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

JGKQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 5040 (21 December 2021)
Division:GENERAL DIVISION
File Number: 2021/7323
Re:JGKQ
APPLICANT

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

Decision
Tribunal:A G Melick AO SC, Deputy President
Date of Decision: 21 December 2021
Date of Written Reasons: 17 January 2022

Place: Hobart
The decision under review is set aside and substituted with a finding that the cancellation of the Applicant’s visa is revoked.

......................[sgd]..................................................
A G Melick AO SC, Deputy President
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class BF transitional (Permanent) visa - where Applicant does not pass the character test – whether the discretion to revoke the visa cancellation should be exercised – consideration of Ministerial Direction No. 90 – decision under review set aside and substituted
Legislation
Administrative Appeals Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Do and Minister for Immigration and Border Protection [2016] AATA 390
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ)
Jacobs and Minister for Immigration and Border Protection (Migration) [2020] AATA 1524
Khalil v Minister for Home Affairs [2019] FCAFC 151; (2019) 271 FCR 326
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
VXKK and Minister for Home Affairs (Migration) [2018] AATA 3268
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Glen Bramley, Morag Treanor, Filip Sosenko, Mandy Littlewood, ‘State of Hunger: Building the evidence on poverty, destitution, and food insecurity in the UK. Year Two Main Report’ Heriot-Watt University, The Trussell Trust (May 2021)
Universal Credit Regulations 2013 (UK)
REASONS FOR DECISION
A G Melick AO SC, Deputy President
17 January 2022
INTRODUCTION AND BACKGROUND

The Applicant is 51 years old and a citizen of the United Kingdom. He was born in Wales and arrived in Australia in 1971 with his parents at the age of one. The Applicant formerly held a Class BF transitional (Permanent) visa. The decision not to revoke the cancellation of that visa is the subject of this application.
On 21 December 2018, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that the Applicant did not pass the character test and was serving a full time custodial sentence.[1] On 14 January 2019, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[2] On 28 September 2021, the Respondent decided not to revoke the cancellation.[3]
[1] G-documents, G18, 138.
[2] G-documents, G11, 60.
[3] G-documents, G2, 7.
The Applicant subsequently lodged an application for review in this Tribunal on 8 October 2021.[4] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[4] G-documents, G1, 1-3
The Tribunal heard this matter on 1 and 2 December by Microsoft Teams. Ms Stephanie Blaker of Legal Aid New South Wales appeared for the Applicant. Mr Jonathon Hutton of Australian Government Solicitor appeared for the Respondent. The Applicant gave oral evidence by video-link at the hearing and called Professor Bruce Stevens to give oral evidence. The Tribunal also received oral evidence from Ms Sukkar and the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
EVIDENCe
Background and offending
The Applicant has an extensive history of offending, beginning in 1987 when the Applicant was approximately 16 years of age. This offending is summarised as follows:
a)five assaults, including one assault involving actual bodily harm;
b)48 stealing offences, the majority of which involve breaking and entering;
c)two breaches of AVOs;
d)seven damage or destroy property offences;
e)six drug-related offences;
f)two offences for using offensive language/conduct;
g)Offences for driving unlicenced, a high range PCA, breaking a bottle in public, stalking/intimidation and bailing to comply with bail conditions.
I also reproduce a table provided by the Respondent detailing the Applicant’s history of convictions:[5]
[5] Respondent’s Statement of Facts, Issues and Contentions, 2.

Offence/s Sentencing date Sentence

1. Offensive language 15.3.1990 $200 fine

2. Unlicenced Driver 7.8.1990 $100 fine

3. High Range PCA 7.8.1990 $500 fine; 18-month suspension of licence

4. Break, Enter and Steal 15.7.1991 200 hours community service order

5. Goods in custody suspected of being stolen 21.10.1991

6. Receiving stolen goods 11.3.1992 3 months’ imprisonment; reduced to $500 recognisance, 3-year good behaviour

7. Malicious damage 11.8.1994 $500 fine, $25 compensation

8. Assault (2 counts) 11.8.1994 $2000 recognisance, 2-year good behaviour

9. Malicious damage 5.10.1994 $100 fine

10. Break bottle in public place 5.10.1994 $100 fine

11. Offensive conduct 5.10.1994 $150 fine

Enters custody (5.7.1996 – 4.12.1999)

12. Stealing (3 counts) 24.6.1996 100 hours community service (for each count)

13. Goods in custody suspected of being stolen 24.6.1996 3 months periodic detention

14. Receiving stolen goods 24.6.1996 3 months periodic detention

15. Larceny 24.6.1996 3 months periodic detention

16. Break, Enter and Steal 24.6.1996 6 months periodic detention

17. Breach of AVO 24.6.1996 6 months periodic detention

18. Assault 24.6.1996 6 months periodic detention

19. Self-administer prohibited drug (2 counts)
15.8.1996

20. Steal motor vehicle (2 counts) 15.8.1996

21. Fraudulently appropriate property 15.8.1996

22. Break, Enter and Steal (12 counts) 15.8.1996

23. Steal 15.8.1996

24. Administer prohibited drug 15.8.1996

25. Steal from dwelling house 15.8.1996

26. Goods in custody suspected of being stolen 15.8.1996 6 months periodic detention

27. Assault 15.8.1996 6 months periodic detention

28. Dispose of stolen property 15.8.1996 6 months periodic detention

29. Break, Enter and Steal 15.8.1996 6 months periodic detention

30. Contravene AVO 15.8.1996 6 months periodic detention

31. Stealing 15.8.1996 6 months periodic detention

32. Break, Enter and Steal (3 counts) 14.10.1996 Fixed term 18 months’ imprisonment

33. Break, Enter and Steal 14.10.1996 Fixed term 3 years, 2 months, and 18 days’ imprisonment

Leaves custody: 4.12.1999

34. Break, Enter with intent to Steal 4.7.2000 12 months’ imprisonment

35.
Attempted Break, Enter with intent to Steal 4.7.2000 12 months’ imprisonment

Enters custody (19.7.2000 – 1.12.2000)

Leaves custody: 1.12.2000

Enters custody (12.4.2007 – 17.4.2008)

Leaves custody: 17.4.2008

36. Possess prohibited drug 21.10.2010 $400 fine

37.
Stalk/intimidate, intend fear of physical/mental harm 21.10.2010 Section 9 bond 2 years, comply with AVO

38. Destroy or damage property 21.10.2010 Section 9 bond 2 years

39. Supply specified substance otherwise than by wholesale 17.05.2010 Section 9 bond 2

40.
Enter inclosed land without lawful excuse 3.7.2013 $200 fine

41.
Destroy or damage property 3.7.2013 $200 fine

42.
Possess prohibited drug 27.7.2016 Section 9 bond, 12 months (bond called up 31.1.2018)

43.
Goods in person custody suspected of being stolen 31.1.2018 4 months’ imprisonment (suspended on entry into bond)

Enters custody (20.8.2018 – 15.11.2020, into Immigration Detention)

44. Break and enter dwelling house with intent to steal 20.9.2018 19 months’ imprisonment (aggregate sentence)

45. Larceny 20.9.2018 19 months’ imprisonment (aggregate sentence)

46. Destroy or damage property 20.9.2018 Section 10A conviction with no penalty

47. Enter building/land with intent to commit indictable offence 20.9.2018 19 months’ imprisonment (aggregate sentence)

48. Destroy/damage property 20.9.2018 19 months’ imprisonment (aggregate sentence)

49.
Commit s 114 offence (being armed with intent to commit indicatable offence), having previous conviction 20.9.2018 19 months’ imprisonment (aggregate sentence)

50. Break and enter house, stealing 20.9.2018 19 months’ imprisonment (aggregate sentence)

51. Break and enter dwelling home with intent to steal 20.9.2018 19 months’ imprisonment (aggregate sentence)

52. Found with intent to commit indictable offence, previous conviction 20.9.2018 19 months’ imprisonment (aggregate sentence)

