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

Guttridge and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 338 (2 March 2023)
Division:GENERAL DIVISION
File Number: 2021/2349
Re:Michael Guttridge
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member Dr M Evans-Bonner
Date:2 March 2023
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 8 April 2021, is set aside and substituted with a decision that the cancellation of the Applicant’s Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
............[Sgd]....................................................
Senior Member Dr M Evans-Bonner
Catchwords
MIGRATION – mandatory visa cancellation – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s Visa – character test – substantial criminal record – extensive history of offending for approximately 30 years – Applicant is a 52-year-old man who arrived in Australia from the United Kingdom as 23 month old child – Direction No 90 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – definition of family violence not met – best interests of minor children – Applicant has twin 17 year old sons with autism who require constant care – minor great nieces and nephews and nephew – expectations of the Australian community – links to the Australian community – impact on victims – strength, nature and duration of ties to Australia – the future needs of the Applicant’s twin sons after the age of 18 years as a separate other consideration – Reviewable Decision set aside and substituted
Legislation
Migration Act 1958 (Cth) ss 499, 499(1), 499(2A), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)
Cases
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
Kohli and Minister for Immigration and Border Protection [2017] AATA 1326
MJNN and Minister for Home Affairs [2019] AATA 3205
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531
Webb v Minister for Home Affairs [2020] FCA 831; (2020) 170 ALD 511
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021) paras 4(1), 5.1, 5.1(3), 5.2, 5.2(4), 6, 7, 7(2), 8, 8(1), 8(2), 8(3), 8(4), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a)(i), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.2(2)(a), 8.3, 8.3(4), 8.3(4)(a), 8.3(4)(b), 8.3(4)(c), 8.3(4)(d), 8.3(4)(e), 8.3(4)(f), 8.3(4)(g), 8.3(4)(h), 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 8.4(3), 8.4(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4.1, 9.4.1(1), 9.4.1(2), 9.4.2(3)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
2 March 2023
Background

The Applicant is a 52-year-old man who was born in the United Kingdom.
The Applicant arrived in Australia with his parents and older sister on 11 June 1972 when he was 23 months old (R1/G11/90).
On 23 June 2020, he was sentenced in the Perth District Court to an effective term of two years and eight months imprisonment for 12 offences involving the unlawful possession of firearms and ammunition, and for the possession and supply of methylamphetamine. The offences were committed in breach of community-based orders and whilst subject to a conditional suspended imprisonment order (R1/G17/125; G5/33-34).
Consequently, the Applicant’s Class BF transitional (permanent) visa (Visa) was mandatorily cancelled on 24 July 2020 while he was in prison pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) on the basis that he failed the character test due to having a substantial criminal record and was serving a fulltime sentence of imprisonment (R1/G19/132) (Cancellation Decision).
The letter from the Department of Home Affairs (Department) advising the Applicant of his Visa cancellation stated that he could make representations to seek revocation of the Cancellation Decision. On 1 August 2020, the Applicant did so by submitting a revocation request and personal circumstances form and supporting documentation including letters of support (R1/G9-G15).
However, on 8 April 2021, a delegate of the Minister decided not to exercise discretion under s 501CA(4) of the Migration Act to revoke the Cancellation Decision (G3/18). This is the Reviewable Decision currently before me.
The Applicant lodged an application in the General Division of this Tribunal seeking a review of the Reviewable Decision on 16 April 2021 (R1/G1). A differently constituted Tribunal affirmed the Reviewable Decision on 5 July 2021 (R4/496) (First AAT Decision).
The Applicant instigated proceedings in the Federal Court to appeal the First AAT Decision.
On 16 March 2022, the Federal Court set aside the First AAT Decision and remitted the matter to the Tribunal to be determined according to law (R6/629). The Federal Court found that the original Tribunal did not properly deliberate and make reasoned findings as to how the Applicant’s removal from Australia would affect the ongoing care of his minor autistic twin sons (R5/620-621).
In approximately May 2022, the President of the Tribunal constituted me to hear and determine the remittal.
Issues
The issues for my determination are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
The hearing and the evidence
The Applicant filed a Statement of Facts, Issues and Contentions dated 3 August 2022 (ASFIC). The Respondent filed a Statement of Facts, Issues and Contentions dated 29 August 2022.
The hearing of this application was on 18 and 28 October 2022.
The Applicant was represented by Ms A Graziotti of Estrin Saul Lawyers. The Respondent was represented by Mr M Crowley of counsel instructed by Mr H McLaurin of Minter Ellison.
The Applicant gave evidence on the first day of the hearing. So did his former partner, MD, who is the mother of the Applicant’s four children (including his 17-year-old autistic twin sons). The Applicant’s sister, LB, also gave evidence.
Closing submissions were delivered on the second day of the hearing.
There were extensive documents before me. I advised the parties that that they should specifically bring documents they intended to rely upon to my attention (transcript/5).
With this caveat in mind, I admitted the following documents into evidence during the hearing:
(a)Applicant’s Bundle of Evidence (Exhibit A1);
(b)Applicant’s Supplementary Bundle of Evidence (Exhibit A2);
(c)Email statement dated 13 October 2022 from the Applicant’s adult daughter, R (Exhibit A3);
(d)Respondent’s Consolidated Remittal Bundle, labelled R1-R6 (Exhibit R1); and
(e)Documents produced under summons by Western Australia Police Force received on 13 May 2021 (Exhibit T1).
I asked for brief submissions regarding the Applicant’s ability to access his superannuation if he was returned to the United Kingdom. The Applicant filed submissions on 4 November 2022. The Respondent filed submissions on 11 November 2022.
Legislative Framework
Migration Act
Section 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(Original emphasis.)
Section 501CA of the Migration Act further provides, in part:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No 90
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 90) under s 499 of the Migration Act, which commenced operation on 15 April 2021. This Direction replaced the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018) (Direction No 79).
Paragraph 5.1 of Direction No 90 sets out “[o]bjectives”, with paragraph 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen 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. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 90 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. The principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens 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 by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in paragraph 5.2 of Direction No 90, the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 90) must consider the primary considerations listed in paragraph 8 of Direction No 90, and the other considerations listed in paragraph 9 where relevant (para 6 of Direction No 90).
Specifically, paragraph 8 of Direction No 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia;
(4)expectations of the Australian community.
Paragraph 9 of Direction No 90 lists other considerations to be considered as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests
Guidance as to how a decision-maker is to apply the considerations in

Direction No 90 can be found in paragraph 7, “[t]aking the relevant considerations into account”, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
Does the Applicant pass the character test?
The Minister may revoke the Cancellation Decision if the Minister is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
The Applicant conceded that he does not pass the character test (ASFIC, para [32]).
I agree that the Applicant does not pass the character test due to the operation of s 501(6)(a) of the Migration Act. That section provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act. A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
As I mentioned above, on 23 June 2020, the Applicant was sentenced in the Perth District Court to an effective term of two years and eight months imprisonment for 12 offences involving the unlawful possession of firearms and ammunition, and for the possession and supply of methamphetamine. This term of imprisonment was comprised of concurrent and cumulative sentences of imprisonment. For the offence of “possession of a prohibited drug with intent to sell or supply (methylamphetamine)” he received a cumulative sentence of 20 months imprisonment.
The Applicant has therefore been sentenced to a term of imprisonment of 12 months or more, and as a result, does not pass the character test by operation of s 501(7)(c) of the Migration Act.
As the Applicant fails the character test, the statutory power to revoke will only be enlivened if there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
Is there another reason why the Cancellation Decision should be revoked?
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 90)
Paragraph 8.1(1) of Direction No 90 provides that:
(1)When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

