JKPM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 525

JKPM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 525 (16 March 2021)
Division:GENERAL DIVISION
File Number(s):2019/8049
Re:JKPM
APPLICANT

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

Tribunal:Senior Member B. Pola
Date:16 March 2021
Place:Brisbane

DECISION
Pursuant to s43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 29 November 2019 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
..........................[SGD]..............................................
Senior Member B.Pola
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass character test – whether there is another reason to revoke the mandatory cancellation decision – consideration and application of Ministerial Direction No 79 – decision under review is affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
JKPM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1293
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301
SECONDARY MATERIALS
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member B. Pola
16 March 2021
INTRODUCTION AND BACKGROUND

The Applicant, JKPM, is a 25 year old citizen of New Zealand. Movement records indicate the Applicant was last granted a Class TY Subclass 444 Special Category (Temporary) visa (herein referred to as ‘Visa’ in these reasons) on arrival into Australia in March 2010, having resided in Australia from this date[1].
[1] Exhibit G1, G9, page 114.
The Applicant has a criminal history in Australia, with the last convicted offence of the Applicant recorded as “aggravated robbery”, for which he was sentenced to a term of imprisonment for three years, with a non-parole period of 18 months[2].
[2] Exhibit G1, G6, page 100.
Whilst serving a term of imprisonment, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (herein referred to as ‘Minister’ or ‘Respondent’), pursuant to s501(3A) of the Migration Act 1959 (Cth) (herein referred to as the ‘Migration Act’), decided on 28 August 2018 to mandatorily cancel the Applicant’s Visa (herein referred to as the ‘Visa Cancellation Decision’). This was done on the basis that he did not pass the character test pursuant to s501(6) of the Migration Act [3].
[3] Exhibit G1, G5, pages 79 to 98.
Following the Visa Cancellation Decision, the Applicant made submissions to the Respondent[4].
[4] Exhibit G1, G12 to G29, pages 125 to 173.
On 29 November 2019, the Respondent decided not to revoke the cancellation of the Applicant’s Visa pursuant to s501CA(4) of the Migration Act[5].
[5] Exhibit G1, G5, pages 79 to 98.
The Applicant lodged an application with the Administrative Appeals Tribunal (herein referred to as the ‘Tribunal’) on 6 December 2019, seeking a review of the abovementioned decision not to revoke the cancellation of his Visa, within the required time frame[6].
[6] Exhibit G1, G4, pages 71 to 77. For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision, refer to s500(6B) of the Migration Act.
On 25 February 2020, the Tribunal affirmed the delegate of the Minister’s decision not to revoke the cancellation of the Applicant’s Visa[7].
[7] Exhibit G1, G2, page 8.
On 9 September 2020, His Honour Justice Perry J of the Federal Court, made orders quashing the decision of the Tribunal on 25 February 2020, and directing the Tribunal to determine the Applicant’s application in accordance with law. The Tribunal refers to the reasons of His Honour Justice Perry J[8]:
“59. With respect, the Tribunal’s reasons fall well short of demonstrating that it grappled in any meaningful way with the impact that a decision not to revoke the cancellation decision would have upon the applicant’s fiancée… Equally, the basis on which the Tribunal reached the view that only “a moderate measure of weight” could be attributed to the strength, duration and nature of the applicant’s links with his immediate and extended family is entirely opaque and again does not suggest that the Tribunal engaged in a genuine consideration of the human consequences of making a decision not to revoke the cancellation decision insofar as Ms T was concerned…
60.It follows that the applicant has established that the inference to be drawn from the Tribunal’s reasons is that it has failed to engage in a real consideration of the impact of a non-revocation decision upon the applicant’s immediate family and therefore to comply with the obligation to have regard to para 14.2(1)(b) of Direction 79 under s 499 of the Act.
61.Finally, this error was material to the Tribunal’s decision in the sense that it was possible that, if the Tribunal had lawfully considered the impact upon the applicant’s fiancée in accordance with para 14.2(1)(b) of Direction 79, it may have led to a different outcome (see above at [43]- [45])… Moreover, para 8(4) of direction 79 provides that “[p]rimary consideration should generally be given greater weight than the other considerations”, it does not provides that primary considerations should invariably be given greater weight. As such, it was possible that properly considered, the evidence as to the impact that a non-revocation decision might have upon Ms T might potentially have “tipped the balance” in favour of revoking the cancellation decision”.
[Emphasis in original]
[8] Exhibit G1, G2, pages 4 to 29; JKPM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1293 at [59] to [61].
The application was heard in Brisbane on 1 and 2 February 2021, with the Applicant self‑represented and appearing via video link. The Respondent was represented by Ms Grace Ng from the Australian Government Solicitor, who also appeared by video link. The Tribunal heard oral submissions by the Applicant and Respondent, in addition to submitted evidence as outlined in the Exhibit Register in Annexure 1 of these reasons.
Additionally, the Tribunal heard evidence from a witness called on by the Applicant, whom the Tribunal will refer to as “Ms T” (who is the Applicant’s fiancé).
ISSUES
Legislation regarding the revocation of the mandatory cancellation of visas is found in s501CA(4) of the Migration Act, which provides:
“(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.”
As previously outlined in these reasons, the Applicant made representations to the Respondent as required by s501CA(4)(a) of the Migration Act[9]. The issue before the Tribunal is whether the discretion to revoke the mandatory cancellation of the Applicant’s Visa may be exercised.
[9] Exhibit G1, G13 to G48, pages 108 to 380.
The Tribunal refers to the Full Court of the Federal Court of Australia’s observations in the Minister for Home Affairs v Buadromo[10]:
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[11].
[Tribunal underline for emphasis]
[10] [2018] FCAFC 151.
[11] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
Therefore, there are two issues for consideration before the Tribunal which must be decided:
(i)whether the Applicant passes the character test; and
(ii)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant were to succeed on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked[12].
[12] Ibid.
Does the Applicant pass the character test?
As previously referred to in these reasons, the character test is defined in s501(6) of the Migration Act. A person will not pass the character test if they have a “substantial criminal record” as per s501(6)(a) of the Migration Act. Relevantly, s501(7)(c) of the Migration Act provides that a person is considered to have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Tribunal has previously referred to the final conviction of the Applicant, recorded as “aggravated robbery”, for which he was sentenced to a term of imprisonment for three years, with a non-parole period of 18 months[13]. Based on this conviction, the Tribunal is satisfied that the Applicant does not pass the character test as a result of having been sentenced to a term of imprisonment of 12 months or more on 28 March 2018.
[13] Exhibit G1, G6, page 100.
The Tribunal is of the view that the Applicant is therefore unable to rely on s501CA(4)(b)(i) of the Migration Act for the mandatory cancellation of his visa to be revoked.
Is there another reason why the cancellation of the Applicant’s Visa should be revoked?
In considering whether to exercise the discretion in accordance with s501CA(4)(b)(ii) of the Migration Act, the Tribunal is bound by s499(2A) of the Migration Act and must comply with directions made under the Migration Act.
In view of this, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (here in referred to as the “Direction”) must be applied[14]. The Direction outlines a framework for decision makers with respect to exercising discretion in accordance with s501CA of the Migration Act, it provides:
“(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked”[15].
[Tribunal emphasis]
[14] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[15] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provides that decision makers must take into account the Primary and Other Considerations relevant to the individual case.
Paragraph 8(4) of the Direction provides that, “Primary considerations should generally be given greater weight than the other considerations”; additionally, paragraph 8(5) of the Direction provides that, “One or more primary considerations may outweigh other primary considerations”.
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13(2) of the Direction provides that the three Primary Considerations the Tribunal must consider are:
a)Protection of the Australian community from criminal or other serious conduct (here in referred to as “Primary Consideration A”);
b)The best interests of minor children in Australia (here in referred to as “Primary Consideration B”); and
c)Expectations of the Australian community (here in referred to as “Primary Consideration C”).
The Other Considerations which must be taken into account are listed in paragraph 14 of the Direction. These considerations are:
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims; and
e)Extent of impediments if removed.
A number of principles are set out in paragraph 6.3 of the Direction which further guide decision makers in the exercise of their discretion, which the Tribunal has transposed:
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;
2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
The Tribunal will now address the three Primary Considerations.
Primary Consideration A – Protection of the Australian community
In considering Primary Consideration A, paragraph 13.1(1) of the Direction, requires decision makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.
Paragraph 13.1(1) of the Direction provides that Australians confer on non-citizens expectations that:
(i)they are and have been law abiding;
(ii)that they will respect important institutions; and
(iii)that they will not cause or threaten harm to individuals or the Australian community.
When decisions makers are deciding whether the mandatory cancellation of an Applicant’s Visa serves to protect the Australian community, paragraph 13.1(1) of the Direction provides that the mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principles, and that remaining in Australia is a privilege conferred on non-citizens in this country.
Paragraph 13.1(2) of the Direction requires decision makers to give consideration to the following requirements when determining the weight to be applied to Primary Consideration A:
(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.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The Tribunal has had reference to the submissions of the Applicant to the Respondent containing relevant documents which relate to the Applicant’s criminal offending history. The Applicant’s criminal offending history can also be gleaned from the s501 G-Documents[16], and the Updated Statement of Facts, Issues and Contentions of the Respondent on Remittal[17], comprising:
[16] Exhibit G1.
[17] Exhibit R1.
(a)Transcript of evidence given in the previous Tribunal hearing dated 10 February 2020[18];
[18] Exhibit G1, G3, pages 30 to 70.
(b)The Applicant’s criminal history which appears in a document entitled, “Nationally Coordinated History Check Results” dated 17 June 2019[19];
[19] Exhibit G1, G6, pages 100 and 101.
(c)Sentencing remarks of Her Honour Judge English in the District Court of New South Wales dated 28 March 2018[20];
[20] Exhibit G1, G7, pages 102 and 111.
(d)Convictions, Sentences and Appeals Report dated 23 August 2018[21];
(e)International movement records of the Applicant from the Department of Home Affairs[22];
(f)Applicant’s pre-sentencing report dated 11 December 2017[23];
(g)Summary of events and incidents produced by New South Wales Police dated 7 January 2020[24];
