Ibardaloza and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2023] AATA 2061

Ibardaloza and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 2061 (2 May 2023)
Division:GENERAL DIVISION
File Number: 2023/0930
Re:Mark Anthony Ibardaloza

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

REASONS FOR DECISION
Tribunal:Member Dr Huntly
Date:2 May 2023
Date of Written Reasons: 12 July 2023
Place:Perth

The following decision was made and given to the parties on 2 May 2023 with a note that written reasons would be provided within a reasonable time:
The Reviewable Decision, being the decision of a delegate of the Respondent dated 14 February 2023, is set aside and substituted with the decision that the cancellation of the Applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Act.

These are the written reasons for my decision.
.....................[Sgd]..........................................
Member Dr Huntly
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – offences including ‘Caused GBH in the course of an aggravated home burglary’ – Direction No 99 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a 35 year old man who arrived in Australia as a 11 year old – extent of impediments if returned to Philippines – Reviewable Decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 36(1C)(b), 189, 499, 499(1), 499(2A), 500(1)(b), 500(6B), 500(6L), 501, 501(3A), 501CA(3), 501(6), 501(7)(c), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)
CASES
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
James and Minister for Immigration, Citizenship, and Multicultural Affairs [2022] AATA 2390
Minister for Home Affairs v HSKJ (2018) 266 FCR 591
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SECONDARY MATERIALS
Department of Foreign Affairs and Trade, Country Information Report, Philippines (23 August 2021)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021)
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023)
REASONS FOR DECISION
Member Dr Huntly
12 July 2023
THE APPLICATION

The Applicant seeks review of a decision of a delegate of the Respondent (the Minister) dated 14 February 2023 not to revoke the cancellation of his Class BB Subclass 155 – Five Year Resident Return visa (the visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act).[1]
[1] GD/7.
The Applicant’s visa was cancelled on 6 March 2019, pursuant to s 501(3A) of the Migration Act (the Cancellation Decision) on the basis that he had a substantial criminal record and was serving a full-time custodial sentence of imprisonment.[2]
[2] GD/195.
The letter advising the Applicant of the Cancellation Decision advised the Applicant that he could make representations to seek revocation of the Cancellation Decision. The Applicant sought revocation of the Cancellation Decision on 25 March 2019.[3] He submitted a personal circumstances form, and evidence in support.[4]
[3] GD/51.
[4] GD/49-106.
However, as mentioned above, on 14 February 2023, a delegate of the Minister decided not to exercise discretion under s 501CA(4) of the Migration Act to revoke the Cancellation Decision. This is the Reviewable Decision currently before the Tribunal.
The Applicant lodged his review application in the proper form on 16 February 2023 pursuant to s 500(1)(b) of the Migration Act, which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister made under s 501 of the Migration Act. Therefore, the application for review was lodged within the nine-day period prescribed by s 500(6B) of the Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which an applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the 84-day period started running from 14 February 2023, meaning that I must hand down a decision on or before 9 May 2023.
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
THE ISSUES FOR DETERMINATION
The issues before the 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 I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
BACKGROUND
The following facts are as per the Respondent’s Statement of Facts, Issues and Contentions dated 20 March 2023 (SFIC).
The Applicant is a 35-year-old citizen of the Philippines. He first arrived in Australia with his mother when he was 11-years old.[5] Since that time, the Applicant has departed Australia on four occasions, for periods between two weeks and five months. On each occasion, the Applicant travelled to the Philippines.
[5] GD/186.
The Applicant’s documented history of offending behaviour commenced in 2007, at age 18. The Applicant’s record of offending behaviour appears at Appendix A to this decision below. In addition to the Applicant’s most recent criminal offending of 4 March 2017 (which is separately discussed below) the Applicant’s prior record of offending behaviour can be summarised as follows:
(a)eight (8) driving-related offences of varying seriousness (up to and including reckless driving) and, on one occasion a driving an unregistered vehicle without a licence;
(b)three (3) offences involving driving with a proscribed blood-alcohol level;
(c)seven (7) offences of breaching lawful orders;
(d)four (4) offences of aggravated burglary (intent and commit) and one (1) stealing offence; and
(e)one (1) offence of possession of a prohibited drug with intent to sell or supply.
As a result of this history of offending, prior to his most recent term of imprisonment, the Applicant had accumulated fines in the amount of $10,150.00; driving disqualifications totalling four years and 10 months, community-based orders totalling two years and three months; and, a six month and one day sentence of imprisonment, suspended for 12 months.
The visa cancellation that is the subject of the present review application was precipitated by the Applicant’s most recent sentence of imprisonment. Nevertheless, as is the case with character-based visa cancellations that are subject to Direction No 99, an applicant’s conduct in Australia must be considered in its proper context when considering how the exercise of any discretion relating to the cancellation should be exercised. This may be relevant, for example, to either or both the assessment of an applicant’s character and the relevant objective risk of an applicant engaging in further offending conduct into the future. Direction No 99 stipulates a number of relevant considerations that must be taken into account for the purposes of a decision, such as that in the present case, made pursuant to ss 501 and 501CA of the Migration Act. This will be discussed in greater detail below.
On 16 March 2006, the Applicant’s partner at the time gave birth to a son.[6] The Applicant’s second son was born on 5 May 2013.[7]
[6] GD/71.
[7] GD/72.
The most recent sentence of imprisonment imposed on the Applicant relates to events on the evening of 4 March 2017. Armed with a ‘machete’, the Applicant and two other individuals unlawfully entered the home of another individual who was home alone at that time. The victim was held and then struck a number of times to the face, the neck, the head, the stomach, and the back with the machete. The victim was also kicked and punched numerous times during the violent assault. Subsequent to the attack, the victim remained in Emergency as a high dependency patient for 10 hours. He required 25 sutures and 17 staples for his injuries and had multiple lacerations, bruising and swelling.[8] The physical and psychological consequences of the assault for the victim were life-altering.
[8] GD/33-34.
Having pleaded guilty to the relevant charges arising from the assault, the Applicant was sentenced by his Honour District Court Judge Stavrianou as follows;
(a)Caused Grievous Bodily Harm (GBH) in the course of an aggravated home burglary (seven years and six months);
(b)Criminal Damage or Destruction of Property (six months); and
(c)Aggravated home burglary and commit (four years).
These sentences were ordered to be served concurrently.[9]
[9] GD/28-29.
As discussed, on 6 March 2019, the Applicant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act, and on 25 March 2019, the Applicant made representations as to why the visa cancellation should be revoked. Further representations have been made by the Applicant in the period since that time.
On 4 August 2022, the Western Australian Prisoner’s Review Board (the Board) granted the Applicant parole.[10] This was the Applicant’s first application for parole. The Board based its decision on the positive assessment of the Applicant’s conduct while in prison and his prospects for reintegration into the community.[11] The Applicant’s parole will expire on 7 September 2024.
[10] TB/258.
[11] TB/259-266.
The Applicant was released on parole on 7 September 2022. The Applicant was taken into immigration detention from this time pursuant to s 189 of the Migration Act.[12]
[12] TB/267.
As discussed above, on 14 February 2023, the delegate decided not to revoke the cancellation of the Applicant’s visa.[13]
[13] GD/7.
THE HEARING AND THE EVIDENCE
The application was heard on 18 April 2023. The Applicant appeared in person and was self-represented. The Respondent was represented by Mr A Gerrard of Australian Government Solicitor who also appeared in person.
At the hearing, the Applicant made submissions, gave evidence and was cross-examined.
The Tribunal also took evidence from the Applicant’s stepfather who appeared in person and was also cross-examined on affirmation. The Applicant’s minor children J and T also appeared in person and gave evidence at the hearing.
The following documents were marked as exhibits:
(a)Applicant's statement filed on 21 March 2023 (Exhibit A1);
(b)Undated statement of Joseph Almonte filed on 21 March 2023 (Exhibit A2);
(c)Statement of Vince Tan dated 16 March 2023 (Exhibit A3);
(d)Statement of Michael Bradley dated 15 March 2023 (Exhibit A4);
(e)Undated Statement of Adham filed on 21 March 2023 (Exhibit A5);
(f)Statement of Benjamin Travia dated 14 March 2023 (Exhibit A6);
(g)Statement of Aaron Chapman dated 14 March 2023 (Exhibit A7);
(h)Undated statement of Sitha Tran filed on 21 March 2023 (Exhibit A8);
(i)Statement of Kliment Matlioski dated 18 March 2023 (Exhibit A9);
(j)Statement of Lee Edwards dated 19 March 2023 (Exhibit A10);
(k)Statement of Vanessa Merioles dated 24 February 2023 (Exhibit A11);
(l)Statement of Rachel Rivett dated 22 February 2023 (Exhibit A12);
(m)Section 501 G Documents filed on 3 March 2023 (Exhibit R1); and
(n)Tender Bundle filed on 5 April 2023 (Exhibit R2).
As mentioned above, the Respondent filed a SFIC dated 20 March 2023 prior to the hearing. The Applicant did not file a SFIC but did file a statement on 21 March 2023 (Exhibit A1).
LEGISLATIVE FRAMEWORK
Under the Migration Act the Minister is given powers to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can exercise a discretion to revoke that cancellation decision. The power of cancellation and revocation generally involves a careful consideration of whether a person passes the character test, and where they do not, a separate consideration of whether there is another reason that the decision to cancel (or refuse) a visa should be revoked.
The character test is set out in s 501(6) of the Migration Act and essentially deems that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7)); …
(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of
12 months or more; …
(Original emphasis.)
Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain incarcerated persons where the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
Additionally, under s 501(3A) of the Migration Act, the person must be 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.
If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the cancellation decision.[14] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the cancellation decision if satisfied that the person passes the character test or that there is another reason why the cancellation decision should be revoked. Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the cancellation decision should be revoked.[15]
[14] Migration Act s 501CA(3).
[15] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
Direction No 99
The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the cancellation decision should be revoked, reasonably and on a correct understanding of the law.[16] By reason of s 499(2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.
[16] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119].
The Tribunal notes that the previous Direction No 90 was in force at the time the decision not to revoke the cancellation of the Applicant’s visa was made. At a directions’ hearing on 27 February 2023, the Tribunal alerted the parties to the fact that a new direction would be in force at the due date of this application and that it would be required to apply Direction No 99 in conducting the review. A copy of Direction No 99 was provided to the Applicant by the Tribunal following the directions hearing on 27 February 2023.
An objective of Direction No 99 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[17] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction No 99 where relevant to the decision.[18]
[17] Direction No 99 para 5.1(4).
[18] Direction No 99 para 6.
Paragraph 5.1 of Direction No 99 sets out ‘[o]bjectives’ including para 5.1(3) which provides that:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 99 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on
non-citizens in the expectation that they are, and have been, law-abiding,
will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian Community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2)[19](Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
[19] As there is no para 8.55(2) the Tribunal infers this is a reference to 8.5(2).

