HWYY and Minister for Home Affairs (Migration)

[2018] AATA 4602

HWYY and Minister for Home Affairs (Migration) [2018] AATA 4602 (13 December 2018)

Division:GENERAL DIVISION

File Number:2018/5547           

Re:HWYY  

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr M Evans

Date:13 December 2018

Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 18 September 2018 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.

...............[sgd]........................................................

Senior Member Dr M Evans

CATCHWORDS

Migration – decision not to revoke mandatory cancellation of visa – character test – substantial criminal record – Ministerial Direction no. 65 – primary and other considerations – international non-refoulement obligations – protection of the Australian community – best interests of minor children – expectations of the Australian community – nature and seriousness of criminal offending – risk of engaging in future criminal conduct – strength, nature and duration of ties to Australia – Applicant in Australia since three months old and has not returned to New Zealand - extent of impediments if returned to New Zealand – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – s 43

Migration Act 1958

(Cth) – s 195A, s 499, s 499(1), s 499(2A), s 500(1)(ba), s 500(6B),
s 500(6L), s 501, s 501(3A), s 501(6), s 501(7), s 501(7A), s 501CA, s 501CA(4),
s 501E(2), s 501G(1)

CASES

Afu and Minister for Home Affairs [2018] FCA 1311

Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513; FCAFC 83

BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456; FCAFC 96
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CFVG and Minister for Immigration and Border Protection [2017] AATA 1395
Griffiths v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 249
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HSKJ and Minister for Immigration and Border Protection [2017] AATA 1802
JNMK and Minister for Immigration and Border Protection [2018] AATA 971
Le and Minister for Home Affairs [2018] AATA 4126
MAH and Minister for Immigration and Border Protection [2018] AATA 416
Minister for Immigration and Multicultural and Indigenous Affairs v Griffiths [2004] FCAFC 22
NBCM and Minister for Home Affairs [2018] AATA 2387
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
QSBL and Minister for Home Affairs [2018] AATA 2074
Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Re Ly and Minister for Immigration and Multicultural Affairs  [2000] AATA 339
Smit Romero and Minister for Immigration and Citizenship [2010] AATA 196
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117
XFKR and Minister for Immigration and Border Protection [2017] AATA 2385
ZTGP and Minister for Home Affairs [2018] AATA 3518

SECONDARY MATERIALS

“Freedom through Growth”, People at Risk Solutions, New Zealand, for Immigration and Border Protection, Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Department of Immigration and Border Protection, 22 December 2014) – paras 6.1, 6.2, 6.3, 7, 8, 13, 13.1, 13.1.1, 13.1.2, 13.2, 13.3, 14, 14.1, 14.2, 14.3, 14.4, 14.5, Part C
1951 Convention Relating to the Status of Refugees as Amended by the 1967 Protocol – Art 33(1)

REASONS FOR DECISION

Senior Member Dr M Evans

13 December 2018

BACKGROUND

1. The Applicant is a 24 year old man who is a citizen of New Zealand. He arrived in Australia on 23 February 1995 when he was three months old as the holder of a Class TY Subclass 444 Special Category (Temporary) Visa (the visa) (G11, page 41).

2. He has lived in Australia continuously and has not departed Australia since his arrival (G11, page 41).

3. The Applicant committed 40 offences as a juvenile between 22 May 2008 and 9 February 2011 (G20, pages 140-144). As an adult he committed a further 23 offences between 10 May 2013 and 8 February 2018 (G6, pages 25-27).

4. On 27 November 2015 the Applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Migration Act) and he was invited to make representations to the Minister about revocation of the original decision (G12). The Applicant was advised by the Department of Immigration and Border Protection in a letter dated 29 April 2016, that after considering his representations, a delegate of the Minister had decided to revoke the first cancellation decision (G15, page 75).

5. Further, in this letter the Applicant was given the following formal warning (G15, page 75):

   Please note: the decision to revoke the original decision does not mean that you cannot be reconsidered for cancellation on character grounds in the future in the event of further criminal offending by you.

6. On 28 February 2018 the Applicant’s visa was cancelled by a delegate of the Minister again on the basis that he did not pass the character test under s 501(3A) of the Migration Act (G12, page 42).

7. This was because the Applicant had a “substantial criminal record” within the meaning of

   
   

   s 501(6)(a) of the Migration Act (on the basis of s 501(7)(c) of the Migration Act) because he had been convicted of aggravated burglary for which he received a sentence of 12 months imprisonment on 21 October 2015. The Tribunal notes that the Applicant was also convicted of eight other offences on 21 October 2015 (G6, page 26). He received no penalty for two of these offences and concurrent terms of imprisonment for the remaining six offences.

8. Additionally, the delegate noted that at the time of the delegate’s decision, the Applicant was serving a full-time sentence of imprisonment which included a term of nine months for “[t]hreats to injure, endanger or harm any person” for which he was convicted on 8 February 2017 (G12, page 43).

9. Although not noted by the delegate, at the same time that the Applicant was convicted of “[t]hreats to injure, endanger or harm any person” on 8 February 2018, he was also convicted of the following offences for which he received concurrent and cumulative sentences resulting in an effective sentence of 15 months (G6, page 25-26; G20, page 137-138):

   (a)breach of bail undertaking;

   (b)carried (possessed) an article with intent to cause fear;

   (c)cause poison to be administered;

   (d)common assault in circumstances of aggravation or racial aggravation;

   (e)criminal damage or destruction of property;

   (f)disorderly behaviour in public;

   (g)possess a prohibited drug (cannabis); and

   (h)possess a prohibited weapon.

