussed his previous attempts at rehabilitation going back to 2018. He said that he thought he had been trying to address the wrong issues in his rehabilitation. From the education he had now received, he realised that he had needed to learn how to process his emotions, not just take a pill to make everything better. He had engaged with Lives Lived Well in 2022 because he knew he had not acquired the tools to make the difference he needed. He thought he had previously been in denial about the severity of his drug dependency. He had now managed to complete some more serious courses and programs which taught him much about himself. He had learned about his drug addiction and underlying problems stemming from his family. He had genuinely believed he had learned enough in 2019 to be a different person, but now he knew he was. Being sober had changed his life and given him purpose and confidence and he had managed to accept and face head on his past mistakes.

He had not been able to access support in 2020 because of the Covid-19 pandemic. He had tried through parole to access places, but they could not help him. On his release after five weeks in detention, he was homeless and with no support network. He had not achieved anything in terms of rehabilitation during his short stay in detention. He had tried to contact Lives Lived Well and had engaged to go to live-in rehabilitation at Logan House, and started counselling with Drug Arm. He could not do the live-in because he was diagnosed with really bad sleep apnoea, and snored.
Treatment with Buvidal had not previously been available to him when he had been in detention.
The Applicant had separated from his ex-wife, who shall be referred to as Ms M in 2016, and had been living completely apart from her since 2017. She has custody and care of their children. He has recently re-established some contact with her and they maintained an amicable relationship for the sake of the children. He speaks to her a couple of times a week. He had always been in contact with all of his children, and had a really strong bond with his elder son who shall be referred to as S1. He and S1 had re-established contact in a big way at the end of 2021. S1 had just been through an abusive relationship, and was suffering quite badly and needed his father.
When he met up with S1, he was sober, had a house, and things were going better for him, and he realised he needed to continue to change. S1 had visited him twice while he was in detention, once alone, and once with the Applicant’s elder daughter who shall be referred to as D1. It had been difficult for them to visit as they relied on public transport to commute from the Gold Coast to the north side of Brisbane.
The Applicant said he had always had a connection with D1, and she had appointed herself as a mediator within the family. His younger daughter who shall be referred to as D2 had been his best friend, and had been very hurt when he returned to doing the wrong thing.
The Applicant has offered financial assistance to his children to buy cars.
He had been found in possession of a stolen car, but said he had thought it had been abandoned when he took it. Removal of vehicles abandoned in the car park of the resort where he worked had been part of his job, even though he had told Police his boss did not know about it. Vehicles were removed after a process of placing notices on windscreens and in the lifts for people to talk to reception about the vehicles. This was around two years after his friend’s death, and at the peak of his drug use. He would not morally have stolen someone’s car. He did not intend there to be a victim of his actions.
His younger son who shall be referred to as S2 did not know him as well as the other children. He was only a little boy when he left, and he had only seen him about a dozen times. He now speaks to him as often as he can, about two or three times a week, and the child had visited him the first time he was in detention in 2020. He last saw him in 2022.
The Applicant was taken through his history of employment since coming to Australia. Most recently he had run his own property maintenance business from February 2022 until his arrest. At this time things had been improving for him. He had a place of residence, was seeing his children, and had started his journey to recovery. He was seeing Lives Lived Well and his drug use had fairly declined and had become sporadic.
In the future, he would like to work as a barber, but could not afford the financial risk of setting up a business. He would probably work as a water proofer as he had a job offer. It was better work than the car detailing he had also been offered.
He planned to stay at a hotel for a few weeks and then live with an old friend who was unable to be present as she broke her leg over the recent weekend.
The Applicant also identified a small group of people with whom he had maintained contact.
The Applicant spoke of a fight he had with a member of the Head Hunters gang in New Zealand in 2015. He had not mentioned it in his previous application but had thought more seriously about realistic threats he would face in New Zealand this time. He would have no form of employment there, and be removed from contact with his children, and was worried he would return to drug use. He was also worried about gang activity. Gang members had tried to extort a car and trailer from his parents, resulting in the fight he referred to, and which saw him hospitalised.
The Applicant accepted that the New Zealand health system would be able to address his health concerns. He confirmed what he had told Dr Yoxall that if returned to New Zealand he would cope and find a way to be okay.
On the second day of the hearing, the Applicant addressed the Tribunal. He apologised for how he had conducted himself on the first day, and said that he found the appearance a bit overwhelming. In no way did he intend to mislead, or appear to be contesting the facts regarding his criminal history.
The answer he had wanted to give regarding what is different about this time was that even though his previous attempts at rehabilitation were sincere, being introduced to identifying triggers was about the best thing that he had learned. He now understood the cycle and the actual science behind his drug addiction. He had learned that it was a lot more complex than just using drugs, and that he was suffering from emotional and mental problems. He had completed programs that addressed everything from his self-esteem, his self-worth, and the fundamentals of a healthy relationship, not only with others but with himself.
