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

HKDM and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3193 (9 October 2023)
Division:GENERAL DIVISION
File Number: 2023/5322
Re:HKDM
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:9 October 2023
Place:Melbourne

Pursuant to s 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the reviewable decision. In substitution therefor the Tribunal decides there is another reason under s 501CA(4)(b)(ii) of the Migration Act 1958 to revoke the mandatory cancellation of the Applicant’s visa.
..............................[SGD]..........................................
Senior Member D. J. Morris
Catchwords
MIGRATION – cancellation of applicant’s Class BF Transitional (permanent) visa – applicant’s birthplace was in Germany and is now in Poland - applicant is a citizen of the Federal Republic of Germany – applicant does not pass character test because of substantial criminal record – applicant sentenced to death – applicant sentenced to life imprisonment – applicant sentenced to prison sentence of 12 months or more – applicant serving full-time sentence on date visa cancelled – delegate of minister cancelled applicant’s visa – applicant made representations to a different delegate for mandatory cancellation to be revoked – delegate refused – applicant sought review by Tribunal – ministerial direction – primary considerations – other considerations – applicant has very serious criminal history in Australia – applicant now aged 83 – applicant has significant health conditions and a recent decline – decision under review set aside and new decision substituted
PRACTICE AND PROCEDURE – applicant became distressed during hearing and refused to give further evidence – applicant’s representatives indicated matter could be determined on the evidence heard and the papers submitted – respondent consented – Tribunal said it would not be satisfied to make that determination until one further witness was heard – witness heard – Tribunal decided hearing would conclude – parties given leave to make written closing submissions
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Firearms Act 1986 (Vic)
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Secondary Materials
Australian Bureau of Statistics – Life Tables – 2019-21; published 8 November 2022
Migration Act 1958 – direction under s 499 – Direction No. 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 3 March 2023)
The Berlin Conference of the Three Heads of Government of the Union of Soviet Socialist Republics, the United States of America, and the United Kingdom, done at Potsdam from 17 July to 2 August 1945
REASONS FOR DECISION
Senior Member D. J. Morris
9 October 2023

