Johnstone and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 1851
•22 September 2025
Johnstone and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1851 (22 September 2025)
Applicant:Timothy Johnstone
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/4335
Tribunal:Senior Member N Burns
Place:Melbourne
Date:22 September 2025
Decision:The Tribunal affirms the decision under review.
..........................[SGD]............................
Senior Member N Burns
Catchwords
MIGRATION – review of a decision not to revoke mandatory cancellation of visa under section 501CA(4) of Migration Act 1958 – character test – Direction 110 – protection of the Australian community – mental health issues – decision under review affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Amendment Act 2024 (Cth)
Migration Amendment (Removal and Other Measures) Act 2024 (Cth)Cases
AJL20 v Commonwealth of Australia [2020] FCA 1305
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FYBR v Minister for Home Affairs [2019] 272 FCR 454
Glenn Taylor v Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 2015 (16 February 2024)
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594Secondary Materials
Direction no 110 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation under s 501CA (dated 7 June 2024)
Statement of Reasons
On 9 July 2025, the applicant lodged a review with the Administrative Review Tribunal (the Tribunal) of a decision made by a delegate of the Minister on 30 June 2025 not to revoke the mandatory cancellation of the applicant’s Class BF transitional (permanent) visa under s 501CA(4) of the Migration Act1958 (Cth) (the Act).
The issues for the Tribunal to determine are whether the applicant passes the character test, and, if not, whether there is another reason the cancellation of his visa should be revoked.
BACKGROUND
The applicant is a 57-year-old man from the United Kingdom (UK). He came to Australia on 5 July 1976 (at eight years of age) with his parents and brother and has resided here since. His other brother was born in Australia. On 1 September 1994 he was granted the transitional permanent visa by operation of law.
In the form[1] setting out reasons for revocation and his personal circumstances form[2] which the applicant provided to the Department he states his mother and father’s citizenship is Australian and English and states he believes he was a dual Australian and English citizenship holder from eight years of age. The Department undertook an ‘Australian Citizenship Status Assessment’ and concluded on 30 May 2024 the applicant was not an Australian citizen by conferral or by descent.[3]
[1] ‘Request for revocation of mandatory visa cancellation under s501(3A)’ form (HB pp 101 – 105)
[2] HB pp 106 - 120
[3] HB pp 125 - 132
According to information contained in his National Criminal History check (released on 6 September 2024)[4] on 13 March 2023 the applicant was convicted in the Newcastle Local Court of New South Wales (NSW) of:
[4] HB pp 203 - 206
·wilful and obscene exposure in/near public place/school
·goods in personal custody suspected being stolen (not m/v)
·shoplifting
·larceny value<=$2000
·sexually touch another person without consent (two counts)
·common assault
·possess prohibited drug
·stalk/intimidate intend fear physical etc harm (personal) (two counts) and
·carry out sexual act with another without consent.
The applicant was sentenced to an aggregate term of imprisonment of three years. In relation to the offenses of sexually touch another person without consent (two counts), wilful and obscene exposure in/near public place/school, common assault, stalk/intimidate intend fear physical harm etc (personal) (two counts) and carry out sexual act with another without consent his sentence was reduced to 30 months on appeal by the District Court of NSW, Newcastle, commencing on 15 August 2022 and expiring on 14 February 2025. The appeal judge (Judge McGrath SC) set a non-parole period (NPP) of 15 months commencing on 15 August 2022 and expiring on 14 November 2023.[5]
[5] HB pp 83 - 89
Judge McGrath SC did not impose a penalty for the offenses of shoplifting, possess prohibited drug, larceny value<=$2000 and goods in personal custody suspected being stolen (not m/v).
On 27 June 2024 the applicant’s visa was mandatorily cancelled by a delegate of the Minister under s 501(3A) of the Act on the basis that he had ‘a substantial criminal record’ within the meaning of s 501(6)(a) of the Act and was serving a sentence for imprisonment on a full-time basis in a custodial institution (Metropolitan Special Programs Centre (MSPC), NSW), for an offence against a law of the Commonwealth, a state or a territory. He was notified of the visa cancellation and invited to make representations about revocation.
On 18 July 2024 the applicant made representations in relation to seeking revocation of the delegate’s decision to cancel his visa. On 30 June 2025 the delegate decided not to revoke the cancellation decision pursuant to s 501CA(4) and the applicant was notified of that decision, which is the subject of the current review.
On 23 May 2024 the NSW Civil & Administrative Tribunal (NCAT) issued a guardianship order in respect of the applicant valid for 12 months. On 10 December 2024 NCAT issued another guardianship order also valid for 12 months. It is a limited order giving the public guardian (Ms Sunita Hora) authority in relation to several functions concerning the applicant including to make decisions in relation to access to legal services and to make decisions in all matters relating to his immigration status including his passport and travel.[6]
[6] HB pp 340 - 341
Presently the applicant resides in Villawood Immigration Detention Centre, since August 2024.
The material before the Tribunal indicates the applicant was released from prison on parole on 14 November 2023. He was charged on 30 November 2023 for the offence of ‘Fail to Comply with Reporting Obligations’ and granted bail to appear at the Local Court of NSW at Newcastle in January 2024[7]. He appeared in the Newcastle Local Court on 18 January 2024 and received a community correction order for 12 months commencing 18 January 2024 to 17 January 2025. The applicant was taken back into remand on 29 January 2024. The applicant was again released from prison on parole on 12 August 2024 after his outstanding charges were dismissed.[8]
[7] Breach of parole report dated 12 December 2023. (HB pp 297 – 299)
[8] NSW State Parole Authority, ‘Notification of determination by the State Parole Authority in Respect of Rescinding a State Parole Authority decision’ 12 August 2024 (HB pp 218 – 219); NSW Department of Corrective Services, Case Note Report dated 13/08/2024 and 15/08/2024 (R1).
A few days later, on 15 August 2024 the applicant was taken by ambulance to hospital,[9] admitted to the mental health unit for management of intoxication due to polysubstance use. He was discharged on 19 August 2024 to immigration detention.[10] His sentence ended on 14 February 2025.
[9] James Fletcher/Mater Mental Health Services – Psychiatry Discharge referral, issued 19 August 2024 (HB pp 342 – 346); NSW Department of Corrective Services, Case Note Report dated 15/08/2024 (R1).
[10] NSW Department of Corrective Services, Case Note Report dated 19/08/2024, 22/08/2024 (R1).
A telephone directions hearing was held on 29 July 2025 with the applicant’s then Representative, Ms Jessica Schulman (NSW Legal Aid), the applicant’s Principal Guardian Ms Sunita Hora, and Ms Lisa Liu, Hunt & Hunt Lawyers for the Respondent in attendance. The Tribunal issued the parties a written direction on 29 July 2025 which set out documents to be lodged by certain dates.