The Applicant said that he had been able to regain a life that was autonomous, and full of new life and meaning. He had learnt so many new skills about his cognitive behaviour and how to re-establish personal boundaries, so that he could once again respect himself and live a life where he stood by his values. The positive changes, leading a life of value and meaning, had allowed him to once again show integrity, honesty, loyalty and love in his relationships with himself and his children. He had learnt to be vulnerable and accept accountability for his mistakes. He no longer hid behind the shame and the guilt of hurting his family. These changes had allowed him to move forward from his long period of depression, co-dependency and guilty. Even though he was embarrassed about his conduct, which he could not change, it was his past and he would not let it define his future.
Evidence of Dr Jacqui Yoxall
Dr Yoxall affirmed her report dated 8 July 2023. She confirmed that she had found the Applicant to be a low to moderate risk of general re-offending, with low to moderate rehabilitation needs based on the Level of Service Inventory Assessment.
Dr Yoxall said that she thought the Applicant had moderate rehabilitation needs. She stated[13]:
“He’s done a – in my opinion – a substantial amount of work in the period of time that he has had most recently in custody and immigration detention. In fact, he has done probably – he’s probably one of the people who has done the most amount of work that I’ve seen achieved in such a period of time in the work that I do in this space. However, he has a very long history of drug dependence, and he has quite a substantial history of offending. And so he needs support in the community, and he needs to continue the work that he’s doing and extend upon it as he transitions back into the community, in my opinion
….
I wouldn’t consider that his rehab needs are low. I certainly think they’re moderate. But I also think that they’re achievable and accessible, and what he’s demonstrated over the last now 12 months – so I will just state in response, just for comprehensiveness – I have spoken to Mr Gardner since the assessment in April. I’ve spoken to him – I know I spoke to him last week, because he sent me updated material, because I wanted to see what he’d done. And I think I’ve spoken to him maybe once or twice before that for brief periods of time. So I am aware – in terms of timeframes – we’re sitting here in September – that he’s continued to do substantial rehab work. And that’s tremendous, and he’s done as much as he can, but he will need to continue that journey.
…
the extensive work that he’s done, as best as he could in detention.”
[13] Transcript, p 39, lines 4-12.
Closing submissions of the Respondent
In closing submissions, Ms Ervin relied upon and expounded the Respondent’s SFIC.
In addressing Primary Consideration 1, she submitted that much of the Applicant's offending considered in isolation could be considered relatively minor, but the Tribunal was directed to consider the entirety of his course of conduct, with specific attention to the cumulative effect of repeated offending and the sentence is imposed.
The seriousness of his offending lay in its persistence in the face of attempts at rehabilitation, periods of imprisonment, and the revocation of a prior visa cancellation. The Applicant had committed offending in Australia similar to that which he had committed in New Zealand prior to his arrival.
Ms Ervin submitted that his explanation for his provision of false information in his 2015 entry cards was not visible in the light of court records. His 21 breaches of bail conditions meant the Tribunal should be wary of reliance on the fact he would be subject to Corrective Services supervision for 12 months if released back into the community.
Ms Ervin said the respondent acknowledged the applicant's attempts at rehabilitation and what did appear to be a genuinely held belief that things this time we're different, but pointed to his past failures to abstain from drug use. There continued to be a real risk of physical harm to members of the community and their property. The nature of the harm was serious and was compounded by a prior visa cancellation. There continued to be a real risk of physical harm to members of the community.
Ms Ervin submitted the Primary Consideration 1 should weigh strongly against revocation.
In addressing Primary Consideration 2, Ms Ervin submitted that this was a relevant consideration as the applicant had admitted being involved with family violence. The nature of his conduct had been detailed in the Respondent's SFIC.
Primary Consideration 2 should weigh heavily against revocation.
In addressing Primary Consideration 3 Ms Ervin submitted that the Applicant had ties to the Australian community through his family, particularly his children. Beyond this he had limited social ties. His future plans for residence and employment had changed recently and he had not provided any corroborating evidence of his recently planned job.
Primary Consideration 3 should therefore carry mitigated weight in favour of revocation.
In addressing Primary Consideration 4 Ms Ervin submitted that this favoured revocation. D2 would only remain a minor for a short period of time. His relationship with S2 had been limited through his absence from the family home. The children's mother had been filling the parental role, and these factors mitigated the weight which could be attributed to this Primary Consideration.
In addressing Primary Consideration 5 Ms Ervin submitted that this should weigh heavily against revocation. His prior visa cancellation was revoked when he undertook to the Department that he would commit to rehabilitation and a law abiding life. Instead he had returned to drug use and offending.
Regarding the applicants concerns about gang violence if he is returned to New Zealand, Ms Ervin submitted that these could be addressed via an application for a protection visa. The lack of corroborating evidence in respect of this claim meant the concerns should not be relied upon.
Ms Ervin submitted that the Respondent accepted that the Applicant would face hardship, including emotional hardship, should he be returned to New Zealand, but the New Zealand health system could meet his needs.
He would have emotional support from his parents and maybe financial support as well.
Ms Ervin submitted that primary considerations one, two, and five outweighed the totality of the remaining considerations.
After the conclusion of her submissions, Ms Ervin accepted that the Applicant’s family violence was at the lower end of the scale that usually came before the Tribunal.
Closing submissions of the Applicant
In his closing submissions, the Applicant said at the outset that Lives Lived Well had written confirming that he had expressed interest in a living programme with them.
Some of his bail breaches were caused by his hospitalisation.
He said that he had recently engaged with rehabilitation like he never had done before. He had learned about triggers, and all sorts of strategies which opened the doorway for him to pursue rehabilitation more seriously than he had previously.
The Applicant submitted that whilst any violence is serious, he was not violent by nature, and had no history of violence. He had a lot of sober friends come up but it was hard to maintain friendships when in detention.
