Kerr and Minister for Immigration and Multicultural Affairs (Migration) - [2024] AATA 3432

Kerr and Minister for Immigration and Multicultural Affairs (Migration) [2024] AATA 3432 (22 August 2024)
Division:GENERAL DIVISION
File Number: 2024/3826
Re:Daniel John Kerr
APPLICANT

AndMinister for Immigration and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member D. Cosgrave
Date of decision: 22 August 2024
Date of written reasons: 26 September 2024
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 6 May 2024 and substitutes it with a decision that the discretion under subsection 501(2) of the Migration Act 1958 (Cth) to cancel Mr Kerr’s visa is not exercised.
.............[SGD].............
Member D. Cosgrave
Catchwords
MIGRATION – discretionary cancellation of a visa – failure to pass the character test – whether the discretion to cancel the visa should be exercised – consideration of Ministerial Direction No. 110 – where Applicant has been previously warned about the impact of further criminal offending on his migration status – Tribunal finding risk of recidivism to be low – Tribunal finding level of rehabilitation to be considerable – where factors in favour of the Applicant outweigh those against him – Tribunal finding the discretion to cancel the visa should not be exercised – decision under review set aside and substituted.
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Cases
Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514 (4 May 2001)
Bainbridge and Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080
Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 492
Davis and Minister for Immigration and Border Protection [2017] AATA 1106
Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870
Dharma and Minister for Home Affairs [2018] AATA 2757
Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
GJJF v Minister for Home Affairs (Migration) [2019] AATA 930
GTPT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3246
Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126.
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
JKPM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 365
JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 168.
Kare Kare v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 498
Kayo Rerekura v Minister for Home Affairs (Migration) [2019] AATA 153.
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Murphy v Minister for Home Affairs [2018] FCA 1924
Pavey and Minister for Home Affairs [2019] AATA 4198
QKVH v Minister for Home Affairs [2020] AATA 4431
Rahman v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888
Rana v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1327
Roberts v Minister for Home Affairs (Migration) [2018] AATA 3970
Ross v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1773
Saleh v Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Walker v Minister for Home Affairs [2020] FCA 909
Secondary Materials
Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024)
REASONS FOR DECISION
Member D. Cosgrave
26 September 2024
INTRODUCTION

Mr Kerr seeks review of the Minister’s (the Minister or the Respondent) delegate’s

6 May 2024 decision (the reviewable decision) to discretionally cancel his Class TY Subclass 444 Special Category (Temporary) visa (the Visa).[1]
[1] Exhibit R1: G4, page 21.
The hearing was held by in Brisbane on 15, 16 and 19 August 2024. Mr Kerr represented himself. Ms Tattersall represented the Respondent. The Tribunal specifically wishes to call out and acknowledge Ms Tattersall’s preparatory work and her advocacy which greatly assisted the Tribunal.
This was an expedited matter. Under section 500(6L) of the Migration Act 1958 (Cth) (the Act), the Tribunal was effectively required to make a decision by 22 August 2024 . On 22 August 2024, the Tribunal met its 84-day statutory obligation[2] by providing a short form decision in which it set aside the decision under review and substituted a decision to revoke the discretionary cancellation of Mr Kerr’s Visa.[3] The Tribunal now gives its reasons for its decision.
[2] Pursuant to s 500(6L) of the Migration Act 1958 (Cth).
[3] Khalil v Minister for Home Affairs (2019) 271 FCR 326 [41]–⁠[48].
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
FACTS
Mr Kerr is a 41 year-old[4] New Zealand citizen who has resided in Australia since May 1998.
[4] Exhibit R1: G5, page 22.
On 16 May 2006, a delegate of the Minister notified Mr Kerr that the Minister was examining whether there were grounds to cancel his visa under section 501 of the Act.[5] Mr Kerr responded to that notice and on 5 July 2006, Mr Kerr was notified that a delegate of the Minister had decided not to exercise their discretion to cancel the his Visa. Mr Kerr received a formal warning that any further conviction would lead to the question of whether visa cancellation should be reconsidered.[6]
[5] Exhibit R1: G19, pages 184–185.
[6] Ibid.