53. Destroy or damage property 20.9.2018 19 months’ imprisonment (aggregate sentence)

54. Fail to appear in accordance with bail acknowledgement 20.9.2018 Section 10A conviction with no penalty

55. Goods in personal custody suspected of being stolen 20.9.2018 19 months’ imprisonment (aggregate sentence)

56. Aggravated enter dwelling with intent (knowing people there) 5.10.2018 3 years’ imprisonment (aggregate sentence)

57. Assault occasioning actual bodily harm 5.10.2018 3 years’ imprisonment (aggregate sentence)

The Tribunal notes the 12 offences for which the Applicant was convicted on 20 September 2018 occurred in February 2018 and on 17 August 2018. There was therefore a period between March 2008 when the Applicant leaves custody and February 2018 where the Applicant is not convicted of an offence amounting to an immediate custodial sentence.
Applicant
The Applicant’s oral evidence at the hearing was frank and generally accountable. He willingly admitted and reflected upon most of his past offending. The Applicant expressed a strong desire for self-improvement and told the Tribunal that he was now prepared to engage in the services available to him to facilitate that change.
He struck the Tribunal as being particularly vulnerable due to his substance dependencies and lack of positive support network. He also recently disclosed an incident of sexual abuse he suffered while residing in state care as a youth. While the effect of this experience is difficult to measure, the Tribunal recognises the trauma the Applicant has potentially suffered as a result and how this may have informed his life choices to date.
During examination in chief, the Applicant gave evidence about his intentions should be released into the community, and the supports he had relied on in the past. Should he be released into the community; the Applicant told the Tribunal he would seek further counselling and move to Tasmania to engage in a quiet life away from troubles.[6] He spoke about the positive experience he had seeking counselling in custody:
“I think it's helped greatly. I just - like, I always had sort of anger issues. And in gaol there's always - the anger around. It's just an angry place. And there was a lot of situations that before I'd done the counselling there, I believe I would have acted on some things. But I just looked at it differently, and walked way, rather than face it like I always have done, you know”.[7]
[6] Transcript, 8.
[7] Transcript, 8.
When asked about how he supported himself, he explained that he had been on the Disability Support Pension (DSP) since suffering an injury playing Rugby League. He explained that he had been prescribed opiates to aid the injury, and that having taken opiates for 20 years, he was opiate dependent.[8]
[8] Transcript, 9.
During cross-examination, the Applicant was asked about his family. He gave evidence that although he got along with his siblings, he was out of touch with his two brothers and sister, having only spoken to them once in the past 10, 20 and three years respectively. He was close with his mother, but she has since died, and he was unaware until a few weeks before the hearing when he contacted one of his brothers.[9]
[9] Transcript, 10-11.
The Applicant was asked about his consumption of drugs and alcohol. The Applicant said that he began to drink alcohol and smoke marijuana at the age of 15 after he was sexually abused while living in state care.[10] He said that he did think he had a problem with alcohol in the past but had stopped drinking for a period while living in Tasmania between 2000-2005.[11]
[10] Transcript, 14.
[11] Transcript, 15.
He gave evidence that he stopped consuming marijuana while was still a teenager due to feelings of sickness and paranoia. The Applicant also had used heroin in the past, and although he stated that he had ceased using in 1996, a Parole Report in the Respondent’s tender bundle reported the Applicant having attempted to use heroine to overdose while in gaol in 2000.[12] He denied this occurrence.
[12] Transcript, 15.
The Applicant was asked about his previous two significant relationships. The Applicant was in a relationship with his first partner, Ms I for three years. Ms I took out an AVO against the Applicant after an incident of physical violence but the Applicant strongly denied these events. The Applicant did not see Ms I after the AVO was taken out against him.
The Applicant also has a son with another woman, Ms C. He is no longer in contact with his son or Ms C, although he gave evidence that his son had expressed a desire to gradually introduce contact. The Applicant had intended to write to him, but he then entered custody and has not attempted to do so since.
The Applicant was also asked about his friendships. He indicated that he had a few friends, but he did not know their phone numbers. He accepted that most of his friends were previous-offenders and indicated that if he were released from detention then he would only reach out to friends who had never been in trouble with the law.
The Respondent questioned the Applicant at length about his substantial criminal history. That evidence can be summarised as follows:
a.    The Applicant was first convicted of a break and enter offence in the Children’s Court in 1987. The Applicant explained that he had been in the company of older friends who encouraged him to break into a property via a window due to his small size.
b.    Subsequently, the Applicant was convicted of a drink and drive offences and two assault offences.
c.     In 1996, the Applicant was convicted of a series of break and enter offences. The sentencing comments of Judge Ducker were tendered in evidence. When asked about this offending, the Applicant explained that he was using heroin at the time and was stealing in order to fund his dependency.
d.    The Applicant was questioned about an incident in 2012 where he broke into a friend’s home to retrieve a television that he had lent to her, and that she had refused to return. The Applicant did not deny any circumstances of the offending but said that any threats were likely made out of anger. He did not consider himself “one to stab someone”.[13]
e.    The Applicant was then asked about the aggravated assault that took place in 2018. The Applicant had attended his friends home unannounced and during an altercation, he hit his friend in the head with a hammer. The altercation arose because the victim allegedly stole the Applicant’s phone and sold it to buy pills. The hammer belonged to the victim and the victim hit the Applicant with it on the knee before the Applicant retrieved the hammer and retaliated by hitting the victim in the head. It was put to the Applicant that he said to the victim “I am going to kill you, you piece of shit”. The Applicant did not deny it, and again suggested that it was said out of anger rather than any genuine intent. He agreed that alcohol was a factor in this offending and also indicated he was taking prescription pills at the time.
f.   A further incident occurred in 2018 where the Applicant appeared to be banging a large piece of wood against the back of a nightclub door. When asked whether he recalled this offending, the Applicant stated “vaguely, I have no idea what I was doing”. During 2018, the Applicant gave evidence that he had been using Xanax to overcome the anxiety associated with the death of a friend from an overdose. He also reported being on methadone and using Xanax.
g.    The Applicant was also taken to another offence that occurred in 2018 that involved the Applicant breaking into the Wollongong Morgue. The Applicant stated he was ashamed of this offending and that he wouldn’t have believed that he did it had it not been for the CCTV footage. He confirmed that he had been taking Xanax at the time of the offending although it was against his bail conditions.
h.    The Applicant was finally asked about offending that took place while the Applicant was most recently in custody. The Applicant had manufactured his own tattoo gun and had been illegally tattooing other inmates. When asked about this offending, the Applicant said:
“You know, it's not an illegal thing outside. And it's something - like I said, it's an escape. I didn't see it as a bad thing. It wasn't like I was using drugs or anything like that, or making knives for people. And I do it outside too. I make a bit of money in my pocket, you know”.[14]
[13] Transcript, 27.
[14] Transcript, 36.
The Applicant was also asked about his rehabilitation. The Applicant gave evidence that he had engaged in EQUIPS training and Narcotics Anonymous. Despite not being very good in groups due to his social anxiety, the Applicant stated that he found the Narcotics Anonymous course to be particularly helpful.[15]
[15] Transcript, 38.
It was unclear on the evidence how many courses the Applicant had attended, and whether he had completed each of the courses he had attempted. The Applicant gave evidence that his reason for not completing some courses had been that he was moved from various facilities that prevented his ongoing participation.[16]
[16] Transcript, 38.
The Applicant was also asked about his experiences engaging in counselling. In 2018 the Applicant spoke with a community corrections officer. Although he was unable to recall the name of the person he spoke to, he viewed the sessions as being pivotal in prompting a change in his attitude:
“… It was nothing to do with - it was about my crime with the assault, you know, and she asked me if I had remorse about it and I told her that at the time I didn't at all, but then I started thinking about it more often, more, and that no-one deserved that sort of thing. It doesn't matter what situation. And then, yes, we started talking about it and that's when I realised - properly realised - that I needed some help, and that just wasn't good enough, the way I was acting in my life, not just in one situation, yes”.[17]
[17] Transcript, 40.
The Applicant was transparent about the fact that he had not done much by way of further engagement since this session in 2018. He explained that his attitude toward seeking help had changed:
“I've always been of the assumption that - and obviously it's got to change, because like I said it's the way I'm thinking now, it's not like I used to think. But I was always thinking to myself that if someone really wants to change they better have the willpower to do it themselves, not go to counselling and that sort of thing. But - that's how I always thought - but now I think the opposite. I think you need help to push you through, to get you through. And some, you know, information and stuff like that and how to deal with your issues and your problems, rather than going to a bottle or to the drug”.[18]
[18] Transcript, 41.