The Applicant, who has been given the anonym ‘HKDM’, is a citizen of the Federal Republic of Germany. He was born in February 1940 and is now aged 83. He first arrived in Australia in June 1956 in company with his mother on the MV FAIRSEA as what was described as a ‘full-fare migrant’ aged 16. He has not left this country since that date.
HKDM began offending in a petty manner aged around 18, with his first conviction being recorded in April 1958. He has amassed an extensive criminal record in Australia, with his first offending recorded in April 1958. In November 1966 HKDM had his first serious conviction, for the offence of Manslaughter. For this, he was sentenced to seven years imprisonment by the Supreme Court of South Australia. He served four years and six months in prison and was then paroled.
In July 1974 HKDM was convicted of the offence of Murder by the Supreme Court of South Australia and sentenced to death. That sentence was later commuted by the executive government of South Australia to life imprisonment. He was imprisoned until 1990 when he was released on parole. He completed his parole in 2000.
In October 2017 HKDM was before the County Court of Victoria and convicted of the offences of Recklessly cause serious injury and Possess unregistered general category handgun. He was sentenced to a term of imprisonment of five years and six months, with a non-parole period of three years and six months, with 511 days in custody to be counted as time served.
On 2 July 2019 a delegate of the Respondent cancelled HKDM’s visa pursuant to s 501(3A) of the Migration Act 1958 (‘the Act’) on the basis that the Applicant had a ‘substantial criminal record’ by reason of being sentenced to a term of imprisonment of 12 months or more and that he was, at that time, serving a sentence of full-time imprisonment.
The Applicant was invited to make representations as to whether the mandatory cancellation of his visa should be revoked.
On 15 December 2021 a delegate of the Respondent notified the Applicant that the 2 July 2019 notice revoking his visa was invalid. HKDM was issued a fresh notice and re-invited to make representations as to whether the visa should be revoked. He did so on 21 December 2021.
On 19 July 2023 a delegate of the Minister decided not to revoke the mandatory cancellation of the Applicant’s visa. It is this 19 July 2023 decision that HKDM has brought to the Tribunal for review.
Because of the terms of s 500(6L) of the Act, if the Tribunal has not made a decision in relation to the reviewable decision within the period of 84 days after which the person was notified of the decision, the Tribunal is taken to have affirmed the decision. The 84-day period in this matter ends on 12 October 2023.
HEARING
The hearing commenced on 26 September 2023. HKDM was represented by Ms Tanya Skvortsova of counsel, instructed by Mr Gerard Gleeson of Abode Migration Lawyers. The Respondent was represented by Mr Stanley Mak, with Ms Siran Nyabally, both of The Australian Government Solicitor
The Applicant gave evidence and was cross-examined. Ms Skvortsova also called a friend of the Applicant, who will be called Mr JS, who also gave evidence and was cross-examined.
The Tribunal had regard for documents admitted into evidence and which are listed in the annexure to these reasons. The Tribunal also took into account a Statement of Facts, Issues and Contentions from the Applicant (‘ASFIC’) and a Statement of Facts, Issues and Contentions from the Respondent (‘RSFIC’).
On 4 October 2023 at the request of the Applicant, not objected to by the Respondent, the Tribunal reconvened the hearing, and the Applicant submitted a statement of the Applicant dated 9 September 2023 which had inadvertently been omitted from previously tendered documents, although it had been provided to the Respondent. The document was admitted as Exhibit A12. The Respondent was given leave to make submissions on this document by midday on 5 October 2023, and did so.
Procedural matter
Early in the course of being cross-examined, HKDM became distressed and expressed the desire to cease giving evidence. The Tribunal adjourned the hearing to allow the Applicant to confer with his legal representatives. On resumption, Ms Skvortsova advised that HKDM wanted to continue with his application but requested that the remainder of the hearing be dispensed with, and the Tribunal consider the documents lodged with the Tribunal without hearing further evidence. Mr Mak, for the Respondent, said that the Minister consented to this proposed course of action.
The Tribunal decided that hearing oral evidence from Mr JS was potentially important before it could be satisfied that the issues for determination can be decided without further oral evidence. The Applicant therefore called Mr JS who gave evidence-in-chief and was cross-examined. The Tribunal also asked direct questions of the witness.
Decision to dispense with further hearing
The Tribunal then determined that it would consider the evidence before it from the Applicant and Mr JS, and the other documents taken into evidence, and make a decision without continuing the hearing. The Tribunal gave leave for the parties to lodge written closing submissions, after which the Tribunal’s decision would be reserved. Both parties lodged closing submissions.
Section 34J of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) is couched in terms of circumstances where the Tribunal decides that the issues for determination can be adequately determined in the absence of parties and that a hearing not be held, with the consent of the parties. The heading of this section of the Act reads ‘Circumstances in which hearing may be dispensed with’. Although s 34J contemplates that the Tribunal may decide a matter without holding any hearing with the consent of the parties, the Tribunal considers that, in a case like this, where a hearing has commenced but where it is apparently not practically possible for an Applicant to continue to give evidence, the legislative purpose behind s 34J gives support for the course of action the Tribunal decided to adopt.
This interpretation is supported by s 33 of the AAT Act, which provides that the procedure of the Tribunal is, subject to the AAT Act, within the discretion of the Tribunal, and, at s 33(1)(b), that a proceeding shall be conducted, inter alia, with as much expedition as a proper consideration of the matters before the Tribunal permit. The Tribunal took into account that both parties supported the matter being determined on the papers before the Tribunal without continuing the hearing, and that it gave an opportunity for both parties to make written closing submissions. The Tribunal was also mindful of the temporal legislative constraint imposed by s 500(6L) of the Act in relation to the ‘84-day timeframe’. The alternative course would be to dismiss the matter for failure of the Applicant to proceed, which, in all the circumstances, would, in the Tribunal’s view, be unreasonable. The Tribunal also took into account the advanced age of HKDM and the fact that he has a variety of health conditions.
The Tribunal considers that this course of action, while somewhat unorthodox, is consistent with the objective of the Tribunal to provide an efficient mechanism of review of an administrative decision, while according procedural fairness to both the Applicant and the Respondent. A solution supported by the parties, and which is allowable in terms of the AAT Act and any other relevant legislation, and which facilitates the determination of an application for merits review, is generally to be preferred to denying an applicant the opportunity for such a review.
APPLICANT’S BIRTHPLACE
HKDM was born 1940 in the town of Marienwerder in the area of East Prussia in what was then the German Reich. Marienwerder (now re-named Kwidzyn) is now, in terms of political geography, in the Pomeranian voivodeship (i.e. province) of the Republic of Poland.
At a young age the evidence is that HKDM went to live in the care of his grandmother in East Berlin while his mother worked for the Red Cross looking after soldiers with frostbite. HKDM states that he was raised by his grandmother during these years. After the war, the Applicant and his mother were reunited. They emigrated to Australia in 1956.
At the cessation of hostilities in Europe, the three allied heads of government, General Secretary Joseph Stalin of the Union of Soviet Socialist Republics; President H. S. Truman of the United States of America; and the Rt Hon. Winston Churchill, Prime Minister of the United Kingdom, met at Potsdam in the Soviet Occupation Zone in July and early August 1945. The meeting was interrupted for two days by the British general election and thereafter the Rt Hon. C. R. Attlee became Prime Minister and represented the United Kingdom. The result of the conference was the Potsdam Agreement, which was a communique rather than a treaty. However, in practical effect, one of the results of the Potsdam Agreement was the re-drawing of the border between the East Prussia area of Germany and Poland, to the west to follow the Oder-Neisse line. A consequence of this shift in the border was that HKDM’s birthplace Marienwerder came within the sovereign boundaries of Poland. As mentioned, Marienwerder was subsequently re-named.
HKDM said in a statement dated 21 December 2021 (GD, p 88):
My village has been German for five hundred years. I am not Polish. I speak no Polish. I hardly have any memory of the German language much less Polish. I have never been to Poland. It would be inhumane to accept that I can live in Poland at my age.
HKDM came to Australia as the bearer of a German passport in 1956 (GD, p 94) and with a German Government identity card issued in February 1956 (GD, p 93). In March 2023 the German Consulate-General in Sydney advised the Applicant’s solicitors that, had HKDM obtained Australian citizenship, he would have lost his German citizenship but “we can…most probably assume he is still German”. The Vice-Consul who was the author of the advice said he was familiar with the Applicant because he had contact with him when he was in prison. He advised that he had already tried to obtain a birth certificate for HKDM, but there were no registry entries available.
The Tribunal raised this matter at the commencement of the hearing and both the Applicant’s and Respondent’s representatives agreed that Germany is the country of reference. There is no evidence of HKDM holding any other citizenship. The Tribunal is therefore satisfied that the Federal Republic of Germany (not Poland) is the country of reference for HKDM, to which he would be repatriated if the reviewable decision is affirmed, and proceeded on that basis.
APPLICANT’S OFFENDING
Before the Tribunal was a national criminal history check relating to the Applicant, produced by the Australian Criminal Intelligence Commission on 19 December 2018 (GD, pp 26-27). The first offence recorded was in April 1958 when the Applicant was before the Melbourne Court of Petty Sessions charged with Use indecent language in a public place. He was fined three pounds. From May 1959 to July 1964 HKDM was before the Courts eight times. Most of the convictions relate to the offence of Larceny. He received short gaol sentences for several offences.
In July 1964 he was before the Melbourne Court of General Sessions and convicted of 13 counts of Larceny and one count of Use firearm to resist arrest. He was sentenced to one month in gaol for each of the Larceny offences and six months’ imprisonment on the firearm charge. The facts indicate that HKDM fired a gun into the air on this occasion.
In November 1966 HKDM was convicted in South Australia of the offence of Manslaughter. The national criminal history check records the conviction as before the Port Augusta Magistrates’ Court, but I am satisfied from other papers that it was before the Supreme Court of South Australia, sitting at Port Augusta. He received a sentence of seven years’ imprisonment for this offence, but was granted parole in 1970.
In July 1974, HKDM was convicted before the Supreme Court of South Australia of the offence of Murder. As recorded above, he was sentenced to death, which was commuted to life imprisonment. HKDM served 16 years in gaol on this conviction, before being released on parole in South Australia. The parole was subsequently transferred to Victoria and was completed in 2000.
In December 2007, HKDM was convicted before the Magistrates’ Court of Victoria of the offences of Possess prohibited weapon without exemption or approval and Possess controlled weapon without excuse. He was fined $200.
In September 2008, HKDM was convicted of the offence of Behave in offensive manner in a public place, for which he was fined $200.
Finally, in October 2017 before the County Court of Victoria, the Applicant was convicted of the offences which triggered the cancellation of his visa.
FINDING ON THE CHARACTER TEST
It was not contested by the parties that the Applicant does not pass the character test because he has acquired a ‘substantial criminal record’ by being sentenced to a term of imprisonment of 12 months or more, and that he was serving a full-time sentence at the date his visa was cancelled.
Section 501(7) of the Act provides as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a)The person has been sentenced to death; or
(b)The person has been sentenced to imprisonment for life; or
(c)The person has been sentenced to a term of imprisonment of 12 months or more; or
…
HKDM’s criminal history invokes each of these provisions: s 501(7)(a), as a non-citizen who has been sentenced to death; s 501(7)(b), as a non-citizen who has been sentenced to imprisonment for life; and s 501(7)(c), as a non-citizen who has been sentenced to a term of imprisonment of 12 months or more.
The Tribunal therefore finds that HKDM does not pass the character test by reason of having a substantial criminal record.
The two ingredients set out in s 501(3A)(a)(i) – the Applicant having a substantial criminal record and s 501(3A)(b) that he was serving a sentence of imprisonment on a full-time basis for an offence when the visa was cancelled – were met. The visa was cancelled by the delegate by operation of law.
The discretionary power – is there ‘another reason’ to revoke the mandatory cancellation of the visa?
Having made the finding that HKDM does not pass the character test, and being satisfied that the Applicant was invited under s 501CA(3) of the Act to make representations about the revocation of the decision to cancel the visa, the power was enlivened for the Minister, or his delegate (or the Tribunal now standing in his shoes) to potentially revoke the cancellation decision if satisfied, under s 501CA(4)(b)(ii), that there is ‘another reason why the original decision should be revoked’.
In considering that question, the Tribunal must have regard to any direction made by the Minister under s 499 of the Act. On 23 January 2023 the Minister made a direction, which took effect on 3 March 2023. This is Direction No. 99 (‘the Direction’). Decision-makers, including the Tribunal, must, under s 499(2A) of the Act, comply with the Direction.
THE MINISTERIAL DIRECTION
The Direction sets out objectives, principles and how a decision-maker should exercise the discretion. It lists five primary considerations which must be considered by decision-makers. It also sets out four other considerations, which may be relevant to the non-citizen’s circumstances. However, these other considerations are not an exhaustive list. Any other consideration in the circumstances relevant to the purposes of the Act can be taken into account by the Tribunal.
In forming a view on whether there is ‘another reason’ under s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the visa, the Tribunal must have regard to the relevant contents of the Direction.
Primary consideration: Protection of the Australian community from criminal or other serious conduct (paragraph 8.1)
The nature and seriousness of the conduct (para 8.1.1)
The Tribunal is obliged by paragraph 8.1.1(1)(a) of the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence.
It was not in contest between the parties that HKDM has committed serious and violent offending, in particular involving firearms. Two of the most serious offences resulted, by the actions of HKDM, in the deaths of two persons, and the third involved a victim receiving serious abdominal injuries. In each case, the victims were shot by HKDM.
There was no evidence of the Applicant committing a sexual crime other than a 2008 offence for behaving in an offensive manner in a public place. By the description given by HKDM in a statement, the circumstances of this offence related to an intimate but consensual encounter. However, as there was no corroborating material relating to this offence and the resulting penalty was a fine of $200, the Tribunal places this offence at the lower end of the spectrum of seriousness in terms of the Applicant’s overall conduct and does not regard it as significant. It is even arguable that it is in the category of a ‘sexual crime’ in terms of the intention of that term in the Direction. It apparently did not involve any sexual assault.

