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

JGNS and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3210 (11 October 2023)
Division:GENERAL DIVISION
File Number(s): 2023/5468
Re:JGNS
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:11 October 2023
Place:Perth

The decision of the delegate of the Minister dated 18 July 2023 not to revoke, under s 501CA(4) of the Act, the cancellation of the Applicant’s Class BF Transitional (permanent) visa is set aside and substituted with the decision that the cancellation of the Applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Act.
.......[Sgd].................................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – s 501CA(4) of Migration Act – decision not to revoke mandatory cancellation of visa – Applicant is potentially stateless, may be entitled to apply for Cambodian citizenship – long criminal history – violence, drug, alcohol and psychological conditions – Applicant claims Aboriginality - Direction 99 considered – strength, nature and duration of Applicant’s ties to Australia – accepted as part of the Noongar community – Aboriginal step-children – Applicant’s links to Australia and best interests of minor children weigh in favour of revocation – there is another reason to revoke the visa cancellation decision – reviewable decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499(1), 499(2A), 500(1)(ba), 500(4A)(c), 501(3A), 501(6), 501(7), 501CA(4)
Migration Reform (Transitional Provisions) Regulations 1994 (Cth) reg 4(1)
CASES
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454
FYBR v Minister for Home Affairs [2019] FCA 500
Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144
Hands v Minister for Immigration [2018] FCAFC 225
Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 66
Love v Commonwealth [2020] HCA 3
Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1
Minister for Home Affairs v HSKJ [2018] FCAFC 217; [2018] FCAFC 217; 266 FCR 591
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Mounga and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4053
Nuuamoa v Minister for Immigration , Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 587
Plaintiff M1/202 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Wightman and Minister for Immigration [2021] AATA 1208
XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6
XRGY and Minister for Immigration, Citizenship, and Multicultural Affairs [2023] AATA 755
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023) paras 4(1), 5.1, 5.2, 6, 7, 8, 8.1, 8.1.1(1)(a)-(e), 8.1.2(1), 8.1.2(2)(a)-(b), 8.2(1)-(3), 8.3(1)-(4), 8.4(1)-(4), 8.5(1)-(4), 9.1, 9.2, 9.3, 9.4
International Covenant on Civil and Political Rights, opened for signature 19 December 1966 (entered into force on 23 March 1976) art 27.
Yoorrook Justice Commission, Yoorrook for Justice: Report into Victoria’s Child Protection and Criminal Justice Systems (2023)
REASONS FOR DECISION
Deputy President Boyle
11 October 2023
THE APPLICATION

The Applicant seeks review of the decision of a delegate of the Respondent (Minister) dated 18 July 2023[1] not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth) (Act), the cancellation of the Applicant’s Class BF Transitional (permanent) visa.
[1] R1/24-6.
The Applicant’s visa was cancelled on 5 January 2022 under s 501(3A) of the Act because he did not pass the character test by reason of having a “substantial criminal record”,[2] on the basis that he had been sentenced to a term of imprisonment of 12 months or more (s 501(6)(a) and 501(7)(c) of the Act) and was serving a sentence of imprisonment on a full-time basis.
[2] R1/102-8.
The Applicant made representations for the revocation of the cancellation of his visa and, on 18 July 2023, the delegate of the Minister made the decision not to revoke the cancellation of the visa (see [1] above). The Applicant was advised of that decision on 19 July 2023.[3]
[3] R1/23.
The application for the review of the decision not to revoke the cancellation of the Applicant’s visa[4] was made on 20 July 2023 pursuant to s 500(1)(ba) of the Act, which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister made under s 501CA(4) of the Act.
[4] R1/4-11.
BACKGROUND
The Applicant was born in a refugee transit camp in Thailand in 1980. His parents were Cambodian citizens who had been in the transit camp since 1979.
In August 1986, the Applicant’s aunty applied to sponsor the Applicant’s parents and the Applicant under the Refugee and Special Humanitarian Program.[5]
[5] R2/1-12.
The Applicant and his family arrived in Australia in April 1987 and were granted an entry permit enabling them to enter and reside in Australia. As a consequence of reg 4(1) of the Migration Reform (Transitional Provisions) Regulations 1994 (Cth), the Applicant’s entry permit continued in effect from 1 September 1994 as a transitional (permanent) visa.
On 31 May 2007, the Applicant was sent a formal counselling letter by the Department of Immigration and Citizenship, warning him that any future criminal conduct might lead to potential visa cancellation or refusal.[6]
[6] R2/25.
On 18 February 2016, the Applicant’s visa was cancelled under s 501(3A) of the Act as a consequence of the Applicant’s sentence of imprisonment for aggravated burglary with intent in 2005 and his imprisonment in September 2015 for traffic offending.[7]
[7] R1/166.
On 17 May 2016, a delegate of the Minister made a decision to revoke that mandatory cancellation decision.[8] The Minister’s Amended Statement of Facts, Issues and Contentions (Minister’s SFIC) at para 30, noted that the Departmental minute for this decision to revoke the cancellation of the Applicant’s visa averted to the possibility that the Applicant might be stateless.[9]
[8] R1/172.
[9] R2/29.
On 1 December 2021, the Applicant was convicted in the District Court of Western Australia of armed assault with intent to rob and was sentenced to a term of imprisonment of three years.[10]
[10] R1/55.
On 5 January 2022, the Applicant’s visa was mandatorily cancelled under subsection 501(3A) of the Act (see [2] above).
On 9 January 2022, the Applicant made representations to have the cancellation of his visa revoked under section 501CA of the Act and, on 18 July 2023, the delegate of the Minister made the decision not to revoke the cancellation of the visa (see [3] above).
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act relevantly provides that:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Act relevantly provides:
For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); ...
(Original emphasis.)
A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
...
(Original emphasis.)
Section 501CA of the Act relevantly provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
...
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(Original emphasis.)
Section 499(1) of the Act provides that:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Section 499(2A) of the Act provides that “A person or body must comply with a direction under subsection (1).”
Direction 99
On 23 January 2023, the relevant Minister for the purposes of s 499 of the Act, made a direction titled “Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 99).
The commencement date for operation of Direction 99 was 3 March 2023. Upon its commencement, Direction 99 revoked the operation of “Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 90).
Paragraph 5.1 sets out the objectives of Direction 99. Relevantly, para 5.1 provides:
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.
...
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
(4) The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of Direction 99 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke the cancellation of a visa under s 501CA of the Act. These principles are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable (sic) risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (sic) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable (sic) risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 99 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 99 (where such considerations are relevant) in order to determine whether the decision to cancel the visa under s 501(3A) of the Act should be revoked.
Guidance in relation to how the relevant considerations are to be taken into account is found in para 7 of Direction 99 which provides that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of Direction 99 is as follows:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
Paragraph 9 of Direction 99 is as follows:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) Legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
THE HEARING AND THE EVIDENCE
The application was heard on 2 and 3 October 2023. The Applicant was represented by Mr N Boyd-Caine and Mr C Fitzgerald of counsel, both of whom appeared on a pro-bono basis. I thank Mr Boyd-Caine and Mr Fitzgerald for their services. The Minister was represented by Mr J Papalia. The following witnesses gave evidence at the hearing:
(a)The Applicant;
(b)Ms G Eades (Ms G Eades);
(c)Mr J Webb (Mr Webb); and
(d)Mr J Eades (Mr Eades).
The following documents were admitted into evidence.
(a)Applicant's statement dated 22 August 2023 and attachments; Cyrenian House support letter dated 15 August 2023; Pathway Programs completion certificate dated 22 August 2023; letter from Douglas Woods (undated) (A1);
(b)Applicant's bundle filed 7 September 2023 incorporating 12 documents (A2);
(c)Applicant's bundle in reply filed 27 September 2023 (A3);
(d)Applicant's further bundle filed 28 September 2023 (A4);
(e)Respondent’s section 501 G Documents (G Documents) (R1);
(f)Respondent's Tender Bundle (R2);
(g)Respondent’s Supplementary Tender Bundle (R3); and
(h)Criminal History dated 21 September 2023 (R4).
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law.[11] The character test is defined in s 501(6) of the Act (see [15] above). Under s 501(6)(a) of the Act, a person does not pass the character test if the person has “a substantial criminal record”. Section 501(7)(c) of the Act (see [16] above) 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...”. The Applicant has been sentenced to a term of imprisonment of more than 12 months and he therefore has a substantial criminal record (see [11] above).
[11] Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 66.
The Applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution at the time of the cancellation of his visa on 5 June 2022. The Applicant, rightly, conceded that he does not pass the character test.[12] I am satisfied that the elements of s 501(3A) of the Act were satisfied and that the cancellation of the Applicant’s visa under that section was valid.
[12] Applicant’s Statement of Facts, Issues and Contentions (Applicant’s SFIC) para 38.
THE ISSUE FOR DETERMINATION
As the Applicant does not pass the character test, he cannot rely on s 501CA(4)(b)(i) of the Act for the decision to cancel his visa to be revoked. The issue for determination, therefore, is whether the power under s 501CA(4)(b)(ii) should be exercised on the basis that there is another reason why the decision under s 501(3A) should be revoked.
PRELIMINARY MATTERS
The Applicant’s SFIC identified what it described as two “preliminary matters” which it described as “requiring addition information or clarification from the Respondent to assist the Tribunal’s determination”.[13] These two matters were identified as being whether the Applicant is:
(a)a non-citizen non-alien; and
(b)stateless.
[13] Applicant’s SFIC para 26.
For reasons which become clear in these reasons for decision, and because of the final decision that I make, it is not necessary for me to make a final determination of either of the “preliminary matters” identified by the Applicant. In any event, I very much doubt that the Tribunal would have jurisdiction to make a determination of the first matter,[14] except potentially in the context of an argument by the Applicant that there had not been valid cancellation of the visa under s 501(3A) because, as a non-alien, the Applicant did not require a visa. A valid cancellation of a visa under s 501(3A) is a jurisdictional fact which has to be satisfied for the power under s 501CA(4) to be invoked.[15] When pressed, however, Mr Fitzgerald for the Applicant advised that that was not a line of argument pursued by the Applicant. In the end, neither party argued that I did not have jurisdiction under s 501CA(4) to determine whether there is another reason why the decision to cancel the Applicant’s visa under s 501(3A) should be revoked. I am satisfied that I have such jurisdiction.
[14] noting that s 500(4A)(c) prohibits the Tribunal from reviewing a s 501(3A) decision; see XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6 at [51].
[15] See XJLR per Rares J at [39] and [63], with whom Yates J concurred on that point at [95]; see also Nuuamoa v Minister for Immigration , Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 587.

