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

[2022] AATA 3548

Hewett and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3548 (19 October 2022)

Division:GENERAL DIVISION

File Number:          2022/6137

Re:Keith Hewett  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Member D Cosgrave

Date of Decision:               19 October 2022

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent, dated 27 July 2022, to not revoke the cancellation of the Applicant’s visa.  

…………………………………….
Member D Cosgrave

CATCHWORDS

MIGRATION – Cancellation of Applicant’s visa under s501(2) of the Migration Act 1958 - where Applicant does not pass the character test – whether discretion not to exercise the power to cancel the subject visa – consideration of Ministerial Direction No. 90 – serious violent offences– multitude of drug and domestic-violence related offending – decision under review affirmed

Legislation

Acts Interpretation Act 1901 (Cth)

Migration Act 1958 (Cth)

Cases

Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115

Dore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 1750

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166

Jagroop and Minister for Immigration and Border Protection (2016) 241 FCR 461

Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66

Minister for Home Affairs v Buadromo [2018] FCAFC 151Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47

Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301

Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296

SECONDARY MATERIAL

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

Member D Cosgrave

19 October 2022

Contents

Decision

CATCHWORDS

Legislation

Cases

REASONS FOR DECISION

Introduction

LEGISLATIVE FRAMEWORK

Does the Applicant Pass the Character Test?

Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?

BACKGROUND

Birth and Migration History

Mental Health

OFFENDING HISTORY

PROTECTION OF THE AUSTRALIAN COMMUNITY

The Nature and Seriousness of the Applicant’s Conduct to Date

Paragraph 8.1.1(1)(a)(i)

Paragraph 8.1.1(1)(b)(ii)

Traffic Offences

Paragraph 8.1.1(1)(d)

Paragraph 8.1.1(1)(e)

The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

Nature of harm should the Applicant engage in further criminal or other serious conduct

Likelihood of engaging in further criminal or other serious conduct

Conclusion: Primary Consideration 1

FAMILY VIOLENCE

Conclusion: Primary Consideration 2

THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

Conclusion: Primary Consideration 3

THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

Conclusion: Primary Consideration 4

OTHER CONSIDERATIONS

Other Consideration (a): International non-refoulement obligations

Other Consideration (b): Extent of impediments if removed

The Applicant’s written submissions

The Respondent’s written submissions

Other Consideration (c): Impact on victims

Other Consideration (d): Links to the Australian Community

Strength, nature and duration of ties

Impact on Australian business interests

Findings: Other Considerations

CONCLUSION

Is there another reason to revoke the cancellation of the Applicant’s visa

DECISION

Introduction

1. The Applicant is a 48-year-old New Zealand citizen.  He moved to Australia on a permanent basis in September 1987 when he was 13-years-old and has spent much of his life in Australia.  The most recent visa held by him was a Class TY Subclass 444 Special Category (Temporary) visa (the Visa).

2. On 9 December 2021, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) mandatorily cancelled the Applicant's visa pursuant to s501(3A) of the Migration Act1958 (Cth) (the Act).  They did so on the basis that the Applicant did not pass the character test and was serving a full-time term of imprisonment for an offence against a law of a State (s501(6)(a) and s501(7))[1].

   [1] R1, G3, p 20.

3. On 21 December 2021 the Applicant sought revocation of the cancellation decision and made representations in support of that request.

4. On 27 July 2022, the Respondent’s delegate decided that the discretion in s501CA(4) of the Act to revoke the cancellation decision was not enlivened. On 28 July 2022 the Applicant received notice of that decision.

5. On 29 July 2022, the Applicant applied to the Tribunal for review of that decision[2]. This Tribunal has jurisdiction to review the decision pursuant to s500(1)(ba) of the Act.

   [2] R1, G2 p 6.

6. The hearing of this matter took place on 5 October 2022.  The Applicant, his mother and his former partner, CD, gave evidence.  The Tribunal also received the written evidence that is listed in the attached exhibit list marked ‘Annexure A’.

   LEGISLATIVE FRAMEWORK

7. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act which provides that:

   “The Minister may revoke the original decision if:

   (a)    the person makes representations in accordance with the invitation; and

   (b)    the Minister is satisfied:

   (i)that the person passes the character test (as defined by section 501); or

   (ii)that there is another reason why the original decision should be revoked.”

8. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act within the requisite statutory time frame[3].

   [3] R1, G10.

9. The issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised.  As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[4]

   “…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[5]

   [4] [2018] FCAFC 151.

   [5] ibid, para [21], citing, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, para [38]; Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, para [31].

10. There are therefore two issues presently before the Tribunal:

    ·whether the Applicant passes the character test; and

    ·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

11. If either of Paragraphs (i) or (ii) are satisfied, I should revoke the original decision.[6]

    [6] Minister for Home Affairs v Buadromo [2018] FCAFC 151.

    Does the Applicant Pass the Character Test?

12. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”.  This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.  Accordingly, failure of the character test arises as a matter of law.[7]

    [7] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA 47, para [63].

13. On 5 November 2021, Magistrate McLennan sentenced the Applicant to a term of fifteen (15) months’ imprisonment.  He consequently has a “substantial criminal record” and does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

    Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?

14. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions 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.[8]

    [8] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.

15. For the purposes of deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, Paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of Part 2 of the Direction.

16. Those principles may be briefly stated as follows:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.  Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns.  This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other 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.

    (5)Decision-makers must consider 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.

17. 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 sections 8 and 9, where relevant to the decision.

18. Paragraph 8 of the Direction sets out the four (4) Primary Considerations that the Tribunal must consider.  These 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.

19. Paragraph 9 of the Direction sets out the four (4) Other Considerations which must be considered.  These are:

    a)international non-refoulement obligations;

    b)extent of impediments if removed;

    c)impact on victims; and

    d)links to the Australian community, including:

    i)strength, nature and duration of ties to Australia; and

    ii)impact on Australian business interests

20. Paragraph 7(2) of that Direction provides that the Primary Considerations should generally be given greater weight than the Other Considerations.  Further, Paragraph 7(3) provides that one (1) or more Primary Considerations may outweigh other Primary Considerations.

21. I will address the background and chronology before turning to the Primary and Other Considerations.

    BACKGROUND

    Birth and Migration History

22. The Applicant was born in New Zealand on 11 August 1974.  He has a brief migration history as he has resided predominately in Australia.

23. He first travelled to Australia on 1 September 1986, but he departed shortly afterwards on 13 September 1986.

24. On 26 August 1987, at the age of 13, the Applicant again travelled to Australia and has not left since[9].

    [9] R1. G20, p 236.

    Mental Health

25. In or around 1999, the Applicant was diagnosed with paranoid schizophrenia[10].

    [10] R1, G3, pp 25-27, Letter of Dr Aniket Bansod dated 31 December 2021.

26. The Applicant has experienced methamphetamine addiction, as well as alcohol and marijuana use at times over a long period.

27. He has had multiple admissions as an acute inpatient in the Mental Health Unit at Cairns Hospital between 2011 and 2019.  His paranoid schizophrenia is treatment resistant, severe, and probably life­long.

28. On 5 February 2019, the Mental Health Review Tribunal (MHRT) placed the Applicant on a Forensic Health Order due to his inability to manage his mental illness[11].

    [11] R1, G13, p 97; A7, p 208.

29. It is clear on the evidence that he requires support from health services to assist with management of his illness[12].

    [12] R1, G3, pp 25-27.

30. On 5 November 2021, Magistrate McLennan found, on the basis of the psychiatric evidence before her, that the Applicant is encumbered by his diagnosed paranoid schizophrenia, antisocial personality disorder and polysubstance abuse involving methamphetamine, marijuana, and alcohol[13].

    [13] R1, G7, p 52.