The Applicant first complained of the abuse he suffered while in state care with a psychologist in gaol.[19] His evidence was that this was the first time he spoke about it and clarified that any other reference in the material to abuse he might have suffered outside of state care was false.
[19] Transcript, 51.
During re-examination, the Applicant was asked about the effect of this disclosure on his capacity to trust health professionals providing psychology services. He stated:
“I used to look at anybody in authority as looking down at me, and that I'm a nobody or a nothing, you know. And I used to have that - I couldn't talk to them (indistinct), that everyone was judging me, and anybody that was above me in society was looking down at me and judging me, you know. And I felt ridiculed about, I didn't like it. And so I didn't like them. But since I've opened up about it and everything like that, I don't think anybody's any better than me. You know, and that's - and I'm starting to trust and take advice from other people, rather than sit there like you're poor thinking you need to tell me, no, you can't tell me, I know how it is. I know better. But now, not like that”.[20]
[20] Transcript, 52.
The Applicant was taken to several other reports in the 1990s that recommended the Applicant engage in counselling.[21] He agreed that he had not adopted these recommendations and sought help in the past.
[21] Exhibit 19.
The Respondent put to the Applicant evidence of a six-week relapse prevention program undertaken in 1999, prior to a further relapse by the Applicant. The Applicant was asked how his rehabilitation in the future would be different. He stated:
“Because I haven't really used - I haven't really used drugs, illegal drugs, for quite some years. I've just had the prescription drugs. When my father died I went stupid on the Xanax. I was trying to get off them, and the doctors helped me wean off them. Since I stopped and I went on the methadone, I haven't really used any drugs. I went to, like I said, having four beers on the weekend watching the footy. But that's the only drugs I've used. I believe I've done really well stopping using drugs”.[22]
[22] Transcript, 46.
During re-examination, the Applicant was asked about his attitude in the past toward the courses he had undertaken. He said that at the time he did not recognise the lifelong effort of rehabilitation, but his perception had since changed:
“But now that I sit back and remember those courses, like especially the ones from '99 and that, I can remember the conversations about the relapse and how it worked with the falling down and then getting steps back up and all that sort of thing and it's a slow process. The majority of people will relapse somewhere along the line, and it's up to yourself to get back up there, you know, and start again. But yes, just since all this, not just this, but like I said, since being custody and stuff like that, I've really sat back and thought about it a lot of stuff. A lot of things like that, and I think I can really do good from doing more counselling”.[23]
[23] Transcript, 51.
Professor Stevens
Professor Stevens prepared a report in this application dated 16 November 2021 that was tendered in evidence.[24] Professor Stevens described the Applicant’s behaviour as:
“He didn't appear to have anti-social attitudes. Look, it's a bit marginal, but I thought that he was presenting more as impulsive and thoughtless than having engrained anti-social attitudes. But perhaps there were some indicators. It was not a - I would say there was this clear - a strong, clear distinction. But it's just an impression that he came across slightly more as being impulsive and rather foolish in his decision making”.[25]
[24] Exhibit 23.
[25] Transcript, 56.
Professor Stevens opined that the Applicant suffered from a long history of untreated depression that had made him “impulsive and somewhat ill-considered”.[26] In his view, the Applicant had been self-medicating with alcohol and drugs. He believed the Applicant had found therapy to be useful and opined that although his depression was complex to treat, the Applicant would benefit from further psychiatric consolation and further careful consideration of antidepressant medication.
[26] Transcript, 56.
When asked whether the Applicant was now in a better position to engage in therapy, Professor Stevens opined:
“He does seem to have some awareness of the impact of his offending, both on himself - because he's been offended against with a couple of break and enters - but also he seems to, I think, realise more now just the catastrophic consequences of his offending. I mean, I don't think he was aware of that before. So, often therapy is about leverage, and getting someone to lever something important to them. And I think he has more that's at stake now which would have helped him with his motivation for therapy”.[27]
[27] Transcript, 57.
During re-examination, Professor Stevens was asked about how the knowledge that he might be deported could affect the Applicant and he indicated that he felt this was a big factor. Professor Stevens encouraged the Tribunal to consider the Applicant’s vulnerabilities:
“…this is a very highly vulnerable person. He's been in Australia since he was one year old. He's being sent back to Wales, or England. He will - he doesn't make friends easily. He's socially isolated. I think it's really - you know, in a sense we're dumping our responsibility. So I do have sympathy for him in that regard. 30 And he's also got a chronic pain condition with using opiate medication, and even that doesn't seem to help a lot. So he's very - he's vulnerable, he's been abused, he's had a tragic life. I don't think that - that is a factor which I think needs to be considered”.[28]
[28] Transcript, 61.
When prompted to comment on the likelihood of the Applicant reoffending, Professor Stevens opined that the Applicant had a “moderate to high chance of reoffending”.[29] Professor Stevens identified several factors that supported his opinion including the Applicant’s abnormal attitudes, his versatility in offending and the extended time period over which he had been offending.[30]
[29] Transcript, 60.
[30] Transcript, 60.
Professor Stevens was also asked whether he felt the Applicant’s sexual abuse had contributed to his offending. Professor Stevens opined that it was very difficult to know but he noted that sexual abuse at a young age can be catastrophic and it does affect one’s course of life.
Ms Sukkar
On the first day of the hearing, the Tribunal sought further evidence about prospective proceedings the Applicant may engage seeking compensation for the sexual abuse he suffered while in state care. The Applicant indicated that the lawyer assisting the Applicant with the compensation claim could be made available to give evidence.
Ms Sukkar provided information about status of the Applicant’s claim for compensation. She confirmed that the perpetrator of the abuse had been identified and that she considered the Applicant’s claim to be both credible and corroborated. She stated there were at least five other complainants in similar circumstances to the Applicant.
The prospective respondent has not yet been made aware of the claim, however Ms Sukkar indicated that she had been working with the Applicant for 10-12 months. When asked what would prevent the Applicant’s case being maintained if he was no longer a resident in Australia, she stated:
“He would be required to attend various medical appointments. He may be required to actually provide a statement and actually meet with us if there is an informal settlement conference. And as you're aware, if we do commence proceedings in the District Court, he would have to be present - he would be required to be present at trial. So him not being here would pose a very big issue or a problem for us to actually be able to do that or be able to go through that process quite easily”.[31]
[31] Transcript, 65.
The Tribunal asked whether the Applicant could be cross-examined by video-link. Ms Sukkar indicated that his presence in Australia was more to do with the facilitation of medicolegal appointments and the importance of these being face-to-face.
Procedural History
The Tribunal published its decision in this application pursuant to s 43(1) of the Administrative Appeals Act 1975 (Cth) on 21 December 2021, one day prior to the 84^th day relevant to this matter. In doing so, the Tribunal met the requirements of s 500(6L) of the Act. Attached to these Reasons and marked “Annexure B” is a true and correct copy of this Decision.
In accordance with the principles outlined by the Full Federal Court in Khalil v Minister for Home Affairs (2019) 271 FCR 326 (Khalil), the Tribunal now publishes the written Reasons to the parties. In Khalil, the Full Federal Court said:
“41. The AAT Act thus draws a clear distinction between the decision of the Tribunal under s 43 which is, relevantly, what causes the 84 day period to stop running, and the reasons for decision. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 the Tribunal had handed down a decision on a review of a decision of the Australian Securities Commission that was before it, confirming an exemption that the Commission had granted on certain conditions, but substituting different conditions. At the time of announcing the decision the Tribunal did not give any reasons. It delivered written reasons some 14 days later. Beaumont J held (at 271‑273, Lockhart and Hill JJ agreeing at 253) that the Tribunal's omission to provide reasons at the time of announcing its decision was not an error, as on the proper construction of s 43(2) of the AAT Act, the Tribunal was only required it to give its reasons, oral or in writing, within a reasonable time of the decision.
…
48. What the Tribunal had to do here within the 84 days was to deliver a decision, not necessarily express reasons…”
[My underlining]
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[32]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[33]
[32] [2018] FCAFC 151.
[33] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 5 October 2018, the Applicant was convicted of Assault occasioning actual bodily harm and aggravated enter dwelling with intention – knowing people there and sentenced to a term of imprisonment of three years.[34]
[34] G-documents, 35-36.
On 20 September 2018, the Applicant was sentenced to 19 months’ imprisonment for ten offences including breaking and entering.[35]
[35] G-documents, 36-40.
On 14 October 1996, the Applicant was convicted for a series of break, enter and steal offences and sentenced to three years, two months and 18 days imprisonment.[36]
[36] G-documents, 50.
On 4 July 2000, the Applicant was convicted of break and enter with intent (steal) and sentenced to 12 months’ imprisonment.[37]
[37] G-documents, 50.
The Tribunal therefore finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is there another reason why the cancellation of the Applicant’s visa should be revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[38]
[38] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizens visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated 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 measurable 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. However, Australia may 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.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[39]
“…Direction 65 [now Direction 90] 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”.[40]
[39] [2018] FCA 594.
[40] Ibid, [23].
However, in FHHM v MICMSMA Wigney J discussed the issue further:
“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.
The use of the word “generally” in paragraph 8(4) is intended to convey no more than ‘usually’, ‘commonly’ or ‘ordinarily’. It recognises that there may well be cases where the circumstances are such that one or more “other considerations” may be deserving of more weight than one or more primary considerations. It is not immediately apparent why that somehow requires an “inquiry as to whether one or more of the other considerations should be treated as being a primary consideration”. It is even more difficult to see how it requires an inquiry as to whether one of the other considerations can or should be “afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply”. That formulation of the principle is at least potentially problematic because it tends to suggest that a decision-maker cannot give greater weight to one or more of the “other considerations” in any given case unless they consider that the case is somehow unusual or out of the ordinary. What, however, is the usual or ordinary case? What are the “circumstances that generally apply” in a case involving whether a visa cancellation should be revoked? The answers to those questions are at best elusive. It is somewhat doubtful that a decision-maker should approach the weighing of the relevant considerations by embarking on any such inquiry
THE TRIBUNAL’S DECISION AND REASONS
As has already been noted, the Tribunal affirmed the delegate’s decision not to revoke the cancellation of Mr G’s visa. The Tribunal’s reasons for so finding are lengthy, comprehensive and, save for the single impugned sentence in the penultimate paragraph, logical and cogent. So much so was conceded by counsel for Mr G. In those circumstances it is unnecessary to give detailed consideration to the reasons. Following are the key points.
The Tribunal was aware that it was obliged to apply Direction no. 79: Reasons at [46].
The Tribunal identified the relevant primary considerations and other considerations by reference to paragraphs 13 and 14 of Direction no. 79: Reasons at [52]-[53].
The Tribunal specifically referred to and extracted the key parts of paragraph 8 of Direction no. 79: Reasons at [51]. The Tribunal also referred to and extracted the last sentence of paragraph 23 of the judgment in Suleiman: Reasons at [54]. The Tribunal then stated (at [55]):
An evaluation of the factors occurs in the context of the circumstances of the individual case, and while the primary considerations may outweigh the other considerations in accordance with paragraph 8(3), other considerations can outweigh the primary consideration in the particular circumstances of the case.
It is tolerably clear that the reference to paragraph 8(3) was intended to be a reference to paragraph 8(4) of Direction no. 79 and that the reference to primary consideration was intended to be a reference to primary considerations (plural). Save for those typographical errors, no complaint could be made about that statement of principle by the Tribunal. Most importantly, it is clear that the Tribunal appreciated that the general effect of paragraph 8(4) of Direction no. 79 was that “other considerations can outweigh the primary consideration[s] in the particular circumstances of the case”.[41]
[41] [2021] FCA 775, [22]-[28].

