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

Kaye and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4820 (30 November 2020)
Division:GENERAL DIVISION
File Number(s):2020/5551
Re:Mr Christian Kaye
APPLICANT

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

Tribunal:Senior Member B. Pola
Date:30 November 2020
Place:Brisbane

DECISION
Pursuant to s43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 3 September 2020 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
Afu v Minister for Home Affairs [2018] FCA 1311
ETWK v Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
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
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
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
30 November 2020
INTRODUCTION AND BACKGROUND

Mr Christian Kaye (the ‘Applicant’) is a 38 year old citizen of New Zealand, who was born in the United Kingdom. Movement records indicate the Applicant was last granted a Class TY Subclass 444 Special Category (Temporary) visa (referred to as ‘Visa’ hereon in these reasons) on arrival into Australia on 10 December 2018[1].
[1] Exhibit G1, G49, page 382.
The Applicant left the United Kingdom at the age of around six or seven and migrated to New Zealand with his family[2]. At the age of 17, the Applicant migrated from New Zealand to Australia with his family, where he has since resided[3].
[2] Transcript 16 November 2020, page 8, lines 1 to 6; and page 43, lines 41 to 43.
[3] Exhibit G1, G49, page 383.
The Applicant has a criminal history in Australia, with four appearances before lawful authority. The first, second and fourth of these appearances related to offences of unauthorised dealing with shop goods, commit public nuisance and breach of bail.
The third appearance (the most serious) was in relation to offences which included grievous bodily harm where the Applicant received a sentence of imprisonment of four years; along with convictions for two counts of common assault, and one count of wilful damage for which the Applicant received terms of imprisonment for each totalling three months; with all sentences to be served concurrently.
Whilst serving a term of imprisonment, a delegate of the Minister (or ‘Respondent’), pursuant to s501(3A) of the Migration Act 1959 (Cth) (hereon referred to as the ‘Migration Act’), decided on 31 May 2019 to mandatorily cancel the Applicant’s Visa (or the ‘Visa Cancellation Decision’) on the basis that he did not pass the character test pursuant to s501(6) of the Migration Act [4].
[4] Exhibit G1, G9, pages 87 to 93.
Following the Visa Cancellation Decision, the Applicant made submissions to the Respondent[5].
[5] Exhibit G1, G13 to G48, pages 108 to 380.
On 3 September 2020, the Respondent decided not to revoke the cancellation of the Applicant’s Visa pursuant to s501CA(4) of the Migration Act[6].
[6] Exhibit G1, G3, pages 10 to 17.
The Applicant lodged an application with the Administrative Appeals Tribunal (or the ‘Tribunal’) on 14 September 2020 seeking a review of the abovementioned decision not to revoke the cancellation of his Visa, within the required time frame[7].
[7] Exhibit G1, G1 and G2, pages 1 to 9. 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.
The Tribunal has jurisdiction to review this application pursuant to s500(1)(ba) of the Migration Act.
The application was heard in Brisbane on 16 and 17 November 2020, with the Applicant represented by Ms Jennifer Samuta of Samuta McComber Lawyers. The Respondent was represented by Mr David McLaren of Minter Ellison. All parties 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 witnesses called by the Applicant:
(i)Dr Jacqueline Yoxall, Psychologist, who appeared before the Tribunal on 16 November 2020. Dr Yoxall also provided a Psychological Report regarding the Applicant[8].
(ii)Ms Tracey Thomas (a previous employer of the Applicant) who appeared before the Tribunal on 17 November 2020, and provided an email and letter of support for the Applicant[9].
(iii)Ms Sarah Horniman (the Applicant’s sister) who appeared before the Tribunal on 17 November 2020, and provided a letter of support for the Applicant, in addition to tendering medical evidence in respect to her own mental health[10].
(iv)Ms Rebecca Spink (a personal friend and previous employer of the Applicant) who appeared before the Tribunal on 17 November 2020, and provided a letter of support for the Applicant on behalf of herself and her husband Mr Martin Jeffery Spink[11].
(v)Mr David Briddock who the Tribunal will refer to as person of support for the Applicant who served (and currently serves) as Chaplain at the Woodford Correctional Centre where the Applicant was incarcerated. Mr Briddock provided a letter of support for the Applicant[12].
[8] Exhibit A2(2).
[9] Exhibit G1, G14, pages 141 and 142; G15, pages 143 to 145; and G38, pages 292 to 294.
[10] Exhibit G1, G31, pages 267 to 272; and Exhibit A2(4), pages 55 and 56.
[11] Exhibit G1, G29, pages 259 to 261.
[12] Exhibit G1, G35, pages 285 to 286.
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[13]. The issue before the Tribunal is whether the discretion to revoke the mandatory cancellation of the Applicant’s Visa may be exercised.
[13] 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[14], where the following was stated:
“…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…”[15].
[14] [2018] FCAFC 151.
[15] 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[16].
[16] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As previously outlined 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 refers to the Applicant’s submissions where it is conceded that the Applicant does not satisfy the character test[17]:
[17] Exhibit A1, page 2, paragraphs 3 to 5.
“3. The Applicant concedes that:
(a) the decision to cancel his visa under s501(3A) of the Act was made according to law; and
(b) he does not satisfy the character test as prescribed by s501 of the Act for the purposes of s501CA(4)(b)(i) of the Act.
4. The Applicant concedes that, as at the date of the Original Decision, he:
(a) had a substantial criminal record as defined through s501(7)(c) of the Act;
(b) did not pass the character test as prescribed by s501(6)(a) of the Act;
(c) was serving a sentence of imprisonment, on a full-time basis, in a custodial institution, for an offence against a law of the state of Queensland.
5. The Applicant therefore concedes that the Original Decision was properly made under s 501(3A) of the Act.”
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 20 December 2018[18], for the conviction of grievous bodily harm which attracted a sentence of four years imprisonment.
[18] Exhibit R2, page 1; and Exhibit G1, G6, pages 32 to 33.
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 of the Migration Act, to comply with any directions made under the Migration Act.
Given this, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (hereon referred to as the “Direction”) must be applied[19]. The Direction provides guidance for decision-makers on how to exercise discretion in accordance with s501CA of the Migration Act. Relevantly, it states that:
“(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”[20].
[19] 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.
[20] 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 (herein referred to as “Primary Consideration A”);
b)The best interests of minor children in Australia (herein referred to as “Primary Consideration B”); and
c)Expectations of the Australian community (herein referred to as “Primary Consideration C”).
The Other Considerations which must be taken into account are provided in a
non-exhaustive list 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;
e)Extent of impediments if removed.
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
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 turn to addressing the three Primary Considerations.
Primary Consideration A – Protection of the Australian community
In considering Primary Consideration A, paragraph 13.1(1) of the Direction, compels 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.
This paragraph stipulates that remaining in Australia is a privilege on non-citizens. This paragraph stipulates an expectation that those non-citizens are, and have been law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an Applicant’s Visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that:
(i)it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and
(ii)that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
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[21]. The Applicant’s criminal offending history can also be gleaned from the s501 G-Documents[22], and the Respondent’s Supplementary Documents[23] comprising:
[21] Exhibit G1, G13 to G48, pages 108 to 380.
[22] Exhibit G1.
[23] Exhibit R2.
(a)The Applicant’s criminal history which appears in a document entitled Nationally Coordinated Criminal History Check of 13 February 2019[24];
[24] Exhibit G1, G6, pages 32 and 33.
(b)Sentencing remarks of the District Court of Queensland dated 20 December 2018[25];
[25] Exhibit G1, G7, pages 34 to 44.
(c)Transcript of Proceedings, District Court of Queensland dated 20 December 2018[26];
[26] Exhibit G1, G8, pages 45 to 85.
(d)Integrated Offender Management System, Sentence Calculation Details report from the Queensland Department of Corrective Services[27];
[27] Exhibit G1, G10, pages 94 and 95.
(e)A Department of Home Affairs file note dated 31 May 2019[28];
[28] Exhibit G1, G11, pages 96 and 97.
(f)International movement records of the Applicant from the Department of Home Affairs[29];
[29] Exhibit G1, G49, pages 381 to 383.
(g)Incoming Passenger Cards of the Applicant[30];
[30] Exhibit R3.
(h)Queensland Court Outcomes Record dated 12 October 2020[31];
[31] Exhibit R2, page 1.
(i)Queensland Police Service Charge List, Court Brief and Solicitors Office Report Details dated 8 April 2012[32];
[32] Exhibit R2, pages 2 to 8.
(j)Queensland Police Service Charge List, Court Brief and Solicitors Office Report Details dated 5 June 2014[33];
[33] Exhibit R2, pages 9 to 15.
(k)Queensland Police Service Charge List, Court Brief and Solicitors Office Report Details dated 23 December 2014[34];
[34] Exhibit R2, pages 16 to 29.
(l)Queensland Police Service Charge List, Court Brief, Solicitors Office Report Details and Gold Coast University Hospital report dated 8 January 2015[35];
[35] Exhibit R2, pages 30 to 40.
(m)Queensland Police Service Charge List and Court Brief – Breach of Bail Condition, dated 11 March 2015[36];
(n)Southport District Court, Bench Charge Sheets, dated 23 December 2014[37];
(o)Southport District Court, Undertaking as to Bail, dated 3 March 2016[38];
(p)Southport District Court, Indictment – Grievous Bodily Harm (alternatively assault occasioning bodily harm), dated 13 December 2016[39];
(q)Southport District Court, Court Order Sheet of various dates[40];
(r)Southport District Court, Verdict and Judgment Record dated 3 October 2018[41];
(s)Southport District Court, Application for Consent of Crown dated 9 November 2018[42];
(t)Southport District Court, Verdict and Judgment Record dated 20 December 2018[43];
(u)Southport District Court, Exhibit List containing Criminal history, Statement of Facts – Summary charges, Statement of Facts – Indictment, Disc – footage of incident (not provided under summons), Victim impact statement, Photos of the complainant, and Defence material, dated 20 December 2018[44]; and
(v)Southport District Court, Letter regarding Notice of Abandonment of appeal dated 8 August 2019 and an accompanying form dated 7 August 2019[45].
[36] Exhibit R2, pages 41 to 45.
[37] Exhibit R2, pages 46 to 49.
[38] Exhibit R2, pages 50 to 52.
[39] Exhibit R2, pages 53 and 54.
[40] Exhibit R2, pages 55 to 58.
[41] Exhibit R2, page 59.
[42] Exhibit R2, pages 60 and 61.
[43] Exhibit R2, page 62.
[44] Exhibit R2, pages 63 to 127.
[45] Exhibit R2, pages 128 to 132.
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.
8 April 2012
According to a Queensland Police Service Court brief, at around 3.15am on 8 April 2012 police were called to a convenience store in Fortitude Valley (Brisbane), as staff of the store had informed police that they witnessed a male person (the Applicant) who had entered the shop and stolen a food item from the hot food cabinet. The brief states that staff of the store confronted the Applicant about stealing the food item, and the Applicant retuned the item to the staff member before leaving the area. The brief goes on to state that police then took this up with the Applicant when he was later located down a nearby mall holding a $10 note. Police questioned the Applicant about stealing the food item and the Applicant admitted to doing so, with the brief stating the Applicant had said that stealing pies was a tradition of his at the end of a “Big night”. As a result of the admission the police charged the Applicant with unauthorised dealing with shop goods (maximum $150)[46].
[46] Exhibit R2, page 4.