Informed by the principles set out in para 5.2 of Direction No 99, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case, in deciding ‘whether to revoke the mandatory cancellation of a non-citizen’s visa’.[20]
[20] Direction No 99 para 6; see also the definition of ‘decision-maker’ in para 4(1) of Direction No 99, which includes the Tribunal.
In making a decision under s 501CA(4), the Direction No 99 primary considerations to be taken into account by the Tribunal are:[21]
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
[21] Direction No 99 para 8.
The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[22]
(a)       legal consequences of the decision;
(b)       extent of impediments if removed;
(c)       impact on victims; and
(d)       impact on Australian business interests.
[22] Direction No 99 para 9.
Further guidance as to how a decision-maker is to apply the considerations in
Direction No 99 can be found in para 7, which provides that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in s 501(6) of the Migration Act. 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). Relevant to the Applicant’s case, a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[23]
[23] Migration Act s 501(7)(c).
The Tribunal finds that on 27 August 2018, the Applicant was convicted of the offence of ‘Aggravated home burglary and commit’; ‘Caused GBH in the course of an aggravated home burglary (Adult)’ and ‘Criminal Damage or Destruction of Property’ in the South Headland District Court of Western Australia. The Applicant pleaded guilty to all three charges on the indictment at the first opportunity. After finding that the Applicant was not entitled to a finding of prior good character and weighing the mitigating and aggravating factors relating to the Applicant’s plea, his Honour Stavrianou DCJ sentenced the Applicant to an immediate term of imprisonment on all charges, with the minimum mandatory sentence of seven years and six months imprisonment being imposed by the trial judge for the headline ‘Caused GBH in the course of an aggravated home burglary (Adult)’ charge. Lesser sentences of immediate imprisonment for the other charges (four years imprisonment for the ‘Aggravated home burglary and commit’, and six months imprisonment for the ‘Criminal Damage or Destruction of Property’), which were ordered to be served concurrently with the ‘Caused GBH in the course of an aggravated home burglary (Adult)’ charge.[24]
[24] GD/30-46.
As the Applicant has been sentenced to a term of imprisonment of seven years and six months, which exceeds the term of 12 months or more referred to in s 501, he does not pass the character test by operation of s 501(7)(c) of the Migration Act. This is not in contention between the parties.
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[25]
[25] See Migration Act s 501CA(4)(b)(i).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No 99, there is another reason why the Cancellation Decision should be revoked. The statutory power to revoke will only be enlivened if there is ‘another reason’ why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
A summary of the Applicant’s statements in support of his application for the revocation of the Cancellation Decision is contained in his submissions as follows:[26]
I do not blame anyone for my crime but myself. I regret it everyday and everything that has happened to my victim. I do not wish this to happen to anyone. If I could turn back time or change what had happened I would. But now I also have to move on from that mistake in life and look forward to my future for me, my family and especially for my children. I believe I have done everything I could do to change my ways and my ways of thinking. All I wanted is for me to test these new tools that I have learnt whilst I was incarcerated and I believe I'll be a law abiding citizen as I know have so much to lose in my life and be probably away from my kids for the rest of their upbringing.
Australia is the place i call home this where all my family, friends, and my kids lives this is where I grew up and this where all my milestones in life started and will end I do not wish to go back to the Philippines as I never grow up there but yes i was born there but not set any milestones there …
I have a very good support network here in Australia. I have my family. my extended family, friends and my children. All these people are willing to give their full support to get me back on the right track in life. To be the person I was supposed to be a great father to my children, great son to my family, great brother to my baby brother.
[26] A1.
The Respondent submitted, in summary that:[27]
The Minister accepts that this is a difficult matter and that there are a number of considerations which favour the applicant. However, the Minister ultimately contends that the protection of the Australian community and the expectations of the community in this case outweigh the strength, nature and duration of ties, the best interests of the children and the not insurmountable impediments the applicant will face on being removed. The remaining factors neither weigh for nor against revocation.
[27] Respondent’s SFIC, 13.
CONSIDERATION
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1 of Direction No 99 provides that, when decision-makers are considering the protection of the Australian community, they:
(1) … should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen's conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal in CZCV and Minister for Home Affairs[28] (CZCV) summarised the task on review as follows at [56]:
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]- [43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated, at [68]: “... there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.”…
[28] [2019] AATA 91.
While the Tribunal and the Court in the above cases (and in the cases referred to therein) were considering visa cancellation in the context of predecessors to Direction No 99, given the similarity in the wording of the preceding Directions, the same considerations and principles apply to the present case. I adopt the approach indicated in the above cases.
Nature and seriousness of the conduct (para 8.1.1)
Paragraph 8.1.1 of Direction No 99 provides:
(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.       violent and/or sexual crimes;
ii.      crimes of a violent nature against women or children, regardless of the sentence imposed;
iii.     acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.       causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.      crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii. any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv.     where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Prior to 4 March 2017, there is not a clear trend of escalation of the Applicant’s offending conduct. His conduct can best be described cumulatively as serious, but episodic (para 8.1.1(1)(d) and (e)). Historically, the incidence of driving offences on the Applicant’s record of offending, particularly under the influence of intoxicants, presented the most serious risk of harm to the general public. There is also a demonstrable and sustained lack of respect for the lawful authority of courts, the rule of law and the personal property rights of others. Cumulatively, the offending conduct of the Applicant is serious and may well have warranted a discretionary cancellation of his visa as far back as July 2012 (para 8.1.1(1)(d) and (b)(iii)).[29]
[29] R2/1-4.
Taken together with the Applicant’s offending on the night of 4 March 2017, there is no way of characterising his record of offending as anything other than very serious as is contemplated at para 8.1.1(a)(i) of Direction No 99 with respect to violent crimes.
The Minister’s SFIC and submissions made the following contentions:
30. The trigger offences are, without a doubt, to be considered as ‘very serious’. The Court described the offending as follows:[30]
[30] GD/33-35.
You were armed with a machete and forced entry into the home. Once inside you located the victim who was home alone at the time and you began to physically assault him…During the assault the victim was held and struck a number of times to the face, the neck, the head, the stomach, and the back with the machete that you wielded. He was also assaulted a number of times by all of you by being punched and kicked to numerous parts of his body by all of you…
…
Now, as a result of the physical attack the victim suffered a deep laceration to his face, two deep lacerations to his neck, lacerations to the top of his head, a cut to his stomach, a cut to his back and multiple bruises to all parts of his body.
All of the injuries obviously bled significantly and blood was spread throughout the house and there are photographs showing the victim and blood in the brief. He had 18 sutures in the first laceration of the neck, seven to the second laceration to the neck, and had to have 17 staples put into his head…scalp contusion, the laceration of the left cheek which, again, is depicted in the photograph, the 12 centimetre neck laceration, the second lower neck laceration of four centimetres, lacerations to the fingers, the black eyes, the bruising, the blood nose, and the facial swelling.
31. The offence is quite clearly a ‘violent’ crime, and as a consequence to be considered ‘very serious’.
32. The sentence imposed by the Court was a sentence of imprisonment of 7 years and 6 months. While the Minister accepts that this was the minimum sentence that could be imposed on the applicant, this does not demonstrate that the offending was ‘low level’. Rather, it is a reflection that any such conduct is of such an extreme nature it warrants imprisonment, noting imprisonment is a measure of last resort.
33. The applicant had previously (in 2008) been convicted of 3 separate counts of Aggravated Burglary and Commit Offence in Dwelling, 1 count of Aggravated Burglary with Intent in Dwelling and 1 count of Stealing. The trigger offences can be characterised as an increase in seriousness from the 2008 offending.
34. In relation to the applicant’s driving offences, the Tribunal has consistently found that driving offences are to be considered dangerous. In the decision of Re Zaya and Minister for Immigration and Border Protection [2017] AATA 366 at [54] (albeit in the context of a decision to refuse citizenship):
There is an unfortunate tendency socially to dismiss laws that penalise drivers who drive under the influence as unnecessary or unfair. This arguably results from a view in some circles that driving under the influence is less serious than other offences. This is not a view that is shared by persons who lose their loved ones to drivers who drive when they clearly should not do so or indeed to persons who lose loved ones who themselves died because they drove while intoxicated. The Tribunal takes these offences quite seriously because the consequences of not adhering to safe driving laws are themselves quite serious.
35. The applicant’s driving offences have resulted in $7,600 in fines and a total of 58 months of disqualification from driving. Three convictions were for drink driving, and 5 convictions resulted from the applicant driving when he was not authorised to do. The repeated nature of the same offence demonstrates a repeated disregard for the law and the safety of the community.
36. The applicant’s other offences, namely drug possession and breaches of certain orders, while not as serious, demonstrate, as stated by the District Court judge, that the applicant is not ‘entitled to any leniency for good character.’
37. Finally, the applicant’s offending history (29 offences), periods of imprisonment, not insignificant amount of fines (totaling $10,450), excessive driving suspensions and 5 breaches of bail/undertakings/conditions would likely have had a cumulative effect of placing a burden on the resources of police, corrective services, and the court system.
38. The Minister contends that the nature and seriousness of the applicant’s offending, in particular the trigger offences, must weigh significantly against revocation.
(Footnotes omitted)
Counsel for the Minister also addressed this matter in closing submissions as follows:[31]
… the question that in our submission should focus your mind the most is bearing in mind the nature of the harm that might eventuate and bearing in mind that, in our submission, you have to find there is a tangible risk, is that risk acceptable to the community, and our submission is no. Taking into account everything that you know about the applicant’s circumstances, and bearing in mind everything we know about the positive and the negative factors, ultimately when you have a pattern of concern that swells ever and ever closer to tragic or serious consequences the protection of the Australian community from that nature of harm is such that no risk, or no meaningful risk, is acceptable.
[31] Transcript, 107.
The Applicant accepted the thrust of the foregoing in his closing submissions to the Tribunal in the following terms:[32]
My character at the time of my offence was certainly not acceptable from Australian public. I was convicted in the court of law and sentenced of properly for my crime. I cannot change what happened in March 2017 and the other selfish criminal act - criminal acts I’ve done. The night that changed the two families’ lives of the victim and myself and my family who are supporting me, I blame no other - no-one but myself for the loss of time with my family and my children.
[32] Transcript, 109.
I note that the Applicant had lived for more than 23 of his 34 years in Australia, having travelled to this country as a child of 11 years with his mother and step-father as part of the family unit. This requires me to carefully reflect on the principle (at para 5.2(5) of Direction No 99) that:
… Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
I am satisfied that there is no contention between the parties about those aspects of the relevant considerations relating to the nature and seriousness of the Applicant’s history of offending. Bearing in mind the Applicant’s driving, burglary and drug-related offending, his offending history is serious conduct quite apart from his abhorrent recorded crimes of violence. I therefore find that the Applicant’s criminal conduct is very serious as this term is contemplated at para 8.1.1 of Direction No 99.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)