I consider that His Honour’s guidance will also apply to Direction 90 and will consider that, if in this case, “other considerations” outweigh the “primary considerations”.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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 Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
I agree with many of the comments made by the Delegate and adopt the following:[42]
[42] G-documents, 16-18.
The Direction states 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. I have had regard to the principle stated in the Direction 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, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
Consistent with the Direction, in considering whether there is another reason to revoke the cancellation decision in this case, I have considered the nature and seriousness of [the Applicant’s] conduct to date and the risk to the Australian community should [the Applicant] reoffend.
Nature and seriousness of conduct
The Direction indicates that violent crimes are viewed very seriously by the Australian Government and the Australian community.
On 5 October 2018 in the District Court of New South Wales, [the Applicant] was convicted of Assault occasioning actual bodily harm-T2 and Aggravated enter dwelling w/I knowing people there-SI and sentenced to an aggregate of three years imprisonment.
The sentencing judge from the District Court of New South Wales outlined the details of the offending that occurred on 12 June 2017. [The Applicant] met up with two men, [omitted], who were housemates and they all went and had a drink together. [The Applicant] and another man, [omitted], who was [the Applicant’s] flatmate had a discussion with [the victim] about his medication and then [the victim] and [omitted] went back to their flat. Later that day [omitted] and [the Applicant] went to that flat and [the Applicant] entered the unit uninvited. [The victim] was fearful, had hold of a hammer and hit [omitted] on the knee.
[The Applicant] took the hammer and hit [the victim] on the head and also punched him. [The victim] was able to get the hammer and ran away. The police attended and [the victim] went to hospital with facial injuries, bruising, lumps and cuts about his eyebrow, swelling to his forehead, bruising to his right temple and superficial lacerations to his eye.
The sentencing judge from the District Court of New South Wales remarked that [the Applicant] pleaded guilty to the two serious offences and that he took a while to accept responsibility for his crimes. The sentencing judge also remarked that, '[the Applicant] has some capacity to lead a law-abiding life ... that he was, and remains, a person who, fundamentally, was a good citizen who wants to be restored to the status of good citizen. But that said, the crimes he committed were serious ... he committed those crimes while he was on bonds for good behaviour ... I am also informed that when he was on bail ... he committed further offences; offences of dishonesty, including break and enter. He is presently serving a sentence ... of 19 months.'
The sentencing judge stated both offences were objectively serious, that [the Applicant] entered the home uninvited for the purposes of intimidation, that the man was entitled to defend his home and that after disarming that man the hammer was used upon him. The sentencing judge considered pre-sentence reports where [the Applicant] conceded he had always had anger issues, that he needed help, that he admitted it had taken him time to accept full responsibility for his offending and that he initially thought he was acting in self-defence when in fact he was the instigator.
On 20 September 2018 in the Local Court of NSW, [the Applicant] was convicted of Goods in personal custody suspected being stolen (not m/v), Fail to appear in accordance with bail acknowledgement, Destroy or damage property <=$2000-T2 (multiple), Found w/1 to commit indictable offence previous conviction, Break and enter dwelling-house etc with intent (steal}-Tl (multiple) and Break & enter house etc steal value<= $60,000-Tl, Commit s114 offence, having previous conviction-Tl, Enter building/land w/1 commit indictable offence-Tl and Larceny value <=$2000-T2. He was sentenced to an aggregate of 19 months imprisonment.
On 14 October 1996 in the District Court of New South wales [the Applicant] was convicted of Break Enter and Steal (BE&S) (multiple) and sentenced to a minimum term of 3 years 2 months and 18 days. An appeal against the severity was heard in the Court of Criminal Appeal in NSW on 21 April 1997, with a note that a Notice of Abandonment was filed.
[The Applicant's] offending began in 1987 when he was a minor. His offences include Break and Enter (multiple), Malicious injury, Offensive language, Malicious damage (multiple) Trespass, Assault (multiple), Stealing (multiple), Larceny, Receiving (multiple), Breach of apprehended violence order, Offensive conduct, Self administer prohibited drug (multiple), Steal motor vehicle, Fraudulently appropriation property, Steal from dwelling/house, Dispose of stolen property, Contravene apprehended violence order, Break and enter with intent (steal) (multiple), Stalk/intimidate intend fear of physical/mental harm-T2, supply specified substance otherwise than by wholesale, Enter inclosed land not prescribed premises without lawful excuse, Possess prohibited drug (multiple), Goods in personal custody suspected being stolen (not motor vehicle), Threaten police officer and State false name and driving offences.
Sentences for these offences include terms of imprisonment up to 12 months, periodic detention up to 6 months, probation, s9 Bonds, a Community Service Order and fines up to $400.
I note that the Applicant accepted the record of his convictions and that, apart from his most recent conviction, he has committed very few offences involving violence.
He gave evidence under cross examination about some historical matters involving violence which included:
a)Two counts of assault to which he was sentenced to a $2000 recognisance on 11 August 1994. The Applicant gave evidence about this matter in the following terms:[43]
We went to a little takeaway-Chinese take away place where you-like, a smorgasbord. And when they were putting our food in the containers, they were doing it like what you would see in prison movies. And my mate got offended by that and then he threw the food at them. And then one of the (sic) jumped the counter and I got hit in the head with one of those soup ladles and then my mate started punching into them and I helped him.
b)One count of assault for which he was sentenced to six months periodic detention on 24 June 1996. The Applicant gave evidence about this matter in the following terms:[44]
And she said I'm going to stay with dad for the weekend to try to get to know him better, you know. And then I went home and then she rang me up saying that he was trying to get her into bed. So, then I drive down there and then he came out of the garage with a screwdriver and went to attack me. She hit him in the back with a crutch and then I got charged with assault and the breach of it-I think was when I went close after that to him again.
…… I dare say I probably did hit him as well,…..
[43] Transcript, 24.
[44] Transcript, 24-5.
Taking into account the age of some of the matters and the fact that he was often affected by alcohol, I found the Applicant to be a generally reliable witness often making concessions against his interest. I accept the version given by him in relation to those two assaults and note that he was not the initial instigator of the events.
Although not convicted of an assault in relation to an incident which appears to have occurred on 3 March 1996, an Apprehended Violence Order (“AVO”) was taken out against the Applicant. Some of the evidence relating to this incident is as follows:[45]