10. The Applicant was invited to make representations, which he did on 7 March 2018 (G4, page 51). These were summarised by the delegate as follows (G4, page 15):

    ·The best interests of his daughter and stepdaughter, who are Australian citizens

    ·His lengthy residence of 23 years in Australia

    ·The presence of family in Australia, including his partner, parents and siblings

    ·His contributions to the community through employment

    ·His remorse for his offending and the efforts he has made towards rehabilitation

    ·His fears of harm to his life if he is removed to New Zealand, and

    ·The hardship he would face on return to his home country.

11. After considering these representations, on 18 September 2018 a delegate of the Respondent decided not to revoke the mandatory cancellation decision of the Applicant’s visa (the Reviewable Decision) (G3, page 13).  

12. The Reviewable Decision was hand-delivered to the Applicant, in immigration detention, on 20 September 2018 (G22, page 153-155).

13. On 25 September 2018 the Applicant lodged an application for review of the Reviewable Decision in the General Division of the Administrative Appeals Tribunal (the Tribunal) (G1, page 1).

14. A decision must be made by the Tribunal within the period of 84 days after the day on which the Applicant was notified of the Reviewable Decision, the date by which the Tribunal must make a decision being 13 December 2018. If the Tribunal does not deliver a decision by this time, the Reviewable Decision will be taken to be affirmed under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (pursuant to s 500(6L) of the Migration Act).

    ISSUES

15. The issues for determination by this Tribunal are:

    (a)whether the Applicant passes the character test as defined by s 501(6) of the Migration Act; and

    (b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the mandatory cancellation decision (that is, the Reviewable Decision) should be revoked (see s 501CA(4) of the Migration Act), having regard to the primary and other considerations in Ministerial Direction no. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction no. 65).

    JURISDICTION

16. This application is made pursuant to s 500(1)(ba) of the Migration Act. This section allows applications to be made to the Tribunal for review of decisions of a delegate of the Respondent under s 501CA(4) of the Migration Act not to revoke a decision to cancel a visa.

17. As noted above, the Reviewable Decision of 18 September 2018 was communicated to the Applicant on 20 September 2018 and he lodged his application for review on 25 September 2018. The Applicant is in immigration detention and is in the migration zone. He therefore lodged his application for review by the Tribunal within the nine day period after he received the decision in accordance with s 501G(1) and s 500(6B) of the Migration Act.

18. The Tribunal is therefore satisfied that the application was lodged within time and that the Tribunal has jurisdiction to review the Reviewable Decision.

    MATERIAL BEFORE THE TRIBUNAL

19. The application was originally listed for a hearing on Thursday 22 November 2018. However, on the day of the hearing, immediately before its commencement, the Tribunal was informed that the Applicant had legal representation and that his legal representative required further time to take instructions and prepare for the hearing.

20. The Tribunal vacated the hearing and re-listed the hearing for Friday 7 December 2018. This late scheduling was required to accommodate the availability of both the Applicant and the Respondent’s legal representatives. Although the date of the hearing (7 December 2018) was very close to the date by which the Tribunal must deliver its decision (13 December 2018), the Tribunal was of the opinion that procedural fairness for the Applicant would be best achieved if he were legally represented at the hearing.

21. At the hearing on Friday 7 December 2018, the Applicant attended in person. He was represented by Mr Kristopher from Morris, Alexander and Nelson Barristers and Solicitors.

22. The Respondent was represented by Mr Gerrard from the Australian Government Solicitor who appeared in person.

23. The Applicant, as well as his mother and 20 year old sister, gave evidence and were cross-examined.

24. The Tribunal admitted the following documents into evidence:

    (a)Letter of support from the Applicant’s 20 year old sister, undated, received by the Tribunal on 30 October 2018 (Exhibit A1);

    (b)two letters of support from a friend of the Applicant’s family, who is also the defacto partner of the Applicant’s mother, “the Family Friend”, dated 7 March 2018 and 24 October 2018 (Exhibit A2);

    (c)A letter of support from the Applicant’s mother, dated 28 October 2018 in her capacity as a former employer of the Applicant (Exhibit A3);

    (d)two further letters of support from the Applicant’s mother, the first dated 7 March 2018, and the second is undated, but received by the Tribunal on 13 November 2018. In her evidence to the Tribunal at the hearing, the Applicant’s mother did not recognise this second letter, so the Tribunal did not take it into account (Exhibit A4);

    (e)Written submissions prepared and filed on behalf of the Applicant by his legal representative, dated 3 December 2018 (Exhibit A5);

    (f)the s 501 Documents (G documents) from G1 to G22 (Exhibit R1);

    (g)the Supplementary s 501 Documents (Supplementary G Documents) from SG1 to SG10 (Exhibit R2); and

    (h)the Statement of Facts, Issues and Contentions of the Respondent, dated 25 October 2018 (Exhibit R3).

    LEGISLATIVE FRAMEWORK

25. Section 501(3A) of the Migration Act provides that:

    (3A)The Minister must cancel a visa that has been granted to a person if:

    (a)the Minister is satisfied that the person does not pass the character test because of the operation of:

    (i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

    (ii)    paragraph (6)(e) (sexually based offences involving a child); and

    (b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

26. Section 501(6) of the Migration Act provides that:

    (6)For the purposes of this section, a person does not pass the character test if:

    (c)

    the person has a substantial criminal record (as defined by

    
    

    subsection (7)…

    (Original emphasis.)

27. A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:

    (7)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

    (d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more…

    (Original emphasis.)

28. Section 501(7A) of the Migration Act provides clarification for when a person is sentenced to concurrent sentences of imprisonment:

    (7A) For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.