(h)Criminal history, bail report produced by New South Wales Police dated  8 January 2021[25];
(i)Applicant’s inmate misconduct reports dated 2 July 2018, 15 March 2019, and                 16 July 2019[26];
(j)Immigration detention documents ranging in date from 2 October 2019 to  12 January 2020[27];
(k)Documents from material produced by New South Wales Corrective Services with various dates[28]; and
(l)International movement records of the Applicant, the Applicant’s mother, the Applicant’s sister (whom the Tribunal will refer to as “Ms JA”), and the Applicant’s fiancé (Ms T)[29].
[21] Exhibit G1, G8, pages 112 to 113.
[22] Exhibit G1, G9, pages 114 and 115.
[23] Exhibit G1, G31, pages 213 to 216.
[24] Exhibit G1, G31, pages 217 to 286.
[25] Exhibit G1, G31, pages 287 to 292.
[26] Exhibit G1, G31, pages 293 to 331.
[27] Exhibit G1, G31, pages 332 to 343.
[28] Exhibit G1, G31, pages 344 to 379.
[29] Exhibit G1, G31, pages 380 to 387.
Overview of the Applicant’s criminal offending history
Before considering paragraphs 13.1, 13.1.1, and 13.1.2 as they apply to Primary Consideration A of the Direction, the Tribunal will first provide an overview of the Applicant’s criminal offending history.
The Applicant’s record of criminal convictions consists of the “aggravated robbery” in March 2018 (before the District Court of NSW), and two further traffic related offences in August 2011 (when the Applicant was 16 years of age, before the Liverpool Local Court[30]). The recorded traffic related offences are (1) “use unregistered registrable Class A motor vehicle” which was dismissed; and (2) “never licensed person drive vehicle on road – 1^st offence”, for which he was fined $200.
[30] Exhibit G1, G31, page 288.
The Tribunal has before it extensive records from NSW Police with respect to their interactions with the Applicant and the Applicant’s suspected and actual involvement in various incidents over the period of January 2011 to February 2019[31]. Within these NSW Police records are reports relating to various property offences, assaults, drug use and stealing. The Tribunal has outlined a brief history of these incidents in the following reasons. This was included on the basis that, in the Tribunal’s mind, these incidents are relevant in terms of understanding the Applicant’s pattern of conduct and their history which led to the “aggravated robbery” for which he was convicted of in March 2018. For these incidents, the Tribunal acknowledges that no criminal convictions followed (other than what appears in the Applicant’s criminal history)[32]. In later reasons of this decision, the Tribunal makes findings with respect to the pattern of conduct of the Applicant with reference to the chapeau to the factors at paragraph 13.1.1(1) of the Direction.
[31] Exhibit G1, G31, pages 217 to 285.
[32] Exhibit G1, G6, pages 100 and 101.
2011
(i)January 2011, at the age of 15, the Applicant admitted to disposing of cannabis upon seeing police and was cautioned, police believed the Applicant was under the influence of cannabis at the time[33].
[33] Exhibit G1, G31, pages 285 and 286.
(ii)March 2011, the Applicant was issued with a direction to move on, whilst the Applicant and another companion were waiting out the front of a unit block which was in an area with a history of drug supply and use, police suspected the Applicant of being under the influence of a prohibited drug[34].
[34] Exhibit G1, G31, page 284.
(iii)June 2011, the Applicant was suspected by police of being under the influence of a prohibited drug[35].
[35] Exhibit G1, G31, page 283
(iv)July 2011, the Applicant was arrested by police for driving unlicensed in an unregistered car (noting there were four other male passengers in the car). The Tribunal observes the Applicant appeared before the Liverpool Local Court, receiving a $200 fine for “never licenced person drive vehicle on road – 1^st offence”, and the offence relating to “use unregistered registrable Class A motor vehicle” was dismissed, and a bond was entered into with the Applicant subject to bail conditions which included a curfew[36]. The Applicant was 16 years of age at the time.
[36] Exhibit G1, G31, page 282; and Exhibit G1, G6, page 101.
(v)September 2011, police suspected the Applicant of being under the influence of prohibited drugs and was issued with a move-along direction, as police believed the Applicant and other persons present were in the area to purchase drugs (as it was a known drug area)[37].
[37] Exhibit G1, G31, page 280.
(vi)October 2011, there are five recorded police incidents regarding the Applicant and encounters with police, who subsequently issued move-along directions. In each police record, police believed that the Applicant was under the influence of prohibited drugs, or that the Applicant was present in an area where drugs were known to be bought and sold[38].
[38] Exhibit G1, G31, page 277 to 279.
(vii)December 2011, the Applicant made admissions to police to the offence of “actual stealing” from a Woolworths Caltex service station. The Tribunal observes that this offence is not recorded as a conviction for stealing in the criminal history records before the Tribunal[39].
[39] Exhibit G1, G6, pages 100 and 101; G31, page 273.
2012
(i)April 2012, the Applicant was part of a group that were issued with a move-along direction that was complied with. Police observed the group to be in a drug affected state, in a known drug area to police[40].
[40] Exhibit G1, G31, page 272.
(ii)April 2012, the Applicant was part of a group of youths which were found to be near a quantity of cannabis, as police could not establish ownership of the cannabis, it was exhibited and ordered to be destroyed. The group was observed to be under the influence of prohibited drugs and ordered to move on from the area for a period of 24 hours which was complied with[41].
[41] Exhibit G1, G31, page 271.
(iii)May 2012, the Applicant was part of a group of males which were observed by police to be under the influence of prohibited drugs and they were issued with a move on direction which was complied with[42].
[42] Exhibit G1, G31, page 267.
(iv)June 2012, the Applicant was part of a group of males which were observed by police to be under the influence of prohibited drugs and they were issued with a move on direction which was complied with[43].
[43] Exhibit G1, G31, page 266.
(v)September 2012, the Applicant is referred to in police report as being under the influence of prohibited drugs (cannabis)[44]. The Applicant was 17 years of age at the time.
[44] Exhibit G1, G31, page 263.
(vi)December 2012, the Applicant is referred to in a police report as being under the influence of prohibited drugs[45].
[45] Exhibit G1, G31, page 261.
2013
(i)January 2013, the Applicant is referred to in a police report as suspected of being involved with a group of males which gave chase to a victim, where an actual assault occurred. The report states that it was possible that “POI5” (or Person of Interest 5, being the Applicant), approached the victim with a piece of gyprock that was approximately 1 metre in length and 20cm wide. The Report states that “POI5” struck the victim on the arms several times, and striking the victim in the head causing a graze to the victim’s head. The force of this strike has caused the gyprock to break. Following this, it was reported that the victim stated "I have already called the police and they will be here soon”. The Tribunal observes that there is no reference to any further follow up by the police, nor were charges laid with respect to this reported incident[46].
(ii)January 2013, the Applicant was part of a group of males that were given a verbal caution after they were searched due to police suspecting they may have been in possession of prohibited drugs as they were known to police[47].
(iii)February 2013, police reports refer to the Applicant as being identified by a “Loss Prevention Officer” at Woolworths for having taken meat from the butcher section of the store, placing this into a green shopping bag in a trolley, and not paying for the goods and passing straight through the cash registers. When the Applicant was approached by the Loss Prevention Officer who identified himself to the Applicant, and asked for the goods to be returned, the NSW Police records state that the Applicant had told them to, “F*** off”, as they walked away with the property. The records further state that NSW Police were unable to identify the suspect due to the quality of the CCTV footage, and due to the suspect covering their face with a hooded jumper. A staff member of the store had identified the suspect as the Applicant but did not provide police with a statement due to knowing the Applicant through a friend. Police attended the Applicant’s address and questioned the Applicant, but the Applicant denied any knowledge of the incident. The Tribunal acknowledges that the Applicant was not charged for this offence[48].
(iv)March 2013, the Applicant was in the company of another person and was stopped by police at a known drug hotspot, suspecting they were present in the area for the purpose of a drug transaction. Police spoke to the Applicant who informed police that he had recently used cannabis. Both were searched with nil findings and issued with an official move on direction[49].
(v)July 2013, there are references in the NSW Police records before the Tribunal of an incident involving the Applicant gaining access to an unlocked car (the Applicant was 18 years of age at the time). NSW Police records state[50]:
“About 1pm on Sunday 21^st July 2013 the VIC left the VOI unlocked and unattended in the car park of [business redacted] on the [address redacted]. About 2pm on Sunday 21st July 2013 the Accused, [redacted – JKPM] gained access to motor vehicle…..…., bearing New South Wales registration plates, a white Honda Civic Sedan. The Accused did this via the closed, however unlocked driver's side door. The Accused has removed 1 x work Identification card, 1 x work key 1 x packet of cigarettes and numerous coins (unknown amount of silver coins, AUD). The Accused has placed the property into various pockets located in the Accused clothing. During the incident the VIC has returned to his vehicle and located the Accused inside. The VIC approached the Accused, stopped the Accused from leaving and demanded that he give him back his property. The Accused has emptied out the contents of his pockets revealing the property of the VIC. 1 x work Identification card, 1 x work key, 1 x packet of cigarettes, and numerous coins (unknown amount of silver coins, AUD). The VIC told the Accused to leave. The Accused has begun to walk away towards the [address redacted] but stopped before reaching it and picked up two sticks off the ground. The VIC picked up a metal pole from inside his vehicle. The VIC chased the Accused onto the opposite side of the [address redacted] towards the [address redacted]. It was at this time police were contacted in regards to the incident by an anonymous bystander. Police attended as the Accused and the VIC had reached the other side of the [address redacted] and were physically fighting. Attending police separated the parties involved. Police cautioned arrested and searched the Accused then conveyed him back to [address redacted] Police station. During this time the VIC attended [address redacted] Police Station and provided police with a signed typed statement in regards to the incident. The statement provided to police depicted the stealing but the VIC refused to state to police anything in regards to physically fighting with the Accused or any kind of assault. When police asked what happened when they reached the other side of the [address redacted] the VIC stated ‘when we reached the other side police turned up. That's it, police turned up.’ Police observed the VIC to repeatedly state that he was no fearful during the incident. Whilst in custody the Accused was searched, police located a small 'Honda' Vehicle key in the Accused's shoe. The Key does not belong to the VIC of this incident and this was verified by the VIC. The Accused stated to police that the key was a mates. The key has been taken from the Accused and entered into EFIMS until the Accused's mate is able to provide police with proof of ownership, .......... Police verified the Accused's identification and he was issued CIN ......... for stealing, then released from Police custody. Canvass conducted. Nil CCTV footage available. NFPA.”
[Tribunal redactions and insertions for clarity]
[46] Exhibit G1, G31, page 256.
[47] Exhibit G1, G31, page 254.
[48] Exhibit G1, G31, pages 252 and 253.
[49] Exhibit G1, G31, page 252.
[50] Exhibit G1, G31, page 243.