Mr Hutton: On page 10 of paragraph 5 her statement goes on to say that you said to her-and this is at the bottom of the paragraph -‘I'm going to hit you, you little slut’. And then she said to you, ‘Go to hell, you idiot.’ And then after she said that you started punching her in the back and on her face with your right fist, and that you hit her twice but it wasn’t particularly hard?
Applicant: No, that’s not true. No. She would have had marks on her. They were no marks on her. There was nothing (indistinct). No, I just have to disagree, sorry. No, I never touched her.
[45] Transcript, 19.
However, the Applicant did admit to pushing his former partner and pinning her down because she was swinging at him. This was consistent with the version he gave to the police at the time, and I note that, despite there being an abrasion detected on his former partner’s left arm and left face, he was not charged with assault. Whilst not condoning the Applicant’s behaviour, I am not satisfied that those abrasions were caused by him, bearing in mind that his then partner was allegedly behaving very erratically. However, I find the Applicant’s actions amounted to violence in a domestic setting although at a low level.
In relation to offences of violence I also consider the evidence of Professor Stevens to be very relevant in that he opined that the Applicant suffered from a long history of untreated depression that had made him impulsive and somewhat ill-considered.[46]
[46] Transcript, 56.
He considered that although the Applicant’s depression would be complex to treat but he would benefit from further psychiatric consultation as well as being in a better position to engage in therapy.[47]
[47] Transcript, 56-7.
Professor Stevens observed that: “While [the Applicant] has an extensive criminal history his offending appears to be mostly the result of being highly impulsive and lacking judgment. He appears to have gained some insight into the consequences of crime”.[48]
[48] Exhibit 23, 2.
I also take into account the following sub-paragraphs of paragraph 8.1.1(1) of the Direction:
a)Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that 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.
b)I note the Applicant has some history of offences involving Police Officers, such as the 2005 offence of threaten a Police officer.
c)Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
d)Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. However, I note the following:
(i)From about 1990 until 1996, the Applicant was a heroin addict but has abstained from heroin use since then.
(ii)Between about July 2001 and October 2010 the Applicant committed no offences, apart from some offences in Tasmania in 2005 where the Applicant stated a false name and threatened a police officer and drove without a license in an unregistered car. He was convicted and fined approximately $600.[49]
[49] G-documents, 116.
(iii)Between about July 2013 and January 2018, the Applicant committed no offences involving violence or dishonesty.
(iv)Apart from the historical offences in 1994 and 1996 referred to above and the Applicant’s last conviction, there were no offences of actual violence.
e)Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
i)Although there has been a significant accumulation of offences, most of the Applicant’s offending occurred whilst under the influence of alcohol, and/or prescription drugs prescribed or otherwise. There have been significant periods of non-offending.
f)Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
i)Prior to to receiving notice of the mandatory cancellation of his visa, the Applicant had never been warned about the risk of deportation should he continue offending. The risk of being sent home to a country which the Applicant left when one year old provides a very strong deterrence to further offending. If he were allowed to remain, the Applicant must realise that he would be highly unlikely to be given another chance if he committed further offences. In reaching this finding I note that the Applicant committed some relatively minor offences after being notified of the cancellation of his visa whilst in custody, by possessing and using a gaol-made tattoo gun.
Overall, I consider the Applicant’s offending to be very serious. I do not consider factor f of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh significantly against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect 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.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posted 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;
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; and
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.
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
I have some difficulty in applying an overall weight to this consideration because it falls into two parts, namely the nature and seriousness of the offending and the risk of reoffending.
In relation to the first part, I find that the nature and seriousness of the offences for which the Applicant was sentenced on 5 October 2018 weighs significantly against revocation of the mandatory visa cancellation, but in relation to the second part, I find that the risk of the Applicant committing further crimes of violence to be generally out of character and low.
I find the other offences committed by the Applicant, especially those involving breaking and entering the property of others, weigh against revocation and note that there is at least a moderate chance of the Applicant committing further offences of this nature.
In conjunction with the matters set out at [74] above I have relied upon the following to reach the above findings:
a)In his comments on passing sentence for the Applicant’s most recent assault conviction Judge Haesler SC noted:
“[The Applicant] has some capacity to lead a law-abiding life in the community” … I proceed on the basis that he was, and remains, a person who, fundamentally, was a good citizen who wants to be restored to the status of a good citizen. But that said, the crimes he committed were serious”.[50]
…
“His criminal record, at first glance, does him no credit. And, he certainly does not get the benefits often given first offenders. But, it is also clear that, at least for some time, most of his crimes have related to driving or property offences. While he may have an anger problem which needs addressing, he is not a fundamentally violent person”.[51]
b)In evidence before the Delegate, the Applicant submitted that after the incident of sexual abuse he became withdrawn, started to drink alcohol and abuse drugs and bottled up what it happened. He also became disrespectful towards authority figures and that triggered his criminal offending.[52]
c)I find the Applicant was sexually assaulted as he claims, not only because of the consistency of his reporting in relation to this incident, but also because of the evidence given by Ms Sukkar that his claim was both credible and corroborated as well, as there being at least five other similar complaints against the same perpetrator.
d)Presentencing reports provided in 2018 noticed that the Applicant would benefit from psychological counselling and drug and alcohol counselling and Professor Stevens recommended such therapy on an ongoing basis:
“[The Applicant] has some strengths including a reasonably stable family while growing up, some work history, I diploma in signwriting and has recently used psychological and psychiatric counselling to gain insight and support and possibly gain some coping skills. He appears to have some realistic plans for the future. I recommend that he continues counselling and has psychiatric evaluation to advise on an appropriate level of antidepressant medication. He may also benefit from a cognitive skills program offered through corrections”. [53]
[50] G-documents, 54.
[51] G-documents, 58.
[52] G-documents, 84.
[53] Exhibit 23, 2.

