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

GTWS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 695 (1 April 2020)
Division:GENERAL DIVISION
File Number: 2020/0269
Re:GTWS
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:1 April 2020
Place:Sydney

The Reviewable Decision dated 7 January 2020 to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.
...........[sgd].............................................................
Senior Member Linda Kirk
CATCHWORDS
MIGRATION – mandatory cancellation of a Class BB (Subclass 155) Resident Return visa – substantial criminal record – character test – whether there is another reason to revoke the mandatory cancellation of the visa – Ministerial Direction No. 79 – primary considerations – protection of the Australian community – expectations of the Australian community – other considerations – where Applicant is at a medium-high risk of re-offending – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Dalley and Minister for Home Affairs (Migration) [2019] AATA 3738
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PNLB v Minister for Immigration and Border Protection [2018] AATA 162
Saleh v Minister for Immigration and Border Protection (Migration) [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection[2018] FCA 594
Tuioti and Minister for Home Affairs (Migration) [2019] AATA 4423
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Australian Government Department of Home Affairs Removal from Australia – Post-removal support Procedural Instruction (dated 30 October 2018)
Migration Act 1958 – Direction No. 79 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Commenced 28 February 2019)
REASONS FOR DECISION
Senior Member Linda Kirk
1 April 2020

GTWS (‘the Applicant’), a citizen of the United Kingdom, was born in 1995.[1] He came to Australia with his parents and three brothers in June 1997 when he was two years old.[2] Prior to its cancellation, the Applicant held a Class BB (Subclass 155) Resident Return visa.[3]
[1] Exhibit R1, G2, 12.
[2] Exhibit R1, G19, 97; Transcript p30.
[3] Exhibit R1, G2, 12.
On 25 July 2016, the Applicant’s visa was mandatorily cancelled by a delegate of the Minister (‘the Respondent’) pursuant to section 501(3A) of the Migration Act 1958 (Cth) (‘the Act’). The Applicant made representations and on 11 October 2016, a delegate of the Respondent decided to revoke the cancellation.[4]
[4] Exhibit R1, G17, 87.
On 10 October 2017, the Applicant was convicted in the Local Court of New South Wales at Katoomba for the offences of larceny; reckless grievous bodily harm; assault occasioning actual bodily harm; and common assault; and was sentenced to six months, 21 months, 18 months and nine months imprisonment respectively for these offences. On 4 June 2018, the Applicant was convicted in the Local Court of New South Wales at Katoomba for the offences of affray and assault occasioning actual bodily harm and sentenced for both to 12 months imprisonment, served concurrently.[5]
[5] Exhibit R1, G3, 24.
On 17 January 2018, the Department issued the Applicant with a Notice of Visa Cancellation (‘the Mandatory Visa Cancellation Decision’) under section 501(3A) of the Act on the basis that he did not satisfy the character test in section 501(6) of the Act by virtue of the term of imprisonment referred to above.[6] On this date, the Applicant was serving a sentence of full-time imprisonment at Junee Correctional Centre in New South Wales.
[6] Exhibit R1, G20.
On 1 February 2018, the Applicant made a request for revocation of the Mandatory Visa Cancellation Decision and made representations to the Minister in support of his revocation request.[7]
[7] Exhibit R1, G10.
On 7 January 2020, a delegate of the Minister decided not to revoke the Mandatory Visa Cancellation Decision under section 501CA(4) of the Act (‘the Reviewable Decision’).[8]
[8] Exhibit R1, G2.
On 15 January 2020, the Applicant lodged an application with the Administrative Appeals Tribunal (‘the Tribunal’) seeking a review of the Reviewable Decision.[9]
[9] Exhibit R1, G1.
The matter was heard by the Tribunal at a hearing in Sydney on 20 and 23 March 2020. The Applicant attended the hearing in person and was represented by his mother, Ms SW. He gave oral evidence at the hearing.
The material before the Tribunal consists of:
·Respondent’s Statement of Facts, Issues and Contentions (‘SFIC’) dated 3 March 2020;
·G documents (G1 to G26, pages 1 – 156) – Exhibit R1;
·Tender Bundle (pages 1 – 496) – Exhibit R2;
·Applicant’s Statement of Facts, Issues and Contentions dated 17 February 2020;
·Applicant’s Reply dated 13 March 2020;
·Statement of Ms SW – Exhibit A1;
·Statement of PW – Exhibit A2;
·Statement of MT – Exhibit A3;
·Statement of JS – Exhibit A4;
·Statement of LF and JF – Exhibit A5;
·Statement of AR – Exhibit A6;
·Statement of RH – Exhibit A7;
·Statement of DT – Exhibit A8;
·Statement of BO – Exhibit A9;
·Statement of AM – Exhibit A10;
·Fact Sheet – Buprenorphine – Exhibit A11;
·Applicant’s Additional Written Submissions dated 27 March 2020; and
·Applicant’s Additional Written Submissions (updated) dated 28 March 2020;
The Tribunal has reviewed all of the evidence before it and refers to all relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(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) …; 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.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Relevantly, pursuant to section 501(7)(c) of the Act, a person has a substantial criminal record if the person has been sentenced to ‘a term of imprisonment of 12 months or more’.
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person.
Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under section 501(3A). Subsection 501CA(4) provides:
4The 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.
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under section 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 79
When considering whether to revoke the cancellation decision, the Tribunal is required under section 499(2A) of the Act to have regard to the Minister’s Direction. The relevant Direction is Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’).
The Preamble to the Direction provides a framework for the guidance of decision-makers considering cancellation of a visa. Paragraph 6.1 of the Direction begins with a statement of Objectives, the first of which is as follows:
1The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
The Objectives are followed by paragraphs 6.2 and 6.3 described as General Guidance and Principles respectively. The Principles referred to in the General Guidance (and reproduced below) constitute a framework within which decision-makers apply the considerations in Part A, B, or C of the Direction.
The first paragraph of the General Guidance provides:
1The 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.
The following Principles are set out in paragraph 6.3:
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.
2The 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.
3A 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.
4In 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.
5Australia 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.
6Australia 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.
7The 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.
Paragraph 7(1) of the Direction sets out how the discretion under section 501 of the Act is to be exercised:
1Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
In the Applicant’s case, Part C is applicable as it is directed to revocation requests made in relation to mandatory visa cancellation decisions made under section 501(3A) of the Act.
In applying any of the Parts, including Part C, paragraph 8 of the Direction sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case. The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa Applicant should have no expectation that a visa application will be approved.
Part C of the Direction provides more specific considerations in determining whether to revoke a mandatory cancellation of a non-citizen’s visa. These include ‘primary considerations’ and ‘other considerations’. The primary considerations are:
(a)protection of the Australian community from criminal and other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian community.
The other considerations are:
(a)       international non-refoulement obligations;
(b)       strength, nature and duration of ties [to Australia];
(c)       impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments if removed.
Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 8(3) provides that ‘[b]oth primary and other considerations may weigh in favour of, or against … cancellation of the visa.’ Paragraphs 8(4) and (5) provide that primary considerations should be given greater weight than other considerations, and one or more primary considerations may outweigh other primary considerations.
ISSUES FOR DETERMINATION
Before the power in section 501CA(4) of the Act, to revoke the original decision, is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by section 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo[10] the Full Court of the Federal Court of Australia made the following observations in relation to section 501CA(4):
... there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view...[11]
[10] [2018] FCAFC 151.
[11] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
The issues for determination are:
(a)whether the Applicant passes the character test; and
(b)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision must be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Early years
The Applicant arrived in Australia with his family in 1997. He attended primary and high school in Australia. Whilst at school, he was ‘constantly bullied’ by other students. He did not fit in at school and had learning difficulties due to his inability to concentrate for long periods.[12]
[12] Exhibit R1, G11, 72; G15, 84.
The Applicant’s mother took him to a paediatrician as a child and he was diagnosed with Attention Deficit Disorder (Hyperactive subtype), Oppositional Defiance Disorder and Obsessive Compulsive Disorder. He was medicated through primary school with Ritalin to address his hyperactivity, and when he entered high school his medication was altered to a slow release form.[13] He stopped taking this medication as it made him feel like a ‘zombie’.[14]
[13] Exhibit R1, G22 108.
[14] Transcript p18.
The Applicant left school in year 8 when he was 13 years old. He started ‘hanging out with the wrong crowd’.[15] He was introduced to drugs and alcohol and ‘resorted to violence’.[16] He began to spend nights away from home, sleeping on friend’s couches, although he did not move out of home.[17] His parents separated when he was 16 years old, after which he lived mainly with his mother.[18]
[15] Exhibit R1, G11, 72.
[16] Exhibit R1, G11, 72.
[17] Exhibit R1, G22, 107.
[18] Transcript p31.
The Applicant worked with his father in a landscaping business for a few months.[19] He was not employed in any other position, but did assist some friends on a voluntary basis doing labouring and bricklaying on and off for a couple of years.[20]
[19] Transcript p32.
[20] Transcript p33.
Drug and alcohol use
The Applicant commenced substance use when he was 13 years old with alcohol and cannabis. In his early teens, he also took ‘pills’ such as ecstasy in social situations with his peers. He started using methamphetamine (ice) when he was around 16 years old.[21] By the age of 18 years he was using it on a daily basis.[22] At 19 years old he began using heroin intravenously.[23] By the age of 21, he was using ice two to three days a week and cannabis daily.[24] At the time of his offending in 2017 he was using ice every day, sometimes twice a day.[25] The Applicant was asked how he funded his drug habit. He said it was with his Centrelink payments and by stealing and selling alcohol.[26]
[21] Transcript p92.
[22] Transcript p93.
[23] Transcript p23-24; Transcript p93.
[24] Transcript p94.
[25] Exhibit R1, G22, 109.
[26] Transcript p93.
The Applicant was asked whether his mother was aware he was taking drugs. He said that his mother ‘would’ve known’ but he did not tell her he did.[27]
[27] Transcript p95.
In January 2014, the Applicant attended a rehabilitation facility where he stayed for two months.[28] When he left the program he started to use ice again within a week.[29] He believes his lack of success in the program was because he was not ready to change his lifestyle at the time.[30]
[28] Exhibit R2, 254.
[29] Transcript p94.
[30] Exhibit R1, G22, 109.
Criminal history
A Nationally Coordinated Criminal History Check dated 19 December 2018 issued in respect of the Applicant shows that he has been convicted of a number of offences in Australia.[31] In his representations to the Department and the Tribunal, the Applicant did not dispute the convictions and sentences in the Nationally Coordinated Criminal History Check.
[31] Exhibit R1, G3, 24-26.
The Applicant commenced offending when he was aged 14 years. Between May 2009 and May 2014, he appeared 13 times in the Children’s Court of New South Wales on a range of offences. He received sentences that included a custodial term in the form of a 12 month control order, as well as probation, fines, community service orders and bonds.[32]
[32] Exhibit R1, G3, 30-32.
On 8 November 2013, the Applicant and three others were involved in an altercation at a train station.[33] This was initiated by a co-accused who was holding a knife. During the altercation, the Applicant assaulted one of the victims by pushing him into a brick wall and then kicking and punching him to the head when he had fallen to the ground (due to punches inflicted by the Applicant’s associate). The Applicant also threw a single punch to the head of the second victim before running away.[34] The Applicant told the Tribunal that, at the time of these offences, he was taking ice, heroin, alcohol and marijuana.[35]
[33] Transcript p43-44.
[34] Exhibit R2, 136-141; Transcript p 43-44.
[35] Transcript p44.