Whether the Applicant is stateless for the purposes of the Act is not a “preliminary matter” as such, however, the Applicant being stateless, or even as the Minister conceded, potentially stateless, is a matter that is relevant to a number of the considerations under Direction 99 and has been taken into account under the relevant considerations.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1 of Direction 99 provides that, when decision-makers are considering the protection of the Australian community, they:
(1)... should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen's conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (para 8.1.1)
Paragraph 8.1.1 of Direction 99 relevantly provides:
1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)...
(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;
...
c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e) the cumulative effect of repeated offending;
...
The Applicant’s record of offending, as disclosed by the Australian Crime Intelligence Commission Check Results Report[16] (confirmed by the Applicant at the hearing as accurate), is set out in Annexure A.
[16] R1/54-7.
In total, the Applicant has 76 convictions over 22 years.
Most of the Applicant’s convictions resulted in fines, licence suspensions, community service, good behaviour and supervision orders, however, the Applicant has been sentenced to terms of imprisonment on eight occasions. The most serious of these offences were armed assault with intent to rob, for which the Applicant received a three-year imprisonment sentence (concurrent) on 1 December 2021, and home burglary and commit for which the Applicant received a two-year (cumulative) sentence on 15 December 2021. The Applicant is presently serving the resulting five-year term of imprisonment.
The circumstances of the armed assault with intent to rob offence were set out in the sentencing remarks of Prior DCJ. His Honour noted that the Applicant had been convicted after trial in October 2021, further noted that the maximum sentence for the offence was imprisonment for 14 years and outlined the facts as follows:[17]
[17] R1/61-2.
About 9.40 pm on Monday, 16 June 2020 you were sitting in a blue Daihatsu car at the Swan View Shopping Centre car park on Morrison Road.
The victim, [name], was sitting on a kerb in front of the IGA store waiting for her stepfather to pick her up when you approached her, engaged her in conversation. You asked her if she was okay, to which she replied that she was and was waiting for her mum or stepdad.
You then returned to your vehicle and sat in the passenger seat. Shortly thereafter you then again approached [name] and knelt down in front of her. In your right hand you held a knife which was pointing towards [name]. You were waving the knife.

It was a kitchen-style knife. You said to her:
You'd better give me all your cash.
You waved the knife around in her general direction. She was shaking and reached into her backpack for her wallet. As she did, fortunately, her stepfather drove into the car park. You then noticed an oncoming vehicle and you said:
It was just a joke. It was a joke
You then stood up and walked away.
…
Now, there is one aggravating factor in my view in your case. The victim, [name], she was in a vulnerable situation when you committed the offence. She was by herself, late at night, waiting for transport to her home after she’d completed her work shift.
In sentencing the Applicant on 15 December 2021 on the home burglary and commit and associated offences committed in 2019 (the Applicant having entered guilty pleas), Magistrate Huston in sentencing the Applicant noted that the plea of guilty on the home burglary charge did not result in the Applicant receiving a reduced sentence because, as a repeat offender, he was subject to a mandatory term of imprisonment which could not be reduced.[18]
[18] R1/68.
The Minister contended that the Applicant’s offending has been frequent, with multiple repeat offences and is also cumulatively significant. The Applicant has, according to the Minister, graduated from thefts/burglaries where he may have coincidently been armed so as to cause fear, to specifically using the threat of physical violence (namely a stabbing) to obtain property (relevant to Direction 99 paras 8.1.1(d) and (e)).
The Minister also noted that the Applicant’s offending occurred notwithstanding formal warning from the Department on the consequences of offending (para 8.1.1(g)).
The Applicant accepted that his offending involving violence was serious, that given his lengthy criminal record, the offending had been frequent and that he was formally warned of the consequences of continued offending.[19] He submits that his offending history should be read together with the information relating to his traumatic upbringing and history of drug abuse as they are fundamentally related. According to the Applicant, his offending as well as his inability to adhere to formal warnings, are reflective of his serious drug addiction and its impact on his ability to make appropriate decisions.[20]
[19] Applicant’s SFIC para 51.
[20] Applicant’s SFIC para 53.
Looking at the Applicant’s offending conduct through the prism of the considerations identified in para 8.1.1 of Direction 99 relevant in this case, I find that:
(a)
Paragraph 8.1.1(1)(a) - the Applicant has been convicted of crimes of violence (common assault in 2007 and armed assault with intent in December 2021) which come within subpara 8.1.1(1)(a)(i). As the armed assault conviction in 2021 related to a woman (see [40] above), it comes within subpara 8.1.1(1)(a)(ii) as well.

The Applicant has not been convicted of an offence which would constitute family violence as defined in para 4 of Direction 99. While the Minister had contended that the Applicant had committed family violence relying on the Applicant’s breaches of family violence restraining orders,[21] Mr Papalia at the hearing, rightly, withdrew that claim. There is no evidence of the Applicant having committed family violence as that term is defined in Direction 99.
(b)Paragraph 8.1.1(1)(b) – the Applicant’s offences and conduct do not come within the offences and conduct identified in this subparagraph. While Prior DCJ found that the victim was in a “vulnerable situation” (see [40] above), that does not constitute the victim a “vulnerable member of the community”.[22]
(c)Paragraph 8.1.1(1)(c) – As noted above, the two-year sentence imposed for the home burglary conviction was a mandatory sentence (see [41] above). The other sentence of imprisonment of any length, the three-year term for the armed assault with intent to rob offence, while not insignificant was at the lower end of the scale, the maximum being 14 years (see [40] above). The other sentences, short term or mandatory (driving while suspended), were at the low end of the scale indicating that the courts’ views were that the Applicant’s offending was at the low end of seriousness. I also note that the armed assault with intent to rob offence fell within subpara 8.1.1(1)(a)(ii) (see [45(a)] above) so is excluded from consideration under this subpara (c).
(d)Paragraph 8.1.1(1)(d) – the Applicant’s offending has been frequent, with a period of non-offending (2010-12). As the most serious of the Applicant’s offending is that for which he was sentenced in December 2021 (offences committed in 2019 and 2020), there is a trend of increasing seriousness.
(e)Paragraph 8.1.1(1)(e) - the cumulative effect of the Applicant’s frequent offending and the repetition of the same sorts of offences, with an increase in the seriousness of the offending, indicates that the Applicant is unwilling, or unable, to comply with the law.
(f)Paragraph 8.1.1(1)(g) – The Applicant reoffended after being given a formal counselling letter by the Department in 31 May 2007 (see [8] above). As noted above, the Applicant’s visa was cancelled for the first time under s 501(3A) in February 2016 (see [9] above). The cancellation of the visa was revoked under s 501CA(4) and, in the letter dated 17 May 2016[23] by which the Department advised of the decision to revoke the cancellation of the visa, the Department warned that the Applicant could “be reconsidered for cancellation on character grounds in the future in the event of further criminal offending”.
[21] Minister’s SFIC para 53.
[22] Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144 at [48].
[23] R1/172.
The Applicant’s criminal record is clearly very lengthy and some of the offences of which he has been convicted must be considered to be very serious. The vast majority of the offences of which the Applicant has been convicted are less serious, and many fall into the category of public disorder. While any assault is serious, as is any theft or stealing, the assaults did not occasion any serious injury and the stealing, break and enter, robbery and the like charges did not involve significant amounts of money. In some cases, the amounts involved were pitifully small. Accordingly, while the Applicant’s criminal history is serious, the types of offences that the Applicant has committed and the circumstances in which they have been committed, do not indicate a person who has consciously chosen a life of serious crime, but rather someone who has, largely through his self-admitted issues with drugs and alcohol, been unable to control his behaviour.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
Paragraph 8.1.2 of Direction 99 relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the non citizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of harm to individuals or the Australian community (8.1.2(2)(a))
The Applicant contended that his past driving offending and violent offending had not “caused more than minor physical harm”.[24] He concedes that his offending was likely to have caused psychological (particularly the use of threats of violence) and financial harm. His drug related charges related to possession of drugs for personal use.
[24] Applicant’s SFIC para 55.
The Applicant’s submissions were couched in terms of the harm that his past offending had, as a matter of fact, caused.[25] I do not take issue with the Applicant’s categorisation of the harm that has been caused by his past offending (noting that there is a paucity of evidence in that regard), but note that this paragraph of Direction 99 requires consideration of the nature of the harm to individuals or to the Australian community that would be caused should the non-citizen engage in further criminal or other serious conduct, not what harm his prior criminal and serious conduct has caused. While the harm that has been caused by the Applicant’s past criminal behaviour may indicate the type of harm that might be caused if such criminal behaviour were to be repeated, the extent of the harm that his past conduct has caused is a function of the circumstances of each case. These circumstances would include the vulnerability of the Applicant’s victims to harm and, in some cases, just good (or bad) luck.
[25] Applicant’s SFIC para 56.
The nature of the harm to individuals or the Australian community should the Applicant engage in conduct of the type that he has in the past is self-evident and serious. The harm caused by assault is not necessarily limited to the direct physical injury that might be suffered by the victim, but also potentially psychological and financial harm to the victim and potentially the victim’s family and those who witness an assault. The Applicant’s repeated driving offences, in particular the offences of driving a motor vehicle without a licence, driving under suspension, driving with illicit drugs or alcohol in his blood and careless driving, if repeated, have the potential to cause significant harm. Disregard for the law undermines the proper regulation of road use and exposes other road users to the risk of injuries or loss suffered not being covered by compulsory third party insurance which, in most States, does not cover injuries or harm caused by unlicenced drivers or drivers driving under the influence of drugs or alcohol.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (8.1.2(2)(b))
The Applicant’s SFIC was to the following effect:[26]
(a)The Applicant has made significant strides towards rehabilitation from drug use and his risk of reoffending is low. He has been abstinent from drugs since he was incarcerated in 2020, despite drugs being readily accessible in prison.
(b)In sentencing the Applicant, Prior DCJ and Magistrate Huston noted the advice from counsel that the Applicant had been abstinent from drug use since imprisoned with Magistrate Huston also noting that the Applicant had been a model prisoner.
(c)The Applicant’s rehabilitation is not in its beginning stages. When he became a father in 2013, he self-controlled and curbed his drug use. He then started more formal rehabilitation before his most recent offences when he chose to undertake counselling with Next Steps in 2019.
(d)Rehabilitation is cumulative. It is incorrect, as the Minister contended, to say his rehabilitation in 2019 ‘failed’. Instead each engagement of rehabilitation builds skills and strategies which eventually become ingrained enough to overcome previously held negative beliefs and behaviours.
(e)Since his incarceration, the Applicant has engaged in intensive rehabilitation courses which have been designed by the Department of Justice to specifically lower recidivism.
(f)Following his most recent offending, in 2021, the Applicant has participated in the ‘Brief Intervention Group Therapy – Alcohol and Other Drugs’ and more recently he has engaged in ADAPT program which proves one-on-one counselling. He has also recently completed the Pathways program, which is significant in that it is a 100-hour program. Completion reports indicate the Applicant’s engagement with the programs and the advances made in dealing with his drug addiction.
(g)The Applicant also provided evidence about the role his Christianity has played in his past and future rehabilitation.
(h)The Applicant’s past offending, its frequency and severity must be assessed against the probative evidence provided here about his rehabilitation and “conditions that have since changed or other events have intervened to interrupt the cycle of regularity”.
[26] Applicant’s SFIC paras 59-75.
The Applicant’s SFIC summarised the Applicant’s risk of re-offending as follows:[27]
[27] Applicant’s SFIC para 76.
The Applicant:
(a)has abstained from using drugs since 2020 despite the prevalence of drugs in prison.
(b)has welcomed God into his life and follows the Christian faith, a steadying presence which provides him guidance and steadiness and [he] will have the support of the local Christian community.
(c)has organised further rehabilitation upon his release in the form of residential rehabilitation at Cyrenian House.
(d)acknowledges he has an addiction and has learnt how to ask for help which is a significant step in his rehabilitation journey.
(e)has acknowledged the link between his trauma and his addiction and has participated in counselling to work through his trauma and the sense of shame it gave him which led to negative behaviours.
(f)has a relapse prevention plan in which he has identified previous negative ways of thinking and replaced them with productive thoughts which can prevent relapse.
(g)has extensive support of the local Aboriginal community of which he is a member. Family and community elders, who are aware of his offending and addiction, have offered support to provide housing and employment upon his release.
(h)has not offended while in gaol.
(i)has demonstrated remorse for his offending.
(j)understands that his previous counselling was not sufficient and that he will need to engage in further programs and is now at a point where the cumulative effect of counselling and rehabilitation has allowed him to make changes in his life.
(k)has had a meaningful opportunity to engage in rehabilitation through programs, is highly motivated to avoid any return to detention and appreciates that further offending will likely result in further detention, separating him from his family and the community.
The Applicant’s evidence at the hearing was to the effect that he now has supports in place to whom he can reach out. The difference between now and when he offended was that he did not reach out to others for help. He felt too ashamed and thought that to do so would be a sign of failure. Any potential relapse, although unlikely, can be managed by seeking help and deploying the skills that he has learnt through his rehabilitation programs.