At the hearing, the Tribunal notes the Applicant admitted to drinking on this occasion but was unable to recall how much they had to drink, and denied making the statement to police regarding the tradition of stealing a pie at the end of a “Big night”[47].
[47] Transcript 16 November 2020, page 55, lines 1 to 42.
The Applicant appeared before the Brisbane Magistrates Court on 30 April 2012 and was fined with no conviction recorded, with default imprisonment of two days[48].
5 June 2014
[48] Exhibit G1, G6, page 33.
A Queensland Police Service Court brief states that around 7.15pm in the evening on 5 June 2014, police were called to a business regarding an intoxicated male (the Applicant) who was causing a disturbance. The brief states that police had warned the Applicant regarding their loud swearing, with families eating and present in the area. The brief further states that police had spoken to witnesses who state they had seen the Applicant moving a large sign belonging to a business. Police arrested the Applicant for public nuisance disorderly. The Tribunal notes that the brief states that whilst the Applicant was in custody they had stated to police they were depressed and taking antidepressants with recurring suicidal thoughts[49].
[49] Exhibit R2, pages 11 to 14.
When the particulars of this offence with respect to alcohol consumption were put to the Applicant at the hearing, the Applicant admitted to drinking, but that they had believed they were in control[50]. The Applicant also confirmed that the reported comments with respect to their depression and medication were accurate at the time[51].
[50] Transcript 16 November 2020, page 56, lines 8 to 10.
[51] Transcript 16 November 2020, page 56, lines 34 to 37.
The Applicant appeared before the Southport Magistrates Court on 19 June 2014 and was fined with no conviction recorded, with default imprisonment of four days[52].
23 December 2014
[52] Exhibit G1, G6, page 33.
The Tribunal heard evidence from the Applicant that they had been involved in a relationship with Ms X for just under two and a half years, and that they were not living together but had plans to live together as they had been approved to live in an apartment. The Applicant stated that he had experienced difficulties personally during the time that he was together with Ms X in relation to managing his family members. The Applicant stated that during early 2014 his father (who had long separated from his mother) was admitted to Hospital due to a triple heart bypass after having had a fall. Additionally, the Applicant stated that his mother had been admitted to an acute psychiatric ward for mental health during early 2014 as well[53].
[53] Transcript 16 November 2020, page 18, lines 1 to 29.
The Applicant told the Tribunal that his former partner, Ms X had obtained new employment in around March of 2014, which then saw her work weekends with a colleague from work (whom the Tribunal will refer to as Mr Y). The Applicant had suspected his former partner had grown romantically close to Mr Y, and questioned his former partner about his suspicions, with the Applicant stating his former partner denied this was the case[54].
[54] Transcript 16 November 2020, page 18, lines 28 to 42.
During this time the Applicant had sort help from his doctor to assist him as he was struggling with depression, and was prescribed medication which the Applicant admitted he did not take in the prescribed way, saying he “took [his medication] on and off, I didn’t take it regular”[55].
[55] Transcript 16 November 2020, page 18, lines 42 to 47; and page 19, lines 1 to 6.
The Applicant stated that his former partner Ms X was attending a work Christmas party on 12 December 2014 and had arranged to pick her up at 9pm that evening but that she would call him when she was ready to leave. The Applicant stated that, despite trying to reach her during the night, Ms X did not call him and had switched her phone off. Later that evening just prior to midnight the Applicant gave evidence that he had received a text message from Ms X stating that she had kissed Mr Y at the work Christmas party[56].
[56] Transcript 16 November 2020, page 19, lines 8 to 18.
The Applicant stated that he was disappointed with Ms X and Mr Y, as Mr Y knew that the Applicant and Ms X were in a relationship, and that the Applicant had interacted with Mr Y on a number of occasions. The Applicant told the Tribunal that he had offered to forgive Ms X, however Ms X had changed her phone number around the 15^th or 16^th of December 2014[57].
[57] Transcript 16 November 2020, page 19, lines 20 to 27.
The Applicant stated that on 23 December 2014 he had decided to take Ms X’s belongings back to her residence as it was along the way to his work. The Applicant told the Tribunal that when he had arrived at the residence of Ms X he had noticed Mr Y’s car was present. The Applicant stated that he wanted to confront them, so he then entered the home of Ms X as the door was unlocked and found Ms X and Mr Y standing in the bedroom[58]. The Applicant recalled the following events in their evidence to the Tribunal[59]:
“… he [Mr Y] was down to the right of the bedroom and she [Ms X] was to the left, and she was yelling to me telling me to go out, she was pushing me. I did not push back, I did not touch her at any point.
I then went to push [name redacted – Mr Y] on to the bed in which an entanglement ensued. Whether it was - it was a few punches thrown but they were very restricted because [name redacted – Ms X] was actually on my back and she was - she actually bit me twice on the back in both places. And at which point I shrugged her off. Because the bedroom was by the side of the wall, I shrugged her off like that (witness demonstrates) and she actually fell down the side of the bed and that’s where she hit the wall. And essentially that - I got up and left after that had happened. Upon leaving in - in you know, in frustration and yes in a rage and actions out of control, I scratched his car with a key, probably only about so long (witness indicates), 15 centimetres or whatever it was.
I later that day I apologised to him by text message. I said look, I’m really sorry for how I reacted. I - you know, I wish you two best of luck sort of thing. I said I’d pay for the damage to his car and - you know, I sort of had thought about what happened. Later that afternoon about two o’clock I went to the [location redacted] Police Station and saw an officer there. Upon which he told me, yes, he had spoken to the two complainants at that time, [name redacted – Mr Y] and [name redacted – Ms X], and that - you know, he basically said to me, this was his words, look, it’s just this time of year, I’m hoping this will blow over. I’ll take your contact details, he gave me a business card…”.
[Tribunal insertions]
[58] Transcript 16 November 2020, page 19, lines 27 to 47; page 20, lines 1 to 5.
[59] Transcript 16 November 2020, page 20, lines 2 to 20.
A Queensland Police Court brief states that the Applicant had punched Mr Y to the head using his fists, causing Mr Y to fall on to the bed, where the Applicant repeatedly punched him in the head, but the brief otherwise largely corroborates with the events described by the Applicant. The brief further states that neither of the victims gave the Applicant permission to enter the dwelling, and that Mr Y received facial bruising, whilst Ms X received a sprained wrist and swelling and bruising to the rear of her head[60]. The brief states that the damage caused by the Applicant to Mr Y’s car was just over $800[61].
[60] Exhibit R2, page 19.
[61] Exhibit R2, page 20.
The Applicant was charged with two counts of common assault (one on Mr Y and one on Ms X), in addition to wilful damage with respect to the damage caused by the Applicant to Mr Y’s car[62].
[62] Exhibit R2, page 16.
The Applicant was convicted of these offences before the Southport District Court on 20 December 2018 where a conviction was recorded and the Applicant received a sentence of three months imprisonment for each of charge, to be served concurrently.
29 December 2014
Less than a week later, at around 2am on the 29 December 2014, the Applicant was involved in another offending episode involving Ms X and Mr Y. The Tribunal refers to the Applicant’s version of events as told by the Applicant at the hearing[63]:
“On 28 December, a friend had invited me to get out of the apartment and go down for lunch at [location redacted] just near the [location redacted] there. So, we did. There was a group of about 15 of us and we were all having lunch and a chat, and my friend [name redacted], he could see that I was - you know, emotional and he - you know, he was sort of talking to me about a few things. And I received an email from [redacted – Ms X] at 1.30 that day, which was quite hurtful and derogatory. Basically saying, you know, I had no right to do what I did, she stuck by me through my depression, you know, it was really quite hurtful. And she said that she never cheated on me, only at the Christmas party, and basically wishing me all the best to get into my sport and things like that.
So, I showed that email to [name redacted], we spoke about it, and I responded in an email at 2.30. You know, just basically apologising and - you know, saying it’s been the most difficult year of my life, you know, I am sorry for what I’ve done and - yeah. From there it was offered to go to [location redacted] for - for a few of us and in which case I did. We had a few more drinks there and then from there two of my friends offered to go into [location redacted] in which I did. At that point I was probably - you know, already had a few drinks, maybe about three or four drinks. We decided to go to [location redacted] and then we went to [location redacted], I believe it’s called [location redacted].
At that point it was quite late in the evening, we’d sort of had a very long session or get together drinking. I was becoming emotionally probably - well, I guess - you know, I was drinking so I was losing - losing my train of thought, but I actually showed the email it was about 1.30 - no, I beg your pardon, it was about 12.30 at night just before we left [location redacted] that I was actually showing the email to my friend, [name redacted]. And basically I showed her the email and she said, Christian, you know, don’t - don’t read that email, don’t listen to it, she was sleeping behind your back the whole time, trust me, you know, that’s wrong what she did. And so, that conversation was - sat in my mind.
So, you know, I left [location redacted], I actually attempted to get in two taxis. Because I lived at [location redacted] from [location redacted] it’s about a $70 taxi fare away, and I attempted on two occasions to ask the cab driver to take me there and they wanted cash up front, which was okay, right - yeah, I know some cabs are like that. So, I got some food and a bottle of water and I did a whole block walk around that - that - that vicinity from [location redacted] all the way around, past the [location redacted] and back up to - you know, [location redacted]. Upon where I did enter a taxi who’d finally - who accepted to take my card.
We drove two streets and I remember - I remembered seeing the orange - the light turn orange, thinking that - you know, we were going to get through but he slowed down and he braked for the right light. I looked up and in the middle of the island just next to the [location redacted] directly over the road I saw two people who were kissing. It appeared at first instance to be [name redacted – Ms X] and [name redacted – Mr Y], although I wasn’t so sure. At which point I exited the taxi, for what reason I have no idea but basically looked closer and confirmed that it was [name redacted – Ms X] and [name redacted Mr Y]. And then from there I literally lost absolute control.
Thinking back it was the first time in my life that I actually lost control, I don’t know what made me run after them, but I did. And I had no idea. I remember thinking to myself what am I doing, running up behind them I still didn’t know what I was doing, and I don’t know what was - there was no logical reasoning there. But I ran, I grabbed him on the right shoulder and I pulled him to the ground. So, ran up behind him and pulled him on the - on the right shoulder to which he fell to the ground, and I just remember kicking him, and I had no idea where I was kicking him...”.
[Tribunal insertions]
[63] Transcript 16 November 2020, page 20, lines 31 to 47; and page 21, lines 1 to 43.
The Tribunal notes that the Applicant pleaded guilty to the offending on both 23 December 2014 and 29 December 2014[64]. The Tribunal refers to the Statement of Facts before the Southport District Court, which state[65]:
[64] Exhibit R2, page 62.
[65] Exhibit R2, pages 67 and 68.
“Offending
2. At approximately 2:00am on the 29th of December 2014 [name redacted – Mr Y] and [name redacted – Ms X] were walking along [location redacted] towards [location redacted] from [location redacted].