On 24 January 2017, Mr Kerr's Visa was again cancelled under section 501(3A) of the Act.[7] The cancellation occurred because His Honour Magistrate Kilmartin of the Beenleigh Magistrates Court had sentenced Mr Kerr to concurrent terms of imprisonment of 12 months after convicting him of ‘Possess shortened firearm, Authority Required to Possess Explosives, Possessing Dangerous Drugs, Possession of Implements That Was Being Or Was Used In Relation To Particular Offences, Possessing Anything For Use In The Commission Of Crime Defined In Part 2 and Fail To Properly Dispose Of Needle And Syringe.’ The sentences meant that Mr Kerr had a 'substantial criminal record' as defined in sections 501(6)(a) and 501(7)(c) of the Act.
[7] Exhibit R1: G20, pages 186– 191.
On 1 March 2017, a delegate of the Minister found that the power under section 501CA(4) to revoke the mandatory cancellation of Mr Kerr’s Visa was enlivened.[8]
[8] Exhibit R1: G21, pages 192–194.
On 13 April 2018 His Honour Magistrate Cosgrove[9] of the Brisbane Magistrates Court convicted Mr Kerr of ‘Possess tainted property, Possessing dangerous drugs, Unlawful possession of weapons category A, B or M, Possess Utensils or pipes etc. for use and Possessing anything used in the commission of crime defined in part 2.’ For each conviction Magistrate Cosgrove sentenced Mr Kerr to concurrent terms of six months imprisonment, to be suspended for two years.
[9] Not a known relative of the Tribunal Member hearing this matter.
On 25 October 2021, Mr Kerr was notified of the Intention to Consider Cancellation (NOICC) of his Visa under section 501(2) of the Act.[10] Mr Kerr subsequently made representations as to why the discretion under section 501(2) of the Act to cancel his Visa should not be exercised.[11]
[10] Exhibit R1: G16, pages 175-180.
[11] Exhibit R1: G22, pages 195–198; G23, pages 199–202; G24, pages 203–214.
On 10 March 2022 Mr Kerr was convicted of additional offences.[12]
[12] Exhibit R1: G6, pages 42-43.
On 6 May 2024, the delegate made the reviewable decision relying upon the operative effect of sections 501(6)(a) (substantial criminal record) and 501(7)(d).[13] On 30 May 2024, Mr Kerr was notified of the delegate's decision.
[13] Exhibit R1: G4, 21; G5, pages 22–40.
A table of Mr Kerr’s offending history is annexed at Annexure B.
LEGAL FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and Section 500 of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Under section 501(2) of the Act, a delegate of the Respondent may cancel an applicant’s visa if the delegate:
(a)reasonably suspects that the applicant does not pass the character test; and
(b)the applicant is unable to satisfy the delegate that they pass the character test.
THE TRIBUNAL’S TASK
Mr Kerr’s Visa was cancelled pursuant to section 501(2) of the Act on the basis that he had failed the character test once the delegate considered the combined operative effect of sections 501(6)(a) and 501(7)(c) of the Act. The Tribunal is satisfied, based on Mr Kerr’s criminal record, that he does not pass the character test set out in section 501(6) of the Act.[14]
[14] Exhibit R1: G6.
For present purposes, the Tribunal’s task is set out in section 501(2) of the Act.[15] When the Tribunal assesses and considers the factors weighing for and against whether there is another reason to set aside a visa cancellation, section 499(2A) of the Act requires it to comply with Direction 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[16]
[15] See Minister for Immigration and Border Protection v Makasa [2021] HCA 1.
[16] See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at para [38].
Paragraph 5.2 of the Direction sets out principles that provide a framework within which the Tribunal should approach its task.[17]
[17] Paragraph 5.2 of the Direction.
Paragraph 6 of the Direction provides that, informed by the above principles, a

decision-maker must consider the Primary and Other considerations described in Paragraphs 8 and 9 of the Direction where relevant to their decision making.
The Direction requires the Tribunal to take the primary and other considerations into account. Primary Consideration 8.1 is generally to be given greater weight than other primary considerations.
Paragraph 8 of the Direction provides the following primary considerations:
·the protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the strength, nature and duration of ties to Australia;
·the best interests of minor children in Australia; and
·the expectations of the Australian community.
Paragraph 9 of the Direction identifies the other considerations to be assessed where relevant:
·the legal consequences of the decision;
·the extent of impediments if removed; and
·the impact on Australian business interests.