The last time that he was released into the community it was at the time of the Covid travel bans and shutdowns and he was unable to access rehabilitation.
Any financial support he could obtain from his father would possibly only be a couple of hundred dollars from working, but was not enough for him to have accommodation etc. He confirmed that he had employment to go to on his release in Australia and apologised for over complicating things by talking about his goals and passions for future endeavours during his evidence the previous day.
His priority on release was to keep things simple: work, keep a roof over his head, and see his children.
His partner was a positive support, and she did not use drugs. She was affectionate, and cared about him and his relationship with his children. He had learned skills about having a healthy relationship, and there was trust and honesty in his relationship with her. He confirmed he had accommodation at Southport. With the support of his children and extended support network, he could be a positive member of the community and a strong role model of what it is to be a respectful man.
The applicant apologised for crying the previous day during his evidence, and said that he had formed a very strong loving relationship with his children and the thought of putting them through more pain was a situation he would avoid at all costs.
He would never again take for granted the blessing it had been to have a great future in Australia. He said that the previous day he had made an affirmation to make truthful answers. He could truthfully say that he had made life changing choices and changed whilst in detention. He could truthfully say he was going to remain abstinent from drugs for the future of himself and his children.
He had made every possible attempt at rehabilitation that was available to him and had done so with 100% effort and focus. He continued:
“The person that I have been, who is a drug addict, is not who I am. I’ve wanted to change my life around for the last few years and I wish I had have been able to attend the programs I have now worked so hard to complete a long time ago. I have hated my drug dependency for a long time, but was blind to the fact I had to learn so much more about myself before making these changes. Learning how to respond instead of reacting, saying no and sticking to my boundaries, how to stand by my core values, morals and ethics that brought me back to being a proud and respectful man. For that I need to be a positive role model for my children to that end in their life. I am proud of the changes I have made, and I know my children are proud of me too. I have dreams and goals again. I am inspired to grow again as a positive influence not only to my children but to others who need guidance in life. I have a proper support network this time who are all aware of my journey, my goals and my plans. I have put plans in place to minimise if not completely remove signs of risk of my life. All the cards are on the table now and I have the love, care and support from my children and then family, along with the plans in place with agencies to assist me on my journey with my recovery.”
CONSIDERATION
Credibility
The Applicant gave evidence in a frank and unguarded manner. He did not appear to engage in any clear attempts at evasion, obfuscation, minimalization or exaggeration. He appeared genuine, even when explaining his past misunderstanding of what constituted a conviction. He generally appeared to be a credible witness.
Has the Applicant committed Family Violence
The definition of “family violence” relevantly provided in Paragraph 4 of the Direction states:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
(a)An assault ...
(b)stalking ...
(c)repeated derogatory taunts;….
(d)intentionally causing death or injury to an animal;…
(e)intentionally damaging or destroying property...”
The chapeau to this definition would indicate that an episode of “violent, threatening or other behaviour” is not sufficient to attract the descriptor “family violence” unless such conduct is accompanied by resulting coercion, control, or fear. The definition provides examples of what may constitute family violence, not what will. In doing so, it provides examples of items of conduct which if accompanied by coercion, control or fear may constitute family violence.
In evidence the Applicant conceded that Ms L was a member of his family for the purposes of the definition of family violence provided in the Direction.
Three episodes are relied upon by the Minister as enlivening consideration of Primary Consideration 2.
The first of these episodes was alleged to have occurred in September 2020, and is described in the Respondent’s SFIC.[14] The Applicant was alleged to have shouted at Ms L. Ms L told Police that the Applicant had not engaged in physical violence, and had not damaged any property. Police searched the location and could not observe any property damage, nor was Ms L showing any signs of injury. Ms L did not express fear of him to Police, and there is nothing in the Police report contained in the Tender Bundle to suggest that she claimed to have felt coerced or controlled in this instance.[15] The Police report referred to Ms L’s “non-existent fear level.”
[14] R1, p 21, [60].
[15] R2, p 346.
The evidence before the Tribunal is not sufficient to satisfy it that the episode of 24 September 2020 amounted to family violence so as to enliven consideration of paragraph 8.2 of the Direction.
The second episode relied upon by the Minister as enlivening consideration of Primary Consideration 2 was alleged to have occurred in May 2021, and is described in the Respondent’s SFIC and Tender Bundle.[16] There is evidence that the Applicant kicked the rear of a vehicle. There is no evidence as to whose vehicle it was, or that the kick was in anyway directed towards Ms L. Neither is there any evidence that the kick resulted in “damaging or destroying” the vehicle in any way as contemplated by paragraph 4(1)(e) of the Direction. Accordingly, this conduct does not enliven consideration of paragraph 8.2 of the Direction.
[16] R1, p 21, [61]; R2, p 354.
There is further evidence that the Applicant proceeded to forcibly drag Ms L from the vehicle, and pulled at her skirt. The opinion is expressed in the police report that this was an attempt to pull the skirt off. It was also recorded that the Applicant had repeatedly thrown Ms L against the car, although the Applicant maintained it was more of a push. This seems to be a somewhat semantic difference. When interviewed by police, Ms L maintained that the Applicant had “barely touched her”, and was adamant that it was “nothing”. When informed by Police that they would be taking a Police Protection Notice against the Applicant, her immediate reaction was to ask police how she could get it withdrawn. Ms L made no assertion to Police that she in any way felt coerced or controlled by the Applicant’s conduct or that it caused her to be fearful. She expressly declined to make any criminal complaint against the Applicant.