Paragraph 8.1.2 of Direction No 99 relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the non citizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c) where consideration is being given to whether to refuse to grant a visa to the non-citizen- whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
In assessing the risk that the Applicant poses to the Australian community, I am required to assess the nature of the harm that would be caused should the Applicant engage in further criminal or other serious conduct (para 8.1.2(2)(a)). This consideration also requires an assessment of the likelihood of re-offending (para 8.1.2(2)(b)). There is no statutory constraint on the way risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[33]
[33] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J who referred to the basis for the assessment of the risk of re-offending as requiring a ‘rational and probative basis’.
Nature of harm to individuals or the Australian community (8.1.2(2)(a))
The Minister’s SFIC and other submissions posit the following relevant contentions:[34]
[34] Respondent’s SFIC, 7.
40. The nature of the harm should the applicant engage in similar conduct to the trigger offences is self-evidently serious. It is both physical and psychological. The Sentencing Judge explained that:[35]
[35] GD/34.
All of the injuries obviously bled significantly and blood was spread throughout the house…
…
He was in hospital for about 10 hours in the emergency department as a high dependency patient. The author of the report noted that he expected a full recovery with some scarring from the wound healing. He also noted the manner in which the injuries occurred also had marked impacts for the, and I quote, “Psychological and emotional wellbeing of the victim”…
… the victim was certified unfit for work and referred to [name of hospital].
41. The Minister considers that the serious nature of the harm arising from the offending must lead to a conclusion that any risk of reoffending is unacceptable.
42. The Tribunal can be satisfied that, should the applicant engage in further driving or traffic related offences, there is a very real risk that members of the public (including innocent road users and pedestrians) could lose their life or be severely impacted. In 2020, there were 139 deaths from crashes involving a driver or motorcycle riser over the legal limit and 115 deaths from crashes involving unlicensed drivers. The fact that the applicant’s previous traffic offences have not resulted in harm does not meant that they will not do so in future incidents should he engage in similar irresponsible road use. What should not be overlooked, as stated in Zaya, is the harm to those who lose loved ones in such tragic accidents.
43. The nature of harm if the applicant were to commit further offences such as drug possession or property related offences (stealing, criminal damage) is varied and may include financial and psychological harm to members of the Australian community. Further, purchasing and possessing drugs supports the illicit drug trade in the Australian community. The prevalence of drugs causes harm to the community on many levels, including increased crime rates and mental health issues.
44. In light of the above, the respondent contends that the harm that may be suffered if the applicant is to reoffend is wide-ranging and possibly tragic.
(Footnotes omitted)
The nature of harm to the community if the Applicant were to repeat any of his past documented criminal and other offending conduct is not difficult to imagine.
The Applicant’s acquaintances, neighbours and persons unknown to him who might wittingly or unwittingly come within the Applicant’s proximity could well be harmed or killed as a result of the Applicant’s driving offending. Persons affected by drugs of addiction supplied by the Applicant could become violent to others or perpetrate property offences against others in the community. Similarly, community members might also fall afoul of the Applicant, should he become alcohol or drug affected and violent. In the event that the Applicant resumes his previous drug and alcohol consumption, and should subsequent intoxicated ruminations be encouraged by unsuitable companions, some person or persons known to the Applicant could find themselves violently assaulted in the sanctum of their own dwelling place without warning and suffer life-long and life-changing injuries or death.
On this basis, given such a record of criminal and other offending by the Applicant, the Minister’s submission that ‘any risk of reoffending is unacceptable’ has been made out. This is not in contention between the parties.
I have considered the Applicant’s history of criminal offending and other conduct to date. The Applicant’s record of offending resulting in criminal convictions for violent crime together with his prior character-related offences in Australia discussed above are considerable and include serious driving offences and life-changing violence meted out to a person known to the Applicant in circumstances of aggravation.
The cumulative effect of the Applicant’s offending, although impossible to quantify, is extremely serious and will, unquestionably, continue to be experienced by those directly affected for years (and potentially decades) to come, regardless of any subsequent rehabilitation and reparations effected by the Applicant into the future.
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (8.1.2(2)(b))
The Applicant made the following relevant written submission:[36]
Whilst i was incarcerated at roebourne prison i did few things to help me to change my way and thinking one of the programs i was given to me was PATHWAYS which i completed. The other ones was drug and alcohol counseling with mission australia and i have attended a few drug and alcohol meetings. I was working as a maintenance foreman which I was helping fix problems around the prison with and without an officer watching me doing my job. I've always kept to myself while I was incarcerated. My VSO( vocational support officer ) offered me adult traineeship for construction and building. Which one I took as I will be gaining a trade at the end of it, I did as much as I could and completed everything that was required of me to do. I wasn't available to do the next step of my traineeship due to my immigration status. I wasn't allowed to go to the work camp where I couldn't continue my traineeship to get the trade I wanted and work hard for which I'll be pursuing when I get back to the community.
As soon as I wasn't allowed to go to work camp I asked Roebourne Prison to seek me a different prison where I can gain more education and other courses that will enable me to address my addiction and self assessment, i went to a minimum prison called wooroloo prison farm As I got to the minimum prison farm the prison gave me more chance to do more courses which I took and also did another traineeship in the kitchen as a chief, where i was working whilst i was incarcerated i took the position a leading hand as a chief due to my positive attitude and my hard working As my time progressed at the prison farm I found more courses that will address my bad habits and my negative thinking I did a course called sycamore tree. AVP ( Alternative Violence Program) and 1 on 1 counselling which i all completed before i was release on parole , had another course I was gonna do its was AVP Advance but its started a day before I left the prison Farm to come to detention centre so i wasn't enable to do or complete the course.
I believe all the program and courses that I have completed has helped me a lot to do better myself and equip myself when i return back to the community all this skills and tools use im currently using it on my daily basic and just saying no to drugs and alcohol while I was incarcerated in prison and detention centre.
Before my crime had happened my life was a mess due to my break up with my fiance and taking our beautiful kid. It took me a while to get over it and I tried everything for her to get back to the life we had, I thought I have made it in life that I have reached my goal to be a father and a future husband to my fiance. I had a full time job and I was earning a decent amount of money, more than enough to support my family and my other child [J]. I believe this was my cause of my destruction and I started using drugs again and drinking more than I used to and just mixing my drugs and alcohol when I can on my days off and when hanging with the wrong crowd and I just wouldn't care as long as I was going to work and seeing my kids on there school holidays as soon they go back i went back to my ways old ways just drinking and taking drugs My family tried to help me but i was just shutting them down and just telling them that was alright and friends was also trying to help me but i was just telling everyone that i was alright instead of taking there help i was too proud to ask for help when I needed but instead i use alcohol and drugs to cope with my problems, My pride of asking for help did not do me any good but now I know I'm not scared to ask for help I won't let my pride to get in my way because asking for help is only normal or even seek help from the professional counsellor, family and friends.
[36] A1/1.
The Minister’s SFIC made the following submission:[37]
[37] Respondent’s SFIC, 8.
45. The Minister acknowledges that the applicant has engaged in multiple programs aimed toward addressing his alcohol and drug issues, that the applicant has a high level of family support if he is released and that the Prisoner Review Board considered that his release into the community would present an ‘acceptable risk’. In the Minister’s risk, there is no ‘acceptable’ risk given the nature of the harm that would occur if there is to be further offending.
46. The difficulty arising for the applicant is that he has previously abstained from alcohol and drug use for a not insignificant period of time, and has then relapsed. The Pathways Program Completion Report states:
