Himone and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 4142

Himone and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4142 (1 November 2022)
Division:GENERAL DIVISION
File Number: 2022/6699
Re:Laetyn Sebastrian Himone
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Member D. Cosgrave
Date of Decision: 1 November 2022
Date of Written Reasons: 6 December 2022
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 10 August 2022 to not revoke the mandatory cancellation of the Applicant’s visa.
...........[sgd].................
Member D. Cosgrave
Catchwords
MIGRATION – Non-revocation of a mandatory visa cancellation – citizen of New Zealand – Class TY Subclass 444 Special Category (Temporary) visa – failure to pass good character test – substantial criminal record – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 90 applied – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Cases
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Matthews v Minister for Home Affairs [2020] FCAFC 146
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
CONTENTS
REASONS FOR DECISION
INTRODUCTION
BACKGROUND
OFFENDING HISTORY AND SENTENCING JUDGE’S COMMENTS
LEGISLATIVE FRAMEWORK
ISSUES
Character test
Another Reason?
The Direction
EVIDENCE
Documentary evidence
Witnesses
Applicant’s evidence
Evidence of Nader Narouz
Evidence of May Faumi
Evidence of Eroni Wilkersea Tara
Evidence of Taufusi Loretta Togia Moe
Evidence of Mario Rizzeri
Evidence of Timoci Tara
Expert Evidence of Dr Sam Calvin
THE TRIBUNAL’S CONSIDERATION OF THE EVIDENCE
The Oral Evidence
Documentary Evidence
PRIMARY CONSIDERATIONS
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
Tribunal consideration: The nature and seriousness of the conduct
Tribunal findings: The nature and seriousness of the conduct
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Remorse
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Tribunal Finding: Protection of the Australian Community from criminal or other serious conduct

PRIMARY CONSIDERATION 2: Whether the conduct engaged in constituted family violence
PRIMARY CONSIDERATION 3: The best interests of minor children in Australia
Identification of the relevant minor children
Tribunal findings: Best interests of minor children in Australia affected by the decision

PRIMARY CONSIDERATION 4: Expectations of the Australian community
Tribunal consideration: Expectations of the Australian community
Tribunal findings: Expectations of the Australian community

OTHER CONSIDERATIONS
Other Consideration 1: International non-refoulement obligations
Tribunal findings: International non-refoulement obligations

Other Consideration 2: Extent of impediments if removed
The Applicant’s Written Submissions
Sub-paragraph 9.2(1)(a) Age and Health
Tribunal findings: Extent of impediments if removed

Other Consideration 3: Impact on Victims
Primary Consideration 4: Links to the Australian Community
Strength, nature and duration of ties
Immediate family members
Other Ties
Impact on Australian business interests
Findings on Other Consideration 4

Findings: Other Considerations
ADDITIONAL CONSIDERATIONS
CONCLUSION
DECISION
ANNEXURE A – Exhibit Register
REASONS FOR DECISION
Member D. Cosgrave
6 December 2022
INTRODUCTION

The Applicant seeks review of the Respondent’s decision not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa.[1]
[1] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), lodged on 4 October 2022.
The hearing was held by video at the Tribunal’s Brisbane Registry on 27 and 28 October 2022. The Applicant was represented by Mr Lombard, a legal practitioner with Playfair Visa and Migration Services. The Respondent was represented by Ms Gutmann, a legal practitioner with Minter Ellison.
On 1 November 2022 the Tribunal affirmed the affirmed the decision under review. The Tribunal now publishes the reasons for its decision. Unless the context indicates otherwise, passages quoted in bold font are emphasis added by the Tribunal.
BACKGROUND
The Applicant is a 21 year-old New Zealand citizen, born in 2001, who first arrived in Australia in November 2002.
The Applicant’s travel history is summarised below[2]:
[2] Exhibit 1, G Documents, G30, page 253. G documents are so named because they are provided under s 501G of the Migration Act 1958 (Cth). They consist of documents in the possession or control of the Respondent relevant to the making of a reviewable decision. They usually accompany the Minister’s written notice regarding a visa cancellation, refusal, or non-revocation.
·6 November 2002: arrived in Australia;
·10 September 2003: departed Australia;
·8 October 2003: arrived in Australia;
·7 November 2009: departed Australia;
·5 December 2009: arrived in Australia;
·22 October 2010: departed Australia;
·26 January 2011: arrived in Australia;
·1 July 2012: departed Australia; and
·31 July 2012: arrived in Australia.
On 19 February 2021, the Applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”).[3]
[3] Exhibit 1, G3, page 15.
The cancellation occurred because he had a substantial criminal record, as he had been sentenced to a term of imprisonment of more than 12 months and was 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 Territory (ss 501(6)(a) and 501(7)(c) of the Act).[4]
[4] Exhibit 1, G5, Attachment 3, page 24.
On 22 February 2021, the Applicant requested revocation of the cancellation of his visa.
On 10 August 2022, a delegate of the Minister decided, under s 501CA(4) of the Act, not to revoke the visa cancellation decision (“non-revocation decision”)[5].
[5] Exhibit 1, G4, page 23.
On 18 August 2022, the Applicant asked the Tribunal to review that decision[6].
[6] Exhibit 1, G2, page 3.
The Tribunal must decide this application within 84 days of the Applicant being properly notified of the non-revocation decision.[7] On 1 November 2022 the Tribunal affirmed the decision under review.
[7] Section 500(6L) of the Act.
OFFENDING HISTORY AND SENTENCING JUDGE’S COMMENTS
The Tribunal acknowledges the Full Federal Court of Australia’s decision in Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23 (“Thornton”). The Applicant was born in 2001 and the Tribunal has focused on the Applicant’s post-2001 adult offending.
The following is a tabularised summary of the Applicant’s adult offending and conviction history:

Date of Sentencing

Offence

Outcome

18 December 2020

Aggravated break and enter and commit serious indictable offence

Convicted – 3 years’ imprisonment

5 January 2020

[While in prison] Assault[8]

3 days’ confined to cell

14 July 2020

[While in prison] Create possess prohibited goods[9]

3 days’ confined to cell

4 March 2022

Affray

Convicted – 9 months’ Community Correction Order

[8] Exhibit 1, G10, page 65.
[9] Ibid, page 49.

