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

HDWH and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 4064 (18 November 2022)
Division:GENERAL DIVISION
File Number(s): 2021/3653
Re:HDWH
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member B J Illingworth
Date:18 November 2022
Place:Adelaide

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review dated 2 June 2021.
.....................[SGND]...................................................
Senior Member B J Illingworth
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – serious criminal record – assaulting a police officer – public nuisance – armed robbery – grievous bodily harm - possession of drugs – criminal record when Applicant was a child - whether “another reason” to revoke visa cancellation – Ministerial Direction 90 – decision under review is affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Youth Justice and Other Legislation (Inclusion of 17 – year – old Persons) Amendment Act 2016 (Qld)
Youth Justice Act 1992 (Qld)
Crimes Act 1914 (Cth)
Acts interpretation Act 1954 (Qld)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Afu v Minister for Home Affairs [2018] FCA 1311
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member B J Illingworth
18 November 2022
INTRODUCTION

The Applicant was born in New Zealand to Australian citizen parents on 24 June 1999. His father played no part in his life. In May 2003, when the Applicant was 3 years of age, he and his mother moved to Australia where the Applicant has remained.
The Applicant’s mother did not apply, prior to his 18^th birthday, for the Applicant to be granted Australian citizenship by descent. He therefore he remains a New Zealand citizen.
On 9 May 2003, the Applicant was granted a Class TY Subclass 444 Special Category (Temporary) visa which was mandatorily cancelled on 17 June 2020 under s 501(3A) of the Migration Act 1958 (the Act) on the basis that he did not pass the character test and was serving a full-time custodial sentence.
On 20 February 2020, the Applicant was sentenced for the offences of robbery with actual violence, grievous bodily harm and stealing, to 3 years 6 months imprisonment with parole eligibility on 19 November 2020.
The Applicant sought a review of the decision dated 17 June 2020 and on 2 June 2021, a delegate of the Respondent decided not to exercise the discretion under s 501CA(4) of the Act to revoke the mandatory cancellation decision.
The Applicant sought review of the delegate’s decision to the Administrative Appeals Tribunal (the AAT) and on 26 August 2021, the AAT decided there was no other reason to revoke the mandatory visa cancellation and did not exercise the discretion under s 501CA(4) of the Act. The Tribunal affirmed the decision of the delegate.
The decision of the AAT was the subject of an appeal to the Federal Court of Australia. On 29 November 2021 the appeal was granted, and the decision of the AAT was set aside on the basis that the decision was affected by jurisdictional error in assessing the weight to be given to Direction 9.4.1(2)(a)(i) and the strength nature and duration of ties to Australia having regard to the Applicant’s offending relevant to the time of his arrival in Australia. The matter was remitted to the AAT for rehearing.
The rehearing of the application for review of the decision of the delegate is now before me. At the hearing, the Applicant was represented by Mr Dan Fuller of Wentworth Barristers Chambers and the Respondent was represented by Ms Hannah Anderson of Clayton Utz. The Tribunal received documentary evidence as listed in the exhibit list held on the Tribunal file, which included the transcript of evidence of the first hearing. The Applicant gave evidence and relied on the statements, reports, and transcript of evidence in respect of those witnesses called at the first hearing.
Background
The Applicant is 23 years of age and was born in New Zealand. Following his birth, he and his mother travelled between New Zealand and Australia on about four occasions until May 2003 when they returned to Australia permanently. The Applicant was then three years of age. He has not left Australia since then.
In about 2005 when the Applicant was approximately 6 years of age, his mother commenced a relationship with Mr C. He became the Applicant’s stepfather. Mr C had two daughters who were slightly older than the Applicant and they became his stepsisters.
The Applicant was wholly educated in Australia. While at school and when about he was 14 or 15 years of age, the Applicant started drinking alcohol. He had some issues at school and other personal issues. His mother changed the Applicant’s school. He successfully completed his year 12.
In about 2015, a close family friend, whom the Applicant regarded as an uncle, died, which was a difficult event for the Applicant. The Applicant said that it was at or about this time that he started drinking alcohol. He stopped going to school and when his mother found out, she negotiated with his school to allow him to continue with his education.
In about January 2016, the Applicant and his mother learnt that Mr C was in a relationship with the late uncle’s widow. This had a significant impact on the Applicant and his mother. In evidence at the first AAT hearing, the Applicant referred to Mr C also having an affair when he was working away from home in the mines and then subsequently commenced the relationship with the late uncle’s widow. As a result of Mr C’s infidelity, the Applicant lost trust in him and made the Applicant second guess everything Mr C told him. It is still hard for the Applicant to trust Mr C. The Applicant’s alcohol abuse continued.[1]
[1] Exhibit A, Transcript, page 451 line 4 – page 452 line 13.
The Applicant was very close to his mother and maternal grandparents and since the breakdown of his mother’s relationship with Mr C, they are the only family he has known. The Applicant’s grandmother died in March 2017, and this too had a significant impact upon him.
The Applicant’s alcohol consumption and binge drinking brought him to the attention of the authorities which I will now detail. However, it should be noted that since the first AAT hearing, the Federal Court of Australia delivered a decision of Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23 (Thornton) in which the Court considered the effect of ss 148 and 184 of the Youth Justice Act 1992 (Qld) and s 85ZR(2) of the Crimes Act 1914 (Cth). The decision considered the regard that the Minister can have to the antecedent history of a youth, who received, without conviction, a penalty from the Youth Court. The Court said at [36] “…the effect of s 85ZR(2) is that Mr Thornton is taken never to have been found guilty of any offence committed as a child and to prohibit the Minister from taking into account a conviction of a child where there has been an order that no conviction be recorded”.
In the circumstances of this matter, I have disregarded those offences contained in the Applicant’s offender history dated 15 May 2015 and 15 April 2016 as referred to in the first AAT decision. They were matters dealt with in the Hervey Bay Children’s Court in which the Applicant was sentenced as a youth without conviction. In accordance with Thornton, the Applicant is taken to never to have been found guilty of those offences.
The Applicant’s offender history also refers to the Applicant appearing in the Hervey Bay Magistrates Court on three occasions namely 19 January 2017 and twice on 1 June 2017 when the Applicant was still 17 years of age, for offences committed on 26 December 2016 and 6 May 2017 when he was 17 years old. In relation to each, he received no conviction, and was either fined, placed on a recognisance to be of good behaviour or given a period of 6 months’ probation.
At the time of the Applicant’s offending, the Youth Justice Act 1992 (Qld) defined a child as a person who had not turned 17 years. A person who was 17 years of age was dealt with as an adult. This was contrary to the United Nations Convention on the Rights of the Child, and contrary to the other states and territories in Australia.
The Youth Justice and Other Legislation (Inclusion of 17 – year – old Persons) Amendment Act 2016 (Qld) (the Amendment Act) which was assented to on 11 November 2016 but commenced operation on 12 February 2018, brought Queensland into line with the other states and territories and the United Nations Convention on the Rights of the Child. Thereafter, consistent with the Acts interpretation Act 1954 (Qld) and the definition of child as ‘an individual who is under 18’, offenders aged 17 years were dealt with in the Youth Justice System.
However pursuant to s 387 of the transitional provision of the Amendment Act because proceedings for the Applicant’s offending had been commenced before the commencement of the Amendment Act in 2018, albeit the Amendment Act was assented to in November 2016, the Applicant was dealt with in the adult court and did not have the benefit of Thornton and his 2017 offending being “taken never to have been found guilty of any offence committed as a child”.
Both Counsel agree that the Tribunal can have regard to the 2017 offending and sentences for the purpose of the Primary and Other Considerations. That concession is correct. I note that Thornton is subject to appeal. However, I have decided that but for the commencement date of the Amendment Act, the Applicant would have had the benefit of his offending being taken never to have been committed. I have therefore decided to have regard to the 2017 offending as background to the offending committed after the Applicant turned 18 years of age, but not give weight to those offences when dealing with the Primary and Other Considerations, where appropriate.