3. The defendant [i.e. the Applicant] was in a taxi when he saw [name redacted – Mr Y] and [name redacted – Ms X]. The defendant exited the taxi and approached [name redacted – Mr Y] and [name redacted – Ms X] from behind. The defendant grabbed [name redacted – Mr Y] head and dragged him to the ground. The defendant kicked [name redacted – Mr Y] to the head and body numerous times with such force as to render [name redacted – Mr Y] unconscious.
4. [Name redacted – Ms X] attempted to intervene. Passers-by have witnessed the altercation and stopped to render assistance. The defendant attempted to walk away but was stopped by witness [name redacted].
5. Police arrived and arrested the defendant. The defendant was transported to the Southport Watch House where he participated in an electronic record of interview and admitted assaulting the complainant and was very remorseful for what he had done. He said that he had caught a taxi home from [location redacted] after a night of drinking and was sitting at some traffic lights facing the [location redacted] when he saw what he thought was [name redacted – Ms X] and the complainant who were kissing and canoodling. He said he got out to investigate if it was them and ran up to them and realised when he was about 5 metres away that it was them. He said he didn't know what came over him but he then assaulted the complainant by grabbing him and throwing him to the ground. He admitted kicking him twice to the upper body but not to the head. He said he knew he did the wrong thing but that it wasn't his intention when he left the taxi to hurt the complainant, it was only when he reached them that he "imploded". He admitted the assault was unprovoked.
Complainant's injuries
6. [Name redacted – Mr Y] was transported to the Gold Coast University Hospital (GCUH) by ambulance. On presentation [name redacted – Mr Y] was noted as having sustained:
• Multiple facial contusions and bruising
• Large left periorbital haematoma
• Left eye visual blurring and subconjunctival haemorrhage
• Displaced nasal fracture
• Ellis III chipped front tooth
7. A CT Head and facial bones were performed on the 29th of December 2014 and identified the following:
• Nasal bone fractures
• (R) forehead subgaleal haematoma formation
• No Infra cranial haemorrhage.
8. [Name redacted – Mr Y] underwent day surgery for a planned nasal correction by Dr John O'Neill on the 3^rd of March 2015.
9. On 1 April the complainant attended GCUH Accident and Emergency Department complaining of headaches and some difficulty with tasks such as writing. He was examined neurologically and cleared and discharged home. No CT scan was performed on that occasion.
10. An MRI was performed on the 14th of April 2015 at the recommendation of his General Practitioner because [name redacted – Mr Y] continued to complain about headaches. The MRI identified a large subdural haemorrhage and as a result he was admitted to the Intensive Care Unit at GCUH. [Name redacted – Mr Y] underwent a mini-craniotomy.
11. Dr Theresa Withers (Consultant Neurologist) who was part of the operating team opined that it was a chronic subdural haematoma that developed over some weeks or even months and that the injury amounted to grievous bodily harm because if it had remained undiagnosed it would have continued to enlarge and would have resulted in permanent neurological deficit or even death.”
[Tribunal insertions and emphasis]
The Tribunal refers to the sentencing remarks of their Honour Judge Kent QC in the Southport District Court of Queensland on 20 December 2018[66]:
[66] Exhibit G1, G7, pages 35 to 44.
“…Six days later in the early hours of the 29^th of January 2014, you had been out for a night including, it seems, quite significant drinking and you were on your way home in a cab when you saw your previous partner and [name redacted – Mr Y] walking along the street on [location redacted]. You took it upon yourself to have the car – cab stop and you left the cab, approached, indeed, on one view of it, at one stage, pursued the two people along the bridge and you caught up with them on the footpath on the bridge which is visible in the footage from the CCTV camera
You thereupon attacked [name redacted – Mr Y]. Wrestled him or pushed him or shoved him immediately to the ground and thereupon kicked him in the head and upper body a number of times with very significant force. Mr Churchill says, and I accept without having finely analysed it myself that nine kicks are visible. Certainly when I saw the footage, I had the impression that there were at least five kicks which made contact with the head significant enough to significantly move the head backwards and [name redacted – Mr Y], it seems likely, was probably unconscious or losing consciousness during that process and, for some of those blows, was in a position where he was completely defenceless.
The level of violence over what, I'm told, was calculated to be 19 seconds was extremely serious. It is nauseating in its extent and, frankly, quite difficult to watch. [Name redacted – Ms X] did try to intervene and you were resisting her intervention but eventually good Samaritans stopped at the scene and took part. Eventually, as I say, after 19 seconds your shameful attack ceased. You began to leave the scene, it seems — there is a little bit of contention about the fine details of that to which I'll return but you were prevented from doing so by the intervention of bystanders although what I'm told by Mr Reilly, and I accept, is that the prevention was really just in terms of a conversation rather than you having to be physically restrained in any way. And you did, as I'll return to, wait for the police and speak to them.
When you were interviewed later on that morning by the police at a time when, as Mr Reilly points out, you would have been still intoxicated to a significant degree but nevertheless took part in an interview and cooperated with the police, you immediately made admissions. You described yourself as having imploded at the time. You were remorseful then despite your intoxication and I accept that you have maintained that remorse and, perhaps, it has intensified ever since.
The impacts on the unfortunate complainant were severe. He suffered severe bruising; a hematoma certainly to the area of his — of his left eye; quite severe damage to his nose including nasal fractures and a chipped tooth. Upon being taken to hospital, a CT scan was performed which was said to be clear, that is, no skull fracture or other intracranial injury was detected and, thus, he was permitted to go home. Later on he had surgery to correct the nasal fracture but the nasal fracture is not relied on by the prosecution as amounting to grievous bodily harm.
Medically and legally the story continues, however, unfortunately for everyone involved. On the 1^st of April slightly more than three months later, [name redacted – Mr Y] was suffering from consistent and, perhaps, advancing headaches and sought medical attention. He went to the hospital and saw a – or, perhaps, one or more medical practitioners there who reassured him and, for whatever reason, concluded that further scanning or investigations were not necessary.
He went home but two weeks later on the 4^th – well, leading up to, at least, 14^th of April, he was unsatisfied, understandably, with this result and considered that he was still suffering significantly and he saw his general practitioner who wisely and – should I — I should say fortunately for everyone involved – and that professional should be complimented in the careful conduct of his professional obligations – recommended that that [name redacted – Mr Y] have an MRI scan. That found a subdural hematoma which, when considered and investigated by the neurological and neurosurgical experts at the hospital, was concluded to have been chronic, that is, developing over some time connected with the original injury.
Thus on the 14^th of April neurosurgery was required. There was a mini-craniotomy and the pressure within [name redacted – Mr Y]’s skull was, fortunately, relieved… The photographs, exhibit 6, indicate the quite severe nature of the injuries that you inflicted and, I've taken into account exhibits 5 which is the victim impact statement from [name redacted – Mr Y]. The impacts have been severe upon him both personal and financial. It has been quite devastating and I hope and, indeed, I'm quite sure that you realise the extent of that damage done…
…I accept, nine kicks to the upper body and/or head; the fact that it was prolonged; the fact that it was unprovoked; the fact that it happened in a public place; the fact that you initially tackled the complainant from behind and that, in essence, he had no real chance to defend himself; the fact that you continued even during good afternoon time when [name redacted – Ms X] was attempting to intervene. Mr Churchill therefore submits that general deterrence and specific deterrence play a central role as important features of the sentencing process…
…You were found some time later at the police station to have a blood alcohol content of .13, that is, quite intoxicated approaching three times the legal guiding limit and within two hours of that happening you were interviewed. So you were probably still under the influence of alcohol to some extent. Nevertheless, you made the frank admissions that I referred to, that is, you cooperated with the authorities.
You've pleaded guilty today. Mr Churchill pointed out the matter has a very long history and had been listed for trial several times, indeed, possibly, from what I’m told before me at one stage and what chronologically might be described as a late plea of guilty was entered but I do accept that it’s a timely plea in the sense that what had been in issue previously was the causative link, as lawyers understand it, between the assault and the three month later declaring of the grievous bodily harm consequences…The true facts were never in dispute and you have pleaded guilty in circumstances where, in my view, you’re entitled to substantial benefit for the plea. Mr Reily emphasises the instantaneous regret and remorse, which he argues is an unusual feature and it is certainly not seen in every case. He submits that you have taken every avenue to not re-offend – the counselling and anger management I have referred to – and, of course, you have not re-offended in ensuing four years.
He emphasises your volunteer work for Lotus Vana organisation and you are occupied as a carer for a disabled girl, whose parent has given a reference. He emphasises, as I have said, that your referees find your behaviour completely out of character and he emphasises that you have made extremely commendable efforts at rehabilitation. There has been a sustained period of work, of helping others, of treatment, and lack of any re-offending…
So, Mr Kaye, the purposes for which sentence is imposed on you today include punishing you to an extent and in a way that is just in all the circumstances. Secondly, providing conditions in the court's order so far as is possible, which is limited in this particular case, that will further assist your rehabilitation. Thirdly, and importantly, to deter you or others from committing the same or similar offences in the future.
Fourthly, making it clear that the community acting through the court denounces the kind of conduct in which you were involved and finally, and this has some significance, though I accept that you are a low risk of re-offending, to protect the Queensland community from any future misdeeds by you.
In sentencing you, I have regard primarily, pursuant to section 9(3) of the Penalties and Sentences Act to the risk of physical harm to the community if a custodial sentence were not imposed, and one is to be imposed; the need to protect the community from that risk; the personal circumstances of the victim, which I take into account; the circumstances of the offence, including the injury, loss and damage resulting; the nature and extent of the violence, which was severe as I've described; your disregard for public safety, it happened in a public place, your past record, which is minimal and really irrelevant; and importantly, the attempt at rehabilitation, and I — that you have engaged in since the offence occurred.
I take into account your positive antecedents since; your age and general good character. I take into account your high degree of remorse in this case. I take into account the psychological report of Dr Coyle in the way that I have expressed in these reasons.
Therefore, in balancing the two competing sets of arguments that are pressed upon me, I’ve concluded that for the grievous bodily harm the head sentence should be four years imprisonment...
…you should be released after one-third, which is 16 months.
…The operational period under the order is four years. You must not commit another offence punishable by imprisonment within a period of four years if you're to avoid being dealt with for the suspended term of imprisonment. A conviction is necessarily recorded.”
[Tribunal insertions and emphasis]
The nature and seriousness of the Applicant’s conduct to date