The balance of the Applicant’s offending history occurred when he was under the age of 18. While New South Wales legislation may differ from Queensland’s in regard to childhood offences and juvenile offending, adopting a conservative application of Thornton here means the Applicant benefits from not having his juvenile offending considered.
On 18 December 2020, before Her Honour Judge O’Rourke of the District Court of New South Wales, the Applicant was sentenced in relation to a conviction for aggravated break and enter and commit serious indictable offence contrary to section 11 (2) of the Crimes Act and received a 25% discount for:
"… the utilitarian value of the plea and an ultimate acceptance of responsibility and willingness to facilitate the course of justice."[10]
[10] Exhibit 1, G8, page 48.
For the purposes of this decision, it is relevant to quote at length from Judge O'Rourke's decision regarding the penalty for the offence:
"The signed agreed facts are as follows.
The offender's date of birth is [REDACTED] 2001. There are two unknown males who are co-offenders in the matter who have not been located or charged. The victim is NV[11].
[11] Anonymised as it is personal identifier, per ‘Guideline on the Disclosure and Non-Disclosure of Personal Information in AAT Decisions‘.
The victim resides at X[12] with his wife and their three children.
[12] Ibid.
On 25 November 2019 at approximately 3:13 p.m. the offender and the two unknowns arrived at the premises in a vehicle. The offender and one of them went to the front door while the other one remained in the car. They knocked on the door, waited for a few minutes, return to the vehicle and left.
About three and a bit hours later at 6:32pm they all arrived again at the premises in the same car and again one remained in the vehicle while the offender and the other unknown approached the front door of the house, knocked on it, waited a few minutes then returned to the vehicle and left.
At approximately 8:13pm., the offender and the two unknowns arrived again at the same premises in the car. The offender and the unknown again approached, knocked on the door, while the other unknown male remained in the car. At this time the victim was home with his two daughters aged 10 and 9. One was in the rear study and the other was in the living room. The victim's wife was at that time overseas.
The victim responded to the knock and walked towards the front door, he heard a male voice say “Delivery, delivery”. The victim opened the front door whilst the flyscreen door remained closed. The offender and one of the unknown males were at the door, the unknown holding a big box and the offender holding a clipboard.
The offender said “You have to sign the papers before we can give you the parcel”. As a result the victim opened the flyscreen and the offender handed him a pen and a clipboard to sign. As he was preparing to do that, to sign the paper, one of the offenders punched him to the left side of the face near his eye and due to the force of the punch the victim’s face began to bleed and he was knocked back into the house and fell onto the floor.
The offender and the unknown male entered the house and continued to punch and kick the left side of his body and head whilst the victim was on the floor and he attempted to protect himself by covering his face with his hands.
The offender then placed a black handled knife approximately 30 centimetres long to the victim’s neck and said “Where is your wife” to which he replied, “I don’t know” and the offender said, “You’re lying”. They then punched and kicked the victim again and the offender repeated “You’re lying to me”.
The offender then told the victim to sit on the sofa to which he complied and he was there with his younger daughter. The victim’s face was covered with a balaclava and a large blanket and the other was also covered in a blanket. One of them went to sleep whilst covered in the blanket.
At some stage the blanket was temporarily removed off one of the daughters by the unknown male whilst he was holding a knife and he showed her three photographs, one of which was of her parents. He asked her questions about the people depicted and she said that she did not know who they were. Her head and body were covered again with the blanket and she went back to sleep. At this time the other unknown was walking around the house.
The offender continued to ask the victim where his wife was and the victim told the offenders to take what they want and then to leave. They then began to search through the house. All of this was occurring whilst the other daughter had locked herself in a room at the back of the house. She heard the offenders inside the room and her father yelling. She was scared and sat in the corner of the room and as the offenders were searching the house they attempted to open the door to her room, however it was locked. About an hour later the offender and an unknown male returned to the living room where the victim and his daughter were seated and said, “If you call the police I’ll come back and shoot you and your children”.
At approximately 9.15pm the offender and the unknown left the premises and returned to the car. When the victim heard the front door close he took the blanket and balaclava off his head and checked on both of his daughters, one of the daughters had got the assistance of a neighbour who had called the police and police attended shortly after.
The victim was taken to Liverpool Hospital by an ambulance to receive treatment for his injuries and sustained a laceration to his left eye, a broken nose and bruising to the left side of his body. On 2 December 2019 he still had swelling to his left eye which impaired his vision, he was suffering from ongoing pain in his left shoulder and there remained bruising on the left side of his body.
The offender’s fingerprint was located or identified on the exterior panel of the front door above the keyhole. On 10 December 2019 he was arrested, cautioned and charged and was offered the opportunity to participate in a recorded interview with the police which he accepted. During that interview the offender stated a denial, saying he was sick and at home on the day of the offence, that he had never been to [location redacted] before. He had never been in a black Dodge before and he had never been to the said premises before, that it was not him in the CCTV footage stills which were shown to him, that he had no idea why his fingerprints were located on the front door of the premises and that he does not know the victim nor the family.
Here the features of relevance are the offender was 18 years of age; it involved some planning and clearly premeditated by the several trips being occasioned to the property; his entry was gained by the use of trickery; it occurred at about 8pm at night; the house was occupied by its owner with two young female children; it was committed in company with other assailants; that violence was inflicted upon the victim and threats made to him and his daughter; injuries were sustained to the victim; it was not of short duration; the motivation was financial and the offender played a significant if not principal role.
Here the serious indictable offence is assault occasioning actual bodily harm and injuries were sustained. I also note that the circumstance of aggravation averred was armed with an offensive weapon. It is well established that the Crown does not have to allege every aggravating circumstance to be relied upon in the indictment providing of course the charge alleges the offence was committed in circumstances of aggravation. So accordingly a sentencing Court is entitled to take into account matters of aggravation not specifically alleged in the indictment without infringing De Simoni principles: R v Li (NSWCCA 9 July 1997, unreported) ; Josefski v R [2010] NSWCCA 41 at [19].
Here, there was also the aggravating features of at least knowing persons were present and committed in company. Considering all matters relevant to the objective gravity of the offence before the Court, including the role the offender played, the lead up to the break and enter, the motivation, the injuries sustained to the victim and the fact that young female children were involved, I have determined that the offending falls above mid-range of seriousness for the aggravated break and enter.
In relation to substance abuse between the age of 13 and 14 he reported using around 600 milligrams of non-prescribed codeine per day. Between the age of 14 and 15 he would drink one case of beer, he says, a week and at age 18 experimented with cocaine.
The offender reported to Ms Robinson of Community Corrections initially that he was using cocaine on a regular basis and then on the second occasion that he met her, he admitted to falsifying his drug use on that occasion to get a lighter sentence. It was confirmed in evidence today that this is what had indeed occurred and this occurred on the second occasion.
In relation to his mental health, Ms Hawil who is a psychologist, was of the opinion that the offender meets the criteria for a diagnosis of conduct disorder, childhood onset type and intermittent explosive disorder.
She stated that the offender began displaying characteristics of conduct disorder prior to the age of 10 with repetitive and persistent patterns of violating age-appropriate school norms and rules and anger problems starting in primary school. His parental rejection, neglect, inconsistent child-rearing practices, harsh discipline, physical abuse, lack of supervision, early institutional living, frequent changes of care givers, large family size, parental criminality, peer rejection, association with delinquent groups and exposure to violence are all risk factors common with individuals with childhood onset disorder.
In relation to the intermittent explosive disorder, Ms Hawil stated that the offender’s recurrent behavioural outbursts represent a failure to control aggressive impulses that began in primary school.
“It is clear that the offender has trouble controlling his impulses and he does not consider the consequence of his actions when angry however expressed that he can feel remorse afterwards.”
He reported to Community Corrections that frustrations from his childhood have developed into emotional resentment."
In relation to the Applicant’s rehabilitation, the Tribunal specifically notes the following from Judge O'Rourke's decision:
"The offender has previously thoroughly participated in the Rap for Change program and is described as showing a huge amount of development and a genuine interest in wanting to help change children’s lives and his own life. He also attended PCYC at boxing on a weekly basis. He reported that being in custody has changed his life and he plans to re-engage with Rap for Change and Team Jesus and become an active community volunteer and youth worker. In relation to his risk of reoffending, Ms Hawil was of the opinion that the offender falls in the low-grade risk as did the Community Corrections testing."[13]
[13] Exhibit 1, G8, page 57.