On 19 May 2014, as an adult in the Local Court of New South Wales at Katoomba, the Applicant was convicted of assault occasioning actual bodily harm in company of other(s) and common assault. The Applicant pleaded guilty to the offences.[36] He was sentenced to 12 months imprisonment on each count.[37] In her sentencing remarks, Magistrate Toose observed that the circumstances of the offending were that the Applicant was in a group with others, one of whom had a knife. The Magistrate stated that it was a 'very serious offence to 'gang up on others' and noted that, while the Applicant did not have the knife, he got 'stuck into' the victim and kicked and punched him in the head. The Magistrate noted that the victim was fortunate not to have suffered worse injuries, noting that ‘one punch to the head can kill someone.’ Her Honour added that in both the assaults, the Applicant was ‘an angry violent young man' and stated that most of this was due to his use of 'ice'.[38]
[36] Exhibit R1, G7, 43.
[37] Exhibit R1, G3, 26-27.
[38] Exhibit R1, G7, 43.
On 25 March 2014, while on bail, the Applicant was found in a wardrobe hiding from police, in possession of a glass pipe which he admitted he owned and had used to smoke ice.[39] The Applicant told the Tribunal that this pipe did not in fact belong to him; but he had been using it.[40]
[39] Exhibit R2, 94-97; Transcript p48-49.
[40] Transcript p48-49.
On 31 December 2014, intoxicated with alcohol and having been ejected from a hotel for being ‘quarrelsome’ with staff, the Applicant was observed by police to be arguing with staff outside the licensed premises. The Applicant was issued with a move on direction to leave the area due to his intoxicated behaviour.[41] He left the premises but was located at the hotel premises on a further three occasions throughout the evening and early morning.[42] On 28 May 2015, he was convicted in the Windsor Local Court of the offence refuse/fail to comply with a direction under Part 14 and fined $200.[43]
[41] Transcript p50.
[42] Exhibit R2, 142-144.
[43] Exhibit R1, G3, 26.
On 11 October 2015, the Applicant stole a bottle of bourbon from a Dan Murphy’s Liquor store. On 20 October 2015, he stole a bottle of bourbon and a bottle of whiskey from the same store.[44]On 18 October 2015, the Applicant intimidated the female Manager of a hotel that the Applicant was barred from, with the intention of causing her to fear physical or mental harm.[45]He was charged with the offence of stalk and intimidate, intending to fear of physical harm in relation to the Manager.[46] On 30 October 2015, the Applicant who was the subject of a good behaviour bond for a similar offence, attempted to use a credit card suspected of being stolen, to purchase alcohol and cigarettes.[47]
[44] Exhibit R2, 108-110; Transcript p51.
[45] Exhibit R2, 62.
[46] Exhibit R2, 62; Transcript p53.
[47] Exhibit R2, 80-84.
On 25 November 2015, the Applicant was charged with driving an unregistered car without a licence. He received a 12 month suspended sentence for this offence on 1 February 2016.[48]
[48] Exhibit R1, G3, 26.
On 1 February 2016, in the Local Court of New South Wales at Katoomba, the Applicant was convicted of two counts of shoplifting, goods in personal custody suspected being stolen, possession of equipment for administering prohibited drugs and self-administer/attempt self- administer prohibited drug. He was sentenced to a six month term of imprisonment.[49]  The Applicant lodged an appeal in the Penrith District Court against the severity of the sentence, which was confirmed on appeal on 4 March 2016.[50]
[49] Exhibit R1, G3, 25-26.
[50] Exhibit R1, G3, 25.
On 16 May 2016, the Applicant was convicted in the Local Court of New South Wales at Katoomba for the offences of larceny value <=$2000, dispose property – theft = serious indicatable offence <=$5000; two counts of dishonestly obtain financial advantage by deception; and goods suspected stolen given other not entitled. He was sentenced to a seven month term of imprisonment.[51]
[51] Exhibit R1, G3, 24-25.
On 17 February 2017, the Applicant and four co-accused engaged in a physical altercation with two victims in a train station tunnel. During the altercation, the Applicant struck one victim in the head and struck the other victim in the rear of his head, his stomach and numerous times to his back with an unknown object. Later, when the second victim was fighting with a co-accused, the Applicant struck the second victim numerous times and attempted to kick him. He then ran at the first victim while his arms were pulled back and swung his fists at his face.[52]
[52] Exhibit R2, 112- 114.
In her sentencing remarks, Magistrate Toose described the 17 February 2017 offences as a ‘drug affected rampage with alcohol involved’[53] and involving victims in the tunnel at Katoomba who were ‘set upon’ by the Applicant and a fellow ‘gang member’.[54] Her Honour stated that the Applicant’s offending revealed a ‘rather terrifying gang mentality’.[55] She also noted that the Applicant had attempted rehabilitation but it had not worked out. She warned the Applicant that, when released from custody if he did not stay away from drugs and alcohol, he would be ‘back exactly where you are now’.[56]
[53] Exhibit R1, G5, 38.
[54] Exhibit R1, G5, 37.
[55] Exhibit R1, G5, 37.
[56] Exhibit R1, G5, 38.
During cross-examination, the Applicant agreed that he used ‘excessive force’ during this assault.[57] He agreed that he used more force than he should have because he was on drugs. At the time, he was using ice and drinking alcohol on a daily basis.[58] He was injecting one gram of ice and drinking a case of bourbon per day.[59] The Applicant agreed that it would have been ‘terrifying’ for those who witnessed the attack. He denied however that he was then a member of a gang and said he had never been a gang member.[60]
[57] Transcript p73-74.
[58] Transcript p74.
[59] Transcript p75.
[60] Transcript p76.
On 3 April 2017, the Applicant stole a bottle of whiskey from a Liquorland bottle shop.[61] He was charged with larceny and sentenced to six months imprisonment.[62]
[61] Exhibit R2, 91-92.
[62] Transcript p76.
On 20 May 2017, the Applicant in the company of two co-accused, engaged in a physical altercation in a train station tunnel, during which the Applicant punched the victim, who was on the ground, in the head multiple times and kicked him in the head. The victim, bleeding heavily from injuries to his head, managed to get away. However, the Applicant later approached him again from behind and punched him to the side of the head. As a result of the injuries caused by the Applicant and his co-accused, the victim suffered a broken jaw in two places, requiring surgery and two plates, a broken nose, a missing tooth and bruising behind his left ear.[63]
[63] Exhibit R2, 85-90; Transcript p76-79.
The Applicant was asked about these offences in cross-examination. He agreed that he used ‘excessive force’ and ‘it was a bit overboard’ but said he did so because he ‘was fearing for his life too’. He explained that in such situations something ‘kicks in’ and it is either him who gets badly hurt, or he fights and gets out of it with a ‘couple of bumps and bruises’. He said that at the time of the offences he was taking ice intravenously and was coming down from heroin.[64]
[64] Transcript p80.
On 10 October 2017, the Applicant was convicted in the Local Court of New South Wales at Katoomba for the offences of larceny value <=$2000; reckless grievous bodily harm; assault occasioning actual bodily harm; and common assault. The Applicant pleaded guilty to the offences. He received custodial sentences of six months, 21 months, 18 months and nine months respectively, with an 18 month non-parole period.[65]
[65] Exhibit R1, G3, 24.
In her sentencing remarks, Magistrate Toose noted that the Applicant broke the victim's jaw – a 'significant injury'.[66] Her Honour accepted that the Applicant was affected by 'ice' at the time of the offence, 'may have been provoked', 'was of a lesser build than the other people involved' and 'was outnumbered at one stage'.[67]However, the Magistrate stated that the Applicant 'did a significant amount of damage notwithstanding' and his behaviour was 'just unacceptable'.[68]
[66] Exhibit R1, G6, 40.
[67] Exhibit R1, G6, 39.
[68] Exhibit R1, G6, 40.
Her Honour stated:
Your history is littered with offences of violence and also dishonesty ... You have also had a raft of other sentencing options throughout the years. Nothing seems to work, bonds, supervised bonds, community service, gaol, there is really nothing here that suggests any improvement in your behaviour whatsoever.[69]
[69] Exhibit R1, G6, 39.
Her Honour commented that the Applicant’s considerable history of violent conduct had largely occurred in the Katoomba area, and that the people of Katoomba were 'entitled to have a rest from your behaviour'.[70]
[70] Exhibit R1, G6, 40.
On 4 June 2018, the Applicant was convicted of assault occasioning actual bodily harm in the company of other(s) and affray. He pleaded guilty to the offences[71] and was sentenced to a 12 month term of imprisonment, with a non-parole period of nine months.[72] The Applicant lodged an appeal against the severity of the sentence and on 11 October 2018, in the District Court of New South Wales at Penrith, the non-parole period was varied to six months.[73]
[71] Exhibit R1, G6, 35.
[72] Exhibit R1, G3, 24.
[73] Exhibit R1, G3, 23-24.
The Applicant entered incarceration on 25 June 2017 and remained there until 22 June 2019,[74] following which he was transferred to Villawood Immigration Detention Centre.
[74] Exhibit R1, G8 49-50.
Behaviour in custody and immigration detention
During his period in criminal custody from June 2014 until November 2017, there were six recorded incidents of behaviour by the Applicant.[75]
[75] Exhibit R1, G2, 18.