The Tribunal observes that NSW Police records reported this incident as “actual stealing”, however the Tribunal does acknowledge that this offence did not result in a recorded conviction of the Applicant[51].
[51] Exhibit G1, G6, pages 100 and 101.
At the hearing, the Applicant (who was self-represented) was warned of their privilege regarding self-incrimination. At the hearing during questioning by the Respondent, the Applicant admitted they had gained access to the car and took property belonging to the victim[52]. The Tribunal refers to the following exchange[53]:
[52] Transcript 2 February 2021, page 43, lines 17 to 25.
[53] Transcript 2 February 2021, page 44, lines 9 to 47.
“Respondent: I think the Senior Member did ask you briefly about this incident yesterday. Do you want to take a couple of minutes to read that text again?
Applicant:No.
Respondent: So you don’t need to - you’re familiar with that?
Applicant:     No, I don't think - yes.
Respondent: Okay. So do you agree with those version of events?
Applicant:     Yes.
Respondent: Just to dig down a little bit, then. First of all you agree that you gained access to a car that didn’t belong to you, and that was a white Honda Civic sedan?
Applicant:I actually don’t remember what colour the car was, but I remember the..
Respondent: So you remember going into a car that didn’t belong to you?
Applicant:Yes.
Respondent: Do you remember taking and ID card or some ID cards - one ID card?
Applicant:Not (indistinct) I don't remember taking any cards, but there was definitely the - there was the coins and cigarettes I took from that car.
Respondent: Do you agree that you’ve then put these things into your own pockets?
Applicant:Yes.
Respondent: And at this point the owner of the car came back and demanded that you give those things back?
Applicant:Yes.
Respondent: Do you also agree that you had started to leave, but then you had picked up two sticks off the ground?
Applicant:No.
Respondent: Which bit of that do you not agree with?
Applicant:The two sticks. Where we were, it was a car park and there’s, like - they don’t even have sticks around there. I didn’t - I hadn’t - there was no - I didn’t use any sticks.
Respondent: But do you say that the victim picked up a metal pole from the car and chased you?
Applicant:Yes, he - yes, and I - yes, I ran. I ran when he picked up the metal pole from his car.
Respondent: Do you agree that you were in a fight with the victim when the police arrived?
Applicant:I wouldn’t call it a fight, but I was…
Respondent: What would you call it, then?
Applicant:Restrained. I was restrained on the ground then until police had arrived.
Respondent: Who restrained you?
Applicant:     The victim. The owner of the car.
Respondent: At the last hearing you were asked why you did this, and you said you were getting money for cannabis. Is that still your evidence today?
Applicant:Yes, that’s one of the reasons.”
2013 (continued)
(vi)November 2013, the Applicant was asked by police to produce a valid railway ticket, the Applicant admitted that they were going to hop on a train without a ticket. An infringement notice was issued to the Applicant[54].
[54] Exhibit G1, G31, page 238.
(vii)December 2013, the Applicant was again caught using public transport without a ticket, and was issued with an infringement notice. Additionally, police searched the Applicant and found a quantity of cannabis, and cautioned the Applicant as the quantity met the requirements for a Cannabis Cautioning Notice[55].
[55] Exhibit G1, G31, page 238.
2014
(i)February 2014, the Applicant was asked by police to produce a valid railway ticket, the Applicant did not have one and was issued with an infringement notice[56].
[56] Exhibit G1, G31, page 236.
(ii)March 2014, the Applicant was part of a group of males who were questioned and searched by police and issued with a move on direction which was complied with. The police report refers to the Applicant admitting to using cannabis, as they appeared drug affected[57].
[57] Exhibit G1, G31, pages 235 and 236.
(iii)April 2014, the Applicant was in a vehicle with a group of males, with police observing the scent of cannabis from where the Applicant had been seated and observed a small amount of cannabis on the floor of the car near the Applicant. The group of males in the vehicle were issued with a move on direction[58].
[58] Exhibit G1, G31, page 232.
(iv)November 2014, the Applicant is referred to in a police report as being involved in an “actual assault” (with the Applicant being 19 years of age at the time). The NSW Police records state the following in relation to this incident involving the Applicant[59]:
[59] Exhibit G1, G31, page 228.
“On the 22^nd November 2014 at about 7:15pm [the victim] was walking south along the southern kerb alignment [address redacted] approaching the Eastern kerb alignment of [address redacted] the [victim] was walking to [location redacted] Railway Station to meet up with friends on his way to the city for a social event with friends. Whilst he was walking along [address redacted] when he was approximately 30 metres from [address redacted] when he has heard footsteps behind him, the [victim] has turned around and seen the three [persons of interest], [JKPM, the Applicant] and another person unknown to the [victim] running up behind him as if they where going to "Jump" him. The [victim] has restarted running but was too slow to get away realising that he couldn't get away he has stopped and turned around to defend himself it was at to his point that the [person of interest 1] has "shaped up" to the VIC raising his fists as if to assault the [victim]. Fearing that he was about to be assaulted the victim has put his hands up to defend himself and head butted [person of interest 1] in the forehead causing him to stumble backwards. The victim has then pushed [person of interest 2] and [JKPM, the Applicant] back using both the palms of his hands. It was after pushing [person of interest 2] and [JKPM, the Applicant] back that the [victim’s] friends has arrived and both the three [persons of interest] have fled the location in the direction of [address redacted]…”
[Tribunal redactions and insertions for clarity]
There is no evidence in the materials before the Tribunal that further action was taken by the police, due to the victim declining to provide a statement. The Tribunal acknowledges that there is no recorded conviction.
2015
(i)May and October 2015, the Applicant received an infringement notice for travel or attempting to travel without a ticket[60].
October 2016 – Aggravated robbery
[60] Exhibit G1, G31, page 225 and 226, and page 223.
The Tribunal will refer to the sentencing remarks of Her Honour Judge English in the New South Wales (herein referred to as “NSW”) District Court which were handed down on 28 March 2018, summarising the events which lead to the Applicant’s conviction for “aggravated robbery” (the Tribunal notes that the Applicant was 21 years of age at the time)[61]:
[61] Exhibit G1, G7, pages 102 to 111.
“At about 9.30pm on 2 October 2016, the victim, [name redacted], attended the [location redacted]. He consumed three alcoholic drinks over two and a half hours. Whilst at the hotel, he played the poker machines and he won $200. A short time before closing, the victim collected his winnings, placed the money in his wallet, and left the hotel via the front entrance.
At 12.05am, he was waiting outside the hotel for a taxi and he then crossed the road. This offender and an unknown Pacific Islander male, wearing a black "Straight Outta Compton" shirt with white writing at the front, green-coloured pants, and black shoes approached the victim. One of the males placed his leg at the back of the victim's leg and his right arm extended over the victim 's shoulder, before the victim was dragged to the ground. The victim did not know either of these two males. The offender and the other unknown male began punching and kicking the victim to the head whilst he was on the ground.
The victim was unable to defend himself as he was on his back. The victim feared for his safety and he tried to cover his face whilst he was being attacked. The attack occurred on the roadway directly in front of the hotel. The victim managed to get back onto his feet and ran about 20 metres away from the club in an easterly direction towards the [location redacted] Railway Station. The offender and the unknown male chased the victim and continued to punch his head before he was pushed back onto the ground.
Whilst he was on the ground for a second time, the offender and the unknown male continued to punch, kick, and knee him to various parts of his body. The attack continued for a couple of minutes. The victim felt hands going into his jeans pocket and the removal of his Samsung Galaxy S7 mobile phone, house keys, car keys, and his cigarettes. The mobile phone was valued at approximately $1,200. Approximately twelve keys were stolen. The offender and the unknown male then ran off. The victim made his way back to the hotel and he notified security staff and police were contacted.
As a result of the assault, the victim suffered from a sore nose, a layer of skin was missing from his bottom lip, he experienced pain and restriction of movement in his left shoulder, his left thumb was swollen, his left wrist was sore, both knees were swollen and grazed, there was grazing to the right lower part of his back and the upper side of his neck, and those areas were painful to touch.
CCTV footage was obtained by police from the hotel and the local council. The offender [the Applicant] was depicted wearing a blue sleeveless shirt, grey tracksuit pants, and black joggers with white around the bottom of the shoes.
His distinctive tribal tattoo around his right forearm was seen on the CCTV footage. The two men were seen consuming alcohol and socialising with other males before they left the club via the rear entry. The males they had been drinking with left in a motor vehicle whilst the offender and the unknown male remained behind.
On 3 December 2016, police reviewed telecommunication inquiries which revealed that a Vodafone number [number redacted] SIM had been used in the victim's stolen phone after 3 August 2016.