I accept that the Applicant was subjected to sexual abuse while in custody as a youth which may have made a significant contribution to his depression for which he has continually self-medicated by the use of alcohol and drugs.
I also accept that the Applicant has found treatment whilst in custody beneficial although, offences such as tattooing committed whilst in custody, demonstrate that more is needed.
The Applicant has participated in regular sessions with a psychologist whilst in custody and NSW Department of Corrective Services 2020 case notes remark that he was polite and cooperative and engaged with the sessions.
Conclusion: Primary Consideration 1
I find the nature and seriousness of the Applicant’s conduct to date weighs significantly against the revocation of the Applicant’s visa, but I find there is a low risk of him committing violent crimes in the future. In other words I find the nature of the harm should the Applicant reoffend to be very serious but the risk to the community, is reduced because of the low likehood of the Applicant reoffending in relation to crimes of violence. I find that the weight placed on this consideration mitigates against the revocation of the Delegate’s decision.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
Whether family violence occurred
For the purposes of the Direction, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family or causes the family member to be fearful.
Most relevantly in this case, the Direction indicates that assaults and crimes of a violent nature against women, are examples of behaviour that may constitute family violence, where they have the effect described above on a family member.
I note that behaviour that may constitute family violence is not limited to examples provided in the Direction, and that other behaviour not specifically listed in the definition, but which nevertheless has the effect of coercing or controlling a member of the person's family or causing the family member to be fearful, is also 'family violence' as defined.
The only matters that might give rise to family violence within the extended definition are circumstances surrounding the breaching of an AVO on 24 June 1996 and the contravention of an AVO on 15 August 1996.[54]
[54] G-documents, 42.
The sentencing remarks are not available for either of these matters. I have decided that although I have found that there was an act of family violence in 1996, it was a single incident and it would be unsafe to place any more than slight weight upon this consideration.
Conclusion: Primary Consideration 2
I find this consideration weighs slightly in favour of non-revocation of the cancellation of the Applicant’s visa.
Primary Consideration 3: The best interests of minor children in Australia
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     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);
·     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;
·     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;
·     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;
·     whether there are other persons who already fulfil a parental role in relation to the child;
·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·     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;
·     evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has several nieces and nephews in Australia, ages unspecified, however no submissions have been made to suggest that their interests or the interests of any other minor children would be affected by this decision.
Conclusion: Primary Consideration 3
I find this consideration has no application.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a 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 are 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.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
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.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[55]
[55] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 4
In assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
(a) The Applicant has a lengthy list of convictions going back many years and this primary consideration by operation of the deeming effect of paragraph 8.1 ways against revocation the delegate’s decision.
(b) However, as noted in Jacobs and Minister for Immigration and Border Protection (Migration) it “remains for the tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision”.[56]
(c) In VXKK and Minister for Home Affairs (Migration), the Tribunal noted “that a person and who has committed offences always presents some risk of reoffending…”[57] but “whilst the Australian community expects that people will be given a chance to redeem themselves and that prison offers a chance of rehabilitation, they have a low tolerance for individuals who show no respect for our laws and values”.[58]
(d) In Do and Minister for Immigration and Border Protection, the Tribunal noted that Australia is a “nation built on second chances” and that: “The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment”.[59]
(e) It appears that the Applicant has committed all his offences whilst suffering from an undiagnosed psychiatric illness, possibly being caused or contributed to, by the sexual assault suffered whilst in state custody. I find that he has been self-medicating his condition by the use of drugs, both prescription and illegal, and alcohol and that the vast majority is, if not all, of his offences have been committed whilst under the influence of drugs and/or alcohol.
(f) The first time that he has had any meaningful treatment in relation to this condition is whilst having been in custody and immigration detention preceding this hearing.
(g) I am cognisant of the fact that I must give effect to the norm stipulated in sub-paragraph 8.4(1) of the Direction and made clear by sub-paragraph 8.4(4) of the Direction.
[56] [2020] AATA 1524, [72].
[57] [2018] AATA 3268, [82].
[58] [2018] AATA 3268, [83].
[59] [2016] AATA 390, [22]
Having regard to serious nature of some of the Applicant’s offending and despite the mitigating factors referred to above, I find that the Australian community would expect the Applicant’s visa to remain cancelled.
Conclusion: Primary Consideration 4
This consideration weighs weighs in favour of non-revocation of the Delegate’s mandatory cancellation decision.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d). I note that Other Considerations are not limited to the four stipualted sub-paragraphs in paragraph 9 of the Direction.
(a) International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant.
Accordingly, I attribute neutral weight to this consideration.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
I have considered the extent of any impediment that the Applicant may face is removed from Australia to United Kingdom in establishing himself and maintaining basic living standards in the context of what is generally available to citizens of his home country. I have taken into account the following factors:
Age and health
The Applicant is now 51 years old and has health issues including chronic pain due to neck injury suffered whilst playing football for which I am satisfied that he is likely to need treatment for the rest of his life. He has been prescribed Methadone to deal with his chronic pain and Cymbalta for his diagnosed anxiety.
He told the Delegate that he had suffered mental health issues for as long as he can remember and, bearing in mind both the Applicant’s and Professor Stevens’ evidence, I accept that to be the case. He has been prescribed anti-depressants in the past and is likely to need them well into the future.
He has been on a DSP since 1 October 2009 and in 2018 was declared unfit to work when reporting to be suffering from anxiety and a panic disorder.
Language and cultural barriers
There will be no significant language or cultural barriers as the United Kingdom and Australia share a common language and similar cultures.
Social, medical and or economic support
I find that the Applicant will have access to health services, including treatment and welfare services if returned to the United Kingdom. Although generally these services maybe similar to what would be available in Australia, I note there are some impediments applicable to somebody in the Applicant’s position.
Both parties made submissions on the topic of supports available to the Applicant should he be deported to the United Kingdom. The Applicant has been the recipient of the DSP in Australia and it was generally accepted between the parties that to maintain a basic living standard, the Applicant would be reliant on a form of welfare payment if he were to be deported to the United Kingdom.
The Applicant would be excluded from immediate eligibility of several the available welfare payments in the United Kingdom due to the habitual residency requirement which requires the Applicant to have resided in the United Kingdom for several years before being eligible to access welfare.[60] However, it was conceded by the Applicant during the hearing that by virtue of an exemption applying to citizens who have been subject to deportation, the Applicant would be able to access Universal Credit after five weeks in the United Kingdom.[61]
[60] These included the Personal Independence Payment and the Employment and Support allowance.
[61] Universal Credit Regulations 2013 (UK) r. 9(4)(g))
The Applicant contended that despite being eligible for Universal Credit, it would be incomparable to supports available in Australia due to its reduced rate and design as a short-term solution. While the Tribunal acknowledges that the Direction does not provide for a comparative consideration of supports available in Australia and the United Kingdom, the amount the Applicant may have been entitled to in Australia provides an indication of the resources the Applicant may need, as a person with disability, to meet a basic standard of living.
The Applicant highlighted that the DSP in Australia entitled the Applicant to a maximum payment of $967.50 per fortnight, whereas the maximum payment the Applicant could be entitled to in the UK was £324.84 per month, which equates to just over $600 Australian dollars. I note that Universal Credit makes some provision for further payment for recipients with a disability, but that the application period for the additional supplement has now closed. Unfortunately, the Employment and Support allowance, recommended in place of that additional benefit, is subject to residency and employment requirements that exclude the Applicant’s eligibility.
The Respondent submitted that the Universal Credit payment was supplemented by other available entitlements including housing and medical provisions through the National Health System that would safeguard the Applicant’s basic living standard.
The Applicant took the Tribunal to the State of Hunger Report which discussed the inadequacy of Universal Credit in facilitating a basic standard of living in the United Kingdom. This report suggests that Universal Credit entitles recipients to one-third of a socially accepted basic standard of living in the United Kingdom.[62]
[62] Glen Bramley, Morag Treanor, Filip Sosenko, Mandy Littlewood, ‘State of Hunger: Building the evidence on poverty, destitution, and food insecurity in the UK. Year Two Main Report’ Heriot-Watt University, The Trussell Trust (May 2021) 52.