After the directions hearing the Tribunal was advised NSW Legal Aid were no longer representing the applicant. On 27 August 2025 Ms Hora advised the Tribunal by email that the applicant has legal representation from Ms Marta Mamarot, Solicitor, SouthWest Migration and Leal Services. Ms Hora attached a copy of a letter to the applicant dated 27 August 2025 setting out the decision she made as public guardian consenting to SouthWest Migration and Legal Services representing him in his review application.
On 28 August 2025 the Respondent provided to the Tribunal a Statement of Facts, Issues and Contentions (SOFIC) and provided an amended SOFIC dated 5 September 2025[11] on that date. The amended SOFIC included a detailed chronology of events and an annex setting out the applicant’s offending history.
[11] HB pp 3 - 18
On 5 September 2025 the applicant’s representative provided to the Tribunal a SOFIC[12], chronology, and supplementary material. This included a statutory declaration of the applicant prepared by the representative and read to him on that date.[13]
[12] HB pp 311 - 323
[13] HB pp 326 - 328
Just prior to the hearing the Respondent provided a hearing bundle (HB) to the Tribunal which contained these documents as well as the material before the Department (‘G – Documents’) and documents received via summons.
On 10 September 2025 a hearing was held via video link with the applicant, his representative (Ms Mamarot), and Mr Matt Gauci (Hunt & Hunt Lawyers) for the Respondent in attendance. Witness evidence was provided by Mr Carlos Boughton, the applicant’s NDIS support coordinator. Ms Hora was present for around the first 45 minutes and explained her role as the applicant’s principal guardian (as set out in the guardianship order).
At the start of the hearing the Tribunal noted the material before it indicates the applicant may struggle with day-to-day memory and attention[14] (among other things) given his mental health and cognitive issues. The Tribunal asked his representative if they had any concerns about the applicant’s participation, including his ability to answer questions under cross examination. The Representative said she had interviewed the applicant several times recently, including with respect to compiling his statutory declaration (dated 5 September 2025) which she had read back to him over the telephone. He was responsive to her questions and the representative was of the view he can give evidence and be cross examined, although may need more breaks. Ms Hora agreed. The applicant also indicated when asked that he was comfortable to give evidence and answer questions. The hearing proceeded accordingly with no significant difficulties.
[14] Cognitive Assessment report of Mr Timothy Johnstone, Hans Receveur, Senior Clinical Neuropsychologist, Statewide Disability Services, 18 January 2024 (HB pp 380 – 381).
LEGISLATIVE FRAMEWORK
Under subsection 501(1) of the Act, ‘the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test’.
Subparagraph 501(6)(a) of the Act provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record,’ which is defined in subsection 501(7) of the Act and includes having been sentenced to a term of imprisonment of 12 months or more: subsection 501(7)(c).
The Tribunal accepts the applicant has ‘a substantial criminal record’ and was serving a sentence of imprisonment at the time of cancellation. The material before the Tribunal includes a copy of his National Criminal History check, as noted. This evidence shows he was sentenced to a custodial sentence of 30 months (on appeal) in respect of the offences detailed earlier.
Accordingly, the Tribunal finds that the applicant does not pass the character test, and his visa is subject to mandatory cancellation.
The Tribunal has considered whether there is another reason why the mandatory cancellation of the applicant’s visa should be revoked: s 501CA(4)(b)(ii). In doing so it must comply with Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’), by having regard to the primary and other considerations contained in Part 2, considered below.
Paragraph 6 of the Direction provides that decision makers be informed by the principles in paragraph 5.2 of the Direction, as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Informed by these principles, the Direction also sets out matters to be considered in deciding to refuse a visa application, or to revoke (or not) the cancellation of a visa, identifying primary considerations and other considerations. Paragraph 7 of the Direction states as follows:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration … (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 9 of the Direction states that the Direction does not limit the matters the Tribunal can consider.
The primary considerations that must be taken into account by the Tribunal are set out in paragraph 8 of the Direction as follows:
(1)Protection of the Australian community from criminal or other serious conduct
(2) Whether the conduct engaged in constituted family violence
(3) The strength, nature and duration of ties to Australia
(4) The best interests of minor children in Australia
(5) Expectations of the Australian community
The Tribunal must also take into account other considerations (paragraph 9 of the Direction). These include:
a)Legal consequences of the decision
b)Extent of impediments if removed
c)Impact on Australian business interests
In weighing up these considerations in the applicant’s case, the Tribunal has taken into account the documentary material lodged by the parties, and the oral evidence of the applicant and the other witnesses, and the representative and Respondent’s written and oral submissions, where relevant.
PRIMARY CONSIDERATIONS
The protection of the Australian community
The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and 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.[15]
[15] Paragraph 8.1(1).
The Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[16]
[16] Paragraph 8.1.(1).
Paragraph 8.1(2) of the Direction requires decision-makers to:
a)consider the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the applicant’s conduct to date
This primary consideration involves taking into account the nature and seriousness of the applicant’s past offending. It is recorded[17] that his criminal offending began in 1991 when aged 23: which, as noted by the representative, was 15 years after he migrated to Australia. The offences primarily related to drug possession, shoplifting and trespass type offences, for which he was mainly issued a fine or bond. As also noted by the representative in their SOFIC, on several occasions the Court considered rehabilitation and supervision more appropriate than a custodial sentence. There was recognition the applicant’s offending was linked to underlying personal issues that could be addressed through non-custodial measures, the representative submits further.
[17] Nationally Coordinated Criminal History check (HB pp 203 – 206); and Annexure A- Applicant’s offending, Respondent’s SOFIC (HB pp 19 – 20).
The applicant has not disputed his long history of criminal offending. At hearing he said he started taking drugs around 16 in the context his parent’s separation, which likely contributed to his mental health issues. He referred to his first ‘breakdown’ occurring at around age 17 when undertaking training for volunteer military work. The Tribunal accepts his pre 2022 offending took place in the context of drug use and mental health issues, reflected by the type of offences as pointed out by his representative. There was a previous charge for a sexual offence (commit act of indecency with person under 16 years) however according to the Sentencing Assessment report (dated 17 February 2023)[18], this was dealt with under s 32 (of the Mental Health Act (NSW)).
[18] HB pp 302 - 306
As argued by the Respondent and conceded by the representative, in the applicant’s case the most serious offences occurred between 2 February 2022 and 11 March 2022, and on 25 November 2022. The applicant was convicted in March 2023 and received a custodial sentence of three years (aggregate) at the Local Court of NSW which was reduced to 30 months on appeal at the District Court of NSW. The applicant was 54-55 years of age at the time of these offenses.