… he described a period of relative stability during which he was in a long-term relationship, employed full time and was an active parent. Furthermore, he was a volunteer amongst the local Phillipino community, often assisting as a basketball coach with local sporting teams. [The Applicant] maintained he was able to abstain from illicit substance use for a number of years because of these factors. [The Applicant] attributed his relapse into alcohol and methylamphetamine consumption to the sudden end of his relationship at the time…
47. While the applicant has participated in programs which were directed toward emotion and stress management, those skills have not been tested in the community setting. Further, the factors which are stated to minimise the risk of further offending (the applicant’s children, family support network, employment) are all matters which were present at the time of the applicant’s prior offending. Further, the applicant will be returning to the area where he has admitted to having ‘long-term friendships’ with those involved with substance use and that he would only ‘limit’ his contact with these negative peers.
48. While the Minister acknowledges the steps the applicant has undertaken in order to address his alcohol and substance issues, and recognises the applicant understands the impact and consequences of his actions, the Tribunal cannot be confident that the applicant will not once again descend into drug-taking behaviour, which is likely to lead to further offending. This is particularly so where the applicant will be, it appears, exposed to substances and influences which led him to commit the offending in the first place.
49. The Minister contends that the Tribunal should find that the applicant is a low-medium-risk of reoffending.
(Footnotes removed.)
A fair observation, flowing from the Applicant’s written submissions and his in-person evidence at the hearing, is that should the visa cancellation be revoked the Applicant is motivated to live a different, productive and family-oriented life if he were returned to the community. However, there is a qualitative difference between intentions and lived reality.
The likely lived reality awaiting the Applicant, should he be returned to the community is that he would take over the primary care responsibilities for a growing pre-teen and shared care responsibilities for a challenging teenaged son who is currently living in a blended family. It is likely that the Applicant will be supported for the foreseeable future by his own parents, who are currently responsible for the care of the boys identified above, but the Applicant will have to adjust to a life largely revolving around his own parents for a considerable period of time.[38] All of these relationships will require careful management and place significant demands on an Applicant with little or no experience of long-term “family living”.
[38] Transcript, 92-97.
This dichotomy between intentions and lived reality were explored with the Applicant at the hearing as follows:[39]
[39] Transcript, 51-53.
MR GERRARD:    You’ve accepted that your offending is connected to your drug use?
APPLICANT:        Yes.
MR GERRARD:    Now, if you were to start using drugs again - if you were to relapse and use meth again, do you think that would lead to you committing further offences?
APPLICANT:        Yes.
MR GERRARD:    I’m trying to understand but I don’t think you’ve really outlined it thoroughly. You talked about what your plan is to keep you away from drugs and keep you away from offending. You’ve talked about why it’s important for you not to offend - you talk about your children; you talk about your family. You’ve talked about speaking with the person from Cyrenian House and that you’ll get in touch with her but how is it - this is one of the most important things the tribunal has to decide?
APPLICANT:        Yes.
MR GERRARD:    Is to be confident about why it is you won’t offend, or why you say you won’t offend again. What steps are in place that the tribunal can be reassured about, or the community can be reassured about that (indistinct)?
APPLICANT:        So I believe, like I said I still have my parole that will help me stop from doing what I’m doing and I believe my plans with my family and being surrounding with my kids never - won’t let me go back to my old ways. Because I will be concentrating on my kid’s life instead of other things.
MEMBER:           Okay I think Mr Gerrard’s asked you the question twice. You’ve answered it in a particular way. I take note of that. The point that I would separately make is this one. You haven’t actually been around your kids when they’ve been ugly?
APPLICANT:        Yes.
MEMBER:           Kids can be - particularly teenage boys around their growth spurts, age two, eight, 11, 18 through to about 22 - boys experience testosterone levels naturally of around 8000 per cent normal. This helps them grow. Helps them develop muscle. But it also affects their mood. And it can make them very problematic from a parental perspective. Now it’s okay to say that your family are a motivation to be good, but families, particularly young boys in the family who are experiencing their own growth issues, coming into maturity with 8000 per cent the normal testosterone levels - they present a significant challenge. A challenge that you haven’t actually experienced up close and personal.
Now I appreciate what you’re saying that you want the best for your children, and you want to be there. I acknowledge all of that, but Mr Gerrard has asked you a very serious question about what is your plan if life doesn’t turn out the way you want it to. And what you’ve said is it’s about your family. Well what if your family is the reason your life isn’t turning out the way you want it to? Does that mean you’ve got no plan? For example, as you’ve said one of your sons is currently experiencing some mood problems, adjustment issues, confrontational behaviour. Exactly the kind of things we expect to see in young men experiencing very high levels of naturally occurring testosterone. You’ve got another young boy coming into one of his growth spurts.
APPLICANT:        Yes.
MEMBER:           We’re not talking about after 18 months of parole. We’re talking about the here and now?
APPLICANT:        Yes.
MEMBER:           And you’re going to have your hands full and at the moment your parents are carrying a lot of the burden there. Your eldest son’s stepfather is carrying a bit of that. You haven’t had to carry any of it. You’ve just had visits where they are all lovey and keen to see and happy to talk to you. What is your plan when your children become the problem for you?‑‑‑
APPLICANT:        Well I want to show them that they can open and talk to me, and I want them to see ‑ ‑ ‑
MEMBER:           I’m not sure you heard my question. What’s your plan for you if that doesn’t work out the way you want it to? Do you have a plan?
APPLICANT:        I will plan just getting back to the workforce and supporting my children mentally and physically.
MEMBER:           I think what you’re talking about is your motivation, not your plan. I don’t mean to be disrespectful but that sounds like your motivation, and I don’t doubt that that’s your motivation but what Mr Gerrard and I have both been trying to ask you is, having been to these programs, having talked to these people, having had these insights about yourself, do you have a plan when life doesn’t work out properly? We’re not talking about a straight line. We’re not talking about an equation. We’re talking about two teenage boys with lots of energy, not much insight and no much history with you?
APPLICANT:        Yes.
MEMBER:           What is your plan and I don’t hear that you’ve got much of a plan. Have you considered the things that I’ve just mentioned?
APPLICANT:        Yes, I did. Yes. Yes
MEMBER:           No, before today. Have you considered the things I’ve just mentioned?
APPLICANT:        No. I haven’t. not until you said. No.
MEMBER:           So considering what I’ve said the questions that Mr Gerrard’s asked, do you think it’s a fair question to ask a person? Do you have a plan for this sort of stuff?
APPLICANT:        It is. Yes, it is, Member.
MEMBER:           So, you’ve had some experience of life. You’ve travelled a journey yourself. What would you say to a person in your position? What I’m hearing you say - you think some far-off time in the future you’ll be tested and at that point you’ll turn your mind to maybe perhaps you’ll go and talk to someone - who may not work there anymore. Who may not be employed in the same industry anymore. Cyrene House might have closed down? I’m asking what are you going to do next month when your son starts fronting you up and saying he doesn’t like the way you’re parenting, in an aggressive and ugly manner. What is your plan then?
APPLICANT:        My plan them to put them in the same position as me by sending him to professional healthcare to help them and work it together with them, the problem.
MEMBER:           See now you’re starting to talk like a person with a plan?
APPLICANT:        Yes.
MEMBER:           Have a think for a minute. Have a sip of water and now I’m going to ask Mr Gerrard to ask you the same question for the third time?
APPLICANT:        Yes.
MEMBER:           About your plan. So have a little sip of water. Take a think. A lot turns on this question and not just for here and now. For your boys. For your parents. So I’ll just ask. Are you ready? Have you had a think?
APPLICANT:        Yes.
MEMBER:           Mr Gerrard, for the third time.
MR GERRARD: Thank you. Mr Ibardaloza, you’ve heard what the Member has put to you and asked you and we’ve heard about what you’ve done in prison but what are those steps that you are going to take if you’re released - if you are successful and passed when your parole obligations run out. What are those concrete steps that you say you will take to make sure that you don’t offend again?
APPLICANT:        I’ll continue getting help from professionally, members and make sure that I don’t fall behind in life again.
MEMBER:           What do you mean when you say fall behind in life?
WITNESS:          Fall back in the criminal activity. I don’t want to go back into that lifestyle ever again.
MEMBER:Yes, I think we’re getting back to motivation but yes, okay.