The Applicant’s position is particularly vulnerable. It was submitted by the Applicant that he has very limited personal effects, is entirely reliant on housing support in Australia and has very limited funds and difficulties accessing these funds in his Australian bank account. The Applicant submitted that the statistic in the State of Hunger Report did not consider factors like disability that could further exacerbate any discrepancy between a basic standard of living and the resources available through Universal Credit.
Universal Credit is subject to a five-week mandatory waiting period, even for eligible recipients. While the Applicant may be eligible to obtain a loan during this period, he would need the resources to be able to pay back the loan while maintaining a basic standard of living once his access to the payment was granted.
I also take into account that the Applicant’s physical and mental health conditions will require an immediate engagement with the United Kingdom’s National Health System (NHS) which might not be seamless and will lack the continuity of the treatment currently available to him.
Even if his mental health condition sufficiently improves to enable him to work, he has limited qualifications and skills to generate employment opportunities.
Bearing in mind the Applicant’s difficulty in establishing social relationships in Australia, I agree with Professor Steven's assessment to the effect that if the Applicant is forced to relocate to the United Kingdom, he would have considerable difficulty establishing a supportive social network. He does not know of any relatives in Wales or the United Kingdom.
I am satisfied that the Applicant has an arguable case for compensation for the sexual abuse suffered whilst in state custody as a youth. Proceedings have not been commenced but the solicitor acting for him gave evidence as set out in paragraph [36] and [37] above about the difficulties in preparing a case should the Applicant be removed from Australia. An Order made pursuant to s 35(4) of the Administrative Appeals Tribunal Act 1975 in this matter prohibits the publication of any evidence that may reveal the identity of the respondent in the Applicant’s compensation claim due to its prospective nature. The Respondent lodged material describing the prospective respondent’s general treatment of claims of sexual abuse that has been redacted.[63] I accept that material may balance out some of the difficulties facing the Applicant and his legal representatives should his visa cancellation not be revoked but overall, I find that the Applicant will have a diminished capacity to pursue his litigation if returned to the United Kingdom.
[63] Exhibit 27 and 28.
I allocate significant weight to this consideration in favour of revocation.
(c) Impact on victims
This Other Consideration (c) requires that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (c) is therefore neutral.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant has lived in Australia since he was one year old and has spent much of his life in Wollongong.
His parents are both dead, but he has two brothers, a sister and a son living in Australia as well as nine nieces and nephews. He has had a relatively distant relationship with all his family but now wishes to re-establish contact with his son, with whom he has not had contact for at least ten years, having developed an insight into his past behaviour.
The Applicant completed all his education in Australia up until Year 10 and thereafter obtained a TAFE diploma in signwriting. Although having significant periods of unemployment he has worked as a signwriter, pest controller, truck offsider, kitchen hand and tattooist.
I take into account that because the Applicant has lived in Australia since he was 17 months that the Australian community may afford a higher level of tolerance towards his criminal behaviour.
I place limited weight on this consideration in favour of revocation.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests.
No weight can be allocated under paragraph 9.4.2 of the Direction.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: neutral weight
(b)extent of impediments if removed: significant weight in favour of revocation;
(c)impact on victims: neutral weight; and
(d)links to the Australian community including the strength, nature, and duration of ties to Australia: limited weight in favour revocation; and the impact on Australian business interests: no weight.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction.
a)Primary Consideration 1: I find the weight placed on this consideration mitigates against the revocation of the Delegate’s decision.
b)Primary Consideration 2: I find this consideration weighs slightly in favour of non-revocation of the Delegate’s decision.
c)Primary Consideration 3: I find this consideration is not applicable.
d)Primary Consideration 4: I find the weight placed on this consideration mitigates against the revocation of the Delegate’s decision.
e)Other Considerations: referred to above at [137].
I am tasked with applying the appropriate weight to both 'primary' and 'other’ considerations. I find that a holistic view of the considerations in the Direction applied to the Applicant’s circumstances favours the revocation of the mandatory visa cancellation.
I exercise my discretion in favour of revocation for, inter alia, the following reasons:
a)Despite the Applicant’s long history of criminal offending there has only been one very serious offence involving violence and I have found the risk of him committing future offences involving violence as low.
b)The Applicant been self-medicating with alcohol and/or drugs for many years as a result of an undiagnosed psychiatric illness for which he is now receiving treatment, and for which will be able to seek treatment in the future. Most of his offences were committed whilst under the influence of drugs and/or alcohol.
c)The Applicant has been suffering the effects of sexual abuse whilst in state custody, which may well have contributed to his psychiatric illness, and has only recently disclosed this abuse.
d)The Applicant has been in Australia since he was 17 months old and had not been warned that his offending might lead to the revocation of his visa prior to his serious offending for which was sentenced in October 2018. Having now become aware and the possible consequences such behaviour, the Applicant is now substantially more motivated not to commit further offences.
Consequently, I exercise the discretion to revoke the cancellation of the Applicant’s visa.
Decision
The decision under review is set aside and substitution, the cancellation of the Applicant’s visa is revoked.