Paragraph 8.1.1(1)(b) of the Direction lists other categories of crimes or conduct that are considered by the Australian Government or Australian community to be serious. They are causing a person to enter into a forced marriage; crimes committed against vulnerable members of the community such as the elderly and the disabled, or government representatives or officials due to the positions they hold or in the performance of their duties; and any conduct that forms the basis of a finding that a non-citizen does not pass the character test that is dependent on a decision-maker’s opinion; or crimes in, or related to, immigration detention. None of the categories stipulated in paragraph 8.1.1(1)(b) are relevant to the Applicant.
Paragraph 8.1.1(1)(c) requires that the Tribunal must have regard to the sentence imposed by the court for a crime or crimes. The Tribunal will concentrate on the three most serious offences involving HKDM’s use of a firearm against a person, in 1966, 1974 and 2016.
1966 offending
In relation to the Manslaughter conviction in 1966, the Court imposed a prison sentence of seven years. By itself, that is objectively a serious offence and one evidently viewed seriously by the sentencing judge, because of the length of the sentence.
The circumstances of that offence were that HKDM was in Andamooka, mining for opals. He had befriended a local Indigenous Australian woman who had become his girlfriend. The sentencing Judge accepted that this woman had previously been in a relationship with the victim of the offending, and had been subjected to ‘very serious violence’ at his hands. She was afraid of this man (GD, p 40).
On the night in question, HKDM had been drinking, celebrating finding an opal. A group gathered and the Applicant told the Court the deceased used violence both against him and the woman. HKDM then went to get a rifle from his hut nearby. At this hearing, HKDM said that the victim was holding the woman in front of him as a shield, until she wrestled away and HKDM shot the victim.
The Judge noted that HKDM said he did not take aim. HKDM said that he intended to shoot the man in the shoulder. In any event, the bullet went through the victim’s heart, and he died.
At this hearing, the Respondent’s lawyer asked HKDM why he did not call the police on this occasion. He responded that ‘it was the outback…the police were an hour away’. This assertion is contradicted by the remarks of Mr Justice Chamberlain in passing sentence (GD, p 40) when His Honour said:
“There was a police officer in Andemooka, and if you and your woman needed protection, there was a proper way to obtain it.”
The Judge noted that HKDM had already amassed a number of convictions for various offences, including one where he had received a six-month prison sentence for using a firearm, not to shoot at anyone but to prevent apprehension. The sentence imposed for the Manslaughter conviction was seven years gaol with hard labour.
Before the Tribunal was the Applicant’s immigration file from the National Archives of Australia. It is recorded (SGD, p 119) that a submission went to the Immigration Minister in May 1971 with a recommendation that HKDM, notwithstanding the Manslaughter conviction, not be deported but that he should receive:
“a stern warning in the hope that it would have some salutary effect on his future behaviour.
However, the same submission goes on to say:
The warning was never administered as [HKDM’s] whereabouts were not known.”
1974 offending
As mentioned above, in 1974 the Applicant was convicted of Murder in the South Australian Supreme Court. The sentence of death was entered on the record. A life sentence was ultimately imposed. The facts surrounding the offending are not before the Tribunal, but the material supports a finding that HKDM shot a fellow opal-miner through the window of his caravan. There was some evidence of historical bad blood between the two men. While serving his sentence for this offence, HKDM escaped from prison in late 1981. He was recaptured after three days. HKDM was subsequently sentenced to a further nine months’ imprisonment for escaping custody.
The National Archives files record that the then Immigration Minister, Mr West, announced proposed changes to the Act in May 1983 that would preclude the deportation of a non-citizen if he or she had accrued more than ten years of lawful residence in Australia prior to the commission of the offence (SGD, p 119). In this case, HKDM was assessed as having accrued this lawful residency before his 1974 conviction, and so the head of criminal deportations in the Department recommended that no further action be taken in regard to the Applicant.
2016 offending
In regard to the 2016 offending which triggered the cancellation of HKDM’s visa, the October 2017 reasons for sentence of Her Honour Judge Wilmoth of the County Court of Victoria were before the Tribunal (GD, pp 28-38).
Her Honour noted that the jury had found HKDM guilty of recklessly causing injury to a man, ‘ML’, and of possessing an unregistered general category handgun. The jury had acquitted the Applicant of the offences of intentionally causing serious injury to ML and of assaulting a third person, ‘AS’, who was a woman who lived in HKDM’s house.
The Respondent in his closing submissions submitted that various statements HKDM made to the police about the circumstances of the 2016 offending indicate a lack of remorse, and in particular his inconsistent statements about the ownership of the firearm that was used. The Tribunal notes those submissions but also notes that ML refused to give any statement to the police or evidence, and the Court therefore had reliance on the statements of AS, and the ballistic evidence, in order to attempt to reconstruct what appeared to have occurred. The Tribunal is not competent to go behind the reasoning expressly set out in the remarks of the sentencing Judge, and indeed to do so would run the risk of impugning the findings of the Court.
Her Honour said (GD, p 29, with the names replaced with initials):
It is necessary to set out to some extent the evidence before the jury as to how ML came to be injured. ML declined to make a statement and the prosecution case relied on the evidence of AS as to what occurred, and as to other circumstances surrounding the offending.
Briefly, her evidence was that in 2016, she was living in your house as a guest in effect, and on 30 May in the evening she was in the house with her boyfriend ML. She said there was no particular animosity towards ML on your part, but you had told him that you did not want anyone hitting her or taking her money and there was evidence that ML had recently borrowed some money from her.
AS said you had returned home that evening intoxicated. She heard you coming in the side gate and she let you in the back door, and you were carrying a tomahawk in one hand and a gun in the other. She said the gun did not belong to her and that she had seen it once before, when a couple of weeks previously you had waved it around in the garden.
She said you came into the lounge room yelling, “Where’s ML?” ML came into the room and you shot him, the bullet hitting him in the abdomen and seriously injuring him.
She said you then went outside and you were gone about ten minutes. She had thought you had run away but you then returned to the room with the gun and AS said she tried to get the gun from you.
…
AS said…you both had your hands on the gun and it went off. It was fired and the bullet ended up lodged in the wall having clipped the nearby table and blinds. She had taken the gun into her bedroom and later when the police arrived, she had thrown it out of the window onto the lawn where it remained until police collected it later.
At some earlier point, she had taken the tomahawk from you and had thrown it under the bed in her bedroom where it was later found. She said in her evidence that she realised later that you had gone outside to reload the gun. She had stayed in the house to help ML who was, by then, lying on her bed, seriously injured.
Her Honour later said (GD, p 32):
The jury was able to find you guilty of recklessness because you had struggled over the gun in the knowledge of the risk of seriously injuring ML. Putting it another way, the recklessness resided in the struggle.
…
I am not satisfied that the jury, in finding you reckless, decided that the shooting was accidental. They were directed as to the elements of recklessness and were satisfied beyond reasonable doubt that the elements were made out. I find that the shooting was in the mid-range of seriousness.
The maximum penalty for recklessly causing injury is 15 years imprisonment, and for possessing an unregistered general category handgun, seven years for a first offence, which applies as you have no prior convictions for this offence.
As to the seriousness of ML’s injuries, he was admitted to hospital with a gunshot wound to his abdomen and immediately underwent a blood transfusion. His injuries included a large laceration to his liver and a lacerated kidney, a tension pneumothorax and a laceration to his forearm. He underwent surgery during which the bullet, which was partly fragmented, was removed. He had further surgery a few days later to repair a leak in his bile system from the site of the injury to his liver. There were further complications during his recovery including significant pain requiring extensive analgesic medication, periods of agitation and drowsiness, and internal infection and a blood clot or DVT. The medical reports which were tendered, show he was discharged on [redacted].
Her Honour then discussed HKDM’s personal history and the possibility of deportation, given he was a non-citizen. She then said (GD, p 36):
Your prospects of rehabilitation are difficult to assess. On the one hand, you were convicted of very serious offending more than 40 years ago. On the other hand, you completed your parole and have lived quietly ever since with only minor offending almost ten years ago.