Three other factors may be considered to be protective (in the sense that they may serve to diminish the likelihood of the Applicant reoffending) if he were returned to the community. These are:
(a)the fact that the Applicant is and will remain on parole and subject to the supervision of the Prisoner’s Review Board until 7 September 2024;
(b)the salutary effect of the Applicant’s term of imprisonment and subsequent administrative detention; and
(c)the fact that the Applicant would be released into a close-knit and committed support network.
The Applicant is subject to strict conditions of parole, breach of any of which will result in his immediate return to prison. These conditions of parole limit his lifestyle choices, freedom of movement and freedom of association.[40] While I note that this protective factor is temporary, it is to be expected that the initial period of readjustment back into the community would be among the most stressful for a person in the Applicant’s position. Accordingly, I find that this protective factor should be given material weight in considering the likelihood of reoffending for this Applicant with respect to his initial period of readjustment back into the community.
[40] GD/179.
It is clear from the material before the Tribunal that the Applicant’s remorse and insight into his offending extends back to the evening of his abhorrent violent offending.[41] The Applicant’s Corrections records do show a number of minor breaches at an early stage of his term of imprisonment. Other than this, the Applicant appears to have been a model prisoner throughout his time of imprisonment.[42] To the extent that imprisonment can be found to have a salutary effect on an offender, I am satisfied from the materials before the Tribunal that the Applicant has experienced his imprisonment in a salutary and rehabilitative way. This is evidenced in the material before the Tribunal to an extent and degree that goes beyond the formulaic into the realm of the real and substantial.
[41] GD/33, 41; Transcript, 65-67.
[42] TB/6-22.
If the Applicant were to return to the community, it is clear that he has the support of a loving and clear-sighted immediate family.[43] A number of his character references were provided by persons with full notice of his record of offending behaviour. Importantly, the mothers of his children believe that the children would continue to be safe in his care and custody.[44] While those persons may not have full knowledge of the Applicant’s offending history, they are aware of the sentence of imprisonment that the Applicant continues to serve on parole for the most serious of violent offending. Further, other agencies of government have formed the view, independently, that the Applicant has a strong and supportive network of support in the community.[45] Without relying on the assessments of these other agencies, I note the fact that independent assessments have been made and those agencies have formed conclusions that approximate to that which I find I am able to make with respect to this Applicant. My findings on the basis of the materials before the Tribunal and after interviewing the Applicant under oath at a hearing are that, should the Applicant be released into the community, he would return to a close-knit and committed support network.
[43] Transcript, 88-97.
[44] Transcript, 76-80.
[45] R2/195-278.
Crucial lessons in life are learned (or not) by individuals according to their own light and awareness. There is no one singular test of true insight as to whether or not an individual understands the need to change and charts a new course in their path through life. It seems apparent, based on the available materials that, since being sentenced to his recent extended term of imprisonment, the Applicant has found peace and purpose through being useful to others. It is also clear that he lacks the eloquence, possessed by some, to articulate a comprehensive theory of personal change. Such a requirement cannot be the sole determinant of a person’s likelihood of reoffending. Such a formula could be too readily parroted in response to a retrieval cue.
Based on the evidence discussed above, I find that, in his own way, the Applicant has demonstrated significant insight and remorse for his offending conduct. That remorse appears to be informed by a genuine concern for, and desire to reunite with his two children, the youngest of whom currently resides with the Applicant’s parents. The Applicant has also demonstrated some insight into the way in which his past offending developed, including the contributing factors of mental health challenges, and his resort to alcohol and drugs of addiction. The Applicant, at some level, acknowledges his ongoing treatment needs and has expressed a desire to be compliant with the terms of his parole, which compliance will be necessary long after his parole is served.[46]
[46] Transcript, 58-59.
It is trite to observe that the protection of the Australian community would be advanced by removing an offender with a history of serious offending such as that of the Applicant to another country. The consideration at para 8.1.2 of Direction 99, being the risk to the Australian community should the Applicant commit further offences, weighs, as it must, against revocation of the Cancellation Decision. The Minister submits that the Applicant presents a “real, albeit not high, risk of re-offending”.[47] Noting the protective factors discussed above, I find that the first primary consideration should be lightly weighted in this particular instance.
[47] Respondent’s SFIC, 9 at para [50].
I therefore find that the first primary consideration, being protection of the Australian community, weighs in favour of non-revocation of the Cancellation Decision. I further find that this consideration should be lightly weighted.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
Both parties were of the view that the second primary consideration, being family violence committed by the non-citizen is not relevant in the present case. I agree.
Third primary consideration: The strength nature and duration of ties to Australia (para 8.3)
Paragraph 8.3 of Direction No 99 provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)The length of time the non-citizen has resided in the Australian community, noting that:
i.       considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.      more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.     less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Minister’s SFIC and submissions made the following contentions:[48]
54. The Minister accepts that the applicant has strong ties to a number of immediate family members, including his mother, step-father, brother and children and the impact on these individuals would be not insignificant.
55. The Minister also accepts that the applicant has a number of social ties to people in the community, who have stated their support for the applicant. It is the Minister’s position that many of the statements are ‘distant’ social ties in the sense that a number of them are from individuals who know the applicant through his parents, or individuals who have lost contact with the applicant for some period of time and have only emerged as a result of supporting the applicant’s parole application and attesting to his prior character (it seems some years prior). Those statements should be given little weight.
56. The applicant arrived in Australia at the age of 11, and spent his formative years in Australia. The applicant has also had long periods of time where he has abstained from any offending and where he appears to have been able to maintain employment. This should, as per paragraph 8.3(4), be given considerable weight.
57. The Minister accepts that the strength, nature and duration of ties to Australia weighs strongly in favour of revocation.
(Footnotes omitted)
[48] Respondent’s SFIC, 9-10.
The Applicant’s submissions adopted the same approach:[49]
Australia is the place i call home this where all my family, friends, and my kids lives this is where I grew up and this where all my milestones in life started and will end I do not wish to go back to the Philippines as I never grow up there but yes i was born there but not set any milestones there, I do not know nothing about the Philippines. I and my family only went back there for holiday to see my grandmother to make sure her well being was good and yes I have uncle there but they are spread out through the country and I don't know where they are. The only way for me to settle in the Philippines was through my grandmother but she is no longer with us, she passed away last year, she is the only one that I know and lived with when I was young. so for me to go back to my birth country I won't be able to support my children as the philippines currency or the pay in the philippines wont be enough to cover myself living or even call a place home. I left the country when I was 10 or 11 years old. Ever since then my life pretty much has started here in Australia. Australia is my place i call home not the philippines i was only born there nothing else
I have a very good support network here in Australia. I have my family, my extended family, friends and my children. All these people are willing to give their full support to get me back on the right track in life. To be the person I was supposed to be a great father to my children, great son to my family, great brother to my baby brother, A great friend as i was before and good contribution to the Australia community. I also believe this was the reason I was given parole as I have significant support and have a plan to change my life to be more of a contributor to the community.
[49] A1.
These submissions were also substantially echoed in a number of support letters from friends and the in-person testimony at the hearing by the Applicant’s step-father who had shared parental responsibility of the Applicant with the Applicant’s mother when the Applicant was a child in the Philippines for a number of years prior to his arrival in Australia. Similar sentiments were also expressed by the Applicant’s sons in-person at the hearing.[50]
[50] Transcript, 83-97.
I find that the third primary consideration, being the strength nature and duration of ties to Australia, weighs in favour of revoking the Cancellation Decision.
I further find that this consideration should be heavily weighted.
Fourth primary consideration: The best interests of minor children in Australia affected by the decision (para 8.4)
Paragraph 8.4 of Direction No 99 provides:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
At the time of this decision, I find that both the Applicant’s biological sons T and J were under the age of 18 years.
The Minister’s SFIC and submissions relating to the fourth primary consideration were as follows:[51]
58. The Tribunal must consider the best interests of the following children:
58.1. the applicant’s first son, [J], aged 17 years; and
58.2. the applicant’s second son, [T], aged 9 years.
59. While the applicant has been separated from his children for some time, and in the case of [J], there is only a limited time before he turns 18, both children have expressed their clear desire for their father to remain in Australia.
60. It is not clear whether the children are aware of the applicant’s offending, nor what impact the offending has or may have had on the children, save for the impact of being separated from their father for a significant period of time. Given the period of separation already experienced, the impact of separation, noting the applicant can maintain contact via telephone and other means, if the applicant is removed may be lessened, though it will not be eliminated.
61. Nevertheless, the Minister accepts that the best interests of the children weighs heavily in favour of revocation.
(Footnotes omitted)
[51] Respondent’s SFIC, 10.
The Applicant made representations seeking revocation of the Cancellation Decision in the first instance. Those representations, dated 25 March 2019, included the following submission relating to the fourth primary consideration:[52]
I am a very grateful father of two children whom I am have a strong relationships with outside of prison. J is turning 13 on [date] and T is turning 6 on [date] this year. I have always tried to do the right thing as a father and supported my children both financially and emotionally. I have always aimed to be actively involved in my children's life. I pay for both my children to fly to Karratha every school holidays to spend time with my family and I. I am a big believe that children need their Father in their life as a positive role model and this is something I always strived to do for my boys, so when they would come to visit we would do various activities to bond as Father and Son such as 4x4ing, fishing, camping and exploring. Other times I would build up my annual leave and fly to their home towns to spend time with them. This was something my boys and I always talked about and looked forward to doing each school holidays. Although I am not proud of decisions I have made that have incarcerated me today I have always strived to be the best father and role model too my boys. From experience I know how hard it can be growing up as a young boy without a father figure in your life, and I worry about the repercussions my absents is having on my boys while im in prison, and even more so the affect it is going to have on them if I can't be in the country to see them and make up for the time I have lost once I am released. My boys understand where I am and that I won't be home for a while, but are also very positive and excited for what the future holds once I am released. It would pain me to miss the opportunity to watch my boys grow up and have the opportunity to be an active Father in their life. As a Father I can only wish to be their too support them as they grow up and be there for them as they reach all the milestones throughout life such as graduations, wedding, grandchildren and so much more. All of these mile stone it would be my boys that will miss the opportunity to have their Father present at, and something I think would strongly affect them emotionally throughout life.
[52] GD/52.
The Applicant’s step-father, Mr Lee Edwards, provided a letter in support of the Applicant dated 19 March 2023. This support letter included the following submission relating to the fourth primary consideration:[53]
Since early 2022 we, Mark's parents, have been the guardian of Mark's youngest son [T]. This became so due to the fact that [T]'s mother was not coping very well, trying to bring up a 9 going 10 year old up, that needs guidance and discipline from a fatherly figure. [T] does have insecure issues that have risen to the surface recently due to his father being free but not free! I personally can guarantee you that Mark will not “come off the rails” again! I have been talking to him constantly about everything and I am generally a good judge of character, I can see that Mark is back to being that family orientated person that everyone who knows his is! Both of his kids mothers are under financial pressure and stress. If Mark is to be deported, the assistance that his children's mother's need and require, will be gone forever! His kids need Mark in their lives! Mark through his own mistakes, has missed so much of their growing up! Mark is ready to be that father that I know he is! His ex partner's are waiting for the financial burden to ease as Mark returns to the workforce to once again be the supportive ex partner that wants the best for his kids. His kids have milestones coming up, [J] his oldest graduates from high school in September, [J] needs his father there for this great achievement. Mark missed his brother's graduation ceremony by being “detained in detention” as he had achieved parole prior to Michael's graduation. [T] will be starting high school in a couple of years! A big move for a kid with emotional needs that his dad needs to provide. Mark has missed alot of important issues with his children, Mark wants to be their father once again.
Mark's mother and I need him home, as we are struggling under the weight of expectation.
We expect Mark Anthony to be able to continue with his children, guide them through their own life experiences.
This is something that a step father in [J]'s situation, just won't be the same as guidance as from your own father!
A grandfather in [T]'s situation, once again won't be the same guidance as from your own father!
[53] A10.