I certify that the preceding 142 (one hundred and forty-two) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC, Deputy President

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

Date of Decision: 21 December 2021

Date of Written Reasons: 17 January 2022

Dates of Hearing: 1, 2 and 6 December 2021

Counsel for the Applicant:

Solicitors for the Applicant:

Ms Stephanie Blaker

Legal Aid New South Wales

Solicitor for the Respondent

Solicitors for the Respondent

Mr Jonathon Hutton

Australian Government Solicitor

Exhibit No	Document	Date	Party	Date Tendered
01	G-documents	Various	Tribunal	01.12.2021
02	Applicant’s statement	24.11.2021	Applicant	01.12.2021
03	Wollongong HWP Police record, RTB 225	05.11.2021	Respondent	01.12.2021
04	Dept of Corrective Services - Parole report, RTB 209	12.05.2000	Respondent	01.12.2021
05	Statement of Applicant’s former partner RTB 9	03.03.1996	Respondent	01.12.2021
06	Statement of Constable Ian Richard Haslam, RTB 13	19.03.1996	Respondent	01.12.2021
07	Police fact sheet, RTB 7-8	04.03.1996	Respondent	01.12.2021
08	Sentencing remarks of Judge Ducker, RTB 17	14.10.1996	Respondent	01.12.2021
09	New South Wales Police Fact sheet, RTB 35	Undated	Respondent	01.12.2021
10	Police fact sheet, RTB 75	Undated	Respondent	01.12.2021
11	New South Wales Police Fact Sheet, RTB 62	Undated	Respondent	01.12.2021
12	New South Wales Police Fact sheet, RTB 66	Undated	Respondent	01.12.2021
13	NSW Dept Corrective Services offences summary, RTB 292	28.10.2021	Respondent	01.12.2021
14	“Offender Case Plan with Full Summary,” RTB 185	11.11.2020	Respondent	01.12.2021
15	Pre-sentence report, RTB 180	19.09.2018	Respondent	01.12.2021
16	Pre-Sentence Report, RTB 182	06.08.2018	Respondent	01.12.2021
17	Report of Esme Nasser, RTB 159	18.05.1996	Respondent	01.12.2021
18	Pre-sentence report by Mr Gadd, Parole Officer, RTB 169	29.06.2000	Respondent	01.12.2021
19	Probation and Parole Services Pre-Sentence Report, RTB 200	13.06.1996	Respondent	01.12.2021
20	Relapse Prevention Course Certificate, RTB 164	15.04.1999	Respondent	01.12.2021
21	Parole Report, RTB 203-205	16.09.1999	Respondent	01.12.2021
22	Home Detention Assessment, RTB 221	05.05.2008	Respondent	01.12.2021
23	Report of Professor Bruce Stevens	15.11.2020 (corrected 2021)	Applicant	01.12.2021
24	UK (Wales) Health System Review 2012 RTB 410	2012	Respondent	01.12.2021
25	Extract from UK Government website: Financial help if you’re disabled	Accessed 01.01.2021	Respondent	01.12.2021
26	State of Hunger Report; Next stage of Universal Credit; and #5 weeks too long	Various	Applicant	02.12.2021
27	[redacted]	Undated	Respondent	02.12.2021
28	[redacted]	Undated	Respondent	02.12.2021
29	IHMS Records - Applicant	Various	Respondent	06.12.2021
30	Housing Act 1996 and Regulations	26.10.2021	Respondent	06.12.2021
31	Australian Government Removal from Australia – Post-removal support	30.10.2018	Respondent	06.12.2021
32	Guidance for local authorities in the UK	Respondent	06.12.2021

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2021/7323

General Division )
Re: JGKQ
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent
DECISION
TRIBUNAL:             A G Melick AO SC, Deputy President
DATE:   21 December 2021
PLACE:                  Hobart
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 28 September 2021 and in substitute decides to revoke the cancellation of the Applicant’s visa.
The Tribunal will give written reasons for this decision within a reasonable time of the decision.

.........................[sgd]...................................
A G Melick AO SC, Deputy President

[2021] AATA 5040

21 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Offence/s	Sentencing date	Sentence
1.	Offensive language	15.3.1990	$200 fine
2.	Unlicenced Driver	7.8.1990	$100 fine
3.	High Range PCA	7.8.1990	$500 fine; 18-month suspension of licence
4.	Break, Enter and Steal	15.7.1991	200 hours community service order
5.	Goods in custody suspected of being stolen	21.10.1991
6.	Receiving stolen goods	11.3.1992	3 months’ imprisonment; reduced to $500 recognisance, 3-year good behaviour
7.	Malicious damage	11.8.1994	$500 fine, $25 compensation
8.	Assault (2 counts)	11.8.1994	$2000 recognisance, 2-year good behaviour
9.	Malicious damage	5.10.1994	$100 fine
10.	Break bottle in public place	5.10.1994	$100 fine
11.	Offensive conduct	5.10.1994	$150 fine
*Enters custody (5.7.1996 – 4.12.1999)*
12.	Stealing (3 counts)	24.6.1996	100 hours community service (for each count)
13.	Goods in custody suspected of being stolen	24.6.1996	3 months periodic detention
14.	Receiving stolen goods	24.6.1996	3 months periodic detention
15.	Larceny	24.6.1996	3 months periodic detention
16.	Break, Enter and Steal	24.6.1996	6 months periodic detention
17.	Breach of AVO	24.6.1996	6 months periodic detention
18.	Assault	24.6.1996	6 months periodic detention
19.	Self-administer prohibited drug (2 counts)	15.8.1996
20.	Steal motor vehicle (2 counts)	15.8.1996
21.	Fraudulently appropriate property	15.8.1996
22.	Break, Enter and Steal (12 counts)	15.8.1996
23.	Steal	15.8.1996
24.	Administer prohibited drug	15.8.1996
25.	Steal from dwelling house	15.8.1996
26.	Goods in custody suspected of being stolen	15.8.1996	6 months periodic detention
27.	Assault	15.8.1996	6 months periodic detention
28.	Dispose of stolen property	15.8.1996	6 months periodic detention
29.	Break, Enter and Steal	15.8.1996	6 months periodic detention
30.	Contravene AVO	15.8.1996	6 months periodic detention
31.	Stealing	15.8.1996	6 months periodic detention
32.	Break, Enter and Steal (3 counts)	14.10.1996	Fixed term 18 months’ imprisonment
33.	Break, Enter and Steal	14.10.1996	Fixed term 3 years, 2 months, and 18 days’ imprisonment
*Leaves custody: 4.12.1999*
34.	Break, Enter with intent to Steal	4.7.2000	12 months’ imprisonment
35.	Attempted Break, Enter with intent to Steal	4.7.2000	12 months’ imprisonment
*Enters custody (19.7.2000 – 1.12.2000)*
*Leaves custody: 1.12.2000*
*Enters custody (12.4.2007 – 17.4.2008)*
*Leaves custody: 17.4.2008*
36.	Possess prohibited drug	21.10.2010	$400 fine
37.	Stalk/intimidate, intend fear of physical/mental harm	21.10.2010	Section 9 bond 2 years, comply with AVO
38.	Destroy or damage property	21.10.2010	Section 9 bond 2 years
39.	Supply specified substance otherwise than by wholesale	17.05.2010	Section 9 bond 2
40.	Enter inclosed land without lawful excuse	3.7.2013	$200 fine
41.	Destroy or damage property	3.7.2013	$200 fine
42.	Possess prohibited drug	27.7.2016	Section 9 bond, 12 months (bond called up 31.1.2018)
43.	Goods in person custody suspected of being stolen	31.1.2018	4 months’ imprisonment (suspended on entry into bond)
*Enters custody (20.8.2018 – 15.11.2020, into Immigration Detention)*
44.	Break and enter dwelling house with intent to steal	20.9.2018	19 months’ imprisonment (aggregate sentence)
45.	Larceny	20.9.2018	19 months’ imprisonment (aggregate sentence)
46.	Destroy or damage property	20.9.2018	Section 10A conviction with no penalty
47.	Enter building/land with intent to commit indictable offence	20.9.2018	19 months’ imprisonment (aggregate sentence)
48.	Destroy/damage property	20.9.2018	19 months’ imprisonment (aggregate sentence)
49.	Commit s 114 offence (being armed with intent to commit indicatable offence), having previous conviction	20.9.2018	19 months’ imprisonment (aggregate sentence)
50.	Break and enter house, stealing	20.9.2018	19 months’ imprisonment (aggregate sentence)
51.	Break and enter dwelling home with intent to steal	20.9.2018	19 months’ imprisonment (aggregate sentence)
52.	Found with intent to commit indictable offence, previous conviction	20.9.2018	19 months’ imprisonment (aggregate sentence)
53.	Destroy or damage property	20.9.2018	19 months’ imprisonment (aggregate sentence)
54.	Fail to appear in accordance with bail acknowledgement	20.9.2018	Section 10A conviction with no penalty
55.	Goods in personal custody suspected of being stolen	20.9.2018	19 months’ imprisonment (aggregate sentence)
56.	Aggravated enter dwelling with intent (knowing people there)	5.10.2018	3 years’ imprisonment (aggregate sentence)
57.	Assault occasioning actual bodily harm	5.10.2018	3 years’ imprisonment (aggregate sentence)

Date of Decision:	21 December 2021
Date of Written Reasons:	17 January 2022
Dates of Hearing:	1, 2 and 6 December 2021
Counsel for the Applicant: Solicitors for the Applicant:	Ms Stephanie Blaker Legal Aid New South Wales
Solicitor for the Respondent Solicitors for the Respondent	Mr Jonathon Hutton Australian Government Solicitor

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2021/7323
General Division	)