Inquiries revealed that that number belonged to [name redacted, Applicant’s father] of [address redacted]. His age or RMS photograph did not match that of this offender or the unknown male. At 7.10 pm on 23 February 2017, police attended [address redacted] to speak with [name redacted, Applicant’s father]. Police spoke with the offender, who identified himself, and informed police he was [name redacted, Applicant’s father] son. During that time, police noticed the offender's distinctive tattoo. He informed police that his father no longer resided at that address and was reluctant to provide police with information as to his father's whereabouts.
Police returned to [location redacted] Police Station and made inquiries at the local pawnshops, which disclosed that the offender had sold the stolen mobile phone nine days after the robbery. The phone was sold to [redacted] in [location redacted] for $400. The offender provided his New South Wales driver's licence, [number redacted], to confirm his identification.
On 2 March 2017, police attended [address redacted] and executed a search warrant. The offender was arrested. He participated in an electronically recorded interview wherein he denied any knowledge of the robbery, by stating that he "didn't remember".
He identified himself from the CCTV footage stills taken from the hotel shortly before the robbery occurred. He was asked if he pawned the victim's mobile phone and he stated he could not remember.
…
Despite allegedly not remembering what took place on the night on the one hand, on the other hand, he says he was provoked by the victim during a verbal altercation.
He denied taking the victim's possessions and he has demonstrated limited victim empathy during the interview with Community Corrections. He stated that he had come into possession of the victim's phone the following day.
…
I find that this offender has sought to minimise his role in this most serious of criminal offences, what can best be described as a serious breach of the criminal law. A violent assault upon an innocent victim for the purpose of robbing him. When he attempted to get up and flee, he was pursued, and the assault upon him continued.
It is yet another example of alcohol-fuelled violence. A victim, set upon without warning, no match for two larger young men. An offence which was clearly premeditated. All for what? A mobile phone, some keys, and some cigarettes. It is to be noted that the offenders were probably intent on getting more. The victim had collected his winnings of $200. However, no mention is made of that sum being taken from the victim. The violence inflicted upon the victim is the factor of aggravation relied upon in the charge. The fact that they were in company is an additional factor of aggravation.
…
The plea of guilty by this offender is an early plea, unlike the guideline judgment, which was a late plea attracting only a 10% discount. I allow this offender a 25% discount. His plea has utilitarian value. He is a relatively young offender with limited criminal history, as I have recited. There was, I find, planning, but it was limited. There was actual violence but that is a factor of aggravation relied upon in the charge. The victim was not vulnerable.
Others were about at that time of night, including security guards nearby. Property of limited monetary value was taken. That item was eventually recovered. There was of course no weapon involved. The injuries sustained amount to actual bodily harm but in terms of their seriousness they are not insignificant injuries. It is difficult to find the offender truly remorseful. To my mind, he does not accept full responsibility for what he has done. He either cannot remember committing the offence or he would have the Court believe that he was in some way provoked. He cannot have it both ways. Neither is an acceptance of responsibility.
It is now nearly 18 months since he committed this offence. He has not reoffended.
…
It is submitted on his behalf that he was a young offender not acting in an adult way, that he was someone relatively immature with below-average intelligence and possessing a passive personality which impacted upon his decision-making on this particular night. Unfortunately, these alcohol-fuelled violent street offences are all too often committed by that very type of person, one who is intoxicated and one who is easily influenced by negative peers.
This is a typical example of a young man attempting to impress his mates who thought it was cool to commit a crime, sometimes known as mob mentality, just being one of the boys, to the detriment of an innocent victim who was assaulted and robbed. An immature young man with limited insight, matters I have taken into account in his favour. Fortunately, the victim's injuries were not too serious. All too often, these types of offences result in very serious injury to the victim or even the loss of life. This offender is yet another example of the very type of person who needs to be deterred from behaving in this fashion, and a message must be send to other like-minded young men that cowardly violence will not be tolerated.
Having given the matter careful consideration, and the submissions, I find that only a sentence of full-time custody will suffice. The offender spent two days in custody following his arrest and he is entitled to have that time taken into account.
In the circumstances, I am asked to make a finding of special circumstances and I will do so. There is a need for a longer period of supervision on parole to enhance his prospects for rehabilitation and to minimise the risk of relapse and reoffending. This will be the first time he finds himself in full-time custody and he is still a relatively young man.
Rehabilitation still is paramount to consideration.
[name redacted, JKPM], you are convicted. You are sentenced to a non-parole period of 18 months, commencing 26 March 2018, expiring on 25 September 2019, and to a term of imprisonment for three years, commencing 26 March 2018, expiring on 25 March 2021. You are to be released to supervised parole on 25 September 2019.”
[Tribunal insertions for clarity]
The Tribunal observes that despite:
(i)initially denying involvement in the “aggravated robbery” when questioned by NSW Police; and
(ii)Her Honour Judge English describing the Applicant as “a most unimpressive witness”, with the Applicant denying taking the victim’s possessions and stating that he couldn’t remember the events of the night the “aggravated robbery” took place;
when the facts of the conviction were put to the Applicant again during the hearing, he accepted his involvement in the criminal offending, as captured in the following exchange[62]:
[62] Transcript, 2 February 2021, page 42, lines 14 to 46; and page 43, lines 1 to 15.
“Respondent:            So if I can just get you to think back to the events of that evening and I just ask you to confirm whether what I say is correct or not. So first of all is it correct that before the offence you had been inside the hotel in [location redacted] drinking and socialising with your friends?
Applicant:Yes.
Respondent:             And sometime after midnight you and one of those friends approached the victim outside the hotel?
Applicant: That’s correct.
Respondent:             And one of you dragged the victim to the ground?
Applicant:                 Yes.
Respondent:             And the two of you began to punch and kick him in the head while he was on the ground?
Applicant:Yes.
Respondent:             And at some point the victim managed to get away but you and your companion chased him, is that correct?
Applicant:That’s correct.
Respondent:             You continued to punch him the victim?
Applicant:                 Yes.
Respondent:             Do you agree with that?
Applicant:                 Yes.
Respondent:             And then he was pushed back onto the ground?
Applicant:                 Yes.
Respondent:             You agree with that? And you and your companion continued to punch, kick and knee the victim for at least a couple of minutes?
Applicant:                 Yes, that’s correct.
Respondent:             And then at that point the victim had taken from him a number of things, there was a phone. Do you remember taking the phone?
Applicant:                 Yes, there was a phone taken.
Respondent:             And also some keys?
Applicant:So the truth of that one is that there were no keys taken but yes.
Respondent:             All right, so you don’t recall or remember – you don’t accept that any keys were taken during that event?
Applicant:No. No, there was - - -
Respondent:             Okay?
Applicant:                 Sorry.
Respondent:             I'll let you finish? Continue. No, I'll let you finish?
Applicant: I was just going to say that there was a phone taken and the cigarettes.
Respondent:             And the cigarettes. Was there anything else taken from the victim?
Applicant:No, not at all.
Respondent:             And then after that you and your companion ran off, is that correct?
Applicant:That’s correct.
Respondent:             And nine days later you sold the phone for $400 at a pawn shop in [location redacted, is that correct as well?
Applicant:Yes, that’s correct.”
[Tribunal redactions]
Conduct of the Applicant in criminal custody
In the evidence before the Tribunal are several Inmate Misconduct Reports from the NSW Department of Justice and Corrective Services, these reports state:
(i)2 July 2018, for having committed the correction centre offence of “Have possession of tobacco, tobacco-related accessory, e-cigarette or e-cigarette accessory within a correctional centre”. The Applicant pleaded guilty, and when asked if they wished to comment by way of mitigation before the matter was determined in accordance with the Crimes (Administration of Sentences) Act 1999, he stated, “nothing to say”. The Applicant received a punishment of, “7 days off buy ups” [63].
(ii)15 March 2019, for again having committed the correction centre offence of “Have possession of tobacco, tobacco-related accessory, e-cigarette or e-cigarette accessory within a correctional centre”. On this occasion the Applicant pleaded guilty, but when asked if they wished to comment by way of mitigation before the matter was determined in accordance with the Crimes (Administration of Sentences) Act 1999, he stated, “He did not ask me if I had anything in my room”. The Applicant received a punishment of, “14 days off buy ups”[64].
(iii)16 July 2019, for having committed the correctional centre offence of “Disobey direction (130)”, within the correctional centre. The Applicant pleaded guilty and received a punishment of, “7 day off buy-up” [65].
Conduct of the Applicant in immigration detention
[63] Exhibit G1, G31, pages 293 to 304.
[64] Exhibit G1, G31, pages 305 to 317.
[65] Exhibit G1, G31, pages 318 to 331.