My conclusion is that those prospects must be somewhat guarded and specific deterrence remains as part of the sentencing exercise. Clearly, general deterrence is of great importance, particularly given the use of a firearm.
It is clear that the Applicant has a history stretching back almost sixty years of three instances of serious offending against others involving the use of firearms. The Tribunal must also take into account the fact that in the case of the Manslaughter and Murder convictions, in the aftermath of those convictions, the Immigration Department considered deportation of the Applicant and decided against it.
However, putting to one side the long periods of time HKDM has been incarcerated, there are also long periods, amounting in total to around 30 years, where he has lived quietly in Australia and, on the face of it, generally abiding by the law. His advancing age, however, did not prevent him committing a serious offence against a person when he was aged 76, again involving a firearm and, as outlined in detail above, causing that person serious injury.
Paragraph 8.1.1(1)(d) requires the Tribunal to consider the frequency of the offending or whether there is any trend of increasing seriousness. A survey of HKDM’s complete criminal history reveals a large number of petty crimes, one crime involving discharge of a firearm which would fairly be put into the category of a relatively serious offence, and three very serious offences, including murder. There has been, overall since 1958, relatively frequent offending when HKDM has been at liberty, albeit also since around 1981 long periods of no offending. The Tribunal does not make a finding that there has been a trend of increasing seriousness.
Paragraph 8.1.1(2)(e) requires the Tribunal to consider the cumulative effect of repeat offending. There has been a cumulative effect of relatively regular, if sporadic, offending.
Paragraph 8.1.1(2)(f) requires the Tribunal to consider whether the Applicant has provided any false or misleading information to the Department, including by not disclosing prior criminal offending. There is no evidence of this.
Paragraph 8.1.1(2)(g) of the Direction requires the Tribunal to consider whether the non-citizen has re-offended after being warned by the Department or otherwise made aware in writing of the consequences of further offending on the person’s migration status. There is evidence in the National Archives files of at least one warning being personally issued to HKDM by Department officers that further criminal offending may affect his immigration status in Australia.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
The Direction states that 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. The Direction states that some conduct and the harm that would be caused by it, if it were repeated, is so serious that any risk that it may be repeated is unacceptable.
Paragraph 8.1.2 of the Direction requires the Tribunal to have regard to the nature of harm to individuals or the community should the non-citizen engage in further criminal or other serious conduct, and the likelihood of engaging in further criminal or other serious conduct.
There is no formal risk assessment relating to HKDM before the Tribunal. The Tribunal must therefore come to its own conclusions about his risk of recidivism on the papers before it.
What has been a characteristic of the most serious offending of HKDM is the use of firearms. The last gun that the Applicant possessed, which was used to injure ML, was seized by the police and in his statement HKDM said that he no longer has a firearm and does not intend to acquire one. Section 5 of the Firearms Act 1996 (Vic) (‘Firearms Act’) provides that a ‘prohibited person’ must not possess, carry or use a firearm. The definition of ‘prohibited person’ is found at cl. 3(a)(i) of the Firearms Act as meaning, inter alia, a person who is serving a term of imprisonment for an indictable offence. In addition, at cl. 3(a)(iv) of that Act, the prohibition continues until not more than 15 years have expired since the person finished serving a sentence of five years or more for such an offence. HKDM’s sentence was determined to conclude on 30 November 2021, which was adjusted to 18 November 2021. He was then taken into immigration detention. Therefore, he is a prohibited person under the Firearms Act until 17 November 2036.
With the background of his more serious offending, it is difficult to be definitive about the nature of harm to individuals or the Australian community should the Applicant re-offend. He says he has no intention of acquiring a firearm. If he were to obtain a firearm, his past conduct illustrates that he can act violently when intoxicated, and that would create a significant risk to the Australian community. However, if not, his age and infirmity is such that he poses a very low risk to anyone of re-offending. His serious offending has been sporadic and lends support to historical assessments that his behaviour could be irrational and unstable. But as Judge Wilmoth remarked, the 2016 offending, while very serious, was an isolated example after years of relatively quiet living by HKDM. He did not engage in any serious criminal conduct in the period from being released from prison in 1990 to 2016, a period of some 26 years.
Ultimately, the Tribunal is required by the Direction to draw its own conclusions about risk of re-offending. The prison incident reports in evidence and other reports record that his conduct when in prison had been that of a model prisoner. There are a number of reports describing HKDM as an ‘introvert’. In his own statements he says he kept himself to himself when incarcerated. There is a recent incident in detention where he had an altercation with a supervisor, which indicates to me that HKDM has a short fuse and, possibly, difficulty managing his own anger. That demeanour was also on display during this hearing.
The Applicant, in his statement of 9 September 2023 (A12) stated:
…I am well aware of the gravity of my past offenses [sic] that led to my imprisonment and subsequent detention. I acknowledge the pain and harm my actions may have caused to others and the community at large. My past actions were undeniably influenced by a long history of alcohol abuse, which I initiated at a very young age. The negative impact of this addiction has been a persistent theme throughout my life, and I deeply regret the harm it has caused.
…
My most recent prison sentence has afforded me time for deep reflection on the choices I have made and the lives I have affected. It has instilled a profound sense of remorse and sadness for my history of offending. This period of incarceration has had a salutary effect on me, and I am now committed to living a life free from the destructive influence of alcohol. I am determined to maintain my sobriety and make amends to the best of my ability.
I want to make it clear that, at my age and with my deteriorating health, I do not pose any threat or risk to the community. My entire life has been deeply intertwined with Australia, a country I arrived in at a young age. I wish to spend my final years here and ultimately to be laid to rest alongside my beloved mother. Deportation would be a devastating and cruel outcome for me, one that would strip me of the opportunity to make amends, find meaning, and spend my remaining days with purpose.
Allowing for the fact that this statement was dictated by the Applicant and written with assistance from another detainee, it contains content which indicates that HKDM still does not appreciate the gravity of the totality of his offending. He says that he acknowledges the pain and harm that his actions ‘may’ have caused to others. And yet HKDM knows that he was directly responsible for the deaths of two men, and significant injuries to a third man. The statement appears to attribute his criminal conduct to the abuse of alcohol. The sentencing remarks show that factor plainly played a part in the Manslaughter conviction and the most recent Recklessly causing serious injury conviction, but it is not apparent on the papers before the Tribunal as an element in HKDM’s many other offences. However, the Tribunal accepts that this statement does contain expressions of remorse, which might have been teased out had the Applicant continued with cross-examination.
The Respondent submitted, and the Tribunal accepts, that there is no evidence from HKDM that he has ever sought help with any alcohol abuse challenges he may have had, and there is nothing other than his bald statement that he has now disavowed alcohol. That might be an easy assertion to make, in a protective environment such as immigration detention where alcohol is not readily available.
The Tribunal must also take into account the practical effect of the Applicant’s advanced years. He was born in 1940. The medical evidence is that he has had a pacemaker since 2004 because of a complete heart block (both chambers). That pacemaker has been replaced once. He has hypertension, hypercholesterolaemia, cardiomyopathy and some foot problems.
A discharge summary dated November 2020 (A5) records that HKDM had a likely right midbrain stroke at that time. He now walks with the aid of a cane. He reports arthritis and says he is unsteady on his feet following the stroke and, while he can walk without a cane, he generally does not. The Tribunal notes one relatively recent report from prison where HKDM collapsed and vomited blood; he told officers he had found the distance he had to walk too physically challenging.
Pursuant to s 33(1)(c) of the AAT Act, the Tribunal consulted the Australian Bureau of Statistics Life Tables dated 8 November 2022. This document records (in relation to a national assessment):
Life expectancy at birth was 81.3 years for males and 85.4 years for females in 2019-21.