Paragraph 8.1(2) of Direction No 90 then provides:
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen's conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 90)
Paragraph 8.1.1(1) of Direction No 90 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)   where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
The Applicant has a lengthy history of offending conduct as a juvenile and as an adult.
According to his Western Australia Police Force “History for Court – Criminal and Traffic”, he has committed approximately 93 criminal offences and 36 driving/ traffic offences as an adult. His offences include weapons and ammunition possession offences, drug offences such as possession of cannabis and methylamphetamine, cultivating cannabis, and possessing drug paraphernalia, dishonesty offences such as burglary and possession of stolen or unlawfully obtained property, breaches of court-imposed orders including violence restraining orders and community-based orders. The Applicant’s offences sometimes occurred on the same day and were dealt with on the same court date.
As the Applicant is now 52 years of age, and given the extent of his adult history, it is not necessary for me to focus in any detail on his juvenile offending, the bulk of which are recorded as spent. I note that the Applicant first appeared in Court on 27 September 1983 for “break enter and steal”. This charge is recorded as being dismissed, with the Applicant receiving a 25-hour community supervision order. At this time, the Applicant would have been 13 years old. Most of his juvenile offences are traffic offences. There are two more serious offences that are relevant to mention. These are convictions on 18 February 1987 for “indecent dealing female under 16” and “carnal knowledge girl under 16” for which the Applicant received six months’ probation. The uncontested evidence from the Applicant was that he was 16 years old and had sexual intercourse with his girlfriend who was 15 years old. The girl’s parents made a complaint to police and the Applicant was charged and convicted. His evidence was that the police never directed them not to see each other and that he and his girlfriend continued dating for a few years because she was 16 by that time (R2.b/231, para [12]).
I will briefly outline some of the Applicant’s more recent offences.
On 6 August 2019, the Applicant was sentenced in the Perth District Court with respect to ten firearms offences and one drug offence for “supplied a prohibited drug namely methylamphetamine”. The sentencing Judge described the offences, which all occurred on 10 January 2019, as follows (R1/G7/50-51):
… On 10 January this year, please executed a search warrant at the house you were living at in [address omitted]. Police located three firearms inside bags in the rear of the house and they were a 338 Winchester the subject of count 2, a Mossberg pump action shotgun the subject of count 1, and a Marlin Firearms 45-70 lever action repeater rifle. An interview was conducted and you admitted ownership of all firearms ...
Now, during the search, police also found a number of other firearm-related items. There was ammunition in various locations … A home-made single shot cap bolt pistol was located inside a secret wall cavity.
A Carrera pistol with a loaded magazine was found hidden inside the driver’s door panel of the car in your control and you admitted ownership of the pistol and said that you be using it for target practice the preceding day.
There were some firearm components found concealed in the rafters of the patio. You admitted knowledge of a short barrel able to be attached to a handgun and a sawn off segment of a rifle barrel and a magazine for a - containing one spent round of ammunition. …
And then there was a black handgun magazine found hidden behind a panel and faced with shelves in the wardrobe …
Now, you’ve also admitted supplying methamphetamine to a friend… And that’s on the basis that what was - you’re being sentenced on the basis that your supply was less than a gram.
Now, police located the quantities of methamphetamine elsewhere in the house. There were a number of quantities and adding them up from the statements of material facts, they’re, like, around the 10-gram mark.
There was also cannabis, there were smoking implements, electronic shock devices, laser pointers, other prohibited drugs, clip seal bags, electronic scales.
The Applicant was sentenced to an effective term of 12 months imprisonment (suspended for 12 months) for four of the firearms offences (a cumulative term of eight months, a concurrent term of eight months and two concurrent terms of four months); and for the “supplied a prohibited drug namely methylamphetamine” offence (four months cumulative). He received community-based orders of 12 months concurrent for the six remaining firearms offences (T1, page 5-7 of WA criminal and traffic history; R1/G7/56-57).
On 23 June 2020, the Applicant was sentenced regarding further offences arising from another police search on 11 December 2019.
The sentencing Judge described that offending as follows (R1/G6/40):
… police executed a warrant at your home in [suburb name omitted] and during the search they located nine clipseal bags that contained methylamphetamine. The bags were concealed in a hole in the wall inside the wardrobe of your home. The bags contained between .25 g and 1.73 grams of methylamphetamine. In total, you had 13.38 grams of methylamphetamine.
Police also located working electronic scales and a number of unused clipseal bags. Given the way in which the drugs were packaged, the quantity of the drugs in your position, together with admissions you made in court, it is clear that you were a user/dealer at the street level.
Your conviction for this offence breaches five conditional suspended imprisonment orders and six community-based orders imposed by this court on 6 August last year …
The specific offences were “possession of a prohibited drug with intent to sell or supply (methylamphetamine)” for which he was sentenced to 20 months imprisonment commencing on 11 December 2019; two counts of “re-offended whilst subject to a community order” and two counts of “reoffended whilst subject to conditional suspended imprisonment” for which he received no penalty (page 3 of WA criminal and traffic history in T1). As I mentioned in the background section above, these were the offences which formed the basis for the Cancellation Decision.
As these offences breached the suspended sentences and community orders imposed on 6 August 2019, the Applicant was re-sentenced for those offences. The sentencing Judge ordered that he serve the 12 months of the suspended imprisonment orders imposed on 6 August 2019 (comprising the eight- month and four-month cumulative terms) and cancelled the six community-based orders and sentenced him to one month imprisonment for each. This amounted to a total effective term of imprisonment of 32 months, with parole eligibility after 16 months (R1/G6/47).
As an adult, the Applicant has not committed any violent or sexual crimes. He has five breaches of violence restraining orders, which I discuss below under the family violence primary consideration. Such orders are in place to protect people from harm and therefore such breaches should be viewed as serious. As I explain in that section, the Applicant’s conduct does not meet the definition of family violence in paragraph 4(1) of Direction No 90. He does have two sexual offences as a juvenile. However, as I have stated above, the Applicant’s uncontested evidence was that he was 16 and had sexual intercourse with his 15-year-old girlfriend. I therefore do not think that the Applicant’s offences fall into the category that Direction No 90 states should be “viewed very seriously” (para 8.1.1(1)(a)(i) of Direction No 90). The Applicant has not engaged in any of the types of “serious” conduct stated in paragraph 8.1.1(1)(b) of Direction No 90 either.
This Tribunal has often regarded driving offences as being serious (see Senior Member Poljak in Kohli and Minister for Immigration and Border Protection [2017] AATA 1326 at [20]). Additionally, repeated breaches of road traffic laws tend to indicate a disregard for laws and authority generally, an inability to distinguish right from wrong, and a selfish disregard for the safety of innocent members of the community who share the roads (see, for example, Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [16]; Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [43]–[45]; and MJNN and Minister for Home Affairs [2019] AATA 3205 at [55]). As I have mentioned above, the Applicant has 36 driving/ traffic offences. These are mostly at the less serious end of the scale for this type of offending and include driving without a licence. Their seriousness is, however, elevated by their repeated nature and the fact that the Applicant has had four prison sentences for driving offences (with three of them being suspended, as I detail below). Also, on 23 August 2019 the Applicant drove under the influence of an illicit drug having never held a licence and whilst being disqualified. He previously had convictions for driving under the influence of alcohol, but these were over 20 years ago on 11 March 1999 and 20 August 1995 (T1). Driving under the influence of alcohol and/or drugs is very serious, given the potentially fatal consequences.
Some of the Applicant’s offences can be regarded as less serious such as some of his weapons and ammunition possession offences, dishonesty offences, and breaches of community orders. He has several drug-related convictions, including for the possession of cannabis and methylamphetamine and for the cultivation of cannabis. This Tribunal has often regarded drug offences as being serious because of the harms they cause to society and the crimes they promote. I note that most of the Applicant’s drug convictions seem to be associated with his personal use and they are likely to be at the lower level of seriousness for that type of offending. His 11 December 2019 offence of “possession of prohibited drug with intent to sell or supply (methylamphetamine)” is far more serious, given the quantity found by police and as indicated by the 20-month cumulative prison sentence. On 6 August 2019, the sentencing Judge also described the “supplied a prohibited drug namely methylamphetamine” offence as “the most serious offence” of those before him. This was the offence whereby the Applicant admitted supplying less than a gram of methylamphetamine to friend (R1/G7/49-50). The following passage from the sentencing transcript also gives some context to the Applicant’s weapons offences being at the less serious end of the scale for those types of offences, but slightly more serious given the volume and combination with methylamphetamine (R1/G7/52):
The State accepted that you should be sentenced on the basis that some of the ammunition would have worked with the firearms but some not and I accept that position. I also accept the submission made on your behalf that, in the main, the firearms, handguns and various bits and pieces of firearm accessories and the ammunition were essentially part and parcel of an eclectic collection of materials you’d acquired over many years.
I accept that many of the firearms and parts had been given to you by friends on farming properties and other items had been left by previous tenants. This is not a case in which your being sentenced on the basis the firearms could only ever have been used, intended for sale or for some illegal purpose.
Having said that, the possession of the firearms and ammunition occurred in the context that you were also in possession of significant amounts of methylamphetamine, albeit for your personal use, and other drugs and other drug-related material.
I now turn to the sentences imposed by the courts (para 8.1.1(1)(c) of Direction No 90). The Applicant has a lengthy criminal history, but he has not received substantial prison sentences when compared to the length of his record. His longest sentence was the 32 months imposed on 23 June 2020 for offences including the “possession of prohibited drug with intent to sell or supply (methamphetamine)” offence, for which he received a 20-month cumulative prison sentence. As I have outlined above, he had previously received a suspended sentence on 6 August 2019, but was resentenced after breaching that sentence and the community-based orders imposed by his reoffending.
Other prison sentences imposed on the Applicant have included the following sentences on:
(a)15 June 1992: a 12-month term of imprisonment for “going armed whilst in public”;
(b)19 August 1992: a one-month term of imprisonment for “breach of a CSO [community supervision order];
(c)30 June 1999: a four-month term of imprisonment, suspended for 18 months for “no motor drivers licence – under suspension”;
(d)8 September 2000: a six-month term of imprisonment for “no motor drivers licence – under suspension”, and was released on 6 January 2001 after serving approximately four months;
(e)3 July 2009: seven months’ imprisonment, suspended for 18 months for “no authority to drive – suspended”; and
(f)10 December 2009: eight months’ imprisonment, suspended for 12 months for “no authority to drive – suspended”.
Imposing sentences of imprisonment are usually a last resort in the sentencing hierarchy (PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22]), and so the fact that the Applicant received prison sentences for his driving offences is indicative that the sentencing Judges viewed these offences as being serious. However, much of his offending has been dealt with by way of fines, driving suspensions and disqualifications, and community-based orders which indicate that the sentencing Judges viewed this offending as being of a less serious nature.
I now turn to the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness (para 8.1.1(1)(d) of Direction No 90). The Applicant has a lengthy offending history over a period of approximately 30 years. He began his adult offending when he was 18 years old, and he offended up until December 2019 when he was 49 years of age. There have been several periods when the Applicant did not offend, including between 1995 and 1999, 2000 and 2005, 2013 and 2015, and 2016 and 2019. As I have mentioned, he has a very lengthy criminal and traffic history of over 130 offences. The types of offences the Applicant has committed have been similar in nature and severity (drugs, dishonesty, weapons possession, driving/ traffic offences). However, there is a slight trend of increasing seriousness as demonstrated by the most recent prison term he received on 23 June 2020 for 32 months, which included the serious offence of “possession of a prohibited drug with intent to sell or supply (methylamphetamine)”.
I also consider that there would be a cumulative effect of repeat offending given the number of offences committed over a 30-year period, numerous court attendances and sentences of imprisonment. This would have had the effect of burdening the resources of police, the courts and corrective services which are ultimately funded by the taxpayer (para 8.1.1(1)(e) of Direction No 90).
There is no evidence that the Applicant has provided any false or misleading information to the Department (para 8.1.1(1)(f) of Direction No 90).
Paragraph 8.1.1(1)(g) of Direction No 90, requires me to consider whether the Applicant previously received any formal or other written warnings that further offending may affect his migration status. Despite his lengthy criminal history, he has not received any such warnings.
In summary, the Applicant’s offences range from those of a less serious nature such through to the serious drug offence of “possession of a prohibited drug with intent to sell or supply (methylamphetamine)”. The Applicant’s offending is frequent, often repetitive in nature, and he has not been deterred by fines, court-imposed orders (which have included opportunities for rehabilitation), suspended and actual terms of imprisonment. His offending has occurred over a lengthy period of more than 30 years. There is a slight overall trend of increasing seriousness in his offending.
I find that paragraph 8.1.1 of Direction No 90, the nature and seriousness of the conduct, weighs strongly against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 90)
Paragraph 8.1.2(1) of Direction No 90 provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