Overall, the Tribunal views the Applicant’s criminal offending extremely 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;
b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
…
d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
…
f) The cumulative effect of repeated offending;
g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
…”
The Tribunal has had regard to the following submissions of the Applicant with respect to assessing the nature and seriousness of the Applicant’s offending in December 2014[67]:
[67] Exhibit A1, pages 7 and 8, paragraphs 28 to 30.
“28. It is our submission that a reasonable application of Direction 79 requires an understanding of the circumstances preceding our client’s offending, of which led to quite serious offending which essentially occurred in two separate incidents just 6 days apart in December 2014. We submit that this Primary Consideration must be viewed in context of the Applicant’s extenuating circumstances in the months preceding the subject offending, namely:
(a) a significant relationship breakdown immediately prior to the index offending;
(i) a relationship which ended due to his partner’s infidelity;
(ii) our client’s emotional state of heartbreak, exacerbated by feelings of betrayal, after months of suspicion that his (now) ex-partner was being unfaithful; and the break-up of which was made only more difficult by,
(b) his mental health at the time (depression).
(c) the stress of his father’s serious heart surgery; and
(d) the stress of his mother’s (long-term) serious mental health issues.
29. Further, it is submitted that it is also relevant to consider the role of alcohol (intoxication) in the Applicant’s most serious offending (the index offending), particularly in circumstances where the Applicant was not a regular consumer of alcohol, and especially not in the amounts that he had consumed in the drinking session in the hours prior to the index offending.
30. It is important to note the above submissions at paragraphs 28 and 29 are not an attempt by the Applicant to deny or minimise his involvement, nor an attempt to minimise his accountability. Rather, it is submitted that a proper assessment of the nature and seriousness of his offending requires an accurate consideration of the triggers to our client’s offending as it is relevant also to a proper consideration of the risk of him reoffending (discussed below).”
The Tribunal is of the view that the circumstances referred to above by the Applicant (and indeed a full consideration of all the evidence before the Tribunal), does not diminish the overall extreme seriousness with which the Tribunal has viewed the Applicant’s criminal offending. The Tribunal will more fulsomely discuss these issues in the later reasons of this decision.
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction further provides that crimes of a violent nature against women or children are viewed very seriously, “regardless of the sentence imposed”.
There is no doubt in the Tribunal’s mind that the Applicant’s offending has enlivened the application of sub-paragraphs (a) and (b) of paragraph 13.1.1(1) of the Direction.
The Applicant through submissions to the Tribunal has stated[68]:
“With respect to paragraph 13.1.1(1)(a) of Direction 79, it is acknowledged that that the index offending was violent and therefore can be viewed as serious. However, it is submitted that the Applicant’s index offending, nor any aspect of the Applicant’s criminal history:
(a) was premeditated, rather, the Applicant was either acting on impulse and/ or heavily intoxicated having consumed excessive amounts of alcohol; and
(b) did not involve any sexual misconduct or indecency.”
[68] Exhibit A1, page 8, paragraph 31.
The Tribunal accepts that the offending of the Applicant in the early hours of 29 December 2014 was done on impulse, and not premeditated, nor did it involve any sexual misconduct or indecency. However, in the Tribunal’s mind the level of intoxication of the Applicant does not excuse nor diminish in any way the extreme violence inflicted by the Applicant on his victim.
The Applicant’s offending on 29 December 2014 which lead to the conviction for grievous bodily harm in the Tribunal’s mind is viewed extremely seriously. This is particularly so given the extreme level of violence inflicted by the Applicant on the victim involving some nine kicks to the head which caused the victim’s head to move backwards. The ensuing serious and potentially life-threatening injuries on the victim (Mr Y) only serve to highlight the impact of the extreme violence they had suffered.
The Tribunal again refers to the sentencing remarks of their Honour Judge Kent QC in the Southport District Court of Queensland on 20 December 2018, where it was stated that[69]:
“… You thereupon attacked [name redacted – Mr Y]. Wrestled him or pushed him or shoved him immediately to the ground and thereupon kicked him in the head and upper body a number of times with very significant force. Mr Churchill says, and I accept without having finely analysed it myself that nine kicks are visible. Certainly when I saw the footage, I had the impression that there were at least five kicks which made contact with the head significant enough to significantly move the head backwards and [name redacted – Mr Y], it seems likely, was probably unconscious or losing consciousness during that process and, for some of those blows, was in a position where he was completely defenceless.
The level of violence over what, I’m told, was calculated to be 19 seconds was extremely serious. It is nauseating in its extent and, frankly, quite difficult to watch…”.
[69] Exhibit G1, G7, page 36.
The Tribunal is also of the view that the nature of the violence exhibited by the Applicant on 23 December 2014 towards his former partner Ms X and Mr Y is to be viewed very seriously. This offending was carried out in circumstances where the Applicant entered his former partner’s premises without consent, assaulted Mr Y and in the process injured Ms X in her attempts to get the Applicant to cease his assault of Mr Y. As stated in earlier reasons Mr Y suffered facial bruising, whilst Ms X received a sprained wrist and swelling and bruising to the rear of her head[70].
[70] Exhibit R2, page 19.
The Tribunal observes that sub-paragraph (b) of paragraph 13.1.1(1) of the Direction states that crimes of a violent nature committed against women are to be viewed very seriously, “regardless of the sentence imposed”. This in turn applies to the Applicant’s offending regarding the common assault committed against Ms X on 23 December 2014 for which he was convicted and sentenced to a term of imprisonment of three months to be served concurrently.
The Tribunal accepts that the offending on 23 December 2014 is less serious than the Applicant’s offending on 29 December 2014 which resulted in the conviction for grievous bodily harm. It is the Tribunal’s view that when consideration is given to the evidence which has been presented, the combined view when applying both sub-paragraph (a) and (b) of paragraph 13.1.1(1) of the Direction, is that the Applicant’s violent offending can only be viewed extremely seriously.
The Tribunal is of the view that the factual circumstances of the Applicant’s offending do not attract the application of sub-paragraph (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. Custodial terms are viewed as a reflection of the objective seriousness of a given offence committed by the Applicant.
The Applicant arrived in Australia as a 17 year old and completed the final two years of high school in Australia[71]. The Applicant has been part of the mainstream Australian community for their adulthood and has been subject to four sentencing episodes before lawful authority during this time. The Tribunal accepts the convictions of the Applicant on 25 January 2019, 19 June 2014, and 30 April 2012 are not as serious as the convictions from 20 December 2018.
[71] Transcript 16 November 2020, page 46, lines 35 to 41.
The Applicant’s offending has culminated in the sentencing of custodial terms totalling four years and nine months[72]. The Tribunal is mindful that the sentencing judge ordered that the balance of his custodial sentence for his grievous bodily harm conviction be suspended after having served 16 months[73].
[72] Exhibit G1, G6, pages 32 and 33.
[73] Exhibit G1, G47, page 43.
The Applicant is currently 38 years of age and has spent 21 years residing in Australia (which includes their time spent in incarceration and immigration detention), after having arrived in 1998. The Applicant’s criminal offending has resulted in a sentencing regime representing custodial time equivalent to almost a quarter of his total time spent in Australia.
Sentences involving imprisonment are normally the final resort in the sentencing hierarchy. The head custodial sentence of four years which the Applicant received for their grievous bodily harm conviction is a lengthy sentence, and this is acknowledged by the Applicant in their submissions to the Tribunal[74].
[74] Exhibit A1, pages 8 and 9, paragraph 34
In the Tribunal’s mind there is no doubt that the Applicant’s offending has enlivened the application of sub-paragraph (d) of paragraph 13.1.1(1) of the Direction. The Tribunal finds that the Applicant’s violent offending is of an extremely serious nature.
The Tribunal is of the view that the factual circumstances of the Applicant’s offending do not attract the application of sub-paragraph (e) of paragraph 13.1.1(1) of the Direction, as determinative of the nature or seriousness of the Applicant’s offending.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending.
The Tribunal has regard to the submission of the Applicant with respect to sub-paragraph (f) of paragraph 13.1.1(1) of the Direction[75]:
“With respect to paragraph 13.1.1(1)(f) of Direction 79, it is submitted that given the minimal prior criminal history of the Applicant, and the very specific circumstances which led to the index offending, it cannot be said there is a cumulative effect of offending particularly in circumstances where:
(a) the Applicant’s other violent offending (committed on 23 December 2014) was committed in similar context (on impulse with similar stressors) as the index offending, only 6 days prior; and
(b) the Applicant’s prior criminal history was insubstantial (i.e. the pre December 2014 offending).
In any case, it is submitted that the Applicant’s offending history does not reflect a consistent or blatant disregard for the safety and well-being of the general Australian community, especially in view of his long-term residence in Australia which otherwise establishes him as a well-meaning, positive and contributing member of the Australian community in many respects.”
[75] Exhibit A1, page 9, paragraph 36.
The Tribunal does not agree with the Applicant’s contention that there is no cumulative effect with respect to their criminal offending for the purposes of sub-paragraph (f) of paragraph 13.1.1(1) of the Direction.
In the matter before the Tribunal, the Applicant has been convicted for several offences involving violence, perpetrated on the same victims, on multiple occasions.
The Tribunal accepts that the Applicant’s offending involving unauthorised dealing with shop goods (maximum $150), commit public nuisance, wilful damage, and breach of bail condition are of a lesser scale of seriousness when compared to the violent offending of the Applicant involving grievous bodily harm and common assault. The Tribunal observes that the Applicant received the benefit of non-custodial sentences for the lesser offences; the Applicant could have taken these opportunities to moderate and reflect on their conduct particularly in circumstances where alcohol was involved.
The Tribunal agrees with the Respondent’s contention that, “… there is, if not a pattern of conduct, at least there are multiple instances where criminal conduct has been engaged in by Mr Kaye and on three of those occasions that involved alcohol consumption”[76].
[76] Transcript 17 November 2020, page 116, paragraph 2.
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 its victims.
In circumstances where it is unable to be denied that there has been multiple instances of offending, albeit some of which is less serious than the most egregious offences, 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 in favour of a finding that it is of a serious nature.
Sub-paragraph (g) of paragraph 13.1.1(1) of the Direction asks a decision-maker to determine whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
Evidence presented to the Tribunal disclosed five incoming passenger cards completed by the Applicant upon re-entry into Australia which falsely declared the Applicant’s prior criminal convictions on the following dates[77]:
(i)17 March 2013;
(ii)19 August 2013;
(iii)6 January 2017;
(iv)4 January 2018; and
(v)10 December 2018.
[77] Exhibit R3.
The income passenger card on each occasion asked the Applicant, “Do you have any criminal conviction/s?”. The Applicant has responded with, “No”. The Applicant had appeared before lawful authority on two occasions, being 30 April 2012 and 19 June 2014, where he was fined for offences, with time spent in default imprisonment, and no criminal conviction was recorded.
The Applicant in submissions before the Tribunal accepts that they had provided incorrect information to the Australian Government[78]:
“With respect to paragraph 13.1.1(1)(g) of Direction 79, the Applicant acknowledges that he provided incorrect information to the Australian Government when he declared that he had no criminal convictions in the course of completing Incoming Passenger Cards upon his arrival in Australia in 2013, 2016, 2017, and 2018. The Applicant accepts responsibility and is remorseful for these mistakes, yet offers the explanation that at the time of completing these details, he did not know that his previous court outcomes amounted to convictions, as none of his convictions had been recorded by the Courts at any time. As such, in circumstances where the false declarations are better described as a mistake rather than intentionally misleading, it is submitted that this should not weigh against the Applicant.”
[78] Exhibit A1, page 9, paragraph 37.
Sub-paragraph (g) of paragraph 13.1.1(1) of the Direction is clear, and it states that a decision must take into account whether the Applicant had not disclosed prior criminal offending. The Tribunal is of the view that this sub-paragraph is enlivened and adds to the overall seriousness of the Applicant’s conduct[79].
[79] Transcript 17 November 2020, page 116, paragraph 3.
The Tribunal is of the view that the factual circumstances of the Applicant’s offending do not attract the application of sub-paragraphs (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 chapeau to the factors at paragraph 13.1.1(1) of the Direction reads as follows:
“(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 underlining]
The Tribunal has considered the chapeau at paragraph 13.1.1(1) of the Direction as it applies to the factual circumstances of the Applicant with respect to the evidence before the Tribunal. The Tribunal is of the view that the conduct of the Applicant has been captured in factors (a), (b), (d), (f) and (g) within paragraph 13.1.1(1) of the Direction.
Having regard to all of the evidence and submissions made to the Tribunal, which has been outlined in the abovementioned relevant sub-paragraphs (a), (b), (d), (f), and (g) of paragraph 13.1.1(1) of the Direction, the Tribunal is of the overall view that the Applicant’s conduct can only be characterised as extremely 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 provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(1)Paragraph 13.1.2(1)(a) of the Direction requires the Tribunal to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(2)Paragraph 13.1.2(1)(b) requires the Tribunal to consider 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).
The nature of the harm to individuals or the Australian community should the Applicant to engage in further criminal or other serious conduct
Paragraph 6.3(4) of the Direction guides decision-makers with 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.”
[Tribunal underline for emphasis]
The Tribunal agrees with the Respondent’s contention that the core of this matter before the Tribunal is one which relates to the protection of the Australian community going forward[80]. This is such, due to the extremely violent nature of the Applicant’s offending, particularly with respect to the conviction for grievous bodily harm.
[80] Transcript 17 November 2020, page 116, paragraph 5.
With regard to the nature and harm that individuals or the Australian community may suffer should the Applicant engage in future criminal or other serious conduct, the Tribunal has had regard to the risk of the Applicant repeating such conduct. The Tribunal’s assessment of the Applicant’s risk of recidivism is detailed in further reasons of this decision with respect to the likelihood of the Applicant engaging in further criminal or other serious conduct.