    OFFENDING HISTORY

31. The following is a tabularised summary of the Applicant’s offending history:

Date	Offence	Outcome
08-Aug-89	Two (2) charges of unlawful use of a motor vehicle.	Twelve (12) months' supervision.
15-Aug-89	Possession of dangerous drugs. Break and enter with intent.	Convicted Two (2) years' care and control.
17-Oct-89	Production of dangerous drugs.	Convicted Two (2) years' care and control.
22-May-91	Unlawful use of a motor vehicle with circumstances of aggravation. Unlawful use of a motor vehicle. Wilful and unlawful damage to property.	Convicted Care and control until 18 years of age and restitution.
27-Apr-95	Breach of bail conditions.	Convicted Fined $240.
12-Dec-96	Stealing.	Convicted Fined $300 - in default, 13 days' imprisonment.
15-Mar-99	Obstructing a police officer. Possessing dangerous drugs.	Convicted & Fined $75. In Default Imprisonment 2 Days. Time To Pay 3 Months. Convicted & Fined $225 In Default Imprisonment 6 Days. Time To Pay 3 Months
03-Mar-05	Possessing dangerous drugs.	Convicted and fined $600. In default imprisonment of 12 days.
21-Dec-05	Possessing utensils or pipes etc for use.	No conviction recorded. Recognizance of $400 and to be of good behaviour for 12 months with drug diversion.
08-Sep-06	Obstructing a police officer.
01-May-07	Reopening of sentence imposed on 8 September 2005.	Convicted and fined $250
01-May-07	CC stealing. Breach of order. Obstructing a police officer.	Convicted and fined $400. Restitution $188.74 One penalty imposed Convicted and fined $500
10-Sep-07	Possessing dangerous drugs.	Convicted and fined $350
20-Oct-09	Possessing utensils or pipes etc that had been used. Producing dangerous drugs Possessing dangerous drugs. Possessing utensils or pipes etc that had been used (on 4 October 2008).	On all charges, conviction recorded. Probation of 18 months.
06-Dec-10	Breach of order.	Conviction recorded. Probation period of 12 months.
15-Dec-12	Breach of probation order. Breach of domestic violence order. Breach of probation order. Possessing utensils or pipes etc that had been used. Producing dangerous drugs. Possessing dangerous drugs. Three (3) incidents of drink driving (low range). Three (3) incidents of unlicensed driving.	Conviction recorded. Sentenced to 6 months' imprisonment. Suspended for 1 year. Concurrent for breach of orders. Conviction recorded but no further punishment
08-Dec-17	Contravention of domestic violence order. Breach of bail conditions.	Conviction recorded. Fined $500 Conviction recorded. Not further punished.
21-May-19	Contravention of domestic violence order between 11 June 2015 and 14 June 2015. Contravention of domestic violence order on 1 August 2015, Failure to stop motor vehicle. Possessing utensils or pipes etc that had been used. Failure to dispose of needle and syringe. Possessing utensils or pipes etc that had been used. Possessing dangerous drugs. Possessing utensils or pipes etc that had been used. Assault or obstructing a police officer Domestic violence offence, Contravention of domestic violence order Dangerous operation of a vehicle speeding or unlawful race or unlawful speed trial, Contravention of domestic violence order, Contravention of domestic violence order Contravention of domestic violence order, Breach of bail on all charges Domestic violence offence, Breach of bail conditions, Breach of bail conditions Possession of a knife in a public place	On all charges convictions recorded. Imprisonment of 263 days concurrent. Declaration that time spent in pre-sentence custody deemed as time already served. Parole release date 21 May 2019
30-Aug-19	Possessing dangerous drugs Possessing pipes or utensils that had been used.	Convicted on all charges. Fined $300
09-Sep-19	Failure to appear in accordance with undertaking. Stealing	Conviction recorded. Fined $300.
14-Oct-19	Stealing	Conviction recorded. Fined $200.
05-Nov-21	Offence to operate vehicle during number plate confiscation period. Possessing dangerous drugs Obstructing a police officer Evasion offence Dangerously operate or interfere with vehicle	Convicted on all counts. Imprisoned. Release date 15 January 2022
07-Jan-22	Appeal against orders imposed on 5 November 2021	Appeal dismissed.

1. The Applicant first started offending as a juvenile (aged 14) in July 1989, by way of two (2) counts of unlawful use of motor vehicle.  He was sentenced to 12 months’ supervision for each charge on 8 August 1989[14].

   [14] R1, G4, p 33.

2. The Applicant continued his offending as an adult and from March 1995 to January 2009 committed some fifty-two (52) offences ranging from failing to wear a helmet while riding a bicycle to breaching a domestic violence order and obstructing police[15].

   [15] R1, G4, pp 31-32; R2, pp 212-218.

3. In 2004, the Applicant began a relationship with CD[16] which appears to have existed until 2018 or 2019.  Notably, the Applicant was served with seven (7) domestic violence orders during this period[17] in relation to CD.

   [16] R1, G14, p 99; G22 p 121.

   [17] R2, pp 3-5, 9-10 and 13.

4. On 20 October 2009 the Applicant was sentenced to 18 months’ probation for drug related offending as well as drink driving and driving unlicensed[18].

   [18] R2, pp 219.

5. On 6 June 2010 the Applicant had breached that order by driving without a license[19].

   [19] R2, p 220.

6. He also breached a domestic violence order between 2 and 5 December 2010.  For the latter he was sentenced to a further 12-month period of probation on 6 December 2010[20].

   [20] R2, G4, p 31.

7. The Applicant was served with domestic violence orders on 3 August 2010, 23 December 2010, 15 January 2011 and 24 January 2011[21].

   [21] R2,pp 4-14.

1. The Applicant again offended on 27 September 2011 in breach of his probation, by breaching a domestic violence order.  On 15 February 2012 he was sentenced to a period of imprisonment of six months, to be wholly suspended for one year[22].

   [22] R1, G4, p 31.

2. In October 2012 the Applicant committed further traffic offences[23] and was served with a further domestic violence order on 23 July 2014, which was effective until 10 July 2016 (TB/2).  From 2014 onwards, the Applicant’s offending became more serious and was punctuated by instances of domestic violence against CD.

   [23] R2, p 209.

3. On 4 July 2014, police were called to an incident between the Applicant and CD, where after an argument about money, the Applicant began smashing furniture and assaulted her[24].

   [24] R2, pp 17-18.

4. On 14 August 2014, the Applicant entered CD’s home without her permission and in knowing breach of a domestic violence order.  Despite being asked to leave, the Applicant remained in CD’s home.  The Applicant breached the order in a similar fashion on 25 December 2014[25].

   [25] R2, pp 38, 42.

5. On 3 June 2015, the Applicant was served with a domestic violence order protecting his stepfather[26].

   [26] R2, p 72.

6. On 12 June 2015, the Applicant entered CD’s home, begging her to let him stay, because he had nowhere else.  The Applicant started chopping Marijuana and was asked to stop making a mess by CD.  In response the Applicant verbally abused CD calling her a “fucking whore" and threatened to put a knife in her head.  CD left the home while the Applicant was sleeping and left a note for the Applicant, which caused the Applicant to call and abuse her further[27].

   [27] R2, p 241.

7. On 1 August 2015, the Applicant flagged CD down whilst driving, When she refused to give him a lift so that he could ‘chop up" another woman and his mother with a chainsaw, the Applicant produced a knife and held it towards her, causing CD to drive away[28].

   [28] R2, p 242.

8. On 12 November 2015, CD went and met the Applicant at a local public house, before moving to a nearby park for coffees. The Applicant began discussing troubling topics and CD attempted to leave. The Applicant stood behind the car to prevent her from leaving and she called the police. The Applicant admitted this behaviour was designed to control CD[29].

   [29] R2, pp 59-60.

9. On 21 December 2015, the Applicant attended his stepfather’s place of work, and after an argument, punched his stepfather in the face[30].  The Applicant was charged with contravention of an aggravated domestic violence order (aggravated offence) and common assault - Domestic Violence offence[31].

   [30] R2, pp 72-73.

   [31] R1, G6, pp 41-42; G8, pp 57-58.

10. On 29 December 2015, the Applicant attended CD’s home to discuss their joint back account.  During this discussion the Applicant stabbed CD, punched her in the face and ordered her to remain at home, rather than seeking medical attention.  The Applicant was charged with Wounding, assaults occasioning bodily harm and contravention of domestic violence order (aggravated offence)[32].

    [32] R2, pp 67-68.

11. On 30 December 2015, the Applicant was held on remand until 1 June 2016 when he was released on bail[33].

    [33] R1, G4, p 30.

12. On 26 July 2016, in breach of both his bail and a domestic violence order, causing it to be an aggravated offence, the Applicant was found to be hiding in CD’s home.  When discovered he attempted to hide from police in a nearby cane field[34].

    [34] R2 pp 244-246.

13. On 6 November 2016, again in breach of both his bail condition and a domestic violence order, he was arrested in CD’s home[35].