Paragraph 8.1.2(2) of Direction No 90 provides, in part, in relation to assessing risk:
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the noncitizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of the harm (para 8.1.2(2)(a) of Direction No 90)
Broadly speaking, I am required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should he engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 90).
The Applicant has committed offences of a general nature including weapons possession offences, dishonesty and stolen property offences and breaches of court-imposed orders including violence restraining orders and community-based orders. The acquisition and possession of weapons without a licence can result in dangerous weapons being possessed by persons who lack the skills to operate and store them safely, and who may be unsuitable to own them, and those weapons being used in criminal offences. The nature of the harm could potentially be very serious and could include physical injury and fatalities. The nature of the harm if the Applicant were to commit further general offences is varied and may include financial and psychological harm to members of the Australian community and increased costs to the community including increased insurance premiums.
The nature of the harm if the Applicant were to commit further drug offences is varied. Purchasing and possessing drugs supports the illicit drug trade in the Australian community. The prevalence of drugs in the community causes harm to the community on many levels, including drug related crimes such as violence and theft, increases in property and health insurance premiums, as well as mental and other health issues for drug users, and the negative impact that this can have on their families.
Driving offences can potentially be very serious and can result in physical and psychological injuries to innocent road users. Licensing rules exist to ensure that persons driving cars are appropriately qualified and safe to do so. Although the Applicant has repeatedly driven without a licence, he does not appear to be a dangerous or negligent driver. He has a conviction for driving under the influence of a drug in 2019, however his last conviction for driving under the influence of alcohol was in 1999. Given that an underlying objective of these laws is road safety, further contraventions of such laws could have serious consequences.
If the Applicant was to commit a sexual offence, the harms that could result to members of the Australian community are potentially very serious and could include psychological harm and physical injuries. I do not, however, think that there is any likelihood of this occurring. The Applicant’s first and last sexual offences occurred when he was 16 years old. He has not subsequently had any such convictions and is now 52 years old.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 90)
Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (sub-paras 8.1.2(2)(b)(i) and (ii) of Direction No 90).
As I have outlined above, the Applicant has a lengthy and frequent criminal history as an adult over a period exceeding 30 years. He also committed offences as a juvenile. He has continued to offend with numerous similar offences, being undeterred by fines, community-based orders, suspended and custodial sentences of imprisonment. More recently, he did not take the opportunity given to him by the sentencing Judge on 6 August 2019 to engage in community supervision and targeted interventions. He attended supervision, but otherwise his compliance was limited. He failed to attend counselling (only attending one session), tested positive to methylamphetamine on three out of five urinalysis tests, and reoffended (R1/G6/42-43). On 23 June 2020, the sentencing Judge commented that (R1/G6/45 and 46-47):
It seems, however that you completely failed to embrace this opportunity and you reverted to drug use offending very shortly after you were placed on the orders.
…
Insofar as the conditional suspended imprisonment orders are concerned, you breached those by reoffending. You’ve breached them three times within four months. You made no genuine efforts to engage in the orders and you reoffended in a similar way shortly after.
An Adult Community Corrections Parole Assessment report from January 2021 made similar comments to the 23 June 2020 sentencing Judge regarding the Applicant’s poor response to supervision (R3.a/279):
With regard to Mr Guttridge’s most recent period of community supervision, it is noted that his compliance with his Community Based Order requirements was less than satisfactory. While he generally attended supervision as directed, his engagement in supervision was poor. Despite efforts to facilitate his engagement in programmatic intervention, he attended only one session of private Psychological counselling. The feedback from the Psychologist revealed that he was not forthcoming and honest regarding his circumstances, and demonstrated an unwillingness to engage. Review of Departmental records reveal that his compliance was also marred with poor health, ongoing drug use and recidivism. Mr Guttridge provided three positive urinalysis results to both amphetamine and methamphetamine. He was offered support to address his illicit substance use, however he initially declined assistance. Despite further efforts and several clear directions to attend substance use counselling, Mr Guttridge ultimately attended Wungening for substance use counselling, however after initial engagement, he failed to attend subsequent appointments.
The Applicant’s history of offending, poor compliance with supervision and his failure to engage in rehabilitation opportunities suggests there is some likelihood of future reoffending.
A “Level of Service Risk Need Responsivity” initial assessment of the Applicant by the Department of Justice dated 4 February 2021 stated that the Applicant was an “over-all high risk of general offending” for the following reasons (R3.a/273-274):
A LS/RNR was administered on 25/11/2020 to determine his criminogenic needs. Mr Guttridge obtained very high scores across pro criminal attitude and alcohol/drug problem and high scores across criminal history. Mr Guttridge obtained medium scores in the antisocial pattern, companions and leisure/recreation domains. These domains contribute to his over-all high risk of general offending.
The Applicant has a history of drug use. On 6 August 2019 the sentencing Judge described the Applicant as having “a longstanding usage of cannabis commencing at the age of 16, though less so in recent years” (R1/G7/53). However, he did not start using methylamphetamine until approximately 2018. He started using the drug every couple of days when his mother was terminally ill and started using it every day when she passed away (transcript/18-19). At that time, he was living on a rural property and “shut the whole world down” by refusing to open the gate or to answer his telephone (transcript/21). His sister described the Applicant as being like a “zombie” after his mother’s death. She stated that he would sit at the kitchen bench all day staring at their mother’s photo and that he would smoke all day and talk to the photo without any awareness of anyone around him (transcript/55). His grief and increased methylamphetamine use to cope, was a contributing factor to his more recent offending and breaches of his community-based orders. However, the Applicant had a long history of offending prior to his methylamphetamine use. He has some offences concerning cannabis but committed other offences such as weapons possession offences. Thus, there appear to be other factors that have contributed to his offending over the years. These included the Applicant and his sister having suffered physical and mental abuse at the hands of their mother’s former boyfriend as young children.
In a statement dated 8 June 2021, the Applicant stated that he no longer wanted to use drugs and that he would undertake grief counselling and see a psychologist in the community. The Applicant stated that drugs had ruined his life and had made him push people away who loved him. He stated that, “my life has been turned upside down and I have hurt so many people through my drug use. It doesn’t have a place in my life anymore” (R1/233). He also wants to do the Pathways Program in the community (R1/234), but there appear to be no firm plans in place for this. His sister, LB, gave evidence that the Applicant had asked her to find a counsellor for him in the community. She has waitlisted him with a counselling organisation, which will address issues including drug and alcohol use, and needs to advise them if the Applicant is released so he can commence. She thought the counselling was twice weekly (transcript/54-55; see also (A1/43, para [34]). LB also mentioned that they could both attend counselling together to address some of the issues from their abusive childhoods (A1/42, para [20]).
In his statement the Applicant said that the last time he used methylamphetamine was in 2019. He also confirmed this at the hearing (transcript/19). A Summary Breach Report from Community Corrections from January 2020 incorrectly states that the Applicant tested positive to amphetamine and methamphetamine in breach of his community-based orders at future dates in September, November, and December 2020 (R3.a/276) when the Applicant was in prison. He in fact tested positive in 2019, not 2020. I therefore accept that the Applicant has not used drugs since December 2019. As well as having insight into his drug use, this period of abstinence may assist him not to relapse to drug use if he is released into the community.