Based on the Life Tables, it would be fair for the Tribunal to conclude that HKDM’s life expectancy is perhaps a few years. His cardiac conditions and recent stroke would seem to be largely a matter of general ageing after what appears to have been a relatively physically active life.
Weighing all the evidence before it, the Tribunal considers that there is some risk of the Applicant re-offending, but a risk that is reduced to an almost negligible level provided HKDM does not gain access to a firearm.
Because of his serious offending history, the Tribunal finds that this primary consideration weighs against the restoration of the visa, but not determinatively.
Primary consideration: Family violence committed by the non-citizen (paragraph 8.2)
The Direction requires the Tribunal to consider whether a non-citizen has been convicted of any offence or had charges proven that involve family violence.
There is no evidence that this primary consideration is engaged, and so it weighs neutrally in this assessment.
Primary consideration: the strength, nature and duration of ties to Australia (paragraph 8.3)
The Direction requires that decision-makers must consider any impact of a decision relating to a non-citizen’s visa on the person’s family members in Australia, where those family members are Australian citizens, Australian permanent residents or people who have the right to remain in Australia indefinitely. The most recent Direction has elevated this consideration to the status of a primary consideration.
HKDM came to Australia in 1956 with his mother and the man who became his stepfather. His stepfather died some years ago and his mother around 2014. His mother became an Australian citizen in 1962 (GD, pp 85-87). HKDM has no siblings and no other relatives in Australia.
The Applicant has been physically in Australia since he first arrived 67 years ago. The movement record before the Tribunal shows, and it was not contested, that he has not left Australia since his first arrival (GD, p 45). He has made some contribution to Australia. He worked in a foundry, as a general labourer including for a Melbourne suburban council, as a roof-tiler and as a dye-caster. He also worked on his own account as an opal miner. The Tribunal therefore finds that he has made some positive contribution to the national economy.
Balancing that, the Applicant has also spent long periods in prison, totalling more than 20 years. The Tribunal does not take into account, in this assessment, the more than two years HKDM has spent in immigration detention because that is an administrative consequence of the cancellation of his visa and part of the reason for the length of time has been the issuance of a flawed notice of cancellation, which then had to be re-issued.
The Applicant’s connexions with the Federal Republic of Germany are tenuous. His birthplace is now within the borders of Poland. He has not been in Germany for almost seventy years. He said that his German language skills are now poor. He wrote in a statement dated 13 September 2023 that, because his mother married a Russian, they did not speak German at home in Australia. In the National Archives files are telegrams requesting details of his German proficiency. I am prepared to accept that his spoken German proficiency is now rudimentary. I think he could probably make himself understood if repatriated but there is no evidence that he would be able to write or read German. His English skills are also poor. The papers before the Tribunal record that while he is fluent in spoken English, he struggles with the written form. Several of his statements were prepared by his legal representatives and, in one case, by a fellow detainee, and read back to him. It may be that his recent stroke has also affected his reading ability.
Around 2014-15 HKDM and Mr JS met through a mutual friend. After HKDM sent him a Christmas card in 2019, Mr JS started coming to visit him in prison. HKDM said he had no friends or family after the death of his mother. In 2020 HKDM asked Mr JS (and his partner) to accept joint appointment as his Enduring Power of Attorney. Mr JS also agreed to be the Applicant’s medical treatment decision maker. HKDM wrote that, “I did this because [I] trusted [Mr JS] to help me sort out my affairs on the outside.”
Evidence of Mr JS
Mr JS adopted statements he had given to the Tribunal (GD, p 131 and A11) and gave oral evidence. He said he has lived in a provincial Victorian town since 1990. He is retired. He was formerly a senior manager in the disability services sector. Mr JS and his partner were jointly appointed first and second powers of attorney for HKDM (GD, p 141).
Mr JS said that, should the Applicant’s visa be restored, he would assist him to buy a house or unit in the provincial town, relatively close to where he lives. Mr JS said that he would link HKDM with local medical practitioners and other health providers that he required. Mr JS said that he and his partner would be able to provide transport for the Applicant to any medical appointments.
Mr JS told the Tribunal that he was at first reluctant to take on the power of attorney role, but realised there was no one else who could assist HKDM while he was incarcerated. HKDM’s house, which he had inherited from his mother, was in a Melbourne suburb. While he was in prison it was occupied by squatters. Mr JS told the Tribunal he went to the house and found it was in disarray. The walls had been kicked in, the ceiling was burnt, the occupants had burnt the neighbours’ fences and had dug up the back yard looking for opals they thought were buried there. Mr JS said that power and water had been cut off because of unpaid bills. The squatters bypassed the power meter and somehow jury-rigged power to the house. They did the same after the water had been cut off. Mr JS said the local water authority told their staff not to visit the house because of the risk of attack.
Mr JS said he visited the neighbours who reported to him that one of the illegal occupants of the house was prostituting herself and the occupants were using drugs, with syringes everywhere. The neighbours were so concerned that they told their grandchildren not to visit them. Mr JS said he contacted the Applicant’s bank and found that squatters had somehow obtained personal details of HKDM and had tried to break into his bank accounts; fortunately they had been blocked by the bank.
Mr JS said the house was so badly damaged that he had to arrange for its demolition. The now vacant block was then sold in December 2021 (R3) and he said the proceeds, a seven-figure sum, are now in a term deposit in the name of HKDM.
Mr JS said that he visited HKDM in prison ‘half a dozen times’ before restrictions on visits were imposed because of the Covid-19 pandemic. He said he had not personally visited the Applicant since he has been in immigration detention but talks to him twice a day on a video-link.
Mr Mak asked Mr JS whether, if HKDM were repatriated, he would be able to continue to maintain contact by electronic means. Mr JS said that the Applicant was very limited in his ability to use technology. He said that he would not be able to assist HKDM in Germany because the power of attorney would not apply. He told the Tribunal his main concern was “HKDM getting scammed. He is vulnerable”.
Mr JS said that he was aware of the 2016 offending by HKDM had when asked whether he was aware of the Applicant’s earlier offending history responded, “I am now”. He said he was still willing to assist HKDM if he remains in Australia.
In response to direct questions from the Tribunal, Mr JS confirmed that he had spoken to HKDM about moving to the provincial town where Mr JS and his partner live, and he was enthusiastic, partly because he enjoys fishing and there would be opportunities for that pastime.
Mr JS said that when he was prevented by the pandemic restrictions from visiting the Applicant in prison, he wrote ‘a lot’ of letters to him. He expressed the view that HKDM ‘struggles with daily life’.
The Tribunal does not necessarily accept Mr JS’s oral evidence that HKDM would be ‘scammed’ if he was deported to Germany. Mr JS, when pressed, agreed that he was speaking hypothetically. However, the Tribunal does note that HKDM’s judgment in recent years has been shown to be poor, in particular his agreeing to invite AS to stay with him. It may have been a kindly gesture, but it was naïve and, as he admitted, quickly led to AS resuming her drug-taking and inviting ML to stay with her in the house. It is reasonable for the Tribunal to conclude that HKDM might be more vulnerable than a younger person if he was in a country with which he was unfamiliar, including in terms of the language, and if others came to know he had significant financial resources. His poor health might also contribute to vulnerability.
Because of the length of time the Applicant has been in Australia, and the lack of ties he has with the country of reference, the Tribunal finds that this primary consideration weighs in favour of restoration of his visa, and relatively strongly so.
Best interests of minor children in Australia affected by the decision (paragraph 8.3)
The Direction requires decision-makers to make a determination as to whether non-revocation is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 years at the time of the decision. Where there are more than two relevant children, the best interests of each should be given individual consideration to the extent that their best interests may differ.