    [35] R2, pp 90-91.

14. A further domestic violence order was made for CD’s protection on 4 February 2017[36], which the Applicant subsequently breached by entering CD’s home on 13 February 2017[37].

    [36] R2, pp 95-96.

    [37] R2, p 97.

15. On 25 March 2017, at the Applicant’s request, CD picked up the Applicant from Palm Cove as he claimed to have been kicked out of his residence.  The Applicant became agitated once being picked up and claimed he would "kill the whole world" and that if he were to commit suicide it would be on CD’s head.  The Applicant became angry and agitated later that evening, and CD asked her mother to call the police[38].  The Applicant was placed on remand on the same day[39].

    [38] R2, p 247.

    [39] R1, G4, p 35.

16. On 6 April 2017, whilst the Applicant was on remand, a letter was seized from the Applicant’s cell, addressed to CD, which encouraged her to withdraw or alter her evidence in respect of the wounding and assault occasioning bodily harm offences[40].  This resulted in a charge of attempting to pervert the course of justice.

    [40] R2, p 101.

17. On 10 July 2017, the Applicant was released from prison[41].

    [41] R1, G4, p 30.

18. On 7 December 2017, the Applicant again breached his domestic violence order in respect of CD[42].

    [42] R2, p 109.

19. Between February 2018 and August 2018, the Applicant committed eighteen (18) driving offences including multiple drug driving and speeding offences[43].

    [43] R2, pp 204-207.

20. The Applicant was also convicted of possession of knife in a public place or school and multiple drug related offences[44].

    [44] R1, G4, p 31.

21. On 6 February 2019, the Applicant was charged with possess utensils or pipes for use and possessing dangerous drugs[45].

    [45] R2, p 139.

22. On 21 May 2019 the Applicant was convicted of fourteen (14) offences dating back to 2014.  He was given a head sentence of 263 days imprisonment.  Pertinently, the Applicant was convicted of five (5) counts of contravention of domestic violence order and one (1) count of contravention of domestic violence order (aggravated offence).

23. On 7 June 2019, the Applicant offended again, being charged for driving whilst disqualified[46].

    [46] R2, p 143.

24. On 7 August 2019, the police were called to the Applicant’s mother’s house after the Applicant abused his mother (with his stepfather as a witness), demanded money and food and threatened to kill her if she did not comply.  It was only on threatening to call the police that the Applicant left the property.  The police recorded after speaking with the Applicant’s mother that this behaviour had been occurring for several years and that the Applicant used threats of self-harm as coercion.  Other witnesses the police spoke to on this occasion supported the Applicant’s mother’s account and said that they were fearful that the Applicant would kill his mother.  The witnesses said that the Applicant was violent towards his mother.  The mother said she was fearful of the Applicant and did not feel safe around him[47].

    [47] R2. p 23.

25. Police concluded that this behaviour – the demanding of money and the use of threats of self-harm or violence towards his mother – constituted elder abuse by the Applicant.  The police observed that the Applicant is a drug user and is constantly after funds to support his drug taking, using controlling behaviour against his mother.  The police formed the opinion, after talking to the Applicant’s mother, that the abuse had prevailed for a significant period and was not likely to stop, and that as the Applicant’s mother is 74 years old and of thin build, a domestic violence order is necessary and desirable to protect her and her spouse, the Applicant’s stepfather, as the Applicant has abused his stepfather as well over the preceding period[48].

    [48] ibid.

26. On 8 August 2019, two (2) further domestic violence orders were issued protecting CD, the Applicant’s mother and his stepfather.  These orders are in place until 8 August 2024[49].

    [49] R2, pp 1-2.

27. The Applicant continued to offend regularly through September 2019 before committing the further offence (on 15 October 2019) which led to the cancellation of his visa.

28. Magistrate McLennan’s remarks describe the Applicant’s offending in some detail and convey the intrinsic risks inherent in the Applicant’s combination of offending conduct:

    “So the first lot of offences are on the 8th of October 2019, about five months after you had been sentenced on offences including an evade offence and a - other offences.

    On the 9th - sorry - the 8th of October 2021, police, due to your manner of driving, were alerted to you driving a vehicle. They observed you turn quickly onto Lyons Street in a silver Mitsubishi Magna from Mann Street. They checked the police computer system and found that you were driving on cancelled plates. Plates had been originally attached to a Holden Astra. The - when they stopped your vehicle, they asked who owned the car, and they discovered that the car was unregistered and uninsured. When they spoke to you and you identified yourself as Keith Hewett, you were unable to produce your licence, and computer system checks revealed that you were disqualified from driving or obtaining a licence.

    Now, the files indicate that you were issued with a notice to appear and were charged with those offences on the 8th of October 2019. First date you were before the Court was the 1st of November 2019, where you were put on bail. But, having been charged with that offence on the 8th - those offences on the 8th of October 2019, it was one week later, the 15th of October 2019, when you were again stopped by police. Police intercepted you on that date again because of your manner of driving on Spence Street, Bungalow, after you had driven in a dangerous manner and evaded the police. So about 10.30 am, police were conducting patrols. They observed you driving a vehicle. Plate checks found that the vehicle had, once again, false plates that belonged here to a different car, a white-colour Hyundai hatchback.

    They performed a U-tum and observed the - you and your vehicle turning left at a roundabout from Gatton Street, Parramatta Park onto Severin Street, Parramatta Park, quite a busy thoroughfare. It was 10.30 in the morning. Police followed you in an unmarked vehicle at about 25 metres. You turned onto Upward Street, Parramatta Park and then police, deeming it safe, activated police emergency lights and sirens. They were still directly behind you but at some distance, it would appear.

    You did not stop, continued travelling on Upward Street, Parramatta Park, and made a sudden right turn at speed into Draper Street, Parramatta Park. You were then detected travelling at 100 kilometres per hour in a 60 kilometre- signed area, moving away from the police vehicle. Due to parked vehicles on Draper Street, oncoming traffic was forced to take evasive actions and pull in quickly behind parked vehicles, this action to assist not to be hit by the offending vehicle travelling in the middle of the road, crossing the centre point at high speed. So police deactivated the emergency lights and made no attempt to follow you as you sped away on Draper Street, Parramatta Park. Police contacted communications and advised that the - the last known direction and details of the vehicle and false plates attached.

    Then later, you and your vehicle were located again at 10.35. They followed the vehicle at a distant along Spence Street behind two other cars. You approached the intersection of Spence Street and Aumuller Street, Bungalow, stopped behind a waiting vehicle. Another vehicle travelled behind you, boxing it in. Police exited the vehicle, moved up the side of the offending vehicle and told you to turn your vehicle off and get out of the car. But you made a motion with both arms to turn the steering wheel to the left to try to exit the lane. Police grabbed the steering wheel through the open driver’s window and turned the wheel back to the right. They told you again to turn the vehicle off and get out of the car.

    They gained entry to the vehicle, removed you, and placed you in handcuffs. You did not have a driver’s licence as you were disqualified by court order. So that is offences of disqualified driving, dangerous operation of a vehicle. And you were also found to have been driving with the presence of a relevant drug, that is, both methamphetamine and delta-9-tetrahydrocannabinol.

    Studies at the Road Traffic Research Institute show that if you have got one drug in your saliva you are something like 17 times more likely to be involved in an accident, but two drugs in your saliva increases your chance of being in an accident exponentially to something like 170 times more likely to be involved, or thereabouts.

    You were charged with those offences on the 15th of October 2019, and your first court date was issued as at the 28th of January 2020. After having been charged with those offences and bailed for the first offences, you committed the lot of offences referred on the 2nd of January 2020.

    That included you being in possession of dangerous drug, driving whilst disqualified, driving an unregistered, uninsured vehicle with false plates; the vehicle was defective; driving after it had been immobilised; in possession of a cancelled licence. And as with the earlier offences, it was your manner of driving that caused police to stop you. Because it was about 9 pm on the 2nd of January and they observed you travelling in a Mitsubishi sedan without headlights on Sandown Close, Woree.

    Police observed the sole occupant - which ended up being yourself - shuffle across from the driver’s seat to the passenger seat and exit the vehicle from the front passenger door. But you were detained by police as you exited the vehicle and found to have been disqualified, found to be driving an unregistered vehicle, uninsured vehicle, and false plates. Again, the plates belonged to a different - a third different vehicle, a Kia Carnival wagon.

