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

Hilton and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1531 (8 June 2022)
Division:GENERAL DIVISION
File Number: 2022/2445
Re:Michael Brian Hilton
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:8 June 2022
Place:Perth

The decision of the delegate of the Minister dated 8 March 2022 under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the mandatory cancellation of the applicant’s Special Category (subclass 444) visa, is affirmed.
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – Migration Act s 501CA(4) – decision of delegate of Minister not to revoke mandatory cancellation of visa – applicant fails character test – whether there is “another reason” to revoke the mandatory cancellation – Direction 90 applied – applicant a citizen of New Zealand who arrived in Australia in 2012 – applicant convicted of dangerous driving occasioning death – drug and alcohol related offending – extensive criminal and traffic record – there is not another reason to revoke the mandatory cancellation – reviewable decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499(1), 499(2A), 500(1)(ba), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b), 501CA(4)(b)(i), 501CA(4)(b)(ii)
CASES
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454
Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 66
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 62 ALD 573
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 59 ALD 349
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
SECONDARY MATERIALS
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021) paras 4(1), 4(1)(d), 5.1, 5.2, 5.2(4), 5.2(5), 6, 7, 8, 8.1, 8.1.1, 8.1.1(1)(a), 8.1.1(1)(a)(iii), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.2, 8.2, 8.2(3), 8.2(3)(c), 8.3, 8.3(4), 8.3(4)(a), 8.3(4)(b), 8.3(4)(e), 8.3(4)(f), 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 9, 9.4, 9.4.1, 9.4.1(2)(a)
REASONS FOR DECISION
Deputy President Boyle
8 June 2022
THE APPLICATION

The applicant seeks review of the decision of a delegate of the respondent (Minister) dated 8 March 2022 under s 501CA(4) of the Migration Act 1958 (Cth) (Act) not to revoke the mandatory cancellation of the applicant’s Special Category (subclass 444) visa.
On 12 March 2020, the visa was cancelled under s 501(3A) of the Act on the basis that the applicant did not pass the character test by reason of his substantial criminal record, and he was serving a full-time term of imprisonment for an offence against a law of a State.[1]
[1] R2, G75.
The application for review was made on 25 March 2022 pursuant to s 500(1)(ba) of the Act, which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister made under s 501CA(4) of the Act.
THE ISSUE
The issue for determination is whether I should exercise the power in s 501CA(4)(b) of the Act to revoke the cancellation of the visa made under s 501(3A). This will require determination of:
(a)whether the applicant passes the character test (as defined by s 501 of the Act); and
(b)if he does not pass the character test, whether there is “another reason” why the decision to cancel the applicant’s visa should be revoked.
THE HEARING AND THE EVIDENCE
The application was heard on 23 May 2022. The applicant was represented by Ms J Edis and the Minister was represented by Mr A Burgess. The following witnesses gave evidence at the hearing:
(a)The applicant;
(b)Malcolm Heckenberg;
(c)Damien Thornber;
(d)Rachel Sylvia Stevens;
(e)Josette Gay Hilton; and
(f)Sarah Maria Miller.
The following documents were admitted into evidence:
(a)The applicant's statement of facts, issues and contentions filed 26 April 2022 (applicant’s SFIC) (A1);
(b)The applicant’s reply submissions filed 18 May 2022 (A2);
(c)The applicant’s further statement dated 18 May 2022 (A3);
(d)The applicant’s statement dated 22 April 2022 (A4);
(e)Statutory declaration of Josette Gay Hilton dated 20 April 2022 (A5);
(f)Statutory declaration of Rachel Sylvia Stevens dated 21 April 2022 (A6);
(g)The offender program completion reports from Pathways dated 2 December 2020 (A7);
(h)Letter from Damien Thornber on behalf of Alcoholics Anonymous dated 25 April 2022 (A8);
(i)Letter to the Parole Board from the Transitional Manager, Karnet Prison dated 26 August 2021 (A9);
(j)Letter from Malcolm Heckenberg dated 7 April 2020 (A10);
(k)Statement of Sarah Marie Miller dated 20 April 2022 (A11);
(l)The Minister’s statement of facts, issues and contentions filed 12 May 2022 (Minister’s SFIC) (R1);
(m)G-documents filed 6 April 2022 (R2);
(n)Summons bundle filed 12 May 2022 (R3); and
(o)New Zealand Police summons bundle filed 19 May 2022 (R4).
BACKGROUND
The applicant is a 36-year-old citizen of New Zealand who arrived in Australia on 8 June 2012. He was granted the visa upon arrival.[2]
[2] R2, G74/254.
The applicant accepts that he does not pass the character test and that, therefore, the only issue for determination is whether there is “another reason” why the cancellation of the visa should be revoked.[3]
[3] applicant's SFIC para 3.
The applicant has a history of offending in New Zealand.[4] Between 2004 and 2011 he was convicted of offences relating to breaching community work orders, wilful damage, disorderly behaviour, resisting and assaulting police and burglary/theft. He also has a history of traffic convictions in New Zealand including driving whilst disqualified, driving under the influence of alcohol and operating a vehicle recklessly.
[4] R2, G5/33–4.
The applicant was sentenced to multiple terms of imprisonment in New Zealand as a result of breaches of community work orders, the last of which was in October 2011 for a breach committed in March 2011.
On 4 March 2016, the applicant committed the offence exceed 0.08g alcohol per 100ml of blood. His blood alcohol reading was 0.109 grams of alcohol per 100ml of blood.[5] He was convicted in the Geraldton Magistrates Court on 21 March 2016, fined $550 and disqualified from driving for seven months.[6]
[5] R3, 2.
[6] R2, G4/32.
On 28 May 2019, the applicant was convicted in the District Court of Western Australia of “dangerous driving occasioning death – drugs”. He was sentenced to four years and six months imprisonment and disqualified from driving for three years and six months.[7] In sentencing the applicant, Scott DCJ made the following observations and findings:
You’ve been convicted on your plea of guilty of one count of dangerous driving occasioning death while under the influence of drugs and alcohol, to such an extent as to be incapable of having proper control of the vehicle.
The maximum sentences, Ms Greenshields has said, and Mr Williams has no doubt told you, is a term of imprisonment of 20 years. It entails a significant increase, in fact doubling the maximum sentence which had previously been the maximum for this offending, having regard to the extent to which this offence was being committed, and the seriousness of it.
Now, the State prosecutor, Ms Greenshields, has read the statement of material facts, which have been admitted by you by Mr Williams. In summary, those facts are that you and Ms Hurt were drinking at the Perenjori Hotel.
You both left at midnight after you purchased three cans of Emu Export for Ms Hurt, and three cans of Carlton Dry for you, which you described as “roadies”. You were intending to drive to the farm where you worked, where you both worked, which was about 32 kilometres away.
You say that you could not remember whether you consumed any of the roadies. At about 1.37 am you were driving your Ford Courier in a northerly direction on the Mullewa/Wubin road to Perenjori. At about 30 kilometres from Morawa the vehicle crossed to the eastern, that is the incorrect, side of the road onto the gravel shoulder, before veering to the left to return to the western side of the road, and then onto the gravel shoulder on that side of the road.
The vehicle then veered right and rolled several times, before coming to rest on its wheels on the edge of the northbound lane facing east. Ms Hurt was thrown from the vehicle, and died at the scene.[8]
[7] R2, G4/31.
[8] R2, G6/38.
Having outlined the police’s analysis of the tyre marks, which “indicated a shallow departure from the bitumen roadway”,[9] his Honour said:
This shallow departure was consistent with a reaction to leaving the roadway being as a result of inattention and/or fatigue, and then attempting to re-enter the roadway and regain control of the vehicle by steering input.
Their opinion was that it would be hard to accept a scenario where the vehicle had swerved off the carriageway as a result of interference to the driver, and then left the tyre marks as described.
I do note that, although there was to be a trial of issues referable to the asserted role played by Ms Hurt in causing, or effectively causing the deviation initially, that has now not been pursued.
Your blood alcohol reading was taken at 7.05 am, and was calculated at the time of your last driving to be .095, adopting the time of the accident as the time of your last drink.
…
Your cannabis reading, when analysed, was 2.5 μg per litre.
…
In his report Mr Grasko said that the combination of both alcohol and cannabis led him to conclude that your state of intoxication would be inconsistent with you having proper control over a motor vehicle under normal driving conditions.[10]
[9] R2, G6/38.
[10] R2, G6/35–9.
In relation to the seriousness of the offence, Scott DCJ said:
The fact that you were convicted of a number of driving offences including two drink-driving offences in New Zealand, and a drink-driving offence in this state in March 2016, only about 19 months prior to the commission by you of this offence is of concern in sentencing you because it demonstrates at the time a cavalier attitude which you have had to the dangers of drink-driving. Your record does you no favour.
…
I can't impose a term of imprisonment unless it's the only option available to me, that is, that there's no other option that is appropriate having regard to the degree of your criminality and/or the protection of the community requires it. Only a term of imprisonment is appropriate for this offence.
…
There was no possible excuse for you to make the decision to drive, let alone drive a considerable distance to the farm. The fact that you perceived that the mood in the hotel caused you to be concerned about staying in the town with Ms Hurt can provide no excuse for making the decision to drive the 32 kilometres to the farm at which you were both staying.
In addition, you bought a half a dozen roadies being three cans of beer each for you and for Ms Hurt for the drive. I have been told by Mr Williams that you have been unable to remember whether you drank on the way. However, the only reasonable inference to be drawn, having regard to the fact that you described them as a common name of roadies, the only inference to be drawn is that was your intention.
…
This was, in my view, a very serious example of dangerous driving occasioning death. You were at the time under the influence to the extent of being incapable of safely driving a motor vehicle and to correct any need to recover your position on the road by reason of the fact that you had been not only drinking - having drunk, I should say, a considerable amount of alcohol - but it was in company with cannabis. And as such it puts this incident in, in my view, a serious category.
All of them are serious. But in view of your history and the manner in which this offence occurred when it should never have entered your mind to drive a vehicle having regard to the knowledge you already had about the dangers of drink-driving, and particularly driving with alcohol and drugs, puts it in a very serious category.[11]
[11] R2, G6/41–5.
On 21 June 2019, the applicant was convicted in the Fremantle Magistrates Court for driving a motor vehicle under the influence of alcohol and drugs. He was fined of $1,600 and disqualified from driving for 18 months.[12]
[12] R2, G4/31.
On 12 March 2020 the applicant was given notice that his visa had been cancelled under s 501(3A) of the Act.[13]
[13] R2, G75.
On 9 April 2020, the applicant sought revocation of the cancellation of the visa and provided submissions and further evidence in support.[14]
[14] R2, G45.
On 8 March 2022, a delegate of the Minister decided, under s 501CA(4) of the Act, not to revoke the cancellation of the visa.[15] The delegate’s decision was sent by registered post and was received by the applicant’s representative on 17 March 2022.[16]
[15] R2, G3.
[16] R2, G80.
The applicant lodged the application for review of the delegate’s decision in the Tribunal on 25 March 2022.[17]
[17] R2, G2.
The applicant’s full criminal and driving record in New Zealand and Australia is set out in the schedule to these reasons for decision.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act relevantly provides that:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) ...; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Act relevantly provides:
For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); ...
(Original emphasis.)
A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) ...
(b) ...
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
...
(Original emphasis.)
Section 501CA of the Act relevantly provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
...
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
(Original emphasis.)
Ministerial Direction 90
Section 499(1) of the Act provides that:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Section 499(2A) of the Act provides that, “A person or body must comply with a direction under subsection (1).”
On 8 March 2021, the Minister, being the relevant Minister for the purposes of s 499 of the Act, made a direction titled “Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90).[18] The commencement date for operation of Direction 90 was 15 April 2021. Upon its commencement, Direction 90 revoked the operation of “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79).[19]
[18] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021).
[19] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018).
Paragraph 5.1 sets out the objectives of Direction 90. Paragraph 5.1(3) relevantly provides:
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction 90 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA of the Act. These principles are 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 measureable [sic] risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.