The Tribunal also has specific regard to the following comments by Judge O'Rourke:
"I am prepared to accept an immaturity and a reduced capacity for mature decision-making (on the basis of his age, known background and criminal conduct itself and its motivation) played some role in the offending behaviour.
The offender also has had a transient and difficult childhood filled with poverty and parental abandonment. It is not one that any child deserves.
Fortunately for him he has had his grandmother who has been willing and able to step into that void but this was also not without its difficulty including the presence of domestic violence in the home and moving from home to home with different carers. I have taken that all into account of what he has had to endure and I do accept that it reduces his moral culpability to some extent.
In relation to the question of remorse, he has pleaded guilty and written a letter to the Court, he did not give evidence before me. The subjective material tendered is replete with his acceptance of wrongdoing, disgust for what he did and insight into the cowardly nature of his offending. I also note however, his protestations of remorse for the earlier matter. Overall though I do find some evidence of genuine remorse, but with some hesitation."[14]
[Emphasis added]
[14] Ibid, pages 58-59. See also Exhibit 1, G9, pages 62-63.
The Applicant’s adult offending can be categorised under the following areas:
(a)Offences involving violence – breaking and entering, assault and affray; and
(b)An offence of possessing prohibited goods in prison.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7) of the Act, obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and a person does not pass it if they have a ‘substantial criminal record’ as defined by s 501(7). This includes if they are sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
Under s 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and to invite the affected person to make representations about revocation. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act confers a discretionary power upon the Minister to revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
ISSUES
Character test
The Applicant was convicted of a crime - aggravated break and enter and commit serious indictable offence contrary to section 11 (2) of the Crimes Act - and sentenced to imprisonment for a period of 12 months or more.
Consequently, the Applicant does not pass the character test due to the operation of
ss 501(6)(a) and 501(7)(c) of the Act.
Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision.
Another Reason?
The Tribunal is bound by s 499(2A) of the Act to comply with Ministerial Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction / Direction 90”).
Consequently, under s 501CA(4)(b)(ii) of the Act the question is whether the discretion to revoke the cancellation decision is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ for revocation.[15] The Tribunal “stands in the shoes of the original decision-maker” but with regard for the situation at the time of its decision.[16]
[15] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[16] Nathanson v Minister for Home Affairs [2022] HCA 26 (“Nathanson”); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134]; Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ).
The Full Court of the Federal Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 reflected with approval upon the reasoning in Viane v Minister for Immigration and Border Protection[17] and at [27] identified the following principles as relevant to the statutory task conferred by s 501CA(4):
“…
(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.
…”
[17] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
The Direction
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. The Direction must be applied by decision makers under the Act, except for the Minister acting personally.[18]
[18] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, at [4] (Rares, O’Callaghan and Jackson JJ).
Direction 90 contains mandatory and aspirational considerations guiding the exercise of statutory power under the Act.[19] The following principles inform decision-making:[20]
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2Non-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.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia 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.
5Decision-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 risk of causing physical harm to the Australian community.
[19] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, at [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, at [45].
[20] Clause 5.2 of the Direction.
Clause 6 of the Direction provides that, informed by the above principles, a decision-maker must consider clauses 8 and 9 where relevant to the decision. Clause 8 of the Direction provides the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The best interests of minor children in Australia; and
(d)Expectations of the Australian community.
Clause 9 of the Direction identifies the following non-exhaustive list of other considerations to be considered, where relevant:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Links to the Australian community, including: (i) Strength, nature and duration of ties to Australia; and (ii) Impact on Australian business interests.
Clause 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources.’
Clauses 7(2)-(3) of the Direction state that
‘Primary considerations should generally be given greater weight than the other considerations,’
and
‘One or more primary considerations may outweigh other primary considerations.’
This does not preclude the Tribunal giving a clause 9 consideration the equivalent of or even greater weight than a primary consideration, which turns on the specific circumstances of each case.[21] The weighing process is determined by decision-makers exercising power under the Act.[22]
EVIDENCE
[21] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J).
[22] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
Documentary evidence
The hearing received written evidence.
The following documents were tendered into evidence:
·Statement of Aaliyah Westerlund;
·Statutory Declaration of the Applicant dated 30 June 2022;
·Letter of Support from Nader Narouz dated 27 June 2022;
·Character reference from Vanessa Lozada dated 18 March 2022;
·Character reference from Tino Isaiah dated 27 June 2022;
·Statement of Eroni Vukicea Tara dated 27 June 2022;
·Statement of Taufusi Loretta Togia Moe dated 27 June 2022;
·Statement of Chris Tuifao dated 27 June 2022;
·Statement of May Faumui dated 29 June 2022;
·Statement of Nader Narouz dated 28 June 2022;
·Statement of Timoci Tewehi Tara dated 29 June 2022;
·Statement of Chelsea Christine Larkin dated 28 June 2022;
·Letter from Phyllis Tara to Judge (undated);
·2 x Draft Statement of Phyllis Tara (undated);
·Report of Dr Sam Calvin dated 26 June 2022;
·Report of Susan Homeh Hawil dated 27 October 2020;
·Letter of support from Tinonui Isaia dated 13 February 2018;
·Statement of Jamesa Tara dated 29 June 2022;
·Statement of Lasaro Taro dated 24 October 2022;
·Statement of Mario Rizzeri dated 24 October 2022;
·Report by Andrew Robertson dated 21 October 2022;
·Letter from Phyllis Tara dated 17 December 2020;
·Letter from Priestley Obed dated 20 October 2022;
·Applicant Closing Submissions and Response:
oTwo separate submissions dated 28 October 2022; and
oResponses to Respondent’s Closing Submission in an email exchange dated 29 October 2022.
·Respondent’s Statement of Facts, Issues and Contentions (“RSFIC”) [23]; and
·Applicant’s Response to the Respondent’s Statement of Facts, Issues and Contentions (“ASFIC”) dated 27 October 2022.[24]
[23] Ibid, Exhibit R2, Letter from Department to applicant – further information relevant to decision under s 501CA of the Migration Act 1958 on whether to revoke the original decision to cancel your visa, pages 5-58.
[24] Exhibit 5, Applicants Reply dated 27 October 2022 and Annexures.
Witnesses
The lay witnesses during the hearing were:
·The Applicant;
·Nader Narouz;
·May Faumi;
·Eroni Wilkersei Tara;
·Taufusi Loretta Togia Moe;
·Mario Rizzeri; and
·Timoci Tara.
The only expert witness who gave oral evidence during the hearing was Dr Sam Calvin.
Applicant’s evidence
The Applicant gave oral evidence as to his extensive family links in Australia, his activities with Rap4Change in terms of his rehabilitation efforts and details of his offence of Aggravated break and enter and commit serious indictable offence, for which he was sentenced to 3 years’ imprisonment, and which occurred when he was 18 years and two months old.
Under cross-examination by Ms Gutmann for the Respondent, the Applicant stated that he was not aware until he had been imprisoned of the nature and extent of injuries that he caused to the victim of his home invasion, which included a laceration to the victim's left eye a broken nose and bruising to the left side of his body.
The Applicant maintained that he had not orchestrated the home invasion but did not disagree when Ms Gutmann put it to him that he had taken on the principal role in the offending[25].
[25] Transcript, page 21, lines 31–32.
The Tribunal notes that Judge O'Rourke of the District Court of New South Wales found that the Applicant played a significant, if not principal, role in the offence[26].
[26] Exhibit 1, G8, page 58.
In the subsequent cross-examination, the Applicant claimed that he had been drinking all day on the day of the offence, was quite intoxicated, that the friends he was drinking with had told him of what they planned to do and that he agreed to come and join them in the criminal enterprise[27].
[27] Transcript, page 21, lines 31–41.
During re-examination by Mr Lombard, Mr Lombard took the Applicant through the Statement of Agreed Facts relating to the offence. The Applicant stated that one of the two co-offenders had the idea to go to the victim's house.
During re-examination, the Applicant also claimed that his motivation for committing the offence was financial – he wanted money[28] - and then clarified that the underlying financial motivation for the offence was a drug debt owed by the victim[29] that the Applicant and his two co-offenders went to collect.
[28] Transcript, page 46, lines 1-9.
[29] Transcript, page 46, line 11.
During cross-examination, the Applicant admitted to lying about his use of drugs to achieve a lighter sentence[30]. He also admitted to lying to Corrective Services, telling officers that he committed the offence of Aggravated break and enter and commit serious indictable offence because his grandmother, with whom he resided at that time, was in arrears on her rental payments and because he had a drug debt[31].
[30] Transcript, page 22, lines 1-18.
[31] Transcript, page 22, lines 26–40.
The Applicant claimed under cross examination that, at the time, he was trying to avoid questions about the two unknown co-offenders because he was thinking about the safety of his family[32].
[32] Transcript, page 22, lines 38-46.
The Applicant then cavilled with Ms Gutmann as to whether he had been intoxicated at the time of the offence.
Ms Gutmann cross-examined the Applicant in relation to the charges of affray and assault that occurred whilst he was in prison, as well as his - subsequently denied - claim to have converted to Islam.
The Applicant was cross-examined regarding the two instances of inappropriate behaviour towards female Corrective Services staff. The Applicant's answer is quoted below:
Applicant: It was immature decision I made, this sort of behaviour of mine. Before, sorry. I was raised by women and my grandmother that passed away, she did not raise me to be this, immature, disrespectful young man that I am reported to be. At the time I was just (indistinct) my immaturity honestly lets me think about jokes that I thought was making and a lot of comments that I did make, it is actually inappropriate and I failed to realise that.
Ms Gutmann: And what about the pattern of behaviour that is how you resolve your disagreements? It seems you prefer to resolve disagreements with people by getting into physical altercations with them. Would you agree with that?
Applicant: I do agree.
Ms Gutmann: Is this how you continue to resolve your disagreements?
Applicant: No Miss, it’s not.
Ms Gutmann: The evidence that you’ve given today suggests that a lot of your offending was in part as a result of your anger and your issues regulating your emotions. Would you agree with that?
Applicant: Yes, Miss. I agree.[33]
[33] Transcript, page 35, lines 9–26.
Evidence of Nader Narouz
Nader Narouz is the Rap4Change CEO. His oral evidence is summarised below[34]:
(a)Mr Narouz affirmed his statements and letters contained in the G Documents and his offer of accommodation to the Applicant.
[34] Transcript, page 40, line 46 to page 45, line 4.
Evidence of May Faumi
May Faumi is a chaplain and a possible paternal relative of the Applicant. Her oral evidence is summarised below[35]:
(a)Ms Faumi affirmed her statements and letters contained in the G documents.
(b)She described her knowledge of the Applicant's likely biological father and the way that the Applicant's grandmother had informally taken care and responsibility for him.
(c)She also described the level of support she would be able to give the Applicant if the delegate’s decision to cancel the visa was revoked and the Applicant returned to live in Sydney.
(d)She described the extended familial relationships within the Māori and Islander communities and that she has a family in New Zealand[36].
[35] Transcript, page 45, line 38 to page 48, line 22.
[36] Transcript, page 54, lines 1-10.
Evidence of Eroni Wilkersea Tara
Eroni Wilkersea Tara is the Applicant’s uncle. His oral evidence is summarised below[37]:
(a)Mr Tara affirmed his statement.
(b)He gave evidence that he was funding the Applicant's current counselling[38].
(c)He gave evidence that his extended family in New Zealand could offer some support to the Applicant if required but not to the extent that could be provided in Sydney[39].
[37] Transcript, page 55, line 36 to page 60, line 46.
[38] Transcript, page 61, line 8.
[39] Transcript, page 62, lines 30-32.
Evidence of Taufusi Loretta Togia Moe