There is clear evidence that there was some violence on the part of the Applicant, however, in view of Ms L’s responses to police, there is insufficient evidence that Ms L felt coerced, controlled, or fearful in consequence. Accordingly, this conduct does not enliven consideration of paragraph 8.2 of the Direction.
Nevertheless, the episode in May 2021 led to the making of a Protection Order in June 2021, and the Applicant was charged with contravening the order in August 2021 when, during an argument he threw a basket of laundry into the hallway. There is no evidence that the basket was thrown at Ms L, or that she was in any way injured by this act. The Applicant then went for a walk. Upon his return he began shouting, and grabbed and dragged her into their room. When Police arrived, the Applicant was sitting on a couch, and Ms L was sitting on a balcony. Notwithstanding CCTV footage, both denied that “there was anything physical”. Police had viewed the CCTV footage and told the Applicant that MS L was forcibly dragged into the unit.
There is clear evidence that there was some violence on the part of the Applicant in this episode, no claim was made by Ms L that she felt in any way coerced, controlled, or fearful in consequence of his conduct. There is insufficient evidence Ms L was coerced, controlled, or fearful in consequence. Accordingly, this conduct does not enliven consideration of paragraph 8.2 of the Direction.
The evidence before the Tribunal is insufficient to satisfy it that it enlivens consideration of Primary Consideration 2.
The Tribunal now turns to the specific considerations of Direction 99. In doing so, the Tribunal does not propose to restate the extensive evidence set out above, and which forms the basis for its reasons.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the possession they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)The cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia
Paragraphs 8.1.1 considerations
Conclusion about the nature and seriousness of the Applicant’s conduct
The Minister did not contend that subparagraphs (a) or (b) of paragraph 8.1.1(1) were relevant to this application, and conceded that many of the Applicant’s offences could if considered in isolation be considered to be relatively minor, and relied upon the cumulative effect of his persistent offending and the sentences imposed.
Sub-paragraph (c) – the sentences imposed.
The Applicant has received the full range of sentences, up to and including imprisonment. His heaviest sentence was imposed in the Supreme Court in August 2018, at which time he was sentenced to 18 months imprisonment with immediate parole. Prior to that he had received numerous suspended sentences ranging from 3 weeks imprisonment to 3 months, and one sentence of 6 months. Subsequent to the 18 month sentence, he received further suspended sentences of 3, 9, and 12 imprisonment for offences committed prior to the 30 August 2018 sentencing.
Following the revocation of the mandatory cancellation of his visa, the Applicant has received fines on three occasions. He has been sentenced to one term of one month’s imprisonment, and one of two months’ imprisonment, two terms of three months’ imprisonment, and one of 9 months’ imprisonment. All sentences of imprisonment were subject to immediate parole. It is clear that on at least one occasion before Magistrate Pink, the sentence appears to have been intended to avoid the operation of s. 501(3A) of the Act.
The imposition of sentences of imprisonment is at the peak of the sentencing hierarchy, and must weigh against revocation.
Subparagraph (d) – frequency and increasing seriousness
There can be no denying that the Applicant has been a very frequent offender, albeit generally at a lower level than most who come before the Tribunal in this type of case. The sentences imposed on the Applicant since 2018, and the restoration of his visa on 20 March 2020, can be seen as gradually lessening, to the point where the most recent sentence imposed was 2 years’ probation. This suggests that the courts have taken a less serious view of his offending than was taken in 2018, and that the courts have felt that he remained a reasonable candidate for rehabilitation. Judging from the penalties imposed by the Courts, there does not appear to be a trend of increasing seriousness in the Applicant’s offending. However it must be noted that there is a seriousness in repeated commission of offences which are considered in isolation, low level offences.
The frequency of the Applicant’s offending weighs against revocation.
Subparagraph (e) the cumulative effect of the Applicant’s repeated offending.
The Applicant has breached bail on many occasions, and offended whilst on conditional liberty, breaching the trust of the Courts and the community. He has committed a large number of low-level offences, and been a serial disqualified driver, and user and possessor of dangerous drugs and drug paraphernalia. He has committed a range of property offences, and offences of dishonesty.
Although the clear bulk of the Applicant’s offending occurred prior to the revocation of the cancellation of his visa, the cumulative effect of the Applicant’s offending must weigh against revocation.
Subparagraph (f) – Provision of false or misleading information
The Applicant provided false information to the Australian government twice on incoming passenger cards in 2015. There is no evidence that he has provided false information to the Australian government since.
The provision of false information weighs against revocation.
Subparagraph (g) – reoffending after warning
The Applicant has reoffended a substantial number of times since receiving the letter of 20 March 2020 which notified revocation of the cancellation of his visa and contained a clear and stern warning against further offending.
This conduct weighs against revocation.
Subparagraph (h) – Overseas offending
There is undisputed evidence that the Applicant has offended in New Zealand prior to entry into Australia, and this must weigh against revocation.
The Tribunal considers the overall history of the Applicant’s offending to be very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Sub-paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Sub-paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to the Australian community should the Applicant engage in further offending appears to be primarily damage to or loss of property in the course of continued low level offending. Much of the Applicant’s offending has been against the administration of justice itself, as opposed to the broader community. In assessing the nature of the harm which might be suffered by individuals or the community, the Tribunal notes that the Minister made no submission that this case attracted consideration of paragraph 8.1.1(1)(a) or (b) of the Direction, which is something of a rarity for this type of case.
An assessment of the likelihood of the Applicant’s engaging in further offending requires consideration of a range of factors.
Information and evidence of risk of re-offending
The Tribunal accepts the written and oral evidence of Dr Yoxall. In particular, the Tribunal gives weight to her statement:
“He’s done a – in my opinion – a substantial amount of work in the period of time that he has had most recently in custody and immigration detention. In fact, he has done probably – he’s probably one of the people who has done the most amount of work that I’ve seen achieved in such a period of time in the work that I do in this space.
…