Offender History
2017 Offences committed when aged 17 years
On 19 January 2017, the Applicant was sentenced for two offences of assault or obstruct a police officer, and commit public nuisance committed on 26 December 2016. He was heavily intoxicated and does not remember the offence. He does recall at about 2:00am in the morning he was found walking along Hervey Bay-Maryborough Road heavily intoxicated. He was detained by police, became abusive towards them and resisted arrest. He received a without conviction fine.[2]
[2] Exhibit A, Statement of the Applicant dated 10 September 2020 page 100 – 104 At page 101 paragraph 13.
On 1 June 2017, the Applicant was sentenced for various offences committed on 5 May 2017 which was shortly after his grandmother’s death. For the offence of ‘assault or obstruct police officer licensed premises’ without conviction, he was placed on probation for six months. For the offences of prohibitions affecting miners, refused entry to licensed premises and contravene direction or requirement’, no conviction was recorded, and he was placed on a recognisance in the sum of $300 to be a good behaviour for six months. The Applicant on that occasion went to a nightclub with some friends six weeks prior to his 18^th birthday. He was let into the club, but when he left in the early hours of the morning, he was approached by police, he refused to stop and talk to them, and was arrested when he tried to walk away. He resisted police and refused to give his name and address when directed to do so.[3]
[3] Exhibit A, page 543, paragraph 25.
Adult offending
On 11 January 2018, the Applicant was sentenced for offences committed in the early hours of the morning of 2 December 2017, one day after the expiration of his six-month good behaviour bond entered into on 1 June 2017. Those offences were ‘commit public nuisance licensed premises or in the vicinity of licensed premises’, ‘wilful damage’, and ‘failure to appear in accordance with undertaking’. The Applicant said he was very drunk at the time and did not remember the incident but was told he tried to get into a fight with another patron in the taxi line and then kicked the window of the neighbouring business causing the glass to shatter. On 21 December 2017, he failed to appear in Court and when he did appear on 11 January 2018, he pleaded guilty to all charges, a conviction was recorded, he was fined $1000 and ordered to pay restitution in the sum of $1,271.77 within 28 days.
On 21 June 2018, the Applicant was sentenced for the offences committed on 25 and 26 May 2018 namely wilful damage of police property, assault or obstruct police officer in a public place while adversely affected by intoxicating substance, commit public nuisance licensed premises or in the vicinity of licensed premises, and breach of bail condition. He was convicted on all charges, placed on probation for 12 months with 40 hours community service to be completed within 12 months.
The factual circumstances of the offending on 25 and 26 May 2018 are contained in the Queensland Police Service Court Brief[4]. In summary, it reads that at 11.30 pm on 25 May 2018, the Applicant was in the company of a male friend. The Applicant and his friend approached the victim who was also in the company of another male. The victim said the Applicant “started on me”. The Applicant chased the victim and his friend. An altercation occurred. The victim’s friend was kicked by the Applicant and the Applicant’s friend assaulted the victim. The victim managed to escape and reported the incident to security at a nearby hotel.
[4] Exhibit A, page 347.
The police located the Applicant a short time later in the parklands opposite the hotel and arrested the Applicant. During the arrest, the Applicant resisted swinging his arms outward and upwards. The Applicant was placed on the ground and handcuffed. The Applicant then yelled out words to the effect of “don’t fucking arrest me, dog cunts”. Police escorted the Applicant to the police vehicle. The Applicant attempted to walk backwards and pushed back on police in an attempt to not walk in the direction of the police vehicle. The Applicant shouted abuse at the Police. The Applicant swung his head in what appeared to be an attempt to head butt a police officer. The Applicant spat on the ground in what appeared to be an attempt to spit on the shoes of a police officer. After he was placed in the back seat of the police car, he spat his saliva throughout the back seat and interior doors of the vehicle, which later required cleaning. The Applicant was subsequently bailed to appear before the Hervey Bay Magistrates Court on 21 June 2018. A condition of bail was that the Applicant must not consume alcohol.
On 17 June 2018 at about 2:15am while on bail with a condition that he must not consume alcohol, the police spoke with the Applicant in relation to another matter.[5] Police detected a strong smell of liquor on the Applicant. The Applicant admitted to having consumed alcohol earlier that evening. An alcohol breath test was positive. This contravened the terms of his bail agreement.
[5] Exhibit A, page 351.
On 29 November 2018, the Applicant was dealt with for the offence of wilful damage committed on 27 October 2018 which was committed while he was on probation following the sentence on 21 June 2018. In his statement[6], he said that when intoxicated, he punched a shopfront window causing it to break. He suffered a serious cut to his arm which almost resulted in his death due to blood loss. The Applicant was convicted and fined $750. He was ordered to pay restitution in the sum of $604.80.
[6] Exhibit A, page 102, paragraph 19.
On 5 December 2018, the Applicant was sentenced for an offence committed on 21 November 2018 namely being intoxicated in a public place. He was sentenced without conviction to a fine in the sum of $50.00. The Applicant said in his statement that he could not remember this offence.[7]
[7] Ibid, paragraph 20.
On 2 May 2019, the Applicant was sentenced for an offence of wilful damage committed on 2 December 2018 and failure to appear in accordance with undertaking (given on 11 April 2019). He was convicted and fined $900.00 and ordered to pay restitution in the sum of $248.00 Prior to sentencing, a Court Report was prepared dated 26 April 2019[8] which says that:
·“[HDWH] has contravened condition a) of his Probation Order and Alcohol Fuelled Violence Order namely, “must not commit another offence during the period of the order”… [HDWH] committed the further offence of being drunk in a public place on 21 November 2018.
·[HDWH’s] intake assessment identified high risk needs in relation to areas of Employment, Mental Health and Social Support; Substance Abuse was identified as a key criminogenic need for [HDWH] and a priority for his supervision.
·[HDWH] has maintained stable accommodation with his Mother during the Order and remains in receipt of Newstart payments from Centrelink.
·On 27 October 2018 [HDWH] contravened his order by committing further offence of Wilful Damage… In response to the breach, it was recommended that [HDWH] be referred to a Show Cause Panel to address his ongoing non-compliance of the order. [HDWH] was due to report to the panel on 7 December 2018, however he failed to attend. After contact was established with [HDWH], the Show Cause Panel was rescheduled to 4 January 2019; [HDWH] again failed to attend.
·To date [HDWH] has failed to report on 11 occasions throughout the Order and has disengaged from supervision. [HDWH] has not made contact with Community Corrections since 4 February 2019.
·Over the period of the Order [HDWH] demonstrated poor compliance with his Order conditions and reporting requirements. He reported ongoing heavy drinking throughout the period of supervision and demonstrated an unwillingness to engage with intervention to address his index offending.”
[8] Exhibit A, page 337-338.
On 7 February 2020, the Court Report was updated.[9] It repeated the contents of the earlier report but provided additional information under heading ‘Response to Supervision – Community Service Order’. The Applicant was inducted into his Alcohol Fuelled Violence Order on 1 August 2018 and was given work instruction to commence on 9 August 2018. The Applicant failed to commence at the project, was sent a letter on 6 September 2018 directing him to commence his community service but he failed to attend. His Work Instruction was cancelled. The Applicant provided a medical certificate to explain his non- compliance, but when he was given a new date, he again failed to comply. The author referred in detail to the attempts to engage with the Applicant and his failure to report and said:
“Throughout the period of his order, [HDWH] has demonstrated resistance and non-compliance with the requirements of the order by committing further offences and failing to report where directed. [HDWH] has not displayed a willingness to complete his hours and has failed to comply with the conditions of his order.
Recommendation
[HDWH]’s probation and Community Service Orders are currently in breach and in the process of going through court with the recommendation that [HDWH] be dealt with pursuant to s125(4) of the Penalties and Sentences Act 1992, in that he be resentenced for the original offences. Owing to his poor response to supervision [HDWH] is considered to be unsuitable for future community based orders.”
[9] Exhibit A, page 312.