29. Section 501CA of the Migration Act further provides:

    (1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

    (2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:

    (a)would be the reason, or a part of the reason, for making the original decision; and

    (b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

    (3)As soon as practicable after making the original decision, the Minister must:

    (a)give the person, in the way that the Minister considers appropriate in the circumstances:

    (i)     a written notice that sets out the original decision; and

    (ii)    particulars of the relevant information; and

    (b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

    (4)The Minister may revoke the original decision if:

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

    (b)the Minister is satisfied:

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

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

    (Original emphasis.)

    MINISTERIAL DIRECTION NO. 65

30. Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:

    (1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

    (a)the performance of those functions; or

    (b)the exercise of those powers.

31. Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1).” 

32. On 22 December 2014, the Minister for Immigration and Border Protection made a direction under s 499 of the Migration Act, being Direction no. 65.

33. Paragraph 6.1 of Direction no. 65 sets out the Objectives of the Migration Act, with paragraph 6.1(3) of Direction no. 65 being relevant to the Reviewable Decision which is currently before the Tribunal:

    (3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

34. Paragraph 6.2 of Direction no. 65 provides general guidance as follows:

    (1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

    (2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.

    (3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

35. Paragraph 6.3 of Direction no. 65 sets out principles which must be taken into account by persons making decisions under s 501CA(4) of the Migration Act, including the Tribunal:

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

    (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5)Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

1. Informed by the principles set out in paragraph 6.3 of Direction no. 65, the decision-maker (in this case the Tribunal) must take into account the primary considerations in Part C of Direction no. 65, with regard to the specific circumstances of the case, when a person’s visa has been cancelled under s 501(3A) of the Migration Act (paragraph 13(1) of Direction no. 65). Specifically, paragraph 13(2) in Part C of Direction no. 65 provides:

   (2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:

   a)Protection of the Australian community from criminal or other serious conduct;

   b)The best interests of minor children in Australia;

   c)Expectations of the Australian community.

2. Paragraph 14 in Part C of Direction no. 65 lists other considerations as follows:

   (1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

   a)International non-refoulement obligations;

   b)Strength, nature and duration of ties;

   c)Impact on Australian business interests;

   d)Impact on victims;

   e)Extent of impediments if removed.

3. Paragraph 7(1)(b) of Direction no. 65 outlines how a decision-maker is to exercise discretion:

   (1)Informed by the principles in paragraph 6.3 above, a decision-maker:

   a)…

   b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.

4. Further guidance as to how a decision-maker is to apply the considerations in Direction no. 65 can be found in paragraph 8 of Direction no. 65 which provides:

   (1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non­citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

   (2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

   (3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

   (4)Primary considerations should generally be given greater weight than the other considerations.

   (5)One or more primary considerations may outweigh other primary considerations.

   DOES THE APPLICANT PASS THE CHARACTER TEST?

5. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.

6. A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act) or if they have been “sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more” (s 501(7)(d) of the Migration Act).

7. As noted above, on 8 February 2018, the Applicant was convicted in the Perth Magistrate’s Court of nine offences, including the offence of “threats to injure, endanger or harm any person” for which he received concurrent and cumulative sentences of  imprisonment totalling 24 months, with a total effective sentence of 15 months (G20, page 137-138). Consequently, the Applicant does not pass the character test pursuant to

   
   

   s 501(6)(a) and s 501(7)(d) of the Migration Act.

8. The Applicant was previously sentenced to an effective term of 12 months imprisonment, together with concurrent terms of imprisonment totalling 30 months, on 21 October 2015 for aggravated burglary and eight other offences (G20, page 138-139). Therefore, the Applicant does not pass the character test pursuant to s 501(6)(a) and s 501(7)(c) of the Migration Act.

9. The Applicant did not contest that he did not pass the character test but rather that there was “another reason” why the Reviewable Decision should be revoked. These submissions are considered under the relevant primary and other considerations below.

   IS THE TRIBUNAL SATISFIED THAT THERE IS ANOTHER REASON WHY THE REVIEWABLE DECISION SHOULD BE REVOKED?

   First primary consideration: Protection of the Australian Community (13.1)

10. Paragraph 13.1(1) of Direction no. 65 provides that when decision-makers are considering the protection of the Australia community they:

    … should have regard to the principle 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 non­citizens 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…

11. Decision-makers should also give consideration to the following (paragraph 13.1(2) of Direction no. 65):

    (2)Decision-makers should also give consideration to:

    a)The nature and seriousness of the non-citizen’s conduct to date; and

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

    Nature and seriousness of the conduct (13.1.1(1))

12. Paragraph 13.1.1(1) of Direction no. 65 further provides:

    (1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

    a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

    b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

    c)The sentence imposed by the courts for a crime or crimes;

    d)The frequency of the non-citizen’s offending and 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);

    h)Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act;

13. To date, the Applicant has a Court Outcomes History comprising 23 offences as an adult and 40 offences as a juvenile over a ten year period (G20, pages 141-144). The date of his first offence of “common assault” was 22 May 2008. He was convicted of this offence in the Mandurah Children’s Court on 1 December 2008. His first offences as an adult, “burglary” and “steal motor vehicle”, were committed on 19 February 2013 and he was convicted of these offences in the Mandurah Magistrates Court on 10 May 2013. His most recent offence was “possess a prohibited drug (cannabis)” on 10 December 2016.  