In his sentencing remarks[19] Magistrate Cheetham in the Local Court of NSW on 13 March 2023 sets out the nature and circumstances of the 2022 offending, accurately summarised by the Respondent in their SOFIC as follows:
· On 2 February 2022, the applicant while on a train, blocked a door, grabbed and squeezed the buttocks of a 19-year-old female victim. The applicant had pleaded guilty to that offence.
· Later, that same day, the applicant attended a pharmacy for a vaccination. The applicant appeared to be drug affected, refused to leave a pharmacy after the vaccination and began swearing and laughing. He walked a short distance before exposing his penis, stroking it and laughing.
· When he was spoken to by police, he was found to be in possession of 1.4 grams of cannabis and taken into custody. At the time he was taken into custody he threw his mask at a victim, hitting them on the head.
· Following his release, the applicant went to a radiography premises nearby and began to approach females. He took an umbrella and left those premises. The applicant threatened to stab a victim with the umbrella. She filmed him as he swore and yelled at her. He then looked at the victim, pulled his pants down and exposed his penis.
· On 11 March 2022, the applicant boarded a train and walked through it, playing a guitar and rambling. The victim got up from where she was and walked away. The applicant slapped the victim’s buttocks. She sat down, put her headphones on, and was too scared to move. The applicant tried to touch her face, but she pulled back. He then put his open hand on her thigh and grabbed her. He continued to stare at her while he held her thigh, causing her to become very scared.
· After the incident, the applicant spent two months in a mental health facility.
· On 26 October 2022, the applicant stole a baseball cap, coffee, banana and a doughnut from a 7-Eleven store.
· On 22 November 2022, the applicant boarded a bus and approached the victim aged 16 years. He requested a drink from her and then lunged at her. He then shuffled towards her with his undone pants and penis exposed. He held his penis, pointing it at the victim. He was challenged by the bus driver but denied any wrongdoing. The applicant was removed from the bus, proceeded to a service station, stealing a soft drink and sausage roll before being arrested.
[19] HB pp 76 - 82
In the SOFIC the Respondent noted Magistrate Cheetham in his sentencing remarks highlighted the following:
·The most serious offending was the applicant’s propensity to sexually touch or commit sexual assaults in relation to other people on public transport.
·With respect to the applicant’s mental state, whilst improved when in hospital, there was a significant risk of relapse, particularly if he continued with drug use.
·In relation to deterrence, risk and the nature of the applicant’s offending, whilst noting the difficulty in assessing the applicant’s mental health issues on the current offending, it was well known that moral culpability can be reduced when a person’s mental health contributes to the commission of the offence in a material way. Conversely it can also mean that his mental illness presents more of a danger to the community.
·In relation to some of the matters the applicant was on bail.
·In relation to the 22 November 2022 matter it was above the midrange of objective seriousness because the victim was 16 years of age and confined within a bus in a public place.
The Respondent contends the applicant’s offending involved sexual offences against women and a child (the 16-year-old girl on the bus), which is viewed very seriously by the Australian Government and the Australian community regardless of the sentence imposed: 8.1.1(1)(a)(ii).
At hearing during cross examination, the Respondent read out a summary of these offences to the applicant and asked him whether he agreed with the facts as set out in the sentencing remarks. The applicant said he could not remember squeezing the buttocks of the victim in relation to the 2 February 2022 incident; denied putting his hand on the victim’s thigh and grabbing her, slapping her or touching her face in relation to the 11 March 2022 incident; and denied lunging at the victim with respect to the 22 November 2022 incident, although agreed he did pull his pants down. He otherwise agreed with the summary of facts as read out by the Respondent. The applicant said (repeatedly) that he was sorry, unsure why he did what he did, was on drugs, was unwell and stressed out, and that he would not do it again.
With respect to the 2 February 2022 incident when asked by the Respondent if he agreed the victim would have been frightened, the applicant said he is not sure as he does not remember doing anything wrong. He added that he was very confused and unwell at court. He generally agreed the other victims may have been frightened or distressed.
In his comments on 30 June 2023[20], Judge McGrath SC at the District Court of NSW - who reduced the applicant’s sentence on appeal - found there should have been further allowance for special circumstances given the applicant’s established history of chronic mental illness and primary diagnoses of schizoaffective disorder, polysubstance use and exacerbated cognitive decline (early onset dementia).
[20] HB pp 83 - 89
Judge McGrath SC noted, among other things, the applicant’s long criminal history, stating it is apparent it covers his entire adult life, and he has been sentenced to periods of imprisonment before. He is what might be referred to as a serial offender, he states further. He also refers to the applicant’s history of chronic mental illness, and long history of excessive alcohol consumption and illicit substance misuse.
Judge McGrath SC described the (2022) offences as a combination of sexual touching and stalking offences against people the applicant does not know in public places and larceny or shoplifting offences and possession of stolen property; that many of the offenses are aggravated by being in breach of orders, particularly bail, at the time; and that all his offending had been informed and caused by his interrelated serious mental health issues and substance abuse.
With respect to the seriousness of these offenses, Judge McGrath SC states that he took into account the fact that the ‘sexual touching offenses, were committed in public places and on public transport against young women who were lawfully going about their day in circumstances where they were sexually touched by a man, not known to them, in circumstances which were frightening and unpleasant and I take into account the particularly young age of some of these victims and that this offending was in breach of bail orders’.
With respect to the 22 November 2022 offence Judge McGrath SC noted in all the circumstances he understood the seriousness with which that offence was regarded, stating ‘the great age difference between Mr Johnstone and the victim, and the fact that it was committed, although the facts do not indicate that children saw, it was committed on the bus where young children could view this.’
In their SOFIC the Respondent notes the applicant has been placed on the Sex Offenders register. At hearing the applicant acknowledged that was the case.
The representative agrees the offending has included sexual offences against women and a child and the Tribunal should deem such offending as very serious.
In considering the nature and seriousness of the criminal offending or other conduct to date the Direction provides several non-exhaustive examples of crimes or conduct that may be considered ‘very serious’, or ‘serious’ by the Australian Government and Australian community.[21] As contended by the Respondent (and conceded by the representative) the applicant’s 2022 offending involved sexual offences against women and a child, which is viewed very seriously by the Australian Government and the Australian community regardless of the sentence imposed.
[21] Paragraph 8.1.1(1).
Taking into account these considerations, the Tribunal is satisfied the applicant’s conduct in relation to the 2022 offending can be viewed as very serious: 8.1.1(1)(a)(ii).