The Applicant has undertaken some, albeit limited, rehabilitation. The Applicant’s Parole Review Report from February 2021 states that his treatment assessment had not been completed. However, it stated that he had attended 14 Narcotics Anonymous sessions (R3.a/287). At the hearing he described initially being reluctant to attend, but that after five or six sessions he really enjoyed the sessions and started to talk more (transcript/21). A letter from Acacia Prison also confirms that the Applicant voluntarily attended 12 Recovery from Addiction meetings, and that these meetings were conducted by other prisoners who were trained and supervised by staff from the Prison’s Programs Department (R2.b/243). The Applicant also stated that he had voluntarily seen a psychologist in immigration detention, which his sister confirmed (A2/289; A1/42). Seeking out the psychologist and undertaking Narcotics Anonymous and Recovery from Addiction meetings is positive but was not of an intensive nature (such as the Pathways Program) and there are no reports from facilitators detailing any treatment gains made by the Applicant. It is likely he will need more intensive treatment in the community to reduce his risk of relapsing to drug use.
As well as undertaking counselling, the Applicant has a comprehensive plan for when he is released into the community. He plans to live with his elderly stepfather who has health issues and to help care for him. The Applicant also has an offer of accommodation from his sister LB. Currently the Applicant’s sister is undertaking this role, but his stepfather would prefer a male carer (transcript/40). The Applicant also plans to “get straight back to work” (A2/289, para [23]) and has two possible employment options. He has a forklift ticket (which needs to be renewed) and plans to obtain employment loading containers (A1/289, para [28]). His nephew has also provided a statement that he is a foreman with a company he has worked at for 10 years and is willing to offer the Applicant employment (A1/39). The Applicant also has skills and work experience as a mechanic having been self-employed in that industry (transcript/12). He also wants to resume his care of his 17-year-old twin sons who have autism by helping to look after them on the weekends. He plans to get a drivers’ licence. His evidence at the hearing was that he was currently not suspended from driving and that he had paid off his fines in prison (transcript/19). Undertaking employment and caregiver activities are positive and meaningful uses of the Applicant’s time and will likely provide the Applicant with the motivation not to relapse to drug use or to reoffend. Having a drivers’ licence, if he can obtain one, will mean that the Applicant is driving lawfully.
The Applicant reportedly had good prison behaviour. The Applicant’s Parole Review Report also states that he was employed in the metal shop, that he was “always polite and respectful” and had “a positive team approach and always follows all instructions given to him”. The Report also described good prison behaviour and the Applicant being “quiet”, “polite and respectful in his interactions with staff and fellow prisoners” and “follows all instructions given by officers, responds well to authority and follows the rules and regulations of the block which is reflected in no prison charges nor negative incidents recorded” (R3.a/286-287). Although prison and immigration detention are controlled environments, the comments that the Applicant is respectful and responds well to authority are positive. I would be concerned about his ability to reintegrate into the Australian community if this behaviour was poor.
The Applicant was granted Parole by the Prisoners Review Board (PRB) on 6 April 2021 (R3.a/261). He was released on 10 April 2021 into immigration detention. Unfortunately, his parole period expired on 10 August 2022 and so he will not have a period in the community where he is subject to parole supervision and conditions, which could assist with his reintegration into the community. In their reasons for granting parole, the PRB stated the view that if he was released into the community on parole, he would not pose an unacceptable risk to the safety of the community. They noted his willingness to engage in treatment in the community, his positive prison conduct, his participation in voluntary prison programs and his parole plan which included possible self-employment and support from family. However, the PRB imposed numerous conditions on the Applicant including a prohibition on weapons possession, not to consume alcohol, not to enter licensed premises, to undertake urinalysis, to submit to random breath testing, to attend programs and counselling as directed, to comply with mental health treatment and to engage in employment, training or job seeking. The Applicant’s release on parole is positive because it shows that the PRB regarded him as not being an unacceptable risk with these conditions and supervision in place. This is a different situation to the one I am required to consider because I cannot impose conditions, nor is there a threat of returning to prison if there is a breach. However, the Applicant has self-imposed some of these conditions, including being willing to attend counselling in the community and being waitlisted to attend, and a plan to obtain employment. He also has support from his sister, LB, who is aware of his drug use and his offending and is determined to make him attend counselling and will not give up on him (A1/43, para [34]).
I found the Applicant to be honest when asked about his offending. He did not try to deny it. His evidence that some of the firearms and ammunition had been left at his property by friends and previous tenants, but that 80 percent was his (transcript/20), was consistent with the findings of the sentencing Judge on 6 August 2019 (G7/52). He was also forthright about his driving offences, admitting that (transcript/19):
I was stupid and that, and then I just caught in that rut where I got suspended and couldn’t get a licence because I was suspended. Once my suspension was up I had fines. I couldn’t get a licence because I had fines, so I just caught in that rut, and I just kept driving. And, yes, lo and behold I got picked up so many times …
The Applicant gave evidence that he is embarrassed about his offending and that “I made some poor choices in my life”. However, he has previously expressed “some level of remorse” to the sentencing Judge on 6 August 2019 but relapsed to drug use and reoffended (G7/54). The Applicant also had health issues at that time (G7/53), which did not prevent him from relapsing to drug use and reoffending. At the hearing of this application the Applicant said that he is 52 years old now and it was time for him “to grow up a little bit more” (transcript/24). However, my concern is that he continued to offend up until the age of 49 years. It cannot be said that the Applicant was young and immature at the time of his offending with such a long history of offending spanning 30 years and continuing into the Applicant’s 40s.
However, what may have contributed to the Applicant maturing is the cancellation of his Visa, his time in immigration detention and his realisation that he may be permanently separated from his twin sons, his two other adult children and other family members in Australia. He considers himself Australian and now appreciates that he is facing permanent removal to a country that is foreign to him. He is also worried that the twins may have to go into care if something were to happen to MD, the mother of his twins and that he will never see the twins again if he is removed from Australia (A2/288, paras [18]-[19]). The Applicant’s evidence was that he will not reoffend because “I don’t want to end up in the same situation as I’m in now; never again”. He expressed appreciation that if he was given the chance to stay in Australia and reoffended that, “I’m pretty sure I’ll end up back in England” (transcript/24).
In summary, the following factors are protective and may reduce the likelihood of the Applicant relapsing to drug use and reoffending:
(a)The cancellation of his Visa, his time in immigration detention facing the prospect of deportation, and the realisation that if he offends again, he will be returned to the United Kingdom.
(b)The Applicant considers himself to be Australian and is facing the prospect of permanent removal from Australia and separation from his children, sisters, and other family members in Australia, to an unfamiliar country.
(c)His appreciation of the negative impact that his removal would have on his former partner, MD, his 17-year-old twin sons, his father, and his sister, LB.
(d)His resolve not to relapse to drug use and the fact that he has been abstinent from drugs in prison and immigration detention which will assist him to remain abstinent in the community.
(e)His voluntary engagement in Narcotics Anonymous and Recovery from Addiction meetings which shows a willingness to seek help and to address his drug use.
(f)His strong support from his sister, LB, and his willingness to undergo regular counselling in the community to address his unmet treatment needs issues.
(g)His insight into his offending and his good behaviour in prison and immigration detention.
(h)His comprehensive release plan to undergo counselling, obtain employment, care for his stepfather (who will provide him with accommodation), to help care for his twin sons, and to get a drivers’ licence.