At the first AAT hearing, the Applicant could give no explanation for not completing the community service order.[10]
[10] Exhibit A, Transcript, page 465, lines 29 – 30.
On 20 February 2020, the Applicant was sentenced for the offences of (i) armed robbery committed on 1 June 2019 committed whilst still on probation (ii) grievous bodily harm committed on 29 July 2019 whilst on bail for the armed robbery offence, which bail included a direction not to consume alcohol and (iii) stealing which was also committed on 29 July 2019.
The Applicant was convicted and sentenced for the offences on the basis of a Statement of Facts prepared for the Court which I will summarise:[11]
[11] Exhibit A, pages 319 – 320.
Armed robbery
·At about 5:30am on Saturday 1 June 2019 the victim was working at a service station. He was restocking the fridge in the cool room. He came out to the store and saw the Applicant standing near the newspaper stand.
·As the victim approached the service counter the Applicant turned towards him holding a knife and walked towards the victim. The knife was a large silver kitchen knife with a 30-centimetre blade.
·The Applicant said to the complainant “open the till”. The victim did so and handed cash to the Applicant. The Applicant told the victim to put some cigarettes in a bag which he started to do. The Applicant then said, “put the smokes in the bag and the goldies”. The victim put more cigarettes in the bag as well as the gold coins from the till.
·As the victim was doing this the Applicant raised the knife towards the victim and said “more”. The knife was about 15 centimetres from the victim's face.
·The Applicant asked if there was anyone in the office. The victim said no. The Applicant asked if there was any more money in the shop. The victim said the only money was that in the till.
·The Applicant ask for more cigarettes, specifically JPS. The victim filled the bag with cigarettes and handed it to the Applicant. The Applicant told the victim to fill one more bag. The victim put one pack of cigarettes into a second bag when a car approached the driveway. The Applicant ran from the store. The victim called the police.
Detection and arrest
·Police attended and located the Applicant. The next day in a record of interview with police the Applicant made admissions to the robbery. He told them that he took the knife from his home and went to the service station with the intention of robbing it. A friend dropped him off about 300 metres from the service station. After committing the robbery, he jumped the back fence and hid the knife in a T shirt in a garden bed which was later recovered by police.
·Police Recovered a backpack from the Applicant which contained $852 in cash and 11 packets of cigarettes.
Grievous bodily harm (GBH) and stealing
·This offence was committed when the Applicant was on bail for the armed robbery committed on 1 June 2019 which contained a condition that the Applicant does not consume alcohol.[12]
·On the evening of Saturday 29 July 2019, the victim was at a friend’s place with others drinking. The Applicant was present.
·The victim knew the Applicant from school but never socialised with him.
·In the early hours of the Sunday morning the victim the Applicant and another walked to the victim’s house to get more alcohol. Upon arrival the victim told the others to remain outside. The victim went inside and returned with a bottle of bourbon. They started walking back to the house they had come from.
·The Applicant ask the victim for the bottle of bourbon. The victim said no. The Applicant said, “don't you trust me”. The next thing the victim remembers is being punched in the face by the Applicant. Immediately after punching the victim the Applicant grabbed the bottle of bourbon from the victim and ran off.
·The victim sat in the gutter with his mouth and nose bleeding. He went to hospital the next day, and X rays revealed a fracture to his inferior orbital bone on his left side, requiring surgery with plates inserted under his eye and in his mouth under his gums. If the fractures had not been treated, the victim would have suffered a permanently depressed left cheek and reduced mouth opening. The next day the complainant reported the matter to police.
[12] The antecedent history contained in the Check Results Report incorrectly records this offence occurring on 29 July 2019. It occurred on 20 July 2019. Exhibit A, page 78.
In his statutory declaration dated 10 September 2022,[13] the Applicant said that at the time of the offence of armed robbery, he was intoxicated. He said a friend dropped him off at the service station. He entered and threatened the shopkeeper with a 30-centimetre kitchen knife and asked him to empty the till and give him cigarettes. He left the service station and ran away into a neighbouring area where he was found and arrested. He confessed what he had done and told police where he had hidden the money and cigarettes. He said he was stupid and struggles to understand why he committed the offence. He attributes it to being drunk. He felt really bad for threatening the service station employee who was just doing his job and didn't deserve to have a knife waved in his face. He felt guilty about the offence.
[13] Exhibit A, page 100-104, paragraphs 22-25.
As for the offence of grievous bodily harm and stealing, he was on bail at the time. He went to a friend’s house and began drinking and became drunk. He knew the victim, but they were not friends. They ran out of alcohol, so they walked to a house to get some more. On the way, the victim made comments about knowing the Applicant had been arrested for robbery and should not be drinking. The victim went inside the house and returned with a bottle of bourbon. There was a verbal exchange. The Applicant does not have a clear memory of the events but believed he perceived he was going to be hit by the victim, so he hit him first. The Applicant took the bottle of bourbon and walked away before smashing it.
In the sentence in remarks of His Honour Judge Jones dated 20 February 2020,[14] His Honour noted the maximum penalty for robbery was life imprisonment which reflected how seriously the community views such offending. In referring to the references received, His Honour said, “this behaviour was somewhat aberrant”. Having referred to the schedule of facts, he said that an aggravating feature of the offending was that it was committed whilst on probation, but worse still while on bail for the armed robbery, the Applicant committed the offence of grievous bodily harm. His Honour accepted that the offending occurred whilst the Applicant was heavily intoxicated.
[14] Exhibit A, pages 38-43.
His Honour described the Applicant's criminal history as street nuisance type offences involving abuse of alcohol. He referred to the Applicant's failure to report as contained in the Court Report to which I have referred, the Applicant's poor compliance with orders, ongoing heavy drinking and that he was no longer suitable for future community-based orders. In reference to an email by family friend Ms JF, he said, “if you can sort yourself out, there is every prospect of you going on to play a positive role in the community”. He also referred to his work history including the commencement of an apprenticeship and the previous work done for Eco-Drilling which greatly impressed the proprietors.
For the offence of armed robbery, the Applicant was sentenced to 2 years imprisonment. For the offence of GBH, he was sentenced to 18 months imprisonment to be served cumulatively upon the sentence for armed robbery. For the offence of stealing, a conviction was recorded with no further penalty. Hence the Applicant received a total head sentence of three years and six months imprisonment with parole eligibility on 19 November 2020. His Honour took into account time spent in custody pending sentence.
On 27 February 2020, the Applicant was convicted for breach of the probation order imposed on 21 June 2018 and breach of community service order imposed on 27 February 2020 but was not further punished.
On 19 January 2021, the Parole Board approved the Applicant’s release on parole to immigration detention which commenced on 23 February 2021.[15]
[15] Exhibit A, page 47.
The Applicant also has a history of traffic offences. On 11 March 2018, he was dealt with for being a learner driver under direction of a person who did not hold an appropriate driver’s licence. On 30 March 2018, he was dealt with for being a learner driver not under a direction of a person. On that same day, he was also dealt with for failing to display L Plates at the front and rear of the motor vehicle.[16]
[16] Exhibit A, pages 84 and 445.
At the first hearing, the Tribunal received a report from psychologist Dr Jacqui Yoxall dated 28 July 2021 which was also before me. In that report, Dr Yoxall, under heading ‘Risk Assessment’, considered various measures used in determining the risk of violent offending. That report was underpinned by a factual matrix of the Applicant’s offending having occurred when he was under the influence of alcohol. It also had regard to the Applicant's plans for the future, the stabilisers which included difficulties with managing life's demands and unexpected significant loss or change, his potential deportation to New Zealand with no existing support networks and the good level of family support albeit it from a small family which he enjoyed. Dr Yoxall also had regard to character references and a good level of social support from friends and work associates.
Dr Yoxall noted the Applicant was utilising healthy coping strategies to cope with stress and that whilst he had historical risk factors, he was coping well, but there were factors for future focus and planning should he return to the community of Australia or elsewhere. When scoring the Applicant for the various tests undertaken, Dr Yoxall said:
“Specifically, [HDWH] would benefit from working on skills and strategies to prevent relapse to alcohol misuse and equip him to cope with the likely stressors he will encounter as he continues to build and navigate his own independent life as an adult.
Overall [HDWH] score on the HCR – 20, is 15/40. Such a score is generally considered to accord with a low to low-moderate risk of violence, but I note that management of the noted future risks is vital to reduce risk of reoffending violently. [It should be noted that ‘low risk’ is the lowest risk possible on the HCR – 20]”
New Antecedents
After the Federal Court set aside the first decision of the AAT and remitted the matter for rehearing, and while the application was awaiting hearing before me, certain incidents occurred while the Applicant was in immigration detention. The Respondent summonsed materials which I will detail.
An Incident Detail Report[17] records that on Wednesday 9 March 2022 at 1908 hours, a Detainee Service Officer (DSO) heard arguing voices in the breezeway and a sound like someone being pushed up against a fence. The DSO spoke with the control room who reviewed CCTV footage and advised that the Applicant had just assaulted another detainee. On review of the CCTV, the Applicant can be seen punching a detainee in the face. The detainee declined both medical assistance and police involvement. The incident was closed.
[17] Exhibit E, page 22.
A Statement of Material Facts[18] records that on 14 April 2022, the Applicant was en-route from Yongah Hill Detention Centre in Western Australia to Christmas Island Detention Centre. He was searched by police. Police located a sock in the underwear worn by the Applicant. In that sock the following was located:
·A white bag containing cannabis. The bag weighed 13.31 grams;
·A balloon/glove which contained multiple strips wrapped up in tape and glad wrap; consistent with Suboxone. The bag weighed 17.5 grams; and
·Two clip seal bags of a crystal substance which was tested and gave a positive result for methamphetamine. The substance was weighed. The total weight was 43.81 grams.
[18] Exhibit E, pages 9-19.
When spoken to, the Applicant refused to provide a comment and denied knowledge of the sock down his underwear or its contents.
The Applicant in evidence said that he had been before the Courts in relation to the drug offences. He had pleaded guilty to two charges for possession of cannabis and possession of suboxone and was fine $500 for each offence. He had also entered a plea of guilty within the last four weeks to the possession of a trafficable quantity of methamphetamine. Submissions on sentence have been adjourned to a date in November 2022.
He said this most recent offending occurred at a time when he was ‘in a pressure situation’ where he ‘believed he had no option’.
The Applicant was given a warning in relation to the privilege against self-incrimination and the hearing was adjourned for 15 minutes, to enable the Applicant the opportunity to obtain legal advice with respect to that privilege and whether or not he would answer questions in relation to the new offending. Upon his return to the hearing, the Applicant said that he had the opportunity to speak to his lawyer representing him in the criminal matter. The Applicant, upon legal advice, invoked the privilege and declined to answer any further questions about the incident captured on CCTV footage or the drug offences including the pressure situation to which he referred.
It was the Applicant’s right to invoke the privilege against self-incrimination and no adverse inference is to be drawn from his decision to do so. The Tribunal is therefore left with the incident reports as the only factual circumstances surrounding the drug offences and incident captured on CCTV footage.
I note when having regard to the quantity of drug possessed by the Applicant, and in particular the methylamphetamine which was 43.81 grams, that Schedule V – Amounts of prohibited drugs giving rise to presumption of intention to sell or supply same to the Misuse of Drugs Act 1981(WA) provides that in respect of methylamphetamine, the deemed weight giving rise to presumption of intention to sell or supply the drug is 2 grams. Therefore, the Applicant was in possession of more than 20 times that prescribed weight.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act which relevantly provides that:
4. The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
The Tribunal is satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Accordingly, there are two issues before the Tribunal namely (a) whether the Applicant passes the character test; and (b) whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
It is conceded by the Applicant that he does not pass the character test. I am satisfied that having regard to the sentence imposed by the Hervey Bay District Court on 20 February 2020, that the Applicant does not pass the character test. He has “a substantial criminal record”, within the meaning of paragraph 501(7)(c) of the Act and therefore does not pass the character test on account of paragraph 501(6)(a).
The Applicant cannot rely on s 501(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked. Hence, the question for the Tribunal is whether pursuant to s 501CA(4)(b)(ii) of the Act, there is another reason why the original decision should be revoked.
When considering the exercise of the discretion in s 501CA(4) of the Act, the Tribunal is bound by subsection 499(2A) of the Act to comply with any direction made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a Visa under section 501CA (the Direction) applies[19].
[19] On 1 April 2021, the former applicable direction, Direction No. 79, was revoked and replaced by Direction No. 90.
In deciding whether to refuse or cancel a non-citizen’s visa, or whether not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform the decision maker’s application of the considerations identified in Part 2 where relevant to the decision. Those principles may be briefly stated as follows:
“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.
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.
The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Australia has a low tolerance of any criminal or other serious conduct by visa Applicant’s or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
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 measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account, and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out Other Considerations which must be taken into account. These considerations are:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community, including:
(iii)strength, nature and duration of ties to Australia; and
(iv)impact on Australian business interests.