So I wouldn’t consider that his rehab needs are low. I certainly think they’re moderate. But I also think that they’re achievable and accessible, and what he’s demonstrated over the last now 12 months – so I will just state in response, just for comprehensiveness – I have spoken to Mr Gardner since the assessment in April. I’ve spoken to him – I know I spoke to him last week, because he sent me updated material, because I wanted to see what he’d done. And I think I’ve spoken to him maybe once or twice before that for brief periods of time. So I am aware – in terms of timeframes – we’re sitting here in September – that he’s continued to do substantial rehab work. And that’s tremendous, and he’s done as much as he can, but he will need to continue that journey.”
Dr Yoxall’s report noted that the Applicant showed what appeared to be genuine remorse, and this assessment accords with the Tribunal’s observations during the hearing. He had a history of childhood bullying and social rejection at school, and physical abuse at home. He had struggled to identify, express, and manage emotions and had entrenched feelings of worthlessness and insecurity. She considered he had most likely experienced periods of depression over his life to date which have gone unrecognized, undiagnosed and untreated.
The Applicant had functioned well in Australia until the murder of his close friend. He then spiralled into a chronic and severe Substance Use Disorder (methamphetamine dependence) which commenced as a form of self-medication against significant grief, depression and trauma response. He had continued to battle his dependence and his vulnerability to depression.
Dr Yoxall recorded:
“There appears to be a substantial change in Mr Gardner’s attitude and commitment to rehabilitation in the last 12 months since his last offending. He has achieved 12 months of abstinence from methamphetamine which puts him into the diagnostic category of ‘sustained remission’. He has engaged in all rehabilitation he has been able to access to address, resolve and or manage the factors that contribute to his drug use and offending. He has reconnected with his children, has removed himself from negative social influence in the community and has retained friendships with prosocial people who are supportive of his rehabilitation. He has strengthened his relationship with his parents. He has made realistic and feasible plans for return to community. He has accommodation and job offers.”
Dr Yoxall opined that the Applicant’s history of recidivism reflected his history of methamphetamine dependence relapse. Relapse indicated that the individual needed to find new ways of coping and managing their triggers, and it was too soon to say if his current period of abstinence was the exit from the cycle of recidivism. Tellingly, Dr Yoxall recorded:
“However given his engagement in rehabilitation and successful application of new coping strategies in the last 12 months, and the 12 months of abstinence, he is more likely now to remain abstinent than ever before.
When compared to others recovering from methamphetamine dependence, Mr Gardner’s 12 months of abstinence is a strong indicator for a good prognosis of sustained remission. The research on time to relapse for methamphetamine dependence suggests that relapse is a common and challenging outcome for.(sic) Relapse can occur at any stage of recovery, but it is more likely to happen within the first year of treatment, especially within the first few weeks or months.
…
In my opinion Mr Gardner’s risk of reoffending is dependent upon his capacity to maintain abstinence from methamphetamine dependence. This relates to all forms of offending, including domestic violence. If he abstains from methamphetamines and all other drugs then the risk of reoffending would be substantially lowered.”
Dr Yoxall thought that the Applicant’s transition to society would require strong pro-social support as well as the recommended psychological treatment programs and individual intervention.
Dr Yoxall reported that deportation would impact Mr Gardner and his children substantially. In her view, such an outcome would put him at risk of psychological decompensation.
There was no question that forced separation from a key parent and or attachment figure also has detrimental psychological effect on children which could last a life time. If the Applicant is able to maintain abstinence from drugs, and maintain stable mental health then his involvement in his children’s lives would arguably be of benefit to them.
The Tribunal as presently constituted has not encountered an applicant in this type of case who has made a greater effort, or demonstrated a greater commitment than this applicant has demonstrated towards rehabilitation. The Applicant spoke with conviction, and sounded very genuine in his commitment to success. He thought that his efforts at rehabilitation had done a lot for him, and it is clear that Dr Yoxall is of the same opinion. He now realised that he had needed to find ways to process his emotions.
In explaining why he considered himself to be a different person from the one who was previously released, the Applicant said:
“As I’ve done these small parts of rehabilitation, and really trying to turn my life around, I have learned minuscule things. I’ve realised that I knew that there was triggers, and I realised bits of pieces, but it was never enough to complete rehabilitation or recovery. That’s why I’ve engaged with Lives Lived Well on the outside in 2022, because I’d seen – I’d seen the chance of change, and I really wanted that change. I’ve reengaged with my son, and back with my children. I really wanted to make a difference, and I knew that I hadn’t acquired the tools to do it at this point, even though I’d made a few attempts. It wasn’t a simple as I thought it was going to be. I was maybe in a little bit of denial about the severity of my drug dependency, and since being incarcerated, I’ve managed to complete some more serious courses and programs which have really taught me so much about myself, and I learned just – sorry, not just the drug addiction, but there’s a lot of underlying problems that I had stemming from my family, and with my mental health, and just how to hold myself as an accountable man, and that I know has made me a different person.”
When it was put to the Applicant that he had made similar claims before, he responded:
“I know exactly what you’re saying, and I know it sounds like I’m saying the same thing again, but the difference between then and now, it’s not that I believe, but I know I’m a different person. Like, I’m – everything about me is different. I don’t have to – yes, I don’t know, sorry. I know what you’re saying, and I can see that I’ve said it before, but something’s different this time. Previously, it was just – I was doing it because I was starting to go through the motions, and yes, I’ve lapsed before, but those lapses and those mistakes has been what’s taught me the things that I need to know to maintain the sobriety, and the amount of time that I’ve stayed sober and the changes that have happened since I’ve been sober – they’ve changed my life, they’ve changed everything. It’s given me purpose. It’s given me confidence, and I’ve managed to accept the mistakes that I’ve made and face them head on. That’s the difference this time.”
The Applicant demonstrated rare levels of self-belief, self-awareness, and self-confidence in his rehabilitation. Above all else, he demonstrated determination.
The Tribunal is satisfied that the Applicant has achieved substantial, but not complete rehabilitation since he was last released into the community, and there is good reason to believe that it will be a different person who emerges from detention should he be released back into the community.
If released, the Applicant will be in a far stronger position to embark upon the further rehabilitation that he needs. Importantly, he clearly recognises this need, in a way that he has not done before. Even more importantly, he will be released into an environment free of the pandemic restrictions which previously obstructed his attempts at rehabilitation.