In October 2017, the Applicant was placed into segregation following an act of indecency towards a senior psychologist.[76] In November 2017, he was found in possession of a drug, buprenorphine.[77] He told the Tribunal that he ‘got [the drug] off one of [his] mates’ in gaol and he was hiding it from the prison officers.[78] In January 2018, the Applicant was charged with damage, destroy or deface cell after he had written on the cell wall with a green whiteboard marker.[79] In June 2018, the Applicant disobeyed an order and swore at an officer when he was found searching through items that had been confiscated.[80] The Applicant told the Tribunal the items were magazines.[81]
[76] Exhibit R2, 173-175.
[77] Exhibit R2, 180; Transcript p81.
[78] Transcript p82.
[79] Exhibit R2, 188-189.
[80] Exhibit R2, 205-207.
[81] Transcript p85.
In July 2018, the Applicant was again found in possession of buprenorphine.[82] In January 2019 he was disciplined for disobeying three orders by an officer when returning to his cell from the external recreation yard.[83] In February 2018, the Applicant was charged with interfering with the emergency steno phone system in the cell by covering it with tape.[84]
[82] Exhibit R2, 213.
[83] Exhibit R2, 221.
[84] Exhibit R2, 222; Transcript p86-87.
During the Applicant’s period in immigration detention there were a number of recorded incidents. The first occurred on 9 October 2019 when, during a targeted room search, a smoking implement (a straw attached to a small glass pipe) was located in the Applicant’s room. He admitted the implement belonged to him.[85] The Applicant told the Tribunal that he was not using it and it was not his, but he nevertheless admitted to owning it as this is the ‘gaol code’.[86] On 25 November 2019, the Applicant and another detainee were sighted looking through some books where there had previously been found three plastic bags containing an unknown white crystal substance.[87] The Applicant told the Tribunal he cannot read and was just looking at the pictures in the book.[88]
[85] Exhibit R2, 390.
[86] Transcript p87.
[87] Exhibit R2, 399.
[88] Transcript p89.
In December 2019, the Applicant was involved in an altercation with another detainee.[89] He told the Tribunal that he has had ‘arguments’ and ‘push and shoves’ with other detainees when they ‘have put it on me’.[90] In January 2020, the Applicant was involved in another altercation involving a broom handle.[91] The Applicant told the Tribunal that this was a fight between him and one of his mates. It happened because of ‘the stress of always being constantly around each other’. Afterwards they shook hands and were talking again.[92] In January 2020, a search was conducted of the Applicant’s room and a smoking implement of a plastic bottle with a tube was found.[93] The Applicant told the Tribunal that this did not belong to him.[94]
[89] Exhibit R2, 404.
[90] Transcript p89.
[91] Exhibit R2, 410.
[92] Transcript p91.
[93] Exhibit R2, 419.
[94] Transcript p92.
Remorse and responsibility for offending
In a statement dated 14 September 2019, the Applicant wrote:
Since I’ve been incarcerated I have had a lot of time to myself to think about the bad choices I have made in the past and what I want to do with my life. I also bettered myself while I was in gaol I participated and completed all three equips foundations addiction and aggressions courses and these courses helped me a lot to think and make better choices and to think more positive and these they also helped me address my offending behaviour and to make better choices when I'm in situations that I have had trouble controlling before. Since I’ve been here and in gaol I’ve had a lot of time of time I have thought about my offending behavior that if committed and I am very remorseful and wish I could go back in time and change the way I handled the situations and the outcomes and the crimes ever done has hurt the victims and their family and also hurt my family by doing what I done and if I could take it back I would in an instant, but what I can do is fix my life and become a better person, not just for myself but my family and the community I know there's no excuses for what I have done and all I can do is use this as a very big wake up call I have learnt a lot since I’ve been incarcerated and all I want to do now is work be with family and become a family man and a respected resident of the Australian community and become a citizen of Australia.[95]
[95] Exhibit R1, G15, 84.
Risk of re-offending
In a pre-sentence report dated 8 October 2018, completed by a NSW Community Corrections Officer, the Applicant was assessed as a ‘medium-high risk of reoffending’.[96] It notes that the Applicant had not addressed ‘his criminogenic factors’ and had not engaged in ‘targeted interventions as directed.’[97] It further notes that the Applicant identified that his ‘poor self-regulation of emotions, his drug use and his associates’ were factors he needed to address in order to not reoffend.[98]
[96] Exhibit R2, 119.
[97] Exhibit R2, 119.
[98] Exhibit R2, 119.
During cross-examination, the Applicant was asked about the likelihood he would re-offend. He stated:
No. I’m – no, like, I’m going to do my best this time to get out and find myself a job … I am willing to – like, I’m willing to help myself this time … Like, I’m actually willing to help myself by going to – like, going and seeing people … for help and that … So, like, I’m willing to give something a try now instead of – like, not doing – not even thinking about going that way no more.[99]
[99] Transcript p106.
Courses in gaol
When he was in gaol, the Applicant completed 13 sessions of the Getting Smart program,[100] and successfully completed the EQUIPs Foundation,[101] Addiction,[102] and Aggression courses.[103] He learned problem solving skills and gained an insight into his offending behaviour. He also attended and received statements of attainment in manual handling, safe work practices and BSI Food Safety.[104] He completed the PrivProV Barista course,[105] PrivProV Workplace Hygiene,[106] Level 2 in Numeracy and Level 3 in reading,[107] and a NRL referee training course.[108] He worked as a sweeper for nine months in gaol.[109]
[100] Exhibit R2, 274.
[101] Exhibit R2, 339.
[102] Exhibit R2, 250, 365.
[103] Exhibit R2, 385.
[104] Exhibit R1, G13, 79; Exhibit R2, 339.
[105] Exhibit R2, 317.
[106] Exhibit R2, 317.
[107] Exhibit R2, 351.
[108] Transcript p104.
[109] Applicant’s Reply [28].
Counselling
The Applicant agreed that when he was released from Villawood in October 2016 it was recommended that he undertake counselling, but he did not do so.[110]
[110] Transcript p68.
The Applicant was asked whether he underwent any counselling while he was in gaol. He said that he did not. He explained:
Like, I did – like, I know I needed some help, but I just don’t like to talk about my – my problems really … I don’t usually talk. Like, I don’t even talk to my girlfriend much. Like, I don’t tell here what’s wrong with me, nothing. Because I don’t like to – I don’t like people seeing me weak … I don’t like – yes. I don’t like to be – to show – to show that side of me, unless people think … that I’m weak and that.[111]
[111] Transcript p105.
The Applicant was asked whether he has had any counselling since he has been in detention. He said he had not for the same reasons.[112]
[112] Transcript p105-106.
The Applicant told the Tribunal that he intends to access professional counselling if he is released:
Like … counselling and that, like, to get help … Like, to ask for help … Like, I’m finding – like, I’m willing now to ask for help and not sit there and keep it to myself …[113]
…
Like, I’m willing to give anything a go, but as I said, even like, I’m willing to go out there and give it my 100% all … Just to try and … because I know that if I do, like, it’s going to better me, and better myself … like, it’s opened my eyes up now, like, what I’ve got to lose by going back in and that. So, like, it’s changed everything … Like, as soon as I get out, I’m – that’s it … Like, I’ve already cut off all my old mates and that. Like, I’ve stopped talking to my old group of mates and that. The only person I talk – the only people I talk to me is, like, my family and my girlfriend, you know? Like, that’s the only people I’m on the phone is my girlfriend and mum, like, with my family and that, that’s it.[114]
[113] Transcript p106.
[114] Transcript p107.
Drug-taking and rehabilitation
The Applicant told the Tribunal that when he was in gaol he was using buprenorphine every day for two years and ice sometimes.[115] He told the Tribunal he was able to get this in gaol and ‘you’ll find where it is if you want it.’
[115] Transcript p97.
He started on a buprenorphine program in immigration detention on 23 October 2019.[116] Prior to that he was smoking buprenorphine and injecting ice. He explained that he wanted to start a buprenorphine program as soon as he arrived at Villawood, but he was told he should take methadone. He refused to do so as he has seen the effects it has on others.[117] Eventually he was allowed to start on the buprenorphine program and has now been on it for six months.[118] He agreed that he is reliant on buprenorphine. He told the Tribunal that before he started on the program he was depressed and did not want to do anything. Now he is active and goes to the gym at least three times a week.[119] He also agreed he has developed a tolerance for buprenorphine and has requested increases in his dose. He admitted he was at one stage smoking buprenorphine on top of his dose.[120] He denied he has been diverting his dose.[121] The Applicant admitted that since he has been on the buprenorphine program he has injected ice into his neck and did so in November 2019. He said that he also smoked pot but only did this, and injected the ice, on one occasion each.[122]
[116] Exhibit R2, 449; Transcript p88.
[117] Transcript p96.
[118] Transcript p99.
[119] Transcript p100.
[120] Transcript p101; Exhibit R2, 428.
[121] Transcript p101.
[122] Transcript p102.