I will now deal with each of those Primary and Other Considerations in turn.
Primary Consideration 1 – Protection of the Australian Community
Paragraph 8.1 of the Direction requires decision-makers to 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. 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 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 the direction requires decision-makers 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.
I will deal with each of those considerations in turn.
The Nature and Seriousness of the Applicant’s Conduct to Date
Paragraph 8.1.1(1) informs decision-makers of those matters to which the decision-maker must have regard when considering the nature and seriousness of the Applicant’s conduct. Violent and/or sexual crimes, crimes of a violent nature against women or children regardless of the sentence imposed, and acts of family violence regardless of whether there is a conviction for an offence, or a sentence imposed, are viewed very seriously by the Australian Government and community. The decision-maker must have regard to the sentence imposed by the Courts, the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness, the cumulative effect of repeated offending, whether the non-citizen has provided false or misleading information to the Department and whether the non-citizen has reoffended since been formally warned or otherwise made aware in writing about the consequence of further offending.
The Applicant’s offender history as an adult as contained in the Check Results Report demonstrates that from the Court sentences on 11 January 2018 (for offending committed in December 2017) to 27 February 2020, the Applicant was regularly before the Hervey Bay Magistrates Court for alcohol related offences. In the sentencing remarks dated 20 February 2020, Judge Jones referred to this offending as “street nuisance type offences involving, no doubt, abuse of alcohol”.[20] I agree with His Honour’s characterisation of his offending. Those offences included offences of violence including assault or obstruct police officers, trying to engage in a fight with a person in a taxi queue, attempting to head butt and spit on a police officer, wilful damage, spitting over the inside of a police vehicle, public nuisance, damage police property and were alcohol related.
[20] Exhibit A, pages 38 - 43 at 40.
However, to the extent that the Applicant’s offending was directed at police officers who were acting in the performance of their duties, this indicated the contempt he had for the police and the disregard for those who are charged with the responsibility of keeping the community safe. His conduct was appalling, serious and placed those officers at risk of serious injury.
The Applicant had the benefit of non-custodial sentences including non-conviction and conviction and fine, periods of probation and community service, and orders for payment of restitution for two damaged windows.
The Applicant was given every opportunity over that period of time to engage with Court rehabilitative services, but it is plain from the Court Reports of 26 April 2019[21] and 7 February 2020[22] that he failed to engage in the service and failed to report on 11 occasions. He did not make contact with Community Corrections to such an extent that in the 7 February 2020 report, the author said that, “Owing to his poor response to supervision [HDWH] is considered to be unsuitable for future community based orders”.
[21] Exhibit A, page 356-357.
[22] Exhibit A, pages 312-313.
When the Applicant appeared before the Hervey Bay District Court on 20 February 2020, the offending was again alcohol-related but there was a trend of increasing seriousness in that offending. On that occasion, he was sentenced for robbery with actual violence which was committed in a service station in which he threatened the attendant with a 30 cm bladed knife; grievous bodily harm when he punched a man in the face causing significant injury to his face requiring surgery, and stealing from that victim a bottle of bourbon. An aggravating feature of those offences was that the armed robbery was committed in breach of a period of probation and the GBH offence was committed while the Applicant was on bail for the armed robbery. His conduct again demonstrated his contempt for the Court and its processes and the laws of Australia.
The Applicant received a significant custodial sentence on that occasion which is a sentence of last resort and indicative of the seriousness of his offending.
The Tribunal regards the cumulative effect of the offences before the Hervey Bay Magistrates Court as serious offending and the offences before the District Court are themselves, very serious.
Further, the Applicant’s road traffic offences are another indication of the contempt and disregard he had for the laws of Australia.
The Applicant did not receive a formal warning about the consequence of his offending, but having gone through the mandatory visa cancellation process, the first hearing before the Tribunal, the Federal Court Appeal, and remittal of this matter for rehearing, he was well aware of the consequence of serious offending and its impact upon his visa.
Yet, while awaiting the rehearing of this matter, the Applicant committed an offence on 14 April 2022, that involved the attempted deception of Immigration Detention officials charged with the care of those in immigration detention, by secreting in a sock, in his underpants, cannabis, suboxone and a trafficable quantity of methylamphetamine which was over 20 times the prescribed quantity for the presumption of intention to sell or supply that drug.
Methylamphetamine is an insidious drug that potentially ruins the lives of those who consume it. The use of drugs by those in institutions, such as prisons and detention centres, is a serious concern to the authorities and the Australian community and the trafficking of such drugs into those institutions must be regarded as very serious.
The Applicant said that he committed the offence when he was in a pressure situation where he believed he had no option, but he provided no explanation to the Tribunal for his offending. He claimed the privilege against self-incrimination and declined to answer questions about the incident caught on CCTV footage and the drug offences. The Applicant is not to be penalised for invoking the privilege against self-incrimination, but the Applicant’s explanation for committing the offence is unsatisfactory. His drug offence in particular, was very serious.
I was not asked by Counsel for the Applicant to adjourn the proceedings pending the outcome of the criminal prosecution. I have considered whether it was appropriate to do so. I have decided that the facts speak for themselves. The offending was committed in immigration detention at a time when the Applicant was not affected by alcohol. His conduct both with regards to the drug offences and assault captured on CCTV footage are conduct that I can have regard to, where appropriate, when considering the Primary and Other Considerations. It is not appropriate to speculate on the likely sentence to be imposed, but it is conduct of the Applicant which the Tribunal may take into account.
The Applicant is no longer in immigration detention and was, following this offending, returned to into the custody of the Western Australian Department of Justice where he remains. The Tribunal received into evidence the Department of Justice Reception Intake Assessment form, created on 15 April 2022, which asked the Applicant a series of questions which he answered. Question 9.5.5 was, “Are you currently associated with, or a member of any gang”. The ‘Comments’ record “Prisoner stated he knows and talks to a lot of different OMCG’s he does not consider himself an associate”.[23] The Applicant explained that in prison, there are a lot of OMCG (Outlaw Motorcycle Gang) members, and he used the expression ‘associate’ to mean he engages with them from time to time. He did not understand the meaning of associate as a person who had a particular status within an OMCG. The Tribunal accepts that explanation and does not draw any adverse inference from the Applicant’s comments.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
[23] Exhibit D, pages 7 – 20 at page 18.
Paragraph 8.1.2(1) provides that 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) provides that 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;
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the Applicant’s offending to date, including any escalation in offending, properly informs the assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct. The Direction that the Australian community’s tolerance of harm becomes lower as the seriousness of the potential harm increases is also a relevant consideration.