In his statutory declaration dated 6 September 2023,[28] the Applicant referred to his previous attempts at rehabilitation. He said that he was placed on a Drug Court program in 2005 in which he completed drug and alcohol counselling. Shortly after this program his mother became ill and died which devastated the Applicant and he returned to drug use. His evidence at the hearing was that he had become involved in this program simply to avoid a prison sentence.
[28] A1/2-10.
In 2013 when he “became a step-dad”, he tried to change his drug taking habits and tried counselling, amongst other things. While he said that he could not get off drugs, he was able to control the drug taking to avoid exposing the children to his drug use.
In 2019 the Applicant attended a drug and alcohol counselling program called steps because he had “had enough of the way I was living”. This “started to help, but was the tip of a long journey”. Before his offending in 2020, the Applicant was looking after his sick father which caused him stress and to return to drug use.
In that statutory declaration the Applicant described the rehabilitation that that he has engaged in since going to prison. He said that he has completed an Active Parenting Course to make him a better father to his stepchildren. It was an eight-week course with two sessions a week. Through this program he learnt listening to the children and improving communication skills.
In prison he also obtained certificates in hygiene and hospitality and worked in the kitchens. He also engaged in Allied Drug and Alcohol Programs and Treatment, counselling services that helped him deal with underlying issues resulting in his drug use. These sessions have helped him to understand his emotions and develop relapse prevention skills, and have highlighted the importance of having a routine and self-care.
In August 2022, the Applicant completed the 100-hour Pathways program which helped him to understand the triggers for relapse into drugs and alcohol. It was, he said, an intensive program that has helped him develop pro-social skills and to understand the consequences of drug addiction and to take responsibility for his past criminal behaviour. This has also helped him link his drug issues with his childhood traumas and has highlighted the importance of reaching out for help. He now knows that the drug and alcohol counsellors and his Noongar community are there to help when needed.
He is also on a methadone program to curb his cravings for heroin. He has been provided with a program for him to cease Methadone and substitute it with Suboxone, which he intends to do under the supervision of his doctors.
In a letter dated 15 August 2023[29] the Applicant was offered a place in a residential treatment program with Cyrenian House which he intends to accept.
[29] A1/30.
The Applicant also identifies his Christian religion and a strong desire not to return to prison or detention and a strong desire to stay in Australia with his Aboriginal family as incentives for not reoffending. His time in prison and separation from his step-children and extended family have been a salutary lesson and provide a strong incentive not to offend. While they are not his biological children, he has been in their lives for 11 years and they treat him as their father.
If he is allowed to stay in Australia, the Applicant plans to rent a place near his mother-in-law, who is looking after the children. He will also resume his involvement with the Aboriginal dance group run by “Uncle Jim”, a reference to Mr Webb. Mr Webb at the hearing confirmed that he would be happy for the Applicant to re-engage with the dance group. The Applicant has been given a job offer in a flooring business owned by Mr Taing, confirmed by Mr Taing in his statutory declaration,[30] and has also been offered assistance with training through an indigenous training centre run by Mr Eades.[31] In his statement,[32] Mr Eades said that if the Applicant was not considered part of the Noongar community, he would not be eligible for a place in the training centre.
[30] A4/1.
[31] A1/17.
[32] A1/17.
The Minister’s SFIC made the following submissions on the likelihood of the Applicant reoffending:
(a)In sentencing the Applicant on 1 December 2021, Prior DCJ referred to the Applicant’s evident “lifelong drug abuse history, primarily by using the drugs of heroin and methylamphetamine”. His Honour observed that the Applicant had taken some steps in custody to rehabilitate and that there may be unresolved trauma from childhood.
(b)Magistrate Huston on 15 December 2021 also accepted that the Applicant had been a “model prisoner and done everything that could be expected”. Those remarks appear to be supported by the Applicant’s participation in Brief Intervention Group Therapy for alcohol and other drugs in June-July 2021
(c)The Pathways Completion Report recommended regular urinalysis, AOD counselling to address a long-term history of use, support to disconnect from his negative peer group and guidance to connect with a new prosocial group of friends, individual counselling to further support his emotional management and coping skills, communication and conflict resolution skills and support in developing employment skills and finding suitable employment.
(d)
The Applicant has undertaken programs in the past and has reoffended.