In contrast, the following factors suggest that there is a likelihood of the Applicant reoffending in a general manner (including committing further firearms, drug, and traffic offences):
(a)The Applicant’s lengthy and frequent criminal history, with numerous similar offences, as an adult over a period exceeding 30 years.
(b)His previous poor compliance with community-based orders and failure to engage in rehabilitation despite being given the opportunity to do so.
(c)The prison assessment that he was an over-all high risk of general offending.
(d)Although he has engaged in Narcotics Anonymous and Recovery from Addiction meetings, he has not engaged in intensive treatment. His grief issues and issues associated with childhood trauma do not appear to have been fully treated.
(e)The Applicant has previously expressed remorse but has reoffended.
(f)The Applicant’s health issues have not prevented him from reoffending.
For the reasons I gave above at para [70], I do not think there is any risk of the Applicant committing any sexual offences.
I have balanced these factors and conclude that the Applicant is likely to be a moderate risk of reoffending in a general manner.
After considering the Applicant’s offending and the nature of the harm that could result from further offending, I am not of the view that the harm that would be caused is so serious that even countervailing considerations would be insufficient to justify revoking the Cancellation Decision (para 5.2(5), Direction No 90).
I therefore find that paragraph 8.1.2 of Direction No 90, being the risk to the Australian community should the Applicant commit further offences, weighs moderately against the revocation of the Cancellation Decision.
Summary on para 8.1 of Direction No 90
I have found that paragraph 8.1.1 weighed strongly against revocation of the Cancellation Decision and 8.1.2 weighed moderately against revocation of the Cancellation Decision. Therefore, overall, I find that primary consideration 8.1, being the protection of the Australian community, weighs moderately to strongly against the revocation of the Cancellation Decision.
Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 90)
Paragraph 8.2 of Direction No 90 requires decision-makers to have regard to family violence committed by the non-citizen:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.       the extent to which the person accepts responsibility for their family violence related conduct;
ii.      the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.     efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.
Family violence is defined in the interpretation section of Direction No 90 at para 4(1), which provides, in part:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a)an assault; or
b)a sexual assault or other sexually abusive behaviour; or
c)stalking; or
d)repeated derogatory taunts; or
e)intentionally damaging or destroying property; or
f)intentionally causing death or injury to an animal; or
g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
j)unlawfully depriving the family member, or any member of the family member's family, or his or her liberty.
(Original emphasis.)
Paragraph 8.2(2) of Direction No 90, stated above, sets out the circumstances where this primary consideration will be relevant. Firstly, it is relevant where the Applicant has been convicted of an offence, has been found guilty, or has had charges proven that involve family violence (para 8.2(2)(a)). The Applicant has been convicted of five counts of “breach of violence restraining order” with respect to violence restraining orders protecting his former partner, JH, for which he received fines.
The dates of these offences, and details from the police Statement of Material Facts, were:
(a)6 June 2010 (court date of 16 August 2010). The Applicant was located at the protected person’s house where he had been residing since 5 March 2010 with her permission. I infer that these were the facts that formed the basis of the Applicant’s conviction (R3.a/366) because there are two other statements of material facts for the same date for the offences of “unlawful damage” and “common assault” (R3.a/367) that did not result in any convictions.
The stated facts of these two additional offences that did not result in any convictions were that the Applicant and the protected person were drinking in the kitchen when he got angry for no reason. He went into the bedroom and threw a dresser drawer which broke. The protected person went outside, and he kicked the flyscreen door, damaging the grill and that he kicked the victim and smashed a chair in the front yard. At the first Tribunal hearing the Applicant denied ever being physically violent to JH, said that the dresser drawers were his and broke when he was moving, and that he kicked the flyscreen door because his arms were full of items he was carrying (R4/521).
(b)8 September 2012 (court date 10 September 2012). Police came to speak to the protected person about another matter and observed the Applicant on the curb across the road. He allegedly shouted abuse at the protected person from across the street and when he was in the back of the police vehicle (R3.a/361). These alleged facts were not put to the Applicant at the hearing, the transcript of the previous proceedings was not admitted into evidence, and I do not have any sentencing remarks before me.
(c)On 21 April 2013 (court date of 21 June 2013) the Applicant phoned the protected person and asked her not to hang up. Between 21 May 2013 and 22 May 2013, he sent the protected person 49 text messages and made seven phone calls to her (R3.a/353-354). At the hearing the Applicant admitted that he telephoned and texted the protected person after she telephoned and texted him (transcript/34-35).
In summary, this evidence tends to suggest that the Applicant was at JH’s house on 6 June 2010, despite there being a restraining order in place. He also admitted to phoning and texting her on 21 April 2013 and between 21 May 2013 and 22 May 2013, despite there being a restraining order in place. However, with respect to the police statement regarding the “unlawful damage” and “common assault” incidents, those statements are highly prejudicial, its authors have not been called and the Applicant has denied the facts under affirmation before the Tribunal. Also, there are no convictions on the Applicant’s record for those offences, and so I accept the Applicant’s evidence as to the version of events. That is, I find that those statements are not sufficiently independent or authoritative.
Other incidents from police detected incident reports that did not result in any convictions were put to the Applicant at the hearing. These included the following alleged incidents:
(a)A reported incident where the Applicant allegedly smashed the rear and front window of JH’s car with a baseball bat on 27 July 2015 (R3.a/403). The Applicant could not recall this incident (transcript/35).
(b)JH reported to police that she had returned home on 23 December 2012 to find the Applicant damaging mobile phones, throwing a plate with food on the floor and ripping a rear fly wire door off its frame (R3.a/411). The Applicant did not remember this incident and did not recall it happening (transcript/35).
(c)JM reported that she came home on 26 March 2011 to find the Applicant asleep. She noticed items damaged around the house but did not witness the Applicant damaging anything. When the Applicant woke up he allegedly stated, “You are going to get it you dog fuck cunt” (R3.a/417). At the hearing the Applicant said that it was “more than likely” he said that to JM, but he was not asked if he had damaged the property (transcript/35-36). His evidence was that the relationship was volatile and marred by mutual alcohol abuse and that JM would make similar statements to him too (transcript/36).
Except for admitting that he likely swore at JM on 26 March 2011, the Applicant has denied these incidents. For the same reasons I gave above regarding the statements of facts associated with the Applicant’s violence restraining order breach convictions, and because police did not witness these incidents which were self-reported by JH in the context of a volatile relationship, I find that these incident reports are not sufficiently independent or authoritative.
This conclusion is further supported by two statements from JH. A statement from JH dated 13 August 2020 refers to another incident on 14 August 2011 (R1/G13/105). The relevant part of the statement is:
I meet Michael in early December 2007 and we became a couple, our relationship was very toxic as I was a full blown functioning Alcoholic with mental problems and I created a lot of drama throughout our relationship, on the 14 August 2011 I had been drinking very heavily and pushed and pushed and antagonized Michael to hit me he finally lost his temper with me and pushed me out of his way as I was constantly in his face at that point I played on that and rang the police and told them he had hit me (which he hadn’t) and they suggested getting a Violent Restraining Order set on him which I did as now I was getting everyone’s attention and loving it, so I proceeded to the courts and filed for a VRO which was granted on 16/08/2011 … unfortunately for Michael it was a further 14 months before I was sober again and realized what I had done was illegal and very wrong of me so I presented myself back to the courts and explained what I had done and had the VRO Revoked, as there was clearly no grounds for it and I have with Michaels help remained sober since. Not long after that we no longer tried to be in a relationship but have remained very good friends. …
(Bold removed, but otherwise as original.)
In a more recent statutory declaration dated 12 May 2021 (R2.b/213), JH stated:
I met Michael 13.5 years ago when we were introduced through a mutual friend … Michael and I started a relationship that lasted 7.5 years. The relationship was toxic from the word go as I had a serious alcohol problem at one stage taking a VRO out on Michael which I should never have done. There were no grounds for the intervention as I was an alcoholic and needed to blame someone for my problems. I have now been sober since 2013. Michael and I are now the best of friends …
The Applicant’s evidence is consistent with these statements from JH which confirms her abuse of alcohol, the volatile relationship, that the Applicant did not hit her and that she obtained the violence restraining order despite their being no basis for her to do so. Although JH did not give evidence, her statement offers further corroboration of the Applicant’s evidence.
There is no doubt that the Applicant has five convictions for breaching violence restraining orders. However, did these offences “involve family violence”? In my view, the Applicant’s conduct does not meet the definition of family violence in paragraph 4(1) of Direction No 90. There is no evidence, nor is it likely that, living with JH with her consent, telephoning and texting JH and shouting abuse at JH in the presence of police coerced or controlled her, or caused her to be fearful. JH’s statements also suggest that she was not fearful or coerced by the Applicant. I also note the Applicant disagreed that his former partner would have been terrified or frightened by his verbal abuse (transcript/35-36). I am therefore not satisfied, on the balance of probabilities, that these offences involved family violence, as defined in paragraph 4(1) of Direction No 90.
Therefore, I find that the circumstances set out in paragraph 8.2(2) for this primary consideration to be relevant have not been met. Therefore, this primary consideration is not applicable.
The best interests of minor children in Australia affected by the decision (paras 8(3) and 8.3 of Direction No 90)
Paragraph 8(3) of Direction No 90 states that in making a decision under s 501CA(4), “the best interests of minor children in Australia” is a primary consideration.
Direction No 90 states that decision-makers must determine whether the decision under review is, or is not, in the interests of a child affected by the decision. The first three paragraphs of 8.3 provide:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of Direction No 90 sets out the factors that the decision-maker must consider:
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Great nieces and nephews and a nephew
The Applicant has seven great nieces and nephews, and a nephew, under the age of 18 years who live in Western Australia.
The children are:
(a)LB’s son, D, has four children. They are a 12-year-old boy, B; a nine-year-old girl, I; a seven-year-old girl, J; and a two-year-old girl, E.
(b)LB’s daughter, K, has a five- or six-year-old boy, H.
(c)The Applicant’s sister, N, has a son JA, who is 16 years old. She has two girls, but they are now 18 or over.
(d)The Applicant’s niece, ES, has a 10-year-old daughter, T.
There is minimal evidence regarding the Applicant’s minor great nieces and nephews and nephew, however, I will briefly outline some of the information concerning them that is before me.
In a statement dated 19 May 2021 (R2.a/179, para [5]), LB stated (with respect to her grandchildren, B, I, J, E and H):
My grandkids are very close with their uncle Mick. I picked them up from school the other day and they wanted to write a letter to the judge for Michael’s case. I has written letters and cards to him while he has been in prison and so has J. If Michael calls me while the kids are at my place they all fall over each other to get to the phone. He calls D a lot and talks to K when they can (she works a lot).
In this same statement, LB also stated that JA’s father is “an alcoholic, a drug addict and a pervert” and that JA is terrified of him. She stated that JA’s father “tells JA he will kidnap him and JA is terrified that his dad will come and abduct him. Mick is his saviour” (R2.a/179, para [7]). She stated that, “Both kids [a reference to JA and his older sister E who is now 18] sleep with their bedroom doors locked because they are terrified their dad is going to come home” (R2.a/180, para [8]). This evidence is supported by a handwritten letter dated 6 May 2021 from JA’s older sister, E, who stated (R2.a/173):
My mum, sister, brother and I have been through domestic violence in the past and my uncle is the only person I feel protects me and my family. I fear my dad is going to show up one day and without uncle Mick around, I feel my Dad would have free range and that terrifies me.
LB also stated that when the Applicant went to prison it “caused some nightmares and had a big emotional impact on the kids and grandkids” (R2.a/180, para [10]).
In a written statement made on 8 June 2021, the Applicant stated that he was like a father figure to JA (and his sisters) and that he saw them two to three times a week before he went to prison. He stated that if he could remain in Australia he would maintain a parent-like relationship and that if he was removed, they would be “pretty shattered” (R2.b/233).