The Tribunal concurs with Dr Yoxall that the Applicant has realistic and feasible plans for his return to the community. Upon release, he will of course continue on probation for a period of 12 months subject to the supervision and guidance of the Queensland Corrective Services Department. He has accommodation, and a supportive partner. His relationship with his ex-wife has improved, and his bond with his children has strengthened. Importantly, the Applicant has employment waiting for him. The Applicant’s work history prior to his friend’s murder shows he has the capacity to undertake work at managerial level, and when he was last at liberty he demonstrated the initiative to start his own business.
The Tribunal considers that the Applicant has a strong confluence of protective factors which will stand him in good stead on his release.
The Tribunal considers that this applicant has good prospects of continuing to abstain from relapse, and in consequence, his risk of reoffending is towards the lower end of low to medium.
The Tribunal finds that the Applicant poses a low level risk to the Australian community, and that the Australian community would show some tolerance of this level of risk.
Conclusion: Primary Consideration 1
The Tribunal finds that Primary Consideration 1 weighs moderately in favour of non-revocation.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
1The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
2This consideration is relevant in circumstances where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
3In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
(a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i)     the extent to which the person accepts responsibility for their family violence related conduct;
(ii)    the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)   efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
For the reasons given earlier, the Tribunal is not satisfied that the facts of this case enliven consideration of Primary Consideration 2.
Conclusion: Primary Consideration 2
Primary Consideration 2 is given neutral weight.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Paragraph 8.3(1) of the Direction requires consideration of any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(2) of the Direction requires consideration of a non-citizen’s ties to Australia. More weight should be given to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(3) requires consideration of the non-citizen’s strength duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(4) requires consideration of the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision makers must have regard to:
(a)The length of time the non-citizen has resided in the Australian community, noting that:
(i)     Considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of then their offending commenced and the level of that offending; and
(ii)    more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii)   less weight should be given to the length of time spent in the Australian community where the non-resident was not ordinarily in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
Consideration of paragraph 8.3(1) Impact on Immediate Family
In the event that the Applicant is removed to New Zealand, his removal will adversely impact his partner, and all of his children. Dr Yoxall has commented on the potentially life-long impact of such separation, and the Tribunal gives weight to her evidence.
Conclusion paragraph 8.3(1)
Paragraph 8.3(1) of the Direction weighs heavily in favour of revocation.
Consideration of paragraph 8.3(2) Ties to Children
The Applicant has re-established contact with all of his children, and has an especially strong bond with S1. The Applicant’s relationship with his children appears to have been a strong pillar in his determination to rehabilitate. The Applicant also maintains close contact with D1.
The Tribunal gives added weight to the Applicant’s ties to his children.
Conclusion paragraph 8.3(2) Ties to Children
Paragraph 8.3(2) of the Direction weighs heavily in favour of revocation.
Consideration of paragraph 8.3(3) Family or Social Links
The Applicant has strong ties with his family. The Applicant did not identify many friends outside family, but it is clear that he was able to start a reasonable business with the support of unnamed friends.
Conclusion paragraph 8.3(3) Family or Social Links
Paragraph 8.3(2) of the Direction weighs heavily in favour of revocation.
Consideration of paragraph 8.3(4) ties to the Australian Community
The Applicant has lived in Australia for 16 years, having moved to Australia in 2007 at the age of 27. The Applicant does not engage sub-paragraph 8.3(4)(a)i, or iii having not been resident in Australia during his formative years, and having not commenced his offending soon after his arrival. The Applicant does engage sub-paragraph 8.3(4)(a)ii., as he did contribute positively for five years prior to his friend’s murder.
Conclusion of paragraph 8.3(4) Ties to the Australian Community
Paragraph 8.3(4) of the Direction weighs heavily in favour of revocation.
Conclusion: Primary Consideration 3
Primary Consideration 3 weighs heavily in favour of revocation.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.4(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.4(2) and 8.4(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the Visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.’
The Applicant has two children who will be under the age of 18 years as at the date of this decision.
The elder of the two children, the daughter D2, will attain the age of 18 in July 2024.
The younger child the son S2, will not attain the age of 18 until 2032.
(a) nature and duration of relationship.
In each instance, the subject infant is the biological child of the Applicant. D2 has an existing relationship with the Applicant, but has not visited him while he has been in detention. S2 has a limited meaningful relationship with the Applicant as the Applicant separated from the child’s mother not long after his birth. In both cases there have been extended absences from the children’s lives occasioned by his addiction, homelessness, imprisonment, and detention.
There is only a relatively short period until D2 attains the age of 18, and paragraph 8.4(4)(a) is given moderate weight in favour of revocation in so far as she is concerned.
There is however a very long time until the child S2 attains the age of 18. Although S2 has limited meaningful relationship with the Applicant, the Tribunal is mindful of Dr Yoxall’s concerns about the impact of separation on children.
The interests of S2 are also given moderate weight in favour of revocation.
(b) Positive parental role
Having regard to the Tribunal’s findings as to the Applicant’s prospects of maintaining his rehabilitation, the Tribunal considers there is a real prospect of the Applicant’s playing a positive role in the lives of both his children, particularly S2.
The Applicant’s prospect of playing a positive parental role in the life of D2 is given moderate weight in favour of revocation.
The Applicant’s prospect of playing a positive parental role in the life of S2 is given heavy weight in favour of revocation.
(c) impact of Applicant’s prior conduct
There is no evidence before the Tribunal that the Applicant’s prior conduct has had a negative impact on either child, beyond causing separation.
The impact of the Applicant’s likely future appears to be potentially positive for each child. Having regard for the periods until each child attains the age of 18, the Tribunal gives moderate weight in favour of revocation in respect of D2, and heavy weight in respect of S2.
(d) impact of separation
The Tribunal is mindful of Dr Yoxall’s concerns about potentially life long impact of enforced separation on the children, but accepts that there would at least be the potential for them to maintain contact electronically via the internet.
This consideration is given moderate weight in favour of revocation in respect of D2, and heavy weight in respect of S2.
(e) Person in parental role
In both instances the mother of the Applicant is fulfilling the parental role, and this consideration is therefore given neutral weight in each instance.
(f) views of the children.
The Tribunal does not have any direct evidence of the views of the two children in question, but is prepared to assume that given the opportunity that would seek the revocation of the mandatory cancellation.
In both instances this consideration is given heavy weight in favour of revocation.
(g) exposure to risk or adverse treatment
There is no evidence before the Tribunal so as to enliven this consideration, and it is therefore given neutral weight.
(h) trauma
There is no evidence before the Tribunal so as to enliven this consideration, and it is therefore given neutral weight.
The interests of D2 are given moderate weight in favour of revocation.
The interests of S2 are given heavy weight in favour of revocation.
Conclusion of best interests of the Applicant’s biological minor children
Overall, the best interests of the Applicant’s biological minor children weighs heavily in favour of revocation.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the possession they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
“This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case”.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. While FYBR at [97] provides that the “deemed community expectation” will in most cases, justify refusal or cancellation, ultimately “the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine”.
Deputy President J Sosso in XGHJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3474 (28 September 2021) (“XGHJ”) addresses FYBR. At [396] of XGHJ, Deputy President J Sosso states “Finally, it is not the case that, when taking into account the expectations of the Australian community, a decision-maker will always weigh in favour of non-revocation. In an appropriate case a decision-maker, when carefully weighing up the material presented, may determine that the expectations of the Australian community do weigh in favour of revocation. Each case must be governed by the evidence presented – DKXY v Minister for Home Affairs [2019] FCA 495 at [29] – [31].”
The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[17]
[17] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Analysis – Allocation of Weight to this Primary Consideration 5
In determining the weight to be attributed to this consideration, the Tribunal notes that none of the Applicant’s offending appears to fall under any of the headings set out in paragraph 8.5(2). The Tribunal has also had regard to the fact that owing to pandemic restrictions, the Applicant had serious obstacles placed in the way of his rehabilitation when previously returned to the community, and did not really get a fair go at rehabilitating. The Tribunal has also had regard for his significant and substantial efforts at rehabilitation over the past twelve months, and his strong commitment to continuing that effort.
Conclusion: Primary Consideration 5
In the totality of the circumstances of this case the Tribunal considers that Primary Consideration 5 should weigh moderately in favour of non-revocation
OTHER CONSIDERATIONS
Paragraph 9(1) of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
(d)Impact on Australian business interests.
Other Consideration (a) Legal consequence of the decision