    The vehicle was also defective and unsafe. Both rear tyres were 100 per cent slick, with no tread pattern. Both had major levels of internal wire exposed as the rubber had been worn away completely. The driver’s door was not able to be opened either internally or externally, which explains the need for you sliding over to the passenger side. The front passenger and rear left door not able to be opened from the outside. Only the right rear door was able to be opened correctly. The windscreen had major damage, dramatically reducing the integrity of the windscreen. There was an immobilising notice of the vehicle which had been served on you on the 15th of October 2019 for disqualified driving. And you drove during that immobilised period. And you handed them a cancelled, expired learner’s licence. You should have handed that in.

    And you also had drugs present in your saliva, again, not one but two drugs: methamphetamine and delta-9-tetrahydrocannabinol[50].”

    [50] R1, G7, pp 49-52.

29. Magistrate McLennan sentenced the Applicant to 15 months’ imprisonment for the dangerously operate or interfere with vehicle, previous conviction offence[51].  The Applicant was also sentenced to concurrent terms of imprisonment for the other offences, save for operate vehicle during number plate confiscation.  These further offences were committed between 8 October 2019 and 31 August 2020[52].

    [51] R1, G7, p 55.

    [52] R1, G4, p 29.

30. On 9 December 2021, the Applicant was given notice that his visa was mandatorily cancelled pursuant to s 501(3 A) of the Act. The visa was cancelled on the basis that the Applicant had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months (s 501(6)(a) in respect of his dangerous operation of a vehicle, previous conviction and was currently serving a sentence of imprisonment on a fulltime basis (s 501(7)(c))[53].

    [53] R1, G31.

31. On 7 February 2022, the Applicant’s appeal against his dangerous operation of a motor vehicle conviction was dismissed[54].

    [54] R1, G4, p 29.

    PROTECTION OF THE AUSTRALIAN COMMUNITY

32. Paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm because 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 this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

33. In determining the weight applicable to this Primary Consideration, paragraph 8.1(2) of the Direction requires the Tribunal to consider:

    a)The nature and seriousness of the Applicant’s conduct to date; and

    b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.

    The Nature and Seriousness of the Applicant’s Conduct to Date

34. When assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I must have regard to the following relevant matters in paragraph 8.1.1(1) of Ministerial Direction 90:

    (a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

    (i)violent and/or sexual crimes;

    (ii)crimes of a violent nature against women or children, regardless of the sentence imposed;

    (iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

    (b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    (i)…;

    (ii)crimes committed against…government representatives or officials due to the position they hold, or in the performance of their duties;

    (iii)…;

    (iv)…;

    (c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

    (d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

    (e)the cumulative effect of repeated offending;

    Paragraph 8.1.1(1)(a)(i)

35. This specific subparagraph looks for the commission of violent and/or sexual crimes.  If an Applicant has committed such offences, this sub-paragraph deems that they are to be viewed, “very seriously” by the Australian Government and the Australian community.

36. From the summary table above, it is relevant in add to what has been noted above what occurred between the Applicant and his stepfather on 21 December 2015.  At approximately 4:00 pm on that day, the Applicant, without invitation or consent, attended his stepfather’s place of work.  After an argument with his stepfather, the Applicant told him that he was going to hit him.  The Applicant then used a closed fist to strike his stepfather’s head.  The stepfather sustained a cut to his face[55].  Prior to this event, the Applicant was served with a domestic violence order protecting his stepfather on 3 June 2015.  The Applicant was charged with contravention of an aggravated domestic violence order (aggravated offence) and common assault - Domestic Violence offence[56].

    [55] R2, p 72.

    [56] Paragraphs 8.1.1(1)(a)(ii) and (iii).

37. These sub-paragraphs address crimes or conduct:

    (a)of a violent nature against women or children, regardless of the sentence imposed;

    (b)acts of family violence, regardless of whether there is a conviction for an offence, or a sentence imposed.

38. Such acts are viewed, “very seriously” by the Australian Government and the Australian community.

39. The definition of “family violence” at paragraph 4(1) of the Direction refers to specific conduct perpetrated upon “a member of the person’s family”.

40. Neither “family” or “family member” are defined in the Direction. Section 46 of the Acts Interpretation Act 1901 (Cth) (“AIA”) provides, in substance, that unless a contrary intention appears, expressions in an instrument have the same meaning as in the Act or instrument which enables or authorises them.[57]

    [57] Jagroop and Minister for Immigration and Border Protection (2016) 241 FCR 461, para [22].

1. Section 5G of the Act Migration Act 1958 relevantly provides that the members of a person’s family are, “…taken to include […] (a) a de facto partner of the person; …”.

2. The definition does not specifically include a former de facto partner, however s 5G also states “This does not limit who is a member of a person’s family or relative of a person”, so a former de facto partner is not necessarily excluded. The Act itself does not address family violence. The provisions in the Act relating to family units are concerned with establishing who is a member of a person’s family at a particular point in time for migration purposes, for example, for the purpose of an application for a protection visa based on being a member of the “same family unit” of the primary Applicant.

3. This is quite different to what the family violence provisions in the Direction are aimed at.  It is well known that abuse within a spousal or de facto relationship does not necessarily stop once the relationship comes to an end, and that it sometimes escalates or occurs for the first time after the relationship ends.  Accordingly, excluding violence that occurs in the context of a previous spousal or de facto relationship because there was no existing relationship at the time the violence occurred, would partially defeat the purpose of the family violence provisions in the Direction.  I do not accept that this could be the intention of the Direction.    

4. Whether a person falls within the expression "a member of the person’s family” for the purposes of the family violence consideration in Direction 90 is a matter of fact to be determined by the decision maker.  The expression should not however be narrowly construed and can extend (depending on the circumstances) to a person who is in an intimate relationship with the person[58].

   [58] Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115, para [124].

5. In Dore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 1750 Senior Member Tavoularis, when considering whether a person was a "member of the person’s family”, observed that the Direction’s definition is identical to the definition in the Family Law Act 1975 (Cth) (FLA) and on that basis found that:

   “...it is immaterial whether the Applicant and the aggrieved referred to in that police document were not, contemporaneously with that incident, in a de-facto or marital relationship. The abovementioned definition contemplates a marital or de-facto spouse who, “is or has been” in such a relationship with the other person[59].”

   [59] Dore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 1750, p 121.

6. The FLA defines what a family member is for the purpose of family violence as defined in the FLA Act. Section 4(1AB) of the FLA provides as follows:

   “For the purposes of:

   …

   (aa) section 4AB;

   …

   a person (the first person) is a member of the family of another person (the second person) if:

   …

   (d) the first person is or has been married to, or in a de facto relationship with, the second person;”

   [Emphasis added].

7. Section 4AA of the FLA defines the criteria that describe a de facto relationship. Relevantly the criteria include that:

   ·     having regard to all the circumstances of their relationship, the persons have a relationship as a couple living together on a genuine domestic basis;

   ·     a de facto relationship can exist between two persons of different sexes and between two persons of the same sex; and

   ·     a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

8. The FLA definitions of family member and de facto partner are expressed to apply for the purposes of the FLA Act. I have no express mandate to apply them in my application of the Direction. However, given they work together with the definition of “family violence” that is found in the FLA and that is the definition is the one used in the Direction, I think it is reasonable to have regard to these definitions.

9. From the summary table above, I consider that the following facts are relevant in considering sub-paragraphs 8.1.1(1)(a)(ii) and (iii):

   (c)In 2004, the Applicant entered a relationship with Ms CD[60] which now appears to have ended in or around 2019.

   (d)On 4 July 2014, police were called to an incident between the Applicant and CD, where after an argument about money, the Applicant began smashing furniture and assaulted her[61].

   (e)On 14 August 2014, the Applicant entered CD’s home without her permission and in knowing breach of a domestic violence order.  Despite being asked to leave, the Applicant remained in CD’s home.  The Applicant breached the order in a similar fashion on 25 December 2014[62].

   (f)On 12 June 2015, the Applicant entered CD’s home, begging her to let him stay, because he had nowhere else to stay.  The Applicant started chopping marijuana and was asked to stop making a mess by CD.  In response the Applicant verbally abused CD calling her a “fucking whore" and threatened to put a knife in her head. CD left the home while the Applicant was sleeping and left a note for the Applicant, which caused the Applicant to call and continue to abuse her[63].