Paragraph 6 of Direction 90 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 90 (where such considerations are relevant) in order to determine whether the cancellation of the visa should be revoked.
Guidance in relation to how the relevant considerations are to be taken into account can be found in para 7 of Direction 90 which provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of Direction 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.
Paragraph 9 of Direction 90 provides:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)    international non-refoulement obligations;
b)    extent of impediments if removed;
c)    impact on victims;
d)    links to the Australian community, including:
i)strength, nature and duration of ties to Australia;
ii)impact on Australian business interests.
CONSIDERATION
Failure of the character test arises as a matter of law: Harrison and Minister for Immigration and Citizenship.[20] The character test is defined in s 501(6) of the Act (see [22] above). Under s 501(6)(a) of the Act, a person does not pass the character test if the person has “a substantial criminal record”. Section 501(7)(c) of the Act (see [23] above) 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...”. The applicant has been sentenced to a term of imprisonment of 12 months or more and therefore he has a substantial criminal record. Accordingly, he does not pass the character test. As noted at [8] above, the applicant conceded that to be the case and I find that to be the case.
[20] [2009] AATA 47; (2009) 106 ALD 66.
As the applicant does not pass the character test, he cannot rely on s 501CA(4)(b)(i) of the Act for the decision to cancel his visa to be revoked. The issue, therefore, is whether the power under s 501CA(4)(b)(ii) of the Act should be exercised on the basis that there is another reason why the decision under s 501(3A) of the Act should be revoked (see [24] above).
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1 of Direction 90 provides that, when decision-makers are considering the protection of the Australian community, they:
(1) ... should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (para 8.1.1)
Paragraph 8.1.1 of Direction 90 provides:
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e) the cumulative effect of repeated offending;
(f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
The Minister contends that the applicant’s offending should be viewed as very serious for the following reasons:[21]
(a)The applicant has been convicted of violent offences against government representatives, namely assault police.
(b)The sentencing judge considered the applicant’s dangerous driving occasioning death as very serious citing the penultimate paragraph of the sentencing judge’s remarks set out at [14] above.
(c)The applicant has been sentenced to multiple terms of imprisonment in Australia and New Zealand.[22] As noted by Scott DCJ, imprisonment is the last resort in the sentencing hierarchy.[23]
(d)The frequency and cumulative effect of the applicant’s driving offences is also relevant.[24] The applicant has a history of choosing to drive when drinking with friends and has been convicted of four drink driving offences over a 12-year period.
(e)The applicant failed to declare his convictions in New Zealand on his incoming passenger card and therefore must be seen to have provided false and misleading information to the Department.[25]
[21] Minister’s SFIC para 27.
[22] Citing Direction 90 para 8.1.1(1)(c).
[23] Noting, see also PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22].
[24] Citing Direction 90 sub-paras 8.1.1(1)(d) and (e).
[25] Citing Direction 90 para 8.1.1(f); R2, G73/253.
The applicant contends that the “most relevant conduct” is that of the applicant on 17 November 2017 which resulted in the crash that killed his work colleague. At para 34 of his SFIC, the applicant says that the full sequence of events leading up to the crash was summarised by the sentencing judge (see [12]–[14] above). The applicant says that he “has a memory of Ms Hurt leaning or falling onto him while he was driving, which is what he says caused him to veer across the road in the first instance.”[26] The applicant concedes that he was not sentenced on the basis of his passenger having leant or fallen on him.
[26] applicant's SFIC para 38.
Submissions were made by the applicant’s counsel at the hearing that I could take into account, if I were to believe the applicant’s claim, that he had been bumped by his passenger which had caused him to veer. I disagree. This claim by the applicant of having been bumped was raised before the sentencing judge (see [13] above). His Honour made the following remarks on that issue:
I do note that, although there was to be a trial of issues referable to the asserted role played by Ms Hurt in causing, or effectively causing the deviation initially, that has now not been pursued.[27]
…
Nonetheless, it is not a plea at the earliest reasonable opportunity. There were about seven occasions upon which there were attendances in the Magistrates Court. In addition, there has been a delay caused by the anticipated need for a trial of issues relating to an assertion by you that you lost control of the vehicle due to Ms Hurt as a passenger leaning over into the backseat, losing her balance and falling on you, causing you to lose control of the vehicle.
For reasons of which I am not aware, the trial of issues has not proceeded, and you fall to be sentenced, as your counsel says, on the statement of material facts, or amended statement of material facts read by Ms Greenshields on the last occasion.[28]
[27] R2, G6/39.
[28] R2, G6/42.
The statement of material facts read to the court and upon which the applicant was sentenced does not refer to the applicant being bumped by his passenger.[29] The applicant had, in the end, chosen not proceeded with the trial of issues to determine his claim that he had lost control of the vehicle because Ms Hurt had bumped him. He was sentenced on the basis of the statement of material facts which makes no reference to the applicant’s passenger having bumped him.
[29] R3, 6.
Independently of consideration of whether I believe the applicant, the facts now sought to be relied on by the applicant are different to those upon which Scott DCJ sentenced the applicant. Justice Branson in Minister for Immigration and Multicultural Affairs v Ali,[30] a judgment to which most of the subsequent cases on the point have referred with approval, considered the authorities and elicited the following principles as to how decision-makers should treat criminal convictions and findings of fact upon which the conviction or sentence was based:
[30] [2000] FCA 1385; (2000) 62 ALD 573.
[41] First, it seems to me to be clear beyond argument that the administrative decision-maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily.
[42] Second, the overwhelming weight of authority is that where the conviction and sentence are the foundation of the exercise of the power vested in the applicant by s 200 of the Act, the tribunal, when reviewing the decision of the Minister, may not impugn or go behind either the conviction or the sentence.
[43] Third, although there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based, policy considerations suggest that the legislature intended that the Act, to the extent that it is concerned with the control in the public interest of the presence of non-citizens in Australia who have been convicted of criminal offences, should be administered in a way which:
(a) recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences; and
(b) limits inconsistency between decisions of the criminal courts and those of tribunals.
As a consequence, in my view, the Act should be construed as requiring a decision maker under s 200 of the Act to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted. This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.
[44] Fourthly, although a decision maker under s 200 of the Act may, in a case in which the heavy onus on a person who seeks to challenge the facts essential to a criminal conviction and sentence (other than that on which the power to deport is based) is satisfied, accept evidence which contradicts such facts, he or she is not entitled to reach or express a view that the person was wrongly convicted.
[45] Fifthly, the above limitations on the matters to which a decision maker under s200 of the Act is entitled to have regard do not mean that the decision maker is not (subject to such limitations) to make his or her own assessment of the entirety of the conduct of the person whose deportation is under consideration, including the nature and seriousness of conduct which led to convictions and the significance of such conduct so far as the risk of recidivism is concerned.
(Original emphasis; references omitted.)
In Minister for Immigration and Multicultural Affairs v SRT[31] the Full Court noted:
[40] ... where the decision to be reached [by the Tribunal] depends on there having been a sentence that satisfies section 201(c) of the Act, it is not open to the tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence.
...
[45] ... It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of the conviction and of the resulting evidence. The policy must be that a conviction, and a sentence imposed as a result of that conviction, are matters for the criminal law and its procedures.
[31] [1999] FCA 1197; (1999) 56 ALD 349.
Justice Bromberg in HZCP v Minister for Immigration and Border Protection[32] observed at [78]:
I would respectfully adopt the distillation of the case law described by Beach, McLeish and Niall JJA in LLF. On that basis the applicable principles are these:
(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
[32] [2018] FCA 1803.
The applicant’s conviction and the sentence imposed by Scott DCJ are the foundation for the cancellation of the applicant’s visa under s 501(3A) of the Act and the exercise of power under s 501CA(4) of the Act. I am therefore bound to accept the essential facts upon which the sentence was based. They do not include the applicant losing control of the vehicle because he was bumped by Ms Hurt.
In any event, I do not accept the applicant’s claim that he was bumped which was not included in the applicant’s initial statement to police and which, despite having the opportunity to do so, he chose not to have tested at the time of his conviction and sentencing. Further, even if I were to accept his claim that he was bumped, it would not affect my assessment of the seriousness of the applicant’s offending. He chose to drive a considerable distance with a passenger, at night, having consumed a significant amount of alcohol, having smoked cannabis and even having purchased more alcohol to consume while driving. As the expert evidence presented to the court at the time of sentencing (and accepted by Scott DCJ) concluded, the applicant’s “state of intoxication would be inconsistent with [him] having proper control over a motor vehicle under normal driving conditions” (see [13] above).
In relation to the applicant’s offending while in New Zealand, the applicant says that he struggled with alcohol dependence, some drug usage, and extended periods without any stable employment or accommodation, which in turn contributed to his nonconformist behaviour. He says that he was placed in custody on three occasions for short periods due to his failure to follow community work orders but otherwise received fines.
The applicant says that prior to the crash in November 2017, he had not really accepted responsibility for his behaviour. He just did what he wanted, when he wanted without any care for the consequences. He says that:
It wasn’t until my irresponsible mindset caused a fatal accident when I couldn’t avoid the truth anymore. I was kidding myself all along.[33]
[33] A4, para 16.
The applicant accepts:
… that his criminal conduct is serious in nature and that the cumulative effect of his repeat offending inevitably weighs against him. It is submitted, however, that the Applicant has ostensibly only engaged in criminal offending and antisocial activities in association with his alcohol and/or cannabis usage;[34]
and submits that he:
… is an individual who knows right from wrong. He was reckless and indifferent to the law because he did not have the maturity to think through the wider consequences[35]
and that his:
… conduct on 17/18 November 2017 is self-evidently the worst of its kind on his record, as reflected by the sentence imposed on 28 May 2019 and the fact of Ms Hurt’s death itself, despite the lack of any criminal motivation or premediated intent to inflict harm.[36]
[34] applicant’s SFIC para 45.
[35] applicant’s SFIC para 46.
[36] applicant's SFIC para 47.
In assessing the seriousness of the applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction 90, I find that:
(a)Paragraph 8.1.1(1)(a) – the applicant has one conviction in 2009 for assaulting police in New Zealand for which he received a one-month term of imprisonment (concurrent). While not convicted of an offence of family violence, there was an incident in New Zealand in which the applicant sent threatening texts to his former partner with whom he was in a custody dispute involving their daughter. The applicant was cross-examined on this incident as follows:
COUNSEL:       [the New Zealand police report] says:
For approximately one to one and a half years she’s been receiving sporadic threatening texts from you and occasionally from your sister also.
It says:
She received the last threat at 10.10 on 23 August saying ‘WTF, keep your fucking mouth closed and shit. You don’t know any fucking thing about you, foul piece of shit. Or I will find someone to shut it for you, you scummy bush pig’.[37]
[37] transcript at 30.
The applicant admitted having sent the texts.
Paragraph 4(1) of Direction 90 defines family violence as including “threatening or other behaviour … that … causes the family member to be fearful”. Included in the examples of such behaviour in sub-para (d)), is “repeated derogatory taunts”.
The applicant’s conduct in sending the threatening texts is family violence which, by virtue of sub-para (a)(iii) of Direction 90, is to be viewed very seriously.
(b)Paragraph 8.1.1(1)(b) – the only conduct which would come within the operation of this sub-paragraph is the applicant’s conviction in New Zealand in 2009 for assaulting police. That conviction is already considered in (a) above.
(c)Paragraph 8.1.1(1)(c) – the sentence imposed for the dangerous driving occasioning death – drugs, namely four and a half years’ imprisonment, is obviously very significant. While, as the applicant points out, the maximum sentence for this offence is ten years’ imprisonment, a sentence of four and a half years, nearly half the maximum, is obviously a significant term of imprisonment and reflective of the sentencing judge’s view as to the seriousness of the applicant’s offending. Scott DCJ made his views as to the seriousness of the applicant’s offending clear in the passage quoted at [14] above.
The fact that the applicant also received several terms of imprisonment in New Zealand (see [47] above) is indicative of the seriousness of those offences, or possibly the New Zealand courts running out of patience with the applicant’s repeated disregard for the law.
(d)Paragraph 8.1.1(1)(d) – The applicant’s offending in New Zealand, both traffic and criminal, was frequent; twenty-one offences in under six years. While these offences included many minor criminal matters and offences of a public disorder type, there were two driving under the influence of alcohol convictions (significant in light of the applicant’s subsequent conduct) and multiple breaches of community orders. One of the drink driving convictions involved the applicant mounting a curb and hitting another car.[38] There does appear to be a period of just under four years from the applicant arriving in Australia and his first driving under the influence of alcohol offence in March 2016. The last of the applicant’s offences, the dangerous driving occasioning death, is the most serious of the applicant’s offences, so there is a trend of increasing seriousness. It is also significant that shortly before that offence was committed in November 2017, the applicant had been convicted of the high-end driving under the influence offence in March 2016.
[38] transcript at 31.
(e)Paragraph 8.1.1(1)(e) – the applicant has committed some 24 offences over a 15-year period (2004–2019). The cumulative effect of the applicant’s repeated offending including his repeated breaches of community orders and driving while under suspension, indicate that the applicant has little regard for the law or the rights of other community members. He repeats behaviour which he clearly understands to be illegal and/or antisocial. The applicant himself concedes that the cumulative effect of his repeat offending inevitably weighs against him (see [49] above).
(f)Paragraph 8.1.1(1)(f) – the applicant failed to declare his convictions in New Zealand on his incoming passenger card and therefore provided false and misleading information to the Department. He was asked at the hearing why he had made the false claim in his incoming passenger card. His evidence was as follows:
COUNSEL:      And you ticked ‘no’. That’s false; isn’t it?
APPLICANT:     Yes.
COUNSEL:       And at the time you knew that was false?
APPLICANT:     Yes.
COUNSEL:       Was it the case that you thought you wouldn’t be allowed into    Australia if you ticked that differently?
APPLICANT:     Maybe, is. I just - it’s pretty - maybe - yes.
(g)Paragraph 8.1.1(1)(g) – not relevant.