The Tribunal is not precluded from finding that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. This depends on each matter’s specific circumstances.[18] The weighing process is substantively left to the individual decision maker exercising the relevant power under section 501 of the Act.[19]
[18] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[19] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
The considerations in paragraphs 8 and 9 of the Direction that are relevant in this matter are:
·Primary Consideration 1 – the protection of the Australian community from criminal or other serious conduct.
·Primary Consideration 2 – whether the conduct engaged in constituted family violence.
·Primary Consideration 3 – the strength, nature and duration of ties to Australia.
·Primary Consideration 4 – best interests of minor children in Australia.
·Primary Consideration 5 – expectations of the Australian community.
·Other Consideration (b) – extent of impediments if removed.
EVIDENCE
The following is an overview of the evidence tendered or adduced before the Tribunal. The evidence referred to below includes documentary evidence collated for the purposes of section 501G of the Act, further documents tendered by Mr Kerr and the Respondent and oral testimony given by Mr Kerr, Ms F and Ms DK.
Documentary evidence
The Tribunal received written evidence during the hearing, which is attached to this Decision and marked ‘Annexure A’.
Credibility of the Witnesses
The Tribunal observed Mr Kerr closely as he gave his testimony. His testimony was convincing, persuasive and at times apparently painful to him. This was particularly the case when he was describing his drug addiction. His answers to questions displayed insight and a great deal of remorse. He was not well-spoken but was articulate and gave answers that appeared honest. He was a credible witness.
The Tribunal acknowledges Ms Tattersall’s closing submissions that it should have serious concerns about Mr Kerr’s credibility due to his long history of dishonesty, particularly at times in the past when he was trying to avoid the consequences of his criminal behaviour. The Tribunal agrees that Mr Kerr’s historical actions would lead to a different conclusion as to his credibility. However, the Tribunal is concerned with what arose from his testimony and in cross-examination before the Tribunal in making its current assessment of his credibility.
Except for some specific instances when her demeanour and presentation changed and her answers appear to be honestly given (which instances are addressed and described below), Ms DK did not come across as a wholly credible witness. The Tribunal was especially perturbed by the lack of detailed information in her answers to questions about her alleged cancer diagnosis, surgery and treatment.
Ms F, Ms DK’s mother, was a very credible witness who gave direct answers to even intrusive and personal questions. Her testimony impressed the Tribunal.
PRIMARY CONSIDERATIONS
Primary Consideration 1: protection of the Australian community from criminal or other serious conduct
When considering this Primary Consideration 1, the Tribunal must keep in mind that the Australian Government’s highest priority is the Australian community’s safety. The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Serious conduct includes behaviour or conduct that does not constitute a criminal offence. The Tribunal should and has considered the nature and seriousness of Mr Kerr’s conduct to date.
The Tribunal must also have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens with the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(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.
Paragraph 8.1.1 The nature and seriousness of Mr Kerr’s conduct to date
Ms Tattersall contended that Mr Kerr’s criminal and other conduct should be viewed very seriously based on the following factors outlined in the Direction:[20]
·Domestic Violence Offences: Mr Kerr has a history of domestic violence, including an incident on 8 April 2012 where he tasered his then partner, Ms SP, which resulted in a domestic violence order. He later admitted to further acts of family violence against his current partner, Ms DK, including threatening her with a gun and killing her, even though no conviction or sentence was imposed. The Respondent considers these actions constitute serious family violence.
·Violent Crime Conviction: Mr Kerr has been convicted of assaulting a police officer.
·Imprisonment and Drug Offenses: Mr Kerr has been sentenced to imprisonment for various drug-related offences, possession of firearms, and unlawful use of motor vehicles, further demonstrating the seriousness of his offending behaviour.
·Escalating Criminal Behaviour: The Respondent highlights a trend of increasingly serious and frequent offending in Mr Kerr’s criminal history, particularly drug-related offending. Mr Kerr continued to offend despite formal warnings in 2006 and 2017 about the consequences for his migration status.
·Association with Outlaw Motorcycle Gangs (OMCGs): Mr Kerr has documented associations with criminal motorcycle gangs, such as the Bandidos and Mongols, which are known for illegal activities. Despite his denials of recent affiliations, he admitted to previous gang involvement.
[20] Exhibit R2: [19] – [31].