   (g)On 1 August 2015, the Applicant flagged CD down whilst driving.  When she refused to give him a lift so that he could ‘chop up" another woman and his mother with a chainsaw, the Applicant produced a knife and held it towards her, causing CD to drive away[64].

   (h)On 12 November 2015, CD went and met the Applicant at a local public house, before moving to a nearby park for coffees.  The Applicant began discussing troubling topics and CD attempted to leave.  The Applicant stood behind the car to prevent her from leaving and she called the police.  The Applicant admitted this behaviour was designed to control CD[65].

   (i)On 29 December 2015, the Applicant attended CD’s home to discuss their joint back account.  During this discussion the Applicant stabbed CD, punched her in the face and ordered her to remain at home, rather than seeking medical attention.  The Applicant was charged with wounding, assaults occasioning bodily harm and contravention of domestic violence order (aggravated offence)[66].

   (j)On 25 March 2017, CD picked up the Applicant at his request from Palm Cove as he claimed to have been kicked out of his residence.  The Applicant became agitated once being picked up and claimed he would "kill the whole world" and that if he were to commit suicide it would be on CD’s head.  The Applicant became angry and agitated later that evening, and CD asked her mother to call the police[67].  The Applicant was placed on remand on the same day[68].

   (k)On 6 April 2017, while on remand, a letter in the Applicant’s handwriting was seized from the Applicant’s cell, addressed to CD.  The letter encouraged her to withdraw her evidence in respect of the wounding and assault occasioning bodily harm offences.  The Applicant was subsequently charged with attempting to pervert the course of justice[69].

   (l)On 7 August 2019, the police were called to the Applicant’s mother’s house after the Applicant abused his mother, demanded money and threatened to kill her if she did not comply.  It was only on threatening to call the police that the Applicant left the property[70].

   [60] R1, G22, pp 121-122.

   [61] R2, pp 17-18.

   [62] R2, pp 38 and 42.

   [63] R2, p 241.

   [64] R2, p 242.

   [65] R2, pp 59-60.

   [66] R2, pp 67-68.

   [67] R2, p 247.

   [68] R1, G4, p 35.

   [69] R2, p 101.

   [70] R2, p 23.

   Paragraph 8.1.1(1)(b)(ii)

10. This sub-paragraph looks for the commission of any offence against what is described as, “vulnerable members of the community such as the elderly and the disabled, or government representatives or officials…in the performance of their duties”.

11. In regard to Applicant’s conduct toward the elderly and vulnerable, it is relevant to analyse what occurred between the Applicant and his mother on 7 August 2019.

12. On that date, the police were called to the Applicant’s mother’s house after the Applicant abused his mother (with his stepfather as a witness), demanded money and food and threatened to kill her if she did not comply.  It was only on threatening to call the police that the Applicant left the property.  The police recorded after speaking with the Applicant’s mother that this behaviour had been occurring for several years and that the Applicant used threats of self-harm as coercion.  Other witnesses the police spoke to on this occasion supported the Applicant’s mother’s account and said that they were fearful that the Applicant would kill his mother.  The witnesses said that the Applicant was violent towards his mother.  The mother said she was fearful of the Applicant and did not feel safe around him[71].

    [71] ibid.

13. Police concluded that this behaviour, namely the demands and threats made, constituted elder abuse by the Applicant.  The police observed that the Applicant is a drug user and is constantly after funds to support his drug taking, using controlling behaviour against his mother.  The police formed the opinion, after talking to the Applicant’s mother, that the abuse had prevailed for a significant period and was not likely to stop, and that as the Applicant’s mother is 74 years old and of thin build, a domestic violence order is necessary and desirable to protect her and her spouse, the Applicant’s stepfather, as the Applicant has abused his stepfather as well over the preceding period[72].

    [72] R2.

14. In regard to government representatives or officials, the Applicant has been charged with multiple charges of obstructing police officers.

15. On 31 August 2020, Queensland police arrested the Applicant in relation to an outstanding warrant.

16. After arriving at the watch house, the police asked the Applicant to answer questions regarding his COVID-19 status.  The Applicant became aggressive, started actively coughing and stating, “I have coronavirus”.  The police officers involved used an ‘open hand’ technique to prevent the Applicant coughing in their direction.  The Applicant then denied having COVID-19 or symptoms of the disease.

17. During the subsequent search of the Applicant, the Applicant was again aggressive, actively resisting removal of a drawstring from his pants.  The Applicant also verbally abused the police officer concerned and attempted to pull away and prevent the officer from performing his duties.  Other officers had to restrain the Applicant to allow the initial officer to complete the search.  Throughout this episode, police warned the Applicant to cease this conduct and comply with directions.  Despite the warnings, the Applicant continued resisting in an aggressive manner.

18. The Applicant was subsequently charged with obstructing a police officer.

19. Obstructing the police in the proper performance of their duties is an indirect attack on the community that they protect.  Consequently, the nature and seriousness of the Applicant’s unlawful conduct here must be treated as serious and given weight as such.

    Traffic Offences

20. The Applicant’s traffic history[73] demonstrates a significant and longstanding disregard for road rules and the system that determines who should be driving and under what circumstances.

    [73] R2, pp 203-218.

21. The many speeding infringements, his driving on multiple occasions while banned from doing so, driving unregistered and unsafe vehicles with stolen registration plates, drug-driving, and his 17 June 2018 traffic accident while under the influence of amphetamine and methylamphetamine are all offences of the kind that tend to increase the risk of collisions, injury and death.  By engaging in this behaviour, the Applicant consistently put other road users at increased risk of harm including death.  His traffic offending, in its totality, is very serious.      

22. The Applicant’s criminal history is lengthy, and his offending is frequent.  The same can be said of his traffic history.  The cumulative impact of both is significant and very serious, even if I give no weight to his juvenile offences.

    Paragraph 8.1.1(1)(d)

23. This sub-paragraph addresses two specific aspects of a person’s offending: its frequency and/or whether there is any trend of increasing seriousness.

24. With reference to the summary table above, the Applicant appears to have committed some seventy-four (74) offences between 8 August 1989 and 5 November 2021. The Applicant has received five (5) sentences of imprisonment.  Consequently, it is reasonable to describe the Applicant’s criminal history as lengthy and his offending as frequent.

25. The second enquiry involves an assessment of whether the criminal history demonstrates a trend of increasing seriousness.  The evidence supports a conclusion that there is such a trend in the Applicant’s behaviour, highlighted by the increasing severity of convictions and incarcerations, the numerous attempts by authorities to educate or direct the Applicant to stop offending and the Applicant’s apparent lack of interest in doing so or heeding these directions.

26. Accordingly, this paragraph 8.1.1(1)(d) should be a moderate, but not determinative, level of weight in the assessment of the nature and seriousness of this Applicant’s conduct.

    Paragraph 8.1.1(1)(e)

27. This paragraph looks for “repeated offending” as a basis on which to ascertain any “cumulative effect(s)” flowing from it.

28. The Applicant’s criminal history is lengthy, and his offending is frequent. The same can be said of his traffic history.

29. The cumulative impact of his repeated traffic offending is that other road users were exposed to increased risk of collision.

30. The cumulative impact of the Applicant’s repeated criminal offending is that he abused people’s property rights and exposed members of the community to the risks associated with the Applicant’s abuse of alcohol, marijuana and methamphetamines.   

31. There is also the suggestion in Magistrate McLennan’s decision that, notwithstanding the Applicant’s mental health, the Applicant at times demonstrates a degree of calculation and planned disregard for the rights and safety of others.

32. Overall, the cumulative effect of the Applicant’s repeated offending since 1995 and its costs to his family, CD, the community and the government are significant in terms of emotional and financial costs at a minimum.  The seriousness of the offending is a very significant factor in terms of whether I am satisfied that there is “another reason” to set aside the non-revocation decision.

    The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

33. Paragraph 8.1.2(1) of the Direction provides that, in considering the risk to the Australian community, the Tribunal should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm declines as the seriousness of the potential harm increases.  Some conduct and its consequential harm, if repeated, is so serious that any risk that it may be repeated may be unacceptable.

34. Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the following factors on a cumulative basis:

    (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;

    (a)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    (i)information and evidence on the risk of the non-citizen re-offending; and

    (ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and

    (b)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.