The Direction sets out other factors to be considered in assessing the nature and seriousness of the conduct as follows (in summary):
·The impact on any victims of the offending
·The frequency of offending and/or whether there is any trend of increasing seriousness
·The cumulative effect of repeated offending
·Whether the non-citizen has provided false or misleading information to the Department
·Whether the non-citizen has re-offended since being formally warned or since otherwise being made aware in writing of the consequences of further offending in terms of their immigration status
·Where the offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.[22]
[22] Paragraph 8.1.1(d)-(i).
In this case there are no victim impact statements before the Tribunal. Nonetheless, the sentencing Magistrate and appeal judge noted the conduct was likely frightening, and the young age of some of the victims. At hearing the applicant agreed that some of the incidents may have been distressing for the victims.
There is no indication that the applicant has provided false or misleading information to the Department, or that he has offended after being formally warned, or since otherwise been made aware about the consequences of further offending in respect of his migration status. Further, all of the applicant’s offending has occurred in Australia.
In his SOFIC the Respondent contends the frequency and cumulative effect of repeated offending, and its impact on the victims and community should be taken into account: 8.1.1(1)(c). He noted the observations by Judge McGrath SC of the applicant’s significant history of criminal offending, which covers his entire adult life, and contends the 2023 convictions represent an increase in the frequency and seriousness of his offending: 8.1.1(1)(e). Despite having been treated with some leniency by the courts the applicant has continued to offend, the Respondent argues further.
The Tribunal accepts the applicant has a long criminal history and there is a likely cumulative effect of his repeated offending on the community. It also accepts the 2022 offending, particularly offenses of a sexual nature against members of the public (including a 16-year-old) are very serious and may indicate a trend of increasing seriousness. The Tribunal agrees these 2022 offences indicate a trend of increasing seriousness.
The applicant has been in the community since being released on parole at his earliest eligibility date, but only for short periods of time, relapsed into drug and alcohol use,[23] and has been in immigration detention since August last year: therefore, more recent conduct in the community has, in large part, been untested.
[23] James Fletcher/Mater Mental Health Services – Psychiatry Discharge referral, issued 19 August 2024 (HB pp 342 – 346).
Although the custodial sentence imposed of 30 months (on appeal) in the applicant’s case may not be considered particularly severe, a sentence was imposed nonetheless, and as contended by the Respondent is a last resort in the sentencing hierarchy. Further the offending involved sexual offences against women and a child, which is viewed very seriously by the Australian Government and the Australian community regardless of the sentence imposed, as noted.[24]
[24] Paragraph 8.1.1(1)(a)(ii).
Given these considerations the Tribunal accepts the 2022 offenses for which the applicant was convicted in 2023 (which triggered the visa cancellation) to be very serious. This weighs substantially against revocation of the cancellation of his visa.
Risk to the Australian community
Paragraph 8.1.2 of the Direction requires decision makers to bear in mind the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Further, some conduct and the harm that would be caused, if repeated, is so serious that any risk that may be repeated is unacceptable.
In assessing the risk that may be posed to the Australian community the Direction sets out the following factors decision makers must have regard to, cumulatively, at paragraph 8.1.2:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken) …
The Tribunal is required to have regard – on a cumulative basis – to the nature of the harm to individuals or the Australian community should the applicant engage in further criminal conduct, and the likelihood of him doing so.
There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[25]
[25] BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; and Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.
Given the Tribunal has found, for reasons set out earlier, that the 2022 offences which included sexual offenses against women and in one incident a 16-year-old, to be very serious, it is satisfied the nature of the potential harm to the Australian community if the applicant commits further offenses or engages in other serious conduct would similarly be very serious. If this eventuated, the Tribunal agrees with the contention of the Respondent that such conduct could involve physical and psychological harm to members of the community, including potentially vulnerable members such as children as occurred in the past. For these reasons the Tribunal considers the nature of the harm to individuals should the applicant engage in further criminal conduct or other serious conduct is likely to be very serious.
The Tribunal has gone on to consider the likelihood of further reoffending in the applicant’s case.[26] In doing so it has had regard to any risk assessments undertaken, his mental health and other health issues, substance use history, remorse, and evidence of rehabilitation, among other things, taking into account the parties’ contentions and the material before it about these matters, as follows.
[26] Paragraph 8.1.2(2)(b)(i).
With respect to risk assessments, the applicant was assessed as at a medium risk of reoffending according to the Level of Service Inventory – Revised (LSI-R) risk assessment tool.[27]
[27] Sentencing Assessment Report dated 17 February 2023 (HB p 305).
In his SOFIC and at hearing the Respondent noted reference to the applicant’s STATIC-99R (assessment of risk of sexual recidivism) being ‘Well Above Average risk range, compared to other males who sexually offend’ in a case note from the Department of Community Justice (DCJ) NSW dated 19 December 2023 about the applicant being removed from a program described as ‘PSYCHCriminogenic Risk/Needs’.[28] The Respondent contended this was further evidence of the applicant’s risk to the community. However, there is no other reference to the STATIC-99R in the material before the Tribunal and it is unclear if it was administered, by whom or when. At hearing the Respondent acknowledged that was the case and said he was not aware if the test had been undertaken. Given this, the Tribunal does not give this comment any weight.
[28] HB p 307
Nonetheless the Tribunal accepts the applicant has been assessed as at medium risk of reoffending as per the LSI-R in relation to his 2022 offending, and accepts the offending included sexualised behaviours as set out in the material before it.
More broadly the Respondent contends (in the SOFIC and at hearing) the applicant continues to present a real and significant risk to the Australian community, evident from the material from NSW DCJ and NSW Corrective Services.[29] The Respondent contends such material demonstrates, among other things that:
·The applicant demonstrates limited insight into his behaviour and justifies his behaviour.
·His remorse appears to be focused on the impact on himself rather than his victims.
·He has breached supervision orders.
·There has been reports of violent behaviour and threats of violence whilst the applicant has been in custody.
·The applicant has not completed any rehabilitation programs, including courses that could address his ‘sexually deviant behaviour’.
[29] Including: DCJ Sentencing assessment report dated 17 February 2023 (HB pp 302 – 306); DCJ Breach of parole report dated 12 December 2023 (HB pp 297 – 299); DCJ Case note reports dated 24 January 2023, 8 February 2023, 21 September 2023, and 19 December 2023 (HB pp 307 – 310); and NSW Department of Corrective Services – Incident Details (HB pp 291 – 296).
At hearing during cross examination, the applicant was questioned about information contained in some of the material from NSW DCJ and NSW Corrective Services, including indications his response to supervision whilst on parole was deemed unsatisfactory; being charged with a new offence in early 2024 (for failing to comply with his reporting obligations relating to the Child Protection Register); and incidences of violence in prison. On the latter point, the applicant acknowledged he hit his cellmate but said it was in self-defence as he hit him first.