The Applicant has raised concerns about gang violence in New Zealand in consequence of an assault on him some eight years ago which led to his hospitalisation in the context of Australia’s non-refoulement obligations.
Whilst the Tribunal accepts the Applicant’s evidence of that episode, it makes no findings as to whether Australia’s non-refoulement obligations are engaged. For the reasons set out in the Respondent’s SFIC, which the Tribunal adopts, the Tribunal considers that this issue is best ventilated and examined if and when the Applicant makes a claim for a Protection visa. This approach is consistent with the decision of the High Court in Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 in which the High Court confirmed that the Tribunal is not required to make an assessment of Australia's non-refoulement obligations if an applicant in a s 501CA(4) matter remains capable of seeking a protection visa.
In the event that the Tribunal makes a decision favourable to the Applicant, his visa will be restored, and he will be released into the community.
In consequence of an adverse decision, the Applicant will become an unlawful non-citizen pursuant to s 15 of the Act, and subject to removal as soon as is reasonably practicable pursuant to ss 189 and 198 of the Act. There has been no protection finding made in respect of him, and there is no evidence to suggest that he would be detained indefinitely. He will of course be precluded from seeking another visa while in Australia other than a protection visa in consequence of s 501E.
This consideration is given neutral weight.
Other Consideration (b): Extent of impediments if removed
Paragraph 9.2(1)(a) - Age and health
The Applicant is 42 years old, and has a number of physical health conditions (namely a heart condition, hernia and epididymitis), for which he receives medical treatment, which he agreed would be available to him in New Zealand. The Tribunal accepts that he would have emotional support from his parents there, but the Tribunal is concerned at Dr Yoxall’s observation that his deportation may lead to psychological decompensation which might cause him to relapse into drug use.
This other consideration weighs in favour of revocation.
Paragraph 9.2 (1)(b) - Substantial language or cultural barriers
The Applicant did not asset that there were any substantial language or cultural barriers to his return to New Zealand.
This other consideration is therefore given neutral weight.
Paragraph 9.2(1)(c) - any social, medical and/or economic support available to that non-citizen in that country.
It was not contested that the Applicant would have access to similar level and quality social, medical and economic support as he would have in Australia.
This other consideration is therefore given neutral weight.
Other Consideration (c): Impact on victims
There is no evidence before the Tribunal so as to engage this consideration.
This other consideration is therefore given neutral weight.
Other Consideration (d): Impact Australian business interests.
There is no evidence before the Tribunal so as to engage this consideration.
This other consideration is therefore given neutral weight.
Findings: Other Considerations
Overall, the combined Other Considerations weigh in favour of revocation.
CONCLUSION
The Tribunal is now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the power afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal is required to weigh all of the Considerations in accordance with the Direction.
The Tribunal finds as follows:
·Primary Consideration 1 weighs moderately in favour of non-revocation.
·Primary Consideration 2 weighs neutrally.
·Primary Consideration 3 weighs heavily in favour of revocation;
·Primary Consideration 4 weighs heavily in favour of revocation
·Primary Consideration 5 weighs moderately in favour of non-revocation and
·Other considerations weigh in favour of revocation.
The Tribunal finds that the combined weight of Primary Considerations 1 and 5 are insufficient to outweigh the combined weights allocated to Primary Considerations 3, and 4, together with the Other Considerations.
In the circumstances, the Tribunal finds that there is another reason why the mandatory visa cancellation should be revoked.
The Tribunal therefore exercises the discretion in s 501CA(4) to do so.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 6 July 2023 and substitutes it with a decision to revoke the cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa.