14. The Applicant’s “Adult History for Court – Criminal and Traffic” shows a range of offending behaviour including convictions for assault, threats to injure, possession of a prohibited weapon, burglary and aggravated burglary, stealing, possession of a prohibited drug, and breaches of court imposed orders (G20). It comprises the following offences (G20, pages 137-139):

Court	Court Date	Offence	Court Result
Adult offences
Perth Magistrates Court	08-FEB-2018	Breach of Bail Undertaking; Bail Act 1982; 51(1)	Imprisonment: 1 Months concurrent from 10-Dec-2016 - Concurrent
Carried (possessed an article with intent to cause fear that someone; Weapons Act 1999; 8 (1)(b)	Imprisonment: 1 Months concurrent from 10-Dec-2016 - Concurrent
Cause Poison to be Administered; Criminal Code (WA); 301(2)	Imprisonment: 6 Months cumulative from 10-Dec-2016 - Cumulative
Common Assault in Circumstances of Aggravation or racial Aggravation; Criminal Code (WA); 313(1)(a)	Imprisonment: 3 Months concurrent from 10-Dec-2016 - Concurrent
Criminal Damage or Destruction of Property; Criminal Code (WA); 444(1)(b)A	Imprisonment: 1 Months concurrent from 10-Dec-2016 - Concurrent
Disorderly behaviour in public; Criminal Code (WA); 74A(2)(a)	Imprisonment: 1 Months concurrent from 10-Dec-2016 - Concurrent
Possess a Prohibited Drug (Cannabis); Misuse of Drugs Act 1981; 6(2)B	Imprisonment: 1 Months concurrent from 10-Dec-2016 - Concurrent
Possessed a prohibited weapon; Weapons Act 1999; 6(1)(b)B	Imprisonment: 1 Months concurrent from 10-Dec-2016 - Concurrent
Threats to injure, endanger or harm any person; Criminal Code (WA); 338B(b)A	Imprisonment: 9 Months cumulative from 10-Dec-2016 - Cumulative
Perth Magistrates Court	21-OCT-2015	Aggravated Burglary and Commit Offence in Dwelling; Criminal Code (WA); S. 401(2)(a)	Imprisonment: 12 MTHS CONC [Months Concurrent] from 22.05.2015
Breach of Bail Undertaking; Bail Act 1982; S. 51(1)	Imprisonment: 2 MTHS CONC from 22.05.2015
Common Assault; Criminal Code (WA); S. 313(1)(b)	Imprisonment: 4 MTHS CONC from 22.05.2015
Person who breaches CRO [Conditional Release Order] or community order without reasonable excuse; Sentencing Act 1995; S. 131(1)	Imprisonment: 9 MTHS CONC from 22.05.2015
Person who breaches CRO or community order without reasonable excuse; Sentencing Act 1995; S. 131(1)	Imprisonment: 6 MTHS CONC from 22.05.2015
Person who breaches CRO or community order without reasonable excuse; Sentencing Act 1995; S. 131(1)	Imprisonment: 9 MTHS CONC from 22.05.2015
Person who breaches CRO or community order without reasonable excuse; Sentencing Act 1995; S. 131(1)	No Penalty S. 11
Stealing; Criminal Code (WA); S. 378	No Penalty S. 11
Threats to injure, endanger or harm any person; Criminal Code (WA); S. 338B(b)	Imprisonment: 4 MTHS CONC from 22.05.2015
Perth Magistrates Court	16-JAN-2015	Possess a prohibited drug namely dexamphetamine; Misuse of Drugs Act 1981; 6(2)AF	Fine: $300.
Mandurah Magistrates Court	11-OCT-2013	Burglary and Commit Offence in Dwelling; Criminal Code; 401(2)(b)	Comm [Community] Based Order: 12 Months concurrent from 11-OCT-2013
Stealing; Criminal Code (WA); 378	Community Based Order: 12 Months concurrent from 11-OCT-2013
Mandurah Magistrates Court	10-MAY-2013	Burglary, In The Place Of Another Person W/Out [without] Consent; Criminal Code (WA); 401(2)A	Community Based Order: 12 Months concurrent from 10-MAY-2013
Steal Motor Vehicle (as defined in section 371A); Criminal Code (WA); 378A	Community Based Order: 12 Months concurrent from 10-MAY-2013