The Respondent therefore argues the Tribunal cannot be satisfied the applicant will not resume his offending in a similar matter if the visa is restored, and he continues to present a risk to the Australian community. He has a significant history of criminal offending in Australia and has been undeterred in his offending. The Respondent contends in their view there is a medium to high risk of him reoffending particularly as he has been assessed as a medium risk of reoffending according to the LSI-R. Further, if he reoffends it is likely to result in significant physical and psychological harm to members of the Australia community.
In his ‘reasons for revocation’ form and at hearing the applicant states he was on drugs and having a mental breakdown at the time of his 2022 offending. He states he now is off drugs. Given this, and being properly medicated, he states he will not commit any more offenses once released.
At hearing the applicant said has been off drugs since he was brought to the detention centre in August 2024 apart from smoking marijuana around six months ago. He acknowledged he has not undertaken any programs whist in custody, including drugs and alcohol (D&A) programs.
In the SOFIC the representative acknowledges that the applicant has not participated in formal rehabilitation programs whilst in custody, largely due to eligibility restrictions and his complex medical needs which have required ongoing treatment and management.
During cross examination at hearing the applicant confirmed he started using drugs about 30 years ago, and agreed his offending history contains a number of drug related offenses including in 2003, 2013, and 2023.
In terms of his mental health history and current presentation, in his ‘reasons for revocation’ form the applicant states he has been diagnosed with schizophrenia, manic depression and dementia; takes clozapine tablets and elanzepine for schizophrenia and manic depression; and is supported by Newcastle mental health care team when out of jail.
At hearing the applicant said he was diagnosed with schizophrenia in 1984; had his first breakdown when around 18 (as noted); and presently takes fortnightly injections to help manage symptoms. He confirmed during cross examination that he has spent time in mental health facilities, including a couple of years before he went to prison. In detention he said he sees some mental health doctors and nurses.
In assessing the likelihood of reoffending, the representative contends the Tribunal must consider the context of his chronic and severe mental health conditions, including schizoaffective disorder, early onset dementia, and long-standing polysubstance abuse, which significantly impaired his judgement and impulse control.
The representative, whilst conceding this primary consideration weighs against the visa cancellation being revoked, argues the likelihood of the applicant reoffending is reduced in light of promised structured supports through NDIS, medical supervision, and his expressed remorse. Also due to his age and current health: that is at 57 with progressive cognitive decline and ongoing medical supervision, he is no longer engaged in the behaviours that previously contributed to his offending including substance abuse and untreated mental illness.
The representative submits the applicant’s risks of further offending are directly related to the level of support he will receive in the community, including for his mental health and substance use issues, which she argues have been insufficient in the past. She notes the applicant’s NDIS support coordinator, Mr Boughton confirms he will be supported if his visa is reinstated, including through referral to an occupational therapist, engagement with a behaviour support practitioner, implementation of a QR code incident reporting system, facilitation of re engagement in pro social activities and life skills development, support with medication management, assistance in abstaining from illicit substance use, and management of mental health symptomology. These plans and the reasons for proposing such support to the applicant are set out in a letter from Mr Boughton (undated).[30] In that letter Mr Boughton also states if the applicant was granted his visa back his team (‘Brave Boughton’) will begin supporting him immediately and have him linked with Allied Health services to begin therapies as soon as possible.
[30] HB pp 331 - 332
At hearing Mr Boughton confirmed he is the applicant’s NDIS support coordinator and wrote the letter. He explained his company implements NDIS plans for participants over the entirety of the plan, and helps organise therapies, core supports, engagement with family and friends, and coordinate with community mental health teams and transitions out of acute wards, if needed.
Mr Boughton explained in April this year he was approached by Ms Hora, the applicant’s public guardian to contact the NDIS to find out why his previous NDIS Home and Living package (of $229,009.80) was cancelled. He spoke to a NDIS complex team staff member who said it was because the applicant’s permanent visa had been cancelled.
Mr Boughton said the applicant is still recognised as a NDIS participant and if the review is successful, they will go back to the NDIS to provide evidence of such and submit a change of situation form in the hope his Home and Living package is reinstated. Although he acknowledged NDIS may require going through the process to obtain the package again, which can be time consuming. However, because the applicant’s disability is significant (and evidence was provided for the initial assessment) Mr Boughton believes there is a ‘pretty good’ chance of the applicant getting his NDIS Home and Living package back. He explained normally such a package would include living arrangements with two or three others and a variety of support including support workers to assist with transport and daily living, and other therapies depending on the applicant’s needs.
In terms of immediate support if the applicant’s visa is reinstated and he is released from detention, Mr Bougton said they would ask NDIS to provide some core supports for example support workers to assist him in the community. They would also try to find him some temporary accommodation, help him access Centrelink, and reach out to his GP for a medical assessment. As well they would try and obtain some capacity building funding to get an occupational therapist to help escalate the NDIS Home and Living package. He acknowledged that because NDIS have stripped all of the applicant’s funding, they may be met with challenges as to who will look after him in the community initially and may need to go through some charitable organisations to get some temporary assistance.
On cross examination Mr Boughton was asked why he believes the applicant’s NDIS Home and Living package might be reinstated quickly. He replied because the package was only granted around eight months ago and therefore the reports relied on are not deemed out of date (after 18 months has passed). He added that when he spoke over the telephone to a NDIS complex team member, they explained the process in terms of getting a change of situation immediately and then an intention to reinstate (the package): although he acknowledges he has had no formal correspondence from the NDIS in this regard.
Mr Boughton was unsure when asked if the NDIS would require an updated ‘Mental Health Occupational Therapy Assessment Report’, which in the applicant’s case was made on 4 April 2024, following an assessment on 27 February 2024.[31] Mr Bougton said NDIS may deem the outcome as being suitable, but added it was hard to tell. He agreed they may require a full reassessment and may not reinstate all the supports or provide all the supports he indicated in his letter. Mr Boughton added he considers it highly likely NDIS would reinstate a level of funding but cannot guarantee a Home and Living package, or the time frame.
[31] HB pp 354 - 378
With respect to the applicant’s remorse (and whether that has any bearing on future risk of reoffending), the representative notes in his personal circumstances form the applicant acknowledges the seriousness of his offending and expresses remorse; regrets his (2022) offences which were committed whilst very unwell; and that he feels bad for what he has done. As noted at hearing the applicant repeatedly said he was sorry, unsure why he committed some of the offenses, and that he would not do so again.