In regards to the Applicant’s adult offending involving various police officers who were acting in the performance of their duties, such offending is properly regarded as serious. He repeatedly demonstrated his disregard for their authority and his attempt to head butt and spit on police officers placed them at risk of physical and psychological injury, and potential transmission of disease by spitting. His conduct was inexcusable.
He placed a member of the public at risk of physical and psychological injury by trying to pick a fight in a taxi queue. The use of a knife and threatening the petrol station attendant in an armed robbery had the potential to cause serious physical and psychological harm and financial loss to a person who was simply performing his work duties. The offence of GBH caused actual serious physical harm and potential psychological injury. As the Learned Sentencing Judge said in respect of those offences:
‘An aggravating feature (of the armed robbery) is that it was committed whilst on probation. But worse still is, whilst on bail in respect of the armed robbery, you committed the offence of grievous bodily harm. This would appear to have occurred whilst heavily intoxicated. It involved you asking, at the very least, an acquaintance, if not a friend, to hand over a bottle of alcohol. He refused to do so. The next thing he realised was you had punched him in the face. He has no recollection of exactly what happened. But you were seen to have punched the complainant by another person. On being taken to hospital, it was revealed that he had a fracture to his inferior orbital bone on his left side…….plates were inserted under “the victims” eye and in “the victims” mouth under his gums. There is no doubt that that level of injury constituted grievous bodily harm.
……
Robbing people in stores involves threats of violence with weapons against people that are just going about their everyday life. They are entitled to feel safe where they work. This would have been an extremely terrifying episode for this person.’[24]
[24] Exhibit A, page 39-40.
The Applicant has also demonstrated violence when in detention as observed in the CCTV footage dated 9 March 2022. The Applicant said that he had never been under the influence of alcohol when in detention. To the extent of the violence observed on the CCTV footage, it could not be explained by alcohol intoxication. The Tribunal was provided with no explanation for the incident as again the Applicant claimed the privilege against self-incrimination. Nonetheless, the CCTV footage speaks for itself.
The involvement in drug offences and particularly the possession of a trafficable quantity of methylamphetamine is very serious and as I have said, the consequences to those who engage in that drug use are often devastating.
The nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct when informed by his offending to date, is potentially devastating. It includes potential physical and psychological injury to members of the public or to police officers performing their duties. It includes the devastating consequence to those who are involved in the use of drugs.
When having regard to the risk of the Applicant reoffending, the Applicant now acknowledges that he has an alcohol problem and has engaged with drug and alcohol courses that were available to him in custody. The Applicant’s mother informs me that the Applicant was “raised a Christian and attends church at prison whenever possible. He also attends A.A. meetings and has gained a new found respect on how to deal with alcohol and he is currently working through the 12 step program. He plans to stay sober when released and continue his commitment to AA.”[25] The Applicant confirmed that commitment. This acknowledgement of his addiction is a change in position from the evidence he gave at the first hearing.
[25] Exhibit A, handwritten statement of Mrs HDWH, pages 306 – 309 at 308.
The Applicant said that he has the support of family and friends to help him cope in the future. His mother said in evidence at the first hearing that if he returns to the community, he will reside with her until his affairs are in order including his parole, his driver’s licence, and his employment with Echo Drilling.[26] The Applicant said in his Affidavit sworn on 6 May 2022 at paragraph 7, that upon his return to the community, he will live in Brisbane. He has the support of a long-time friend Michael Korkou who is a real estate agent and will assist the Applicant in finding accommodation. The Applicant said he does not want to return to Hervey Bay where his offending occurred and where there are too many old connections which were unhealthy for him.
[26] Exhibit A, Transcript of evidence, page 483 (line 37).
When the Applicant was referred to the pressure situation giving rise to his most recent offending in detention, and how he might deal with pressure situations in the future, the Applicant said he did not believe he would suffer a pressure situation to the extent he did when he last offended.
The Applicant referred to The Explore Program which he undertook in Brisbane Immigration Detention. The Tribunal received a copy of the QCS Resilience Program - Build Don’t Break certificate dated 25 November 2019 and the 10 course subjects that he completed.[27] The engagement in that course is to his credit.
[27] Exhibit A, page 120 and also at page 304.
The Applicant also referred in evidence at the first hearing to the 48-hour medium intensity intervention program. He attended Alcoholics Anonymous (AA) meetings, but these were interrupted by the COVID-19 pandemic. The person that ran the AA course was not a correctional services officer but was from outside the prison. The Applicant also referred to a fellow prisoner who was a “massive support”. That person had a significant drinking problem and was under the influence of alcohol when he offended. He likened that person to a sponsor in whom he could confide. That person was, at the time of the first hearing, still in gaol and he rings the Applicant at least once a fortnight but usually once a week.[28]
[28] Exhibit A, Transcript of Evidence, page 472.
The Applicant explained that his ability to undertake courses was hampered by the COVID- 19 pandemic in both the closing stages of his sentence of imprisonment and his transfer to immigration detention. The Applicant also outlined his movement between various detention centres. He referred to being in Brisbane for 8 weeks, Yongah Hill for 8 – 9 weeks, Christmas Island for 10 – 12 weeks and back to Yongah Hill for a few months before his intended return to Christmas Island at the time of his most recent offence. I infer this movement also affected his ability to settle down and engage in any available courses.
The Applicant said, and I accept, that he was never offered counselling in immigration detention.
Medical Evidence
The Tribunal received a very short report from Dr Kenneth Treichel dated 12 August 2019 who I infer was the Applicant’s treating general practitioner (GP) which reads:[29]
‘I have attended HDWH over a 13 year period. I believe he has developed psychological issues since his mid teens. I am told of his demeanour which leads me to believe that he has had increasing problems with alcohol abuse. He and his mother have made approaches regarding alcohol management programs.’
[29] Exhibit A, page 105.
The Tribunal also received a report from Dr Yoxall psychologist, dated 28 July 2021.[30]. Dr Yoxall also gave evidence at the first hearing. The Applicant provided to Dr Yoxall a personal history consistent with the evidence before the Tribunal.
[30] Exhibit A, pages 238-263.
The Applicant said that he had problems with alcohol misuse, depression, and anxiety which had not been formally diagnosed or treated to the date of that report. The Applicant also noted his mother’s anxiety and stress experienced as a result of his offending. He detailed his alcohol abuse commencing at about 15 years of age following the death of his stepfather’s friend whom he regarded as his uncle. He also referred to the escalation and use of alcohol after his mother’s separation from his stepfather and death of his grandmother. He would binge drink on weekends and by the time he was 17 years of age, “he was drinking for at least two days over each weekend”. His alcohol abuse escalated when he achieved legal drinking age and he described his drinking habit during the football season including playing when hungover.
The Applicant said people tried to talk to him about his drinking patterns which were unhealthy, but he rejected their suggestions. By the time the Applicant was 18 years of age, he was aware that people would avoid inviting him to an event because of concerns he would become drunk and aggressive. He experimented briefly with cannabis and other drugs when he was 16 years of age but did not regularly use drugs and preferring alcohol instead. He denied a history of misuse of prescription or non-prescription medication.