Ms Moe is in a relationship with Mr Tara. Her oral evidence is summarised below[40]:
(a)She described why she thought the Applicant should be allowed to stay in Australia.
(b)In cross-examination, she said she was aware of the circumstances of his 2019 offence of Aggravated break and enter and commit serious indictable offence but there were reasons why the Applicant had behaved that way and why he committed the crime.
[40] Transcript, page 63, line 34 to page 67, line 35.
Evidence of Mario Rizzeri
Mario Rizzeri is a pastor with the Apostolic Church Australia. His oral evidence is summarised below[41]:
(a)He described his relationship with the Applicant in Griffith five years ago and that he had been recently contacted by the Applicant.
(b)When told of the Applicant's conviction for the offence of aggravated break and enter with an intent to commit an indictable offence while armed and the circumstances of that offence, Mr residuary displayed some shock and stated that was not how he saw the Applicant or how he would describe him[42].
[41] Transcript, page 68, line 44 to page 75, line 2.
[42] Transcript, page 73, lines 7-11.
Evidence of Timoci Tara
Timoci Tara is the Applicant’s maternal uncle. His oral evidence is summarised below[43]:
(a)He described his relationship with the Applicant and the Applicant's mother.
(b)He stated that if the Applicant was deported to New Zealand, it would "be like a death sentence" and that the Applicant would be "like a fish in a big ocean".
(c)In cross examination he stated that he doubted there would be anyone in the family in a position to support the Applicant if he was deported to New Zealand.
[43] Transcript, page 81, line 36 to page 84, line 39.
Expert Evidence of Dr Sam Calvin
Dr Calvin is a forensic psychiatrist. His oral evidence is summarised below[44]:
(a)He affirmed his statement said the provision of previous report to him as part of his preparation for this matter cleaning.
(b)He described his assessment of the Applicant risk of recidivism and the risk of future violence. He referenced the static or historical factors in the Applicant's past and the impact of these on the Applicant's tolerance for dynamic factors of risk and the extent to which, if any, the risk of recidivism and future violence could be mitigated based on the dynamic and future factors in the Applicant's life.
(c)He also described the Applicant's mental disorders and observed, under cross-examination, that the applicant had learned from a very young age to use violence to solve problems[45].
THE TRIBUNAL’S CONSIDERATION OF THE EVIDENCE
[44] Transcript, page 86, line 38 to page 93, line 42.
[45] Transcript, page 93, line 15.
The Oral Evidence
The Tribunal found the Applicant’s oral evidence to be essentially straightforward, although it was apparent that he tempered his evidence to give the answer the Applicant believed the questioner was after. To re-state Ms Hawil’s findings[46], the Applicant’s tendency towards overly self-favourable presentation, compared to contextual requirements and situational demands was evident to the Tribunal.
[46] Exhibit 1, G19, page 141.
He sought to minimise his culpability for the 2019 offence and denied playing a principal role, despite the evidence suggesting otherwise.
He did not display any substantive remorse in relation to that offence, especially regarding the victim's two young daughters and the impact that the home invasion, demonstrations of violence and threats of violence likely had on them.
The evidence of Eroni Wilkersea Tara, Timoci Tara and Taufusi Loretta Togia Moe gave depth and perspective to the Applicant’s unfortunate childhood, the nature of his familial relationships and the extent and depth of the Applicant’s extended family network in Australia and New Zealand. Their support for the Applicant was evident.
The evidence of May Faumi supported the position articulated by the Applicant's family.
The evidence of Mario Rizzeri and Nader Narouz provided additional background. Mr Rizzeri’s audible shock and dismay at the circumstances of the Applicant's 2019 offending is also noteworthy.
Dr Calvin provided useful evidence in terms of the Applicant's risk of recidivism and the risk factors – static (historical), dynamic and future – facing the Applicant as well as the basis for the Applicant resorting to violence to solve problems.
Documentary Evidence
A close reading of the documentary evidence contained in the G Documents, the tender bundle and the records produced in response to various summons is pertinent in this matter.
In particular, the Tribunal notes the following:
(a)New South Wales Department of Corrective Services case note report dated 6 October 2020[47]:
[47] Exhibit 1, G11, page 84.
"Impact – (the Applicant) identified his victim had lost part of his eyesight due to the offences. He stated he thought he had mentally impacted him by making him feel unsafe in his own home."
"Offence map – (the Applicant) said hat [sic] he can recall, they did not know the victim. He said they wanted money and he acknowledged a drug debt. He appeared to limit his knowledge and engagement at this stage, and due to AVL restrictions CCO terminated interview."
"CCO asked (the Applicant) to consider more impact – he had not noted anything about the younger victims in the offence, and to consider life at time and leading up to offence."
(b)New South Wales Department of Corrective Services case note report dated 7 October 2020[48]:
[48] Exhibit 1, G11, page 85.
"(The Applicant) when challenged, retracted some of his previous statements. He was still minimal on some details he confessed he was trying to make others look better and for him to take the blame out of loyalty. He said he had asked his uncle to provide CCO with incorrect details the time of the offence which he apologised for. (The Applicant) did not agree with all the police facts, stating he had felt forced to agree or it would have gone to trial which he thought would have been worse."
“He said he heard about the "opportunity" through his acquaintances and agreed to take part due to his financial situation. He said he thinks he was asked to be involved because the others knew about his situation. [The Applicant] said he felt tempted as it was easy money to help his family ($20,000).”
“[The Applicant] recalled just before the offence he felt nervous. He said he thought about his family and their struggles and how much this would help. [The Applicant] stated he was the person to knock on the door, CCO asked if it was not his plan how he became the leader in that aspect. He said he was unaware and denied punching the male victim.”
“Impact – CCO asked about apology letter which he had allegedly completed, he said he would be happy to provide it to CCO. CCO asked if he had thought any more about who his offences impacted. He said the victim would now feel unsafe in his own home. CCO asked about younger victims, [the Applicant] denied there were younger victims in the house despite police facts.”
“AOD – CCO challenged [the Applicant] on his drug use since information from Frank Baxter was conflicting. He said he had lied about his use when he was younger thinking he would get a better sentence. CCO challenged if he was under the influence of AOD on the night of offences as previously stated, he denied he was.”
“[The Applicant] apologise for being untruthful towards CCO and promised he would be truthful next interview. He said he was nervous.”
(c)New South Wales Department of Corrective Services case note report dated 12 October 2020[49]:
[49] Exhibit 1, G11, page 86.
“Impact – [the Applicant] handed CCO letter which he had written to the magistrate outlining his remorse and regret. In his letter he stated he is accountable for his actions, feels shame and considers his actions to have had physical and physiological effect on his victim and the victims family. He stated his actions being "cowardly" and "disgusting". He stated his desire to change and to become a mentor for youth through Rap4Change and Team Jesus.”
“Update to IAF/offence map – [the Applicant] apologised to CCO could for false information previously stated. He said he had never used drugs in his life and had only stated (SIC) drug use as a means to receive a lighter sentence.”
“He said he did not know the victim or why the victim was chosen; [the Applicant] stated the reason he led the way and knocked on the door first was to make sure the plan went ahead as he needed the money for his family.”
“He agreed with his first statement of needing the money to support his family.”
“[The Applicant] added he had now asked his uncle to tell the truth only, as he had previously asked him to lie about his substance abuse issues. CCO reminded him the SAR is his report and it needs to be truthful or he may not get the help he needs"
(d)Dr Calvin’s report dated 26 June 2022[50]:
"History obtained from the client as to the reason for the offending behaviour (The Applicant) was a reluctant historian and not keen to discuss his past offending. There were some inconsistencies in the history and the documents provided. (The Applicant) attributed the serious offences to alcohol intoxication. There was no evidence to suggest that psychiatric factors directly contributed to the offending.”
[50] Exhibit 1, G23, page 223.
PRIMARY CONSIDERATIONS
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
Clause 8.1 of the Direction states:
1When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. 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.
2Decision-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.
Tribunal consideration: The nature and seriousness of the conduct
Clause 8.1.1(1) of the Direction states that in considering 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, 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).
Clause 8.1.1(1) (f) and (g) are not relevant in this matter.
In relation to Clause 8.1.1(1)(a), the Tribunal has considered the remarks by Her Honour Judge O’Rourke on 18 December 2020 in the District Court of New South Wales regarding the Applicant’s offending on 25 November 2019 and his subsequent guilty plea on 23 July 2020, referenced above at Paragraph 16.
The Tribunal has also reviewed the New South Wales Police Statement of Facts regarding the 25 November 2019 offending[51], the Applicant’s conviction for the offence of Assault[52] on 5 January 2020 and the Applicant’s conviction for the offence of Affray[53] on 4 March 2022.
[51] Exhibit 1, G9, pages 62-63.
[52] S Documents, page 81.
[53] S Documents, page 45.
The Applicant’s offending conduct from 25 November 2019 to date can be characterised as follows:
(a)A propensity to use violence[54];
(b)A corresponding lacuna in terms of the Applicant restraining or controlling himself;
(c)A propensity to acquire ad hoc weapons wherever and whenever possible; and
(d)Scant or barely considered demonstrations of remorse and concern for the victims of his violence.
[54] Per Clause 8.1.1(1)(a) of the Direction.
The Respondent contends that the nature and seriousness of the Applicant's offending weighs very heavily against revocation.
The Applicant's representatives’ submissions in relation to the nature and seriousness of the Applicant's offending are relatively silent with the notable exception of Mr Lombards supplementary submission on 29 October 2022 where there is acknowledgement of the seriousness of the Applicant’s adult crimes with the qualification that the Applicant was given the maximum parole period for the 25 November 2019 offending.
As best as the Tribunal understands the criminal history, the Applicant was not specifically charged or convicted of any crime of a violent nature in relation to the 9 year old and 10 year old daughters of the victim of the 25 November 2019 offending, although violent threats were made in front of the 9 year old. Paragraph 8.1.1(1)(a)(ii) is not enlivened in this determination.
Paragraph 8.1.1(1)(a)(iii) is not relevant to this determination.
Paragraph 8.1.1(1)(b)(i) is not relevant to this determination as the Applicant has not committed any offences in the realm of causing a person to enter into or to otherwise become a party to a forced marriage. There is no such reference in the material to any formal conviction to such offending nor is there any reference to such conduct in an independent and/or authoritative police narrative or similar document.
Paragraph 8.1.1(1)(b)(ii) is not relevant to this determination.
Paragraph 8.1.1(1)(b)(iii) refers to conduct forming ‘...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”. There is no reference in either party’s SFIC (or any other oral or written submission) propounding or mentioning this component of the Direction. The Tribunal finds that this paragraph of the Direction is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
Paragraph 8.1.1(1)(b)(iv) is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
Clause 8.1.1(1) (c) requires the Tribunal to consider the sentence imposed by Judge O’Rourke. The Applicant pled guilty to a charge of aggravated break and enter and commit serious indictable offence under 112(2) of the Crimes Act 1900. This offence carries a maximum penalty of 20 years imprisonment with a 5 year standard non-parole period. The Applicant received a 25% discount for the utilitarian value of his guilty plea. Judge O’Rourke sentenced the Applicant to a non-parole period of 18 months, implying a notional non-discounted sentence of 2 years, with a parole period of 6 months. This is at the lower end of the custodial options and reflects on the relative seriousness of the Applicant’s offence.
Clause 8.1.1(1) (d) requires the Tribunal to consider the frequency of the Applicant’s offending and whether there is a trend of increasing seriousness. The Tribunal observes that the Applicant’s offending (as an adult) commenced shortly after his 18th birthday and continued with some regularity until March 2022, thereby demonstrating a significant level of frequency. However, the offences, when considered as a set and often involving violence, do not show a trend of increasing seriousness as those following the 25 November 2019 home invasion are relatively less serious.
Clause 8.1.1(1) (e) is raised by the repeated nature of the Applicant’s violent offending – 3 of the 4 adult offences involve violence that has likely had a significant cumulative effect in terms of the Applicant’s victims.
Tribunal findings: The nature and seriousness of the conduct
The Applicant has committed offences, the majority involving violence, in Australia since September 2019 when he legally became an adult.
In committing these offences, the Applicant demonstrated a calculated and violent manner of execution, despite his various claims of being intoxicated, provoked or attempting to defend himself. The Applicant's consistent failure to acknowledge the 9 year old and 10 year sisters who were terrorised by the Applicant and his colleagues, who must live with the memory of this terror for the rest of their lives, is also concerning.
The Applicant has received a custodial sentence for the 25 November 2019 offending and short duration periods of being confined to his cell for his prison offending.
Acknowledging the Applicant’s statements of generalised remorse, the impact of his childhood and upbringing and his rehabilitation efforts does not suffice to overcome these factors. The Applicant has agency and choices in his life. He consistently chooses violence, such as in the 25 November 2019 home invasion, or in the prison assault on the prison affray, we his first substantive action was to go and improvise a weapon.
The Tribunal finds the Applicant engaged in serious and violent offending and that this weighs significantly and heavily against revocation of the delegate’s decision to cancel his visa.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction states:
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.
Clause 8.1.2(2) of the Direction states that in assessing the risk the non-citizen poses to the Australian community, decision-makers must take into account, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