A decision-maker must consider the expectations of the Australian community when making a decision under ss 501 or 501CA.
These expectations are set out in paragraph 8.4 of Direction No 90, which provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
I must give effect to the “norm” stipulated in paragraph 8.4(1) of Direction No 90, being that the Australian community expects non-citizens to obey Australian laws whilst in Australia. This will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future. The Applicant has breached this expectation by not obeying Australian laws, as evidenced by his lengthy offending history. Consequently, the expectation of the Australian community would be that the Applicant’s Visa should remain cancelled (para 8.4(1) and 8(4) of Direction No 90).
As is evident from the reference to the “norm” in paragraph 8.4(1) of Direction No 90, I am being told unequivocally what the community’s expectations are. Further, paragraph 8.4(4) of Direction No 90 confirms more explicitly that the Australian community’s expectations are what the Government deems them to be, because decision-makers are directed to proceed based on the Government’s views about community expectations without independently assessing them.
In this regard, I agree with the observations of Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143, which were adopted by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman). In Wightman, Deputy President Boyle stated, at [85]–[86]:
… Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH) at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
195.It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196.It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...
(Original emphasis and footnotes omitted.)
Further detail about the Australian community’s expectations with respect to certain types of conduct is given in paragraph 8.4(2) of Direction No 90. That paragraph states that the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paragraphs 8.4(2)(a)–(f). “Acts of family violence” fall within sub-para (a), however, I found above that the conduct associated with the Applicant’s breach of violence restraining order offences did not meet the definition of family violence. As I also noted above, he has juvenile convictions for “indecent dealing female under 16” and “carnal knowledge girl under 16” from when he was 16 years old and had sexual intercourse with his girlfriend who was 15 years old. I do not think that the circumstances of that offending fall within the category of “serious crimes against women” as contemplated by sub-para (c). In summary, the Applicant’s offending does not, in my view, fall within any of these categories.
Paragraph 8.4(3) of Direction No 90 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. I found above that the Applicant is likely to pose no risk of sexual reoffending, and a moderate risk of reoffending in a general manner (including committing further firearms, drug, and traffic offences). However, even if I had found he was a low risk, the community’s expectations as stated apply regardless. Further, paragraph 8.4(4) of Direction No 90 tells decision-makers that this consideration is about the expectations of the Australian community as a whole. It directs decision-makers to proceed based on the Government’s articulated views without assessing the community’s expectations in the particular case.
I have also had regard to the principle in 5.2(4) of Direction No 90, which states that Australia may afford a higher level of tolerance of criminal or other serious conduct by those who have lived in Australia since a young age. The Applicant is now a 52-year-old man who arrived in Australia as a 23-month-old child. As the Applicant has effectively lived in Australia for his entire life, I find that Australia would have a higher level of tolerance for him.
Overall, I find that paragraph 8.4 of Direction No 90, being the expectations of the Australian community, weighs moderately against the revocation of the Cancellation Decision.
Other considerations (para 9(1) of Direction No 90)
Paragraph 9(1) of Direction No 90 provides:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests
International non-refoulement obligations (paras 9(1)(a) and 9.1 of Direction No 90)
Australia’s international non-refoulement obligations do not arise on any of the submissions, material or evidence before me (para 9.1 of Direction No 90).
I therefore find that this other consideration of Australia’s international non-refoulement obligations is not applicable.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 90)
Paragraph 9.2(1) of Direction No 90 provides:
(1)Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The Applicant is 52 years of age. He has lived in Australia since he was a 23-month-old child. Since his arrival he has not travelled outside of Australia.
The Applicant suffers from several health conditions. He has pulmonary disease, deep vein thrombosis, emphysema, and asbestosis (R2.b/234). At the hearing he stated that he was not receiving any treatment or medication, but he did have an inhaler (transcript/18).
He has a history of mental health issues. He has tried to commit suicide on three occasions. He broke his back after trying to hang himself in 2014 and has ongoing pain. He said that prior to going to prison and whilst in prison he was on medication for severe depression. The Applicant stated that his mental health has not been good since he has been in detention (R2.b/234, para [38]). The Applicant’s evidence was that he feared going to the United Kingdom and that he does not know anyone there. His evidence was that (R2.b/237):
If I go to the UK I won’t have any reason to keep fighting. What’s the point really? Everyone I am fighting for is in Australia.
MD also expressed concern for the Applicant’s mental health and wellbeing if he was returned to the United Kingdom. She stated, “I think if Mick went to the UK he would seriously hurt himself” (A1/37, para [17]) and that, “I think he would kill himself” (R2.b/225). His sister, LB, stated that, “Michael has no family in England and if he is deported I fear for his wellbeing” (R1/G14/114). LB also stated at the hearing that although they have some family members in the United Kingdom, they were not willing to offer any support (transcript/58).
It is likely that the Applicant would be eligible to receive treatment under the National Health Service if he was returned to the United Kingdom. Although there are no substantial language or cultural barriers that the Applicant would face if returned to the United Kingdom, I have concerns about his mental health and a possible risk of the Applicant self-harming, if he was to return to the United Kingdom due to:
(a)his mental health history;
(b)his fears about returning to a country that is unfamiliar to him after living in Australia for 50 years;
(c)his mental health history and his statement that he “won’t have any reason to keep fighting”;
(d)the concern of his former partner and sister that they fear he may harm or kill himself;
(e)his lack of any social supports from friends or family in the United Kingdom;
(f)being permanently separated from his children and family members in Australia which would likely add to his emotional hardship; and
(g)his reliance on his family in Australia for support, particularly his sister LB, who will assist and support him to attend counselling. Without this support, I am concerned that the Applicant may not continue with his drug rehabilitation and that he would be at risk of relapsing.
In Webb v Minister for Home Affairs [2020] FCA 831; (2020) 170 ALD 511 at [100], Anastassiou J stated that, “I also agree that common knowledge is a sufficient basis for finding … that the standards of health care, education, social welfare and housing support in the United Kingdom would be ‘comparable’ to those in Australia”. However, I do not have any evidence as to whether the Applicant would be entitled to any social security payments in the United Kingdom. Although he is likely to have the same rights as other United Kingdom citizens, I am uncertain whether he would be eligible to receive social security payments because he has not lived or worked in the United Kingdom.
The Applicant is also worried about his ability to find employment in the United Kingdom. He is relying on his business and family contacts in Australia to obtain employment but does not have any connections to employment in the United Kingdom. He is dyslexic and has difficulty reading and writing. His back injury also limits him undertaking manual labour (R2.b/237). The Applicant’s deportation, criminal history, and difficulties with literacy, are likely to pose an impediment to his seeking employment in an unfamiliar country where he has no family or social contacts.
The parties also made written submissions about whether the Applicant would be able to access any money he had in superannuation if he was returned to the United Kingdom. As he is 52 years of age there are another eight years until he turns the “preservation age” of 60 which would allow him to access his superannuation funds. Until that time, he may be able to apply for the release of some of his superannuation funds on compassionate grounds. However, whether these are met is a discretionary decision by the regulator. Also, I do not have any information as to how much the Applicant has invested in superannuation. The Applicant’s difficulties with literacy may also be impediments if he makes an application for release of superannuation from the United Kingdom. I therefore find there is uncertainty about whether the Applicant can access the funds upon return to the United Kingdom and as to the amount of the funds that would be available. As such, it is difficult for me to assess on the balance of probabilities when and whether any superannuation funds would be available to help the Applicant establish himself if he was returned to the United Kingdom.
Overall, I find that the Applicant is likely to experience emotional hardship if he is separated from his immediate family in Australia and returned to an unfamiliar country that he has not been to since he was a child. His mental health issues are also likely to be a significant impediment if he is removed and there is a risk of self-harm. He may also experience some difficulty and hardship establishing himself and maintaining a basic standard of living if he were to return to the United Kingdom due to his deportation, criminal history, literacy issues, difficulty undertaking manual labour, and lack of contacts or support networks in the United Kingdom. Accordingly, I find that paragraph 9.2 of Direction No 90, being extent of impediments if removed, weighs strongly in favour of revocation of the Cancellation Decision.
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 90)
Paragraph 9.3(1) of Direction No 90 provides that:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no information before me regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations).
There is, however, a statement dated 13 August 2020 from JH (R1/G13/105-106), who was the person protected by the violence restraining orders that the Applicant breached. In her statement JH stated that she has been the Applicant’s friend for the last 12 years. She stated that:
We would suffer a tremendous loss if Michael were deported. In fact if it wasn’t for Michael I certainly wouldn’t be here as he saved me when I tried to commit suicide.
I do not, however, think that it is accurate to describe JH as a victim, given that in this statement she said that she lied to police about the Applicant hitting her and that she obtained the violence restraining order despite there being no basis for her to do so (R1/G13/105).
Consequently, I give this other consideration neutral weight.
Links to the Australian community (paras 9(1)(d) and 9.4 of Direction No 90)
Paragraph 9.4 of Direction No 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 to 9.4.2 below.
This requires consideration of the strength, nature and duration of an applicant’s ties to Australia and the impact of non-revocation of a cancellation decision on Australian business interests.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1(1) of Direction No 90 provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Further, paragraph 9.4.1(2) of Direction No 90 provides that:
(2)Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen 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.
If the Applicant is removed from Australia, it would have a detrimental impact on his remaining family members who are citizens or permanent residents in Australia.
As I have mentioned above, the Applicant’s former partner, MD, is struggling to care for the twins by herself, and the burden of caring for them alone is having a physical and emotional impact on her. She is also at risk of physical harm from ME who lashes out during angry outbursts. Prior to the Applicant going to prison he helped pay for items for the twins, such as school fees and excursions, contributed to purchasing items the twins had broken and provided practical support by fixing and repairing items and walls when they were damaged by ME. MD was able to call the Applicant for assistance and his caring for the boys most weekends, and visiting them after school, provided her with some respite. MD stated that, “If Mick is not allowed to stay in Australia I will be financially and emotionally affected and may be at risk of harm as the boys get older and more out of control as young men” (A1/38, para [19]). MD is also worried about the negative impact on the twins if the Applicant is removed from Australia. The twins’ general practitioner also stated, with respect to MD (A1/34):
MD is a single mother struggling to provide adequate care for the children. She has significant stress and currently no respite from her significant responsibilities. MD also has a history of nephrectomy [having one kidney].