    Nature of harm should the Applicant engage in further criminal or other serious conduct

35. 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, is informed by the nature of his offending to date, including any escalation in his offending.

36. With respect to the nature of likely harm from further breaches of Domestic Violence Orders, I refer to the summary table and the consideration of Paragraphs 8.1.1(1)(a)(ii) and (iii) above.

37. There is a consistent frequency to the Applicant’s breaches of Domestic Violence Orders.  While only some of the breaches involve violence, the Applicant’s threats of violence to his mother and CD likely caused alarm and fear on their part while the Applicant’s assault on his stepfather caused physical injury.  Consequently, the risk of potential physical and psychological injury resulting from any future breaches of Domestic Violence Orders by the Applicant is a substantively significant concern.

38. The nature of harm from further traffic offences of the kind the Applicant has previously committed is that there is an increases risk of collision which could lead to serious physical and psychological injury and death.  The harm from further property offences includes financial loss and possibly psychological trauma. 

    Likelihood of engaging in further criminal or other serious conduct

    (i)Information and evidence on the risk of the Applicant reoffending

39. In his Personal Circumstances Form (PCF), the Applicant said the following about his recidivist risk in the event of a return to the Australian community:

    “I am willing to take part in courses.”

    “I intend not to reaffend (sic)”[74]

    [74] R1, G12, p 92.

40. Despite these statements, there is no evidence before the Tribunal suggesting that the Applicant has ever undertaken any formal rehabilitation course, whether general or specifically focused on drug and alcohol abuse.

41. There was no expert evidence presented to the Tribunal that addressed the Applicant’s risk of re­offending or to support a view that he is of low or no risk of re­offending.

42. There is expert evidence assessing the Applicant as being:

    “From a risk perspective, [the Applicant] is at a chronically increased risk of aggression compared with the general population – in keeping with his personality structure / coping style – as evidenced by his history. Risk increases when he is psychotic, or intoxicated, in pain, or when he feels he is being unfairly treated[75].”

    [75] R2, p 232.

43. Further and more recent expert evidence stated that the Applicant poses a:

    “… potential high risk to others, especially amongst those in his social network when acutely unwell”[76]

    [76] R2, p 263.

44. The Applicant’s traffic offences started on 8 August 1989 when he was 14 years old. However, the frequent traffic offending, conducted when an adult, recommenced on 21 May 2019, with subsequent infringements occurring until his conviction on 5 November 2021[77].

    [77] R1, G5, pp 34-35.

45. Before considering the traffic offences addressed on 5 November 2021, it is relevant to note that the MHRT Forensic Order made on 5 February 2019 barred the Applicant from driving a motor vehicle[78].  Magistrate Spencer observed on 21 May 2019 that the Forensic Order:

    “… is a fairly detailed and intrusive order,[79]”

    [78] R2, p 230.

    [79] G6 Documents, page 42

46. The Applicant has now committed twelve (12) offences since the Forensic Order was made.

47. On 5 November 2021, Magistrate McLennan raised three points that go to the likelihood of any future traffic offences if the Applicant is to remain in Australia.

48. The first is in relation to the Applicant’s overall traffic offence record. The Magistrate observes that the Applicant as:

    “… someone who really considers driving to be a right, not a privilege, and somebody who has really consistently put yourself and other people in some – at some risk on the road by disobeying the road rules.”[80]

    [80] G7 Documents, page 51

1. The second is a quote from a psychiatrist’s report[81] on the Applicant in relation to his traffic offences:

   “With regards to the associated offences, although Keith’s described level of distress on that day may have contributed to his being on the road, the actions are not out of keeping of his usual behaviour. I have been in receipt of numerous QP9s that suggest he was frequently driving an unroadworthy, unregistered vehicle without a current licence. As such, on the balance of probability, I believe that Keith was likely to be of sound mind and was not deprived of any relevant capacities at the time of the offences[82].” (Emphasis added)

   [81] Tender Bundle documents, pages 229 - 238

   [82] G7 Documents, page 53

2. The third:

   “Ultimately, there was a lot of what I would call deliberate decision-making here, because in each case you were driving on numberplates that were false plates, cancelled plates. That shows a degree of planning, decision-making in relation to the offences and knowledge that you were doing the wrong thing, you could not drive this vehicle, and as a result, so as not to be detected, you put the - or at least were driving a vehicle with false plates. Now, taking into account - and I have taken into account the matters also in the sentencing decisions that I have been provided. It does seem to me that, based on the psychiatrist’s report, while you do have poor insight into your illness and getting treatment, there is also a large level - or a level of your continuing to offend - in other words, usual behaviour of driving unroadworthy, unregistered vehicles without a current licence and committing offences[83].” (Emphasis added)

   [83] R1, G7, p 54.

3. The Applicant appears to have breached Domestic Violence Orders 8 times and breached bail conditions 5 times and has also breached probation orders. The conditions of a Domestic Violence Order are written on the order and the police records indicate that the Applicant was present in court when the order was made, so it appears that he exercised a lack of care in relation to that court order. He also breached bail conditions on multiple occasions, and he breached a probation order.   

4. The Applicant has not been deterred from offending despite incarceration, fines and community-based orders.

5. The available evidence before the Tribunal – both lay and expert – erodes any confidence in holding a view that the Applicant has any significant insight into his offending, his condition[84] and the impact of his conduct on others.

   [84] R1, G13, p 98; G17, p 112; R2, pp 232, 234-236, 257 and 261.

6. Another way to assess the likelihood of the Applicant engaging and further criminal or other serious conduct is to analyse the protective risk management and risk mitigation factors in his life – or rather the lack of these in this specific matter.

7. In terms of risk management, as noted above and despite claims that he is willing to undertake formal rehabilitation courses, the Applicant does not appear to have taken any such course during his offending and incarceration history, or since he was placed on the MHRT Forensic Order.

8. This failure on the Applicant’s part to undertake formal rehabilitation exists despite the Applicant likely receiving significant guidance and advice from magistrates, police, psychologists and psychiatrists as to what he could do to address his mental and the behavioural factors such as drug taking that seemingly predispose him towards offending.  At times the Applicant has also failed to accept responsibility for his actions or actively sought to deny such responsibility.

9. In terms of risk mitigation, the protective element provided by his mother, stepfather and CD was present for much of his offending history and appears to have had no mitigating or deterring effect.  To the contrary, his mother, stepfather and CD appear to be subjects of Domestic Violence Orders against the Applicant until 8 August 2024.

10. The Applicant has failed to create a strong, layered and supportive risk management and risk mitigation framework around himself to address the risk of recidivist behaviour on his part.

11. In the absence of such a framework he poses a significant risk to the community.

12. I find the risk of the Applicant engaging in further conduct of the kind he previously engaged in to be both serious and significant.

    Conclusion: Primary Consideration 1

    139.    Primary Consideration 1 weighs very heavily against revocation of the decision to cancel the Applicant’s visa.

    FAMILY VIOLENCE

13. Paragraph 8.2 of the Direction provides: 

    (1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

    (2)This consideration is relevant in circumstances where:

    a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

    b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

    (3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:

    a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;

    b)the cumulative effect of repeated acts of family violence;

    c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:

    i.      the extent to which the person accepts responsibility for their family violence related conduct;

    ii.     the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

    iii.    efforts to address factors which contributed to their conduct; and

    d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.

14. I refer to our finding in our discussion in relation to Primary Consideration 1 above that the offences involving CD, in addition to those involving the Applicant’s mother and stepfather, did involve family violence.

15. All but one of the matters that this Primary Consideration requires us to address have been addressed in our application of Primary Consideration 1.  As to the remaining matter, the Applicant was not formally warned, or otherwise made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence before he committed any of the acts of family violence.  

16. Family violence is particularly harmful to individuals, family units and the community.  It damages the emotional bonds in partners and families that should be supportive and protective.  It causes long term damage and dysfunction in victims and those who witness it.  Family violence occurs in what should be the safety of a familial relationship, and often in what should be the sanctuary of the family home.  There is a betrayal of trust involved. The victim’s sense of security in the places and situations where they should feel most secure is compromised.  By devoting a separate mandatory consideration to family violence, in circumstances where violent conduct and acts of family violence must also be considered under Primary Consideration 1, the government has indicated that further weight should be allocated where the violence was family violence.    