In his SOFIC the Respondent submits the applicant has limited insight into his behaviour and justifies it; his remorse appears to be focused on the impact to himself rather than his victims; he has breached supervision orders; there has been reports of violent behaviour and threats of violence whilst in custody; and the applicant has not completed any rehabilitation programs, including courses that could address his ‘sexually deviant behaviour’. In his closing submission at hearing the Respondent argued the applicant’s remorse – which was limited - focusing more on himself than his victims, was also reflected in his oral evidence, as well as some level of denial.
The Tribunal has taken into account these submissions, the evidence from the applicant and Mr Boughton, and the material before it to assess the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
The Tribunal notes the applicant was not that much younger when he committed the 2022 offences (being 54-55 years of age), and on his own evidence was taking medication for his schizophrenia at the time. It accepts he has remained largely substance free for around the last 12 months in detention (apart from one incident of smoking marijuana), but this has yet to be tested in the community. He has a long history of substance abuse, and alcohol consumption. He relapsed into drug and alcohol use not long after being released from prison in August 2024 (before being hospitalised then taken to immigration detention)[32]. At hearing during cross examination when asked if he can recall periods of time when he has been substance free the applicant said when he has been in hospital (and/or detention or prison). He has not undertaken D&A programs, and his 2022 offending took place when he was taking medication for schizophrenia, as noted. Further, his offending showed increasing seriousness, including sexual based offending.
[32] James Fletcher/Mater Mental Health Services – Psychiatry Discharge referral, issued 19 August 2024 (HB pp 342 – 346)
The Tribunal accepts the applicant has some insight into his offending, although limited. Nonetheless given his cognitive issues including confusion, this is not necessarily surprising.
Further, the applicant has a likely diagnosis of early onset dementia. Neuropsychologist Hans Receveur assessed the applicant’s cognitive function whilst at Metropolitan Remand and Reception Centre on 17 January 2024.[33] According to Mr Receveur’s findings set out in a report dated 18 January 2024 the applicant scored in the extremely low range for age, a result of complex combination of cognitive impairments association with his schizoaffective disorder and vascular dementia. Mr Receveur states further that the applicant’s function is likely to continue to deteriorate and ‘therefore the allocation of 1:1 support funding is required to ensure his safety, reduce the likelihood of neglect and protection the community’.
[33] Cognitive Assessment report of Mr Timothy Johnstone, Hans Receveur, Senior Clinical Neuropsychologist, Statewide Disability Services, 18 January 2024 (HB pp 380 – 381).
Mr Receveur also states even when fully compliant with medication and refraining from substance and alcohol use, the applicant’s impairments are likely to remain, and the prognosis is poor owing to the likely neurodegenerative nature of the condition.
The view that the applicant requires substantial support was also reflected in the comprehensive Mental Health Occupational Therapy Assessment report (dated 4 April 2024) Supported Independent Living (SIL)/Care Needs Assessment. The author (an occupational therapist) states they had read Mr Receveur’s report and spoke to the applicant’s Mental Health Community Case Manager. They concluded, in summary that the applicant was at risk of severe neglect if not provided with 24/7 support, noting his past support when in the community was infrequent and generally ineffective given the applicant would frequently abscond. The report emphasised the applicant has extreme difficulty in overall functioning, cannot be left alone, and needs support up to 24 hours a day.
The Tribunal accepts the applicant was able to obtain a NDIS Home and Living package around eight or so months ago – which according to Mr Boughton is hard to obtain – and that Mr Boughton as his NDIS support coordinator has a plan in place to try and get this package reinstated, along with possible interim funding. Nonetheless this is not certain and there may be delays. Even if Mr Boughton can obtain some interim support, given the applicant’s high needs, this may be insufficient. The applicant has no family or friends to help support him in the community, or any other apparent protective factors.
Together with being at moderate risk of reoffending, these considerations lead the Tribunal to accept there is a moderate to high risk of the applicant engaging in further criminal or other serious conduct. If he does so, the Tribunal considers it could result in a level of physical and psychological harm and may include offending of a sexual nature against women and/or girls, as it has in the past.
In the applicant’s case the Tribunal has taken into account the Government’s view that the Australian community’s tolerance of any risk of future harm becomes lower as the seriousness of the potential harm increase, as the Direction requires. At the same time and informed by the principles in paragraph 5.2(6) of the Direction, the Tribunal also notes the applicant has lived in Australia from a young age (eight) and lived in the Australian community for most of his life: therefore, affording a higher level of toleration of criminal or other non-serious conduct by the applicant.
However, overall and having had regard to the nature and seriousness of the applicant’s conduct (which the Tribunal considers is very serious) and the risk of his reoffending (which the Tribunal considers moderate to high), the Tribunal gives this primary consideration significant weight in favour of not revoking the cancellation of the applicant’s visa.
Family violence committed by the non-citizen
Whether the conduct engaged in constituted family violence is a primary consideration: paragraph 8.1 of the Direction.
In this case there is no evidence of any family violence committed by the applicant, as agreed by the parties. The Tribunal gives this primary consideration neutral weight.
Strength, nature and duration of ties to Australia
The Tribunal must also consider the strength, nature and duration of the applicant’s ties to Australia as set out in paragraph 8.3 of the Direction. Paragraph 8.3(1) requires considering any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
In his reasons for revocation form the applicant states he has spent his life since age eight in Australia which is his home; his parents, friends and daughter lives here; he was educated here and his whole social network is here.
In their SOFIC the representative identifies the following family members in Australia (as advised by the applicant): his daughter (whose date of birth is unknown); his father; mother; two brothers; two uncle/s aunts; three to four nieces and nephews; and three to four cousins. At hearing the representative clarified a reference to grandchildren in the SOFIC was a mistake: the applicant does not have grandchildren or is not aware if he does.
There is reference to the applicant reporting he has a girlfriend who he would like to marry when out of prison in the Mental Health Occupational Therapy Assessment report (dated 4 April 2024). However there has been no further mention of a girlfriend, including in the parties’ SOFICs and the evidence at hearing.
At hearing the applicant said he has had very limited contact with any of his family members in Australia. His mother is in a nursing home in QLD, with mental health issues and dementia. His father lives in Toronto (near Newcastle): he did not indicate any recent contact with him. He has two brothers but was unsure their circumstances, except to say one of them lives on a farm. He last spoke to one of his brothers around a year ago, and the other two or three years ago. His adult daughter, lives in Grafton. He said he saw her once about five years ago: she told him not to contact her again.
The representative submits that whilst the applicant concedes his family ties are not strong, given the length of time he has lived in Australia and his vulnerability due to his mental illness, these ties remain his only meaningful connection. Therefore, this consideration should weigh heavily in favour of revocation of the mandatory visa cancellation.