As part of the Respondent’s submissions to the Tribunal, records have been submitted regarding the Applicant’s conduct whilst in immigration detention. On 12 April 2020, the Applicant’s room was searched, and items were recovered and sealed into evidence, the Tribunal refers to the following file record[66]:
[66] Exhibit R1, page 16.
“12/04/2020 [time redacted]
This items were located during the target room search in [location redacted]
1 x Container containing green vegetable matter.
1 x Improvised smoking implement.
2 x Scales.
[time redacted]
This incident report is being created by Acting Detention Service Manager (A/DSM) On Sunday the 12th April 2020 at approximately [time redacted], Emergency Response Officer (ERT) [name redacted], Emergency Response Officer (ERT) [name redacted], Emergency Response Officer (ERT) [name redacted] and Emergency Response Officer (ERT) [name redacted] were conducting a target room search in [location redacted] for detainees now known as [name redacted, Applicant] and [name redacted] are the occupants of above mentioned room.
During the room search [name redacted] located two (2) scales and a container approximately 5 x 5 cm in size containing green vegetable matter. Also, ERT [name redacted] found a smoking implement outside their room under the sink. Detainee [name redacted, Applicant] denied ownership of all items found.
Trigger IMP completed for both detainees [name redacted, Applicant] and [name redacted]. Both detainees [name redacted, Applicant] and [name redacted] were spoken to regarding contraband items by A/DSM and reminded about their rights and responsibilities, whilst housed in a detention centre.
The items were then removed and placed in evidence bags [item number redacted], [item number redacted] and [item number redacted] then taken to Intel Department.”
[Tribunal insertions for clarity]
The Respondent questioned the Applicant in relation to this matter, and the Tribunal refers to the following exchange[67]:
[67] Transcript 2 February 2021, page 53, lines 43 to 47; page 54, lines 1 to 18.
“Respondent: So this is just a number of reports kept by Immigration Detention officers of various incidents and there's only one thing I want to ask you about, and, again, before I ask you, I'll just remind you of your privilege against self-incrimination: you don’t need to answer the question if you think the answer will incriminate you. Now, on 12 April 2020, there is a reference to some green vegetable matter being found in a room that you share, some scales as well, and a smoking implement nearby. I wanted to ask you what that green vegetable matter was. Was it cannabis?
Applicant:      Yes.
Respondent: Did that belong to you?
Applicant:     No.
Respondent: Did you know it was cannabis?
Applicant:     Yes. Yes.
Respondent: And how did you know it was - what it was if it didn’t belong to you?
Applicant:Well, I - you know what, I'm just going to say the honest - I'm - I'm just going to be honest about this one, because it's not my - it wasn't my cannabis. I did have a roommate. I knew - I knew that he smoked, but - I knew that he did smoke cannabis and, you know, that - that's not a situation I could - I could control. I couldn’t - as many times as I asked, you know, the officers to move me - move him or me from that room, you know, there's - I just - that wasn't something I had control over, so I just - you just had to accept it and, yeah, I didn’t - but it wasn’t mine and I didn’t touch it. Well, I haven't touched drugs at all. That's all I have to say about that.”
The nature and seriousness of the Applicant’s conduct to date
The Tribunal views the Applicant’s criminal offending very seriously. The Tribunal is of the view that this finding is consistent with the application of the following relevant sub‑paragraphs in paragraph 13.1.1(1) of the Direction:
“a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
…
d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness; and
f) The cumulative effect of repeated offending;
…”
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction stipulates that crimes of a violent and/or sexual nature are to be viewed very seriously. The Tribunal has had regard to the violent offending of the Applicant which occurred in October 2016 and is of the view that this offending is very serious.
The Tribunal again refers to Her Honour Judge English’s sentencing remarks in the District Court of NSW, who described the Applicant’s offending as serious[68]:
“… I find that this offender has sought to minimise his role in this most serious of criminal offences, what can best be described as a serious breach of the criminal law. A violent assault upon an innocent victim for the purpose of robbing him. When he attempted to get up and flee, he was pursued, and the assault upon him continued.
It is yet another example of alcohol-fuelled violence. A victim, set upon without warning, no match for two larger young men. An offence which was clearly premeditated. All for what? A mobile phone, some keys, and some cigarettes. It is to be noted that the offenders were probably intent on getting more. The victim had collected his winnings of $200. However, no mention is made of that sum being taken from the victim. The violence inflicted upon the victim is the factor of aggravation relied upon in the charge. The fact that they were in company is an additional factor of aggravation…”.
[Tribunal bolding for emphasis]
[68] Exhibit G1, G7, page 108.
The Applicant’s violent offending involved the attack on an innocent member of the public, not only once, but after the victim had managed to escape they were again chased down and set upon for a second time. The attack on the victim involved violent actions such as being punched and kicked in the head, causing injuries to the victim.
There is no doubt in the Tribunal’s mind that the Applicant’s offending has enlivened the application of sub-paragraph (a) of paragraph 13.1.1(1) of the Direction, such that the Applicant’s offending is viewed very seriously.
The Tribunal is of the view that the factual circumstances of the Applicant’s offending do not attract the application of sub-paragraph (b) or (c) of paragraph 13.1.1(1) of the Direction as determinative of the nature or seriousness of the Applicant’s offending.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision maker (subject to sub-paragraph (b) of the same paragraph of the Direction), to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen (or the Applicant). The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process; and reflect the objective seriousness of a given offence committed by the Applicant.
The Applicant had visited Australia on ten occasions, from 1999 (as a four year old) through to their final visit in 2010. Movement records indicate the Applicant last arrived in Australia in March 2010 (when he was 14 years of age) and has resided in Australia from this date. The Applicant has been a part of the mainstream Australian community for their adolescence and adulthood[69].
[69] Exhibit G1, G9, pages 114 and 115; repeated at G31, pages 380 and 381.
The Applicant’s offending has culminated in the sentencing of custodial terms totalling three years[70]. The Tribunal is mindful that a parole release date came into operation reducing the total time the Applicant spent in criminal custody.
[70] Exhibit G1, G6, page 100.
The Applicant is currently 25 years of age and has spent 11 years residing in Australia (including his time spent in criminal custody and immigration detention). The Applicant’s criminal offending has resulted in a sentencing regime representing custodial time equivalent to just over a quarter of his total time spent in Australia.
The Tribunal observes that sentences involving imprisonment are normally the final resort in the sentencing hierarchy, and the sentence of imprisonment for three years for the single conviction of “aggravated robbery”, in the Tribunal’s mind, is a lengthy sentence.
The Tribunal is of the view that the Applicant has enlivened the application of sub-paragraph (d) of paragraph 13.1.1(1) of the Direction and finds that the Applicant’s violent offending is of a very serious nature.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction requires a decision maker to the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness.
The submissions before the Tribunal indicate that that Applicant has only been the subject of two sentencing episodes, one which occurred in 2011 when he was 16 years of age in relation to two traffic related offences; and the other in 2018 regarding the offence of “aggravated robbery” which was committed in October 2016 when the Applicant was 21 years of age.
In earlier reasons, the Tribunal has outlined a number of NSW Police record entries in relation to the Applicant (noting that not all entries have been included[71]), which contains several reports regarding the Applicant from as early as January 2011, less than 12 months after the Applicant began residing in Australia. The NSW Police records indicate the Applicant has been known to police for a number of years, on the basis of (for example) “prior dealings regarding drugs and anti-social behaviour“[72].
[71] Exhibit G1, G31, pages 217 to 286.
[72] Exhibit G1, G31, page 240.
The Tribunal is of the view that there is a pattern of behaviour regarding the Applicant and his connection to drug use and alleged involvement in property related incidents, as well as his alleged involvement in violent incidents. The Tribunal acknowledges that no criminal convictions have resulted in most of the NSW Police records, aside from that which the Tribunal has outlined with respect to his conviction of “aggravated robbery” which occurred in October 2016, and the two traffic offences in 2011[73].
[73] Exhibit G1, G31, pages 217 to 286.
Nevertheless, it is evident that there has been an apparent trend in the seriousness of the Applicant’s conduct, beginning with the two traffic related offences in 2011, and escalating to the conviction for “aggravated robbery” which occurred in 2016. The Tribunal is particularly concerned with the apparent trend in seriousness of the Applicant’s offending as it coincided with (on the Applicant’s own admission) their heavy use of prohibited drugs and alcohol[74].
[74] Transcript 2 February 2021, page 49, lines 30 to 46; page 50, lines 1 to 32.
The Tribunal is of the view that the increasing level of severity of the Applicant’s criminal offending is of a very serious nature, such that the application of sub-paragraph (e) of paragraph 13.1.1(1) of the Direction necessitates a decision in favour of non-revocation.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction requires an investigation of the cumulative effect of an Applicant’s repeated offending and how that does, or does not, demonstrate the seriousness of that offending.
The Tribunal is of the view that there is a pattern of conduct involving the Applicant, particularly with respect to instances where the Applicant has been suspected of and confessed to have engaged in the consumption of alcohol and/or prohibited drugs. This pattern of conduct may not have culminated in sentencing episodes reflected in their criminal history; it is however conduct which has required the intervention of lawful authorities.
The Tribunal in earlier reasons has outlined the many recorded incidents of the Applicant involving the use of prohibited drugs, suspected involvement in assaults and property theft, fair evasion, as well as the Applicant’s conduct whilst in criminal custody and immigration detention.
Over the period of 2011 to 2016, the Applicant has benefited from various cautions, fines and warnings; however, they have failed to take the opportunity to moderate their own conduct.
The Tribunal observes the community resourcing required to bring the Applicant to account for their actions, in addition to the adverse impact the Applicant’s offending has had on the community and particularly the victim of his “aggravated robbery” offence in October 2016.
The Tribunal is of the view that the Applicant’s offending has had a cumulative effect which attracts the application of sub-paragraph (f) of paragraph 13.1.1(1) of the Direction, and finds that their offending is of a very serious nature.
The Tribunal is of the view that the factual circumstances of the Applicant’s offending do not attract the application of sub-paragraphs (g), (h) and (i) of paragraph 13.1.1(1) of the Direction, as determinative of the nature or seriousness of the Applicant’s offending.
Other conduct
The Tribunal refers to the chapeau to the factors at paragraph 13.1.1(1) of the Direction which states:
“(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including: …”
[Tribunal’s bolding]
The Tribunal is of the view that upon review of the evidence before it that the chapeau to paragraph 13.1.1(1) of the Direction is enlivened, when the following is considered:
(i)The reported conduct of the Applicant involving stealing[75], but that which did not lead to a conviction, is a relevant consideration in the Tribunal’s mind as there is certainly a pattern of this behaviour in the Applicant’s NSW Police records, some of which has been described by the Tribunal in earlier reasons. Previous examples described by the Tribunal include the Applicant’s admissions to theft from a Woolworths Caltex in December 2011[76] and taking property from a car in July 2013[77]. Whilst these examples did not result in a criminal conviction, they nonetheless add to the overall pattern of conduct of the Applicant with respect to his attitude regarding the property rights of others. This is particularly concerning when such conduct coincided with heavy drug and alcohol use as well as gambling addictions. The Tribunal will elaborate on these issues in further reasons of this decision.
(ii)There is a pattern of conduct described by the Tribunal in its earlier reasons from reports of NSW Police regarding the Applicant’s alleged involvement in violent encounters (January 2013 and November 2014). Whilst the Tribunal acknowledges that these encounters ultimately did not result in charges or criminal convictions, they nonetheless form a pattern of behaviour which resulted in lawful authorities documenting such incidents.
(iii)The Tribunal observes that the Applicant attracted three convictions whilst incarcerated for misconduct during his time in criminal custody, which in the Tribunal’s mind adds to the overall pattern of conduct of the Applicant.
(iv)The Tribunal refers to the report from immigration detention officials following a raid on the Applicant’s facilities whilst in immigration detention in April 2020. “Green vegetable matter” was discovered along with smoking implements[78]. When the Applicant was questioned under cross-examination, they stated that the “green vegetable matter” was indeed cannabis, but that it did not belong to them, and that they had asked to be removed from the room he was in, and that he had not touched drugs[79]. The Tribunal is willing to give the Applicant the benefit of the doubt when he stated that he knew the substance which was found in his shared room was cannabis, and that it did not belong to him. The Tribunal does acknowledge there is no evidence of a reported crime occurring from this incident. The Tribunal observes however that this incident is on the Applicant’s record.
[75] Exhibit G1, G7, page 103; G31, page 273.
[76] Exhibit G1, G6, pages 100 and 101; G31, page 273.
[77] Exhibit G1, G31, page 243; Transcript 2 February 2021, page 44, lines 9 to 47.
[78] Exhibit R1, page 16.
[79] Transcript 2 February 2021, page 53, lines 43 to 47; and page 54, lines 1 to 18.
Whilst the above described factors may not be considered determinative, they do in the Tribunal’s mind add an additional element to the Applicant’s overall pattern of conduct, that read in conjunction with the Tribunal’s findings of the applicable sub-paragraphs (a), (d), (e), and (f), of paragraph 13.1.1(1) of the Direction, are relevant to an assessment of the nature and seriousness of the Applicant’s conduct.
Having regard to all of the evidence and submissions made to the Tribunal, which are outlined in the abovementioned relevant sub-paragraphs (a), (d), (e), and (f) of paragraph 13.1.1(1) of the Direction, and the ‘other conduct’ as outlined above, the Tribunal is of the view that the Applicant’s conduct is characterised as very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2(1) of the Direction requires decision makers to consider the risk to the Australian community with regards to the two following factors on a cumulative basis:
(1)The nature of the harm to individuals or the Australian community should the non‑citizen engage in further criminal or other serious conduct (paragraph 13.1.2(1)(a) of the Direction); and
(2)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken) (paragraph 13.1.2(1)(b) of the Direction).
The nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct
Paragraph 6.3(4) of the Direction requires decision makers be guided by the following principle in relation to the harm that would be caused if the criminal offending or other conduct of the Applicant were to be repeated:
“In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.”
The Tribunal is of the view that the trend in the Applicant’s conduct (which the Tribunal has found is viewed very seriously), if it were to be repeated, could lead to further very serious offending on future victims of the Australian community.
The Tribunal makes this finding with reference to the trend of the Applicant’s offending which began soon after his arrival in March 2010, recording his first traffic offences in 2011; followed by the “aggravated robbery” which occurred in 2016.
The Tribunal is of the view that given the Applicant’s:
(i)past propensity towards violence;
(ii)past afflictions with substance abuse (including prohibited drugs and alcohol) and the unresolved status of the Applicant’s rehabilitation (discussed in later reasons of this decision);
(iii)combined with the little respect he has shown for the property rights of others;
if repeated, poses a significant risk to a member or members of the Australian community.
The Tribunal is of the view that if the Applicant were to re-offend, they have the clear capacity to cause very serious physical harm, not precluding catastrophic harm, to a victim of the Australian community. Such risk, in the Tribunal’s mind is not acceptable to the Australian community.
The Tribunal is of the view that such a finding is not far-fetched, as Her Honour Judge English similarly found in her sentencing remarks in the NSW District Court on 28 March 2018, “All too often, these types of offences result in very serious injury to the victim or even the loss of life”[80].
The likelihood of the Applicant engaging in further criminal or other serious conduct
[80] Exhibit G1, G7, page 110.