17. Balancing considerations here are:

    (a)the extent to which the person accepts responsibility for their family violence related conduct;

    (b)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

    (c)efforts to address factors which contributed to their conduct

18. As noted above, the Applicant appears to lack insight into both his offending and his condition[85] and does not appear to be taking any steps to address the factors which contributed to his conduct.  This behaviour appears to extend to minimise his understanding, let alone accept full responsibility, of the impact of his behaviour on his mother, stepfather and CD.

    [85] R1, G13, p 98; G17, p 112; R2, pp 232, 234-236, 257 and 261.

    Conclusion: Primary Consideration 2

19. Primary Consideration 2 adds significantly to the weight that I apply against revocation of the decision to cancel the Applicant’s visa.

    THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

20. Paragraph 8(3) of the Direction compels a decision-maker to consider the best interests of a minor child in Australia.  Under paragraph 8.3(1), I must determine whether non-revocation under section 501CA is or is not in the best interests of a child affected by the decision.

21. The Direction sets out several 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, considering 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, considering 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; and

    ·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).

22. The Applicant has one (1) child aged 22 and a grandchild (Grand Child A) who reside in New South Wales.

23. He does not appear to be in communication with either his child or Grand Child A, apart from sporadic digital messaging.

24. This is a grandchild, not a child, and there is no substantive evidence of any significant relationship or any role for the Applicant in his grandchild’s life, the likely effects of any deportation can be assessed as minimal.

25. There was no evidence before me regarding the Applicant’s role concerning the best interests of, any other, minor children.

    Conclusion: Primary Consideration 3

26. Considering Grand Child A’s best interests of, this Primary Consideration weighs, at best, as neutral in considering the revocation of the decision to cancel the Applicant’s visa.

    THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

27. Paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia.  It further stipulates that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.

28. 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 a visa, or continue to hold one. 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 certain conduct, in Australia or elsewhere, that includes:

    ·acts of family violence

    ·commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties.

29. 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.

30. 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.

31. Paragraph 8.4(4) is consistent with, and reflects, the consideration requirements identified in the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185.

32. Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:

    ·The Applicant permanently relocated to Australia when he was 13.  He is now 48.

    ·The Applicant committed his first – albeit juvenile – offence in Australia in August 1989, two (2) years after moving to Australia.  He committed his first adult offence in April 1995. 

    ·His offending has continued up to his imprisonment in November 2021.

    ·The offences he committed include serious offences, especially the ones that involved family violence, violence against women, traffic offences that endangered others and one offence against a police officer in the performance of their duties.

    ·     Based on the Applicant’s history and evidence and the available expert evidence, it appears that the Applicant has little to no insight into his condition or the causes of his offending, that despite his condition he has internally normalised his aggressive conduct towards others and that there is a serious risk that the Applicant will re-offend. I consider that this risk is high and is neither managed nor mitigated by the Applicant. 

33. While Australia may afford a higher level of tolerance to criminal or other serious conduct by non-citizens who have lived in the Australian Community for most of their life or from a very young age, the seriousness, duration and recidivist nature of the Applicant’s offending outweigh this tolerance.

    Conclusion: Primary Consideration 4

34. Primary Consideration 4 carries a heavy, but not determinative, level of weight against revocation of the decision to cancel the Applicant’s visa.

    OTHER CONSIDERATIONS

35. It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.  We will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).

36. It is necessary to look at 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

37. The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence.  This Other Consideration is not relevant. 

    Other Consideration (b): Extent of impediments if removed

38. Paragraph 9.2 of the Direction directs a decision-maker to consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), considering:

    (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’s written submissions

    166.In the SFIC filed on his behalf, the following contentions appear:

    “24. He requires intense support from health services and his family to assist with management of his illness[86].

    [86] R1, G20, p 119.

    25. In the opinion of his treating psychiatrist, removing Mr Hewett to an alien environment, without his familiar supports would likely result in an acute deterioration in his mental health. Mr Hewett has been receiving medical and family support whilst in Australia[87].”   

    [87] ibid.

    167.In his first Personal Circumstances Form[88] (PCF), the Applicant is asked: ‘Do you have any concerns about what would happen to you if you were to return to your country of citizenship?’  The Applicant ticked the ‘Yes’ box.  In describing those concerns the Applicant said in his PCF:

    [88] R1, G11, p 80.

    “Homelessness.

    Relapse of my schizophenia (sic) and suicidal tendencies”

    168.Also in his first PCF, the Applicant is asked ‘Are there any other problems you would face if you have to return to your country of citizenship? If so, describe these.’  The Applicant provided the following response:

    “No love and help from family.”

    169.The Applicant provides in his 1 September 2022 statement[89] that:

    “4. I confirm that I have no known family, friends, support or connection with New Zealand. I have not returned to New Zealand since I came to Australia as a child.

    5. I have significant concerns about my ability to cope with deportation. I have had great difficulty managing my schizophrenia in the past. It has only been since I was placed on a Forensic Order and had a network of health professionals supporting me that I have made progress with my illness.”

    [89] R2, p 7. 7

    The Respondent’s written submissions

    170.In its SFIC, the Respondent provides a relatively brief narrative around the factors appearing at paragraphs 9.2(1)(a), (b) and (c) of the Direction and makes the following contentions:

    ”94. The applicant is 48 years old and has been diagnosed with schizophrenia, polysubstance abuse and Hepatitis C. He remains the subject of a Forensic Order and the evidence of Dr Bansod suggests that there would be a deterioration in the applicant’s mental state upon his return to New Zealand (G20/119).

    95. While the applicant would no doubt experience some difficulties in relocating to New Zealand, as a citizen of New Zealand, he has the same access to social, medical and economic support as other citizens. More particularly, in circumstances where the returning country is New Zealand, the cultural, linguistic and political circumstances are matters of common knowledge. Accordingly, the Tribunal is entitled to take into account that the applicant would have access to government benefits similar to those available to him in Australia[90].

    96. In respect of the applicant’s specific barriers, there is no evidence that the applicant would not be able to obtain community-based drug and alcohol treatment or rehabilitation. The applicant is currently prescribed Quetiapine, Olanzapine, Mirtazapine and Zuclopenthixol (TB/3257) there is no evidence that the applicant would be unable to access these medications, or equivalent, in New Zealand.”

    [90] Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296.

39. Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health: the Applicant is, as mentioned, 48 years of age.  Given his age and lack of support networks in New Zealand, he anticipates that his mental health will decline rapidly if he remains there permanently.

1. I accept that not being able to return to Australia will cause the Applicant emotional hardship, as well as worry for his parents and CD, and that it could impact his mental health.

2. However, the medical and psychological services available in New Zealand are comparable to what is available in Australia.  Further, the Applicant is still able to contact his parents and CD from New Zealand.

3. Sub-paragraph 9.2(1)(b) – any substantial language or cultural barriers: the Applicant was born in New Zealand and as noted above, came to Australia as a 13-year-old in 1987.  He can validly say that he has lived his life predominantly in Australia with minimal life experience in New Zealand.  It is difficult to accept that the Applicant will be confronted with any language or cultural barriers upon a return to New Zealand.  As has been found by this Tribunal (differently constituted) in a previous case: “New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the Applicant if he returns to New Zealand.[…]”[91]  

   [91]    Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301, para [101].

4. I am therefore not of the view that the Applicant will face any significant or substantial language or cultural barriers impeding his return and re-settlement in New Zealand.  This sub-paragraph 9.2(1)(b) weighs neutrally.

5. Sub-paragraph 9.2(1)(c): to the extent that the Applicant may require social and/or economic support in New Zealand, he will have available to him precisely the same such support as is available to other citizens of New Zealand.  It is a country with, broadly speaking, similar systems and institutions of social welfare, other government support and public health facilities as Australia.  The Applicant is – at present, at least – in reasonable physical health.  Should he require publicly available medical support in that country, he will have access to both physical and psychological treatment facilities at or about the same extent to which he may have become accustomed in Australia.  Once again, the above mentioned Tribunal decision of Tera Euna and Minister for Immigration and Border Protection[92] becomes relevant:

   “New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The Applicant will have access to those services as a New Zealand citizen.”[93]

   [92] ibid.

   [93] ibid.

6. Having regard to my findings referrable to each of the three sub-paragraph components of this Other Consideration (b), I am of the view that at its highest, it confers only a moderate, but not determinative, amount of weight in favour of revocation of the delegate’s decision under review.