The Applicant was asked whether he was still addicted to drugs. He stated:
Like, I’m not addicted, but like, it is there, you know? Like, I do – like, it’s still there, the wanting is still there, but the addiction – yes, it’s – as far as the addiction goes, like, I’m over the addiction, but like, I know that there’s going to be drugs out there all the time … [123]
[123] Transcript p103.
He told the Tribunal that since he has been taking buprenorphine it has stopped his thoughts about using drugs. He continued:
But at the same time, also, like, I always get the urge to do it, but it’s just the willpower, … Like, it’s just willpower. That’s all I can do, is just think, “No, I don’t need it. I don’t need it,” and that’s what I have been doing lately. Like, for the last six months, I have just been sitting there saying to myself, “I don’t need it,” … I mean, I have got family, I have got things better than drugs … My … life is worth more than drugs to me …[124]
[124] Transcript p27.
The Applicant told the Tribunal that he is willing to continue with drug rehabilitation if he is released, and also start to take medication for his Attention Deficit Hyperactivity Disorder.[125] He stated:
I am willing to commit myself to go into NA and AA programs to help better myself, … out in the community. Like, my girlfriend – like, I have got a girlfriend now and, like, she has said – like, she has told me too that she will take me to the meetings and that, so then I will make it. So, like, I’m willing to change, … Like, before, the problem was I wasn’t willing to change, but now I am willing to change so that – … Like, you’re not going to change unless you’re willing to… The only person who can help you is you …[126]
[125] Transcript p27.
[126] Transcript p28.
Impediments on return to the United Kingdom
The Applicant claims that he has no family support in the United Kingdom which he considers ‘to be a foreign country’. If he is removed there he ‘will be destitute’ and ‘will have no way of supporting [himself] financially or emotionally’ and will be rendered ‘homeless’.[127]
[127] Exhibit R1, G11, 73.
The Applicant told the Tribunal that he does not want to leave Australia. He stated:
I don’t want to leave the – I don’t want to leave the country … I’d rather kill myself, if I was to go back there. I probably would. To be straight up, if I was to go back to England, that’s it, I would. I’d probably knock myself …[128]
[128] Transcript p109.
Plans for the future
The Applicant told the Tribunal that he wants to get a ‘hands-on’ job, in construction or as a mechanic or panel beater.[129] He said that his girlfriend has told him she may be able to get him a job at Dominos.[130]
[129] Transcript p21.
[130] Transcript p35.
Psychological assessments
In a report dated 24 October 2017, Dianne Lissner, psychologist, assessed the Applicant’s intellectual functioning at the ‘mild intellectual disability level.’[131] She recommended that if the Applicant were to participate in programs offered in incarceration, he should be presented with information at a ‘slower rate’, be ‘checked regarding his understanding’, and he should not be given more than ‘one or two instructions at a time’. She noted that he ‘may have a shorter attention span than other inmates and could become bored quickly.’[132]
[131] Exhibit R2, 163.
[132] Exhibit R2, 164.
In a report dated 7 August 2018, Anne Lucas, forensic psychologist, stated that the Applicant qualifies for a diagnosis of 'Intellectual Disability (Intellectual Developmental Disorder) mild-moderate'. Her assessment confirmed the Applicant has problems associated with 'Attention Deficit Disorder (Hyperactive subtype), Oppositional Defiance Disorder and Obsessive Compulsive Disorder'. Ms Lucas noted the results of testing suggest the Applicant’s ‘appreciation of consequence and behaviour in general may have been influenced by his low intelligence’ and would be ‘further affected by any substance intoxication’.[133]
[133] Exhibit R1, G22, 105-117.
Ms Lucas referred to some of the difficulties the Applicant would face as a result of the disorder including:
… deficits in memory, language, reading, writing, maths, reasoning, acquisition of practical knowledge, problem solving and judgment in novel situations. Within the practical domain, he has had difficulties in learning, self-management across life settings, including personal care, job responsibility, or engagement in structured activities, money management, recreation, work task organisation and self-management of behaviour.[134]
[134] Exhibit R1, G22, 114-115.
Ms Lucas noted that there was no information available to her that the Applicant had ‘been provided with the treatment or assistance necessary to address his complex needs.’ She strongly suggested that the Applicant ‘be referred to a provider within the National Disability Support Service who could assist him in negotiating access to necessary supports/treatment providers to address his multiple needs in a manner which is sensitive to his cognitive limitations.’ She further recommended that the Applicant ‘be assessed for medication needs by a Psychiatrist and on release undergo regular monitoring and adjustment of any medication as required.’ [135]
[135] Exhibit R1, G22, 115.
Statements in support
The Applicant’s family members provided a number of statements in support of the application for review.
In her undated statement, Ms SW,[136] the Applicant’s mother, stated that the Applicant was let down by the education and school system by suspending him during high school, and he therefore had no real education from early year 8. The Applicant has ‘always taken responsibility for his crimes and has always been honest with the courts however the courts have not always been fair.’ Most of the Applicant’s assault offences were ‘in self-defence of people who are just like him.’ The Applicant was not born with his addiction, it is ‘an addiction that he has acquired within the Australian community’. As parents they ‘failed’ the Applicant ‘by not following on with medication and therapy’s (sic) for his mental health issues [and] by not being more reactive to the education issues’ which impacted on his ‘already low intellect’. They also ‘failed him by not giving him the time he so badly needed’ and ‘by not protecting him from drug addiction.’[137]
[136] Exhibit A1.
[137] Exhibit A1.
Ms SW stated that if the Applicant is returned to the United Kingdom, they ‘will always feel like a huge part of us is missing and no member of our family in Australia is financially able to visit the UK on a regular basis.’ She is ‘concerned for [her] other sons and what effect (sic) this would have on them they have a very close relationship and have always relied upon each other, they have missed their brother over the last 3 years.’ Although the Applicant was born in England ‘he definitely is not English.’ The Applicant ‘is already an at-risk person due to his mental health and his intellectual disabilities’, and she fears that he ‘will suffer greatly’ and fears ‘for his mental health and his life’. He has no ties to his family in the United Kingdom and none of them are in a position to help him. His family here on the other hand can give him ‘all the support he needs.’[138]
[138] Exhibit A1.
In his undated statement, PW,[139] the Applicant’s father, wrote that the Applicant was diagnosed with ADHD and ODD in primary school and was prescribed medication. They decided to remove him from the medication as it made him ‘really zonked out’ and they did not want him to go through school ‘as a zombie’. He now believes, ‘this was probably the wrong thing to do’, but at the time they felt they ‘had no other option.’ The Applicant is a very loyal person and was on many occasions ‘a loyal friend to the wrong people.’ He started breaking the law around the time he ‘started experimenting with drugs and alcohol.’ His ‘addiction became something he couldn’t control which in turn affected his day to day judgement [and] he became a lost soul who believed that his ‘friends’ were the most important thing in his life.’ He ‘needed rehabilitation not incarceration.’
[139] Exhibit A2.
PW stated that they are ‘a close family and it would be heartbreaking’ for them to lose the Applicant again. The Applicant ‘needs his family in his day to day life to complete his rehabilitation and become an important member to society.’ His ‘life is here in Australia with his family.’[140]
[140] Exhibit A2.
In her undated statement, MT,[141] the Applicant’s aunt, wrote that he has a ‘strong and loving family bond’ with his family which extends to her and her daughter. She believes it is in the Applicant’s best interest that he remains in Australia.[142]
[141] Exhibit A3.
[142] Exhibit A3.
In her undated statement, JS[143] wrote that she has known the Applicant for ‘several years’ and known him to be ‘a caring loyal person.’ He has ‘made some poor choices growing up’ but he has ‘grown in this time, learnt hard lessons and is remorseful for his past.’ She believes it ‘will not serve him well’ to be ‘deported to a foreign country’ without ‘support or guidance’, and not knowing anyone in the country and not being close to his family. It will be ‘detrimental to his mental health and wellbeing and his life if deported.’[144]