The Applicant does have outstanding treatment needs and poses a cogent risk of recidivism.
I note that risk assessment undertaken in December 2022 by the Department of Justice assessed the Applicant as being “a high risk for general reoffending due to a very high risk/need score in his companions domain” and a “Medium risk/need score relating to his alcohol/drug problem domain”.[33] The assessment notes that the Applicant “has an entrenched history of substance misuse that has contributed to majority of his offences, however, due to the length of time spent incarcerated, [the Applicant] was a medium [need] for his alcohol/drug problem however, [it] remains a treatment need”
[33] R3/363.
Mr Fitzgerald submitted that this assessment should be given limited weight because it was nearly 12 months since it was undertaken and because the author of the report was not called and, therefore, the conclusions could not be tested. The submissions made on behalf of the Applicant are fair. I also have reservations about relying on risk/need assessments undertaken by prison authorities which, it is fair to assume, are undertaken to assess the risks and needs of prisoners in the prison system, not within the community.
A Parole Review Report created on 4 April 2023, recommended deferral of consideration of parole to allow the Applicant to complete the Pathways Program, which the Applicant has now done. The Prisoners Review Board is currently scheduled to hear the Applicant’s application for parole on 20 October 2023.
The Applicant presented as an honest and sincere witness. I accept that he is remorseful for his past criminal conduct and that he is genuine in his desire to address his drug and alcohol issues and continue with his rehabilitation with the support of his family and community. His clean prison record supports that conclusion. I also accept that Mr Webb, Ms G Eades and Mr Eades gave sincere and truthful evidence. It is clear that they accept the Applicant as part of their broader family and as a valuable member of their community and that they will provide whatever support they can to ensure that the Applicant remains drug and alcohol free and law-abiding.
It is undoubtedly the case that the Applicant has a long criminal history, albeit of mainly minor offences, that he has been given repeated warnings and chances in the past, that his rehabilitation thus far has not been successful and that he has outstanding treatment needs for his drug and alcohol addictions and his mental health issues. I do accept, however, that the Applicant is remorseful for his past conduct, is now fully appreciative of what he will lose if he re-offends and is genuine when he says that he is committed to continuing his rehabilitation and treatment and turning his life around. Taking all of these matters into account, I believe that the Applicant is a medium risk of re-offending.
As noted above, the harm that might be caused if the Applicant were to offend as he has in the past is serious. This, coupled with my assessment of the Applicant being a medium risk of reoffending, results in this consideration weighing against revocation of the cancellation of the Applicant’s visa and, in my view, being given moderate weight.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
Paragraph 8.2 of Direction 99 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 noncitizen, 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.
Paragraph 4(1) of Direction 99 relevantly defines family violence as follows:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a) an assault; or
b) a sexual assault or other sexually abusive behaviour; or
c) stalking; or
d) repeated derogatory taunts; or
e) intentionally damaging or destroying property;
...
(Original emphasis)
Member of a person’s family is defined in para 4(1) of Direction 99 as follows:
member of person’s family, for the purpose of the definition of the definition of family violence, includes a person who has, or has had, an intimate personal relationship with the relevant person.
(Original emphasis)
As noted above, while the Minister initially contended that the Applicant had engaged in acts of family violence, the Minister withdrew that contention. I am satisfied that there is no evidence that the Applicant has engaged in family violence as that term in defined on para 4 of Direction 99.
Third primary consideration: The strength nature and duration of ties to Australia (para 8.3)
Paragraph 8.3 of Direction 99 provides:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) The length of time the non-citizen has resided in the Australian community, noting that:
(i)Considerable weight should be given to the fact that a non- citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
(ii) more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii) less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant’s SFIC made the following contentions:[34]
[34] Applicant’s SFIC paras 80 – 93.
(a)It is difficult to conceive of stronger ties to Australia than the Applicant has.
(b)He has been in Australia for 36 years, that is he has spent more than 75% of his life in Australia. His parents are buried in Australia. Australia extended protection to him and to his family when he was a child. Had he applied for citizenship when he was entitled to, he would have been a citizen for over two decades.
(c)The Applicant has worked extensively, studied and contributed positively to the community, including as a father, as a basketball coach, and as a member of a dance group. His statelessness underscores the fact he has no other possible home.
(d)The Applicant has been ordinarily resident in Australia during and since his formative years. Because of the trauma suffered by the Applicant in his early years, the Australian community is likely to afford a higher tolerance to his criminal conduct.
(e)The Applicant has been adopted by the Noongar community as an Aboriginal Australian man, citing the statements of Mr Webb and Mr M Eades. He has taken part in Noongar dance and traditions since he was 10 years old. He has knowledge that is only passed down orally through community and which would be lost from his disconnection to community (Hands v Minister for Immigration [2018] FCAFC 225).
(f)The Applicant’s five children are Aboriginal Australian. He is and has been a primary caregiver. His connection to his two children who are over 18 years is significant. A decision not to revoke the cancellation of the Applicant’s visa will deprive his Australian citizen Aboriginal children a chance to connect to culture with their father and have important Noongar culture, lore and story passed to them. “More weight” should be given to this consideration because his children are Australian citizens.
(g)In this case the role of a father is far more complex than providing primary parental responsibilities, it is essential in the continuation of culture of the Noongar people, which has already been disrupted throughout years of colonisation.
(h)There would be significant impact on the Noongar community in taking someone whom they consider to be Aboriginal, citing the comments of the Yoorrook Justice Commission’s ‘Yoorrook for Justice’ report, which dealt with the intergenerational impact of the stolen generation on Aboriginal Communities in Victoria.
(i)Mr Webb’s statement evidences that he and his wife welcomed the Applicant into their family because she herself had been taken from her family and understood the impact disconnection from family as a child can have (citing Mounga and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4053).
The Minister’s SFIC para 58 stated that the fact that the Applicant has lived in Australia since he was six years old “should attract significant weight (cl 8.3(4)(a)(i))”.
The Minister also accepted that most of the Applicant’s immediate family and social network all reside in Australia, and that he has reasonably strong ties here. It is also accepted that his removal from Australia would adversely impact those family ties.
The Minister submitted, however, that, while the Applicant has lived in Australia since adolescence, he has spent most of his adult life offending on a regular basis. Through that lens, there is somewhat limited evidence of positive contribution by him to the Australian community.
The Minister’s conclusion is that this primary consideration “strongly favours revocation”.[35]
[35] Minister’s SFIC para 61.
The Applicant’s statements, the statements provided by Mr Webb, Mr Eades and Ms G Eades and their evidence at the hearing, attest to the Applicant’s very strong, long-standing ties to the Australian community, in particular, to the Perth Noongar community.

The statement of Ms J Eades, the mother of the Applicant’s partner and grandmother of the Applicant’s stepchildren, also evidences the Applicant’s strong links to the community and the acceptance of the Applicant by that community.
The Applicant contended that he is an Aboriginal man. As noted above, the statements provided by Mr Webb, Mr Eades, Ms G Eades and Ms J Eades establish that the Applicant is accepted by the Noongar community and treated as a member of a Noongar family. However, it was only Mr Eades who said that he considered the Applicant to be Aboriginal. In his statutory declaration made 7 September 2023,[36] Mr Eades, who describes himself as a Noongar elder, said:
I have met [the Applicant] at many gatherings of our mob and have had a few yarns with him over the years. He has always shown great respect and has been culturally accepted into the Noongar community for a long time now. I consider [the Applicant] a Noongar man because he has been adopted into the community according to customary law.
[36] A1/17 para 2.
Mr Webb, also indisputably recognised as a Noongar elder, expressed a different view.

His evidence at the hearing was:
You know that [a person is a member of the Noongar nations] by their family… I never said that [the Applicant] was Noongar – he’s Cambodian … I always said that he was part of our family.
…
[The Applicant] was a part of our community from when he was a kid. He went to school with all of my children and as he got older, he just kept in touch with us – we call him son … he did a lot of work for us … he ended up with a Noongar woman and when you do that kind of thing you end up with respect from us Noongar people … he was very respectful to me and the Mrs, all my kids saw him as Noongar … other people saw that [too] and he’s very welcome in our Noongar community.
The Applicant raises the claim of Aboriginality in support of two contentions. The first is that, as an Aboriginal man, he is not subject to relevant provisions of the Act. The Applicant argues that[37] based on the principles arising from the High Court’s judgment in Love v Commonwealth,[38] the aliens power cannot be extended to Aboriginal Australians as defined by the tri-partite test outlined in Mabo v Queensland (No 2).[39]
[37] Applicant’s SFIC paras 27-35.
[38] [2020] HCA 3.
[39] Mabo v Queensland (No 2) ([1992] HCA 23; (1992) 175 CLR 1.

At the commencement of the hearing, I asked the Applicant’s counsel what the relevance of such an argument is to the statutory function that the Tribunal is mandated to undertake under s 501CA(4). The Tribunal’s jurisdiction is specific and singular. It is to review “decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa” (s 500(1)(ba)). As noted in the footnote to [33] above, s 500(4A)(c) prohibits the Tribunal from reviewing a s 501(3A) decision. The Tribunal clearly has no power to issue some form of declaratory or injunctive relief relating to whether the Applicant is subject to provisions of the Act such as those which require the detention of unlawful non-citizens (s 189) or the removal from Australia of unlawful non-citizens (s 198). The only potentially relevant line of argument appeared to be that identified in [33] above, which Mr Fitzgerald advised was not being pursued by the Applicant.
The second contention to which the Applicant’s claim of Aboriginality is relevant is the Applicant’s claim of links to the community. I also consider that a claim to Aboriginality could also be relevant, in this case, to the consideration of the best interests of children.
In the end, however, I do not consider it critical, or even particularly relevant, to make a determination as the Applicant’s Aboriginality to assess the strength, nature and duration of the Applicant’s ties to Australia or the best interests of the Applicant’s Aboriginal stepchildren. It is abundantly clear on the evidence of the members of the Noongar community, including elders of that community, that the Applicant is accepted as being part of and an active participant in the Noongar community.
This consideration requires decision-makers to consider any impact of the decision on the non-citizen's immediate family members in Australia. While the Applicant may have no blood relatives in Australia, in the Applicant’s case I think it fair and reasonable to treat the Applicant’s stepchildren and the members of the Eades family, including the Applicant’s partner, as effectively direct family members. The impact on them of a decision not to revoke the cancellation of the Applicant’s visa would be significant. Mr Webb described the impact as follows:[40]
We would be devastated if [the Applicant] was taken away from our family and community. He has always been around and it would be a great to loss to have him be forced to leave. A lot of my grandchildren call him Uncle [Applicant’s first name] and it shows the great respect they have for him and that he is an integral part of our family network.
[40] A1/12.
Ms G Eades, a community caseworker and the sister of the mother of the Applicant’s stepchildren, described the impact of an adverse decision on the community as follows:[41]
As mentioned above, [the Applicant] has a place in a lot of people’s hearts in our community. He has become an important member of the Noongar community and it would cause a lot of grief to have him forcefully removed from us never to return.
[41] A1/13.
Mr Eades, the uncle of the Applicant’s partner, described the impact on the community in the flowing terms:[42]
[The Applicant]
is a good person and an important member of his family and our community. It is really important to us that he is returned to us and is not removed by the government. The impact will be severe for his family and our community.