The Applicant does not have any children and there were no submissions from either party that the interests of any minor child in Australia would be affected by a determination on the reviewable decision, either way.
The Tribunal therefore finds that this primary consideration weighs neutrally.
Primary consideration: Expectations of the Australian Community (paragraph 8.5)
Paragraphs 8.5(1) and (2) of the Direction state:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of 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.
…
The Direction highlights specific categories of identified offences: 8.5(2)(a) – acts of family violence; 8.5(2)(c) – commission of serious crimes against, inter alia, women and children, and serious crimes of a violent or sexual nature; 8.5(2)(d) – commission of crimes against government representatives due to the positions they hold, or in the performance of their duties. The only one applicable to HKDM is the commission of serious crimes of a violent nature.
The Australian community’s expectation is taken to be a ‘norm’. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. A superseded version of the Direction contained generally similar wording to paragraph 8.5 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (‘FYBR’). The Court held that it is not for a decision-maker to make a personal assessment of what the ‘expectations’ of the Australian community may be. The expectations articulated in the Direction are ‘deemed’. In other words, they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may endeavour to derive by some other evaluative process.
The current Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’ and acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant, the relative weight will be affected by the circumstances of each individual case.
The Tribunal considers that the weight of the deemed expectations of the community would be against restoration of the visa. The community expectations would no doubt take into account the long period HKDM has been in Australia, without leaving, and also his advanced age. However, he has also committed three very serious and violent crimes (including the worst crime a person can commit against another person) and has twice before been considered for deportation but has been allowed to stay. The committing of a further violent crime, even if reckless, at the age of 76 and where he inflicted serious injuries on his victim would not, in the Tribunal’s view, significantly mitigate the notional community expectation.
The Tribunal finds that this consideration weighs against the restoration of the visa.
Other consideration: Legal consequences of the decision (paragraph 9.1)
The Direction reminds decision-makers to be mindful that unlawful non-citizens are liable for removal from Australia as soon as reasonably practicable (see s 198 of the Act), noting that s 197C(1) of the Act provides that, for the purposes of s 198, it is irrelevant that Australia has non-refoulement obligations in respect of an unlawful non-citizen.
In this case, there is no submission from the parties that Australia has a non-refoulement obligation in relation to HKDM. If he is repatriated, it would be to Germany.
The Tribunal finds that this other consideration is not engaged and therefore weighs neutrally.
Other consideration: Extent of impediments if removed (paragraph 9.2)
The Tribunal must consider the extent of any impediments the Applicant may face if removed from Australia to Germany, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country). The Tribunal must take into account the person’s age and health, any substantial language or cultural barriers and any social, medical, and economic support available to him in Germany.
Age and health
HKDM is towards the end of his natural life. He has a range of health problems which are set out in more detail above. He is likely to have access, as a German national, to what state healthcare would be available to German citizens if he is repatriated. The Respondent submitted that HKDM would be able to obtain access to basic insurance for old age under the Twelfth Social Code (SGBXII) of the German Government and that ‘the German Government will provide the applicant with basic resources for him to live with dignity and participate in society’, citing a European Commission publication on guaranteed minimum resources in Germany (RSFIC, para 38).
The evidence of Mr JS, who holds a power of attorney on behalf of HKDM, is that the Applicant has funds on deposit of just over a seven-figure sum. These funds would be available to him if he is deported, and he could presumably use them to obtain accommodation in Germany and support his daily needs. The fact of the funds may affect what basic state healthcare is available, if the German authorities deem that he can pay for certain services.
Substantial language and cultural barriers
As referred to above, I am satisfied that HKDM has some understanding of oral German, but also that his reading and writing skills in that language have substantially diminished over the long period he has been in Australia. At his age, it would be a challenge to acquire new language skills, particularly in writing. The German culture would not be alien to HKDM because he lived in that country until the age of 16 and has mixed with Germans in Australia, at least for a period on the opal fields. There is reference to him being at a club with a friend with an apparently German name on the night he committed the 2016 offences. However, the Applicant also made submissions himself and by his counsel that he considers himself ‘Australian’ and, because of the long time (some 67 years) he has been resident in this country, the Tribunal accepts that.
The ASFIC submits that HKDM’s father was declared missing during World War II, presumed to have been killed. He was raised principally by his grandmother until the age of 10. His mother was working for the Red Cross during the war, and, at the end of hostilities, she was in West Berlin and he was in the Eastern sector. In 1951 he was able to join his mother and in 1956 they emigrated to Australia. There is no evidence HKDM has any living relatives in Germany.
Social, medical or economic support available in Germany
As referred to above, although the German system of pensions is linked to a recipient having worked for requisite periods in Germany, there is provision for basic support for German nationals who have not otherwise qualified because of time employed. On this evidence and with the personal funds that HKDM has, combined with the proceeds from the sale of his former real estate, some inheritance from his mother and his own savings, the Tribunal concludes that HKDM would have the means to support his daily living expenses if repatriated.
The German State maintains a comprehensive healthcare system based on free or heavily subsidised health care for all. This system is based on compulsory health insurance but there is provision for unemployed and the Tribunal notes there is also provision for private, self-funded healthcare. There is no submission before me from the parties that HKDM would not have access to the same health care as other German citizens if he was repatriated, although he may have to make some payment, given he has not contributed by employment as an adult in that country.
The Tribunal notes Mr JS’s evidence that he considers HKDM is a ‘vulnerable’ person. Evidence that supports that is his naïve willingness to allow a homeless person to lodge in his house, a decision that ultimately led to him having a drug-taking person in his house with her boyfriend and which may have contributed to the 2016 offending and the ultimate destruction of his house during his imprisonment. The Tribunal cannot speculate on HKDM’s motives, but he does appear to be vulnerable to other people taking advantage of him, and as mentioned above, his increasing age and infirmity, and apparent lack of computer literacy, would contribute to that vulnerability.
Overall, while the Tribunal is satisfied that there are supports in the German State which would be available to HKDM if he is deported, his lack of connexion with that country and absence of any personal support network, coupled with his increasing enfeeblement, would present a significant impediment if he was removed.
The Tribunal finds that this other consideration weighs relatively heavily in favour of restoring the visa.
Other consideration: Impact on victims (paragraph 9.3)
The Tribunal interprets this part of the Direction as meaning some evidence of the impact of a non-citizen’s offending on a member of the Australian community in a case where the victim has knowledge of the migration implications for the non-citizen.
In this case there is no evidence of any views of victims of HKDM’s offending. The only reference to a victim impact statement is by the mother of ML, the victim of the Applicant’s conviction for recklessly causing injury, but she makes no reference to HKDM’s migration status in any event.
The Tribunal finds that this other consideration weighs neutrally.
Other consideration: Impact on Australian business interests (para 9.4)
The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501CA would significantly compromise the delivery of a major project or important service in Australia. The Applicant worked in various occupations in Australia: in a sheet metal factory, a foundry, as a roof tiler and general labourer, as a dye-caster, and as an opal miner on his own account. He did not work for significant periods when he was incarcerated. He has been retired for a considerable period and was drawing the age pension before being gaoled.