[143] Exhibit A4.
[144] Exhibit A4.
In their undated statement, LF and JF[145] wrote that they have known the Applicant for twenty years as a member of their extended family. They stated that if returned to the United Kingdom, the Applicant ‘will be unsupported as he has no real family connections and support structure in the United Kingdom.’ They understand he ‘has gotten himself in a spot of trouble in the past’ but in their opinion, this ‘was mainly because he was a little immature and was easily led by … his peer group at the time.’ He has since ‘matured a lot’ and ‘would prosper to become a fine Australian resident.’ They are able to offer him ‘help and support’ if he remains in Australia.[146]
[145] Exhibit A5.
[146] Exhibit A5.
In her undated statements, RH[147] wrote that she only met the Applicant when he was a baby and he is unknown to her children and husband. They would not be able to have the Applicant stay with them as they are a family of three who live in a two-bedroomed house and are financially unstable. She believes the Applicant ‘with his personal challenges’ will ‘find it so hard to be able to cope with organising his life’ in the United Kingdom.[148] The ‘best place for him would be in the country that he has always known as his home [w]ith his family.’[149]
[147] Exhibit A6.
[148] Exhibit A6.
[149] Exhibit A7.
In her undated statement, DT[150] wrote that although she would ‘welcome’ the Applicant ‘and try to support him’, she feels that what she has to offer ‘would just not be enough’. She does not have the time he would need as she works full-time as a pharmacist and has two grandchildren. She is not willing to let ‘a stranger’ who she knows little about into her home. She could however make him ‘the odd meal and direct [him] to job centres.’ She believes that the best place for him is in Australia with the people who know him best.[151]
[150] Exhibit A8
[151] Exhibit A8.
In her undated statement, BO[152] wrote she has known the Applicant for six years and is the mother of his niece. Her six children all know the Applicant and call him ‘uncle’. He is ‘reliable, responsible and above all caring.’ She has ‘witnessed the constant discrimination that has come to [the Applicant’s] family.’ In her opinion, ‘the court system has … failed [the Applicant].’ There were occasions when evidence went ‘missing’ that could have ‘proved self-defence’. She strongly believes that the Applicant ‘has been treated with prejudice’ and ‘has been profiled and targeted’ by the police. He would not have been found guilty of many charges ‘if the prosecution hadn’t neglected their duty for fair and impartial due diligence in finding the truth.’ Whereas the Applicant is not ‘a completely innocent man’, ‘the extenuating circumstances and contributing factors with his charges and convictions need to be understood.’[153]
[152] Exhibit A9.
[153] Exhibit A9.
In her undated statement, AM[154] stated she has known the Applicant for as long as she can remember. She never found him to be a ‘bad person’ and although ‘he could be mischievous at times’, he ‘was always caring and thoughtful.’ He ‘would always accept the ramifications for his actions even when they would seem unfair from the outside.’ The Applicant has been welcomed as part of the Yuin community as ‘a good, respectful but misunderstood young man.’ She believes it is wrong for him to be deported ‘on the technicality of not being born here because he has spent his whole life here and does not know any different.’[155]
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[154] Exhibit A10.
[155] Exhibit A10.
Does the Applicant pass the character test?
The Applicant did not dispute the Respondent’s contention that he does not pass the character test. The evidence before the Tribunal is that on 10 October 2017, the Applicant was convicted of four offences and sentenced to a term of imprisonment greater than 12 months. As such, the Tribunal is satisfied that the Applicant does not pass the character test prescribed in section 501(6)(a) of the Act, as he has ‘a substantial criminal record’ as defined in section 501(7)(c). The Tribunal is also satisfied, for the purposes of section 501(3A)(b) of the Act, that the Applicant was serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the state of New South Wales.
For these reasons, the Applicant cannot rely on section 501CA(4)(b)(i) for revocation of the Mandatory Visa Cancellation Decision.
Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
In determining whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must take into account the considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.
PRIMARY CONSIDERATIONS
Primary Consideration A – Protection of the Australian community
Primary Consideration A of Part C is the Protection of the Australian Community. Paragraph 13.1(1) of the Direction provides:
1When considering protection of the Australian community, decisionmakers 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 noncitizens 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.
Paragraph 13.1(2) directs that 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.
Paragraph 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
(a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very 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) …
(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)    …
(a) Nature and seriousness of the Applicant’s conduct to date
The Tribunal finds that the Applicant’s criminal offending as an adult from mid-2014 through to mid-2017, is very serious. His offending has included violent offences, specifically assault occasioning bodily harm in the company of others; reckless grievous bodily harm; and common assault, which have resulted in physical and psychological harm to his victims. The injuries sustained by his victims have included a broken jaw and a broken nose. His victims were fortunate not to have received more serious injuries because, as Magistrate Toose observed in her sentencing remarks in May 2014, ‘one punch to the head can kill someone.’ The Applicant himself admits that he used ‘excessive force’ when attacking his victims during the February and May 2017 offences. In addition to these offences involving violence, the Applicant has been convicted of dishonesty offences; larceny on several occasions, and possession of equipment to administer drugs.
The Applicant’s criminal offending, when viewed as a whole, indicates the very serious nature of his conduct. In making this finding, the Tribunal has had regard to paragraph 13.1.1(1)(a) of the Direction, which recognises that crimes of a violent nature are viewed very seriously.
The Tribunal has had regard to the sentences imposed by the courts as provided in paragraph 13.1.1 (1)(d) of the Direction. It finds that whereas these are not at the higher end of the sentencing range, they do not detract from the serious nature of the Applicant’s criminal offending. The custodial sentences imposed on the Applicant by the courts are an objective indicator of the seriousness of his criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved: PNLB v Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh v Minister for Immigration and Border Protection (Migration) [2017] AATA 367 at [50]. In addition to custodial sentences, the Applicant has been made subject to bonds, supervised bonds and community service orders, none of which led him to modify his behaviour.
The Tribunal has had regard to paragraphs 13.1.1(1)(e) and 13.1.1(1)(f) of the Direction and finds that the Applicant’s criminal offending as an adult has been frequent and repetitive and has increased in seriousness during the three-year period from mid-2014 to mid-2017. The Applicant regularly engaged in violent and intimidating conduct towards innocent members of the Katoomba community, which included physical and verbal assaults. The cumulative effect of this repeated offending on the Applicant’s victims, and the Katoomba community more generally, is a significant factor supporting the finding that the Applicant’s conduct is very serious.
The Tribunal has had regard to paragraph 13.1.1(1)(h) of the Direction and notes that the Applicant’s visa was first cancelled on 25 July 2016, and this cancellation was revoked on 11 October 2016 following representations from the Applicant. In these representations, the Applicant made the following statements:
I accept full responsibility for my actions and behaviour. I am prepared to really start helping myself to live a better lifestyle once released into the community. I am better prepared to ask for and accept professional help. I am young enough to be able to change my behaviour and attitude.[156]
…
I feel like this has been an eye opener for me. I intend to enrol in TAFE in order to gain skills to help secure employment. Change associates – find new associates who aren’t into drugs and crime.[157]
[156] Exhibit R2, 481.
[157] Exhibit R2, 482.