Based on the considerations in para 8.1.1 of Direction 90, I am satisfied that the applicant’s offending has been very serious. Scott DCJ characterised the applicant’s most recent offence as a “very serious example of dangerous driving occasioning death”, which clearly it was. It is even more serious when considered in light of the applicant’s prior record, in particular his repeated drink driving offences and other disregard for the law and the rights and safety of other members of the community. There is a certain air of inevitability about the crash in November 2017 when one considers the applicant’s prior conduct.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
Paragraph 8.1.2 of Direction 90 relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the non-citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Tribunal in CZCV and Minister for Home Affairs[39] at [56] summarised the task for the decision-maker as follows:
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]- [43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
[39] [2019] AATA 91.
In BSJ16 v Minister for Immigration and Border Protection[40] Moshinsky J stated, at [68]:
... there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.
[40] [2016] FCA 1181.
While the Tribunal and the Court in the above cases (and in the cases referred to therein) were considering visa cancellation in the context of predecessors to Direction 90, given the similarity in the wording of the several Ministerial Directions, the same considerations and principles apply to the present case. I adopt the approach indicated in the above cases.
Nature of harm to individuals or the Australian community (para 8.1.2(2)(a))
The applicant at para 49 of his SFIC summarises the nature of the harm that would be caused if he were to repeat the conduct that led to the accident in November 2017 as follows:
It is acknowledged that if the Applicant engaged in further conduct of a similar nature, then serious harm would be caused to individuals and the community at large. Australian road users are entitled to feel safe, either as passengers in motor vehicles or as other drivers on the roadway.
In sentencing the applicant, Scott DCJ made the following remarks about the consequences to the Australian community should the applicant reoffend as he did in November 2017:
From a community standpoint there are so many innocent lives lost and people injured in motor vehicle accidents in this state, in which the driver is under the influence of alcohol and/or drugs.
The risks to innocent members of the community are patently obvious. There is relentless publicity from police and in the media warning those who drive of the risk that they run to passengers and other road users by being intoxicated by alcohol and/or drugs. And yet still the road toll does not abate.[41]
[41] R2, G6/43.
The harm that would be caused should the applicant repeat the conduct that led to the death of his passenger in 2017 is obviously of the most extreme kind. However, the nature of the harm to individuals or the Australian community should the applicant engage in the conduct of the type that he engaged in prior to the accident in 2017, is also not insignificant. A repeat of that criminal and other serious behaviour has the potential to cause injury and property loss and, in the case of the threatening texts sent by the applicant to his former partner, psychological harm.
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (para 8.1.2(2)(b))
The applicant contends that his risk of reoffending is low because of the following factors:[42]
[42] applicant's SFIC paras 50–5.
(a)The trauma and remorse felt by the applicant from having been in the motor vehicle crash himself, finding Ms Hurt’s body on the road, and knowing that he is personally responsible for her death.
(b)The present term of imprisonment is the applicant’s first lengthy prison term. It has served as a significant “re-set” for the applicant, forcing him to reassess the effects of his life choices.
(c)The applicant will be disqualified from driving for three and a half years from the date of his release.
(d)The applicant has finally admitted that his alcohol consumption was seriously problematic, acknowledged the negative impact it has had on his judgement, and voluntarily taken proactive steps to address it. He embraced the AA program from September 2020 onwards.
(e)The applicant will be subject to parole conditions until November 2023, which includes a requirement not to consume alcohol, not to enter licences premises and to attend for random urinalysis.
(f)When released, he will live with his former partner and then look to living with his family on their rural property.
(g)The applicant has the support of his parents and sister who will provide financial and emotional support. They too have observed major improvements in the applicant’s attitude, comportment, and demeanour during the last couple of years.
(h)The applicant has used his custodial term productively, completing various studies and proving himself capable of being conformist and rule-abiding.
(i)While on bail, the applicant attended therapy sessions with a clinical psychologist to help him deal with his emotional issues and a history of alcohol and cannabis use. This counselling included the development of consequential thinking skills and skills to gain resilience which the applicant has consolidated by completing the 100-hour Pathways Program in 2020.
(j)The applicant was assessed as having five key “treatment needs” in his initial prison Treatment Assessment Report, in relation to which he has made progress through the Pathways Program.
(k)The car crash in which his passenger was killed has been a life-changing event, as observed by the applicant’s mother in her statement.[43]
(l)The stark warning to the applicant about the consequences of any future relapse on his migration status.
[43] R2, G15/84 para 14.
The Minister contends that there remains an ongoing and unacceptable risk of the applicant reoffending citing the following:
(a)In 2019 the applicant was assessed as being a high risk of general offending.[44]
[44] Citing R3, 93.
(b)The applicant’s criminal history (particularly in New Zealand) demonstrates a pattern of ignoring Court orders and he has continued to drink drive notwithstanding his previous convictions. As Scott DCJ noted in sentencing the applicant:
The fact that you were convicted of a number of drink-driving offences in New Zealand, and a drink-driving offence in this state in March 2016, only about 19 months prior to the commission by you of this offence is of concern in sentencing because it demonstrates at the time a cavalier attitude which you have had to the dangers of drink driving.
(c)In addition, the applicant has committed numerous traffic offences including speeding and driving with an expired license.
(d)The applicant does not accept the full circumstances of his offending. Despite his guilty plea and the abandonment of the claim that the victim had played a role in causing the accident, he sought to re-run that argument in his request for revocation before the delegate (and also at the hearing).
(e)Although the applicant’s ex-partner and family have stated that they will support him upon release, their support has not been a protective factor for the applicant’s alcohol abuse in the past. The applicant is unsure what employment he will undertake in the event that the cancellation of his visa is revoked.
(f)The applicant’s assertions to the Department that he will not drink anymore, and in fact had quit drinking, are at odds with the submission made in relation to his sentence that “[he] has, for the most part, significantly reduced his alcohol consumption. He instructs that he now rarely drinks, although he has had one or two beers on certain occasions.”[45]
(g)The applicant’s abuse of drugs and alcohol appears to be long-standing.
(h)The applicant’s rehabilitation efforts are recent and have not been tested in the community in the absence of Court obligations. The evidence suggests that the applicant has unmet treatment needs in the areas of emotional regulation, consequential thinking, problem solving and decision making, negative peer association and involvement in prosocial leisure pursuits.[46]
(i)Limited weight should be given to the fact that the applicant has been granted parole in circumstances where the import of the parole order is that the Parole Board was of the view that, with monitoring and supervision during the period of parole, the applicant did not pose an unacceptable risk to the safety of the community. The Tribunal does not have the same comforts (being conditions and the prospect of being returned to custody) when assessing the applicant’s risk.
[45] Citing R2, G25/1151.
[46] Citing R2, G48/204.
The applicant’s evidence at the hearing was that since his imprisonment he had “definitely learnt to seek help”.[47] He said that he was healthier, happier and “more switched on” since he stopped drinking and taking drugs. Asked in re-examination what his understanding of the consequences if he were to reoffend, the applicant’s answer was:
No second chances. Yes, it would be gone permanently, a 99 year ban.
[47] transcript at 22.
Numerous letters and statements of support have been provided by the applicant. These included three letters from Malcolm Heckenberg, psychologist, who provided letters dated 27 March 2019,[48] 15 May 2019[49] and 7 April 2020.[50] Those letters reported that the applicant “was suffering from the symptoms of moderate to severe [post-traumatic] [s]tress [d]isorder severe [d]epression and moderate [a]nxiety” and that he and the applicant were “using Cognitive Behavioural Therapy and [p]sycho-education to assist in relieving his symptoms”.[51] The most recent of the letters from Mr Heckenberg, that of 7 April 2020, advised that the applicant had attended the clinic on 13 and 27 March 2019, 3 and 17 April 2019, 1 and 15 May 2019. It repeated the diagnoses outlined in the previous letters and advised that:
[The applicant] was in the process of a ten session psychological Medicare Mental Health Care Plan to help him deal with his issues and to learn skills to abstain from alcohol and cannabis use. Also to deal with his underlying issues of anxiety and depression and low self esteem. He was engaged in the therapy sessions and was doing what was required from him.[52]
and that:
If it is seen fit to re-instate his visa, it is my opinion that the likelihood of Mr Hilton re-offending in any criminal matter in the future would be very minimal.[53]
[48] R2, G43.
[49] R2, G42.
[50] R2, G41.
[51] R2, G42; R2, G43.
[52] R2, G41/175.
[53] R2, G41/175.
Mr Heckenberg gave evidence at the hearing. His evidence was that he is a registered psychologist and is a principal of Mandurah Counselling & Psychological Services where he has practised since 2000. Mr Heckenberg’s evidence was that the applicant showed remorse, accepted liability for the death of his passenger and was receptive to treatment strategies.[54] Mr Heckenberg confirmed that if the applicant were allowed to stay in Australia, he would be happy to take him on as a client. Asked whether he still considered the likelihood of the applicant reoffending as “very minimal”, Mr Heckenberg’s evidence was:
… I do, speaking to him and what he’s done while he was in jail. If he continues to do that out of jail then that’s my opinion. He sounded confident that he could maintain his lessons that he’d learnt along the way prior to going to jail and in jail, and wanted to keep his abstinence up.[55]
[54] transcript at 43.
[55] transcript at 44.
Under cross-examination Mr Heckenberg’s evidence was that, as far as he was aware, the applicant had not been to gaol prior to Mr Heckenberg seeing him. It was pointed out that he had in fact had three short stints in prison in New Zealand. Asked whether that changed his assessment, Mr Heckenberg’s evidence was that it did not.
A statement of support was provided by Damien Thornber,[56] who also gave evidence at the hearing. His evidence was that he had met the applicant at an alcoholics anonymous (AA) meeting in Karnet Prison Farm in or about 2019. Mr Thornber has been attending the AA meetings in Karnet for eight years and was identified as being the applicant’s “sponsor”. His evidence was that there was a stage when the applicant took over the role of secretary for the AA meetings which involved him organising the meetings and encouraging others to attend. Mr Thornber’s evidence was that the applicant participated in the meetings as well as organising them.
[56] A8.
Mr Thornber also has contact with the applicant outside the AA meetings in providing support to the applicant. The applicant sends Mr Thornber a “gratitude list” text message most days. Examples had been included in the material filed in the Tribunal. Asked to explain their purpose, Mr Thornber’s evidence was:
A gratitude list is a form of moral psychology, you know? It’s like a - instead of thinking about drinking or why you should drink, it aims at changing our personality, our character, by focusing on what we actually have. I think it takes a bit of grit to be able to do that when you’re locked up, and yes, he’s been consistent with that. I know those things have really helped me because - well, it doesn’t matter whether you’re drinking or not. Life can get tough. But if I focus on what I’ve got and the good things around me, that seems to keep me focused on not drinking.[57]