With respect to assessing the likelihood of the Applicant’s re-offending, the Tribunal refers to the sentencing remarks of Her Honour Judge English in the NSW District Court on 28 March 2018, which stated the following with respect to a psychological assessment undertaken on the Applicant[81]:
[81] Exhibit G1, G7, pages 105 to 109.
“He was referred for psychological assessment and a report under the hand of Stephanie Bennett has been tendered. That assessment also took place in December last year. He was born in New Zealand and he migrated to Australia at the age of 12. He was brought up in a close and supportive environment. His family remains supportive. He obtained his school certificate and since leaving school has worked consistently in warehousing. He is currently employed as a forklift driver. He commenced to consume alcohol at the age of 18.
He is aware that his father abused alcohol and currently, he consumes alcohol with his father on a regular basis. He drinks to the point of intoxication about once a month. He says on the night of this offence, he had consumed alcohol, was "a bit drunk", and unable to remember what occurred. Community Corrections recommended attendance with a counselling service and the first assessment was attended on 13 November 2017. Despite allegedly not remembering what took place on the night on the one hand, on the other hand, he says he was provoked by the victim during a verbal altercation.
He denied taking the victim's possessions and he has demonstrated limited victim empathy during the interview with Community Corrections. He stated that he had come into possession of the victim's phone the following day. He denies having a problem with anger. His mother disagrees. She says of her son that he is quickly angered, particularly if intoxicated, and in the past has been violent towards the family and to property. He disclosed to the psychologist drug and gambling addictions which were not disclosed to the Community Corrections Service. He says he was introduced to cannabis whilst still at school and he consumed the drug in order to fit in.
He was associating with negative peers whose drug and alcohol abuse was the norm. His peers also engaged in criminal activity which was met with approval by the group. He says he has disassociated himself from that peer group since his arrest. He says he no longer uses cannabis. One of the motivating factors for doing so was the drug testing regime at his workplace. He blames living in a highly disadvantaged community for his downwards spiral into drugs, and alcohol abuse, and criminal activity.
He acknowledges that his attendance at TAFE, undertaking studies to complete an apprenticeship, was also negatively impacted upon by his drug and alcohol abuse and negative friendships. He says he has reduced his alcohol intake following his arrest due to the cost. He acknowledges that he finds it hard to resist drinking. His gambling habit has also ceased due to the cost. At its peak, he says, he was gambling up to $1,000 a week. Like consuming alcohol, he says he found it difficult to resist. He says he concealed his gambling from his family and girlfriend.
He says the occasion on which he drove without a licence was also as a result of peer group pressure. It is high time he took responsibility for his own actions. He told the psychologist that it was his friend who saw the victim leave the hotel premises and took it outside and it happened from there. He stated he decided to "help his mate". "I didn't have to jump in, but I just did. I wanted to help my friend." He admitted he was "trying to show off" to his friend, who thought it was "cool" to commit offences.
He said to the psychologist that he felt sorry for what happened and that the victim would have been hurt as a result. The psychologist also considered that the offender had limited insight and difficulty in expressing his remorse. The psychologists records the offender as saying, "I would just say it's wrong. It's not right to rob people. The victim would have worked hard to buy his phone".
Following psychometric testing, the psychologist is of the opinion that the offender is someone who is socially awkward, who desires close friendship with others yet fears rejection and humiliation. Cannabis and alcohol were maladaptive ways of coping with his feelings. In her opinion, his attitudes and values have been shaped by his negative peers rather than his positive upbringing. She assesses him as someone with low verbal cognitive ability. Cognitive behavioural therapy is recommended together with drug and alcohol counselling. When giving evidence, he says he was extremely intoxicated on the night. He assessed his level of intoxication, on the scale of 1 to 10, at 8 or 9 out of 10. That is hardly "a bit drunk".”
[Tribunal underline for emphasis]
Her Honour Judge English highlighted various factors identified in the psychological assessment, which in the Tribunal’s mind are risk factors for recidivism such as the abuse of alcohol and prohibited drugs, gambling, and negative peer association.
With respect to the Applicant’s evidence regarding their use of prohibited drugs and alcohol, the Tribunal refers to the following exchange[82]:
[82] Transcript, 2 February 2021, page 49, lines 35 to 46; page 50, lines 1 to 32.
“Senior Member:      And I just want to be very clear with respect to your previous drug use and alcohol use. Do you mind just giving me a bit of an overview of what you have used in the past and from what age. So you’ve previously told us that you used cannabis heavily?
Applicant:Yes.
Senior Member:        And from what age do you think you began using?
Applicant:Fourteen, 13, I started using cannabis heavily.
Senior Member:      Okay?
Applicant:                 Yeah.
Senior Member:      When you say 'heavily', would that be every day?
Applicant:Yeah. Every - every chance I - I could get.
Senior Member:       Okay. And when you say 'every chance you could get', would that be, on average, once a week, every day? Just an example?
Applicant:Every day.
Senior Member:       Okay?
Applicant:                 Yeah.
Senior Member:      All right. And with respect to alcohol use, from what age did you begin drinking alcohol?
Applicant:Again, 13 - 13, 14.
Senior Member:       Okay. And how much do you think you would use? Before you were incarcerated, was it a consistent - did you consistently drink through that period or was it on and off?
Applicant:No, it - it was consistent.
Senior Member:       And would you say that you were a heavy drinker from that age?
Applicant:Yeah, definitely.
Senior Member:       Okay?
Applicant:                 Definitely.
Senior Member:       Have you used any other drugs besides cannabis?
Applicant:                 Yes.
Senior Member:       What are they?
Applicant:                 Meth, coke and - yeah, that's - that's it.
Senior Member:       Okay. I couldn’t previously see in your submissions to the tribunal that are before me references to methamphetamine use. How much methamphetamine would you have used in the past?
Applicant:Like, I'd - I'd say, like, 50 - not 50, but whatever money - whatever - whatever money I had, I'd - I'd spend on - I'd spend it on meth.
Senior Member:       So were you using meth every day?
Applicant:                 Yes, yeah.
Senior Member:       Okay. And from what age?
Applicant:                 The same, about 14, 15.
Senior Member:       Did your partner know that you were using that at the time?
Applicant:                No.”
From this exchange it is evident that the Applicant has battled addiction with an array of substances over a number of years and from a very young age. This is not only confirmed by the Applicant in their own admissions, but there are countless references to the Applicant suspected of being under the influence of prohibited drugs in the NSW Police records, which the Tribunal has discussed in its earlier reasons.
The Tribunal has reviewed the evidence before it and was unable to identify an instance where the Applicant had previously admitted to abusing methamphetamines or cocaine. This is a concerning revelation to the Tribunal, as it expands the number of substances which the Applicant has admitted to heavily consuming and draws into question the Applicant’s reasons for previously concealing this use.
The Tribunal refers to the Applicant’s efforts of rehabilitation in the following exchange during cross-examination[83]:
“Respondent: Also at the last hearing you gave quite a bit of evidence about programs that you did when you were in prison. So what I wanted to ask you is whether in the time since then you had completed any other courses or qualifications that you wanted, that you think were relevant to your rehabilitation?
Applicant:So, I, I haven't, I haven't did any other courses since the last time but I, I applied for many, many but I never – no, so I've never – I haven't done any more programs or courses since the last time.
Respondent: And on that point there is a statement in your submission that you were – you have been drug and alcohol free for many years I think you said that in your written statement?
Applicant:Yes.
Respondent: I just wanted to clarify my understanding that that’s a reference to the years you spent on bail, while you were in prison, and in immigration detention, is that correct?
Applicant:Yes.”
[83] Transcript, 1 February 2021, page 12, lines 35 to 45; page 13, lines 1 to 3.
The Applicant has provided the Tribunal with a range of courses that he has participated in since his incarceration and subsequent detention which include (for example) the “Equips Foundation Program” and “Positive Lifestyle Program”[84].
[84] Exhibit G1, G19, pages 157 and 158; G24, pages 167 and 168.
The Tribunal has difficulties in accepting the Applicant’ participation in these courses as formal rehabilitation when there is limited evidence before the Tribunal from course facilitators conducting the sessions confirming how the Applicant performed in such courses, and the impact these courses are likely to have on their future risk of recidivism and their addiction issues.
Confirming the Tribunal’s point is evidence regarding the Applicant’s participation in the “Equips Foundation Program”, with facilitators at the Oberon Correctional Centre documenting the following over various dates:
(i)24 August 2018, “[Redacted, Applicant] needs to take more responsibility for his participation in the program. He did not complete the first self-management plan in session two and says very little in group discussions (even when called upon). If he doesn’t understand he must seek clarification. If [redacted, Applicant] wants to proceed in the program he needs to put in more effort. His criminogenic risk factors are impulsivity/reactivity and anger management”[85].
(ii)19 September 2018, “[Redacted, Applicant] as (sic) attended all session (sic) for this level, he only participates when asked and would benefit from greater participation in group activities and discussions”[86].
(iii)29 October 2018, “Offender has completed Equips Foundation (accelerated) as a part of the GLC YAOP at [location redacted]. He attended all sessions of the program and was a quiet participant who contributed only when required. [Redacted, Applicant] has stated that "he had changed his offending long before entering custody." Due to a med to low LSIR offender does not need to participate in any other Equips Program”[87].
[Tribunal redactions]
[85] Exhibit G1, G31, page 377.
[86] Exhibit G1, G31, page 371.
[87] Exhibit G1, G31, page 365.
With respect to the Applicant’s submissions that he has been drug and alcohol free over many years whilst having been on bail, in criminal custody, and in immigration detention: the Applicant’s self-reported abstinence from prohibited drugs, alcohol and gambling in a controlled environment does not provide certainty that the situation would persist should they be returned to the mainstream Australian community in an uncontrolled environment.
There is no evidence before the Tribunal that the Applicant has engaged in formal rehabilitation under the supervision of a suitably qualified clinician. Nor is there independent evidence to verify the Applicant’s claims that he simply will not abuse alcohol, prohibited drugs or continue gambling if he were returned to the Australian community.
The Tribunal does not have before it an independent and expert opinion which states that the factors predisposing the Applicant to their offending have been identified, addressed and are under remedial management and control.
The Tribunal observes the documented comments of the Applicant’s mother regarding their anger issues, as captured in a pre-sentence report by the NSW Department of Justice, which states[88]:
“[Redacted, Applicant] stated the victim was being provocative to him on the night of the offence, with a verbal altercation occurring prior to the offence. Whilst [redacted, Applicant] asserted that he does not have a problem with his anger, contact with his mother revealed a pattern of violence occurring in the family home. She stated he had ‘a bit of an anger problem’ whereby he can get angry quite quickly, which is heightened when he has consumed alcohol. [Redacted, Applicant’s] mother revealed this has occurred for several years where he may become physical towards family and their property.”
[Tribunal redactions and insertions]
[88] Exhibit G1, G31, page 214.
The Tribunal also observes that there is no evidence before it that the Applicant has taken formal steps to address their unresolved issues regarding emotional regulation.
The Tribunal is not convinced on the state of the evidence before it, the Applicant has undertaken formal rehabilitation to the extent that his capacity to moderate and control his intake of alcohol and prohibited drugs, in addition to his gambling addiction is such that it renders him of being a lower risk of succumbing to these past addictions which have contributed to his offending.
The Tribunal observes that over the period of 2011 to 2016, the Applicant has benefited from various cautions, fines and warnings; however, they have failed to take the opportunity to moderate their own conduct.
The Applicant has given evidence that the security of his relationship with his fiancé (Ms T) would act as a deterring factor for future recidivism. The Tribunal acknowledges the long‑term relationship the Applicant has with his now fiancé, which they both state commenced in July 2011. The difficulty the Tribunal has with accepting the Applicant’s argument is this relationship was in place during the Applicant’s offending history. The Tribunal has reservations in affording any positive weight in favour of this as a mitigating factor for recidivism given this has not proven to be a mitigating factor in the past.
A similar point can be made with respect to the supportive family of the Applicant, evidenced by the many letters of support and previous evidence family members provided to the Tribunal in the first hearing of this matter. The Tribunal agrees with the Respondent’s contention that[89]:
“It might have been thought that that provides him with an incentive not to reoffend and, in fact, the applicant himself says that is an incentive for him not to reoffend. However, we feel bound to point out that that is something that has been with him throughout his life. There is no suggestion that his family has not been supportive, or that his fiancée has not been supportive, or their eight, nine-year relationship, but that has not managed to prevent his repeated and, we say, increasingly serious offending.”
[89] Transcript 2 February 2021, page 59, lines 8 to 14.
The Tribunal is of the view that the Applicant appears to have been deeply affected by their time spent in criminal custody and immigration detention. However, there is no corroborating evidence from an independent expert opinion confirming this experience (noting the absence of evidence regarding formal rehabilitation), is such that the risk of the Applicant engaging in criminal offending in the future has been reduced to an acceptable risk.
Further, the Tribunal is of the view that the Applicant has not demonstrated sufficient insight as to the causes contributing to his offending. The Tribunal gave the Applicant an opportunity during the hearing to explain what he would do in order to prevent himself from further abusing prohibited drugs[90]:
“Senior Member: Perhaps I could assist, JKPM. What will you do if you were allowed out of detention to stop using meth, alcohol or other drugs? What strategies will you use in future to stop you from using again?
Applicant:So - I wish it was simple to, you know, just say that I would - wouldn’t go down this path again, but I will try to - I will try to explain how - how I might not use drugs again. Jail - jail was a big wake-up call for me and, you know, being completely sober while I was in jail, that you - you start to - you start to realise, like, and you just - you - you - you appreciate what - what - what you had, like - like, my - before - before I went to jail, I - I started to get my life back on track and, you know, and then once I was put in jail, you know, I really - I really learnt to appreciate that and the - just a - a lot of - I've met - I've met a lot of people that have made a lot of mistakes in their lives and, you know, they've - and every single one of them has just - has always given me the advice and that's to not - not - what can I say - just you don’t want to turn to drugs and alcohol as a - you know, as a medicine for all your - all your past problems and - and that. You know, you can - you - I could - I could end up, you know, regularly going in and out of the system and like a lot of people - like a lot of people I've met. And so - and - - -“.
[90] Transcript 2 February 2021, page 51, lines 4 to 21.
Although the Applicant has expressed remorse for his criminal offending and apologised for the trauma caused to the victim of his offending[91]; in the Tribunal’s mind, the Applicant has not adequately addressed what measures they will take to prevent themselves from falling back into the patterns of behaviour and issues which lead to their offending. The Tribunal observes the absence of formal independent expert clinical opinion as to the Applicant’s risk of recidivism in view of the rehabilitation efforts they have made to date.
[91] Transcript 2 February 2021, page 63, lines 4 to 47; page 64, lines 1 to 38.
Having regard to the state of the evidence before the Tribunal, the Tribunal finds that there is a significant likelihood of the Applicant re-offending due to the incomplete nature of the Applicant’s rehabilitation with respect to the factors leading to recidivism.
In circumstances where the Applicant’s criminal offending has been found to be violent in nature and increasingly serious, if it were to be repeated, the capacity to cause very serious physical and or psychological harm (which may not preclude catastrophic harm) to innocent members of the Australian community is a real risk in the Tribunal’s mind. The Tribunal is of the view that this harm could be so serious that any risk of similar conduct in the future is unacceptable.
The Tribunal again refers to paragraph 6.4(4) of the Direction which states that, “In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.” [Tribunal underline for emphasis]
Conclusion: Primary Consideration A
The Tribunal has had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction, as well as the principles outlined in paragraph 6.3. The Tribunal finds:
(i)the nature of the Applicant’s criminal offending is viewed very seriously;
(ii)if the Applicant’s criminal offending were repeated, the Tribunal is of the view that it has the capacity to cause significant harm to members of the Australian community (not precluding a risk of catastrophic harm to a future victim);
(iii)that the risk posed by the Applicant re-offending is considered serious; and
(iv)there is a significant likelihood of the Applicant re-offending due to the incomplete nature of the Applicant’s rehabilitation with respect to factors leading to his risk of recidivism.