The Notice of decision to revoke visa cancellation under s501CA(4) of the Migration Act 1958 read as follows:
I understand that I can again be considered for cancellation of any visa I hold if further information of relevance comes to the attention of the department at any time in the future and if this happens, my past conduct and previous relevant information can also be reconsidered.[158]
[158] Exhibit R1, G17, 89.
Despite the warning from the Department and the Applicant’s representations that he would take positive steps to improve his lifestyle, seek professional help for his addictions, and distance himself from his criminal associates, the Applicant continued to reoffend following his release from immigration detention in October 2016. In February 2017, a mere four months after his release from detention, the Applicant was involved in ‘a drug affected rampage’ during which he struck his victims in the head. This was followed by a further similar altercation in May 2017, during which the Applicant kicked and punched his victim multiple times, including in the head, causing him significant injuries.
The Applicant’s evidence is that he did not take the steps he said he would take following his release from immigration detention because he did not have stable accommodation as his mother was, at the time, without permanent housing.[159] No explanation was given as to why the Applicant could not find alternative accommodation, for example with his father or other family members, when it became apparent he could not live with his mother. Nor did the Applicant explain the reasons why he did not enrol in TAFE or take other steps to gain the skills he required to obtain employment. There is also no evidence that the Applicant sought professional help for his substance abuse problems or counselling following his release.
[159] Exhibit A1.
On the basis of the evidence before it, and having regard to the considerations in paragraph 13.1.1 of the Direction, the Tribunal finds that the Applicant’s criminal conduct has been violent, increasing in frequency and seriousness, and without regard to its consequences, and is therefore very serious.
The seriousness of the Applicant’s criminal offending weighs heavily against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
(b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
In assessing the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must have regard to paragraph 13.1.2 of the Direction:
1In 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 the rehabilitative courses to be undertaken).
In considering the likelihood that the Applicant will engage in further criminal or other serious conduct, the Tribunal has had regard to the Applicant’s evidence to the Tribunal, the representations he made in support of his request for revocation of the Mandatory Visa Cancellation Decision, and the evidence of his friends and family members and those who provided letters of support.
Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to re-offend, as required by paragraph 13.1.2, the Tribunal finds that any future re-offending by the Applicant may involve physical and/or psychological harm to members of the Australian community. The Applicant’s offending to date has involved offences of violence that have caused his victims serious injuries. In addition, he has engaged in intimidating conduct against members of the Katoomba community, including the manager of a hotel, which he agrees would have put them in fear of harm.
In relation to the risk of the Applicant re-offending, the Tribunal notes that in October 2018, the Applicant was assessed by NSW Corrections as a ‘medium-high risk of reoffending’.[160] The Applicant admits, and the Tribunal finds, that most of the Applicant’s criminal offending occurred while he was affected by illicit drugs and/or alcohol. He has a long history of substance abuse, which commenced when he was a 13 year old teenager, involving a number of illicit drugs including methamphetamine, heroin and cannabis. For long periods, including at the time of the 2017 offences, the Applicant was taking drugs and consuming large quantities of alcohol on a daily basis. The Applicant entered a rehabilitation facility in January 2014 where he remained for two months. However, during his stay in this facility he did not overcome his addiction problem, and recommenced drug taking within a week of leaving the facility. When he left immigration detention in October 2016 he resolved to address his addiction problem and make necessary changes to his lifestyle to prevent him from re-offending. The Applicant did not do either of these and went on to commit further criminal offences. The Applicant therefore has a track record of committing to rehabilitation programs for a short period of time whilst under supervision, and then returning to his old habits, specifically substance abuse and criminal offending, as soon as he re-enters the community.
[160] Exhibit R2, 119.
During his two-year period in gaol, the Applicant was ‘self-medicating’ with buprenorphine which he was obtaining illegally from other prisoners. It was not until he was transferred to immigration detention in June 2019 that he took steps to start a drug program, and he commenced the buprenorphine program in October 2019. However, in the six months since starting this program, the Applicant has continued to obtain and use illicit drugs, including injecting methamphetamine and smoking buprenorphine. He has requested increases in his prescribed dose of buprenorphine and, by his own admission, is reliant on it. Given the Applicant’s track record of not continuing with rehabilitation programs following his release back into the community, the Tribunal cannot be satisfied that he will not resume his illicit drug habit if he were released from detention.
While in gaol, the Applicant successfully completed the EQUIPS Foundations, Addiction and Aggression courses, and he has developed his problem-solving skills and gained an insight into his offending behaviour. He did not however access any counselling services or other professional assistance during his period in gaol, nor has he done so since he has been in immigration detention. The Applicant has stated his commitment to obtain counselling and attend programs in the community such as NA and AA to address his substance abuse problems and violent behaviour. He claims he has the support of his girlfriend and his parents to commit to rehabilitation programs and to get the professional help he requires. However, the Applicant did not provide any specific information in relation to inquiries or contact he has made with a counsellor and/or a psychologist, or details of the rehabilitation programs he would access in the community if he were released from detention. Furthermore, the Applicant’s parents have provided him with assistance and support throughout his life, yet they were unable to prevent him from relapsing into drug use and criminal offending in the past. The Applicant’s relationship with his girlfriend is recent, and she did not provide a statement to the Tribunal outlining how she could assist him on his pathway to rehabilitation. On the basis of this evidence, the Tribunal cannot be satisfied that the Applicant’s parents and girlfriend will be protective factors against him relapsing into drug abuse and criminal offending.
The Applicant has a very limited employment history, having only been in paid work in the landscaping business for a period of just two months. He has however undertaken courses in gaol and detention to equip himself with skills which may assist him to obtain employment upon release into the community. These include training as a barista and as a NRL referee that could allow him to obtain work in hospitality or the sports industry. However, when questioned about his future plans, the Applicant said he wanted a ‘hands on’ job as a mechanic, panel beater or builder, all of which would require additional training and qualifications. He mentioned that his girlfriend might be able to get him a job at Dominos, but it was unclear how she would do so as she works in a café in Lithgow. Accordingly, the Tribunal cannot be satisfied that the Applicant would be able to secure paid employment upon release, and that it would be a protective factor against the Applicant resuming his drug-taking and criminal activity.