1. The Applicant’s juvenile history comprises the following offences (G20, pages 140-144):

Court	Court Date		Offence	Court Result
Juvenile offences
Mandurah Children’s Court		14-MAR-2011	Aggravated Burglary with intent in Dwelling; Criminal Code; 401(1)(a)	Youth Cond Rel [Conditional Release]: 6 MTHS concurrent  from 14.3.11
Breach of IYSO [Intensive Youth Supervision Order] (Order of 2.7.10)	Youth Cond Rel: 6 MTHS concurrent  from 14.3.11
Breach of Intensive Youth Supervision Order of 28-Jul-2010	No Punish - S 67: Time spent on remand in custody.
Breach of Intensive Youth Supervision Order of 28-Jul-2010	No Punish - S 67: Time spent on remand in custody.
Burglary with intent in Dwelling; Criminal Code; S. 401(1)(b)	Youth Cond Rel: 6 MTHS concurrent  from 14.3.11
Escaping from lawful custody; Criminal Code; S. 146	Youth Cond Rel: 6 MTHS concurrent  from 14.3.11
Mandurah Children’s Court		22-NOV-2010	Obstructing public officers; Criminal Code (WA); 172(2)	Community Work: 18 HRS CUM [Hours Cumulative] YCBO [Youth Community Based Order]
Mandurah Children’s Court		25-NOV-2015	Threats to injure, endanger or harm any person; Criminal Code (WA); 338B(b)A	No Punish - s 67
Perth Children’s Court		28-JUL-2010	Aggravated Robbery; Criminal Code (WA); 392(d)	IYSO: 6 Months concurrent from 28-JUL-2010
Breach of Youth Community Based Order of 10-MAY-2010	IYSO: 6 Months concurrent from 28-JUL-2010
Common Assault; Criminal Code (WA); 313(1)(b)	IYSO: 6 Months concurrent from 28-JUL-2010
Possess a Smoking Utensil used for smoking prohibited drug; Misuse of Drugs Act 1981; 5(1)(d)(i)	IYSO: 6 Months concurrent from 28-JUL-2010
Possess utensil in connection with manufacture/preparation of prohibited drug/plant; Misuse of Drugs Act 1981; 5(1)(d)(ii)	IYSO: 6 Months concurrent from 28-JUL-2010
Stealing; Criminal Code (WA); 378	IYSO: 6 Months concurrent from 28-JUL-2010
Stealing; Criminal Code (WA); 378	IYSO: 6 Months concurrent from 28-JUL-2010
Wilfully & unlawfully destroy or damage property; Criminal Code (WA); 444(1)(b)	IYSO: 6 Months concurrent from 28-JUL-2010
Mandurah Children’s Court		10-MAY-2010	Breach of Bail Undertaking; Bail Act 1982; 51(1)	YCBO: 3 Months concurrent from 10-MAY-2010
Stealing; Criminal Code (WA); 378	YCBO: 3 Months concurrent from 10-MAY-2010
Mandurah Children’s Court		12-APR-2010	Aggravated Burglary and Commit Offence in Dwelling; Criminal Code (WA); 401(2)(a)L	YCBO: 3 Months concurrent from 12-APR-2010
Common Assault; Criminal Code (WA); 313(1)(b)	YCBO: 3 Months concurrent from 12-APR-2010
Stealing; Criminal Code (WA); 378	YCBO: 3 Months concurrent from 12-APR-2010
Mandurah Children’s Court		15-MAR-2010	Without lawful excuse trespassed on a place; Criminal Code (WA); 70A(2)	YCBO: 3 Months concurrent from 15-MAR-2010
Rockingham Children’s Court		20-JAN-2010	Breach of Youth Community Based Order of 03-AUG-2009	YCBO: 6 Months concurrent from 20-Jun-2010
Mandurah Children’s Court		03-AUG-2009	Common Assault; Criminal Code; S. 313(1)(b)	Community Work: 15 HRS YCBO: 6 HRS (supvsn [supervision])
Disorderly behaviour in public place; Criminal Code (WA); 74A(2)(a)	Community Work: 15 HRS YCBO: 6 HRS (supvsn)
Threats to injure, endanger or harm any person; Criminal Code; S. 338B(b)	Community Work: 15 HRS YCBO: 6 HRS (supvsn)
Mandurah Children’s Court		01-DEC-2008	Aggravated Burglary and Commit Offence in Dwelling; Criminal Code; S. 401(2)(a)	Community Work: 42 HRS IYSO: 6 MTHS
Aggravated Burglary and Commit Offence in Dwelling; Criminal Code; S. 401(2)(a)	Community Work: 42 HRS IYSO: 6 MTHS
Aggravated Burglary and Commit Offence in Dwelling; Criminal Code; S. 401(2)(a)	Community Work: 42 HRS IYSO: 6 MTHS
Aggravated Burglary and Commit Offence in Dwelling; Criminal Code; S. 401(2)(a)	Community Work: 42 HRS IYSO: 6 MTHS
Aggravated Burglary with intent in Dwelling; Criminal Code; S. 401(1)(a)	Community Work: 42 HRS IYSO: 6 MTHS
Common Assault; Criminal Code; S. 313(1)(b)	Community Work: 42 HRS IYSO: 6 MTHS
Common Assault; Criminal Code; S. 313(1)(b)	Community Work: 42 HRS IYSO: 6 MTHS
Common Assault; Criminal Code; S. 313(1)(b)	Community Work: 42 HRS IYSO: 6 MTHS
Common Assault; Criminal Code; S. 313(1)(b)	Community Work: 42 HRS IYSO: 6 MTHS
Stealing; Criminal Code; S. 378	Community Work: 42 HRS IYSO: 6 MTHS
Stealing; Criminal Code; S. 378	Community Work: 42 HRS IYSO: 6 MTHS
Stealing; Criminal Code; S. 378	Community Work: 42 HRS IYSO: 6 MTHS
Stealing; Criminal Code; S. 378	Community Work: 42 HRS IYSO: 6 MTHS
Stealing; Criminal Code; S. 378	Community Work: 42 HRS IYSO: 6 MTHS

1. In considering the nature and seriousness of the Applicant’s criminal conduct to date, the Tribunal notes the Applicant’s convictions as an adult for the offences of common assault (21 October 2015), common assault in circumstances of aggravation, cause poison to be administered, possess a prohibited weapon and carried (possessed) an article with intent to cause fear (8 February 2018). There are also offences for threats to injure, endanger or harm (2018 and 2015). Applying Direction no. 65, as these are offences involving violence, or threats of violence, and weapons, the Tribunal views them very seriously (paragraph 13.1.1(1)(a) of Direction no. 65).

2. Deputy Chief Magistrate Woods made the following comments when sentencing the Applicant on 8 February 2018 which illustrate the serious nature of the Applicant’s offending (G7, page 29):

   Mr [Applicant], in relation to these matters, obviously, the circumstances surrounding the commission of these offences are serious. It relates to a domestic relationship that you are in and also there were – there was a young child present at the time of the offending which, obviously, escalates the seriousness…

   … [T]he threats to injure, as the facts have been read to the court, fall to the higher end of the scale of that time of offending. In relation to the matters you’ve also entered a plea of guilty, although there is not much benefit in the plea of guilty because it is at such a late stage and the witnesses already prepared for the trial and they refer to that in the victim impact statement.