I find that MD will face severe hardship, practically, financially, psychologically, and possibly physically, if the Applicant is removed from Australia. MD further stated that, if the Applicant is removed from Australia, it would detrimentally impact their son K, R (their adult daughter) and the rest of the family in Australia.
K is a young man of 25 who is trying to assist his mother, MD, with the care of the twins. MD described K as “too worried about going anywhere in case ME hurts himself”. She said that K had a girlfriend but broke up with her because he did not want to go out and leave MD at home with the twins (A1/37, para [14]). MD described K’s life as being “in limbo” and that K feels obliged to help her. LB, K’s aunt, described K as “doing the best he can but he’s 25. He needs a life of his own.” (transcript/47 and 56). If the Applicant can stay in Australia, K is likely to be able to leave home and move forward with his life, without being fearful of his mother’s safety and being obliged to assist with the twins. If the Applicant was removed, K is likely to suffer significant emotional detriment because he will feel obliged to continue in his role as a carer for his younger twin brothers. This is a significant burden for a young man of 25.
In a written statement dated 3 August 2022 (A1/41, para [19]), LB described the emotional impact she would suffer if the Applicant was removed from Australia:
… if Mick was removed from Australia it would kill me. We lost our mum – that feels very raw still. She was my best friend. It was me, Mick and mum for such a long time and we went through such a hard time together. It would break me if I lost Mick too. I was seeing a psychologist a while ago – the main things we spoke about were losing mum and the potential of losing Mick.
LB also gave the following evidence at the hearing (transcript/56):
If you want to take my left arm with you, because that’s what it’s going to do. We come out as a family of four; now I’ve only got Mick left. I’ve got sisters, I’ve got kids, I’ve got grandkids, but he’s my baby brother. I need him and he needs me. We wouldn’t be here if it wasn’t for me, because I was going to fight to the death to keep him here. His ex partner said that he doesn’t want to fight, and I told him it was too bad; “I’m head of the family now, you’ve got no choice, you’ve got to fight.” Mum told me to look after everybody and that’s what I’ll damn well do.
I find that LB would suffer emotional and possibly psychological detriment if the Applicant was removed from Australia.
The Applicant’s sister, N, also wrote in a statement dated 18 May 2021, that (R2.a/177-178):
Mick has always been a good mate, neighbour and friend you can turn to and depend upon in times of despair. My sister, B and I depend on Michael a lot and he is the closest thing to a father that our children have. B and I have both suffered physical and emotional abuse whilst our children have endured mental, emotional and even sexual abuse.
Despite being born in England he has always called Australia home and known in his heart that he is as much an Australian as his entire family. I know my brother is a good man with a huge heart and a [sic] family that truly would suffer should he be deported, as he is extremely loved and needed by us all.
I find that N and B would suffer emotional detriment if the Applicant is removed from Australia.
The evidence concerning the negative impact that removal of the Applicant from Australia would have on MD, K and LB, is further confirmed by Applicant’s adult daughter, R. R submitted a statement dated 13 October 2022 regarding the detrimental impact on her, K, ME, MA, LB and her mother, if the Applicant was removed from Australia (A3):
The impact it would have on me if my dad leaves the country would impact me a lot he would miss out on the little things like walking me down when I get married he would miss out on his first grandchild he also has 2 stepchildren and My partner he Hasn't met yet. The impact it would have on my brother K would be the same really not having the man he can talk to and ask him for advice on how to fix car motor bikes ect. MA and ME with there autism they need to have there dad around all the time to have that familiar face with him not being around they will slowly forget who there dad is seeing him on face time they slowly lose interest and they walk away so there's really no point. With dad not being here it will hit MD and LB very hard dad is the glue to the family and is always there when they need him.
(As original.)
The Applicant has a stepfather, G, whom he is very close to and regards as his father. The Applicant, his mother and sister LB, had previously been subject to domestic violence and abuse from their mother’s former boyfriend. The Applicant’s mother later met G who became a loving father to the Applicant and his siblings when they were children. In a handwritten statement dated 25 February 2021, G wrote (R2.a/164):
I recall one day 40 years ago, when the 4 of them came in and asked if it would be ok if they could call me dad. I felt 10 foot tall when they said that to me. And from this day till now, I’ve look on the four of them, [as] my own flesh and blood. I don’t look at Michael as being my step-son. He is my son!
G described being in poor health earlier in this statement (R2.a/163):
I would just like to mention that 12 months ago I had a stroke. I had a blood clot on my brain. This affected my speech rather badly, plus my right arm, the one I write with, was badly damaged. I have limited use of my right hand, and I have very little feeling in my fingers and thumb. I have problems with my thought processes. I have 2 stents in my heart, plus a pacemaker. I also have spind bida [bifida]. I have had major surgery done [on] my spine.
He also described feeling guilt at the prospect of the Applicant being deported and the effect it was having on his health (R2.a/164-165):
And I believe I have let my son down. [The Applicant’s mother] and I discussed years back about changing LB and Michael, both British citizens to Australian citizens, but we never got around to it. If we had, Michael wouldn’t be in this position now, awaiting deportation. I have carried this guilt around with me since I received the letter from your office [the Department]. I’ve been in hospital twice in the last 3 months, thinking I was having another stroke.
The Applicant’s sister, LB, is currently caring for G (transcript/54). The Applicant will become G’s carer if he is released into the community because G would prefer the Applicant to care for him. In a statement dated 8 June 2021, the Applicant said (R2.b/232):
Then my mother met G, who I consider to be my dad. I am supposed to be his sole carer – he doesn’t want women looking after him. He had a triple bypass and has slurred speech from strokes. I was his sole carer when I went to prison. I used to go to his place all the time. He is dying of a broken heart since mum passed away. If I was not here I don’t think he will last long.
The Applicant’s father cannot travel due to his health conditions. If the Applicant is removed to the United Kingdom G will never see the Applicant again, and the Applicant will not be able to care for him. I find that G would suffer emotional and practical detriment, and that his health may suffer further, if the Applicant is returned to the United Kingdom.
In a handwritten letter dated 6 May 2021, the Applicant’s adult niece, E, also described how she would be negatively impacted if the Applicant was removed from Australia. E described how she had been a victim of domestic violence from her own father and looks to the Applicant for protection. She also stated (R2.a/173):
My uncle has done a lot for me over my whole life and it would truly break my heart if he wasn’t here for me to repay that by making him proud, he will miss my graduation, me getting my licence, having children and every milestone in my adult life that I pictured him by my side, my biggest dream is for my uncle to walk me down the isle one day.
I find that E would suffer emotional detriment if the Applicant is removed from Australia.
As I mentioned above, the Applicant arrived in Australia as a small child when he was 23 months of age. He has therefore resided in Australia for approximately 50 years comprising all his adult years. He has not left Australia since his arrival. The length of time he has resided in Australia is a strong tie.
The Applicant arrived as a small child, and although he first offended as a juvenile, it cannot be said that he offended soon after arriving in Australia.
The Applicant does not appear to have made many positive contributions to the community such as community or volunteer work, apart from employment and being a supportive father and uncle to his family members. I note there is a statutory declaration from JF, who has known the Applicant for approximately 16 years (R2.b/227). JF described that when the Applicant was working for himself as a mechanic, he helped repair JF’s car and provided half the parts if JF helped him with the labour for a carton of beer. JF also said that the Applicant taught him how to fix the car to save him money in the future. Any positive contributions are, however, somewhat diminished by the Applicant’s substantial criminal history in Australia over a 30-year period.