On the basis of the evidence before it, and taking into account available information and evidence on the risk of the Applicant re-offending, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is at the moderate level; and that this level of risk is unacceptable.
For the reasons above, and applying the guidance in paragraphs 13.1.1(1) and 13.1.2(1) of the Direction, Primary Consideration A, on balance, weighs against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration B – The best interests of minor children in Australia affected by the decision
Primary Consideration B of Part C in paragraph 13.2 of the Direction requires decision-makers to make a determination about whether revocation is, or is not, in the best interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.
The Applicant did not make any submissions that there are any minor children in Australia who would be affected by the decision not to revoke the visa cancellation. In his oral evidence, the Applicant referred to his 13 year old niece, and in her statement, BO refers to her six children calling the Applicant ‘uncle’. No further evidence was provided in relation to these children, specifically whether they are minors, nor the nature of the Applicant’s relationship with them and his teenage niece.
On the basis of the evidence before it, the Tribunal finds that Primary Consideration B weighs neither in favour nor against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration C – The expectations of the Australian community
Primary Consideration C of Part C in paragraph 13.3(1) of the Direction states:
1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Principles contained in paragraph 6.3 of the Direction are relevant to this primary consideration. Principle 1 recognises that the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community. Principle 2 recognises that it is the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes.
In a number of recent decisions, the Federal Court has considered the scope and application of this primary consideration. In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (‘YNQY’), Mortimer J observed as follows in relation to the consideration detailed in this paragraph of the Direction:
[76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] …It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]-[66]).
In Afu v Minister for Home Affairs [2018] FCA 1311, Bromwich J said at [85]:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65 ...The Tribunal was required to give effect to those norms which is precisely what it did.
Last year, the Federal Court delivered two decisions relating to the approach in determining the expectations of the Australian community: FYBR v Minister for Home Affairs [2019] FCA 500 (‘FYBR’) and DKXY v Minister for Home Affairs [2019] FCA 495 (‘DKXY’).
FYBR is authority in support of what has been termed the ‘narrow’ approach[161] to the determination of the expectations of the Australian community. As observed by Perry J:
It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, 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. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...[162]
[161] DKXY at [22].
[162] FYBR at [42].
A broader approach to the determination of the expectations of the Australian community was adopted by Griffiths J in DKXY. In Dalley and Minister for Home Affairs (Migration) [2019] AATA 3738 (20 September 2019) (‘Dalley’), Senior Member Tavoularis observed that this decision is authority for the proposition that:
(a) the Government’s views regarding the expectations of the Australian community must be given due regard; and
(b) so must all other circumstances which are relevant in a particular case.[163]
[163] Dalley at [122].
In FYBR v Minister for Home Affairs [2019] FCAFC 185, the Full Court of the Federal Court dismissed an appeal of Perry J’s judgment in FYBR, which was concerned with the correct construction and application of cl 11.3(1) of Direction No 65, which is, in all relevant respects the same as paragraph 13.3(1) of the Direction. In three separate judgments, (Charlesworth and Stewart JJ, Flick J dissenting) did not accept that the paragraph is a ‘deeming provision’ in that it must in all circumstances require the refusal or cancellation of a visa.
Charlesworth J found at [66]-[67] that the paragraph does contain a statement of the government’s views as to the expectations of the Australian community and to this extent, it is a ‘deeming’ provision in the sense explained by Mortimer J. It is not for the decision-maker to make his or her own assessment of community expectations. However, Her Honour emphasised at [73] that the paragraph does not preclude the decision-maker from forming his or her own view as to whether the non-citizen should or should not hold a visa. The decision-maker’s assessment of whether or not the person should hold a visa may differ from the expectations of the Australian community as deemed by the government. As Her Honour stated at [76], ‘[t]he 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 in the ultimate exercise of his or her discretion’.
Stewart J emphasised at [89]-[90] that whereas it is to be expected that the Government ‘may wish to set the norms by which decisions to refuse or cancel visas are made’ it is not to be expected that the Government would seek, via this device, ‘to dictate to the statutory decision-maker the outcome’ in any particular case. This would ‘be inimical to the process of decision-making that has been established under the Migration Act and would constitute unlawful dictation to the decision-maker.’ Having regard to the text of the Direction, His Honour found at [103] that Australian community expectations ‘speak normatively’ and are ‘to be applied in every case but they are not expressed in relation to any particular case’. He emphasised at [105] that ‘[t]he specific circumstances of the … applicant are necessarily front and centre of every decision’.
Flick J at [18]-[19] did not accept the ‘unqualified conclusion’ of Mortimer J in YNQY at [76] that Australian community expectations are defined in one particular way, namely that there should be non-revocation of the mandatory visa cancellation in circumstances where a person has been convicted of serious crimes of a certain nature. He also did not accept that the Tribunal may not go beyond the ‘norm’ which the paragraph sets forth and go on to find that there may be other aspects of Australian community expectations of relevance to the facts and circumstances of a given case. His Honour at [20] preferred the approach of Griffiths J in DXKY at [31] that allows a finding that the expectations of the Australian community may not weigh against revocation of the mandatory visa cancellation. His Honour found that this approach was supported by the text of the Direction at [21]-[22]. He emphasised at [23] that in construing the Direction and other statements of government policy, it is necessary to have regard to ‘the overarching imperative that no statement of government policy can confine what would otherwise be the full ambit of any discretionary power conferred by statute’.
In Tuioti and Minister for Home Affairs (Migration) [2019] AATA 4423, Senior Member Tavoularis observed at [116] that the Full Court’s decision, together with YNQY and Afu establish that:
a)    The ‘expectations of the Australian community’ cannot be measured or determined as if it is a provable fact. It is an assessment of community values made on behalf of that community.[164]
b)    The Tribunal cannot determine for itself what such ‘expectations’ are by reference to the Applicant’s circumstances or evidence about those expectations;[165]
c)    The Government’s view in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the government thinks is the ‘expectations of the Australian community’, and the Tribunal should have due regard of that statement, if made;[166]
d)    In assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles appearing in paragraph 6.3 of the Direction, in particular subparagraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.[167]
[164] Afu at [85].
[165] FYBR at [42].
[166] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[167] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).