To take away [the Applicant] from his family is to take the father figure. Taking either the mother or the father from these kids would be to remove the heart and soul of the family. It would break the spirit of the kids to remove him.
Our community will find [the Applicant’s] removal really hurtful as well. Many of our mob have been forcefully removed from their families in the past and it would feel horrible to have [the Applicant] taken away to never be seen again. I was removed from my family to state care when I was young and it is the same thing here – the government is taking away a community member to never be seen again.
[42] A1/17-8.
More generally, it is clear that the Applicant’s ties to the community, in particular the Noongar community, are very strong. Mr Webb’s evidence was that from an early age the Applicant grew up with his children, that the Applicant spent time in Mr Webb’s house and his children in the Applicant’s house. While considering the Applicant as technically not Aboriginal, Mr Webb accepted the Applicant as “a part of his family”; the Applicant calls him “dad” and Mr Webb’s wife “mum”. He said that they had “embraced [the Applicant] as a son over the years”.[43] His evidence also was that the Applicant:
4. Often when [Mr Webb was] talking with my kids privately and passing on Noongar knowledge, [the Applicant] was there too and would have taken in a lot of information about men’s business and other important aspects of our culture
5. [The Applicant] has attended a number of cultural ceremonies, including dance performances, smoking ceremonies and knowledge sharing. My role in the community and my dance group makes these activities a regular and important part of my life.
6. [The Applicant] was often seen at community events and gatherings. He has always had a lot of friends in the Noongar community. He was often seen at NAIDOC events and would also attend performances of Wadumbah Aboriginal Dance Group.
…
8. In the Noongar community, it’s your personal actions that get in you in the door with us. We are very wary and do not let anyone in. So when [the Applicant] comes along and is just friendly, respectful, no judgements and lived with a Noongar woman and tried to do the right thing by her, he naturally became part of our community.
[43] A1/11.
The Applicant’s ties to the Australian community are long-standing and deep. He arrived in Australia as a child and has been in the community during and since his formative years. He has contributed significantly and positively to the community, in particular to the Noongar community and his removal would have very significant impact on his family, in particular the Applicant’s stepchildren, and the broader Noongar community.
The Minister is correct to agree that this consideration strongly favours revocation of the cancellation of the Applicant’s visa. I find that, for the reasons set out above, this primary consideration, the strength, nature and duration of the Applicant’s ties to Australia, weighs very heavily in favour of revocation of the cancellation of the Applicant’s visa.
Fourth Primary Consideration: Best interests of minor children in Australia affected by the decision (para 8.4)
Paragraph 8.4 of Direction 99 provides:
(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant has no biological children in Australia. The Minister, appropriately, contended that:[44]
It is clear from the material before the Tribunal that the applicant has a relationship with the 3 children, and that it is in each of their best interests that the cancellation be revoked. The role that the applicant plays in respect of [J] would appear to be more significant than in respect of the older siblings.
[44] Minister’s SFIC para 66.
The Applicant’s SFIC contended that:[45]
(a)The Applicant’s relationships with the three minor children of his partner are strong. He has been their father for the past 10 years and undertaken all parental duties that a father would engage in. He has prepared their meals, bathed them and taken them to and from school. On weekends he has played with them and taken them on trips. He provided financial support buying them food, clothes other necessities as well as spending money on camping and fishing trips.
(b)There is no evidence that the children were subject to the Applicant’s drug taking and alcohol abuse. He shielded them from that part of his life.
(c)The Applicant’s mother-in-law and sister-in-law have both written letters of support in this case attesting to the important role that he plays in his children’s lives. One of the Applicant’s stepchildren, J, wrote a letter to the Department asking that his ‘Dad’ be allowed to return home.
(d)The Applicant’s role is further significant given the children’s current primary caregiver is not their mother, but the Applicant’s mother-in-law, Ms J Eades. The unstable presence of their mother in their lives emphasises the need for the Applicant to be a present and stable figure.
(e)The Aboriginality of these minor children is significant in deciding the weight to be given to the importance of the Applicant’s presence in their lives. In this case the role of a father is far more complex than providing primary parental responsibilities, it is essential in the continuation of culture of the Noongar people. The children have reached out to the Applicant while he is incarcerated to ask him questions about Noongar law and culture.
(f)The Applicant cited the Yoorrook Justice Commission’s ‘Yoorrook for Justice’ report in relation to the impact separation from parent has had on continuation of culture for Aboriginal communities. The Applicant also cited Article 27 of the International Covenant on Civil and Political Rights (ICCPR) which protects the rights of individuals belonging to ethnic, religious, and linguistic minorities within a country to enjoy their own culture, practice their own religion and use their own language.
(g)The Applicant contended that his removal will impact the children’s participation in their culture and enjoyment of their cultural rights, which should be protected under the ICCPR.
[45] Applicant’s SFIC paras 102 – 113.
The role that the Applicant has played in the children’s lives and the impact that his removal would have on them was described in the statements provided in support of the Applicant. The children’s grandmother, Ms J Eades, said in her statement:[46]
[46] A1/15-6.
2. I first met [the Applicant] when he started dating my daughter [A] many years ago. I am not sure how long ago it was when he entered our family, but it was when [J], now ten years old, was just a little baby, so it was many years ago. [The Applicant] immediately undertook the role of father and was heavily involved in caring responsibilities.
3. [The Applicant] loved us as family and began caring for the kids straight away. He has always wanted the best for them. I remember he would change [J]’s nappies and wash and feed him. He would cook the kid’s meals and play with them and take them out for the day. I remember when he’d pick [J] up from school, [J] would love climbing onto [the Applicant’s] shoulders. Little [J] loved getting up there and I remember him being so happy when [the Applicant] was around doing things like this. He loves those kids as his own and treats them as such.
4. When [the Applicant] first came to our family and met [A] many years ago, he referred to us as family straight away. He would refer to me as “Mum” and refer to [A]’s kids as his own children. It was really nice to have him come into our family and be so eager to help with the parenting responsibilities of my grandkids.
…
6. He is so good to the kids and there is nothing he would not do to help them. Before he went to prison, he would do a lot for the kids when he was at home. He would cook meals for them, spend quality time with them and would wash them when they were little. He did everything a father should do for their kids.
7. [The Applicant] continues to have a strong bond with the children. He calls them regularly from prison. My grandkids love [the Applicant] a lot and they all look forward to his phone calls. He rings them every day and often at night time as well to say goodnight. He treats them as his own and their own father doesn’t even know them.
…
9. If [the Applicant] was deported from Australia, it would have a devastating impact on my grandchildren. He has acted as their father since [J] was a baby and continues to play an important role in his life. We would all miss him immensely and the kids would be so upset. If he is allowed to return to us, I know that he would do anything and everything to help my grandchildren. I believe there is nothing that is too hard for him to do, as he is willing to do everything for them.
…
11. I was recently informed of the details of [the Applicant’s] offending and understand he did some things that are wrong and got involved in drugs. Despite this, I stand by him and continue to want him to return to our family. I know he’s worked hard to change himself in prison. The kids love him and need him in their life. I love him like a son and want him to have a happy life. His offending does not change that for me.
Ms G Eades made the following comments in her statement:[47]
3. I have known [the Applicant] since he first started dating my sister [A] many years ago. I have always known [the Applicant] to be a very kind-hearted and gentle person. He is caring and loyal and I have had a lot of respect for him for how he has taken on my sister’s children as his own. [A]’s youngest child [J] absolutely adores [the Applicant]. He has always been so drawn to [the Applicant]. I remember he used to cry to go to [the Applicant] more than he would cry to go to his own mother.
4. [The Applicant] is like the father of these kids. He does the jobs that dads do and always has time for the children. He cooks their meals and has always made sure they are fed. He would take the boys to the park to play sports and run around. He has also taken an interest in the lives of [A]’s grandchildren, making sure that they had support and money even if [A] wasn’t around. He has a real sense of family obligation and has always made sure he plays his part.
…
7. The impact [of a negative decision] on the kids would be so unfair. In particular, it would tear little [J]’s heart apart. When [J]’s biological father abandoned him, [the Applicant] was the only one who has stepped in to play that role in his life. It will negatively affect [J]’s development as he enters his adolescence. I would be really worried for Jacob’s future without [the Applicant]. It will lead to a change in [J]’s behaviour and will shatter him.
[47] A1/13-4.
Mr Webb in his statement said:
9. He often used to come to us for advice if he was having troubles in his life. When the children came into his life, all he ever wanted was to make sure he had food on table for the kids. I know there were some difficulties in their lives, but [the Applicant]’s priority was always to make sure the kids were OK.
Mr Eades in his statement said:[48]
3. [The Applicant] is a good and loving person who has always been very caring to the children he has helped raise. When I first got to know him, I originally thought the children he was with were his kids due to the way he loved and cared for them.
…
8. … To take away [the Applicant] from his family is to take the father figure. Taking either the mother or the father from these kids would be to remove the heart and soul of the family. It would break the spirit of the kids to remove him.
[48] A1/17.
Considering the factors identified in para 8.4(4) of Direction 99, it is clear that the Applicant has had a close relationship with the three children, in particular [J] for over 10 years, and while he is not the children’s biological father, he has fulfilled the role of a father to these children who have no contact with their biological fathers. There is no evidence that the Applicant’s prior conduct has had a negative impact on the children and the evidence satisfies me that he is likely to play a positive role in their lives if he were allowed to stay in Australia. Insofar as the views of at least one of the minor children [J] is known, they want the Applicant to remain in their lives.
The Minister rightly concedes that the best interests of the three minor children would be served by the Applicant remaining in Australia. Given the length, nature and strength of the Applicant’s role in the children’s lives, the primary consideration of the best interests of minor children weighs heavily in favour of the revocation of the cancellation of the Applicant’s visa.
Fifth primary consideration: Expectations of the Australian community (para 8.5)
Paragraph 8.5 of Direction 99 relevantly provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
...
(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;
...
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