The Tribunal has considered the Applicant’s and Respondent’s submissions about cl 8.1.2(2), as well as the evidence of Dr Calvin and Ms Hawil which placed the Applicant at a low to medium risk of re-offending.
This aspect of the Direction requires the Tribunal to assess the risk the Applicant poses to the Australian community if he reoffends, taking into consideration the nature of any likely future harm and its probability.
In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 Chief Justice Brennan and Justices Dawson, Toohey, Gaudron, McHugh and Gummow of the High Court observed as follows (at 574-575): [55]
“The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.”
(Added emphasis)
[55] QKVH and the Minister for Home Affairs (“QKVH 2020”) [2020] AATA 4431 (2 November 2020) at [5].
Justice Mortimer also explored the notion of risk and its nexus to future possibility in Murphy v Minister for Home Affairs [2018] FCA 1924, [37]., where Her Honour noted:[56]
“That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.”
[56] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
Assessing the risk referenced in Clause 8.1.2(2), the Tribunal has regard to the following:
(a)The Applicant's disturbed upbringing, which involved him not knowing his father being raised by his grandmother because his mother was unfit to look after him, as well as witnessing domestic violence in his grandmother's home.
(b)The Applicant's history of abusing substances and illegal drugs.
(c)The Applicant’s psychological and psychiatric history, although the Tribunal notes that there was no evidence before it to suggest that psychiatric factors directly contributed to the Applicant's offending. Ms Hawil assessed the Applicant as falling into the low to moderate risk of re-offending, while Dr Calvin noted that the Applicant has several static risk factors for future violence, albeit that his dynamic risk factors have reduced due to his insight into psychological vulnerabilities, his attendance at psychotherapy sessions and his familial and community support.
(d)The Applicant is presently undertaking psychotherapy counselling sessions with Andrew Robinson. However, these only commenced on 6 September 2022.
(e)The Respondent's contention that, while the Applicant's attendance and completion of a Drug and Alcohol program and an Anger Management course demonstrate an element of rehabilitation and risk management, the brevity of the courses in question circumscribes the level of risk management offered by them.
(f)The Applicant's reliance on familial support does not inspire confidence as the same level of familial support has been present in the Applicant's life since 2018 and did not deter his offending in 2019.
(g)Further, as the Respondent contends, the Applicant will be exposed to the same stressors in the community that contributed to his offending, namely his family’s financial concerns[57] and the emotional and mental health issues the Applicant identified in his ASFIC[58].
[57] Exhibit 1, G8, page 57.
[58] ASFIC, page 11.
Addressing Clause 8.1.2(2)(a), the Tribunal considers that consequential nature of harm to individuals or the Australian community if the Applicant engaged in further criminal or other serious conduct would involve considerable physical, psychological and financial cost and damage.
Addressing Clause 8.1.2(2)(b)(i), the Tribunal acknowledges the evidence of Dr Calvin and Ms Hawil on the risk that the Applicant may re-offend. The Tribunal notes the evidence of a low to moderate risk as well as Dr Calvin’s observation about the Applicant’s adoption of violence as a mechanism and the extant protective factors.
Addressing Clause 8.1.2(2)(b)(ii), the Tribunal acknowledges the Applicant’s evidence and that of Ned Narouz. Against this evidence, the fact that the Applicant committed the 25 November 2019 offence while associated with Rap4Change and Mario Rizzeri’s shock and dismay on finding out what the Applicant did on 25 November 2019, in conjunction with the weight given to the Applicant’s limited time in the community since that offence, are significant concerns.
The Tribunal has considered the records referring to the Applicant’s attendance in rehabilitation courses and the vocational courses he undertook. In terms of rehabilitation, the Tribunal notes that the Applicant has taken part in the Rap4Change program (during which he committed the 19 November 2019 offence).
In prison, the Applicant was the subject of two instances of inappropriate behaviour towards female staff. The Tribunal notes the following New South Wales corrective services case notes[59]:
(a)"12/12/21 (Parklea Correctional Centre) "Inmate can be inappropriate towards female officers, author advised (the Applicant) that if he continues to make unnecessary or inappropriate comments towards female staff will be charged for intimidation".
(b)31/03/21 (Wellington Correctional Centre) "Today during computer classes – inmate (the Applicant) was displaying inappropriate behaviour and making the Trainer feel very uncomfortable. A GMIR has been submitted."
[59] Exhibit 1, G11, page 93.
Addressing Clause 8.1.2(2)(b) – the likelihood of the Applicant engaging in further criminal or other serious conduct – and taking account of the considerations addressed above under Clauses 8.1.2(2)(b)(i) and (ii), the Tribunal finds that the likelihood here is significant and material.
Taking 8.1.2(2)(a) and (b) cumulatively into account, the Tribunal assesses the risk the Applicant poses to the Australian community as significant, the impacts of which would be substantial and create considerable and unacceptable harm to the Australian community.
Remorse
The Tribunal considered the following aspects of the evidence before it that go to the Applicant’s remorse for his offending:
(a)The Applicant initially denied his 19 November 2019 offending when interviewed by the New South Wales Police despite CCTV imagery and DNA evidence clearly indicating otherwise[60]. This is inconsistent with being remorseful, at least at that time.
(b)In sentencing the Applicant on 18 December 2020 for his 19 November 2019 offending, Judge O’Rourke considered “with some hesitation” that there was “some evidence of genuine remorse”[61].
(c)The Applicant’s expression of remorse in his Statutory Declaration dated 30 June 2022[62].
(d)The Applicant’s failure to address how his offending may have impacted on the lives and psyches of the two young girls – one 9 and the other 10 - who were at the residence when their father was beaten, the younger of the two also witnessing the Applicant’s threat to shoot her father if he contacted the police.
(e)The Applicant’s persistent focus on his family being victims of his offending, rather than considering the actual victims of his offending.
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
[60] G Documents, G9, pages 62-63.
[61] Op cit., Footnote 14.
[62] Exhibit 1.0.
The potential harm and risk to the Australian community arising from a repeat of the Applicant’s conduct encompasses a broad range of physical, psychological, financial, and societal consequences.
The Respondent contends that the Applicant's offences and the nature of the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated is unacceptable. Any reoffending of a similar kind would expose the Australian community to significant physical, psychological and financial harm.
The Respondent also contends that it is still premature to be satisfied that the Applicant poses a remote risk of offending, noting specifically that the Applicant has not spent any time in the community to test his rehabilitation.
Acknowledging the nature of the Applicant's past offending conduct, as considered above, the Tribunal further considers that, if the Applicant re-offends in the future, the re-offending is likely to be of a similar nature to his past offending, likely violent and will have the potential to cause further significant physical and psychological injury, damage and cost to individuals or the Australian community.
Tribunal Finding: Protection of the Australian Community from criminal or other serious conduct
The very serious nature of the Applicant’s adult offending and other conduct, the significant risk of harm from any repeat future offending, and risk of the Applicant reoffending, combine for the Tribunal to find that this primary consideration weighs very substantially against revocation of the delegate’s decision to cancel the Applicant’s visa.
PRIMARY CONSIDERATION 2: Whether the conduct engaged in constituted family violence
Paragraph 8.2 of the Direction provides:
1The 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).
2This 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.
3In 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:
(d)the extent to which the person accepts responsibility for their family violence related conduct;
(e)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(f)efforts to address factors which contributed to their conduct; and
(g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
There is nothing before the Tribunal to enliven this consideration in this matter. The Tribunal consequently attributes neutral weight to this consideration.
PRIMARY CONSIDERATION 3: The best interests of minor children in Australia
Paragraph 8.3(1) of the Direction requires decision-makers to determine, where relevant, if revocation under section 501CA is, or is not, in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of the Direction provides a list of factors to be considered in determining the best interests of minor children. Those factors relevantly comprise for present purposes:
(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.
Identification of the relevant minor children
There is no evidence before the Tribunal to suggest that the Applicant is father to any minor children in Australia.
The Applicant asserts that he has relationships with his cousins who are minors and reside in Australia.
The Applicant’s uncle, Jamesa Tara states “He (the Applicant) helped us with our children, and has always played with my son [name redacted]. [The Applicant] loves being an uncle to our children. He acts more like a cousin to them, than an uncle.’”
The Applicant’s maternal grandmother has submitted information regarding relatives of these cousins which is listed in the delegate’s decision:
(a)Child VNRT (born 2008)
(b)Child LJCR (born 2012)
(c)Child GIT (born 2012)
(d)Child AAR (born 2015)
(e)Child AKT (born 2014)
(f)Child JNT (born 2020)
(g)Child DB (born 2005)[63]
[63] Child DB is not a cousin but rather is the daughter of the Applicant’s mother’s aunt.
In Lasaro Taro’s statement dated 24 October 2022 reference is made to communication between Lasaro’s children and the Applicant:
“[19] Since Laetyn has been incarcerated we have been in touch. My wife and I both speak with Laetyn every week, and my kids call him on facetime often.
[20]. They know who Laetyn is to them and share a relationship with him. It has been a while since Laetyn saw my kids physically.”
With the information before the Tribunal, it is reasonable to conclude that there are relationships here between the Applicant and minor children, that these are non-parental, that others have the primary role in caring for these children, and that, while relatively constrained and embryonic now, these relationships could grow in future if the delegate’s decision is revoked.
Tribunal findings: Best interests of minor children in Australia affected by the decision
Given the limited evidence available on this ground, the Tribunal gives this factor a slight weight in favour of the revocation of the decision to cancel the Applicant’s visa.
PRIMARY CONSIDERATION 4: Expectations of the Australian community
Clause 8.4(1) of the Direction provides:
“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.”
Clause 8.4(2) of the Direction states that visa cancellation, refusal or non-revocation 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. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:
(a)acts of family violence;
(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;
(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;
(f)worker exploitation.
Clause 8.4(3) provides that the above expectations apply, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. As per Clause 8.4(4), this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in the particular case.
Clause 8.4(4) of the Direction correlates with the reasoning of the Full Court of the Australian Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (“FYBR”).
Notwithstanding the different pathways in judicial reasoning, the plurality of the Court in FYBR held that “Expectations of the Australian community” is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[64]
[64] FYBR (2019) 272 FCR 454, at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).