Having regard to the expectations of the Australian community as stated in paragraph 13.3(1) of the Direction, the Applicant has breached numerous Australian laws and has been convicted of a number of offences in Australia. The Applicant’s offences include serious offences involving violence, which as recognised by Principles 2 and 3, should generally result in the cancellation of the non-citizen’s visa.
In determining the expectations of the Australian community, the Tribunal has been informed by Principle 5 which provides:
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.
It has also been informed by Principle 7 which provides:
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.
The Applicant arrived in Australia as a two year old child and is now 25 years old. He attended primary school and high school in Australia and has a number of family and social links in the Katoomba area. Having regard to the factors in Principles 5 and 7, particularly the length of time the Applicant has been in Australia, the Australian community would likely afford a higher degree of tolerance for the Applicant’s criminal behaviour than if he had been resident in Australia for a shorter period of time. The Applicant has had very limited paid employment in Australia, and therefore has made a very limited contribution to the Australian economy and has paid minimal taxes. This lack of a positive contribution by the Applicant to the Australian economy is a factor that would lower the Australian community’s tolerance of his criminal offending.
Having regard to the factors in Principle 7, relevant to determining the expectations of the Australian community are the consequences of the non-revocation of the cancellation decision on the Applicant’s family members in Australia. The impact on the Applicant’s family members, particularly his parents and three brothers, of the non-revocation of the cancellation will be detrimental. The evidence before the Tribunal is that the removal of the Applicant will be ‘heartbreaking’ for his close-knit family, and it will prevent them from re-establishing a close relationship with their son and brother. Whereas they will be able to remain in contact with him in the United Kingdom, they are not in a financial position to visit him there. This impact on the Applicant’s family is a factor that would likely cause the Australian community to have a higher tolerance for the Applicant’s offending history.
Whereas the Australian community would have greater tolerance for the Applicant by virtue of the fact he has resided in Australia for most of his life and the negative impact of his removal on his immediate family members in Australia; the lack of a positive contribution made by the Applicant to the Australian community during his 23 years in Australia, and the frequency and seriousness of his criminal offending, particularly as an adult, are such that the Australian community would not expect him to continue to hold a visa.
Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account other factors relevant to the Applicant’s circumstances, the Tribunal finds that Primary Consideration C, on balance, weighs against revocation of the Mandatory Visa Cancellation Decision.
OTHER CONSIDERATIONS
While the three primary considerations carry particular weight, the Direction acknowledges at paragraph 14 that ‘other considerations’ must be taken into account by the decision-maker where relevant.
The Tribunal notes that these considerations are “other” considerations, as opposed to “secondary” considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection[2018] FCA 594at [23]:
... Direction 65 [now Direction 79] 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.
International non-refoulement obligations
There is no evidence before the Tribunal that the Applicant engages Australia’s international non-refoulement obligations and therefore this other consideration is of neutral impact.
Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
1Reflecting 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).
Having regard to the factors in paragraph 14.2(1)(a), the Applicant has resided in Australia for more than two decades having arrived here in 1997 with his family. As he has lived in Australia for most of his life, the Applicant’s family and social links are largely in this country. Having regard to the considerations in paragraph 14.2(1)(b), the evidence demonstrates that the Applicant has significant ties to Australia, particularly his parents and three brothers, with whom he wishes to reconnect and be physically present in their lives. The Applicant’s extended family in Australia includes a cousin, an aunt and two nieces.[168]
[168] Exhibit R1, G11, 67.
On the basis of the evidence before it and having regard to the factors in paragraph 14.2(1), the Tribunal finds that this consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
1Impact 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.
The Applicant’s limited employment prior to his incarceration was working in the landscaping business. There is no evidence of a relevant ‘employment link’, and the Applicant does not claim that any Australian business interests would be affected by his removal to the United Kingdom.
Impact on victims
Paragraph 14.4(1) of the Direction states:
1Impact 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.
There is no evidence before the Tribunal on the impact of the non-revocation of the cancellation decision on the Applicant’s victims.
Extent of impediments if removed from Australia
The Direction states in paragraph 14.5(1) that:
1The 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.
Having regard to the considerations in paragraph 14.5(1)(a), the Tribunal notes that the Applicant is aged 25 years and has complex medical issues. He has been diagnosed with Attention Deficit Disorder (Hyperactive subtype), Oppositional Defiance Disorder and Obsessive Compulsive Disorder. The Applicant is currently not taking any medication and he has received limited treatment for these conditions during his adult life. In the opinion of Ms Lucas, forensic psychologist, the Applicant should be referred to a National Disability Support Service provider who could assess his needs and assist him to obtain the treatment and other supports he requires. Ms Lucas further recommends his medication needs be assessed by a psychiatrist, and that he undergo regular monitoring and adjustment of his medication as required. As the Applicant does not currently have a treatment relationship with a medical practitioner in Australia, his health will not be unduly impacted by the non-revocation of the visa cancellation. He will however require immediate assessment and ongoing treatment from medical professionals in the United Kingdom in order for his conditions to be stabilised.
Having regard to paragraph 14.5(1)(b) of the Direction, the Tribunal finds that the Applicant will not face language or cultural barriers on his return to the United Kingdom as he speaks the language and will readily adjust to the culture in the country, which is not too dissimilar to that in Australia.
Having regard to paragraph 14.5(1)(c), the Tribunal finds that the Applicant will have the same access to government services as all British citizens including health care, welfare benefits and social services. These services include access to the National Health Service (NHS) which incorporates the same range of psychological and psychiatric treatments for those citizens who require them, as are available in Australia.
The Tribunal notes that the Applicant’s evidence, and that of his family and friends who provided statements of support, is that whereas he has family members in the United Kingdom, he does not know them and they are not in a financial position to provide him with much assistance or accommodate him in their homes. The Applicant will therefore have very limited financial and other support if he is removed to the United Kingdom.
The Tribunal has had regard to the Australian Government Department of Home Affairs Removal from Australia – Post-removal support Procedural Instruction dated 30 October 2018 in relation to the support provided to unlawful non-citizens upon their removal from Australia under section 198(2B) of the Migration Act. It notes that the Department is, wherever possible, to directly provide to the removee goods and services which may include very short term (budget) accommodation) for no more than seven days, internal travel to their home region, and cash-in-country for incidental expenses.[169] It further notes that the Department is under no legal obligation to assist persons who are to be removed once they leave Australia.[170]
[169] Australian Government Department of Home Affairs Removal from Australia – Post-removal support Procedural Instruction dated 30 October 2018, 5.
[170] Ibid [4].
On the basis of the evidence before it, the Tribunal finds that, on his return to the United Kingdom, the Applicant will face considerable hardship, particularly financial and emotional stress, while he finds suitable accommodation and accesses available welfare and health services, particularly for his drug addiction and medical conditions. This will be so unless one of his parents decides to return to the United Kingdom with the Applicant, and remain there with him until such time as he has established himself, found housing and employment or training, and accessed the medical treatment and rehabilitation services he requires.
The Tribunal notes that the Applicant will have access to the available economic and employment opportunities in the United Kingdom which are very similar to those in Australia. Although the Applicant has limited employment experience, he has completed a number of vocational courses which will assist him in finding employment in the United Kingdom. Whereas the Applicant may currently be disadvantaged by his health conditions in obtaining a job, with appropriate medical treatment and further training he will be better equipped to secure a position in his chosen field. However, this will take time and commitment on the part of the Applicant to his ongoing rehabilitation and any treatment programs if he is to find ongoing employment and thereby become financially independent and stable.
Having considered the factors in paragraph 14.5(1) of the Direction, the Tribunal finds that this consideration weighs in favour of the revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Consideration A weighs against revocation of the Mandatory Visa Cancellation Decision. The nature and seriousness of the Applicant’s offences, and the moderate risk of him committing future offences, are such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration C on balance weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that the Applicant’s serious offending should cause him to forfeit the privilege of remaining in Australia. The duration of his residence in Australia and the impact of his removal on his immediate family members, are factors that would increase the Australian community’s tolerance for the Applicant’s offending, however not to the extent that its expectation would be that his visa be reinstated.
In regard to the relevant other considerations, only the strength, nature and duration of the Applicant’s ties to Australia and impediments on return weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
The Tribunal is not satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, and therefore the decision to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.
DECISION
The Reviewable Decision dated 7 January 2020 to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.

I certify that the preceding 167 (one hundred and sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk.

..........[sgd]..............................................................
Associate
Dated: 1 April 2020

Date(s) of hearing: 20 and 23 March 2020

Date final submissions received: 1 April 2020

Advocate for the Applicant: Ms SW, Applicant's mother

Solicitors for the Respondent: Ms Kirby Dunlop, Australian Government Solicitor

[2020] AATA 695

1 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Standing

Date(s) of hearing:	20 and 23 March 2020
Date final submissions received:	1 April 2020
Advocate for the Applicant:	Ms SW, Applicant's mother
Solicitors for the Respondent:	Ms Kirby Dunlop, Australian Government Solicitor