As conceded by the Minister, this consideration weighs in favour of revocation of the cancellation of the Applicant’s visa. I assess that in the circumstances applicable to the Applicant, moderate weight should be given to this consideration.
Extent of impediments if removed (para 9.2)
Paragraph 9.2 of Direction 99 provides:
(1) Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
The Applicant’s SFIC made submissions to the effect that the Applicant has lived in Australia for 36 years; he knows nothing of Cambodia, his family’s connection to the country is marked by severe hardship; he has no connection with Cambodia; he would not be able to access the healthcare that he needs; he cannot functionally speak the language and he would be permanently separated from his family.
The Minister contends that the Applicant has no major health issues, but acknowledges that he is a recovering addict undergoing opiate substitution therapy. The Minister accepts that the Applicant does not speak any language other than English and there are likely to be limited social, medical and/or economic supports available to him in Cambodia. The Minister accepts, again correctly in my view, that this consideration weighs in favour of revocation.[62]
[62] Minister’s SFIC para 76.
I find that this consideration weighs in favour of revocation of the cancellation of the Applicant’s visa. The Applicant is not an educated man, and it is not clear that he has any particular skills or training which would facilitate his establishing and maintaining himself to a basic living standard in Cambodia. He does not speak the language, knows little or nothing about the culture and has no contacts or family that he knows of in Cambodia. I also consider that as a recovering drug addict still receiving opiate substitution therapy, as well as medication for his depression and anxiety, he would face very significant impediments in establishing and maintaining basic living standards.
I find that this consideration weighs heavily in favour of revocation of the cancellation of the Applicant’s visa.
Impact on victims (para 9.3)
Paragraph 9.3 of Direction 99 provides:
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.
The Applicant made no submission on this consideration and the Minister submitted that it was not relevant. I agree that it is not relevant.
Impact on Australian business interests (para 9.4)
Paragraph 9.4 of Direction 99 provides:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant contended that the Applicant not being allowed to remain in Australia would impact the business of Mr Taing who has offered the Applicant a job (see [63] above).
The fact that Mr Taing has offered to employ the Applicant does not mean that a decision not to revoke the cancellation of the Applicant’s visa would impact Mr Taing’s business. There is simply no evidence to that effect.
I find that this is not a relevant consideration in this case.
THE WEIGHING EXERCISE
Direction 99 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 99 sets out the way in which the relevant considerations are to be taken into account (see [24] above).
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under earlier Ministerial Directions issued under s 499 of the Act (see [20] above), the same considerations apply to the exercise required by Direction 99 which is materially in the same terms to those earlier Ministerial Directions. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[63] and the Full Court judgment in Minister for Home Affairs v HSKJ.[64] See also XRGY and Minister for Immigration, Citizenship, and Multicultural Affairs[65] at [182]-[183] for analysis of those cases.
[63] [2018] FCA 594.
[64] [2018] FCAFC 217; [2018] FCAFC 217; 266 FCR 591.
[65] [2023] AATA 755.
The Full Court of the Federal Court considered the operation of Direction 90 (relevantly materially the same as Direction 99) in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[66] At [35] the Full Court described the process as follows:
The balancing process is directed to determining whether there is “another reason” why the visa cancellation should be revoked. It requires an identification of the matters that may constitute “another reason” and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.
[66] [2023] FCAFC 138.
In criticising the Tribunal’s reasons, the Full Court at [38] found:
...They do not disclose that there was any process by which the Tribunal grappled with the competing considerations, each of which had been ascribed a different descriptor of weight and some of which had the status of being “primary” considerations and others not, in order to bring them to bear in forming a state of satisfaction as to whether there was “another reason” to revoke the cancellation. The statutory task is not fulfilled by ascribing a descriptor of weight, such as “strong”, “significant”, “considerable” or “moderate” (in favour of or against revocation) to the different considerations, primary and other, and then stating a conclusion as if that conclusion was made inevitable by the application of a mathematical formula.
And at [43]:
... the Tribunal recognised in paragraph [113] that it was required to weigh “all the Considerations” (emphasis added), and because it had expressly gone through the process of considering each of the “other considerations in turn”, as explained above, it cannot be concluded that the Tribunal failed to consider the “other considerations”. However, there is nothing in the concluding section of the Tribunal’s reasons, or indeed anywhere, which reveals any process of balancing and evaluation... Nor is there anything which demonstrates that in reaching its ultimate conclusion, the Tribunal brought to bear its assessment of the weight of the various “other considerations”. After summarising, and rephrasing, its earlier ascription of descriptors of weight to each of the primary considerations, the Tribunal then simply concluded in paragraphs [114] and [115] by use of the words “therefore” and “consequently” that the visa cancellation should not be revoked. Such a conclusion does not inevitably or necessarily follow from those unexplained, un-balanced and un-weighed descriptors of weight; it may be that such a conclusion is justified by what preceded it but it is not apparent that the Tribunal undertook the required process of evaluation in order to reach its decision. It is not even apparent that the Tribunal considered that the weight of all the primary considerations were compelling against revocation of the cancellation of the visa, since it placed “significant weight” on one of those considerations, the interests of minor children, as favouring revocation.
And at [44]:
...What it did, on the face of its reasons, is ascribe weight to the various considerations having considered each in isolation and then express a conclusion without demonstrating that it actually weighed the various considerations against each other and undertook a proper evaluation of whether there was indeed “another reason” why the cancellation should be revoked.
What I understand the Full Court to be saying is that giving a weight to each consideration by ascribing a particular quantitative or qualitative adjective and then stating a conclusion without explaining how the conclusion flows from or arises out of a described process of assessing the weight of each consideration against each other consideration, is not discharging the statutory function. Applying those principles to the case of the exercise of being “satisfied ... that there is another reason why the original decision should be revoked” (s 501CA(4)(b)(ii)), I take the Full Court to be directing the decision-maker to give appropriate weight to each relevant consideration, explain why such weight is given to the consideration and then, through a described, logical process, compare and balance all of the considerations to determine whether there is another reason why the original decision should be revoked.
Following the above-described process, I have ascribed a weight to each of the relevant considerations under Direction 99 and explained the basis upon which I have assessed the weight to be given to each consideration. I now compare and balance all of the considerations to determine whether I am satisfied that there is another reason why the original decision should be revoked.
For the reasons that I have set out under the headings of each consideration, I have found that the primary consideration of the protection of the Australian weighs moderately against revocation of the cancellation of the Applicant’s visa, and that the primary consideration of the expectations of the Australian community weighs against revocation, however, that only minor weight should be given to that consideration. I have found that the primary consideration of the Applicant’s ties to Australia weighs very heavily in favour of revocation of the cancellation of the Applicant’s visa and that the primary consideration of the best interests of minor children weighs heavily in favor of revocation.
The two relevant other considerations, legal consequences of the decision and extent of impediments, both weigh in favour of revocation of the cancellation of the Applicant’s visa.
I am mindful that para 7(2) of Direction 99 states that primary considerations should generally be given greater weight than the other considerations (see [24] above). Nothing has been presented which would indicate that that general principle should not apply in the present case. Having weighed the considerations in favour of revoking the decision to cancel that Applicant’s visa and those against revoking the decision to cancel the Applicant’s visa, I find that the considerations in favour of revoking the cancellation of the Applicant’s visa, particularly the primary considerations of ties to the Australian community and best interests of minor children, substantially outweigh those considerations against revoking the cancellation. Accordingly, I find that there is another reason why the original decision should be revoked and that the discretion to revoke the cancellation of the Applicant’s visa should be exercised.
DECISION
The decision of the delegate of the Minister dated 18 July 2023 not to revoke, under s 501CA(4) of the Act, the cancellation of the Applicant’s Class BF Transitional (permanent) visa is set aside and substituted with the decision that the cancellation of the Applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Act.

I certify that the preceding 148 (one hundred and forty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

.......[Sgd].............................................................
Associate
Dated: 11 October 2023

Date of hearing: 28-29 September 2023

Solicitors for the Applicant: Ms E Svelha, Asylum Seeker Resource Centre

Counsel for the Applicant:
Mr N Boyd-Caine, Koiki Mabo Chambers
Mr C Fitzgerald, Owen Dixon Chambers West

Solicitors for the Respondent: Mr J Papalia, Australian Government Solicitor
ANNEXURE A

Date Of Conviction Offence Result

15/12/2021
Possess a Prohibited Drug

(Amphetamine); Misuse of Drugs Act 1981; 6 (2) L
[Counts 1] Fine: $500.

15/12/2021 Burglary And Commit; Criminal Code (WA); 401 (2)(C)
[Counts 1] Imprisonment: 3 Months

Concurrent From 15-Dec-2021.

- Concurrent

15/12/2021 Home Burglary and Commit;
Criminal Code (WA); 401 (2)(B) [Counts 1] Imprisonment: 2 Years

Cumulative From 15-Dec-2021. -

Cumulative

15/12/2021
Being Armed or Pretending to Be

Armed In a Way That May Cause Fear; Criminal Code (WA); 68 (1)
[Counts 1] Imprisonment: 1 Months

Concurrent From 15-Dec-2021.

- Concurrent

15/12/2021
Burglary With Intent in Place Not

Ordinarily Used for Human Habitation;

Criminal Code (WA); 401 (1)(C)
[Counts 1] Imprisonment: 3 Months

Concurrent From 15-Dec-2021.

- Concurrent

15/12/2021 Threats To Injure, Endanger or Harm [Counts 1] Imprisonment: 1 Months

Any Person.; Criminal Code (WA); Concurrent From 15-Dec-2021.

338b (B) A - Concurrent

15/12/2021 Stealing; Criminal Code (WA); 378 [Counts 1] Fine: $100.

01/12/2021
Armed Assault with Intent to Rob;

Criminal Code (WA); 393 (C)
[Counts 1] Imprisonment: 3 Years

Concurrent From 17-Jun-2020.

- Concurrent

22/04/2020 Breach Of Bail (Fail to Appear Soon [Counts 1] Fine: $200.

After).; Bail Act 1982; 51 (2)

02/03/2020 Stealing; Criminal Code (WA); 378 [Counts 1] Fine: $500.

25/02/2020 Disorderly Behaviour in Public; Criminal Code (WA); 74a (2)(A) [Counts 1] Fine: $750.