The Tribunal acknowledges that there are assessments which refer to the Applicant’s risk of recidivism as being “low” (again, discussed more fulsomely in reasons which follow).
The Tribunal is of the view that in light of the Applicant’s extreme violent offending, the possibility of any risk of similar conduct in the future is unacceptable even if this risk is assessed as being “low”. The Tribunal is of the view that the application of the principle in paragraph 6.3(4) of the Direction is warranted. Repeated here, this principle 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]
The Tribunal is of the view that in circumstances where the Applicant’s offending has been of an extremely violent nature causing extensive injuries to his victim which could have been significantly life altering or life threatening, the Applicant is indeed a person who is capable of very significant harm.
The Tribunal finds that if the Applicant were to re-offend, the nature of that offending has the clear capacity to cause very serious physical and or psychological harm, indeed catastrophic harm, to a victim of the Australian community. Such a risk, in the Tribunal’s view, is not acceptable to the broader Australian community.
The likelihood of the Applicant engaging in further criminal or other serious conduct
The Tribunal has had regard to the pre-sentencing psychological assessment submitted by the Applicant from Professor Ian Coyle dated 28 September 2018, which states that the prospect of the Applicant re-offending was “minimal”, and that[81]:
“Considering the egregious psychosocial problems he would face were he to be removed to New Zealand this shall act as a most powerful incentive indeed for him to not commit any crime or other serious offences in the future. In my opinion, simply considering this factor, in isolation from all other, is unlikely in the extreme that he shall recidivate or commit any other serious offences.”
[Emphasis in original]
[81] Exhibit G1, G22, page 226, paragraph 51.
The Tribunal is of the view that the findings of Professor Coyle should be treated cautiously[82]. This is particularly so as (1) the Tribunal has not heard evidence from Professor Coyle, nor have his findings been subject to cross-examination; and (2) the concept that the Applicant will not commit any crime or other serious offence in the future is one which the Tribunal has serious reservations in affording measurable weight.
[82] Transcript 17 November 2020, page 117, paragraph 4.
The concept of zero risk was put to Dr Jacqueline Yoxall by the Respondent. Dr Yoxall appeared before the Tribunal on the first day of the hearing, and provided a Psychology Report dated 9 November 2020 following her assessment of the Applicant. This was commissioned at the request of the Applicant’s representation[83]. The Tribunal refers to the following submissions from Dr Yoxall with respect to the concept of zero risk under cross‑examination[84]:
“Respondent: …my reading of Dr Coyle’s report is that, with respect, it’s much less thorough than your assessment as it relates to particularly the HCR20 assessment. That would feed into a conclusion to the effect that there’s really no risk of reoffending, I take it?
Dr Yoxall: I can’t comment on Dr Coyle’s choice of words and conclusion. I hold the view - and there’s a fair amount of literature that supports this - that there’s no such thing as a zero chance of reoffending. It’s not a conclusion that we really take because anybody in the community at any point in time could potentially offend. So, I - I don’t hold the view that that’s - and that’s where I assess - that’s why I have - I don’t go there, to that conclusion.”
[83] Exhibit A2(2).
[84] Transcript 16 November 2020, page 39, lines 39 to 45.
With respect to considering the Applicant’s likelihood of engaging in further criminal or serious conduct, the Tribunal has had regard to the various risk assessments conducted by Dr Yoxall.
Dr Yoxall stated that she had formed the view in consideration of the Applicant’s offending that a structured professional judgement tool was appropriate in assessing the Applicant’s likelihood of re-offending, because, “… it allowed for a greater scope for consideration of some more idiopathic aspects of the case and in greater detail and greater consideration”[85]. The Tribunal will summarise each of the assessment’s within Dr Yoxall’s report:
(i)HCR-20[86]: “In consideration of these factors, Mr Kaye has a moderate loading on the historical scale risk items, and a low loading on the clinical scale risk items and risk management scale items. This indicates overall, a low risk of future violence. According to the Historical Clinical Risk Management- 20 Version 3. It should be noted that ‘low risk’ is the lowest risk possible on the HCR-20”. The Tribunal notes that Dr Yoxall qualified the use of the HCR-20 assessment, “So in that case, there was some loading on the historical items for Mr Kaye as you’d expect given the history, and then there was really low loading in terms of current clinical risk factors. So and then there’s consideration overall of what that particularly may indicate. So there’s aren’t measures where one abandons one’s clinical viewpoint. It’s still considered as one piece of broader information. My view was that although there was a moderate loading on the historical scale, the low loading of the clinical risk and the risk management really indicates overall, in my view, a low risk of future violence as I’ve described there”[87].
(ii)The Level of Service Inventory – Revised (LSI-R): “His score on the LSI-R was 11 (10.8th %ile) and is related to static (historical and unchangeable) risk factors, and dynamic (changeable) risk factors including, and a history of alcohol misuse. North American norms are commonly used in Australia for this measure. A score below 13 indicates a low risk of general reoffending and a low level of general rehabilitation needs. In the normative sample, approximately 11.7% who scored in this range reoffended (and were re-incarcerated) within 12 months”[88].
[85] Transcript 16 November 2020, page 31, lines 6 to 10.
[86] Exhibit A2(2), page 24, paragraph 6; and page 25, paragraph 1.
[87] Transcript 16 November 2020, page 31, lines 29 to 37.
[88] Exhibit A2(2), page 34, paragraph 7; and page 35, paragraph 1.
In conclusion, Dr Yoxall made the following finding in respect of the Applicant’s risk of recidivism, “All available information has been considered in estimation of Mr Kaye’s risk of reoffending including the nature of the offending, historical factors relevant to the case, dynamic risk factors relevant to the case, and current protective factors. In my opinion Mr Kaye’s risk of reoffending violently to be low. In my opinion his risk of general offending is low”[89].
[89] Exhibit A2(2), page 37, paragraphs 4 and 5.
The Tribunal accepts the assessment provided by Dr Yoxall which concluded that there was a low risk of the Applicant violently re-offending.
The Tribunal notes that the Applicant scored a moderate loading on the historical scale (HCR-20) used by Dr Yoxall, which is to be expected in the Tribunal’s mind as the Applicant is unable to change their past criminal offending history given the static factors used to arrive at this assessment.
The Tribunal acknowledges the circumstances of the Applicant’s offending where alcohol has played a part in three of the four occasions the Applicant has appeared before lawful authority prior to incarceration. The Tribunal notes Dr Yoxall’s report with respect to the substance use history of the Applicant, where the Applicant has “acknowledged a history of ‘binge drinking’” to Dr Yoxall[90].
[90] Exhibit A2(2), page 9, paragraph 3.
The Tribunal was perplexed as to the seeming inconsistencies between the reported history of binge drinking by the Applicant to Dr Yoxall, and the Applicant’s statement to the Respondent, that[91]:
“53. Before my offences against [redacted name – Ms X] and [redacted name – Mr Y], I only used to drink alcohol recreationally. It was something I did with my football mates on the weekend but otherwise I’ve never been one to drink during the week or have drinks at home. I’d been drunk a few times before on special occasions, like Christmas or birthdays, but never to the extent of what I’d consumed on the day of my GBH offence against [name redacted – Mr Y]”.
[91] Exhibit G1, G20, page 185, paragraph 53.
The Tribunal put this to the Applicant at the hearing and refers to the following exchange[92]:
[92] Transcript 16 November 2020, page 72, lines 39 to 47; page 73, lines 1 to 5; page 74, lines 6 to 23.
“Senior Member:       In other words how long did you engage in your definition of binge drinking if there was a history?
Applicant:                  Okay, how long did I engage in that history. You know, very intermittently from maybe say my mid-twenties or - well, maybe sometimes early twenties but it was very sporadically. I mean, yes, very sporadically, you know, binge drinking, drinking to a point where you just get drunk and there’s no special occasion I guess.
Senior Member:        So when you say ‘history of binge drinking’; are you referring to the history up until the offending in 2014?
Applicant:                  Yes, correct. Yes, because - - -
Senior Member:        So you engaged in that from your early to mid-twenties until the time of the offending in 2014; is that correct?
Applicant:                  ---Yes, intermittently, yes. Yes, very sporadically, you know, drinking to get drunk just didn’t appeal to me so it was – yes.
…
Senior Member:        … but on 20 April in your statements that you’ve provided to the Minister you stated that you only used to drink occasionally recreationally?
Applicant:                  ---Yes.
Senior Member:        Well, it says here:
Only used to drink alcohol recreationally. I’ve never been one to drink during the week or have drinks at home. I’d been drunk a few times before on special occasions?
Applicant:                  ---Yes, sure.
Senior Member:        You see the sentence, ‘I’ve been drunk a few times before on special occasions’; how do you reconcile that statement against your evidence where you mention that you engaged in binge drinking from your early to mid-twenties?
Applicant:                  ---Well, I guess I am just a little bit confused around the term ‘binge drinking’ because I honestly can’t - if I’m totally honest I can’t remember admitting to binge drinking to Dr Yoxall”.
The Tribunal refers to the following response from Dr Yoxall with respect to the HCR-20 model and the fact that in Dr Yoxall’s opinion that the Applicant did not have a diagnosable substance misuse disorder, which was coded as absent for the purposes of the model[93]:
“… Look, I considered this in depth, does he have a substance use disorder. And as you indicated, in the HCR-20, substance use and issues with substance use and substance use disorder is a factor. Now, the – my thinking on this is, and in accordance with the definition of what a substance use disorder is. From a time scale - so, substance use disorders are essentially where somebody continues to use a substance despite a range of particular effects, or consequences, of that substance use. When it’s - I think most of us is quite familiar with - substance dependence where it’s needed on a daily basis or a regular basis in order for the person to feel like they’re able to function. Binge drinking and then poor behaviour whilst binge drinking can certainly be sufficient to reach criteria for a substance use disorder. Particularly if the person continues to behave in an anti-social, violent or other way that gets themselves in trouble with police, relationships, work, finances and other things, and then they continue and persist in engaging in that binge drinking behaviour despite that. So, what I’m getting at is it’s not enough to have it occur once for (indistinct) substance use disorder. And to call it pathological from a substance use/misuse perspective. The question then becomes if we take into account this offending and we take into account that the prior offence was in 2014, does that, plus these two offences… the most serious offences, does that together collectively indicate that this person had a substance misuse disorder. It certainly is a potential that that could be argued. I viewed that not as the case - although it’s borderline - because there wasn’t - I didn’t have information that indicated that there was other indicators that binge drinking was causing a deterioration in function. So, clinically significant deterioration in function. But it certainly was part of my consideration of whether or not he had a substance use disorder. And I don’t know - I can remember thinking about the time frame between the public nuisance offence and then the recent events - the question is whether or not it’s repeated. And so one would then want to argue whether or not, from a time frame, there’s a bit of clinical judgment that fits into a diagnosis of a substance use disorder. … didn’t meet the criteria and it wasn’t diagnosable, because I formed the view there wasn’t enough to make it that. But I certainly did consider it.”
[Tribunal emphasis]
[93] Transcript 16 November 2020, page 34, lines 21 to 47; and page 35, lines 1 to 7.
The Tribunal accepts the opinion of Dr Yoxall which states that the Applicant does not have a substance abuse disorder with respect to their consumption of alcohol.
The Tribunal has had regard to the Applicant’s submission with respect to their risk of recidivism[94]:
[94] Exhibit A1, pages 10 and 11, paragraphs 41 to 43.
“41. On the evidence that is before the Tribunal, it is submitted that:
(a) the Tribunal can be satisfied that the Applicant is a low risk of reoffending; and
(b) any such risk is further mitigated by the intrinsic nature of his offending, which was triggered by very specific circumstances:
(i) a relationship which ended due to his (now) ex-partner’s infidelity;
(ii) the Applicant’s state of heartbreak, exacerbated by feelings of betrayal, after months of suspicion that his (now) ex-partner was being unfaithful; and
(iii) an uncharacteristic consumption of alcohol (and state of intoxication at the time of the index offending).
42. Since the index offending the Applicant has:
(a) initiated, engaged and received pertinent treatment from multiple psychologists pre-sentencing whilst on bail, including;
(i) completing an anger management counselling program administered by a clinical psychologist from July to September 2016; and
(ii) undergoing psychoeducation for anger management, Cognitive Behavioural Therapy, and relaxation skills training between August and December 2018, which only ceased due to the Applicant’s subsequent incarceration;
(b) obtained and retained employment as a disability support worker;
(c) volunteered for the Lotus Vana organisation, which holds activities for elderly and disabled people; and
(d) not reoffended whilst in the community until his ultimate incarceration on 20 December 2018, that is, a period of four years; and
(e) engaged in various rehabilitation programs whilst in detention.
43. It is submitted that the Tribunal can be satisfied that the Applicant has been tested in the Australian community as he was in the community for a period of four years without material incident. In relation to the breach of bail, it is submitted that the seriousness of this breach falls at the lower scale of seriousness by its very nature (failure to report), of which is reflected by the way in which the Court dealt with this charge, recording no conviction and not further punished.”
The Tribunal is of the view that the circumstances surrounding the Applicant at the time of his offending with respect to his family issues such as his father and mother’s health concerns are circumstances of life which are likely to arise again into the future. Additionally, there is no certainty that the Applicant will not encounter relationship issues into the future.
The Tribunal has had regard to the:
(i)psychological counselling undertaken by the Applicant;
(ii)treatment the Applicant has sought in respect to their mental health;
(iii)fact that the Applicant has been on bail for a period of four years with only one reported breach, for which the Applicant immediately turned himself into police when he realised that he forgot to comply with his bail undertakings;
(iv)circumstances surrounding the Applicant’s most serious offending;
(v)sentencing remarks of their Honour Judge Kent QC;
(vi)Applicant’s remorse and insight into their offending, including their apologies tended to the Court and victims;
(vii)employment record and community participation of the Applicant, including work in the disability sector and with the elderly.
In circumstances where the available evidence suggests the Applicant’s likelihood of re‑offending is considered to be low, the Tribunal agrees with the Respondent’s contention that this risk is not considered a far-fetched or fanciful risk[95].
[95] Exhibit R1, page 8, paragraph 34.
The Tribunal observes in the hearing that the assessment of the Applicant being of a low risk of re-offending violently would have likely been the same prior to their most serious offending in December 2014 had a similar assessment been undertaken. A hypothetical question was put to Dr Yoxall by the Respondent at the hearing. The Tribunal refers to the following exchange under cross-examination[96]:
“Respondent: Can I just pick up that point? Because, I suppose, the question that is always outstanding to me is that the person in Mr Kaye’s position, and somebody with the, you know, quite limited criminal history that he had until the time that he did offend, I mean presumably it would be fair to say, wouldn’t it, that using these sort of risk assessment tools - if you can imagine, and hypothetically, having engaged in this pre-emptively, I’m assuming would have demonstrated a very minimal risk that he would have committed an offence like the one he did on that night in December 2014. Would that be a fair assessment?
Dr Yoxall:That would be a fair assessment.”
[96] Transcript 16 November 2020, page 40, lines 1 to 9.
Without placing weight on the hypothetical scenario referred to above, the Tribunal is of the view that the circumstances of the matter before it are such that even if the Applicant is considered a low risk of re-offending, it is in the Tribunal’s mind a real risk. This is particularly with respect to the fact that the Tribunal has already found that the Applicant is a person who is capable of causing significant harm to others.
Conclusion: Primary Consideration A
The Tribunal has had regard to the provisions of paragraph 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 offending is viewed extremely seriously;
(ii)there is a low but real risk that the Applicant’s offending would likely pose significant harm to the Australian community (not precluding a risk of catastrophic harm to a future victim); and
(iii)that the risk posed by the Applicant re-offending is so serious that this risk posed is unacceptable.
In consideration of all the evidence and each of the relevant factors contained in the Direction, the Tribunal finds that Primary Consideration A weighs very heavily in favour of non-revocation.
Primary Consideration B: The Best Interests of Minor Children in Australia
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) of the Direction respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