Both minor children of the Applicant attended on the Tribunal at the hearing on 18 April 2023. With the consent of their nominated responsible adult or guardian, both children provided their own in-person evidence in support of the Applicant’s application.
Applicant’s elder son J
The Applicant’s son J is presently aged 17. Given the fact that J will turn 18 in less than 12 months, the opportunity for the Applicant to be a positive presence in J’s childhood appears to be at least chronologically restricted. J’s principal residence is presently with his mother and her current partner of some years. It is not expected that this will change in the foreseeable future. J does spend some school-holiday time with the Applicant’s parents in Karratha. Should the Applicant be released into the community, he will not be a day-to-day influence in J’s life. Nevertheless, there is a greater opportunity for the Applicant to play a role of significance in this child’s life in Karratha than if he were returned to the Philippines.
Applicant’s younger son T
The Applicant son T has recently turned 10 years of age. The opportunity for the Applicant to be a positive presence in T’s childhood appears to be significant, given that T’s principal residence is presently with the Applicant’s parents, at which address the Applicant would also reside if returned to the community. Accordingly, should the Applicant be released into the community, he will take on the significant role of primary caregiver for T on a day-to-day basis, in consultation with T’s mother. Such a role of significance in this child’s life would not be possible if the Applicant were returned to the Philippines.
I find that the fourth primary consideration, being the best interests of minor children in Australia affected by the decision, weighs in favour of revoking the Cancellation Decision.
I further find that this consideration should be heavily weighted.
Fifth primary consideration: Expectations of the Australian Community (para 8.5)
Paragraph 8.5 of Direction No 99 provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated in para 8.5, without independently assessing the community’s expectations in the particular case.[54] The principles set out in para 5.2 of Direction No 99 as set out in [36] above are also relevant to this consideration.
[54] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023) [8.5(4)].
In FYBR v Minister for Home Affairs (FYBR),[55] the Full Court considered the operation of the corresponding provisions in Ministerial Direction No 65 (Direction No 65)[56] which was a predecessor to Direction Nos 90 and 99. The relevant provisions of Direction No 99 contain generally similar wording to the corresponding provisions in Direction No 65.
[55] [2019] FCAFC 185; (2019) 272 FCR 454.
[56] Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014).
In Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[57] at [156], Deputy President Boyle summarised the effect of the Full Court’s judgment in FYBR, as follows:
…The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’ – expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Rehman). See also decisions of the Hon. John Pascoe AC CVO, Deputy President in Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [77]-[78].
[57] [2020] AATA 3953.
Justice Stewart in FYBR found at [89]-[91]:
It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.
(Emphasis omitted.)
In the same case Justice Charlesworth observed at [75] and [79]:
Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
...
...The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
(Emphasis omitted.)
The “narrow view” found by Perry J at first instance in FYBR, approved on review by the Full Court in FYBR, is reflected in the amendments to the Ministerial Direction which resulted in the additions in para 8.4(1) of Direction No 90 referring to a “norm”. This wording was carried over into para 8.5(1) of Direction No 99. Due to the application of the “norm” in para 8.5(1), and the deeming operation of the corresponding Direction as found by the Full Court in FYBR, this primary consideration weighs against the non-citizen holding a visa.
While [42] of Perry J’s decision at first instance in FYBR does refer to the consideration weighing in favour of refusing the revocation of the cancellation, “at least in most cases”, her Honour was there dealing with Direction No 65 which did not include the specific reference to the “norm” included in Direction No 99. Insofar as her Honour’s words “in at least most cases”, and the use of the word “norm” in Direction No 99[58] leave open the possibility that in some cases the consideration could weigh in favour of granting the non-citizen a visa, that would only be in exceptional cases, cases that justified rejecting the mandated “norm”. I do not accept that the circumstances of the present case are such that the norm, namely that this consideration weighs against the Applicant holding a visa, should not apply.
[58] See definition of “norm”: Macquarie Dictionary: “a standard, model, pattern”, Oxford English Dictionary: “that which is a model or a pattern; a type, a standard”.
What I must do, however, is to determine the weight that should be given to this consideration. Some guidance in this regard is provided by para 8.5(2) of Direction No 99, which provides that the Australian community expects that the Australian Government can, and should, refuse entry to non-citizens if they raise serious character concerns through conduct, in Australia or elsewhere, of the kind listed is sub-paras 8.5(2)(a)–(f) of Direction No 99.
The Minister’s SFIC contained the following submission, including a very limited concession, based on the broader context of the relevant primary consideration:
64. The Minister acknowledges that a higher level of tolerance can be afforded to the applicant, his having lived in Australia for most of his life and arriving as a child. However, the conduct engaged in by the applicant is of such a nature that, put simply, it would not be tolerated at all by the Australian community.
65. Significant weight must be placed on this consideration.
The Applicant made no submissions specifically addressing this relevant primary consideration.
Having found above that this primary consideration weighs against the Applicant holding a visa or against revoking the Cancellation Decision, I further find that significant weight must be placed on this consideration.
OTHER CONSIDERATIONS
Paragraph 9 of Direction No 99 sets out the “Other considerations” to be taken into account as follows:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
Legal consequences of decision under section 501 or 501CA (para 9.1)
Paragraph 9.1 of Direction No 99 provides:
(1)Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3)International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
The Minister’s SFIC made the following contentions:
67. The applicant made representations to be concerned of, or fear, return to the Philippines as he will live a life of poverty and be unable to provide for his children. Such claims do not raise any harm of a type within the nature of non-refoulement.
68. The Minister accepts, however, that given the applicant’s previous drug and alcohol history and despite his claims to be rehabilitated and able to abstain from drugs, removal may cause the applicant to relapse into drug-taking behaviour. There is country information to indicate that ‘accused drug users and dealers face a high risk of violence, including death, from both the Philippine National Police and vigilantes’. Accordingly, the applicant’s circumstances do, arguably, give rise to a non-refoulement claim.
(Footnotes removed.)
And:
70. The Minister submits that, in circumstances where the applicant can apply for a protection visa, the Tribunal need go no further than recognise that a possible claim arises and that it is open for the applicant to have that claim explored in the more appropriate context of a protection visa. That is all the more appropriate where, as here, no cogent, fulsome or supported claim has been made.
71. Accordingly, this consideration should be given neutral weight.
The country information referred to above is the most recent Department of Foreign Affairs and Trade (DFAT) country information report for the Philippines (23 August 2021) in the context of complimentary protection claims relevant to the risk of significant harm on return. In the case of the Applicant, he would return to the Philippines as a convicted drug user. In this respect, I note the precise wording of Direction No 99 paragraph 9.1(3) which is as follows:
International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
(Emphasis added.)
While I accept the Minister’s submission that “no cogent, fulsome or supported claim has been made” by the Applicant regarding the question of non-refoulement, it is sufficiently clear from both the available facts and the Minister’s own submissions that the Applicant’s circumstances do suggest the existence of a cognisable non-refoulement claim.
Even at an impressionistic level, it is sufficiently clear that DFAT assesses that a person in the Applicant’s position would “face a high risk of violence, including death, from both the Philippine National Police and vigilantes” and would engage Australia’s international non-refoulement obligations. In ordinary circumstances, it would be reasonably likely that an applicant who faces a “high risk” of arbitrary deprivation of life on return to a country might have access to a protection visa in Australia. However, bearing in mind the exclusion from the protection visa regime (at s 36(1C)(b) of the Migration Act) of persons who have been convicted of a “particularly serious crime” (defined at s 5M of the Migration Act), it is entirely possible that the Applicant might find himself in Australia without a visa and unable to be returned to the Philippines.
Accordingly, if the Applicant’s visa cancellation is not revoked, he could face a chronologically indeterminate period of administrative detention. Given that such a period of administrative detention might be served in the community, it is not (and necessarily cannot be) sufficiently clear what either the legal or practical consequences of the visa cancellation decision under review will be.
Given the circular and indeterminate reasoning which flows from an application of the first “other” consideration at paragraph 9.1 to the Applicant’s circumstances, I find that the consideration weighs neutrally in both the evaluative and weighing exercises required by Direction No 99 in this matter.
Extent of impediments if removed (para 9.2)
Paragraph 9.2 of Direction No 99 provides:
(1) Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a.    the non-citizen's age and health;
b.    whether there are substantial language or cultural barriers; and
c.     any social, medical and/or economic support available to them in that country.
The Minister’s SFIC contained the following contentions of relevance:
73. The applicant is 34 years of age, and has not identified any health issues. In any event, the country information indicates that healthcare services are available, though variable.
74. It is unclear the extent to which the applicant remains fluent in the Filipino language. However, it is noted that English is an official language in the Philippines. While the Minister accepts that the applicant may face some difficulties, it is noted that the applicant has provided supporting letters from members of the Filipino community, suggesting the applicant has maintained cultural links.
75. The applicant identifies a network of 51 relatives in the Philippines. The applicant does not claim to have no contact with these people, only that they cannot support him financially. While it is accepted that the applicant may face emotional hardship if returned to the Philippines, such impediments would by no means be insurmountable. The applicant will not be returning with no support. He has family ties in the Philippines who will be able to offer support for him to reintegrate, and while the applicant will be separated from his immediate family, he will still be able to maintain connections with those in Australia.
76. Further, the unemployment rate in the Philippines, as reported on 8 February 2023, was 4.3%. This is only slightly higher than Australia (being 3.5%). The sectors in which employment had increased and grown include areas where the applicant has studied or gained experience. For example, the applicant has completed Horticulture and Construction qualifications. The Minister therefore contends that the applicant has high prospects of obtaining employment and being able to support himself if removed.
77. The Minister contends that this consideration should be given no more than cursory weight in favour of revocation.
(Footnotes removed.)