The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[65]
[65] Ibid at 473 [75]– [76] (Charlesworth J).
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court’ And that the Direction was amended to better reflect the Federal Court’s decision.[66]
[66]FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
Observing the norm stipulated in paragraph 8.4(1), the Tribunal must consider the guidance provided by paragraphs 5.2(2), (3), (4) and (5) of Direction 90:
2Non-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.
3The 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 risk of causing physical harm to the Australian community.
4Australia 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.
5Decision-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 risk of causing physical harm to the Australian community.
Tribunal consideration: Expectations of the Australian community
The Direction indicates that 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.
The Direction indicates that 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 continue to hold a visa. In particular, the Direction states that the Australian community expects that the Australian Government can and should cancel a visa if the holder raises serious character concerns through certain kinds of conduct.
The Direction also states at paragraph 8.4(3) that the Australian community expectations set out at paragraph 8.4(2) apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
The Tribunal is cognisant that the Applicant has effectively lived in Australia since he was approximately 14 months old. However, the higher level of tolerance afforded to noncitizens who have lived in the Australian community from a very young age must be balanced against the specific, planned and violent nature of the Applicant's conduct and offending.
The Tribunal finds that the Applicant's remorse and contrition are unpersuasive in circumstances where, as an adult, he has repeatedly used violence, caused harm and put members of the Australian community at risk.
The Tribunal also has concerns about the dynamic protective factors and risk management factors asserted by the Applicant's representatives and the Applicant, especially the Applicant’s family network, given that they do not appear to have worked in the past to stop the Applicant offending.
The Tribunal also concludes that the Australian community’s expectations are not modified such that the community has a higher than usual tolerance of the criminal conduct committed by the Applicant due to his having lived here from a very young age.
Much of the Applicant’s argument here comes down to “if” – if he can rehabilitate in the community, if he continues with counselling, if he engages with his community and familial support frameworks, if he addresses his abandonment issues[67]. Given the history of the Applicant’s conduct to date, the Tribunal finds it difficult to accept the “if”.
[67] Applicant’s Closing submission dated 28 October 2022, point 8.
The Tribunal finds against the Applicant on this consideration.
Tribunal findings: Expectations of the Australian community
This primary consideration weighs substantially against revocation.
OTHER CONSIDERATIONS
Other Consideration 1: International non-refoulement obligations
Clause 9.1 of the Direction provides:
1A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
2In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
3However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
4Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
5International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
6It may not be possible at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of nonrefoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
7Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the noncitizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
8If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non-refoulement obligations.
Section 5 of the Act defines ‘non-refoulement obligations’ non-exhaustively as including Australia’s obligations as a party to the Conventions, Protocols and Covenants listed at cl 9.1(1) of the Direction and ‘any obligations accorded by customary international law that are of a similar kind to those mentioned’ in those treaties. The term, however, “is not confined to the protection obligations to which s 36(2) refers’.[68]
[68] Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 at 35 [103].
Tribunal findings: International non-refoulement obligations
This consideration is not enlivened and carries neutral weight.
Other Consideration 2: Extent of impediments if removed
Clause 9.2(1) of the Direction provides:
1Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
The Applicant’s Written Submissions
The Applicant submits that if he is removed to New Zealand, he will lose his current support structures. He asserts that this will place him at some risk of recidivism in New Zealand or cause him to fail in managing his risk factors.
The Applicant understands that health and psychological services are available for him in New Zealand, and they would be comparable to Australia[69]
[69] Applicant’s SFIC, undated, in Exhibit 1, G Documents, page 4.
The Applicant acknowledges that he has attained several trade and skills qualifications in Australia. In the Applicant's initial SFIC he stated that he has his Provisional 1 (red) license, forklift, working at heights, white card and other construction tickets.
The Applicant also contends, without supporting evidence, that would be difficult for him to find housing, employment and the funds to regain these tickets New Zealand but offers no evidence as to whether the qualifications are transferable from Australia to New Zealand.
The Applicant also states that in addition to the above, there are unpleasant memories and emotions for him linked to his mother and absent father in New Zealand.
Sub-paragraph 9.2(1)(a) Age and Health
The Applicant is aged 21 and is in good physical health. While he suffers from psychological disorders, he has acknowledged that New Zealand has comparable health and psychological services to those in Australia and these would be available to him.
The Respondent acknowledges in its closing submission that the Applicant has little to no support network in New Zealand and, because of this, he will suffer practical and emotional hardship upon return.
The Tribunal accepts that not being able to return to Australia will cause the Applicant emotional hardship, as well as worry for his family in Australia, and that these could adversely impact his mental health.
The Tribunal also finds that the Applicant will have access to publicly available health facilities, treatment and welfare services in New Zealand of the standard and availability comparable to similar services in Australia.
Dr Calvin suggested ongoing weekly individual psychological therapy to help the Applicant better understand his personal vulnerabilities and improve how he copes with stress. This support should consequently be obtainable by the Applicant in New Zealand.
Further, the Applicant would be able to remain in communication by telephone or online means with those of his family in Australia.
Sub-paragraph 9.2(1)(b) Language and cultural barriers
The Tribunal finds that any cultural or linguistic difficulties that the Applicant is likely to experience in New Zealand would be limited, given that the main language in his home country is English and that the cultural make-up of New Zealand is like Australia’s.
Sub-paragraph 9.2(1)(c) Social, medical and/or economic support available in New Zealand
The Tribunal acknowledges that the Applicant will face some practical, financial and emotional hardship upon returning to New Zealand, given that he will have to re-establish himself there.
The Applicant has acknowledged working as an apprentice electrician, a conditioning installer and scaffolder[70]. This suggests to the Tribunal that the degree of this economic hardship and impediment upon return to New Zealand would likely be limited. Given his youth, the Applicant is also well-placed to undertake additional training to enhance his employability.
[70] Exhibit 1, G17, page 133 and G19, page 138.
In his report Dr Calvin acknowledged that the Applicant does not have any psychological disorder preventing him from working.
The Tribunal decision of Tera Euna v Minister for Immigration and Border Protection[71] is relevant:
“New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The applicant will have access to those services as a New Zealand citizen.”[72]
[71] Ibid.
[72] Ibid, at [101].
The Tribunal is not satisfied that the emotional and psychological impact of a non-revocation decision would be so great that the Applicant would not be able to maintain basic living standards in the context of what is available to other New Zealand citizens.
Tribunal findings: Extent of impediments if removed
Having regard to its findings referrable to each of the three sub-paragraph components of this other consideration (b), the Tribunal is of the view that at its highest, it confers only a moderate, but not determinative, amount of weight in favour of revocation of the delegate’s decision under review.
Other Consideration 3: Impact on Victims
Clause 9.3(1) of the Direction states:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There are clearly victims from the Applicant's offending over the last three years. However, there is no evidence from any victim about the impact of the decision in this matter. This consideration is not enlivened and carries neutral weight.
Primary Consideration 4: Links to the Australian Community
Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community.
Paragraph 9.4.1 provides that:
1Decision-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.
2Where 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.
Paragraph 9.4.2 provides that:
Impact on Australian business interests
3Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Strength, nature and duration of ties
With reference to the first part of this Other Consideration, the Tribunal must consider the following elements:
(a)it is necessary to have regard to the impact of a non-revocation decision on the Applicant’s, “immediate family members” where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(b)it is necessary, when considering whether to revoke the delegate’s decision to cancel the Applicant’s visa, to consider the strength, nature, and duration of any ‘other ties’ the Applicant has to the Australian community. When addressing paragraph 9.4.1 (2) of the Direction, the Tribunal must have regard
how long the Applicant has resided in Australia, including whether he arrived as a young child, noting that:
(A) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(B) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(c)it is necessary to assess the strength, nature, and duration of any other family or social links the Applicant may have with people who have an indefinite right to remain in Australia.
Immediate family members