The Tribunal refers to the submissions of the Applicant that, “It is submitted that this matter is not relevant to the Applicant’s circumstances”[97].
[97] Exhibit A1, page 13, paragraph 50.
The Tribunal has referred to the Personal Circumstances Form completed by the Applicant and submitted to the Respondent, which does not disclose any minor biological children, step-children, grandchildren, close nieces or nephews of the Applicant[98].
Conclusion: Primary Consideration B
[98] Exhibit G1, G13, pages 113 and 114.
The Tribunal is of the view that Primary Consideration B is not relevant to the present application in light of the factual circumstances which apply to the Applicant. This consideration is of no weight and is not determinative of any finding.
Primary Consideration C – The Expectations of the Australian Community
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that the Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community.
The Tribunal must also have regard to the Government’s views in this respect, and any overarching principles and guidance provided by the Direction.
Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that he or she should not hold a visa.
Factual circumstances relevant to Primary Consideration C
In assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following circumstances of the Applicant:
(a) The Applicant was born in the United Kingdom, migrated with his family as a young child to New Zealand, and arrived in Australia as a 17 year old in 1998.
(b) The Applicant has since spent the majority of his adulthood residing in Australia, noting the Applicant has made several overseas trips in recent years.
(c)   The Applicant has no minor biological children, step-children, grandchildren, close nieces or nephews.
(d) The Tribunal has had regard to the life circumstances of the Applicant which lead to their offending in December 2014 but observes that these are circumstances which are likely to arise again in the life of the Applicant into the future. Additionally, there is no certainty that the Applicant will not face relationship difficulties in the future.
(e) The Tribunal has had regard to the Applicant’s contribution to the Australian community, including their employment and volunteer work.
(f)    The Tribunal has had regard to the impact of the Applicant’s removal from Australia as it would apply to his family (particularly in circumstances relating to the health of his mother and father and that the role he has played in the past, which is currently being fulfilled by his sibling); in addition to the impact his removal will have on his friends and future employment opportunities.
(g) The Tribunal has had regard to the remorse shown by the Applicant on reflection of their offending, in addition to their efforts regarding rehabilitation following their offending.
(h) Prior to the Applicant’s extremely serious and violent offending in December 2014, the Applicant had comparatively minor offences on their offending record.
(i)    The Applicant appeared before the Southport District Court on 20 December 2018 and was convicted of:
(i)Grievous bodily harm, and was sentenced to a term of imprisonment of four years to be served concurrently;
(ii)Two counts of common assault, and was sentenced to a term of imprisonment of three months for each count, to be served concurrently; and
(iii)Wilful damage, and was sentenced to a term of imprisonment of three months to be served concurrently.
(j)    At the time of the Applicant’s offending in December 2014, he was 33 years of age, and in the Tribunal’s view, had reached maturation.
(k)   The Tribunal observes that there was considerable time between the Applicant’s offending in December 2014 and the sentences which were handed down in December 2018. During this time the Applicant was on bail, and only breached his bail undertakings on one occasion.
(l)    The Applicant has been convicted for numerous offences involving violence, perpetrated on the same victims, on multiple occasions.
(m) The Applicant’s offending on 29 December 2014 which lead to the conviction for grievous bodily harm in the Tribunal’s mind is viewed extremely seriously. The Applicant inflicted an extreme level of violence on the victim. The ensuing serious injuries on the victim only serve to highlight the impact of the extreme violence they had suffered. If the victim had not received additional treatment for his injuries a few months later, the evidence before the Tribunal is that this could have been life altering, or indeed life threatening.
(n) The Tribunal is of the view that in circumstances where the Applicant’s offending has been of an extremely violent nature, the Applicant is indeed a person who is capable of very significant harm.
(o) The Tribunal finds that if the Applicant were to re-offend, the nature of that offending has the clear capacity to cause very serious physical and or psychological harm, indeed catastrophic harm, to a victim of the Australian community. Such a risk, in the Tribunal’s view, is not acceptable to the broader Australian community.
(p) The Tribunal is of the view that even in circumstances where the Applicant may be considered a low risk of re-offending, this is still considered to be a real risk, particularly with respect to the fact that the Tribunal has already found that the Applicant is a person who is capable of causing significant harm to others.
The Evolution of the Australian Community’s “Expectations”
The Tribunal is mindful of the elements necessary to be balanced in any proper consideration and application of Primary Consideration C to the Applicant’s circumstances. Since the early 2000s, courts and tribunals have been defining formulae to assist a decision-maker in reaching a decision that accords with the expectations of the Australian community.
As a general proposition, Deputy President J Block, in 2003, said that one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501”[99].
[99] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction[100]. The learned Deputy President thought this paragraph leads a decision-maker to:
“102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…
…
103. Although ultimately a matter for judgment, the facts on which that judgment is made must be made on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgment that is ultimately made by a decision-maker must be able to be explained.”
[Tribunal’s underlining]
[100] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection[101]:
“In substance this consideration is adverse to any applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes.”
[Tribunal’s underlining]
[101] [2017] FCA 1466 at [76]-[77].
Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:
“…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…”
[Tribunal’s underlining]
In Afu v Minister for Home Affairs, Justice Bromwich said[102]:
“The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.”
[Tribunal’s underlining]
[102] [2018] FCA 1311 at [85].
In FYBR v Minister for Home Affairs, Justice Perry observed that[103]:
“It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...”
[Tribunal’s underlining]
[103] FYBR v Minister for Home Affairs [2019] FCA 500 paragraph 42. Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian Community: see FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authorities of YNQY and Afu establish that:
(a) The ‘expectations of the Australian community’ cannot be measured or determined as if it is a provable fact. It is an assessment of community values made on behalf of that community[104].
(b) The Tribunal cannot determine for itself what such ‘expectations’ are by reference to the Applicant’s circumstances or evidence about those expectations[105].
(c) The Government’s view in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks are the ‘expectations of the Australian community’, and the Tribunal should have due regard of that statement, if made[106].
(d) In assessing the weight attributable to Primary Consideration C, decision-makers can have regard to the principles appearing in paragraph 6.3 of the Direction, in particular sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision-maker[107].
Analysis – Allocation of Weight to this Primary Consideration C
[104] Afu at paragraph 85.
[105] FYBR v Minister for Home Affairs [2019] FCA 500 paragraph 42.
[106] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph 74; (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[107] Ibid, paragraphs 77 (Charlesworth J) and 105 (Stewart J).
The Tribunal notes the Applicant’s submission that, “In isolation, it is conceded that the Applicant’s index offending may be ‘abhorrent’ to the community. However, the objective seriousness of the index offending, which occurred in December 2014, must be weighed up with the Applicant’s circumstances which led to the index offending, his genuine remorse, rehabilitation efforts, and the low risk of reoffending after the index offending, at the present time in 2020”[108].
[108] Exhibit A1, page 14, paragraph 55.
The Tribunal is of the view that the Applicant’s extremely serious and violent offending which occurred in December 2014 with respect to the grievous bodily harm offence, for which he was sentenced to a term of imprisonment for four years, surely breached the expectations of the Australian community. The Tribunal is of the view that it would be regarded as abhorrent by the Australian community.
The Tribunal has previously addressed the Applicant’s circumstances, remorse and rehabilitation efforts in earlier reasons of this decision.
In ascertaining the weight attributable to Primary Consideration C, the Tribunal takes into account the following factors and findings:
a)    The Applicant has made an effort to positively contribute to the Australian community which is demonstrated through their employment and volunteer efforts.
b)    The Applicant has lived in the mainstream Australian community for their adulthood.
c)    The Applicant does not have minor biological children, step-children, grandchildren, close nieces or nephews.
d)    The removal of the Applicant from Australia will have an adverse impact on the Applicant’s family and friends.
e)    The Applicant has been convicted for several offences involving violence, perpetrated on the same victims, on multiple occasions.
f)     The Applicant’s most egregious offending (the grievous bodily harm offence) is considered extremely violent, and indicates that the Applicant is capable of extreme violence and causing significant harm to the Australian community.
g)    In circumstances where the Applicant were to re-offend, the nature of that offending has the clear capacity to cause very serious physical and or psychological harm, indeed catastrophic harm, to a victim of the Australian community. Such a risk, in the Tribunal’s view, is not acceptable to the broader Australian community.
h)    The Tribunal is of the view that even in circumstances where the Applicant may be considered a low risk of re-offending, this is still considered to be a real risk.
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 submitted that the consideration of international non-refoulment obligations is not relevant to their circumstances[109].
[109] Exhibit A1, page 14, paragraph 58.
This Tribunal has had regard to the directions outlined in 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, whilst reflecting the principles at 6.3. 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, 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 Tribunal has already stated in its reasons that the Applicant arrived in Australia as a 17 year old, spending their adulthood as part of the mainstream Australian community prior to their incarceration and subsequent detention (which did not occur soon after arriving in Australia).
The Tribunal has had regard to the many letters of support and statutory declarations from friends, family and support networks of the Applicant, which have been submitted for consideration, all seeking that the Applicant remain in Australia.
The Tribunal accepts that the Applicant’s family and friends largely all reside in Australia, and that his removal would cause emotional hardship. The Tribunal also accepts that the Applicant would like to resume live-in care and support with his mother should he be allowed to remain in Australia, as she has benefited from his support in the past. The Tribunal accepts that there is medical evidence to suggest that the Applicant’s mother’s mental health is fragile and could worsen should the Applicant not be able to remain in Australia.
Additionally, the Tribunal accepts that the Applicant would like to remain in Australia to have closer supervision of his father’s health and other needs; and to also provide some relief his younger sibling (Sarah Horniman) who has largely been fulfilling these roles in the Applicant’s absence (with the Tribunal accepting the hardship which she has faced as a result of the role she has undertaken with respect to managing their family).
The Tribunal accepts that there is a prospect that the Applicant would resume employment in the disability support sector. The Tribunal heard evidence from a previous employer, Ms Tracey Thomas, that an offer of future employment would be subject to some further inquiries regarding registration of the Applicant to work in this sector with respect to his criminal convictions. The Tribunal does observe that the Applicant had only worked in this role for approximately four months just prior to his sentencing in December 2018.