The Tribunal does not consider that there will be any impact on Australian business interests if the Applicant’s visa remains cancelled or is restored. This consideration, therefore, weighs neutrally.
SUMMATION
In relation to the primary considerations, the Tribunal has found that the primary consideration relating to the protection of the Australian community weighs against revoking the mandatory cancellation of HKDM’s visa. His offending which precipitated the cancellation of his visa was a serious crime against the person, and his past criminal record contains very serious crimes of violence. The risk of him re-offending in the absence of access to a firearm is nonetheless low, probably very low.
In relation to the primary considerations relating to family violence and the best interests of minor children in Australia, the Tribunal has found they weigh neutrally. In relation to the primary consideration relating to the strength, nature and duration of ties to Australia, this consideration weighs strongly in favour of revocation of the mandatory cancellation because of the very long time HKDM has lived in Australia.
In respect of the other considerations, that relating to the legal consequences of the decision weighs neutrally, as do the considerations relating to impact on victims and impact on Australian business interests. The other consideration relating to the extent of impediments if removed weighs relatively strongly in favour of revocation, because of the Applicant’s age and infirmity and lack of any ties with the country of reference, Germany.
The Tribunal must evaluate all the relevant considerations individually and cumulatively. In this case, notwithstanding the terrible nature of HKDM’s criminal history, the Tribunal is satisfied that the primary consideration relating to the strength, nature and duration of ties to Australia is determinative, and that there is another reason under s 501CA(4)(b)(ii) to revoke the mandatory cancellation of his visa. It would be fair to describe the Applicant as irascible. There is evidence of his short temper unrelated to his offending in the papers before the Tribunal, including angry reactions to persons in positions of authority and an altercation late in 2022 with a detention centre supervisor. His conduct during the hearing supports coming to such a conclusion about his nature. However, a significant change that has occurred in relation to HKDM is his stroke in late 2020. That has physically enfeebled him, in a permanent manner.
The Applicant is of advanced age, and there is, in my conclusion, a remote possibility of him committing any further offences, especially with the prohibition on holding any sort of firearm for the next 13 years. In addition, I place significant weight on the evidence of Mr JS who has, altruistically, shown himself (together with his partner) to be beneficial supporter of HKDM through the management of his affairs while he has not been at liberty, and who has mapped out a plan with the Applicant for his remaining years. This plan, in the Tribunal’s opinion, will significantly support the very low risk of HKDM re-offending and provide safe accommodation and daily living aids for HKDM’s remaining lifespan. There is no detriment to Australia, in the Tribunal’s estimation, of HKDM seeing out his last few years in this country.
Having made the decision that there is another reason to revoke the mandatory cancellation of the visa, the consequence is that the reviewable decision must be set aside.
DECISION
Pursuant to s 43(1)(c)(i) of the AAT Act, the Tribunal sets aside the reviewable decision. In substitution therefor the Tribunal finds there is another reason under s 501CA(4)(b)(ii) of the Migration Act 1958 to revoke the mandatory cancellation of the Applicant’s visa.