12/12/2019 Breach Family Violence Restraining [Counts 1] Comm Based Order: 9

Order Or Violence Restraining Order; Months Concurrent From 12-

Restraining Orders Act 1997; 61 (1) Dec-2019. - Concurrent

06/12/2019 Stealing; Criminal Code (WA); 378 [Counts 1] Fine: $200.

06/12/2019 Stealing; Criminal Code (WA); 378 [Counts 1] Fine: $200.

28/11/2019
Breach Family Violence Restraining

Order or VRO; Restraining Orders Act 1997; 61 (1)
[Counts 1] Fine: $500.

28/11/2019 Stealing; Criminal Code (WA); 378 [Counts 1] Fine: $250.

26/10/2019
Breach Family Violence Restraining

Order or VRO Restraining Orders Act 1997; 61(1)
[Counts 1] Fine: $200.

12/02/2019 Stealing; Criminal Code (WA); 378 [Counts 1] Fine: $50.

12/02/2019
Being Armed or pretending to be

Armed In a Way That May Cause Fear; Criminal Code (WA); 68 (1)
[Counts 1] Fine: $500.

27/12/2017
Being Armed or pretending to be

Armed In a Way That May Cause Fear; Criminal Code (WA); 68 (1)
[Counts 1] Fine: $300.

27/12/2017 Stealing; Criminal Code (WA); 378 [Counts 1] Fine: $500.

24/07/2017 Steal Motor Vehicle (As Defined In [Counts 1] Fine: $500.

Section 371a Criminal Code.)

24/07/2017 Stealing [Counts 1] Fine: $1000.

24/07/2017 Aggravated Burglary and Commit
[Counts 1] Intensive Supvsn

Order: 12 Months Concurrent
From 24-Jul-2017. - Concurrent

24/07/2017 Stealing [Counts 1] Fine: $1000.

07/06/2017 Give False Personal Details to Police; [Counts 1] Fine: $500.

Criminal Investigation (Identifying

People) Act 2002; 16 (8)

26/05/2017 Stealing; Criminal Code (WA); 378
[Counts 1] Fine: $300.

31/01/2017
Possess A Prohibited Drug

(Methylamphetamine); Misuse Of
Drugs Act 1981; 6 (2) R
[Counts 1] Fine: $300.

24/01/2017 Stealing; Criminal Code (WA); 378 [Counts 1] Fine: $700.

29/09/2015 Possessed Drug Paraphernalia in or on which there was a Prohibited Drug or Plant; Misuse of Drugs Act 1981;7b (6) [Counts 1] Fine: $300.

29/09/2015 Possess A Prohibited Drug [Counts 1] Fine: $500.

(Methylamphetamine); Misuse Of

Drugs Act 1981; 6 (2) R

29/09/2015 No Authority to Drive - Suspended
[Counts 1] Mdl Disqualified: 9 Mths

- Cumulative; Imprisonment: 3 Months
Cumulative From 29-Sep-2015.

29/09/2015 Possess A Prohibited Drug [Counts 1] Fine: $500.

(Methylamphetamine); Misuse Of

Drugs Act 1981; 6 (2) R

29/12/2014 Stealing; Criminal Code (WA); 378 [Counts 1] Fine: $150.

30/10/2014 Possessed A Controlled Weapon.; [Counts 1] Fine: $300.

Weapons Act 1999; 7 (1) A

30/10/2014 No Authority to Drive - Suspended [Counts 1] Imprisonment: 7 mths Concurrent From 29-Sep-2015; Mdl disqualified: 9 Mths - Cumulative

30/10/2014 Careless Driving [Counts 1] Fine: $350

04/12/2013 Steal Motor Vehicle (As Defined [Counts 1] Fine: $700.00.

In Section 371a Criminal Code.);

Criminal Code (WA); 378 A

04/12/2013 Possessing Stolen or Unlawfully [Counts 1] Fine: $300.00.

Obtained Property; Criminal Code

(WA); 428 (1)

04/12/2013 No Authority to Drive - Never Held and Disqualified [Counts 1] Mdl Disqualified: 9 Mths -

Cumulative; Fine: $1000

04/09/2013 Receiving.; Criminal Code (WA); 414 [Counts 1] Fine: $500.

28/03/2013 Without Lawful Excuse Trespassed on A Place; Criminal Code (WA); 70a (2) [Counts 1] Fine: $200.

28/08/2009 Stealing [Counts 1] Fine: $750

24/07/2009 Breach Of Suspended Sent [Counts 1] Fine: $1000

(Order Of 3.7.08)

24/07/2009 Drive Under the Influence of Drugs
[Counts 1] Intensive Supvsn

Order: 18 Mths, 80 Hrs - Concurrent; Mdl Disqualified: 30mths;
(Presc) - Concurrent

03/07/2008 Possessing Stolen or Unlawfully [Counts 1] Susp Imp Order: 6 Mths 1 Day Imp Conc Suspended For 18 Mths

Obtained Property

31/03/2008 No Driver's Licence (Fines [Counts 1] Fine: $600

Suspension)

31/03/2008 False Registration Label [Counts 1] Fine: $250

31/03/2008 Unlicensed Vehicle (Not Owner) [Counts 1] Fine: $200

31/03/2008 False Name (Driver) [Counts 1] Fine: $400

29/01/2008 Give False Personal Details to Police [Counts 1] Fine: $300

26/04/2007 Common Assault [Counts 1] Fine: $500

10/03/2006 Refuse To Supply or Provide False [Counts 1] Fine: $200

Name And Address

10/03/2006 No Motor Drivers Licence - Under [Counts 1] Fine: $1000; Mdl Disq 9

Suspension Mths Cumulative

20/01/2006 No Motor Drivers Licence – Under Suspension [Counts 1] Fine: $400; Mdl Disq 9

26/10/2005

Driving Under the Influence
[Counts 1] Fine: $800; 1^st Offence
- MDL Disq 6 Mths

25/05/2005 Amphetamine Possess [Counts 1] PSO Completed

Resentenced To $100 PSO Of

31.8.04

25/05/2005 Breach Of Iso (Order Of [Counts 4] 9 Mths Imp Conc Ea

10.5.04) Chg

25/05/2005 Breach Of Violence Restraining Order
[Counts 1] PSO Completed

Resentenced To 3 Mths Imp
Conc PSO Of 31.8.04

25/05/2005 Burglary & Commit Offence [Counts 1] PSO Completed

(Habitation) Resentenced To 6 Mths Imp

Conc PSO Of 25.2.05

25/05/2005 Burglary W/Int Aggravated [Att] [Counts 1] PSO Completed

(Habitation) Resentenced To 6 Mths Imp

Conc PSO Of 31.8.04

25/05/2005 Fraud [Att] [Counts 1] PSO Completed

Resentenced To $50 PSO Of

25.2.05

25/05/2005 On Prem/Curt W/Out Lawful [Counts 1] PSO Completed

Excuse Resentenced To 1 Mth Imp

Conc PSO Of 31.8.04

25/05/2005 Stealing (M/Vehicle)
[Att] [Counts 2]
1.PSO Completed

Resentenced To 3 Mths Imp
Cum PSO Of 31.8.04
2.PSO
Completed resentenced to 3
Mths Imp Conc PSO Of 31.8.04

25/05/2005 Stealing
[Counts 3]
1.PSO Completed Resentcd To $50 PSO Of 25.2.05

2.PSO Completed Resentd To $100PSO Of 25.2.05
3. PSO Completed Resentd to No

Punishmt S46 yoa PSO of 25.2.05

18/04/2005 Burglary W/Int Aggravated [Counts 1]12 Mths Imp Sent Susp

(Habitation) For 12 Mths

10/05/2004 Amendment Of Sent Of 19.2.04 [Counts 1] Penalty Amended To

Read 12 Mths ISO (Adult) 75

Hrs Comm Work

10/05/2004 Breach Of Violence [Counts 1] $300

Restraining Order

27/04/2004 Stealing [Counts 1] $200

07/04/2004 No Motor Drivers Licence - Under [Counts 1] Fine: $350

Fines Suspension

19/02/2004 Burglary W/Int Aggravated [Att] [Counts 1]12 Mths ISO

(Habitation) (Adult) 75 Hrs Comm Work

19/02/2004 On Prem/Curt W/Out Lawful [Counts 1]12 Mths ISO (Adult)

Excuse

19/02/2004 Stealing (M/Vehicle) [Att] [Counts 2]12 Mths ISO

(Adult) 75 Hrs Comm Work

20/06/2003 No Motor Drivers Licence - Under [Counts 1] Fine: $200

Fines Suspension

20/07/2001 Damage [Counts 1] $500

04/08/1999 Stealing [Counts 1]12 Mths CRO (Adult)

[2023] AATA 3210

11 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies

Date of hearing:	28-29 September 2023
Solicitors for the Applicant:	Ms E Svelha, Asylum Seeker Resource Centre
Counsel for the Applicant:	Mr N Boyd-Caine, Koiki Mabo Chambers Mr C Fitzgerald, Owen Dixon Chambers West
Solicitors for the Respondent:	Mr J Papalia, Australian Government Solicitor