Tempering the Tribunal’s findings in respect of the Applicant’s family care needs, and future prospects of employment, is the fact that other people have been fulfilling these roles whilst the Applicant has been incarcerated and in immigration detention. Additionally, if the Applicant were deported, he would be able to maintain contact with his family, friends and other networks via electronic means, and they would be able to visit the Applicant overseas.
The Tribunal has had regard to the Applicant’s volunteer work with the elderly and the disabled, and the positive contribution this makes to the Australian community.
Additionally, the Tribunal has had regard to the paid employment of the Applicant, noting that he has largely held down a paid job (noting there were some periods of unemployment where the Applicant was in receipt of unemployment benefits from the Government).
Overall, in applying paragraph 14.2 to the factual circumstances of the Applicant, the Tribunal is of the view that this Other Consideration (b) weighs moderately in favour of revocation for the Applicant. Whilst the Tribunal has applied a moderate weight to this Other Consideration (b), it is by far outweighed by the very heavy 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 directs 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 observes that the Applicant has submitted that the impact on Australian business interests is not a relevant consideration with respect to the Applicant’s circumstances[110].
[110] Exhibit A1, page 16, paragraph 69.
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 directs 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.
The Tribunal has had regard to the Applicant’s submissions that, “Having regard to the totality of the evidence, there is no evidence to suggest that there might be any impact on the victims to the client’s criminal behaviour”[111].
[111] Exhibit A1, page 16, paragraph 71.
The Tribunal observes that the Respondent has tendered the Victim Impact Statement from Mr Y which was considered as part of the sentencing process with respect to the Applicant’s conviction for grievous bodily harm and referred to in the earlier reasons of this decision[112].
[112] Exhibit R2, pages 69 and 70.
Victims such as Mr Y whom have been subject to the violence of the Applicant may hold a view as to the impact of the Applicant’s continued presence in Australia, but it would be irresponsible for the Tribunal to entertain conjecture.
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 thus 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 has had regard to the Applicant’s submissions[113]:
“72. It is submitted that this matter is relevant as the Applicant will face a significant degree of practical, financial, and emotional hardship upon a return to New Zealand or the United Kingdom, due to his separation from his family and social, medical, and economic support.
73. The Applicant’s mental health would be put in a perilous state if he were returned to New Zealand or the United Kingdom because of the separation from his family, the mental strain it would place on his parents and siblings, and the financial strain it would place on the Applicant.
74. It is further submitted that this matter is relevant because the Applicant’s parents both suffer from significant health issues and are of advanced age. Given their poor health and limited funds, the return of the Applicant to either New Zealand or the United Kingdom would likely lead to the permanent separation.
75. In the premises, this other consideration should weigh strongly in favour of exercising the discretion to revoke the visa cancellation conferred by s 501CA(4).”
[113] Exhibit A1, page 17, paragraphs 72 to 75.
The Tribunal accepts that the Applicant has identified their mental health condition, and current medication as part of their Personal Circumstances Form to the Respondent[114]. The Applicant has stated that they are concerned about the impact that deportation to either New Zealand or the United Kingdom would have on their mental health. The Tribunal observes that the Applicant has not identified any other personal health issues. The Tribunal has had regard to the comments of Dr Yoxall with respect to the impact of deportation on the Applicant’s mental health, where she notes that this could potentially deteriorate. Although, she does acknowledge that the Applicant has demonstrated that he has an ability to manage this over the past six to seven years despite substantial stress and strain[115].
[114] Exhibit G1, G13, page 118.
[115] Exhibit A2(2), page 37, paragraph 6.
The Applicant is a relatively healthy 38 year old male and is in otherwise good health (aside from their mental health concerns). The Tribunal is of the view that should the Applicant be deported to either the United Kingdom or New Zealand, they would be able to access a similar level of heath care to that in Australia.
The Tribunal observes that although the Applicant has been aware that deportation was a risk in view of his extremely serious criminal offending for quite some time, they have not been able to identify a country of the two available to him where he may choose to reside.
In the case where the Applicant chose to go to New Zealand, the Tribunal refers to the decision of Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301, 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.”
In the instance where the Applicant chose to go to the United Kingdom, it is a country which is broadly comparable to Australia in terms of language, culture, additionally it has comparable access to employment, health services, education and social security.
The Tribunal observes that the Applicant has identified nine uncles and aunts in the United Kingdom, and two in New Zealand, as well as 11 cousins in the United Kingdom and four in New Zealand in their Personal Circumstances Form tendered to the Respondent[116].
[116] Exhibit G1, G13, page 115. Transcript 16 November 2020, page 45, lines 18 to 47; and page 46, lines 1 to 29.
The Tribunal does accept that should the Applicant be deported they would face some initial hardships in establishing themselves in either New Zealand or the United Kingdom, but this adjustment would be temporary and not insurmountable.
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 either New Zealand or the United Kingdom, 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 weight the Tribunal has found for both Primary Consideration A, and Primary Consideration C
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, are moderately in favour of 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 both Primary Consideration A and Primary Consideration C, which weigh very heavily and determinatively in favour of non-revocation.
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.
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.
Having reference to the Direction and to the totality of the evidence before the Tribunal, 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 the Tribunal finds as follows:
(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 is not relevant to the factual circumstances of the Applicant and is not determinative of any finding.
The Tribunal has previously outlined the weight attributable to the Other Considerations.
DECISION
Pursuant to s43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 3 September 2020 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