The Applicant arrived in Australia in November 2002 and appears to have been informally adopted by his maternal grandmother, now deceased.
Based on the oral and documentary evidence, including the family genogram[73], the Applicant has a large number of relatives in Australia.
[73] Tender Bundle, pages 233-234
Several of these relatives were involved in his upbringing and care, while others such as his uncle Timoci Tara ever offered support if he is allowed to remain in Australia.
Several of them have provided letters of support for him[74] The general tenor of these letters is to commend the Applicant’s character and the relationship he has with his extended family. Eroni Tara writes that the Applicant has matured, acknowledged his mistakes and has clear plans and goals for the future. May Faumi describes the Applicant as respectful, church-going and states he has learned from his mistakes. Timoci Tara describes the Applicant as ambitious, respectful and kind-hearted.
[74] Exhibit 1, G Documents, Attachment Q.
However, the Tribunal must have regard to the Applicant’s immediate family and focus on the impact on them. In this matter, the Applicant’s immediate family in Australia appear to be his maternal uncles[75].
[75] Op cit, footnote 78
Having regard to the evidence about the Applicant’s immediate family in Australia, the Tribunal considers that the impact of a non-revocation decision on the Applicant's immediate family in Australia would involve emotional and practical hardship for them.
The Tribunal finds that the strength, nature and duration of the Applicant's ties to his immediate family members in Australia carries a moderate weight in favour of revocation of the cancellation decision under review.
Other Ties
There are two necessary enquiries referable to the extent of the Applicant’s, “other ties” to Australia.
The first of those involves the question of how long he has resided in Australia. As mentioned earlier, the Applicant came to Australia as a 14 month old infant. It is safe to find that he has spent most of his life in Australia.
The second inquiry involves an application of the two tempering sub-elements in paragraph 9.4.1(2)(a) of the Direction. The first of those sub-elements requires the Tribunal to allocate less weight if the Applicant began offending soon after he arrived here.
The Tribunal notes that the Applicant’s offending (as an adult) occurred shortly after his 18th birthday and that this offending (sentenced on 25 November 2019) was especially serious and violent, with significant and lasting negative effects on its victims. The Direction however requires consideration as to whether the Applicant began offending soon after arriving in Australia, which cannot be said to have occurred in circumstances where the Applicant arrived as an infant and therefore no less weight is to be allocated to this consideration.
The second of the two tempering sub-elements requires an assessment of the Applicant’s positive contributions to the Australian community. The Applicant has had little opportunity to work in the community but has managed to do so as an apprentice electrician, air conditioning installer and scaffolder. Through Rap4Change, the Applicant has also engaged in community and social work as a volunteer.
This second tempering sub-element can be applied in favour of this Applicant but with a weight proportionate to the overall low level of the Applicant’s contributions to the Australian community.
As noted above, the Applicant's other ties with the Australian community include his girlfriend, as well as Ms Chelsea Larkin, Chris Tuifao, Pastor Mario Rizzeri and Ned Narouz, the CEO of Rap4Change.
The Tribunal acknowledges that a decision by the Tribunal not to revoke the delegate’s decision to cancel the Applicant’s visa will have an individual impact upon each of these ties, varying with the propinquity, intensity and duration of their relationship with the Applicant.
On balance, the Tribunal finds that the sum of the consideration of the two tempering sub-elements carries a moderate weight in favour of the revocation of the mandatory cancellation decision under review.
Impact on Australian business interests
Paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on, “Australian business interests”. The Tribunal considers that this component of Other Consideration (d) is not relevant.
Findings on Other Consideration 4
The Tribunal considers that Other Consideration carries a moderate weight in favour of revocation of the delegate’s decision under review.
Findings: Other Considerations
The following summarises the respective weights the Tribunal has allocated to each of the Other Considerations (specified in the Direction) in this matter:
(a)international non-refoulement obligations: neutral;
(b)extent of impediments if removed: a moderate, but not determinative, amount of weight in favour of revocation of the delegate’s decision under review.
(c)impact on victims: neutral.
(d)links to the Australian community: carries a moderate weight in favour of revocation of the delegate’s decision under review.
ADDITIONAL CONSIDERATIONS
The Applicant’s representative provided:
a)An Applicant’s Statement of Facts, Issues and Contentions,
b)an Additional Applicant’s Statement of Facts, Issues and Contentions dated 24 October 2022 (ASFIC); and
c)two sets of closing submissions dated 28 and 29 October 2022 (together, ACS),
to the Tribunal.
The Tribunal is considering these additional considerations under Clause 9 of the Direction which provides that the list of 4 other considerations to be considered is not exhaustive (noting it states ‘but are not limited to’). Therefore, the Tribunal has considered the further considerations submitted by the Applicant’s representative below.
The Applicant’s ASFIC, in conjunction with the Applicant’s closing submissions, makes several contentions:
(a)The Applicant contends that paragraphs 5.2(5) and 8.4 (2) of the Direction, which address certain types of conduct and their impact on the decision whether to revoke the cancellation of the Applicant's visa, conflict with several Articles of the International Covenant on Civil and Political Rights and possibly the Convention Against Torture[76].
(b)Supporting of this contention, the Applicant submits that, where an interpretation of the Direction is available which avoids or minimises the possibility of a breach of Australia's international obligations, then that interpretation is to be preferred[77].
(c)Regarding the International Covenant on Civil and Political Rights, the Applicant contends in both the ASFIC and his closing submissions that Article 14.7 of the Covenant raise the question of whether the cancellation of the Applicant's visa can be characterised as "punishment"[78].
(d)The Applicant contends that the High Court's decision in Alexander v Minister for Home Affairs[79], addressing the validity of Section 36B of the Australian Citizenship Act 2007, raises a question as to whether the cancellation of the Applicant's visa constitutes a punishment.
(e)The Applicant further contends that the Direction should be read in conjunction with the lapsed Migration Amendment (Strengthening the Character Test) Bill 2019.
[76] ASFIC, Consolidated Joint Tender Bundle, Exhibit A2, page 12: Applicant’s Closing Submission, page 6, para 1.3.2.
[77] Applicant’s Closing Submission, page 6, para 1.3.2.
[78] Applicant’s ASFIC, Consolidated Joint Tender Bundle, Exhibit A2, page 12
[79] Alexander v Minister for Home Affairs [2022] HCA 19
Addressing these contentions:
(a)Deportation and Cancellation
The contention involving paragraphs 5.2(5) and 8.4 (2) of the Direction appears based on the Applicant's conception that the effect of the decision under review by the Tribunal is equivalent or analogous to the effect of the Migration Act’s deportation powers and that consequently the principles involved in both should be co-extensive.
With respect to the Applicant, there is a logical distinction between a deportation on one hand and the cancelling of a visa on the other hand. The Migration Act distinguishes between ‘deportation’ (addressed in Part 2, Division 9 of the Migration Act, starting with Section 200[80][81]) and ‘cancellation’ of a visa (addressed in Part 9, Division 2, Sections 501(2) and 501(3A)). In the latter instance, Sections 501(2) and 501(3A) do not include any reference to deportation following cancellation.
[80] Section 200, Migration Act 1958 (Cth).
(b)International Obligations
Before considering this contention in relation to Australia's international obligations, the Tribunal notes that, in the Applicant's 29 October 2022 further response to the Respondent’s closing submissions, the Applicant did “not think it necessary to identify which paragraphs of the Ministerial Direction No. 90 are affected[82]” by the international obligations in question.
[82] Email dated 29 October 2022 from the Applicant’s lawyer, containing the Applicant’s response to the Respondent’s closing submission.
The Tribunal accepts, relying on the judgment of Chief Justice Mason and Justice Deane in Minister of State for Immigration And Ethnic Affairs v. Ah Hin Teoh[83], that:
[83] Minister of State for Immigration And Ethnic Affairs v. Ah Hin Teoh (1995) 183 CLR 273.
If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations⁽⁸⁾.
Relevantly, the Direction addresses how a decision maker should decide whether to revoke a mandatory cancellation of a visa under sections 501CA the Migration Act 1958 (Cth).
Neither the International Covenant on Civil and Political Rights or the Convention Against Torture are imported into the Direction, and, as the Respondent submits in their closing submission[84], these two international obligations represent a target in terms of construing legislation rather than prescribing an outcome – which would be problematic to implement in any event as the Applicant has not identified which paragraphs of the Direction are possibly affected by these international obligations[85].
[84] Respondent’s Closing Submission, paragraph 31.
[85] The Tribunal observes, obiter, that if Australia’s formal international obligations were to be used in applying the Direction, then Australia’s obligations under the Conventions on the Rights of the Child may well have some weight in favour of the child victims of the Applicant’s 25 November 2019 offending.
Addressing whether the combined effect of Section 501(3A) and the Direction, when applied in cancelling a visa, constitute "punishment", the Tribunal notes while there is a subsidiary effect of Section 501(3A) and the Direction that could be characterised in certain circumstances as punitive, the main effect is administrative in nature giving effect to these administrative instruments.
(c)Constitutional Validity
With respect to the Applicant’s contention that there is a possibility that the Direction breaches Chapter III of the Constitution by enabling the Minister to exercise an exclusive judicial power and gives any decision in this matter more of a punitive character than an administrative one, the Tribunal notes as follows:
First, the High Court's decision in Alexander v Minister for Home Affairs, whichinvolved the ministerial power to cancel citizenship and whether this led to the exclusively judicial function of punishing criminal guilt being conferred on the Minister under Section 37B of the Australian Citizenship Act 2007 (Cth) in breach of Chapter III of the Constitution, can be distinguished from this matter on the basis that the Tribunal is here dealing with the cancelling of a visa due to the operation of Section 501(3A) of the Migration Act.
Second, the Tribunal has regard to the principles articulated by Deputy President Jarvis at paragraph 19 of Walsh v Commissioner of Taxation[86]:
[86] Walsh v Commissioner of Taxation [2012] AATA 451; paragraph 19
“I will approach the present proceedings in accordance with the following propositions, which I think emerge from authorities relevant to the question of the tribunal’s jurisdiction to review the constitutional validity of legislation:
(a) the tribunal should approach matters on the assumption that the relevant legislation is constitutionally valid;
(b) the tribunal is empowered to consider the constitutional validity of legislation in order to determine whether or not it has jurisdiction to review the reviewable decision, and if it considers that the legislation is unconstitutional, it should decline to exercise the jurisdiction purportedly conferred on it by that legislation;
(c) the tribunal can form an opinion on whether legislation can apply within constitutional limits to particular persons or in particular circumstances, and can act on that opinion in determining applications for review of administrative decisions;
(d) however, the tribunal does not have jurisdiction to reach a conclusion having legal effect that legislation is unconstitutional, and such a decision can only be made by a court exercising judicial power; and
(e) the tribunal should nevertheless proceed with caution where such issues arise, and
(f) the tribunal should give consideration to referring a question of law to the Federal Court.”
The Tribunal is approaching this decision on the assumption that the Direction and its parent legislation are both constitutionally valid as there is no clear and unqualified evidence or submission to the contrary.
The Tribunal has considered above the extent to which the Direction has a punitive – i.e., in the sense of causing involuntary hardship or detriment – effect and does not consider that the punitive effects manifested in this matter trigger a situation analogous to Alexander.
(d)The lapsed Migration Amendment (Strengthening the Character Test) Bill 2019
The Applicant neither specifies which paragraphs of the Direction require interpretation with reference to the lapsed Bill, nor characterises the link between the lapsed Bill and the Direction. The Tribunal does not consider that it has sufficient information to proceed with a consideration of this contention, especially given the lapsed nature of the Bill.
The Tribunal did not find any weight in the Applicant’s additional considerations in favour of revoking the delegate’s decision to cancel the Applicant’s visa. If the Tribunal found any weight in these additional considerations, this weight would not displace the accumulated weight found in the primary considerations against revoking the decision.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test.
Applying s501CA(4)(b)(ii) of the Act and determining whether there is ‘another reason’ to revoke the cancellation decision, the Tribunal has applied the Direction to the specific circumstances of this case.
The Tribunal sees no reason to depart from the Direction’s guidance that greater weight ‘should generally be given’ to the Primary Considerations than the Other Considerations.
The Tribunal considers that the Australian community, as a norm, expects the Government not to allow non-citizens who have engaged in violent offences to enter or remain in Australia.
The Tribunal has accorded significant and heavy weight to the very serious nature of the Applicant’s violent offending and the pattern of his offending since he became an adult.
The Tribunal is cognisant that, where great harm could be inflicted on the Australian community, any risk of reoffending may be considered unacceptable, even applying a higher tolerance of the Applicant’s criminal conduct because he has lived in Australia for most of his life from a young age.
On balance, the Tribunal finds that the factors that weigh against revocation of the cancellation decision outweigh the factors in favour of revocation.
Consequently, the Tribunal is not satisfied that there is another reason why the decision to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa should be revoked. It follows that the condition under s501CA(4)(b)(ii) of the Act is not met.
In summary, the Tribunal finds as follows:
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct;
This consideration weighs very substantially against revocation of the decision to cancel the Applicant’s visa.;
Primary Consideration 2: whether the conduct engaged in constituted family violence
This consideration weighs as neutral in considering the revocation of the decision to cancel the Applicant’s visa.
Primary Consideration 3: the best interests of minor children in Australia
This consideration gives a slight weight in favour of revocation of the decision to cancel the Applicant’s visa.
Primary Consideration 4: Expectations of the Australian community
This consideration carries a substantial level of weight against revocation of the decision to cancel the Applicant’s visa.
The Tribunal has outlined above the weight attributable to the Other Considerations. The Tribunal finds that two of the Other Considerations weigh in favour of revoking the delegate's decision. These are the strength and nature of the Applicant's ties to Australia and the impediments the Applicant may face if removed to New Zealand.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 10 August 2022 to not revoke the mandatory cancellation of the Applicant’s visa.