The Applicant’s written submission (A1) included the following relevant statements:
Australia is the place i call home this where all my family, friends, and my kids lives this is where I grew up and this where all my milestones in life started and will end I do not wish to go back to the Philippines as I never grow up there but yes i was born there but not set any milestones there, I do not know nothing about the Philippines, I and my family only went back there for holiday to see my grandmother to make sure her well being was good and yes I have uncle there but they are spread out through the country and I don't know where they are. The only way for me to settle in the Philippines was through my grandmother but she is no longer with us, she passed away last year, she is the only one that I know and lived with when I was young. so for me to go back to my birth country I won't be able to support my children as the philippines currency or the pay in the philippines wont be enough to cover myself living or even call a place home. I left the country when I was 10 or 11 years old. Ever since then my life pretty much has started here in Australia. Australia is my place I call home not the philippines i was only born there nothing else
In addition to this evidence, the Applicant’s step-father gave evidence at the hearing to the effect that there is a family owned house in the Philippines that has been secured as a future retirement residence for the Applicant’s mother and step-father. That dwelling is currently unoccupied and would be available to the Applicant for a reasonable period of time, should he be returned to the Philippines.
While further examination of this other consideration in isolation can be demonstrated in the material before the Tribunal. All of this information satisfies me at a theoretical level that, while the Applicant would face an initial period of dislocation and adjustment to living in what is now essentially a foreign country to him, he would enjoy many advantages and facilities that would not naturally accrue to internally dislocated Philippine citizens. Accordingly, taking all of the evidence specifically touching on this other consideration together and in isolation, I find that it weighs in favour of not revoking the cancellation of the Applicant’s visa.
It makes little logical sense to weigh this other primary consideration in a vacuum. Given my findings above that the Applicant appears likely to engage Australia’s international non-refoulement obligations, there seems to be little or no practical likelihood that he would be returned to the Philippines. Factual findings made in the absence of logical underlying assumptions may pass the test of strict legal reasonableness and still fail the fundamental legal test of illogicality or irrationality. This Applicant is not minded to return to the Philippines voluntarily and, on the basis of DFAT’s own assessment, he appears to have a cognisable well-founded fear of harm in that country giving rise to non-refoulement protections. For this reason, I find that this other consideration should be given neutral weight for present purposes.
Impact on victims (para 9.3)
Both parties treated this consideration as not being relevant in the present case. I agree.
Impact on Australian business interests (para 9.4)
Inscrutably, while paragraph 9.4 of Direction No 99 comprises but one sentence of text, it appears in a numbered paragraph form as follows:
(1) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Minister’s SFIC contains the following observation of relevance to this other consideration:
80. The applicant’s employment history, which includes roles such as a Supply Base Operator, Store Person, Gas Filler and Forklift Driver, is not of such a nature that if the applicant were removed from Australia this would mean that the successful completion of a major project or the delivery of an important service in Australia would be compromised.
No submissions of potential direct relevance to this other consideration were made by the Applicant. Although the Applicant does not have employment while in administrative detention, it is reasonably clear on the available evidence that he has the opportunity to obtain gainful employment by the good offices of his step-father’s employer (on the basis of his good level of vocational qualifications), in the event that he returns to the community. Accordingly, it is open to me to find on the evidence that there would be an immeasurably positive impact on Australian business interests if the Applicant is allowed to remain in Australia. I so find.
Given that the Applicant’s likely immediate employment link(s) would not significantly impact upon the delivery of a major project, or delivery of an important service in Australia, I find that this other consideration should be given neutral weight for present purposes.
THE WEIGHING EXERCISE
Direction 99 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 99 sets out the way in which the relevant considerations are to be taken into account.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under earlier Ministerial Direction issued under s 499 of the Migration Act, the same considerations apply to the exercise required by Direction 99 which is materially in the same terms to those earlier Ministerial Directions. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection (Suleiman)[59] and the Full Court judgment in Minister for Home Affairs v HSKJ (HSKJ).[60]
[59] [2018] FCA 594.
[60] [2018] FCAFC 217; (2018) 266 FCR 591.
Colvin J’s judgment in Suleiman was considered by Wigney J in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[61] At [21], Wigney J cited [23] of Colvin J’s judgment which was as follows:
The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non‑refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
(Emphasis omitted.)
[61] [2021] FCA 775.
Wigney J then observed at [22]:
It is the last sentence of this paragraph of Suleiman which has given rise to the issue in this case. That issue will be discussed in more detail later. It suffices at this point to note that, with the greatest respect to Colvin J, this analysis of paragraph 8 of the relevant direction tends to overcomplicate or over intellectualise the issue. More significantly, it may lead decision-makers into error. Paragraph 8 of Direction no. 79 is expressed in simple terms. Relevantly, decision-makers must take into account the primary and other considerations that are relevant to the individual case and, when it comes to weighing up the relevant considerations, have regard to three relevant principles: first, both primary and other considerations may weigh in favour of, or against, whether or not to revoke a cancellation of a visa; second, primary conditions should generally be given greater weight than other considerations; and third, one or more primary considerations may outweigh other considerations. It is difficult to see why any further elaboration of those simple principles or propositions is necessary or warranted.
(Emphasis omitted.)
I adopt the approach directed by the above cases.
IN SUMMARY
Primary Considerations
Primary Consideration 1
For the reasons set out in paras [48]–[79] above, the first primary consideration, being protection of the Australian community, weighs in favour of non-revocation of the Cancellation Decision. I further find that this consideration should be lightly weighted.
Primary Consideration 2
For the reasons set out in para [80] above, the second primary consideration, being family violence committed by the non-citizen, is not relevant in the present case. I agree.
Primary Consideration 3
For the reasons set out in paras [81]–[86] above, the third primary consideration, being the strength nature and duration of ties to Australia, weighs in favour of revoking the Cancellation Decision. I further find that this consideration should be heavily weighted.
Primary Consideration 4
For the reasons set out at [87]–[96] above, the fourth primary consideration, being the best interests of minor children in Australia affected by the decision, weighs in favour of revoking the Cancellation Decision. I further find that this consideration should be heavily weighted.
Primary Consideration 5
For the reasons set out at [97]–[108] above, the fifth primary consideration, being the expectations of the Australian community, weighs against revocation of the Cancellation Decision. I further find that significant weight must be placed on this consideration.
Other Considerations
Legal consequences of the decision
For the reasons set out above in paras [110]–[117] I find that the first other consideration, being the legal consequences of the decision, weighs neutrally in both the evaluative and weighing exercises that are required.
Extent of impediments
With respect to the second other consideration, being the extent of impediments if removed, the Tribunal has found at paras [118]–[123] above that this consideration weighs in favour of not revoking the Cancellation Decision. I further find that this other consideration should be given neutral weight for present purposes.
Impact on victims
With respect to the third other consideration, being the impact on victims, for the reasons set out above at para [124] both parties treated this consideration as not being relevant in the present case. I agree.
Impact on Australian business interests
Having considered the evidence before it above at paras [125]–[128], there would be an immeasurably positive impact on Australian business interests if the Applicant is allowed to remain in Australia. This other consideration should be given neutral weight for present purposes.
Conclusion
As noted by Deputy President Boyle in James and Minister for Immigration, Citizenship, and Multicultural Affairs,[62] whether a consideration does or does not outweigh any other particular consideration (or considerations) is not the relevant test. In weighing the considerations, primary and other, the exercise is not one of comparing one against another, but rather of giving weight to each of the considerations and weighing them as a whole, those for and those against revocation and determining which have the greater weight in total, those for or those against revocation.
[62][2022] AATA 2390, [112].
Having weighed the relevant considerations in favour of the revocation of the Cancellation Decision and the relevant considerations against the revocation of the Cancellation Decision, the Tribunal finds that the considerations in favour of the revocation of the Cancellation Decision outweigh the considerations against the revocation of the Cancellation Decision.
Accordingly, the Tribunal finds that the discretion to revoke the reviewable decision, being the Cancellation Decision, should be exercised in favour of the Applicant.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 14 February 2023, is set aside and substituted with the decision that the cancellation of the Applicant's visa be revoked under s 501CA(4)(b)(ii) of the Migration Act.