[57] transcript at 49.
Mr Thornber’s evidence was that he thought that the applicant would follow his encouragement to stay involved with AA. I asked Mr Thornber whether he could comment on the incidence of prisoners, once released, not continuing with AA. He conceded that, while he did not have the statistics, the rate of recidivism is high, but that he had:
… seen men come out of prisons and institutions and resume their lives in the community, and I have friends that have done so. … I have at least two friends that I’ve met at meetings in prisons that have come out and have taken up a role in the community. I think there’s hope. I think there’s hope, and that’s why I keep going in there. And I’ve seen what I could only describe as some miraculous recoveries from people that have seemed pretty hopeless.[58]
[58] transcript at 51.
The applicant’s former partner, Ms Stevens, provided a number of statements[59] and gave evidence at the hearing. Her evidence was that she and the applicant had started their relationship when working together on a cattle station in 2016 and had remained in that relationship up until January this year.[60] She has remained in contact with the applicant throughout his time in prison and immigration detention. She confirmed that the applicant would be able to stay with her at her house in Mandurah should he wish to do so on release. It is her address which is nominated in the applicant’s parole order. She presently lives in that address with her 22-year-old daughter. Ms Stevens works on a mine site with a “15/6” roster, which she explained meant that she was home six days a month.
[59] A6; R2, G14; R2, G65.
[60] transcript at 54.
Ms Stevens’ evidence was that the applicant has changed since his time in prison and detention. She also stated that since the accident in November 2017, the applicant has significantly reduced his drinking.
The applicant also referred to the program completion report for the 100-hour Pathways program undertaken by the applicant when he was in Karnet.[61] The report identified the program end date as 18 November 2020 and confirmed that the applicant had attended 49 of the 50 sessions, his only absence being the result of a mix up. The report noted that the applicant had identified his risk being with a return to alcohol and that he was committed to not drinking or smoking cannabis, focusing on his family and his partner and that he would live with his partner. He advised the author of the report that he was committed to continuing with AA and would resume counselling with Mr Heckenberg if released back into the community. Under the heading “summary”, the report stated that the applicant had made progress in each of the areas identified as being issues for him in developing strategies for avoidance of reoffending.
[61] R3, 32.
The statements and evidence at the hearing of the applicant’s family members was summarised by the applicant’s counsel in closing as follows:
You can also, in my view, rely on the statements made by the family members. They present as a prosocial family. They’re pretty much non-drinkers. They are making arrangements to have Mr Hilton live with them, start doing some fencing, get to work, be in an environment where he won’t be exposed in terms of the risk that he once was when it comes to normalising drinking to excess and normalising drink driving. And so I think if nothing else, you can take away from the evidence and the written statements of the family that the support is quite different now from what it was in the past. And my friend put it to each of them, oh well, you were always there; and they all said, yes, yes, they were. But they’ve never lived - you know, they probably haven’t been together since they were small children. He’s going back into an environment where he’s actually going to - you know, subject to a change to the parole, he’s going to be living with the family. That’s certainly the ideal scenario. That’s quite a different nature of support to just being at the end of a phone line. So I’d say that you can also take that information into account when it comes to risk.[62]
[62] transcript at 85.