I certify that the preceding 209 (two hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

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

Dates of hearing: 19 and 20 September 2023

Applicant: Self-represented

Solicitor for the Respondent: Ms Kate Ervin

Clayton Utz
ANNEXURE A

EXHIBIT DESCRIPTION OF EVIDENCE DATE OF DOCUMENT DATE RECEIVED

G1 Section 501 G-Documents
(G1-G11, paged 1-344) Various 24 Jul 2023

R1 Respondent’s Statement of Facts, Issues and Contentions
(paged 1-32) 4 Sep 2023 4 Sep 2023

R2 Supplementary G-Documents
(SG1-SG12, paged 1-501) Various 6 Sep 2023

A1 Applicant’s Statement
(4 pages) Undated 24 Aug 2023

A2 Psychological Report of Dr Jacqui Yoxall
(paged 1-60) 8 Jul 2023 25 Jul 2023

A3 Probation Order with accompanying correspondence
(2 pages) 28 Oct 2022 31 Jul 2023

A4 Certificate of Course Completion for Pursuing Happiness: Successful Strategies and accompanying correspondence
(1 page) 22 Jul 2023 31 Jul 2023

A5 Queensland Court approved programs regarding domestic violence and behavioural therapy and accompanying correspondence
(paged 1-5) Apr 2019 2 Aug 2023

A6 Interrelate confirmation of enrolment and participation letter and accompanying correspondence
(1 page) 4 Aug 2023 4 Aug 2023

A7 Questions put to the Tribunal regarding G-Documents 7 Aug 2023 7 Aug 2023

A8 Interim letter of support from Christopher Buckman and accompanying correspondence
(3 pages) 8 Aug 2023 8 Aug 2023

A9 Letter of support from Amanda Leadingham of Lives Lived Well and accompanying correspondence
(1 page) 10 Aug 2023 10 Aug 2023

A10 Submissions regarding Photos (combined as A11) and Video (A12)
(1 page) 11 Aug 2023 11 Aug 2023

A11 Combined Photos
(7 pages) Undated 11 Aug 2023

A12 Video of Family
(55 seconds in length) Undated 11 Aug 2023

A13 Statement of the Applicant’s parents (Christopher and Marlene Gardner) and accompanying correspondence
(4 pages) 8 Aug 2023 12 Aug 2023

A14 Letter of support from Harley Jesberg and accompanying correspondence
(1 page) Undated 14 Aug 2023

A15 IHMS Clinical Records and accompanying correspondence Various 13 Aug 2023

A16
Material from Lives Lived Well and accompanying correspondence:

· Relapse Prevention Plan – Planning exercise (6 pages);

· My Relapse Prevention Plan (5 pages);
Various 20 Aug 2023

A17 Statement of [redacted] and accompanying correspondence
(1 page) 26 Aug 2023 27 Aug 2023

A18 Further combined photos and messages and accompanying correspondence
(32 pages) Various 6 Sep 2023

A19 Further photo and accompanying correspondence
(1 page) Undated 12 Sep 2023

A20 Respectful Man Certificate and accompanying correspondence
(1 page) 13 Sep 2023 14 Sep 2023

[2023] AATA 3424

29 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Dates of hearing:	19 and 20 September 2023
Applicant:	Self-represented
Solicitor for the Respondent:	Ms Kate Ervin
Clayton Utz

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1-G11, paged 1-344)	Various	24 Jul 2023
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1-32)	4 Sep 2023	4 Sep 2023
R2	Supplementary G-Documents (SG1-SG12, paged 1-501)	Various	6 Sep 2023
A1	Applicant’s Statement (4 pages)	Undated	24 Aug 2023
A2	Psychological Report of Dr Jacqui Yoxall (paged 1-60)	8 Jul 2023	25 Jul 2023
A3	Probation Order with accompanying correspondence (2 pages)	28 Oct 2022	31 Jul 2023
A4	Certificate of Course Completion for Pursuing Happiness: Successful Strategies and accompanying correspondence (1 page)	22 Jul 2023	31 Jul 2023
A5	Queensland Court approved programs regarding domestic violence and behavioural therapy and accompanying correspondence (paged 1-5)	Apr 2019	2 Aug 2023
A6	Interrelate confirmation of enrolment and participation letter and accompanying correspondence (1 page)	4 Aug 2023	4 Aug 2023
A7	Questions put to the Tribunal regarding G-Documents	7 Aug 2023	7 Aug 2023
A8	Interim letter of support from Christopher Buckman and accompanying correspondence (3 pages)	8 Aug 2023	8 Aug 2023
A9	Letter of support from Amanda Leadingham of Lives Lived Well and accompanying correspondence (1 page)	10 Aug 2023	10 Aug 2023
A10	Submissions regarding Photos (combined as A11) and Video (A12) (1 page)	11 Aug 2023	11 Aug 2023
A11	Combined Photos (7 pages)	Undated	11 Aug 2023
A12	Video of Family (55 seconds in length)	Undated	11 Aug 2023
A13	Statement of the Applicant’s parents (Christopher and Marlene Gardner) and accompanying correspondence (4 pages)	8 Aug 2023	12 Aug 2023
A14	Letter of support from Harley Jesberg and accompanying correspondence (1 page)	Undated	14 Aug 2023
A15	IHMS Clinical Records and accompanying correspondence	Various	13 Aug 2023
A16	Material from Lives Lived Well and accompanying correspondence: · Relapse Prevention Plan – Planning exercise (6 pages); · My Relapse Prevention Plan (5 pages);	Various	20 Aug 2023
A17	Statement of [redacted] and accompanying correspondence (1 page)	26 Aug 2023	27 Aug 2023
A18	Further combined photos and messages and accompanying correspondence (32 pages)	Various	6 Sep 2023
A19	Further photo and accompanying correspondence (1 page)	Undated	12 Sep 2023
A20	Respectful Man Certificate and accompanying correspondence (1 page)	13 Sep 2023	14 Sep 2023