I certify that the preceding 146 (one hundred and forty-six) paragraphs are a true copy of the reasons for the decision herein of Member Dr Huntly

..........................[Sgd].....................................
Associate
Dated: 12 July 2023

Date of hearing:
Date of decision:

18 April 2023

2 May 2023

Applicant: Self-represented

Counsel for the Respondent: Mr A Gerrard

Solicitors for the Respondent: Australian Government Solicitor
Annexure A

Court Court Date Offence Date Offence Result

Perth Magistrates Court 20/02/2007 11/02/2007 Drive Contrary to Learner's Permit Fine: $300

Perth Magistrates Court 20/02/2007 11/02/2007 Reckless Driving Fine: $800; DISQ HOLD/OBT MDL 9 MTHS

Perth Magistrates Court 20/02/2007 11/02/2007 Excess 0.05% Fine: $200; DISQ HOLD/OBT MDL 3 MTHS MAND CONC

Perth Magistrates Court 31/10/2007 22/05/2007
Possession of Prohibited Drugs with Intent to Sell or Supply

(Amphetamine)
Fine: $700

Perth Magistrates Court 02/08/2007 22/05/2007 No Motor Drivers Licence - Under Suspension Fine: $400; DISQ HOLD/OBT MDL 9 MTHS CUM

Perth Magistrates Court 02/08/2007 10/06/2007 Suspects and others may be ordered to move on Fine: $250

Perth Magistrates Court 02/08/2007 14/06/2007 Breach of Bail (Fail to appear soon after) Fine: $400

Perth Magistrates Court 02/08/2007 22/06/2007 Breach of Bail (Fail to appear soon after) Fine: $400

Fremantle Magistrates Court 20/06/2008 19/12/2007 Aggravated Burglary and
Commit Offence in Dwelling Community Based Order: 9 months

Fremantle Magistrates Court 20/06/2008 19/12/2007 Aggravated Burglary and
Commit Offence in Dwelling SUSP IMP ORDER: 6 MTHS 1 DAY IMP CONC SUSPENDED FOR 12 MTHS

Fremantle Magistrates Court 20/06/2008 19/12/2007 Aggravated Burglary with
intent in Dwelling Community Based Order: 9 months

Fremantle Magistrates Court 20/06/2008 19/12/2007 Aggravated Burglary with
intent in Dwelling Community Based Order: 9 months

Fremantle Magistrates Court 20/06/2008 19/12/2007 Stealing Fine: $500

Roebourne Magistrates Court 02/02/2010 19/12/2007 Breach OF CBO (ORDER OF 31.3.09) No Punishment S.46

Roebourne Magistrates Court 02/02/2010 19/12/2007 Breach OF CBO (ORDER OF 31.3.09) No Punishment S.46

Roebourne Magistrates Court 02/02/2010 19/12/2007 Breach OF CBO (ORDER OF 31.3.09) No Punishment S.46

Roebourne Magistrates Court 02/02/2010 19/12/2007 BREACH OF SUSPENDED SENT (ORDER OF 20.6.08) Counts - 1; Community Based Order;
Order to continue $300 (GLOBAL) For Breach

Karratha Magistrates Court 31/03/2009 19/12/2007 BREACH OF CBO (ORDER OF 20.6.08)
Counts - 3; Community Based Order;

Order to continue $300 (GLOBAL) For Breach

Karratha Magistrates Court 30/09/2009 16/08/2009 Exceed 0.08g alcohol per 100ml of blood Fine: $600; MDL Cancelled 51 RTA: 4 mths; mand

Karratha Magistrates Court 30/09/2009 16/08/2009
No Authority to Drive - Driving during night-time restricted

hours
Fine: $50

Karratha Magistrates Court 02/06/2010 05/05/2010 No Authority to Drive - Never held and Disqualified Fine: $1000; Mdl Disqualified 9 months

Karratha Magistrates Court 28/05/2012 19/02/2012 Exceed 0.02g alcohol per 100ml of blood Fine: $300; Mdl Disqualified 3 months

Karratha Magistrates Court 05/06/2012 22/04/2012 Exceed speed limit in a speed zone; Between 30 and 40km/h Fine: $850

Karratha Magistrates Court 05/06/2012 22/04/2012 No Authority to Drive - Suspended Fine: $2000; Mdl Disqualified 12 months

Karratha Magistrates Court 26/07/2012 22/06/2012 No Authority to Drive - Suspended Fine: $1000; Mdl Disqualified 9 months

Karratha Magistrates Court 26/07/2012 22/06/2012 Unlicensed Vehicle (Owner/Driver) Fine: $100

South Hedland District Court of WA 27/08/2018 04/03/2017 Aggravated home burglary and commit Imprisonment: 4 years

South Hedland District Court of WA 27/08/2018 04/03/2017 Caused GBH in the course of an aggravated home burglary Imprisonment: 7 years 6 months

South Hedland District Court of WA 27/08/2018 04/03/2017 Criminal Damage or Destruction of Property Imprisonment: 6 months

Date of hearing: Date of decision:	18 April 2023 2 May 2023
Applicant:	Self-represented
Counsel for the Respondent:	Mr A Gerrard
Solicitors for the Respondent:	Australian Government Solicitor

Court	Court Date	Offence Date	Offence	Result
Perth Magistrates Court	20/02/2007	11/02/2007	Drive Contrary to Learner's Permit	Fine: $300
Perth Magistrates Court	20/02/2007	11/02/2007	Reckless Driving	Fine: $800; DISQ HOLD/OBT MDL 9 MTHS
Perth Magistrates Court	20/02/2007	11/02/2007	Excess 0.05%	Fine: $200; DISQ HOLD/OBT MDL 3 MTHS MAND CONC
Perth Magistrates Court	31/10/2007	22/05/2007	Possession of Prohibited Drugs with Intent to Sell or Supply (Amphetamine)	Fine: $700
Perth Magistrates Court	02/08/2007	22/05/2007	No Motor Drivers Licence - Under Suspension	Fine: $400; DISQ HOLD/OBT MDL 9 MTHS CUM
Perth Magistrates Court	02/08/2007	10/06/2007	Suspects and others may be ordered to move on	Fine: $250
Perth Magistrates Court	02/08/2007	14/06/2007	Breach of Bail (Fail to appear soon after)	Fine: $400
Perth Magistrates Court	02/08/2007	22/06/2007	Breach of Bail (Fail to appear soon after)	Fine: $400
Fremantle Magistrates Court	20/06/2008	19/12/2007	Aggravated Burglary and Commit Offence in Dwelling	Community Based Order: 9 months
Fremantle Magistrates Court	20/06/2008	19/12/2007	Aggravated Burglary and Commit Offence in Dwelling	SUSP IMP ORDER: 6 MTHS 1 DAY IMP CONC SUSPENDED FOR 12 MTHS
Fremantle Magistrates Court	20/06/2008	19/12/2007	Aggravated Burglary with intent in Dwelling	Community Based Order: 9 months
Fremantle Magistrates Court	20/06/2008	19/12/2007	Aggravated Burglary with intent in Dwelling	Community Based Order: 9 months
Fremantle Magistrates Court	20/06/2008	19/12/2007	Stealing	Fine: $500
Roebourne Magistrates Court	02/02/2010	19/12/2007	Breach OF CBO (ORDER OF 31.3.09)	No Punishment S.46
Roebourne Magistrates Court	02/02/2010	19/12/2007	Breach OF CBO (ORDER OF 31.3.09)	No Punishment S.46
Roebourne Magistrates Court	02/02/2010	19/12/2007	Breach OF CBO (ORDER OF 31.3.09)	No Punishment S.46
Roebourne Magistrates Court	02/02/2010	19/12/2007	BREACH OF SUSPENDED SENT (ORDER OF 20.6.08)	Counts - 1; Community Based Order; Order to continue $300 (GLOBAL) For Breach
Karratha Magistrates Court	31/03/2009	19/12/2007	BREACH OF CBO (ORDER OF 20.6.08)	Counts - 3; Community Based Order; Order to continue $300 (GLOBAL) For Breach
Karratha Magistrates Court	30/09/2009	16/08/2009	Exceed 0.08g alcohol per 100ml of blood	Fine: $600; MDL Cancelled 51 RTA: 4 mths; mand
Karratha Magistrates Court	30/09/2009	16/08/2009	No Authority to Drive - Driving during night-time restricted hours	Fine: $50
Karratha Magistrates Court	02/06/2010	05/05/2010	No Authority to Drive - Never held and Disqualified	Fine: $1000; Mdl Disqualified 9 months
Karratha Magistrates Court	28/05/2012	19/02/2012	Exceed 0.02g alcohol per 100ml of blood	Fine: $300; Mdl Disqualified 3 months
Karratha Magistrates Court	05/06/2012	22/04/2012	Exceed speed limit in a speed zone; Between 30 and 40km/h	Fine: $850
Karratha Magistrates Court	05/06/2012	22/04/2012	No Authority to Drive - Suspended	Fine: $2000; Mdl Disqualified 12 months
Karratha Magistrates Court	26/07/2012	22/06/2012	No Authority to Drive - Suspended	Fine: $1000; Mdl Disqualified 9 months
Karratha Magistrates Court	26/07/2012	22/06/2012	Unlicensed Vehicle (Owner/Driver)	Fine: $100
South Hedland District Court of WA	27/08/2018	04/03/2017	Aggravated home burglary and commit	Imprisonment: 4 years
South Hedland District Court of WA	27/08/2018	04/03/2017	Caused GBH in the course of an aggravated home burglary	Imprisonment: 7 years 6 months
South Hedland District Court of WA	27/08/2018	04/03/2017	Criminal Damage or Destruction of Property	Imprisonment: 6 months