The Applicant’s mother and stepfather were heavy consumers of alcohol and his mother warned him, “you should be careful with alcohol as I am not good when I drink and neither will you be”. The Applicant’s mother is a recovering alcoholic and a member of Alcoholics Anonymous.
The Applicant told Dr Yoxall of his feelings of remorse and empathy for the victims of his offending and the impact it had upon his mother. He acknowledged he had a serious alcohol abuse disorder, and he does not want to drink alcohol again.
The Applicant told Dr Yoxall of an incident in custody namely a physical altercation in prison when held on remand. Dr Yoxall reports this did constitute a breach, but not a criminal charge. The Applicant reported this incident occurring due to feelings of stress having to live with others and accommodate their habits. The Applicant said he became overly neat and could not tolerate another person’s lack of neatness. This led to an argument with another prisoner and the Applicant was the first one to throw a punch. He was hit by the other prisoner and sustain a fractured eye socket, fractured nose, and concussion. After that incident, he amended his behaviour realising that fighting did not help.
The Applicant reported on the educational courses undertaken albeit limited by COVID – 19 restrictions which included a resilience course called Build Don’t Break, which was directed to managing emotions; a drug and alcohol program which helped identify risk factors; he had developed a relapse prevention plan and identified community support to assist him to remain abstinent and that one of the supports was AA. The Applicant also referred to an anger management program but after attending one month of that program, he was unable to finish it because he was moved to Yongah Hill Detention Centre.
The Applicant also reported that whilst in prison and detention, he worked to improve physical health and fitness by fitness training and setting and achieving goals. He also tried to help others with their fitness goals and that he was “now… reaping the rewards of making good decisions and it is good for me”.
Dr Yoxall undertook a risk assessment of the Applicant. She reported, amongst other things that he is able to obtain work, he had a significant history of alcohol misuse, did not present with features of psychopathy, personality disorder, depression, developmental history of problems with impulsivity but had a history of impulsivity when intoxicated. He did not demonstrate any violent ideation or ideation or negative attitudes to supervision, authority or personal responsibility.
Dr Yoxall referred to the Applicant’s family support, that he was currently utilizing healthy coping strategies to cope with stress and that he would benefit from “working on skills and strategies to prevent relapse to alcohol misuse and equip him to cope with the likely stressors he will encounter as he continues to build and navigate his own independent life as an adult.”
The Applicant achieved a score of 15/40 on the HCR-20 risk of violent offending assessment tool. That score was indicative a low to low-moderate risk of violence. Dr Yoxall reported the Applicant was motivated to engage in recommended treatment. He scored 14 on the Level of Service Inventory-Revises (LSI-R) risk assessment tool. A score of 14 – 23 was indicative of a low to moderate risk of general reoffending and low to moderate level of general rehabilitation needs and for those in the 14 – 23 range in the normative sample, approximately 31.1% who scored in this range reoffended (and were re-incarcerated) within 12 months.
Dr Yoxall in evidence agreed with the proposition that if risk factors were to increase in the future, so did the Applicant’s risk of reoffending. She said broadly that risk could be substantial financial difficulties, substantial marital concerns, relationship concerns, unstable accommodation and social interaction. She said:
“relapsing into alcohol is the factor that he is most at risk of likely to be a problem comparative to other factors in the future…..the factor that would most likely change for him is the alcohol and its use because that’s been a problem for him for a substantial period of time and it’s been a key contributing factor…”[31]
…
“The problem for [HDWH] in trying to predict what the future might look like for him it would be – he’s been in a controlled environment without access to alcohol for a long period of time, which has allowed him to develop insight he didn't have before. It’s allowed him to reconsider his behaviours and come to the realisation that he has an alcohol substance use issue and that’s laid the groundwork for him to make changes. He hasn’t had time in the community where he’s been able to manage his alcohol misuse vulnerability where he’s been able to abstain from alcohol. He has had some intervention albeit limited whilst in the controlled environment…But it’s limited given that for a solid four years [before] that his level of alcohol misuse (indistinct) was substantial…But in my view his biggest risk is re-entry to the community and (indistinct) with the limited skills and strategies he’s learnt.”[32]
[31] Exhibit A, page 512.
[32] Exhibit A, page 560.
Other supports
The Applicant has the support of his mother, and he had a lot of friends whom he said are not big drinkers and that he has a lot of family and friend support in the community.[33] He said he does not have any thoughts of wanting to drink alcohol and he would not attend events where he knew people were drinking. He knew the situation it put him in and the pain and harm that alcohol use caused in the past and he would not put himself in that position in the future.[34]
[33] Exhibit A, Transcript, page 469 (page 23) lines 14 – 17.
[34] Ibid, lines 23-29.
The Applicant said that he speaks with his family every day namely his mother and grandfather.[35] He described he and his mother as being very close and that she is a person he can talk to and confide in. He said his mother was his best friend. He said that his mother had gone above and beyond for his whole life and she does everything he could ask of her, and that he had not repaid her in the way he should have.[36]
[35] Exhibit A, Transcript, page 472 (page 26) lines 32 – 43.
[36] Exhibit A, Transcript, page 453 (page 7) lines 41 - page 453 (page 8) – 3.
The Applicant in evidence at the first hearing showed insight into the effect his offending has had on his mother and grandfather and the likely impact should he not remain in Australia. He said it would be detrimental to them both, that his mother suffered from depression and anxiety, and his grandfather is unwell. It would take a toll on his mother’s mental health and would also be a “massive toll” on his own mental health should he be required to leave.[37]
[37] Exhibit A, Transcript, page 454 lines 5 – 14.
In her Affidavit sworn on 2 September 2020, the Applicant’s mother said she had seen the Applicant’s offender history which she said was influenced by alcohol and since being in prison, he has matured dramatically. She confirmed his expressions of remorse for what he had put her through and for the victims of his offences. She described him as intelligent with employment with Eco Drilling waiting for him should he return to the community, and said:
“…my son has huge empathy and - for other people, and I know now that he has
looked back and it causes him an amount of pain, what he has put myself through
and his friends…I cannot see my son making bad choices to do with alcohol any
[38] Exhibit A, page 561, paragraph 96.
more because he knows what the repercussions are going to be and he wants a better life for himself and for me.”[38]
The Applicant’s grandfather provided a written statement dated 19 February 2020.[39] He referred to the close relationship he has with the Applicant and that he and his late wife helped raise him. He described the Applicant as a good person who made bad choices. He has always supported the Applicant and visited him regularly when he was in the correctional facility in Queensland. The grandfather confirmed the “huge amount of support through family friends and social clubs” that was extended to the Applicant.
[39] Exhibit A, pages 310 – 311.
The Tribunal received a letter dated 6 February 2020 from Ms JB who co-owned the business Eco-Drilling Solutions with her husband. She had known the Applicant at that time for 2 ½ years. She confirmed the love and support the Applicant enjoyed from his family and friends. She had previous experience with troubled young adults and helped turn their life around with good employment mentoring and support. She confirmed that she and her husband offered their ongoing help and support to the Applicant and that he has employment available as soon as he is released into the community.
The Applicant confirmed in evidence that the offer of employment remains and will be available immediately upon his release. I accept that evidence.
At the previous hearing, the Tribunal was referred to the support of Ms JF who resides in New Zealand. However, the Applicant’s mother in an affidavit dated 19 July 2022[40] said that in recent times, the relationship has become strained and that she does not believe Ms JF will provide continued support to the Applicant.
[40] Exhibit C.
Conclusion: Primary Consideration 1
The Applicant’s adult offender history for which he was dealt with in the Hervey Bay Magistrates Court including violence towards police officers when performing their duties is properly regarded as serious offending given its recidivist nature and the risk caused to police officers and members of the public.
The offence of armed robbery involving the use of the knife, committed at a service station and the threat to a service station attendant who was in a vulnerable position, performing his duties alone, in the early hours of the morning, was particularly serious. The offence of GBH must also be regarded as very serious. It was described by the Learned Sentencing Judge as an unprovoked attack upon the victim causing significant facial injury.
The frequency of the Applicant’s offending as referred to in Check Results Report,[41] commencing with his adult Court appearance on 11 January 2018 culminating in his sentence for armed robbery, GBH stealing, the cumulative effect of his offending and the trend of increasing seriousness, weighs very heavily against the Applicant.
[41] Exhibit A, pages 77-79.
The Applicant’s offending as referred to in the Check Results Report were all associated with alcohol consumption which started at about the age of 15 years and remained unchecked, undiagnosed and untreated as observed by Dr Treichel and Dr Yoxall.
To his credit, the Applicant has now recognised his alcohol problem and has engaged in various programs including with AA, subject to unavoidable restrictions arising from COVID- 19 and movement within immigration. His anger management course was not completed. However, as Dr Yoxall observed, that treatment and the moderate risk of reoffending has not been tested in the community against the normal stressors of life. The Applicant’s continued engagement with treatment regimes in the future is also untested. Were those the only factors for the Tribunal’s consideration, I would still have concerns about the Applicant’s risk or reoffending.
The Applicant offending in immigration detention must be taken into account particularly when having regard to the risk of reoffending.
The Applicant’s Counsel submits that because there is no evidence before the Tribunal about the circumstances surrounding the CCTV footage of the Applicant punching another detainee in the face, the Tribunal should have little or no regard to that incident. I reject that submission. As I have said, the facts contained in the Incident Detail Report speak for itself, and is an incident as described in that document, that I can, and do take into account. This was an act of violence that was not related to alcohol consumption.
The drug offending as I have said is very serious. The Applicant’s evidence about the realisation of the impact his offending has had, particularly on his mother and grandfather, the incentive this gives him not to reoffend, and his desire to return to live with his family, have not been sufficient to deter him from this offending.
When taking into account the whole of the evidence, the Applicant’s offender history is very serious, and I have no confidence that he will not commit further offences or engage in other serious conduct should he return to the community. That risk to the community is unacceptable.
Accordingly, I am satisfied that Primary Consideration 1 weighs very heavily in favour of the Respondent and the non-revocation of the Applicant’s visa cancellation.
Primary Consideration 2 – Family Violence
No evidence has been presented to the Tribunal that enlivens this Primary Consideration. The Applicant in his Statement of Facts Issues and Contentions submits “none of the Applicant’s offences involved family violence”. I agree with that submission. The weight to be given to this Primary Consideration is therefore neutral.
Primary Consideration 3 – The best interests of minor children in Australia
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     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);
·     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;
·     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;
·     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;
·     whether there are other persons who already fulfil a parental role in relation to the child;
·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·     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;
·     evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
At the first hearing, there was no claim by the Applicant that Primary Consideration 3 was enlivened, and the Tribunal rightly said it was not relevant. However, the Applicant in his affidavit dated 6 May 2022[42] said he has now become a godfather. His goddaughter A is the daughter of two good friends.
[42] Exhibit B, paragraph 11.
The Applicant has not met A in person but speaks with her parents regularly by video chats and also speaks to A. The Applicant said he feels that he and A are close and upon his return to the community, he would play an active role in her life. He looks forward to meeting her and to make a positive contribution to A’s life in the future.
In evidence, the Applicant said A was born in about October 2020 and turning two years of age this year. He first saw A by video call in or about February 2021 from the Brisbane Detention Centre. He continues to have regular video calls a couple times a week but while he is now imprisoned in Western Australia, it has become more difficult.
He said that he had been asked by her parents to become her godfather and that he will be an influence and have a positive impact upon A’s life. He is also someone she can look up to. The Applicant agreed that his criminal history was not a positive influence.
The Applicant conceded that no formal christening ceremony had taken place but that he is currently seen as A’s godfather. The Applicant said that if returned to New Zealand, A could visit him.
The Tribunal also notes that no evidence has been received from either one of A’s parents.
Conclusion Primary Consideration 3
The Applicant has never met A in person and there is no evidence to indicate that he will have any parental or other significant role in the care of A. No christening ceremony has occurred and as the Applicant is imprisoned in Western Australia and is yet to be sentenced for the possession of a trafficable amount of methylamphetamine, his future and ability to contribute to A is unclear.
The Applicant can continue to engage with A by video call or other electronic means and if returned to New Zealand, that option would still be available to him. Given the limited contact he has had with A to date and given A’s very young age, the Applicant’s returned to New Zealand would have a negligible effect upon A.
The Tribunal concedes that it would be in A’s best interest that she has the opportunity to develop a relationship with the Applicant in person but taking into account the nature of the relationship to date, any weight attributable to this Primary Consideration should be minimal.
Accordingly, I am satisfied that Primary Consideration 3 weighs slightly in favour of the revocation of the Applicant’s visa cancellation.
Primary Consideration 4 - The Expectations of the Australian Community
In making the assessment for the weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(1)acts of family violence; or
(2)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(3)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;
(4)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(5)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
(6)worker exploitation.

Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction[43].
[43] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Consistent with the Direction, the Australian community would expect the Applicant’s visa to remain cancelled. This must be so having regard to the seriousness of his offending, the commission of crimes against police officers in the performance of their duties, the seriousness of the violence that occurred in the offences of armed robbery and GBH, and the commission of admitted drug offences while in immigration detention.
It is for the Tribunal to determine the weight to be attributed to this Primary Consideration in the operation of the Tribunal’s decision.
It is relevant that the Applicant was born in New Zealand to parents who were Australian citizens, and that he returned to Australia when he was three years of age where he has remained. He has been wholly educated in Australia. He regards himself in every respect as an Australian citizen. His relocation to New Zealand will likely have an impact, to varying degrees, on his family and in particular his mother and grandfather both of whom are Australian citizens.
The Applicant’s offending as referred to in the Check Result Report occurred against a background of personal events including the death of a close family friend he regarded as an uncle, the breakdown in his mother's relationship with the Applicant’s step-father and the death of his grandmother, with whom he was very close to. He became involved with alcohol consumption, often binge drinking and had undiagnosed alcohol dependency. Other than his offending in immigration detention, his offending to which I am permitted to have regard was all alcohol related.
The Applicant committed a large number of street or nuisance offences to which I have referred until the commission of the offence of armed robbery when on probation, and GBH and stealing when on bail for the armed robbery offence. The Australian community may have some sympathy for the Applicant in regards the antecedent street or nuisance offences and his alcohol related issues, but the offending particularly against police during the performance of their duties, reinforces a community expectation that the Applicant’s visa should be cancelled as provided in Direction 8.4 (2)(d).
Further, the introduction of a knife into the robbery of a service station, the threat to the service station attendant, and the unprovoked violence to the victim of the GBH offence, are offences that the Australian community would not tolerate and expect the cancellation of the Applicant’s visa.
The numerous opportunities given to the Applicant by way of alternate sentencing options in which he failed to engage with community-based orders, failed to comply with probation orders and bail agreements and his general disregard for Courts and the laws of Australia, which were also evidenced in his driving offences, are factors which reduce both the trust and sympathy that the Australian community might otherwise extend to the Applicant. That sympathy is also eroded by the Applicant’s further offending in immigration detention while waiting the rehearing of his application before the Tribunal. It is also relevant that the Applicant’s offending, and violence whilst in custody or immigration, did not involve the consumption of alcohol.
Conclusion Primary Consideration 4
Having regard to those matters relevant to the weighing of this Primary Consideration, I am satisfied that Primary Consideration 4 weighs very heavily in favour of the Respondent and the non-revocation Applicant’s visa cancellation.
Other Considerations
It is necessary to consider the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
Other Consideration (a) - International non-refoulement obligations
No evidence has been presented to the Tribunal that enlivens this Other Consideration. The Applicant in his Statement of Facts Issues and Contentions submits “This consideration is not relevant”. I agree with that submission. The weight to be given to this Other Consideration is therefore neutral.
Other Consideration (b) - Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a.the non-citizen’s age and health;
b.whether there are any substantial language or cultural barriers; and
c.any social, medical and/or economic support available to that non-citizen in that country.
The Applicant came to Australia when he was three years of age. His parents were Australian citizens, and, in all respects, he identifies as Australian. He is currently 23 years of age and is physically in good health.
The Applicant’s treating GP referred to the Applicant having developed psychological issues since his mid-teens but does not provide any further information including diagnosis or treatment. He refers to increasing problems with alcohol and that the Applicant and his mother have made approaches regarding alcohol management programs but again provides no further detail. It is not clear whether the approaches related solely to the Applicant or included his mother who is a recovering alcoholic. His report is unhelpful.
I have referred to the psychological report of Dr Yoxall. She opined that the Applicant had developed a chronic substance misuse disorder which escalated in severity until the Applicant was imprisoned in 2019. This disorder involves psychological dysfunction, deviant behaviour, causes distress and involves dangerous behaviours. This disorder was diagnosed approximately four years prior to his imprisonment. She said that the Applicant’s insight in respect of his disorder and associated problems was limited. His offending escalated. However, the Applicant’s imprisonment has enabled him to develop insight into his disorder. Dr Yoxall referred to an incident of violence when first in custody when sober which was uncharacteristic but likely arose as a result of significant stress.
Albeit the Applicant has completed one drug and alcohol relapse prevention program and attended some AA meetings, Dr Yoxall opined that this treatment was not enough and the Applicant “requires an intensive, preferably residential, long-term alcohol rehabilitation program in the community that incorporates a model of graded, supported return to community as he develops strategies to ensure abstinence, and practices those strategies. In my view this would be the most beneficial pathway to return to the community, whether it is in Australia or New Zealand.”[44]
[44] Exhibit A, G7, page 262.
Although Dr Yoxall refers to such treatment occurring whether in Australia or New Zealand, there is no evidence before me about the nature and availability of treatment in either country and more particularly in New Zealand. Nor is there evidence about how the Applicant might engage in such treatment, whether any precondition must be satisfied or that the treatment contemplated by Dr Yoxall is available at all. Accordingly, I am unable to be satisfied about the availability of appropriate treatment in New Zealand which must add to the weight in favour of the Applicant and the revocation of his visa cancellation when considering this Other Consideration. Nonetheless, I am satisfied that there are psychological support services available to New Zealand and he would be able to access medical care and mental health care to the same level as other New Zealand citizens.
The Applicant has no memory of his life in New Zealand. At the time of the first hearing, a friend of the Applicant’s mother Ms JF, who resided in New Zealand said in an email dated 10 February 2020 that she had known the Applicant since his birth, that they remain close family friends and she has a son that is the same age as the Applicant. The Applicant’s Mother in an affidavit dated 19 July 2022 deposed to the breakdown in that friendship and that she did not believe the offer of support is now available. I accept that Ms JF is no longer a support person who would likely assist the Applicant should he return to New Zealand.
The Applicant has said in evidence that he does not have a relationship with his father and does not know his current whereabouts. I accept that evidence. I am satisfied that the Applicant has no social or economic ties to, or support in New Zealand. Although culturally and linguistically similar to Australia, the Applicant will have some difficulty integrating into the New Zealand community. This will have some impact on his mental health and arguably create a level of stress and distress which in turn may result in the Applicant relapsing into alcohol use and abuse.
The Applicant said that his return to New Zealand would have “a massive toll” on his mental health having been taken away from his only family members, namely his mother and grandfather. He referred to his grandfather being unwell, that he has been diagnosed with cancer and albeit there is no current medical information about his life expectancy. To be separated from his grandfather will be distressing to both the Applicant and his grandfather. The Applicant said that relocation to New Zealand will likely result in him not seeing his grandfather in person again, and to not be able to attend his funeral would be devastating. That stress and distress caused by the separation from his mother and grandfather, would, to some extent be reduced by his ability to maintain contact by telephone and through other electronic means in the same way he has done during his period in custody and immigration detention.
Nonetheless, the Applicant has completed his year 12 schooling, 18 months of a boilermaker apprenticeship, and worked briefly for Eco Drilling Solutions before being imprisoned. He has the support of Ms JB who is the co-owner of Eco Drilling Solutions and who provided a letter of support to the Tribunal. She remains supportive of the Applicant, and I infer would provide a letter of support to any prospective employer in New Zealand. Accordingly, he has the capacity to integrate into the New Zealand community and achieve a standard of living comparable to other New Zealand citizens.
Conclusion Other Consideration (b)
Albeit the Applicant will initially have some issues returning to New Zealand without the familial and other work and friendship supports he would enjoy in Australia; the Applicant has the capacity to establish himself in New Zealand and maintain the same basic standards of living enjoyed by other New Zealand citizens.
Accordingly, weighing up all the relevant evidence, I am satisfied Other Consideration (b) is to be given medium weight in favour of the Applicant and the revocation of the Applicant’s mandatory visa cancellation.
Other Consideration (c) – Impact on Victims
This Other Consideration (c) requires that decision-makers must consider the impact of the s 501 or s 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 is being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
No evidence has been presented to the Tribunal that enlivens this Other Consideration. The Applicant in his Statement of Facts Issues and Contentions submits that “No information in this regard is available. Accordingly, this consideration is not relevant”. I agree with that submission. The weight to be given to this Other Consideration is therefore neutral.
Other Consideration (d) - Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that I must have reflect the principles in paragraph 5.2, and that I must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
(a)the strength, nature, and duration of ties to Australia; and
(b)the impact on Australian business interests.
The strength, nature and duration of ties to Australia
Paragraph 9.4.1 (1) obligates the Tribunal to consider any impact of the decision upon the Applicant’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.
Paragraph 9.4.1 (2) obligates the Tribunal to also consider the strength, nature and duration of any other ties the Applicant has to the Australian community and in doing so the Tribunal 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.
The Applicant’s immediate family are his mother and grandfather both of whom are Australian citizens. He speaks with them by telephone every day.[45]
[45] Exhibit A, Transcript, page 26, lines 31-45.
The Applicant’s mother Mrs HDWH
Mrs HDWH provided a statement dated 19 August 2019.[46] She said that the Applicant was her only child and was the love of her life. She referred to his poor life choices, strong nature but also his lack of confidence which she said was contributed to when he was bullied during his apprenticeship as a boilermaker. She confirmed the Applicant turned to alcohol use and that he cannot handle alcohol. She detailed the Applicant’s qualities and opined that with right professional support and guidance he can turn his life around. She said he had a new boilermaker apprenticeship organised and had attended rehabilitation course to help with his alcohol and behavioural problems. She also said that the Applicant needs help which has been arranged for him, that he is not a drug user albeit the Applicant reported that drug use is rife in prison. She referred to his period in custody as opening his eyes that he does not want to return to custody, and he needs help. She described the Applicant as her whole world, that she will do everything to help him become accountable and live life by life forms and not his own.
[46] Exhibit A, page 413.
In a handwritten letter dated 10 February 2020,[47] Mrs HDWH outlined the Applicant’s upbringing including 12 years spent with his stepfather together with the support of her parents. She described the Applicant as having a privileged childhood and a never-ending amount of love. She described herself as a recovering alcoholic who stopped drinking eight years ago and is a member of AA. She said the Applicant had inherited her addiction to alcohol.
[47] Exhibit A, page 306-309.
Mrs HDWH restated that since his incarceration, the Applicant has developed an awareness of his situation and also that he continues to have the support from family and friends. His completed courses relating to his drinking and violent behaviour, attends AA meetings and has gained new found respect. She confirmed his plans are to remain sober and committed to AA. She also confirmed that he has employment immediately available upon his release and that he has her complete support, and she will not give up on him.
In an affidavit dated 19 July 2022, Mrs HDWH provided a history of both her and the Applicant’s life. She confirmed that the Applicant has not met his natural father and has no contact with him or his family. She confirmed her parents were very involved in the Applicant’s upbringing and the Applicant was very close to his grandparents. The Applicant’s grandmother passed away in 2017 which had a significant impact on the Applicant. He still remains very close to his grandfather.
In the same affidavit[48], Mrs HDWH detailed the grandfather’s current health issues. He has been diagnosed with melanoma which has spread to his lymph nodes, and that recent surgery was unsuccessful in removing his cancer. There is no more practical treatment available. Once Mrs HDWH’s father dies, her only family will be the Applicant.
[48] Exhibit C.
Evidence at the first hearing
Mrs HDWH again said that the Applicant was her whole life and that her life has been turned upside down and been on hold and she needs her son to come home.[49]
[49] Exhibit A, Transcript, page 37 lines 25 – 32.
She said the Applicant’s relocation to New Zealand would have a dramatic effect on her. Her father is very ill, and she cares for him and it’s not an option for her to move to New Zealand.[50] She also detailed her father’s heart condition and blood infection which resulted in seven weeks in hospital, he nearly died and that she was now caring for him.[51] He has memory and cognitive issues. She said that her world has been in turmoil over the last two years and if the Applicant were returned to New Zealand, she would have to stay in Australia and look after her father.[52] She promised her father she would not put him in an assisted care facility.[53]
[50] Exhibit A, Transcript, page 37, lines 41-47.
[51] Exhibit A, Transcript, page 49, lines 19-31.
[52] Exhibit A, Transcript, page 50, lines 5 – 7.
[53] Exhibit A, Transcript, page 54, lines 1 - 2
Mrs HDWH referred to the guilt and distress she feels for not having arranged for the Applicant to be granted Australian citizenship by descent. She was unaware of that requirement and thought he was automatically an Australian citizen.[54]
[54] Exhibit A, Transcript, page 50, lines 10 – 14.
Mrs HDWH said that she visited the Applicant whenever she could and that all her weekends were dedicated to visiting him until he was moved to Western Australia. She has not seen him in person since March 2020. He rings every day.[55] She said she would visit the Applicant if he returned to New Zealand, but I accept she will not relocate to New Zealand while she continues to care for her father.
[55] Exhibit A, Transcript, page 52 lines 26 – 43.