I certify that the preceding two hundred and four paragraphs (204) paragraphs are a true copy of the reasons for the decision herein of Member D. Cosgrave

.............[sgd]...........................................................
Associate
Dated: 6 December 2022

Dates of hearing: 27 and 28 October 2022

Solicitors for the Applicant:
George Lombard
Playfair Visa and Migration Services

Solicitors for the Respondent: Gabrielle Gutmann
Minter Ellison
ANNEXURE A – Exhibit Register

EXHIBIT PARTY DESCRIPTION OF EVIDENCE DATE OF DOCUMENT DATE RECEIVED

1.0 A
Tender Bundle*

*Unpaginated.

(1-17, pages 1-262)
Various 24 Oct 2022

1
R

G-Documents

(G1-G31, pages 1-277)
Various 1 Sep 2022

2
R

Respondent SFIC

(para 1-43, pages 1-9)
4 Oct 2022 4 Oct 2022

3
R

Respondent Supplementary G-Documents

(S1-S26, pages 1-85)
Various 17 Oct 2022

4
A

Applicant SFIC

(pages 1-7)
Undated 19 Sep 2022

5
A

Applicant Bundle

(pages 1-25)
Various 19 Sep 2022

6
A

Applicant Evidence-in-Reply

(pages 1-36)
Various 12 Oct 2022

EXHIBIT	PARTY	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
1.0	A	Tender Bundle* *Unpaginated. (1-17, pages 1-262)	Various	24 Oct 2022
1	R	G-Documents (G1-G31, pages 1-277)	Various	1 Sep 2022
2	R	Respondent SFIC (para 1-43, pages 1-9)	4 Oct 2022	4 Oct 2022
3	R	Respondent Supplementary G-Documents (S1-S26, pages 1-85)	Various	17 Oct 2022
4	A	Applicant SFIC (pages 1-7)	Undated	19 Sep 2022
5	A	Applicant Bundle (pages 1-25)	Various	19 Sep 2022
6	A	Applicant Evidence-in-Reply (pages 1-36)	Various	12 Oct 2022

[81] See also Section 5, Migration Act 1958 (Cth) defining ‘deportation’ as meaning ‘deportation from Australia’

Date of Sentencing	Offence	Outcome
18 December 2020	Aggravated break and enter and commit serious indictable offence	Convicted – 3 years’ imprisonment
5 January 2020	[While in prison] Assault[8]	3 days’ confined to cell
14 July 2020	[While in prison] Create possess prohibited goods[9]	3 days’ confined to cell
4 March 2022	Affray	Convicted – 9 months’ Community Correction Order

Dates of hearing:	27 and 28 October 2022
Solicitors for the Applicant:	George Lombard Playfair Visa and Migration Services
Solicitors for the Respondent:	Gabrielle Gutmann Minter Ellison