The applicant’s counsel summarised the applicant’s evidence as to the risk of reoffending as follows:
… he has certainly come to a realisation that he is an alcoholic and that he needs to modify his behaviour and that he has made a decision that he will abstain from alcohol and drugs. And he has committed to AA in order to do that. He’s found that to be beneficial. His daily gratitude lists, his daily Zoom meetings, the support network, the peer-to-peer nature of the program where he feels he can talk to people who’ve been there, done that, who are former alcoholics. And so that is also information and evidence about the risk of reoffending. Because if he continues with that, then it’s my submission there’s a - it minimizes relapse. And as I said to you about the nature of the offending, the offending tends to go hand in hand with alcohol and cannabis consumption. So if he can stick with strategies that avoid partaking in alcohol and cannabis consumption, then his judgement won’t be affected and he won’t - the risk of reoffending will lower.[63]
[63] transcript at 85.
I accept that the applicant has undertaken a large number of courses while in prison and in immigration detention.[64] His involvement with AA and his apparent commitment to continuing with AA is to be commended. While the Pathways program completion report, the evidence of Mr Heckenberg and the applicant’s own evidence are obviously positive, the fact is that the effectiveness of the rehabilitation that the applicant has undertaken has not been tested. The evidence of those supporting the applicant as to his risk of reoffending is also largely conditioned upon the applicant being able to avoid returning to alcohol and drugs as he has in the past. As the Minister pointed out, the applicant’s drug and alcohol use are long-standing and only really stopped, certainly in relation to the use of cannabis, when he went into prison on sentencing in 2019.[65]
[64] R2, G48–G63.
[65] transcript at 35.
The environment to which the applicant will be going if he were to be able to stay in Australia is not materially different to that which saw him offending in the past. Further, his plans upon release, upon which Mr Heckenberg and others (such as the author of the Pathways program completion report) formed their views, have changed since those views were expressed. The applicant is no longer in a relationship with Ms Stevens, although her evidence was that she would still be happy to have the applicant stay with her. The possibly stabilising factor of a firm relationship will not be present.
In the end we are heavily reliant on the applicant’s self-assessment, or belief, that he has changed and that he is not a risk of re-offending. Unfortunately, while I do not doubt the applicant’s sincerity, and I accept that he is remorseful for the death of his friend Ms Hurt and accepts responsibility for her death, I do not share his optimism as to his prospects of reoffending. He has long-term drug and alcohol issues, a serious criminal record and has, over an extended period, demonstrated that he is unwilling, or unable, to comply with the law. That has had fatal consequences in the past.
Given the applicant’s history, I do not accept Mr Heckenberg’s assessment of the applicant’s risk of reoffending as being low. I put the applicant’s risk of reoffending at moderate. Given the nature of the harm that would be caused if the applicant were to reoffend as he has in the past, in particular his driving while under the influence of alcohol and drugs, and my assessment of a moderate likelihood of the applicant engaging in that offending conduct, this first primary consideration weighs heavily against the revocation of the cancellation of the applicant’s visa.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
Paragraph 8.2 of Direction 90 relevantly 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
…
As noted at [50(a)] above, family violence is defined in Direction 90 as including “threatening or other behaviour … that … causes the family member to be fearful”. Included in the examples of such behaviour in sub-para (d)), is “repeated derogatory taunts”.
For the reasons set out above, I find that the applicant has engaged in family violence. He admitted in cross-examination to the conduct which constituted the family violence. Looking at the factors identified in para 8.2(3) of Direction 90 (see [77] above) as indicating seriousness:
(a)there was a series of texts which were sent over a period of one to one and a half years (see [50(a)] above). It is not possible to discern whether there was a trend of increasing seriousness.
(b)The sending of multiple texts over an extended period obviously aggravates the behaviour.
(c)The factors identified in para 8.2(3)(c) are difficult to assess, but the example given in the New Zealand police report to which the applicant was taken, and he did not deny, would seem to evidence an intent to harm his former partner. Insofar as rehabilitation in this context or acceptance of liability for harm caused is concerned, the applicant gave no evidence and was not examined or re-examined by counsel on those issues.
In closing the applicant’s counsel made the following submissions on this consideration:
… there appears to have been an incident in 2009 in New Zealand with a former partner and sustained sort of a series of text messages. We’re not really sure how many, it just says, ‘sporadic threatening texts’. We don’t [have] anymore evidence other than an incident report. We don’t really know what sporadic means, we don’t know the text apart from one single text. We don’t know the context, we don’t [know] what was said before that or after that or what the dispute was about.
But what we do know and what you do have evidence about is that once it was pointed out to Mr Hilton, this is not on, you don’t do that, you don’t send nasty text messages to your former partner, he stopped. So, I don’t have much more to say about family violence, other to say, look, I’d say it remains neutral weight and we’re talking about something that happened in 2009.
While there is undoubtedly an episode (albeit an extended episode) of family violence, the points made by the applicant’s counsel are fair. The applicant did desist when spoken to by the police and it was some thirteen years ago. While this consideration must weigh against revocation of the cancellation of the applicant’s visa, for the reasons identified by the applicant’s counsel, only minor weight should be given to this second primary consideration.
Third primary consideration: The best interests of minor children in Australia (para 8.3)
Paragraph 8.3 of Direction 90 provides:
(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to ... not revoke the mandatory cancellation of the visa, is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a)    the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)    the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)    the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)    the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)    whether there are other persons who already fulfil a parental role in relation to the child;
f)     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)    evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)    evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The applicant identifies a 13-year-old nephew and three younger nieces as being relevant to this consideration.[66] They are the children of his sister. The applicant’s sister, the father of the children and the children live with the applicant’s parents on their rural property.
[66] applicant's SFIC para 55.
The applicant’s evidence was that he has been consistently involved in the children’s lives since they were born and that he has developed a close bond with each of them. Before he went to prison, he regularly visited their house and would have them stay with him and his then partner, Ms Stevens. He would take them camping, fishing and, in the case of his nephew, dirt bike riding.
The children’s mother, Ms Miller, made two statutory declarations. In addition, she had written to the Prisoner Review Board in September 2021. In the first of her statutory declarations, dated 4 April 2020, Ms Miller stated that the applicant spent time with the children engaged in outdoor activities and that while the applicant was in prison, she had taken them to visit him. She said that he oldest child, the 13-year-old boy, was particularly close to the applicant and was missing being able to spend time with him.
In the second statutory declaration, dated 20 April 2022, Ms Miller stated that since the applicant had been relocated to Yongah Hill Immigration Detention Centre she and her son linked their phones with the applicant and played online games. Ms Miller’s evidence at the hearing was that she regularly talks about the children to the applicant who