Overall, the Respondent contends that the cumulative effect of Mr Kerr 's repeated criminal offenses, acts of violence, disregard for formal warnings, and association with OMCGs must be regarded as very serious conduct.
Mr Kerr acknowledged in his statements that he has a significant criminal history, attributing it largely to his struggles with drug addiction.[21] Ms Tattersall drew out an overview of his criminal history in her cross-examination which included the following:[22]
‘Ms Tattersall: So looking at your criminal record, it appears that other than for about a two-year period between August 2000 and February 2016, you essentially consistently offended basically from 2001 until 2020?
Mr Kerr: Aside from those breaks, yes.’
[21] Exhibit A1; Exhibit R1: G22 and G23.
[22] Transcript, page 51, lines 21-24 and see also pages 34-35, 54-61.
Tribunal’s consideration: The nature and seriousness of Mr Kerr ’s conduct
When assessing the nature and seriousness of Mr Kerr’s criminal offending or other conduct to date, the following elements of paragraph 8.1.1(1) are relevant:
·the nature and details of his Index Offence;
·the sentences imposed for his Index Offence;
·the frequency of his offending and the trend of increasing seriousness;
·the cumulative effect of his offending; and
·Whether he re-offended after being formally warned about the consequences of further offending in terms of his visa status.
Mr Kerr’s offending history is long and extensive. It includes – in no specific order – bail breaches, obstructing police, assaulting police, drug offences, common assault, unlawful possession of stolen property, unlawful use of a motor vehicle, possessing explosives, fraud, possessing shortened firearms, forgery and the unlawful possession of weapons.
His offending history enlivens the following paragraphs in the Direction:
·Paragraph 8.1.1(1)(a)(iii); and
·Paragraph 8.1.1(1)(b)(ii).

This means that some of his offending should be viewed very seriously, while his offending against police is to be viewed as serious.
Mr Kerr clearly and repeatedly offended after being warned by the Respondent of the adverse consequences to his Visa status should he continue to do so.
There are allegations and some evidence that Mr Kerr was associated with organised motorcycle gangs[23], but his testimony effectively rebutted these.[24]
[23] Exhibit R2; [30].
[24] Transcript; page 11, lines 23-45 and page 12, lines 1-13 and lines 28-46.
There is no direct evidence before the Tribunal as to the impact of Mr Kerr’s offending on his victims. It is reasonable to assess that on the basis of his long criminal history that more than one individual suffered as a consequence of his actions.
The Tribunal acknowledges Mr Kerr’s terms of custodial imprisonment. These should be viewed as an objective measure of the seriousness of the offences involved.[25] His longest sentences were for 15 months (in 2013) and for two years (in 2005; suspended after eight months).
[25] Pavey and Minister for Home Affairs [2019] AATA 4198 at [44].
Having assessed Mr Kerr’s criminal record, the Tribunal considers and characterises it as both frequent and generally serious throughout the long history of his offending. The cumulative impact of Mr Kerr’s repeated offending over this long history can be reasonably considered to be substantive and serious.
Tribunal’s finding: The nature and seriousness of Mr Kerr ’s conduct
The Tribunal has sought above to apply and consider each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction.
With reference to the relevant and applicable paragraphs referred above and after a holistic consideration of Mr Kerr’s offending, the Tribunal finds that it should be characterised as very serious.
Paragraph 8.1.2 risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Respondent contends here that that Mr Kerr remains an unacceptable risk to the Australian community due to the potential harm his reoffending could cause. If Mr Kerr were to engage in similar offenses related to drugs, dishonesty, or unlawful vehicle use, it could result in psychological and financial harm to the community. If he committed further acts of domestic violence or violent crimes against police officers, these actions could cause physical, psychological, and financial harm.
Despite Mr Kerr’s claims of rehabilitation, including cutting ties with his antisocial peers and engaging in community work, the Respondent identifies several concerns as to the risk of his re-offending and its consequences:
·Breach of bail and probation: Mr Kerr has a history of breaching bail conditions, forging medical certificates to avoid obligations, and repeatedly testing positive for drugs, even while on probation.
·Drug addiction: Mr Kerr’s drug addiction has led to multiple instances of drug use while on probation or in custody, posing ongoing risks.
·Domestic violence and violence against the police: Based on his past conduct, there is a risk of future acts of domestic violence or violent crimes against police officers, potentially causing physical, psychological, and financial harm to the Australian community.