I certify that the preceding 183 (one hundred and eighty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member B.Pola

.................................[SGD].......................................
Associate
Dated: 30 November 2020

Date of hearing:

16 and 17 November 2020

Applicant:

Mr Christian Kaye, by video link

Solicitor for the Applicant:

Ms Jennifer Samuta, by video link

Samuta McComber Lawyers

Solicitor for the Respondent:

Mr David McLaren, by video link

Minter Ellison

“ANNEXURE 1 – EXHIBIT REGISTER”

Exhibit No.	Description
G1	Section 501 G-Documents (pages 1 to 417), received 29 September 2020
R1	Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 11), received 3 November 2020
R2	Respondent’s Supplementary Documents (pages 1 to 132), received 3 November 2020
R3	Incoming passenger cards of the Applicant, received 16 November 2020
A1	Applicant’s Statement of Facts, Issues and Contentions (pages 1 to 17), received 19 October 2020
A2	Applicant’s Further Evidence (pages 1 to 168), received 11 November 2020 1. Statement of Applicant (pages 1 to 8) 2. Psychologist Report (pages 9 to 46) 3. Booklet – Anger Management & Conflict Resolution (pages 47 to 54) 4. Letter of Support of Psychologist M Watkins (pages 55 to 56) 5. Medical Certificate for N Horniman (page 57) 6. Photos with J Black (pages 58 to 61) 7. Passport of J Black (page 62) 8. Passport of T Thomas (page 63) 9. Drug Diversion Booking 1 and 2 (pages 65 to 80) 10. Certificate of Attendance – SAMHI (page 81) 11. Certification of Completion – Anger Management & Conflict (page 82) 12. Certificate of Completion – Drug Diversion (page 83) 13. Letter to Magistrate – Drug Diversion Overview (pages 84 to 85) 14. Do It Program (pages 86 to 168)

[2020] AATA 4820

30 November 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Date of hearing:	16 and 17 November 2020
Applicant:	Mr Christian Kaye, by video link
Solicitor for the Applicant:	Ms Jennifer Samuta, by video link Samuta McComber Lawyers
Solicitor for the Respondent:	Mr David McLaren, by video link Minter Ellison