All the Applicant’s immediate and extended family, who have a close relationship with the Applicant, are in Australia. He has numerous friends and other family members in Australia who have written statements in support of him (R1/G13; G14; R2.a/163-198; R2.b/221—223; R2.b/227-229; A1/36-43). His close relationships with family friends are also indicative of the Applicant’s close ties to Australia.
Overall, the Applicant has strong ties to Australia because of the length of time he has lived in Australia, although that weight is slightly diminished because of his minimal positive contributions (and particularly his very lengthy history of offending). Nevertheless, all his immediate family members reside in Australia, and there are numerous family members including MD, LB, B, K, R and G who would suffer significant detriment if he was removed to the United Kingdom.
I find that paragraph 9.4.1 of Direction No 90, being the strength, nature, and duration of the Applicant’s ties to Australia, weighs strongly in favour of the revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 9.4.2(3) of Direction No 90 provides that:
(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This consideration does not arise on the material before me and is therefore not relevant.
The future needs of ME and MA after the age of 18 years
The parties agreed that it would be appropriate for me to consider the twins needs after they reach the age of 18 years as a separate other consideration (transcript/8).
The evidence is that there is likely to be little to no improvement in the twins’ development after they reach the age of 18 years and that they are likely to continue to need a very high level of ongoing care for the rest of their lives.
The letter from the twins’ general practitioner dated 28 March 2022 referred to the ongoing care they will require in adulthood (A1/34):
Both ME and MA will need ongoing continuous care for the rest of their lives. ME’s care is likely to become even more difficult for MD as he grows larger and she ages.
MD also said in a recent statement (A1/38):
The boys will have high care needs their whole lives. Their needs will actually increase after they turn 18 because they won’t be going to school anymore. They will always be dependent on other adults to care for them and ME in particular is reliant on care 24/7. This will not change as they get older and I suspect it will become more difficult as they get stronger, bigger and go through puberty….
Above, I mentioned that MD plans to meet with the NDIS agency to discuss what arrangements can be made for when the twins finish school. MD’s evidence was that she thought she may be able to get MA into an active work facility, but she is not sure what arrangements could be made for ME who has a higher level of disability and is unlikely to be able to engage in an active work facility. She thought she could possibly engage a carer a couple of days a week to take ME to swimming lessons.
The twins could possibly return to the respite care that they occasionally had on weekends prior to the COVID-19 pandemic. Nevertheless, apart from this limited respite, the bulk of the twin’s care would fall to MD, and she is already having difficulty coping, even though the twins are currently at school during the day. She is likely to encounter increased difficulty caring for ME after he turns 18 because his inability to engage in an active work facility would mean that she would have to care for him at home during weekdays as well.
MD is now 53 years of age. Although she is determined that the twins will never go into a care facility, she conceded that if the Applicant was deported and anything happened to her, the boys would need to be placed in a care facility.
If the Applicant can remain in Australia, he will be able to assist, practically and financially, with the care of the twins when they are adults. I am concerned that MD is at breaking point and that it is not sustainable for her to indefinitely care for the boys after they reach the age of 18 years, even with assistance from the NDIS and respite care. K is currently assisting, but he cannot live at home and help care for his siblings when they are adults. I am concerned that when the twins reach adulthood, MD will continue to be at risk of physically harm, particularly from ME, and if anything were to happen to her, the twins would have to go into a care facility. Their ongoing wellbeing in adulthood would be better assisted by being cared for by a parent, or preferably both parents, and they are less likely to have to go into care in the future if the Applicant remains in Australia.
I find that the future care needs of ME and MA after they turn 18, weigh in favour of revocation of the Cancellation Decision. Both will require constant and ongoing care for the rest of their lives and will never be independent. I find that ME’s interests weigh very strongly in favour of revocation of the Cancellation Decision. His disability is the most severe and he will require more constant care if he is not suitable to engage in an active work facility. I find that MA’s interests weigh strongly in favour of revocation of the Cancellation Decision. This is because he has the potential to engage in an active work facility, but he nevertheless has a severe disability and requires ongoing care and supervision.
the weighing exercise
The Applicant does not pass the character test under s 501 of the Migration Act.
I have therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 90.
For the reasons set out above, I made the following findings about the relevant primary considerations in Direction No 90. These were:
(a)The protection of the Australian community primary consideration weighed moderately to strongly against the revocation of the Cancellation Decision.
(b)After an analysis of the circumstances of the Applicant’s violence restraining order breaches and police incident reports, I concluded that the definition of family violence had not been met, and therefore that primary consideration was not applicable.
(c)The best interests of the Applicant’s minor great nieces and nephews and nephew weighed moderately in favour of the revocation of the Cancellation Decision. The best interests of the Applicant’s twin 17-year-old sons who have autism and other special needs weighed very strongly in favour of the revocation of the Cancellation Decision.
(d)The expectations of the Australian community weighed moderately against the revocation of the Cancellation Decision.
I made the following findings with respect to the other considerations that were relevant. These were:
(a)The extent of impediments if removed weighed strongly in favour of the revocation of the Cancellation Decision.
(b)The impact on victims was given neutral weight.
(c)The Applicant’s links to the Australian community weighed strongly in favour of the revocation of the Cancellation Decision.
(d)The future needs of ME and MA from the age of 18 years were also considered as an additional other consideration. I found that ME’s needs weighed very strongly, and MA’s needs weighed strongly, in favour of the revocation of the Cancellation Decision.
Although primary considerations are generally to be given greater weight (para 7(2) of Direction No 90), they are not hierarchical and other considerations can outweigh primary considerations.
Although, the primary consideration of the protection of the Australian community weighed moderately to strongly, and the expectations of the Australian community weighed moderately against the revocation of the Cancellation Decision, I find that they are significantly outweighed by the best interests of the Applicant’s twin 17-year-old sons who have autism which weighed very strongly in favour of the revocation of the Cancellation Decision. In my view, this factor alone is a sufficient reason, which carries such significant weight, such that I am satisfied that the Cancellation Decision should be revoked (Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531, [64]).
The remaining considerations that weigh in favour of the revocation of the Cancellation Decision further support the overall weighing exercise being in the Applicant’s favour. These were: the impediments if removed consideration and the links to the Australian community consideration which both weighed strongly; and the future needs of ME and MA from the age of 18 years which respectively weighed very strongly and strongly, in favour of the revocation of the Cancellation Decision.
In other words, there is another reason why the Cancellation Decision should be revoked. Therefore, the correct or preferable decision is to set aside the Reviewable Decision, and to substitute a new decision that the Cancellation Decision should be revoked.
Decision
The Reviewable Decision, being the decision of a delegate of the Respondent dated 8 April 2021, is set aside and substituted with a decision that the cancellation of the Applicant’s Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act.

I certify that the preceding 215 (two hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

..........[Sgd]..........................................................
Associate
Dated: 2 March 2023

Date of hearing:

Date final submissions received:

18 and 28 October 2022

11 November 2022

Representative for the Applicant: Ms A Graziotti, Estrin Saul Lawyers

Representative for the Respondent:

Mr MGS Crowley instructed by Mr H McLaurin, Minter Ellison Lawyers

[2023] AATA 338

2 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Appeal

Natural Justice