   … There is the one group of charges from Mandurah, 645455 and 56 and then the other group are more serious charges which include the common assault and the threats to injure which relate to your partner. I do intend to impose terms of imprisonment on all of these charges and I do intend to make those two sets of imprisonment orders cumulative on each other to reflect the seriousness but also to reflect that they are not related in any way.

3. Several Statements of Material Facts that are before the Tribunal also illustrate the serious nature of the Applicant’s offending. The following incident resulted in the Applicant’s conviction for “cause poison to be administered” for which he was sentenced to six months concurrent imprisonment on 8 February 2018 (SG1, page 157-158):

   At 8.30pm on Monday 21^st November 2016 the accused was at the Caltex Greenfields service station…The accused was in company with four other males.

   The accused approached the [male] victim… who was in company with another male friend and his girlfriend, the accused propositioned the victim to a fight to which the victim declined.

   The accused removed a small white can from his bag and sprayed the victim with oleoresin capsicum spray from a distance of about two meters (sic).

   The spray hit the victim to the face causing stinging pain and interfering with the victims (sic) sight. The victim got into his girlfriend’s car was driven to his home address.

   At 4:30am on Thursday, 24 November 2016 the accused was arrested and conveyed to Perth Police Station where he refused to be interviewed.

   The accused was charged and released on bail, during the bailing process the accused freely offered that he sprayed the victim in the face.

   EXPLANATION: ‘yeah I maced him in the face’.

1. Further (SG1, page 157-158), after propositioning the victim to a fight and before spraying the victim with the capsicum spray at the service station:

   The accused removed a small hammer from his bag and held it in an aggressive manner. A verbal confrontation ensued, the accused replaced the hammer and removed a can of oleoresin capsicum spray.

   This incident resulted in the Applicant being convicted of “[c]arried (possessed) an article with intent to cause fear…” for which he was sentenced to one months’ concurrent imprisonment on 8 February 2018 (G20, page 137).

2. Later on the same evening, the following offence (“criminal damage or destruction of property” for which the Applicant was sentenced to one months’ concurrent imprisonment on 8 February 2018) was committed against the same victim (SG1, page 158):

   At 9:18 pm on Monday 21st November 2016 the accused was at [address omitted], GREENFIELDS. The accused was in company with four other males.

   A verbal confrontation between the victim and the accused ensued.

   The accused approached the victim’s front window with a hammer, the accused struck the window about four times causing damage to the window panes.

3. At the Tribunal hearing, under cross examination, the Applicant stated that he knew the victim from school and that there had been a history of conflict with the victim leading up to these incidents, including the victim chasing him down the road with a machete a few days beforehand (transcript, pages 35-37). The Applicant stated that he was only in possession of the hammer because the victim had thrown it at him out of a car (transcript, page 36). The Applicant argued that these incidents occurred as a result of the Applicant acting in self-defence when the victim jumped out of his car “looking for a fight” (transcript, page 37). The Applicant admitted that he sprayed the victim with mace, “but for self-defence” (transcript, page 36). He agreed that he had not raised this defence previously and that he was raising it for the first time at the Tribunal hearing. The Tribunal does not accept this explanation which was not given by the Applicant to the police nor to the sentencing Magistrate when the Applicant pled guilty (transcript, page 37).

4. The Applicant also committed a domestic violence offence against his former partner as described in the excerpt below from the Statement of Material Facts (SG5, page 166):

   The victim [name omitted]… and the accused,… [The Applicant] in this matter have been in a domestic relationship for approximately 5 years.

   On the 24th November 2016 at approximately 2:00 pm the victim and the POI [person of interest] were at their home address… Also in attendance was… [the victim’s] seven year old daughter…

   Shortly after midday on the 24 November 2016 the accused returned home and an argument started as the victim informed the accused the previous day that she no longer wanted to be in a relationship with him.

   Over a two to three hour period the accused repeatedly yelled at the victim and assaulted her by pulling her around the house by the hair.

   The accused asked the victim twice if she wanted him to kill her. The accused punched the victim to the ribs and dragged her to the lounge area by the left wrist. The accused made the victim sit on the lounge and left the room before returning a short time later with a pair of scissors in his hand.

   The accused then pushed the victim against a wall and held the pair of scissors approximately 2 centimetres from the victim’s throat. The accused said very calmly, ‘Do you want me to kill you?’

   The victim believed the accused was going to kill her so she pushed away from him and took her daughter to her room. The accused had taken the victims (sic) mobile phone so she could not call for help.

   The Police arrived a short time later. As the victim open the front door to the Police the accused slapped her across the back of the head. The accused was taken into custody and removed from the premises.

5. At the Tribunal hearing the Applicant denied threatening to kill his former partner, denied assaulting her in the manner described by police and denied threatening her with scissors. Instead, he said that there was a verbal disagreement and “just pushing and shoving” (transcript, page 39) and that the victim kept telling him to leave. The Tribunal does not accept the Applicant’s version of events, which contradicts the Statement of Material Facts from the police (SG5, page 166). The Applicant also sought to minimise his responsibility by stating that “we did have a verbal disagreement, but there was more than led up to it than that” (transcript, page 39).

6. Earlier that day, at 4.00am the Applicant was charged with “possessed a prohibited weapon”, namely “gold coloured knuckle dusters”, when police searched him in Northbridge after the Applicant fled and police chased him (SG4, page 164). 