7. I am not satisfied that the emotional and psychological impact of a non-revocation decision would be so great that the Applicant would not be able to maintain basic living standards in the context of what is available to other New Zealand citizens.        

8. This Other Consideration (b) is consequently weighted as neutral in considering the revocation of the decision to cancel the Applicant’s visa.

   Other Consideration (c): Impact on victims

9. Paragraph 9.3(1) states that decision-makers must consider the impact of a s 501 or 501CA decision on members of the Australian community, including victims of the non- citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

10. Both the Applicant’s former partner, CD, and the Applicant’s mother, have suffered from instances of domestic violence from the Applicant.  Both have provided statements in support of the Applicant’s request for the decision to cancel his visa to be revoked.

11. Balanced against these statements is the evidence in the Applicant’s offending history of a sustained pattern of breaches of Domestic Violence Orders as well as the continuing Domestic Violence Orders protecting CD, his mother and his stepfather from the Applicant.

12. There is also the police view that the Applicant’s behaviour towards his mother constitutes elder abuse[94].

    [94] R2, p 23.

13. I allocate a moderate, but not determinative, amount of weight to this Other Consideration (c) in favour of revocation of the delegate’s decision under review.

    Other Consideration (d): Links to the Australian Community

14. Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community.

15. In consideration of this Other Consideration (d), Paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in Paragraph 9.4.1 and Paragraph 9.4.2 respectively:

    ·the strength, nature, and duration of ties to Australia; and

    ·the impact on Australian business interests if the Applicant cannot remain here.

    Strength, nature and duration of ties

16. With reference to the first part of this Other Consideration, I will consider three elements.

17. First, it is necessary to have regard to the impact of a non-revocation decision on the Applicant’s, “immediate family members” where those people have a right to remain in Australia indefinitely.

18. Second, it is necessary consider the impact of a non-revocation decision by considering the strength, nature, and duration of any other ties the Applicant has to the Australian community.

19. Third, it is necessary to assess the strength, nature, and duration of any other family or social links the Applicant may have with people who have an indefinite right to remain in Australia.

20. I will address each component in turn.

    Impact of non-revocation on the Applicant’s immediate family

21. This first exercise requires identification of the Applicant’s immediate family in Australia.  In his PCF, the Applicant identifies the following immediate family members in Australia:[95]

    ·His mother and his stepfather;

    ·His father;

    ·His former partner, CD;

    ·His adult daughter (aged 22) and his Grand Child A.

    [95] R1, G11.

22. In the Applicant’s PCF, there is an isolated reference to a niece, but no further information is provided.[96]

    [96] ibid.

23. Considering the sum of the Domestic Violence Orders (past and present), family violence offences, violence against his mother and CD and the low level of contact and communication between the Applicant and his father and between the Applicant and his daughter and Grand Child A, it is reasonable to assess the Applicant’s ties with his immediate family as dysfunctional, and, for the purposes of this Other Consideration, as neutral at best despite the evidentiary support provided by CD and the Applicant’s mother.

24. Acknowledging that it can be found that, were the Applicant to be removed to New Zealand, each of the Applicant’s remaining family in Australia would be adversely impacted by the Applicant’s removal and having regard to the state of the evidence around the Applicant’s immediate family in Australia, I find that the strength, nature and duration of his ties to those immediate family members in Australia carries some weight in favour of revocation.

    Strength, nature, and duration of “other ties” – length of residence

25. There are two necessary enquiries referable to the extent of the Applicant’s, “other ties” to Australia.  The first of those involves the question of how long he has resided in Australia.  As mentioned earlier, the Applicant came to Australia as a 13-year-old in 1987.  It is safe to find that he has spent most of his life in Australia.

26. The second inquiry involves an application of the two tempering sub-elements in paragraph 9.4.1(2)(a) of the Direction.  The first of those sub-elements requires me to allocate less weight if the Applicant began offending soon after he arrived here – which he did in 1989.  This is clearly the case, and this has some weight.

27. The second of the two tempering sub-elements requires an assessment of the Applicant’s positive contributions to the Australian community.  The Applicant last worked in 2001[97] and has been in receipt of the Disability Support Pension after that employment.

    [97] R1, G26, p 218.

28. The Applicant has made some isolated positive contributions to the community involving providing first aid or care to two (2) individuals in need of emergency assistance and helping in the construction of a hospital.

29. This second tempering sub-element can be applied in favour of this Applicant but with a weight proportionate to the low level of the Applicant’s contributions to the Australian community.

30. In conclusion, the sum of the consideration of the two tempering sub-elements carries some weight in favour of the revocation of the mandatory cancellation decision under review.

    Strength, nature, and duration of “other ties” – family and other social links

31. There was no evidence of other ties before the Tribunal and this element will be given a neutral weight.

    Impact on Australian business interests

32. Paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on, “Australian business interests”.  I am of the view (and I find) that this component of Other Consideration (d) is not relevant.

    Findings: Other Considerations

33. I summarise the respective weights I have allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:

    (a)international non-refoulement obligations: not relevant;

    (b)extent of impediments if removed: this is neutral;

    (c)impact on victims: carries a moderate, but not determinative, amount of weight in favour of revocation; and

    (d)links to the Australian community: carries some, but not substantive, weight in favour of revocation.

    CONCLUSION

    Is there another reason to revoke the cancellation of the Applicant’s visa

34. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.

35. In 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, I have had regard to the considerations referred to in the Direction.

36. I am now required to weigh all the Considerations in accordance with the Direction.  The Applicant suffers from paranoid schizophrenia, personality disorder and polysubstance abuse.  He has a long and extensive record of offending, incorporating multiple traffic offences, violence against women, family violence instances drug use and offences against property.  He is under an MHRT Forensic Order, which in combination with his current detention, is likely the main factor in his current adherence to a medication regime intended to counter and control his mental illness.

37. If allowed to return to the Australian community, there is a substantial and real risk that this adherence will lapse and that he will revert to illegal and dangerous drug use, recommence his offending and, of significant concern, commit further serious traffic offences that put others’ lives at risk and expose his family to the risk of further violence.  He has breached the trust of the Australian community by engaging in offending of a very damaging nature.

38. I find as follows:

    ·Primary Consideration 1:

    ·this consideration weighs very heavily against revocation of the decision to cancel the Applicant’s visa.

    ·Primary Consideration 2:

    ·this consideration adds significantly to the weight that I apply against revocation of the decision to cancel the Applicant’s visa.

    ·Primary Consideration 3:

    ·this consideration weighs, at best, as neutral in considering the revocation of the decision to cancel the Applicant’s visa.

    ·Primary Consideration 4:

    ·this consideration carries a heavy, but not determinative, level of weight against revocation of the decision to cancel the Applicant’s visa.

39. I have outlined above the weight attributable to the Other Considerations.  A comprehensive and integrated view of the Primary Considerations and Other Considerations in the Direction favours non-revocation of the decision to cancel the Applicant’s visa.

40. Consequently, I cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    DECISION

41. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 27 July 2022 to not revoke the mandatory cancellation of the Applicant’s visa.

I certify that the preceding two hundred and twelve (212) paragraphs are a true copy of the reasons for the decision herein of Member D Cosgrave

..........................................................................

Associate

Dated: 19 October 2022  

Date of hearing:

5 October 2022

Solicitor for the Applicant:

Mr John Seccull and Mr John Hayward

John Seccull Lawyers and WGC Lawyers

Solicitor for the Respondent

Mr Chris West

Sparke Helmore

ANNXURE A – EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
1	G-Documents (G1-G35, pages 1-271)	R	Various	12 Aug 2022
2	Respondent Hearing Bundle (No. 1-9, paged 1-345)	R	Various	19 Sep 2022
3	Letter of Support of [Applicant’s Father] (1 page)	A	16 August 2022	22 Aug 2022
4	Letter of Support of [Applicant’s Mother] (2 pages)	A	Undated	26 Aug 2022
5	Applicant’s Statement of Facts, Issues and Contentions	A	Undated	1 Sep 2022
6	Statement of [CD] (4 pages)	A	1 Sep 2022	1 Sep 2022
7	Statement of [the Applicant] (225 pages)	A	1 Sep 2022	2 Sep 2022
8	Respondent’s Statement of Facts, Issues and Contentions (22 pages)	R	19 Sep 2022	19 Sep 2022