Date Of Conviction	Offence	Result
15/12/2021	Possess a Prohibited Drug (Amphetamine); Misuse of Drugs Act 1981; 6 (2) L	[Counts 1] Fine: $500.
15/12/2021	Burglary And Commit; Criminal Code (WA); 401 (2)(C)	[Counts 1] Imprisonment: 3 Months Concurrent From 15-Dec-2021. - Concurrent
15/12/2021	Home Burglary and Commit; Criminal Code (WA); 401 (2)(B)	[Counts 1] Imprisonment: 2 Years
Cumulative From 15-Dec-2021. -
Cumulative
15/12/2021	Being Armed or Pretending to Be Armed In a Way That May Cause Fear; Criminal Code (WA); 68 (1)	[Counts 1] Imprisonment: 1 Months
Concurrent From 15-Dec-2021.
- Concurrent
15/12/2021	Burglary With Intent in Place Not Ordinarily Used for Human Habitation; Criminal Code (WA); 401 (1)(C)	[Counts 1] Imprisonment: 3 Months
Concurrent From 15-Dec-2021.
- Concurrent
15/12/2021	Threats To Injure, Endanger or Harm	[Counts 1] Imprisonment: 1 Months
Any Person.; Criminal Code (WA);	Concurrent From 15-Dec-2021.
338b (B) A	- Concurrent
15/12/2021	Stealing; Criminal Code (WA); 378	[Counts 1] Fine: $100.
01/12/2021	Armed Assault with Intent to Rob; Criminal Code (WA); 393 (C)	[Counts 1] Imprisonment: 3 Years
Concurrent From 17-Jun-2020.
- Concurrent
22/04/2020	Breach Of Bail (Fail to Appear Soon	[Counts 1] Fine: $200.
After).; Bail Act 1982; 51 (2)
02/03/2020	Stealing; Criminal Code (WA); 378	[Counts 1] Fine: $500.
25/02/2020	Disorderly Behaviour in Public; Criminal Code (WA); 74a (2)(A)	[Counts 1] Fine: $750.
12/12/2019		Breach Family Violence Restraining	[Counts 1] Comm Based Order: 9
Order Or Violence Restraining Order;	Months Concurrent From 12-
Restraining Orders Act 1997; 61 (1)	Dec-2019. - Concurrent
06/12/2019	Stealing; Criminal Code (WA); 378	[Counts 1] Fine: $200.
06/12/2019	Stealing; Criminal Code (WA); 378	[Counts 1] Fine: $200.
28/11/2019	Breach Family Violence Restraining Order or VRO; Restraining Orders Act 1997; 61 (1)	[Counts 1] Fine: $500.
28/11/2019		Stealing; Criminal Code (WA); 378	[Counts 1] Fine: $250.
26/10/2019		Breach Family Violence Restraining Order or VRO Restraining Orders Act 1997; 61(1)	[Counts 1] Fine: $200.
12/02/2019	Stealing; Criminal Code (WA); 378		[Counts 1] Fine: $50.
12/02/2019	Being Armed or pretending to be Armed In a Way That May Cause Fear; Criminal Code (WA); 68 (1)		[Counts 1] Fine: $500.
27/12/2017		Being Armed or pretending to be Armed In a Way That May Cause Fear; Criminal Code (WA); 68 (1)	[Counts 1] Fine: $300.
27/12/2017			Stealing; Criminal Code (WA); 378	[Counts 1] Fine: $500.
24/07/2017	Steal Motor Vehicle (As Defined In		[Counts 1] Fine: $500.
Section 371a Criminal Code.)
24/07/2017	Stealing	[Counts 1] Fine: $1000.
24/07/2017	Stealing	Aggravated Burglary and Commit	[Counts 1] Intensive Supvsn Order: 12 Months Concurrent From 24-Jul-2017. - Concurrent
24/07/2017	Stealing			[Counts 1] Fine: $1000.
07/06/2017	Give False Personal Details to Police;			[Counts 1] Fine: $500.
Criminal Investigation (Identifying
People) Act 2002; 16 (8)
26/05/2017	Stealing; Criminal Code (WA); 378	[Counts 1] Fine: $300.
31/01/2017	Possess A Prohibited Drug (Methylamphetamine); Misuse Of Drugs Act 1981; 6 (2) R	[Counts 1] Fine: $300.
24/01/2017			Stealing; Criminal Code (WA); 378	[Counts 1] Fine: $700.
29/09/2015			Possessed Drug Paraphernalia in or on which there was a Prohibited Drug or Plant; Misuse of Drugs Act 1981;7b (6)	[Counts 1] Fine: $300.
29/09/2015	Possess A Prohibited Drug	[Counts 1] Fine: $500.
(Methylamphetamine); Misuse Of
Drugs Act 1981; 6 (2) R
29/09/2015	No Authority to Drive - Suspended	[Counts 1] Mdl Disqualified: 9 Mths - Cumulative; Imprisonment: 3 Months Cumulative From 29-Sep-2015.
29/09/2015	Possess A Prohibited Drug		[Counts 1] Fine: $500.
(Methylamphetamine); Misuse Of
Drugs Act 1981; 6 (2) R
29/12/2014	Stealing; Criminal Code (WA); 378	[Counts 1] Fine: $150.
30/10/2014	Possessed A Controlled Weapon.;	[Counts 1] Fine: $300.
Weapons Act 1999; 7 (1) A
30/10/2014	No Authority to Drive - Suspended	[Counts 1] Imprisonment: 7 mths Concurrent From 29-Sep-2015; Mdl disqualified: 9 Mths - Cumulative
30/10/2014	Careless Driving		[Counts 1] Fine: $350
04/12/2013	Steal Motor Vehicle (As Defined		[Counts 1] Fine: $700.00.
In Section 371a Criminal Code.);
Criminal Code (WA); 378 A
04/12/2013	Possessing Stolen or Unlawfully	[Counts 1] Fine: $300.00.
Obtained Property; Criminal Code
(WA); 428 (1)
04/12/2013	No Authority to Drive - Never Held and Disqualified	[Counts 1] Mdl Disqualified: 9 Mths -
Cumulative; Fine: $1000	No Authority to Drive - Never Held and Disqualified
04/09/2013	Receiving.; Criminal Code (WA); 414	[Counts 1] Fine: $500.
28/03/2013	Without Lawful Excuse Trespassed on A Place; Criminal Code (WA); 70a (2)	[Counts 1] Fine: $200.
28/08/2009		Stealing	[Counts 1] Fine: $750
24/07/2009	Breach Of Suspended Sent	[Counts 1] Fine: $1000
(Order Of 3.7.08)
24/07/2009	Drive Under the Influence of Drugs	[Counts 1] Intensive Supvsn Order: 18 Mths, 80 Hrs - Concurrent; Mdl Disqualified: 30mths; (Presc) - Concurrent
03/07/2008	Possessing Stolen or Unlawfully		[Counts 1] Susp Imp Order: 6 Mths 1 Day Imp Conc Suspended For 18 Mths
Obtained Property
31/03/2008	No Driver's Licence (Fines			[Counts 1] Fine: $600
Suspension)
31/03/2008	False Registration Label	[Counts 1] Fine: $250
31/03/2008	Unlicensed Vehicle (Not Owner)	[Counts 1] Fine: $200
31/03/2008	False Name (Driver)	[Counts 1] Fine: $400
29/01/2008	Give False Personal Details to Police	[Counts 1] Fine: $300
26/04/2007	Common Assault	[Counts 1] Fine: $500
10/03/2006	Refuse To Supply or Provide False	[Counts 1] Fine: $200
Name And Address
10/03/2006	No Motor Drivers Licence - Under	[Counts 1] Fine: $1000; Mdl Disq 9
Suspension	Mths Cumulative
20/01/2006	No Motor Drivers Licence – Under Suspension	[Counts 1] Fine: $400; Mdl Disq 9
26/10/2005	No Motor Drivers Licence – Under Suspension	[Counts 1] Fine: $400; Mdl Disq 9	Driving Under the Influence	[Counts 1] Fine: $800; 1^st Offence - MDL Disq 6 Mths
25/05/2005	Amphetamine Possess	[Counts 1] PSO Completed
Resentenced To $100 PSO Of
31.8.04
25/05/2005	Breach Of Iso (Order Of	[Counts 4] 9 Mths Imp Conc Ea
10.5.04)	Chg

25/05/2005	Breach Of Violence Restraining Order	[Counts 1] PSO Completed Resentenced To 3 Mths Imp Conc PSO Of 31.8.04
25/05/2005			Burglary & Commit Offence	[Counts 1] PSO Completed
(Habitation)			Resentenced To 6 Mths Imp
Conc PSO Of 25.2.05
25/05/2005	Burglary W/Int Aggravated	[Att] [Counts 1] PSO Completed
(Habitation)	Resentenced To 6 Mths Imp
Conc PSO Of 31.8.04
25/05/2005	Fraud	[Att] [Counts 1] PSO Completed
Resentenced To $50 PSO Of
25.2.05
25/05/2005	On Prem/Curt W/Out Lawful	[Counts 1] PSO Completed
Excuse	Resentenced To 1 Mth Imp
Conc PSO Of 31.8.04
25/05/2005	Stealing (M/Vehicle)	[Att] [Counts 2] 1.PSO Completed Resentenced To 3 Mths Imp Cum PSO Of 31.8.04 2.PSO Completed resentenced to 3 Mths Imp Conc PSO Of 31.8.04
25/05/2005	Stealing		[Counts 3] 1.PSO Completed Resentcd To $50 PSO Of 25.2.05 2.PSO Completed Resentd To $100PSO Of 25.2.05 3. PSO Completed Resentd to No Punishmt S46 yoa PSO of 25.2.05
18/04/2005	Burglary W/Int Aggravated			[Counts 1]12 Mths Imp Sent Susp
(Habitation)	For 12 Mths
10/05/2004	Amendment Of Sent Of 19.2.04			[Counts 1] Penalty Amended To
Read 12 Mths ISO (Adult) 75
Hrs Comm Work
10/05/2004	Breach Of Violence	[Counts 1] $300
Restraining Order
27/04/2004	Stealing	[Counts 1] $200
07/04/2004	No Motor Drivers Licence - Under	[Counts 1] Fine: $350
Fines Suspension
19/02/2004	Burglary W/Int Aggravated	[Att] [Counts 1]12 Mths ISO
(Habitation)	(Adult) 75 Hrs Comm Work
19/02/2004	On Prem/Curt W/Out Lawful	[Counts 1]12 Mths ISO (Adult)
Excuse
19/02/2004	Stealing (M/Vehicle)	[Att] [Counts 2]12 Mths ISO
(Adult) 75 Hrs Comm Work
20/06/2003	No Motor Drivers Licence - Under	[Counts 1] Fine: $200
Fines Suspension
20/07/2001	Damage	[Counts 1] $500
04/08/1999	Stealing	[Counts 1]12 Mths CRO (Adult)