Paragraph 13.3(1) of the Direction stipulates that the Australia community expects non‑citizens to obey Australian laws whilst in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non‑citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person.
Non‑revocation may be appropriate simply because of the nature of the character concerns or offences are such that the Australian community would expect that the non-citizen should not hold a visa. Paragraph 13.3(1) of the Direction stipulates that decision makers should have due regard to the Government’s views in this respect.
Circumstances relevant to the application of Primary Consideration C
The Tribunal will outline the factual circumstances of the matter before it when assessing the weight attributable to Primary Consideration C:
a)    The Applicant is a 25 year old citizen of New Zealand, having last arrived in Australia in March 2010 (as a 14 year old), where he has since resided.
b)    The Applicant is part of a large family, identifying more than 100 extended family members who presently reside in Australia outside his immediate family[105].
[105] Exhibit 1, G13, page 136.
c)    The Applicant’s maternal grandmother resides in New Zealand, along with the Applicant’s paternal grandparents, both of whom the Applicant lived with as a child, when his parents resided in Australia[106].
[106] Transcript 1 February 2021, page 12, lines 14 to 23.
d)    The Applicant is engaged to his fiancé (Ms T) who he has been in a relationship with since July 2011.
e)    The Applicant has no biological children or step-children of his own, but he has identified seven nieces and nephews whom he has a relationship with. The Applicant accepts that these nieces and nephews are cared for by their parents, and that he is not a primary caregiver to these children.
f)     NSW Police records indicate that the Applicant had brushes with lawful authority soon after arriving in Australia, with first entries recorded in January 2011, where the Applicant admitted to possessing a prohibited drug (cannabis), and disposing of it upon seeing police, which lead to a caution. The Applicant was 15 years of age at the time, and it was less than a year after his arrival.
g)    The Tribunal has made observations with respect to NSW Police records which document many encounters with the Applicant over the period of 2011 to 2019. Many of these encounters refer to the Applicant suspected of being under the influence of prohibited drugs, or of being the person of interest in a number of other incidents including actual stealing, actual assault, and fair evasion. The Tribunal acknowledges that no convictions have resulted from these recorded incidents, however the Applicant had admitted to committing one of these recorded incidents in July 2013, where he took property from a car.
h)    Over the period of 2011 to 2016, the Applicant has benefited from various cautions, fines and warnings but they have failed to take the opportunity to moderate their own conduct.
i)   The Applicant’s first sentencing episode occurred when he was 16 years of age, involving the use of (1) an “unregistered registrable Class A motor vehicle”, and (2) “never licenced person drive vehicle on road – 1^st offence”. The Applicant’s charges for offence (1) were dismissed and a bond was entered into with bail conditions, including a curfew. With respect to offence (2), the Applicant was fined $200.
j)   The Applicant’s final sentencing episode culminated in the conviction for “aggravated robbery” which occurred in 2016 and resulted in the Applicant being sentenced to a term of imprisonment of three years, with parole coming into effect after 18 months. This offence was violent and involved a repeated violent attack on an innocent victim which resulted in injuries on the victim.
k)    Of the 11 years the Applicant has resided in Australia, (including his time spent in criminal custody and immigration detention), the Applicant’s sentence of imprisonment for three years is the equivalent to just over a quarter of his total time spent in Australia.
l)   The Applicant has been removed from the Australian community since he was taken into criminal custody in early 2018, and following completion of serving his criminal sentence, he has remained in immigration detention.
m)   The Applicant’s offending is linked to a long history of prohibited drug use, alcohol abuse and an addiction to gambling which he confirmed in evidence to the Tribunal. The Applicant further admitted to the Tribunal (not disclosed previously) they had also heavily abused methylamphetamines.
n)    The only evidence before the Tribunal of the Applicant’s attempts to rehabilitate his predilections for substance abuse and gambling has been the participation in a number of programs whilst in custody and the Applicant’s own testimony that he will no longer abuse substances or partake in gambling should he be restored to the Australian community.
o)    The Tribunal has made observations with respect to the lack of evidence from course facilitators providing an assessment of the Applicant’s performance and impact on future recidivism, or relapse with respect to substance abuse and addictions. There is evidence before the Tribunal that for at least one of the courses the Applicant participated in, course facilitators noted that the Applicant would have benefited from greater participation.
p)    There is no independent evidence to confirm the Applicant’s claims that he simply will not abuse alcohol, prohibited drugs, or continue gambling if he were returned to the Australian community. Additionally, there is no evidence before the Tribunal that the Applicant has engaged in formal rehabilitation under the supervision of a suitably qualified clinician, which states that the factors predisposing the Applicant to their offending have been identified, addressed and are under remedial management and control.
q)    The Tribunal is of the view that given the Applicant’s past propensity towards violence; past afflictions with substance abuse (including prohibited drugs and alcohol); combined with the little respect he has shown for the property rights of others; if repeated, poses a significant risk to a member or members of the Australian community.
r)     The Tribunal is of the view that if the Applicant were to re-offend, they have the clear capacity to cause very serious physical harm, not precluding catastrophic harm, to a victim of the Australian community. Such risk, in the Tribunal’s mind is not acceptable to the Australian community.
Applying “Expectations of the Australian Community”
The Tribunal refers to the leading authority in the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs (here in referred to as ‘FYBR’)[107]. Her Honour Justice Charlesworth stated the following with respect to the use of “Expectations of the Australian community”:
“67... I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter…
73....The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker’s own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl 11.3 of the Direction. The clause implicitly recognises that the decision-maker’s assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.”
[Tribunal underling for emphasis]
[107] [2019] FCFA 185. Whilst this case concerns Direction No. 65 with reference to paras 6, 8 and 11.3, the text of the relevant provisions in this Direction is largely unchanged in Direction No 79 which came inter operative effect from 28 February 2019. The Tribunal considers that the FCFA consideration of “community expectations” is directly applicable to paras 6, 8 and 13.3 of Direction 79, and is relevant to this application. Further, the Tribunal observes that special leave was sought to appeal the decision in FYBR (FC), which was refused by the High Court on 24 April 2020 per Kiefel CJ and Keane J (see HCA Trans p 56).
His Honour Justice Steward similarly stated that[108]:
“89. It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
90. However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
91. The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.”
[108] Ibid.
Having regard to these authorities, the Tribunal is of the view that the Applicant’s criminal offending is serious offending, and the Australian community would reasonably expect that he should not hold a visa.
That is, the Australian community would expect the non-revocation of the cancellation of the Applicant’s Visa. In this regard, the Tribunal notes that the principle in paragraph 6.3(2) of Direction No 79 is applicable. The principle stipulates that, “The Australian community expects that the Australian Government can and should refuse entry to noncitizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere”.
The Tribunal has considered the primary consideration of the protection of the Australian community which includes the serious nature of the offences committed by the Applicant and the unacceptable risk if they were to be repeated.
In determining the weight attributable to Primary Consideration C, the Tribunal refers to the following relevant findings:
(i)The Applicant made an effort to positively contribute to the Australian community, through the participation in the Australian workforce in paid employment for a number of years, and volunteering with his local rugby league club as a trainer[109].
(ii)The Applicant has lived in the Australian community for around eight years from the age of 14 years, after which he was incarcerated and subsequently taken into immigration detention.
(iii)The impact of the Applicant’s removal on his fiancé, family and friends, including his relationship with his nieces and nephews which he has identified.
(iv)The very serious offending of the Applicant and its impact on members of the Australian community.
(v)The Tribunal is of the view that the trend in the Applicant’s conduct which is viewed very seriously, if it were to be repeated, could lead to more serious offending on future victims of the Australian community. The Tribunal makes this finding with reference to the trend of the Applicant’s offending which began soon after his arrival in March 2010, recording his first traffic offences in 2011; followed by the “aggravated robbery” which occurred in 2016. This trend is seemingly driven by a range of factors which pose a considerable risk to the Applicant offending in the future, such as drug and alcohol abuse, gambling, and negative peer association.
(vi)The Tribunal is not convinced on the state of the evidence before it, the Applicant has undertaken formal rehabilitation to the extent that his capacity to moderate and control his intake of alcohol and prohibited drugs, in addition to his gambling addiction; is such that it renders him of being a lower risk of succumbing to these past addictions which have contributed to his offending.
(vii)Having regard to the state of the evidence before the Tribunal, the Tribunal finds that there is a significant likelihood of the Applicant re-offending due to the incomplete nature of his rehabilitation, and that the risk posed by the Applicant re‑offending is considered serious.
(viii)If the Applicant’s criminal offending were repeated, the Tribunal is of the view that it has the capacity to cause significant harm to members of the Australian community (not precluding a risk of catastrophic harm to a future victim.
[109] Exhibit G1, G13, page 138.
Conclusion: Primary Consideration C
The Tribunal is of the view that the above factors, read as a whole in the context of this case, weigh very heavily in favour of not revoking the cancellation of the Applicant’s Visa.
The Tribunal accordingly finds that Primary Consideration C is of a very heavy weight in favour of affirming the non-revocation decision under review.
OTHER CONSIDERATIONS
It is necessary for the Tribunal to look at the Other Considerations listed at paragraph 14 of the Direction. The Tribunal will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
Paragraph 14.1 of the Direction directs decision makers to consider international non‑refoulement obligations.
The Tribunal observes that the Applicant has not raised any issues or concerns in statements to the Tribunal nor in their oral submissions regarding the consideration of international non-refoulment obligations. Nor has the Respondent.
The Tribunal has had regard to the requirements of Paragraph 14.1 of the Direction and is satisfied that Australia’s non-refoulement obligations are not engaged in relation to the Applicant.
(b) Strength, nature and duration of ties
Paragraph 14.2 of the Direction directs decision makers to consider the strength, nature and duration of ties to Australia.
Decision makers must have regard to how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child (whilst reflecting the principles at paragraph 6.3), noting that:
(i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
Decision makers are also required to have given consideration to the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non‑revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant arrived in Australia in March 2010 as a 14 year old, after having resided in New Zealand, living with his grandparents. The Applicant’s first brushes with lawful authority occurred within the first year of arriving in Australia (January 2011) after having received a caution from NSW Police after admitting to possessing cannabis[110].
[110] Exhibit G1, G31, page 285 and 286.
In August 2011 (at 16 years of age) the Applicant appeared before the Parramatta Children’s Court for two traffic related offences, for which the Applicant received a fine, and was subject to bail conditions which included a curfew[111].
[111] Exhibit G1, G6, page 101.
With respect to the application of paragraph 14.2(1)(a)(i) of the Direction, the Tribunal observes that less weight should be given to this Other Consideration in circumstances where the Applicant’s offending began soon after his arrival.
Tempering this, the Tribunal observes that the Applicant has contributed positively to Australian community through participation in the Australian workforce in paid employment for a number of years, and volunteering with his local rugby league club as a trainer[112]. The Application of paragraph 14.2(1)(a)(ii) would attract weight in favour of the Applicant in view of this evidence.
[112] Exhibit G1, G13, page 138.
In the Tribunal’s mind, the greater weight with respect to application of paragraph 14.2, is the strength, duration and nature of the Applicant’s ties to his fiancé (an Australian citizen[113]), family and friends in Australia. The Tribunal will now turn to the Application of paragraph 14.2(b) of the Direction to the factual circumstances of matter.
Relationship with fiancé (Ms T)
[113] Transcript 1 February 2021, page 32, line 44.
Both the Applicant and Ms T in submissions before the Tribunal state that they commenced their relationship whilst both in secondary school in July 2011, and have been together in a long-term relationship, with the Applicant proposing to his fiancé in 2017. The Tribunal has had regard to the detailed submissions of both the Applicant and his fiancé with respect to their future plans together. It is clear to the Tribunal that the deportation of the Applicant would significantly impact the emotional state of both the Applicant and his fiancé.
Ms T outlined the impact the removal of the Applicant has had upon her, which she detailed in submissions to the Tribunal. The Tribunal observes the effect this has had on Ms T’s mental health conditions and general health, and refers to the submissions of Ms T[114]:
“Being a university student and receiving minimal financial assistance, I have had difficulties with seeking ongoing help regarding my health. Long term medications for my fluctuating weight, severely low blood pressure and symptoms of depression and anxiety will put me in financial hardship if I were to begin and adhere to treatment for my developing medical conditions. I made the difficult decision to save the money I had into assisting my fiancé with his legal representation and with providing him with the necessities such as food and clothing while he was away from me. Although there has been minimal improvement to my health and well-being for the last three to four years, I feel better knowing that I am helping my fiancé as much as I can.”
[Tribunal underline for emphasis]
[114] Exhibit A2.
Under cross-examination, when the witness was asked about their health issues and whether she had been formally diagnosed, she stated that they had not been and that as per her statement, it was due to not being able to afford to do so. The Tribunal refers to the following exchange[115]:
[115] Transcript 1 February 2021, page 31, lines 28 to 39.
“Respondent:            And in that statement you talk about the impact that the separation from JKPM had on your health?
Witness (Ms T):        Yes.
Respondent:             Can I ask you first, have you been diagnosed with any medical condition that is physical or mental as a result of that separation?
Witness (Ms T):        Sorry, what was your question?
Respondent:             Have you been diagnosed with any medical condition that is physical or mental as a result - - -?
Witness (Ms T):        No, not formally, no.
Respondent:             You said in your statement that you, you cannot afford treatment for your symptoms, is that correct?
Witness (Ms T):        Yes.”