As well, the representative notes the applicant contributed to the community in the past by working as a concreter (from 1984 to 1987) and as a fruit picker in 1986. At hearing the applicant referred to some labouring work, and that he had volunteered with the military when around 18. The Tribunal accepts his work history in these respects, although notes it is limited.
In the SOFIC The Respondent notes whilst the applicant states his family will miss him, he has not provided any supporting documents from any family members. The Respondent acknowledges whilst this consideration weighs in the applicant’s favour, it should be given limited weight and should not outweigh the considerations that favour non revocation.
When asked to describe the impact if he leaves Australia in the reasons for revocation form the applicant states his family will miss him. However, during cross examination at hearing, he acknowledged contact with his family members here has been very limited; the last time he saw his daughter (five or 10 years ago) she told him not to contact her again; and he is unsure if his family know his visa has been cancelled.
In her SOFIC and at hearing the representative contends the applicant also has ties in the form of ongoing medical care for schizoaffective disorder and vascular dementia, with all of his treating doctors, specialists and healthcare providers located in Australia. At hearing the Respondent argued this should be considered as an ‘other consideration’, not a primary consideration.
The Tribunal notes the Direction allows for consideration of the strength, nature and duration of ‘any other ties that the non-citizen has to the Australian community’[34]. This is not defined but seemingly broad enough to include consideration of ties to medical and psychological support (and continuation of care) as submitted in the applicant’s case. The Tribunal accepts given his chronic mental health issues and other health matters, the applicant has had long term assistance from various medical practitioners and allied health professionals in the past in Australia and disruption to this would adversely impact him.
[34] Paragraph 8.3(2)
The Tribunal accepts although the applicant has family and extended family in Australia, including his parents, two brothers and daughter, his contact with them has been very limited and therefore the impact on them if he leaves Australia is likely to be marginal. However, it may make any chance of reestablishing these relationships even more difficult. Accordingly, the Tribunal gives this some albeit limited weight overall in favour of revocation.
The applicant has been in Australia since 1976 (from at eight years of age) and has never left. The Tribunal accepts he knows no other home and that this is a significant period of time: almost 50 years. This consideration weighs moderately in favour of revocation.
Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of the Direction requires the Tribunal to determine whether cancellation or refusal under s 501 of the Act, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made.
In her SOFIC the representative submits the applicant has no minor biological children in his life and this consideration should be afforded neutral weight. The Respondent in his SOFIC notes there is currently no information regarding any child in Australia being affected by a non-revocation decision and the consideration should be given neutral weight.
The Tribunal accepts the applicant has only one child, who is an adult and whom he has limited contact. He is unaware of any grandchildren: even if they existed the Tribunal finds he has no contact or relationship with them. Although there is reference to some nieces and nephews in Australia no further information or details about them has been provided including about their age or relationship with the applicant (if any).
Accordingly, the Tribunal gives this primary consideration neutral weight.
Expectations of the Australian Community
Paragraph 8.5(1) of the Direction states that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.
Paragraph 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. This includes an expectation that a visa should be cancelled if they raise serious character concerns because of acts of family violence.
Paragraph 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
The expectations of the Australian community as a whole are to be considered. The Direction directs that decision makers should proceed on the basis of the Government’s views (as articulated above), without independently assessing the community’s expectations in the particular case: paragraph 8.5(4) of the Direction. It is not for the Tribunal itself to determine such expectations.[35]
[35] FYBR v Minister for Home Affairs[2019] FCAFC 185 at [66]- [67], [91], [101] and [104].
This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.[36]
[36] Paragraph 8.5(1).
The Respondent contends this primary consideration weighs heavily against revocation in the applicant’s case, given his offending, and continual disregard of the law.
The representative concedes this consideration weighs in favour of non-revocation. However given the applicant’s lengthy residence in Australia, his serious medical condition and the fact he is subject to a guardianship order, she argues some ‘leniency’ should be afforded.
In RCLN the Federal Court of Australia held that the assessment of community circumstances is not a matter of evidence and does not turn on the personal circumstances of the individual non-citizen. The Court held that a decision maker can take into account the personal circumstances of an individual insofar as they are relevant to another primary consideration or one of the other considerations and adjust the relative weight to be given to each of the considerations accordingly.[37]
[37] RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876 [56].
Given these considerations, combined with the nature and seriousness of the applicant’s 2022 offending, the Tribunal considers that the Australian community would expect the visa cancellation is not revoked in the applicant’s case. The Tribunal gives this consideration substantial weight in favour of non-revocation of the visa cancellation.
OTHER CONSIDERATIONS
Legal consequences of the decision
The Tribunal is required to consider the legal consequences of a decision on a non-citizen of a protection visa refusal pursuant to paragraph 9.1 of the Direction. This includes having regard to Australia’s non refoulement obligations in respect of unlawful non-citizens.
Generally, if a visa is cancelled, its former holder becomes an unlawful non-citizen immediately after cancellation. Under s 189 of the Act, the applicant must be detained and removed as soon as reasonably practicable under s 198.[38]
[38] BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 which followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant’s detention had at all times been lawful at [112]-[122].
The Respondent contends (and the representative states the applicant acknowledges this position) that in circumstances where the applicant’s removal and indefinite exclusion from Australia, and where these purposes informed the consideration set out in Direction 110, this factor should be afforded neutral weight.
The legal consequence of a decision to set aside the decision not to revoke the applicant’s permanent visa is as if the visa was never cancelled. He will then be a permanent resident of Australia in the manner he was before his permanent visa was cancelled.
If the applicant’s visa is cancelled, he would become an unlawful non-citizen, unless granted another visa, which may result in his (ongoing) detention and removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention, although there will be limited opportunities for him to do so in Australia because of the cancellation. The applicant would be subject to an exclusion period in relation to future visa applications.
The applicant is a UK citizen and has not raised any claims to be at risk of persecution or other forms of harm on return to the UK that may enliven Australia’s non refoulement obligations. The applicant is not currently the subject of a protection finding within the meaning of s 197C(3).
Presently the applicant is in immigration detention. He has completed his sentence. It is unclear when exactly he would be removed from Australia if the decision under review is affirmed. Nonetheless the Tribunal accepts he could be subject to removal at any time, which can be stressful for the applicant, particularly given his mental health and cognitive issues.
Accordingly, the Tribunal considers that the legal effects of not revoking the cancellation on the applicant weigh in favour of revoking the cancellation decision, but only to a limited extent.