“has a very large interest in … his nephews and nieces
” and that the applicant is still “very close” to the children.[67] Her evidence was that she has asked the children what the impact would be on them of the applicant being removed from Australia. Her evidence was that they would be “very devastated”.[68] This is confirmed in the statement of the applicant’s nephew[69] with a similar sentiment being expressed by the children’s father in his statement.[70]
[67] transcript at 67.
[68] transcript at 69.
[69] R2, G19.
[70] R2, G18.
The Minister contends that if I were to find that the best interests of the children were to be served by the revocation of the cancellation of the applicant’s visa, then only limited weight should be given to the consideration because:
(a)the children live with their parents who fulfil the parental role;[71]
(b)the applicant’s relationship with the children has been marked with a lengthy physical absence, given that he has been in custody since May 2019; and
(c)there is no independent evidence of the effect that any separation would have on the children,[72] nor is there any obvious impediment to the applicant continuing to contact children via electronic mean.
[71] Citing Direction 90 para 8.3.(4)(e).
[72] Citing Direction 90 para 8.3(4)(f).
In response to those submissions by the Minister, the applicant in his reply to the Minister’s SFIC said that there is no requirement for there to be “independent evidence” and also pointed to the fact that, insofar as the views of the children are known, they want the applicant to stay.
Considering the relevant factors identified in para 8.3(4) of Direction 90:
(a)While the applicant has a relatively close relationship with the children, it is the case that it is not a parental relationship[73] and the parental roles are already being fulfilled by the children’s parents.[74]
(b)It would appear that the role that has been played by the applicant in the children’s lives has been a positive one, particularly in relation to his nephew. There would appear to be no reason why that positive influence would not continue if the applicant were allowed to stay in Australia.[75]
(c)Insofar as the views of the children are known,[76] they are that they want the applicant to remain in Australia (see [86] above).
[73] Direction 90 para 8.3(4)(a).
[74] Direction 90 para 8.3(4)(e).
[75] Direction 90 para 8.3(4)(b).
[76] Direction 90 para 8.3(4)(f).
I am satisfied that the best interests of the applicant’s nephew and three nieces would be served by the applicant remaining in Australia. However, I agree with the Minister’s submission that only minor weight can be given to this primary consideration because the applicant is not a parent and the parental roles are being fulfilled by the children’s parents.
Fourth primary consideration: Expectations of the Australian community (para 8.4)
Paragraph 8.4 of Direction 90 relevantly provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition ... non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/ material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
The principles set out in para 5.2 of Direction 90 as set out in [29] above are also relevant to this consideration.
In FYBR v Minister for Home Affairs[77] the Full Court of the Federal Court of Australia considered the operation of the corresponding provisions in Ministerial Direction No 65[78] (a predecessor to Direction 79 and Direction 90: see [27] above). The relevant provisions of Direction 90 contain generally similar wording to the corresponding provisions in Direction 65.
[77] [2019] FCAFC 185; (2019) 272 FCR 454.
[78] Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014).
In Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[79] I summarised the effect of the Full Court’s judgment in FYBR and the current state of the law as follows:
156.... The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’ – expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Rehman). See also decisions of the Hon. John Pascoe AC CVO, Deputy President in Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [77]-[78].
[79] [2020] AATA 3953.
Justice Stewart in FYBR found:
89.It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
90.However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
91.The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.
(Emphasis omitted.)