During the course of cross-examination with the Applicant, it became apparent that his fiancé commenced employment following a period of time after the Applicant had been taken into criminal custody, the Tribunal refers to the following exchange:
“Senior Member:      JKPM, when you were sentenced and then you subsequently went to prison, did your fiancé have a job at the time in addition to working? Sorry, a job at the time in addition to her studies, I meant to say. So she was studying at the time that you went to prison in 2018, that's correct?
Applicant:Yeah.
Senior Member:       Did she have a job at that time?
Applicant:                 Yes.
Senior Member:       She did? Where did she work?
Applicant:No, she - no she didn't have a job at the time but a while after I was in gaol she did - she did get a job.
Senior Member:       Where did she work?
Applicant:                 She worked at a pharmacy.
Senior Member:       And so in the period since you have been in prison and then subsequently in immigration detention, she has been working to pay for her studying costs and life costs whilst you haven't been there to subsidise them, is that correct? Or contribute towards them would be a better word?
Applicant:                 Yes, that's correct.”
When Ms T was questioned as to the veracity of her claims regarding her inability to afford health care, and the impact saving for the Applicant’s legal representation and necessities have had, it became apparent to the Tribunal that some of the claims being put forward by the witness may have been overstated. This is particularly so when one considers that Ms T is an Australian citizen entitled to Medicare. The Tribunal is of the view that despite the witness’ claims regarding the financial impact of the Applicant’s removal, it seems to the Tribunal that the witness and her family have been able to manage the financial burden the Applicant’s removal has had on them. The Tribunal refers to the following exchange[116]:
[116] Transcript 1 February 2021, page 31, lines 41 to 47; page 32, lines 1 to 46; page 33, lines 1 to 5.
“Respondent:            Have you worked before, Ms T?
Witness (Ms T):        No, I haven't.
Respondent:            You've not been in paid employment?
Witness (Ms T):        No.
Respondent:             JKPM gave evidence earlier that you had worked in a pharmacy, do you have anything to say about that?
Witness (Ms T):        That's my family business that I just help out here and there.
Respondent:            Was that a paid position?
Witness (Ms T):        Yes, sometimes. Not all the time. It was like a voluntary position that I chose to help out in.
Respondent:             When you say it's a family position, it's family members who run that pharmacy?
Witness (Ms T):        Yes.
Respondent:             And who are they?
Witness (Ms T):        Sorry?
Respondent:             Is that your parents or someone else?
Witness (Ms T):        That's my uncle.
Respondent:            Do you work now, Ms T?
Witness (Ms T):        Not at the moment, no.
Respondent:             Do you still live with your parents?
Witness (Ms T):        Yes, I do.
Respondent:             Would I be right to say that you don't give any money to your parents except by way of contributions to rent or anything like that?
Witness (Ms T):        Not anymore. Ever since JKPM moved out I've - they've told me to stop giving them money.
Respondent:             Even before that, was that JKPM's money that you were referring to?
Witness (Ms T):        Yes.
Respondent:            Do your parents provide you with money, financial support?
Witness (Ms T):        Um, I don't really need any at the moment. No, so no, they don't but if I do then I just ask them and - yeah.
Respondent:             JKPM described in evidence that your parents are very wealthy. Would you agree with that description?
Witness (Ms T):        Very wealthy, did you say?
Respondent:            Yes?
Witness (Ms T):        I would say they are rich.
Respondent:             They are comfortable, they have savings and they can meet their expenses?
Witness (Ms T):        Yes, yes.
Respondent:             Given what you've said, it's - I have to say, a bit difficult to believe that your parents wouldn't help you with your medical costs if you needed it?
Witness (Ms T):        I haven't really spoken up to them, opened up to them about the things that I've been feeling so I know that they would help me but I don't feel comfortable opening up to them about it yet.
Respondent:            You're an Australian citizen, aren't you, Ms T?
Witness (Ms T):        Yes, I am.
Respondent:            So you would be entitled to Medicare as well?
Witness (Ms T):        Yes.
Respondent:             Just one final question. I want to clarify something in your statement. You said that you - you saved some of your money to spend on JKPM's legal representation. How much has that been?
Witness (Ms T):        Um, between $1,000 to $5,000.
Respondent:             I don't want you to disclose anything that may have been discussed with those lawyers. Are you able to say in general terms what assistance that was? I only ask this because JKPM has not had legal representation at any point in these proceedings?
Witness (Ms T):        I believe he had legal representation during Federal Court.
Respondent:             Yes, that was pro bono counsel though, it was appointed by the court?
Witness (Ms T):        I'm not too sure.”
The Tribunal heard evidence that Ms T had subsequently finished her tertiary studies and was awaiting conferral of her degree as an Occupational Therapist, something which the Applicant had previously stated to the delegate of the Minister was being impacted upon by the present proceedings with respect to the Applicant[117].
[117] Exhibit G5, page 96. Transcript 1 February 2021, page 33, lines 15 to 23.
The final point the Tribunal wishes to raise with respect to the Applicant’s fiancé is the evidence previously given, that she would be prepared to relocate to New Zealand to be with the Applicant (in circumstances where she was financially able to). The Tribunal observes that Ms T re-confirmed this evidence, and also observes that her qualification in Occupational Therapy would be transferable. The Tribunal refers to the following exchange[118]:
“Senior Member: In your previous evidence to the tribunal you were asked, in circumstances should the applicant not have a visa restored to him and he was to go to New Zealand and you were asked whether or not you would move with the applicant - and I'm just going to grab the exact quote for you, I won't be a moment. It said, you were previously asked "If JKPM had to return to New Zealand would you accompany him? Would you relocate with him? And you said, "Not at the beginning but if, if I was financially stable, I would." Do you still agree with that statement that you made?
Witness (Ms T): Yes, I do.”
[118] Transcript 1 February 2021, page 33, lines 29 to 36.
The Tribunal accepts Ms T and the Applicant have a strong relationship with future plans for a family in Australia, and that Ms T would suffer emotionally should the Applicant’s visa not be restored to him.
Family and friends
The Tribunal has had regard to the many letters of support from the Applicant’s family and friends in submissions before the Tribunal. In earlier reasons, the Tribunal referred to the fact that the Applicant identified a large family, with more than 100 extended family members who reside in Australia (outside his immediate family)[119]. It is very clear to the Tribunal that the Applicant has a large and supportive family present in Australia.
[119] Exhibit 1, G13, page 136.
Additionally, the Tribunal has already detailed the relationship the Applicant has with the seven nieces and nephews he identified, with the Tribunal finding that the Applicant may resume relationships with these children, should he be allowed to remain in Australia.
With respect to the financial impact the Applicant’s removal has had on his family (also mentioned by the Applicant’s fiancé in submissions to the Tribunal[120]), the Tribunal refers to the following exchange with the Applicant[121]:
“Senior Member: And is it fair to say that in the period of time since you have been in prison and subsequently immigration detention that your parents now meet the lost contribution that you make to their household budget, is that correct?
Applicant:Yeah, yeah that's correct.”
[120] Exhibit A2.
[121] Transcript 1 February 2021, page 24, lines 11 to 15.
The Tribunal accepts that the Applicant’s family and friends would suffer an emotional impact should the Applicant not have his visa restored to him.
Overall, in applying paragraph 14.2 of the Direction to the factual circumstances of the Applicant, the Tribunal is of the view that this Other Consideration (b) weighs heavily in favour of revocation for the Applicant.
Whilst the Tribunal has applied a heavy weight to this Other Consideration (b), it is by far outweighed by the combined very heavy, and determinative weight the Tribunal has given to both Primary Consideration A and Primary Consideration C, both of which weigh very heavily in favour of non-revocation.
(c) Impact on Australian business interests
Paragraph 14.3 of the Direction requires decision makers to consider the impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Tribunal has had regard to the directions outlined in paragraph 14.3 of the Direction and is satisfied that an impact on Australian business interests is not relevant to the factual circumstances of the Applicant.
(d) Impact on victims
Paragraph 14.4 of the Direction requires decision makers to take into account the impact that a decision not to revoke the Applicant’s Visa would have 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 that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
In the absence of any evidence submitted to the Tribunal for consideration with respect to the Applicant’s impact on their victims from their offending, the Tribunal cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa and is neutral.
(e) Extent of impediments if removed
Paragraph 14.5 of the Direction directs decision makers to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The non-citizen’s age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
The Tribunal observes that the Applicant resided in New Zealand with his grandparents and attended school and grew up there prior to his arrival in Australia in March 2010. The Tribunal has had reference to various submissions of the Applicant and his fiancé regarding the Applicant’s mental health.
There is no formally diagnosed medical condition of the Applicant before the Tribunal[122]. The Tribunal makes the observation that of the issues raised with respect to the Applicant’s mental health, there is no evidence to suggest that he would not receive comparable standards of care should he be returned to New Zealand.
[122] Exhibit G1, G13, page 10.
The Applicant would be familiar with New Zealand having once resided there, noting that there is no suggestion of any language or cultural barriers. The Tribunal refers to the decision of Tera Euna and Minister for Immigration and Border Protection[123], where Senior Member Kelly stated the following at paragraph 101:
“New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand... New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The applicant will have access to those services as a New Zealand citizen.”
[123] [2016] AATA 301.
Any hardships the Applicant may face with resettlement in New Zealand, would likely be temporary, until he is able to re-establish himself.
The Applicant has tendered submissions to the Tribunal with respect to his employment history stating that he has worked in various occupations obtaining skills in areas involving warehousing (eg. forklift operator), and certificates in first aid etc, all of which the Tribunal views to be transferrable skills[124].
[124] Exhibit G1, G20, page 159 and 160.
In view of the reasons outlined by the Tribunal with respect to the extent of any impediments a non-citizen may face if removed from Australia to New Zealand, it is the Tribunal’s view that paragraph 14.5 of the Direction weighs moderately in favour of revocation, however the Tribunal is of the view that the weight of this factor does not outweigh the very heavy and determinative weight the Tribunal has found when combining Primary Consideration A and Primary Consideration C.
201.
Summary: Other Considerations
The application of the Other Considerations in the matter before the Tribunal can be summarised as follows:
(a) International non-refoulement obligations, are not engaged in relation to the Applicant.
(b) Strength nature and duration of ties, strongly favour revocation of the mandatory Visa Cancellation Decision.
(c) Impact on Australian business interests, is not relevant to the factual circumstances of the Applicant.
(d) Impact on victims, is of a neutral weight.
(e) Extent of impediments if removed, a moderate measure of weight is attributable in favour of revocation of the mandatory Visa Cancellation Decision.
The Tribunal is of the view that, to the extent that any of these Other Considerations, as outlined in paragraphs 14.1 to 14.5 of the Direction, weigh in favour of revoking the mandatory Visa Cancellation Decision, they are by far outweighed by combined weight of both Primary Consideration A and Primary Consideration C, which weigh very heavily and determinatively in favour of non-revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
As previously outlined in these reasons, pursuant to s501CA(4)(b) of the Migration Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s Visa:
(i)either the Applicant must be found to pass the character test; or
(ii)the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
As the Tribunal has already outlined in these reasons, the Applicant does not pass the character test.
The Tribunal has had reference to the Direction and to all the evidence before it and finds that there is not another reason for the Tribunal to revoke the cancellation of the Applicant’s Visa.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Migration Act to revoke the mandatory Visa Cancellation Decision, the Tribunal has had regard to the Primary Considerations referred to in the Direction, and makes the following findings:
(i)Primary Consideration A weighs very heavily in favour of non-revocation.
(ii)Primary Consideration C weighs very heavily in favour of non-revocation.
(iii)Primary Consideration B weighs moderately in favour of revocation.
The Tribunal has outlined the weight attributable to the Other Considerations. The Tribunal is of the view that any weight the Tribunal has found in favour of revocation from the Other Considerations (even when combined with each other and Primary Consideration B), does not in any way outweigh the very heavy and determinative weight the Tribunal has attributed to Primary Consideration A and Primary Consideration C of the Direction.
The Tribunal makes this finding with reference to paragraph 8(4) of the Direction which provides that, “Primary considerations should generally be given greater weight than the other considerations”. In the Tribunal’s mind both Primary Consideration A and Primary Consideration C have been the determinative considerations in this matter.
It is the Tribunal’s opinion that a holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s Visa.
Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s Visa.
DECISION
Pursuant to s43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 29 November 2019 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

I certify that the preceding 212 (two hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Senior Member B.Pola

..........................[SGD]..............................................
Associate
Dated: 16 March 2021

Date of hearing:

1 and 2 February 2021

Applicant:

JKPM (self-represented)

Solicitor for the Respondent:

Ms Grace Ng

Australian Government Solicitor

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

G1

G Documents (Remittal Proceedings) (pages 1 to 399)

-

2 November 2020

R1

Respondent’s Updated Statement of Facts, Issues and Contentions (pages 1 to 12), with attachments:

· Client Incident Reports

22 January 2021

22 January 2021

A1

Applicant submissions (five pages)

undated

27 January 2021

A2

Letter of support – Applicant’s fiancé
(3 pages)

22 September 2020

27 January 2021

“ANNEXURE 1 – EXHIBIT REGISTER”

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
G1	G Documents (Remittal Proceedings) (pages 1 to 399)	-	2 November 2020
R1	Respondent’s Updated Statement of Facts, Issues and Contentions (pages 1 to 12), with attachments: · Client Incident Reports	22 January 2021	22 January 2021
A1	Applicant submissions (five pages)	undated	27 January 2021
A2	Letter of support – Applicant’s fiancé (3 pages)	22 September 2020	27 January 2021