The Tribunal also received a short, handwritten letter from Mrs HDWH’s treating GP Dr Treichel dated 1 March 2021. He confirmed Mrs HDWH is suffering from severe anxiety symptoms because of the threat of the Applicant’s imminent forced deportation from Australia.
The Applicant’s grandfather
The Applicant’s grandfather is in poor health. He has a very close and loving relationship with the Applicant with whom he speaks daily. In a letter dated 13 August 2019, he referred to his friends who offered their support to the Applicant. He said he would do everything for his grandson.[56] He also confirmed his love and support for the Applicant in a handwritten letter dated 19 February 2020.[57]
[56] Exhibit A, page 106 and 417.
[57] Exhibit A, pages 310-311.
Given his current health issues, I accept that the Applicant’s grandfather will not be able to travel to New Zealand to see the Applicant and that if relocated to New Zealand, it is very unlikely that he will see the Applicant in person again. I accept that the Applicant’s relocation to New Zealand will be very distressing to him.
Other ties
Mrs HDWH said she was adopted and had a brother who resided in Melbourne. They are estranged and she and her father have no contact with him. He will not help with the care of the Applicant’s grandfather.[58]
[58] Exhibit A, Transcript, page 53 lines 10 – 42.
The Tribunal received a number of letters of support for the Applicant including from his stepfather[59], stepsister[60], family friends[61], from Ms JB who is a co-owner of Eco drilling[62], from his rugby league football coach[63],from HB Rugby Club[64], to the Queensland parole board in support of the bail application,[65] all of which were part of the evidence at the first hearing. A letter from Bridges Health and Community Care dated 6 August 2019 which is a provider of community-based drug and alcohol treatment and mental health services offered assistance to the Applicant including treatment, withdrawal management and Counselling should he return to the community.
[59] Exhibit A, page 107.
[60] Exhibit A, page 113.
[61] Exhibit A, page 108-109, 115, 116 and 118.
[62] Exhibit A, page 110 and 114.
[63] Exhibit A, page 117.
[64] Exhibit A, page 412.
[65] Exhibit A, pages 111-112.
The Tribunal is satisfied that an adverse decision will have a significant impact upon both the Applicant’s mother and grandfather and in particular, his mother. As evident by the large number of letters of support, the Applicant also has strong longstanding ties to the Australian community.
I am obliged to have regard to Direction 9.4.1 (2) (a) and (b) in determining the weight to be given to the Other Consideration.
The Applicant has resided in Australia since he was 3 years old. I am to have regard to his offending which commenced as an adult in December 2017 and for which he was dealt with in the Hervey Bay Magistrates Court on 11 January 2018. The Applicant was then 18 years old. Given the passage of time since his arrival in Australia and his offending, it is not appropriate to reduce the weight to be given to this Other Consideration.
I take into account that the Applicant after completing his schooling was employed as an apprentice boilermaker for about 18 months, worked briefly at Eco Drilling Solutions. He was involved in the HB Rugby Club for 10 years where he was highly regarded[66] and as evidenced by the large number of letters of support, he enjoyed strong community relations including with sports clubs, until he was imprisoned in 2020 when he was 20 years of age. He has been asked to be a godfather to the child of close friends which is further evidence of the regard other people have for him.
[66] Exhibit A, page 412.
The impact on Australian business interests
Direction 9.4.2 (3) obligates the Tribunal to consider the impact on Australian business interests noting that employment link would generally only be given weight when the decision would significantly compromise the delivery of a major project, or delivery of an important service to Australia.
The Applicant argues that because the Applicant previously worked in the Australian community and has an offer of employment, that his potential deportation will have some impact on Australian business and the Tribunal may give some weight to the impact on Australian business interests as part of the overall consideration to Other Consideration (d).
I respectfully reject that submission. It is not suggested by the evidence nor the letter from Ms JB that there will be any impact on Australian business. Ms JB and her husband knew the Applicant following Mrs HDWH working for them as a cleaner. The Applicant was due to commence work for their company in July 2020 which was interrupted because of his sentence of imprisonment. They generously maintain the offer of employment to provide support, mentoring, and enable the Applicant to change his life and make positive changes and provide him with guidance. That is commendable. But that does not translate to the impact on Australian business interests as contemplated by the Direction.
Conclusion Other Consideration (d)
The Applicant was born in New Zealand to Australian citizens. He does not know his father and when trying to engage with him, he was unable to establish any relationship. He has resided in Australia since he was 3 years of age, completed his schooling in Australia and in all respects regards himself as an Australian citizen. The sole reason he is not an Australian citizen is because his mother believed his citizenship was automatic and did not know that she was, prior to the Applicant turning 18 years of age, required to apply for the Applicant to granted citizenship by descent. The Respondent argues that the Applicant is for all intents and purposes an Australian. That argument genders some sympathy for the Applicant albeit as a matter of law, he remains a New Zealand citizen.
The Applicant argues that this enlivens an Other Consideration for the Tribunal’s Consideration however, I am of the view that this is relevant to and further strengthens the Applicant’s link to the Australian community which I take into account in the weight to be given to Other Consideration (d) in favour of the Applicant.
The Applicant’s links to the Australian community are significant. His only family is his mother and grandfather both of whom have health issues and in respect of his grandfather, should the Applicate relocate to New Zealand, it is unlikely that his grandfather will see the Applicant in person again.
The Applicant argues that the passionate and compelling circumstances relating to the Applicant’s grandfather, his illness, that he may not see the Applicant again, and that the Applicant’s mother will be required to look after the grandfather ought to be a separate Other Consideration. However, Direction 9.4.1(1) informs the Tribunal to consider the impact of the decision on the Applicant’s immediate family members in Australia which I have done, and which includes those passionate and compelling circumstances. The matters raised by the Applicant fall to be considered under Other Consideration (d) and not in a separate Other Consideration.
The Applicant’s links to the Australian community are significant. That he remains a New Zealand citizen and that both immediate family members are unwell, and his grandfather is terminally ill satisfy me that Other Consideration (d) weighs heavily in favour of the revocation of the Applicant’s mandatory visa cancellation.
CONCLUSION
Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either (1) the Applicant must be found to pass the character test, or (2) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
Based upon the Applicant’s serious offending, he does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to those considerations referred to in the Direction. However, of particular importance in the Tribunal’s decision is the increasing seriousness of the Applicant’s offending with regards the offences of armed robbery and GBH; and the seriousness of his drug offending committed whilst in immigration detention and when awaiting a rehearing of his remitted application for review.
Accordingly, the Tribunal finds:
(a)Primary Consideration 1 – Protection of the Australian community – weighs very heavily in favour of the Respondent and the non-revocation of the Applicant’s visa cancellation;
(b)Primary Consideration 2 – Family violence – is of neutral weight;
(c)Primary Consideration 3 – Best interests of minor children – weighs slightly in favour of the Applicant and the revocation of the Applicant’s visa cancellation;
(d)Primary Consideration 4 – Expectations of the Australian community – weighs very heavily in favour of the Respondent and the non-revocation of the Applicant’s visa cancellation;
(e)Other Consideration (a) – International non-refoulement obligations – is of neutral weight;
(f)Other Consideration (b) – Extent of impediments if removed – is given medium weight in favour of the Applicant and the revocation of the Applicant’s visa cancellation;
(g)Other Consideration (c) – Impact on victims – is of neutral weight;
(h)Other Consideration (d) – Links to the Australian community – weighs heavily in favour of the Applicant and the revocation of the Applicant’s visa cancellation.
The Protection of the Australian Community and the Expectations of the Australian Community Considerations, in my view, are so significant, particularly in light of the Applicant’s offending in immigration detention, that they outweigh the Primary and Other Considerations that weigh in the Applicant’s favour. Therefore, the combined very heavy weight of Primary Considerations 1 and 4 is such that it outweighs the combined weight attributed to Primary Consideration 3 and Other Considerations (b) and (d).
The Tribunal therefore finds that, taking into account all of the Considerations in the Direction, they weigh against the revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, the Tribunal does not exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
For the reasons outlined above, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review dated 2 June 2021.

I certify that the preceding two hundred and seven (207) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth.

..............[sgnd]..............................
Associate
Dated: 18 November 2022

Dates of hearing: 27 September 2022

Advocate for the Applicant: Dan Fuller, Wentworth Barristers Chambers

Advocate for the Respondent: Hannah Anderson, Clayton Utz

[2022] AATA 4064

18 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies

Dates of hearing:	27 September 2022
Advocate for the Applicant:	Dan Fuller, Wentworth Barristers Chambers
Advocate for the Respondent:	Hannah Anderson, Clayton Utz