Justice Charlesworth also observed:
75.Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
...
79....The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
(Emphasis omitted.)
Due to the application of the “norm”, as it is now referred to in para 8.4(1) of Direction 90, and the deeming operation of the corresponding Direction as found by the Full Court in FYBR, this primary consideration weighs against the revocation of the cancellation of the applicant’s visa.
I must, however, determine what weight should be given to this consideration. Some guidance in this regard is provided by para 8.4(2) of Direction 90 (see [91] above) which provides that the Australian community expects that the Australian Government can and should refuse entry to non-citizens if they raise serious character concerns through conduct, in Australia or elsewhere, of the kind listed is sub-paras 8.4(2)(a)–(f).
The Minister contends:
that this primary consideration weighs heavily against revocation, even if the Tribunal concludes that the applicant does not pose a “measurable risk in causing physical harm to the Australian community.”[80]
[80] Minister’s SFIC para 43.
The applicant contends that this consideration does not always weigh against the revocation of the cancellation of the visa.[81] With respect, I cannot agree with the applicant’s contention. For the reason set out in [97] above, this consideration must weigh against the revocation of the cancellation of the visa, the only issue for determination is what weight should be given to it.
[81] applicant's SFIC para 60.
The applicant’s criminal record and past serious conduct includes acts of family violence[82] and offences against government representatives.[83] The applicant has, in my assessment, shown a disregard for the law over an extended period. I am also conscious of the principles enunciated in sub-paras 5.2(4) and (5) of Direction 90 (see [29] above) that Australia has a low tolerance for non-citizens who have been in the community for only a short period and that consideration needs to be given to the harm that would be caused if the applicant were to offend in the future as he has in the past. The consequences of that behaviour have been tragically demonstrated. Taking those factors into account, I find that moderate weight should be given to this primary consideration.
[82] Direction 90 para 8.4(2)(a).
[83] Direction 90 para 8.4(2)(d).
OTHER CONSIDERATIONS
Paragraph 9 of Direction 90 sets out the “Other considerations” to be taken into account as follows:
(1) In making a decision under section ... 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)    international non-refoulement obligations;
b)    extent of impediments if removed;
c)    impact on victims;
d)    links to the Australian community, including:
i)strength, nature and duration of ties to Australia;
ii)impact on Australian business interests
The only “other consideration” identified as being relevant in the applicant’s SFIC was that of links to the Australian community. The Minister’s SFIC did also address the consideration of extent of impediments if removed and in his reply submissions the applicant did raise that latter consideration as well. However, other than the applicant’s evidence that he had not maintained contact with his family in New Zealand, there was no evidence presented by the applicant as to any impediment that he might face in establishing and maintaining a basic living standard in New Zealand. While there was evidence that the applicant had been experiencing symptoms of post-traumatic stress disorder, depression and anxiety, there was no evidence that these conditions would be an impediment to the applicant establishing a basic living standard in New Zealand. In closing, Ms Edis for the applicant said:
I’m not going to address you about extent of impediments, we’re talking about New Zealand. Yes, it will be difficult, yes, it will be sad, but I can’t really put it much higher than that.
I think that Ms Edis’ summary is correct. There was simply no evidence which could substantiate a finding that the applicant would face any impediments in establishing and maintaining basic living standards, in the context of what is generally available to citizens of New Zealand, by reason of the applicant’s age, health, language or cultural barriers or a lack of medical or economic support.
Links to the Australian community (para 9.4)
Paragraph 9.4 of Direction 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 and 9.4.2 below.
Strength, nature and duration of ties to Australia (para 9.4.1)
Paragraph 9.4.1 of Direction 90 is as follows:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant arrived in Australia in June 2012. He committed his first offence, “[e]xceed 0.08g of alcohol per 100ml of blood” in March 2016, a relatively short time after he arrived. It is the case that the applicant has contributed to the community through his employment. He has been regularly employed in seasonal farm work since his arrival[84] and statements were provided by former employers Matthew Hammarquist,[85] Raymond Hoseason-Smith[86] and Betty and Kevin Heitman,[87] each attesting to his good work ethic.
[84] R2, G11.
[85] R2, G21.
[86] R2, G22.
[87] R2, G44.
In relation to the considerations identified in para 9.4.1(2)(a) of Direction 90, the applicant has not lived in Australia for a long period. He arrived as an adult and started offending relatively soon after his arrival. It is the case that he was gainfully employed in seasonal rural work. Insofar as para 9.4.1(2)(a) of Direction 90 requires consideration of how long the applicant has resided in Australia and whether he arrived as a young child, in the present case the directives contained in sub-paras (i) and (ii) in effect balance each other out.
The most obvious link that the applicant has to the Australian community is his family: his parents, sister, brother-in-law and his nephew and nieces. While she is no longer his partner, it appears that Ms Stevens is still close to the applicant, as is her 22-year-old daughter. The applicant’s removal will have a significant emotional impact on those family members. The applicant’s father and mother gave statements attesting to their closeness to the applicant and to the fact that, if he were to be deported, due to their age, health and limited financial means they would find it hard to visit the applicant.[88] In her statutory declaration of 7 April 2020,[89] the applicant’s mother said that it would break her heart to be separated from the applicant, who is her only son.
[88] R2, G15; A5.
[89] A5.
The Minister accepts that a non-revocation decision may have an adverse effect on members of the applicant’s immediate family in Australia, namely, his parents and sister, however, there is nothing to suggest that any of those people would face insurmountable hardship in the event of the applicant’s departure.
I am satisfied that the applicant has significant ties to the Australian community, primarily through his immediate family, and that this consideration weighs in favour of revocation of the cancellation of the applicant’s visa. However, I consider that only minor weight should be given to this consideration because, while the applicant has lived in Australia for nearly ten years and did contribute to the community through his employment, he arrived as an adult and started offending relatively soon after. I also taken into account that some three of the ten years that the applicant has been in Australia has been in detention or prison.
THE WEIGHING EXERCISE
Direction 90 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account (see [31] above).
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[90] and the Full Court of the Federal Court judgment in Minister for Home Affairs v HSKJ.[91]
[90] [2018] FCA 594; (2018) 74 AAR 545.
[91] [2018] FCAFC 217; (2018) 266 FCR 591.
Colvin J’s judgment in Suleiman was considered by Wigney J in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[92] At [21] Wigney J cited [23] of Colvin J’s judgment which was as follows:
The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non‑refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
(Emphasis omitted.)
[92] [2021] FCA 775.
Wigney J then observed at [22]:
It is the last sentence of this paragraph of Suleiman which has given rise to the issue in this case. That issue will be discussed in more detail later. It suffices at this point to note that, with the greatest respect to Colvin J, this analysis of paragraph 8 of the relevant direction tends to overcomplicate or over intellectualise the issue. More significantly, it may lead decision-makers into error. Paragraph 8 of Direction no. 79 is expressed in simple terms. Relevantly, decision-makers must take into account the primary and other considerations that are relevant to the individual case and, when it comes to weighing up the relevant considerations, have regard to three relevant principles: first, both primary and other considerations may weigh in favour of, or against, whether or not to revoke a cancellation of a visa; second, primary conditions should generally be given greater weight than other considerations; and third, one or more primary considerations may outweigh other considerations. It is difficult to see why any further elaboration of those simple principles or propositions is necessary or warranted.
(Emphasis omitted.)
The Tribunal in CZCV at [164] summarised the legal position as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so. ...
I adopt the approach directed by the above cases.
I find that the first primary consideration, the protection of the Australian community, for the reasons set out above (see [76]), weighs heavily against the revocation of the cancellation of the applicant’s visa.
The second primary consideration, family violence, for the reasons set out above (see [81]) weighs against revocation of the cancellation of his visa, however, only minor weight should be given to this consideration.
I find that the third primary consideration, the best interests of minor children, for the reasons set out at [90] above, weighs in favour of the revocation of the cancellation of the applicant’s visa, however, that only minor weight should be given to this consideration.
The fourth primary consideration, the expectations of the Australian community, as it must, weighs against the revocation of the cancellation of the applicant’s visa and I find that moderate weight should be given to this consideration.
In relation to the “other considerations” identified in Direction 90, I find that the only relevant other consideration is the applicant’s links to the Australian community. For the reasons set out in [111] above, only minor weight should be given to this consideration.
Having weighed the considerations in favour of the revocation of the cancellation of the applicant’s visa and the considerations against the revocation of the cancellation of the applicant’s visa, I find that the considerations against revocation, particularly the protection of the Australian community, outweigh those in favour of revocation. Accordingly, I do not find that there is another reason why the original decision should be revoked.
DECISION
The decision of the delegate of the Minister dated 8 March 2022 under s 501CA(4) of the Act not to revoke the mandatory cancellation of the applicant’s Special Category (subclass 444) visa, is affirmed.