7. Another Statement of Material Facts describes an offence against the Applicant’s 18 year old biological younger sister (SG5, page 167). This charge did not result in a conviction, but when giving evidence at the hearing, the Applicant’s sister acknowledged that the incident occurred in the manner set out in the Statement of Material Facts (transcript, page 61), which stated as follows:

   The complainant in this matter is the biological younger sister of the accused and is 18 years of age.

   At approximately 9.00 am, 7 December 2016 the accused attended his sisters (sic) residence… The accused knocked on the front door and demanded entry.

   The complainant was in fear for her safety due to the recent erratic behaviour displayed by the accused over a period of time prior to this incident.

   The complainant refused him entry as she was in genuine fear of her safety and was at this time home alone. When refused entry the accused became very aggressive threatening her that he would kill her if she did not permit him entry into her premises. He also stated, ‘I have boys in the car who are going to come and run through the house.’ The complainant observed a car parked on the opposite side of the road occupies (sic) by a number of male persons and which further heightened her fears. The accused eventually gave up and departed the premises. Prior to leaving he threatened to come back and bash the complainant’s brother.

   The accused refused to participate in an audio visual recorded interview and the present charge was then preferred.

8. Under cross-examination the Applicant denied that this incident ever occurred (transcript, page 40), which suggests to the Tribunal an attempt to minimise the extent of his offending.

9. During cross-examination, the Applicant was also asked about his previous convictions for “steal motor vehicle” and “burglary” (for which he was convicted on 10 May 2013) (transcript, pages 30-31). The Applicant was evasive at the Tribunal hearing and would not describe the circumstances of this offending. He agreed that he stole a motorcycle because he wanted to ride it and that the burglary was breaking into a residential house, but otherwise saying that he could not remember (transcript, page 28-29 and 31). During cross examination, the Applicant was also asked about the offences for which he was sentenced on 21 October 2015, which resulted in a number of concurrent prison sentences, with an effective total sentence of 12 months due to a third strike offence of “aggravated burglary and commit offence in dwelling” committed on 5 December 2013 (transcript, page 32). The Applicant was evasive and stated that with respect to the three burglary convictions between 2013 and 2015, “I just can’t remember them in detail” (transcript, page 32). Further, when sentencing the Applicant, Magistrate Malone made remarks which indicate the seriousness of the Applicant’s offending  (G8, page 33):

   … I’ve decided that you are obliged to be sentenced to 12 months imprisonment as a minimum because you’re a third striker with the aggravated burglary. But I’m not going to make it any more than 12 months, and I am going to make the sentences of assault and threats to injury – even though they were a very nasty incident, I’m going to make the terms of imprisonment run alongside of each other.

10. The “very nasty incident” was described by the Applicant at the hearing as a verbal disagreement with his ex-partner after they had separated a few days beforehand which resulted in the 2015 convictions for “threats to injure” and “common assault” (transcript, page 33). The Statements of Material Facts for these offences were not, however, before the Tribunal.

11. The very serious nature of the Applicant’s offending is reflected in the nature of the offending which involved violence or threats of violence. The domestic violence offence was committed over a period of two to three hours and in the presence of a young child. The Tribunal considers that domestic violence offences are serious offences and notes that children are vulnerable members of the community (paragraph 13.1.1(1)(b) of Direction no. 65). Relevantly, Deputy President Dr Kendall (as he then was) stated in XFKR and Minister for Immigration and Border Protection [2017] AATA 2385 at [45] that:

    The Tribunal would add that, in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women – children who, as in this instance, witness their mothers being abused, degraded and dehumanised – and send a message to those children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.

12. The comments of Deputy President Dr Kendall (as he then was) have been applied by this Tribunal in other decisions including QSBL and Minister for Home Affairs [2018] AATA 2074 at [59], ZTGP and Minister for Home Affairs [2018] AATA 3518 at [99] and NBCM and Minister for Home Affairs [2018] AATA 2387 at [52]-[53].

13. The Tribunal also notes that the Applicant incurred two convictions for common assault as a juvenile in 2010 and one conviction in 2009, as well as four common assault convictions in 2008, as well as convictions for threats to injure, endanger or harm in 2009 and 2010.

14. The Applicant only has one offence in 2010 as a juvenile for obstructing public officers but no such other offences against government representatives or officials as an adult (paragraph 13.1.1(1)(b) of Direction no. 65). He does, however, have numerous offences for disobeying court imposed orders including breaches of bail and multiple breaches of community-based orders which show a disregard for lawful authority. The conviction for “disorderly behaviour in a public place” on 8 February 2018 was from an incident on 24 November 2016 in which the Applicant was abusive to police. It is described in the Statement of Material Facts (SG2, page 160) as follows:

    At about 12:05 on Thursday 24^th November 2016, the accused was observed on Roe Street, Northbridge.

    The accused was observed by police officers hanging around the exit to the Perth Watch House.   

    As police were exiting the sally port to leave the accused was sighted giving hand signals saying ‘wankers’ and putting his clenched fist to his mouth saying ‘Suck a dick’.

    The accused was stopped by police and the accused explained he was angry at police as he had just been released from custody.

    The accused was informed he would be charged with disorderly behaviour and summonsed for the offence with the present charge preferred.

    The accused walked off but then started shouting back to officers ‘Fuck you dogs’ and sticking his middle finger up before running away.

15. The Tribunal has already noted the sentences of imprisonment imposed on the Applicant in 2015 and 2018 in its discussion of whether the Applicant passes the character test above. Terms of imprisonment, especially for such a young man, are imposed as a last resort and reflect the seriousness of the Applicant’s offending (paragraph 13.1.1(1)(c) of Direction no. 65).