I certify that the preceding 137 (One-hundred and thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

.................................[SGD].......................................
Associate
Dated: 9 October 2023

Date of hearing:

26 September and 4 October 2023

Applicant:

HKDM

Counsel for the Applicant

Solicitors for the Applicant

Ms Tanya Skvortsova

Abode Migration

Advocate for the Respondent:

Mr Stanley Mak

Solicitors for the Respondent:

The Australian Government Solicitor

ANNEXURE TO REASONS FOR DECISION
Schedule of Exhibits
Volume of ‘GD’ documents, lodged 11 August 2023  Exhibit R1
Volume of supplementary ‘SGD’ documents, lodged 21 September 2023   Exhibit R2
Real estate website listing for a lot in suburb of Melbourne  Exhibit R3
Statement of the Applicant, dated 13 July 2023  Exhibit A1
Letter of Mr JS with two letters from Federal Member for Gippsland           Exhibit A2
Prisoner indent records as at June 2020  Exhibit A3
Echocardiogram report, dated 5 November 2020  Exhibit A4
Medical discharge summary, dated 5 November 2020  Exhibit A5
Medical discharge summary, dated 9 November 2020  Exhibit A6
Transfer to Hospital summary, dated 14 November 2020  Exhibit A7
Echocardiogram, St Vincent’s Cardiology, 10 June 2021  Exhibit A8
Referrals summary, June-October 2021  Exhibit A9
Prison Incident reports  Exhibit A10
Statement of Mr JS, dated 11 September 2023  Exhibit A11
Statement of the Applicant, dated 9 September 2023  Exhibit A12

[2023] AATA 3193

9 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Remedies

Statutory Construction

Date of hearing:	26 September and 4 October 2023
Applicant:	HKDM
Counsel for the Applicant Solicitors for the Applicant	Ms Tanya Skvortsova Abode Migration
Advocate for the Respondent:	Mr Stanley Mak
Solicitors for the Respondent:	The Australian Government Solicitor