I certify that the preceding 124 (one hundred and twenty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...[SGD].....................................................................
Associate
Dated: 8 June 2022

Date of hearing: 8 June 2022

Counsel for the Applicant: Ms J Edis

Solicitors for the Applicant: Putt Legal

Counsel for the Respondent: Mr A Burgess

Solicitors for the Respondent: Sparke Helmore Lawyers
ANNEXURE

Court Result date Offence date Offence Result

Offending history in Australia

Fremantle Magistrates Court 21 June 2019 Drove a motor vehicle under the influence of alcohol and drugs $1,600 fine; motor driver’s licence (MDL) disqualified for 18 months (concurrent)

Perth District Court of Western Australia 28 May 2019 Dangerous driving occasioning death – drugs Four years and six months’ imprisonment (concurrent) from 28 May 2019; MDL disqualified for three years and six months (concurrent)

Geraldton Magistrates Court 21 March 2016 Exceed 0.08g of alcohol per 100ml of blood $550 fine; MDL disqualified for seven months (concurrent)

Offending history in New Zealand

Tauranga District Court 7 October 2011 18 March 2011 Breach of community work Convicted and sentenced: two months’ imprisonment (concurrent)

Tauranga District Court 21 December 2010 2 December 2010 Wilful damage Convicted and sentenced: $500 reparation

Tauranga District Court 20 August 2010 19 December 2009 Breach of community work Convicted and sentenced: one months’ imprisonment (standard release conditions, special release conditions)

Tauranga District Court 20 August 2010 6 September 2009 Disorderly behaviour Convicted and sentenced: 80 hours’ community work (result of community based sentence review)

Tauranga District Court 7 December 2009 6 September 2009 Resist police Convicted and sentenced: one months’ imprisonment (concurrent) (standard release conditions, special release conditions/ result of community based sentence review)

Tauranga District Court 7 December 2009 6 September 2009 Assault police manually Convicted and sentenced: one month’s imprisonment (concurrent) (standard release conditions, special release conditions/ result of community based sentence review)

Pukekohe District Court 30 January 2008 26 January 2008 Disorderly behaviour likely to cause violence Convicted and sentenced: $100 fine; $130 in court costs

Pukekohe District Court 30 January 2008 26 January 2008 Wilful damage Convicted and sentenced: $125 fine; $130 in court costs

Tauranga District Court 24 April 2007 11 October 2006 Breach of community work Convicted and sentenced: eight days’, two months’ imprisonment (concurrent); denied leave to apply for home detention

Tauranga District Court 24 April 2007 24 June 2006 Breach of community work Convicted and sentenced: one month’s imprisonment; denied leave to apply for home detention

Tauranga District Court 15 December 2005 3 December 2005 Burgles by day ($500-$5,000) Convicted and sentenced: $424 reparation; 150 hours’ community work (cumulative); final warning

Tauranga District Court 15 December 2005 3 December 2005 Burgles by day ($500-$5,000) Convicted and sentenced: $195 reparation; 150 hours’ community work(cumulative); final warning

Tauranga District Court 15 December 2005 17 October 2005 Breach of community work Convicted and discharged: final warning

Tauranga District Court 18 May 2005 30 April 2005 Property theft (under $500) Convicted and sentenced: $250 fine; $130 in court costs; $55.44 reparation

Tauranga District Court 25 May 2004 16 May 2004 Offensive behaviour Convicted and sentenced: $200 fine; $130 in court costs

Traffic History in New Zealand

Tauranga District Court 21 December 2010 2 December 2010 Breath alcohol level over 400 micrograms per litre of breath; blood/breath = 839 Convicted and sentenced: 120 hours’ community work; disqualification from driving for seven months

Waihi District Court 9 February 2006 3 November 2005 Drove while disqualified Convicted and sentenced: 100 hours’ community work (cumulative); disqualification from driving for nine months

Tauranga District Court 12 October 2005 11 September 2005 Operated a motor vehicle recklessly Convicted and sentenced: 50 hours’ community work (cumulative); disqualification from driving for eight months

Tauranga District Court 12 October 2005 11 September 2005 Drove while disqualified Convicted and sentenced: 50 hours’ community work; disqualification from driving for eight months

Tauranga District Court 12 October 2005 11 September 2005 Failed to stop when followed by red/blue flashing lights Convicted and sentenced: $250 fine; $130 in court costs

Tauranga District Court 4 August 2005 15 July 2005 Breath alcohol level over 400 micrograms per litre of breath (blood/breath = 574) Convicted and sentenced: $500 fine; $130 in court costs; disqualification from driving for six months

[2022] AATA 1531

8 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Date of hearing:	8 June 2022
Counsel for the Applicant:	Ms J Edis
Solicitors for the Applicant:	Putt Legal
Counsel for the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers

Court	Result date	Offence date	Offence	Result
Offending history in Australia
Fremantle Magistrates Court	21 June 2019	Drove a motor vehicle under the influence of alcohol and drugs	$1,600 fine; motor driver’s licence (MDL) disqualified for 18 months (concurrent)
Perth District Court of Western Australia	28 May 2019	Dangerous driving occasioning death – drugs	Four years and six months’ imprisonment (concurrent) from 28 May 2019; MDL disqualified for three years and six months (concurrent)
Geraldton Magistrates Court	21 March 2016	Exceed 0.08g of alcohol per 100ml of blood	$550 fine; MDL disqualified for seven months (concurrent)
Offending history in New Zealand
Tauranga District Court	7 October 2011	18 March 2011	Breach of community work	Convicted and sentenced: two months’ imprisonment (concurrent)
Tauranga District Court	21 December 2010	2 December 2010	Wilful damage	Convicted and sentenced: $500 reparation
Tauranga District Court	20 August 2010	19 December 2009	Breach of community work	Convicted and sentenced: one months’ imprisonment (standard release conditions, special release conditions)
Tauranga District Court	20 August 2010	6 September 2009	Disorderly behaviour	Convicted and sentenced: 80 hours’ community work (result of community based sentence review)
Tauranga District Court	7 December 2009	6 September 2009	Resist police	Convicted and sentenced: one months’ imprisonment (concurrent) (standard release conditions, special release conditions/ result of community based sentence review)
Tauranga District Court	7 December 2009	6 September 2009	Assault police manually	Convicted and sentenced: one month’s imprisonment (concurrent) (standard release conditions, special release conditions/ result of community based sentence review)
Pukekohe District Court	30 January 2008	26 January 2008	Disorderly behaviour likely to cause violence	Convicted and sentenced: $100 fine; $130 in court costs
Pukekohe District Court	30 January 2008	26 January 2008	Wilful damage	Convicted and sentenced: $125 fine; $130 in court costs
Tauranga District Court	24 April 2007	11 October 2006	Breach of community work	Convicted and sentenced: eight days’, two months’ imprisonment (concurrent); denied leave to apply for home detention
Tauranga District Court	24 April 2007	24 June 2006	Breach of community work	Convicted and sentenced: one month’s imprisonment; denied leave to apply for home detention
Tauranga District Court	15 December 2005	3 December 2005	Burgles by day ($500-$5,000)	Convicted and sentenced: $424 reparation; 150 hours’ community work (cumulative); final warning
Tauranga District Court	15 December 2005	3 December 2005	Burgles by day ($500-$5,000)	Convicted and sentenced: $195 reparation; 150 hours’ community work(cumulative); final warning
Tauranga District Court	15 December 2005	17 October 2005	Breach of community work	Convicted and discharged: final warning
Tauranga District Court	18 May 2005	30 April 2005	Property theft (under $500)	Convicted and sentenced: $250 fine; $130 in court costs; $55.44 reparation
Tauranga District Court	25 May 2004	16 May 2004	Offensive behaviour	Convicted and sentenced: $200 fine; $130 in court costs
Traffic History in New Zealand
Tauranga District Court	21 December 2010	2 December 2010	Breath alcohol level over 400 micrograms per litre of breath; blood/breath = 839	Convicted and sentenced: 120 hours’ community work; disqualification from driving for seven months
Waihi District Court	9 February 2006	3 November 2005	Drove while disqualified	Convicted and sentenced: 100 hours’ community work (cumulative); disqualification from driving for nine months
Tauranga District Court	12 October 2005	11 September 2005	Operated a motor vehicle recklessly	Convicted and sentenced: 50 hours’ community work (cumulative); disqualification from driving for eight months
Tauranga District Court	12 October 2005	11 September 2005	Drove while disqualified	Convicted and sentenced: 50 hours’ community work; disqualification from driving for eight months
Tauranga District Court	12 October 2005	11 September 2005	Failed to stop when followed by red/blue flashing lights	Convicted and sentenced: $250 fine; $130 in court costs
Tauranga District Court	4 August 2005	15 July 2005	Breath alcohol level over 400 micrograms per litre of breath (blood/breath = 574)	Convicted and sentenced: $500 fine; $130 in court costs; disqualification from driving for six months