16. With respect to the frequency of the Applicant’s offending (paragraph 13.1.1(1)(d) of Direction no. 65), he has been offending over a ten year period, commencing in December 2008, when he was 14 years of age. There are some gaps in the Applicant’s offending in 2012 and in 2015 (G20). However, the Applicant can be said to have engaged in fairly consistent offending over this ten year period, with, for example, numerous offences for assault, stealing, aggravated burglary, minor drug offences and breaches of court imposed orders. However, the more recent domestic violence offence and the cause poison to be administered offence suggest, in the Tribunal’s opinion, an increasing in seriousness.

17. The cumulative effect of the Applicant’s offending (paragraph 13.1.1(1)(e) of Direction no. 65) is that he has been convicted of a total of approximately 63 offences with 40 of those offences being committed as a juvenile and 23 offences as an adult (G20). Whilst many of the Applicant’s offences alone are serious, the cumulative effect is that his offending must be viewed as very serious. This cumulative effect also results in costs being incurred by the community, in terms of the resources of the police, court system and corrective services, as well as having a detrimental impact on victims.

18. There is no evidence that the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending (13.1.1(1)(f)).

19. The Tribunal further notes that the Applicant received a warning in the letter dated 29 April 2016 from the Department of Immigration and Border Protection (G15, page 75) to the effect that further offending may result in a cancellation of his visa on character grounds, as detailed above (paragraph 13.1.1(1)(g) of Direction no. 65; see paragraph [5] above). However, after the date of that letter, the Applicant committed a further nine offences, including, inter alia: carried an article with intent to cause fear; cause poison to be administered; common assault in circumstances of aggravation or racial aggravation; possess a prohibited weapon; and threats to injure, for which he was convicted and sentenced to a 15 month term of imprisonment on 8 February 2018.  In the Tribunal’s opinion, continuing to offend after receiving this warning demonstrates a lack of insight into his offending.

20. To the Applicant’s credit, there is no evidence of any offences being committed whilst the Applicant has been in immigration detention (paragraph 13.1.1(1)(h) of Direction no. 65).

21. Weighing up the above considerations, the Tribunal finds that the Applicant’s offending should be viewed as serious and weighs against the revocation of the cancellation of his visa.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (13.1.2)

22. A decision-maker should also have regard to the following principle, described in paragraph 13.1.2(1) of Direction no. 65 as follows:

    (1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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.

23. Paragraph 13.1.2(2) of Direction no. 65 further provides:

    (2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

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

    b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

24. In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 41 VR 359 at [111] (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at [94]-[95], as well as Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117 at [42]-[43]):

    An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does. [Footnotes omitted.]

25. In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: “…there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”.

26. With respect to the likelihood that the Applicant will engage in further criminal or other serious conduct (paragraph 13.1.2(2)(b) of Direction no. 65), the Tribunal notes that the Applicant’s history of offending has spanned ten years and the imposition of numerous community based orders and a fine, between 2008 and 2015, as well as 12 months imprisonment in 2015 did not stop the Applicant from committing further serious offences in 2016 for which he received a further term of imprisonment (G20, pages 137-144). This demonstrates that the first custodial sentence of imprisonment had little or no remedial or rehabilitative effect on the Applicant, as well as illustrating a disregard for authority and legal rules and indicates a risk of reoffending. The Applicant also reoffended after receiving a warning that further offending may result in the cancellation of his visa (G15, page 75).

27. The Applicant has expressed remorse for his offending. However, he has previously done so, and has reoffended. When he was 21 years old he stated the following on 27 November 2015 (G16, page 83, and 90) when seeking a revocation of the original decision to revoke his visa:

    I would like to start out by saying that I am deeply ashamed and remorseful for having committed the offences that find me serving this 12 month sentence at the Acacia prison, Wooraloo in Western Australia.

    Whilst in prison, I have committed myself to attending voluntary treatment programs in an effort to address my offending behaviour. As it is, I feel ashamed at having taken the path that led to my actions and ultimate incarceration. I’ve genuinely done all I can to use this term to better myself. Jail has not been wasted on me and as such, I feel that I can honestly say that I pose no further threat to the community upon my release…

28. Following the making of this statement, the Applicant was advised in a letter dated 29 April 2016 that a delegate had revoked the decision to cancel his visa and he was given a warning. As noted above, subsequently, the Applicant committed further offences which resulted in a further term of imprisonment. He stated that he was not sure why he continued to offend after receiving a warning but attributed the offending leading up to his most recent period of incarceration to growing apart from his partner after he finished his first term of imprisonment and grieving from the loss of his best friend in a car accident which made him “angry at the world” (transcript, page 11).

1. In summary, having regard to all of the primary considerations and the other considerations in Direction no. 65, the Tribunal is of the view that it would not be appropriate for the Tribunal to revoke the mandatory cancellation of the Applicant’s visa. The correct and preferable decision is to affirm the Reviewable Decision.

   DECISION

2. The Reviewable Decision, being the decision of a delegate of the Respondent dated 18 September 2018 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.

I certify that the preceding 177 (one hundred and seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans

.....[sgd]...................................................................

Associate

Dated: 13 December 2018

Date of hearing:	7 December 2018
Applicant:	In person
Representative for the Applicant:	Mr Louis Kristopher
Solicitors for the Applicant:	Morris, Alexander & Nelson Barristers & Solicitors
Representative for the Respondent:	Mr Arran Gerrard
Solicitors for the Respondent:	The Australian Government Solicitor