Extent of impediments if removed
Paragraph 9.2(1) of the Direction provides that decision makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, which in the applicant’s case is the UK. The Direction states in doing so decision makers should take into account the applicant’s age and health; whether there are substantial language or cultural barriers; and any social, medical and/or economic support available to them in that country.
In his reasons for revocation form the applicant states he would have no support in England, no job and would be all alone which would negatively impact his already poor mental health. He adds he has a lot of health conditions and better medical support in Australia. He said he will not be able to survive, will be homeless away from family, will have no support, and will not get existing mental health care support as in Australia who knows his history well. These sentiments were reiterated at hearing with the applicant telling the Tribunal he will not survive in the UK, as it is too cold, and he has no friends or family there to help support him.
The Respondent submits this consideration weighs moderately in favour of revocation, noting the applicant’s various health issues and age (noted elsewhere). Yet he would not have any language or cultural barriers, as the main language is English.
As well, the Respondent submits the applicant would have the same access as all British citizens to governmental services in the UK, including healthcare, welfare benefits and social services, the quality of which is likely comparable to Australia. He contends the quality of the health care system in the UK is likely to provide adequate treatment for any health issues the applicant has: Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126 [12].
The representative argues this consideration should weigh strongly in favour of revocation in the applicant’s case for several reasons. These include because he would encounter substantial impediments to establishing himself in the UK where he has no social, familial or professional connections. Whilst in principle he would have access to the social and medical support available to British citizens, it is submitted he would be incapable of self-sufficiency without intensive and ongoing assistance, given his complex medical history, including schizoaffective disorder, vascular dementia and cognitive impairments. The representative submits further that:
·Removal would result in the complete separation from immediate and extended family members as well as the loss of established medical and support networks in Australia.
·Due to his cognitive and mental health conditions, the applicant lacks the capacity to independently navigate these challenges.
·The applicant would also face considerable difficulty securing employment, housing and financial stability. Having resided in Australia continuously for over 40 years he has no economic or professional ties to the UK and has expressed concern he would struggle to survive and risk homelessness. Reference is made to a decision of the Tribunal by Deputy President Younes[39] who noted that although the applicant in that case would be returning to New Zealand and could receive commensurate treatment, their brain injury presents a significant impediment to settling and navigating a different environment. Also, that access to support must be considered in the context of a brain injury which affects the ability to understand, navigate and engage with processes, which may impact the applicant’s ability to find employment, housing and a support network.
·Even ordinary access to social, medical and economic services in the UK would not mitigate the practical, emotional and financial hardship the applicant would inevitably face.
[39] Glenn Taylor v Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 2015 (16 February 2024)
The Tribunal accepts the applicant is 57 years old and has been diagnosed with schizophrenia, substance abuse disorder and indications of likely vascular dementia. It accepts presently he has fortnightly injections with medication to help manage the symptoms of his schizophrenia. At hearing the applicant mentioned arthritic pain in his legs which he helps manage by taking Panadol or Nurofen. The Tribunal accepts that is the case. Also, that he has diabetes (Type 2) as noted in the Mental Health Occupational Therapy Assessment report and has difficulties managing when in the community resulting in multiple co-occurring physical ailments as noted in that report.
The Tribunal accepts the applicant’s evidence that he has no family or other support in the UK. It accepts he will not have language or cultural barriers.
Given the applicant’s complex mental health and health issues, including cognitive decline, the Tribunal accepts his removal and return to the UK – a place he left when he was eight with very little support – is likely to be very difficult. Although the Tribunal accepts the Respondent’s submissions that the applicant as a UK citizen is entitled to health, social and other government benefits there, likely to be comparable to Australia, given his conditions navigating and accessing these benefits in a system unfamiliar to him (and noting he struggles to take care of himself in Australia) the Tribunal accepts this is likely to be difficult and disorientating and may lead to a decline in his mental health.
Nonetheless, the UK does have support as noted. Furthermore, at hearing when asked by the Respondent, the applicant’s principal guardian – Ms Hora - indicated that although her functions and authority is limited to making decisions in NSW, she may be able to offer some support to link him to services in the UK.
For these reasons the Tribunal gives this consideration significant weight in favour of revocation.
Impact on Australian business interests
The Direction indicates that this factor is generally only given weight where decision would significantly compromise the delivery of a major project or important service in Australia. There is no indication that this applies in the applicant’s case. Accordingly, the Tribunal finds this consideration carries neutral weight.
WEIGHING OF CONSIDERATIONS
The Tribunal finds the applicant does not pass the character test because of his substantial criminal record. Therefore, it has determined whether there is another reason why the visa cancellation should be revoked, weighing up the relevant considerations set out in the Direction. There has been extensive judicial consideration on the exercise of balancing and weighing considerations contained in the relevant Ministerial Directions (considering a number of Ministerial Directions preceding the Direction).[40]
[40] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
The Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs stated that ‘[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction [the precursor Direction 90] is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together’.[41]
[41] [2023] FCAFC 138, [28].
Paragraph 7 of the Direction sets out the way in which the relevant considerations are to be taken into account and weighed, as set out earlier.
In considering whether or not the applicant’s visa cancellation should be revoked, the Tribunal has had regard to the primary and other considerations in the Direction, the guiding principles, and the evidence and material before it. As noted, the guiding principles state, among other things, that the safety of the Australian community is the highest priority.
In the applicant’s case the Tribunal has given significant weight to the extent of impediments if removed (other considerations: paragraph 9(2)); moderate weight to the third primary consideration of the strength, nature and duration of his ties to Australia (paragraph 8.3); and some limited weight to the legal consequences of the decision (paragraph 9.1) in favour of revocation.
Weighed against these considerations, the Tribunal has given substantial weight in favour of not revoking the visa cancellation with respect to the first primary consideration regarding the protection of the Australian community (paragraph 8.1).
The Tribunal has also placed substantial weight in favour of not revoking the visa cancellation with respect to the fifth primary consideration about the expectations of the Australian community (paragraph 8.5).
Paragraph 5.2 of the Direction states the safety of the Australian community is the highest priority.
As noted, greater weight must generally be given to the protection of the Australian community than other primary considerations.[42] Greater weight will also generally be given to primary considerations. In examining what this requires, the Full Court in CRNL states that this means greater weight will be given unless there is some reason why that general approach should not be adopted.[43]
[42] Paragraph 8.1(1).
[43] Op cit [27].
Having weighed up these factors, the Tribunal is not satisfied there is another reason why the visa cancellation of the applicant’s permanent visa should be revoked.
DECISION
The Tribunal affirms the decision under review.
Date of hearing:
10 September 2025
Solicitors for the Applicant: Marta Mamarot, SouthWest Migration & Legal Services Solicitors for the Respondent: Matt Gauci, Hunt & Hunt Lawyers
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