·Risk of reoffending: Although Mr Kerr has undergone periods of refraining from offending, he has previously relapsed after positive intervals. His criminal conduct continued despite the presence of family, a partner, and children, indicating that his support network did not deter him from offending.
·Failure to sever ties with negative influences: Despite claiming at one stage to have cut off antisocial peers, Mr Kerr continued associating with individuals involved in drugs shortly after making this claim.
·Lack of insight into victim impact: Mr Kerr’s expressions of remorse focus more on the impact of his actions on himself and his family rather than on his victims, demonstrating limited insight into the consequences of his criminal behaviour.
·Lack of deterrents: Past encounters with law enforcement and his family responsibilities have not prevented Mr Kerr from offending.
The Respondent acknowledges Mr Kerr’s participation in community service, his engagement with new prosocial friends and his involvement in rehabilitation programs and notes that he has made efforts to clear his State Penalties Enforcement Registry (SPER) debt.
Given Mr Kerr’s history, ongoing risk of reoffending, and the serious harm his future offending could cause, the Respondent contends that the primary consideration weighs heavily in favour of cancelling Mr Kerr’s Visa.
Mr Kerr’s arguments on his risk of re-offending are summarised from his statements and testimony as follows:
·Rehabilitation efforts: Mr Kerr highlights various efforts he has made to turn his life around. These include volunteering, taking meals to the homeless, participating in support groups, and attending church regularly. He also completed courses on relapse prevention, anger management, child safety, and drug and alcohol abuse. He notes his strong ties to his church community.
·Commitment to a law-abiding life: Mr Kerr stresses his commitment to living a positive, law-abiding life. He mentions distancing himself from negative influences, including those involved in criminal activities, and indicates his willingness to comply with any supervision orders if released. He refutes any ongoing ties to outlaw motorcycle gangs (OMCGs), explaining that his previous associations were based on fear and misunderstanding.
In cross-examination, Ms Tattersall clarified Mr Kerr’s past record of relapses and re-offending:[26]
[26] Transcript; page 110, line 33 – page 113, line 47.
‘Ms Tattersall: Now, in addition to the numerous opportunities that you’ve been given to engage with rehabilitation, both yourself and people who have provided statements in support of you, have historically referred to changes they’ve seen in you and that you’re going to change your behaviour?
Mr Kerr: Yes.
Ms Tattersall: In November 2016 – sorry, November 2006 – you provided a letter in support of your visa not being cancelled. And that’s at page 141 of exhibit R3. And in that letter you made a number of assertions, particularly that since you were incarcerated in November 2005 is the first time and the right time to break your offending cycle and think about your past behaviour. And you say that, ‘Since then, I have put my best efforts to stop my offending behaviour and abstain from drugs. I am now attending Narcotics Anonymous meetings’?
Mr Kerr: Yes.
Ms Tattersall: You refer to the de facto relationship at that time?
Mr Kerr: Yes.
Ms Tattersall: And you refer to not wanting to go back to New Zealand because you would be deprived of your family’s support and comfort, and you will lose the prospect of starting a family?
Mr Kerr: Yes.
Ms Tattersall: You also referred to having being breach-free and incident-free during your period of incarceration, and that you would continue to live a positive lifestyle upon release in the Australian community?
Mr Kerr: What was the date on that one, sorry?
Ms Tattersall: This is the same letter. This is at page 441 of the exhibit R3. And the date is May 2006?
Mr Kerr: 443 did you say?
Ms Tattersall: 442?
Mr Kerr: Yes.
Ms Tattersall: You then refer to having undertaken some courses, and you say ‘Considering the fact that I have reformed and rehabilitated during the time of my incarceration, the Australian community would not (indistinct) to see me sent back to New Zealand and face separation from my family members and friends?
Mr Kerr: Yes.
Ms Tattersall: So you wrote that in May 2006. You were then advised that your visa wouldn’t be cancelled in July 2006. And as I understand it, upon – your evidence was that upon leaving prison you resumed your drug use?
Mr Kerr: Yes.
Ms Tattersall: You then committed a further offence less than a year later on 23 February 2007. And that was possessing dangerous drugs?
Mr Kerr: Yes.
Ms Tattersall: In March 2008 you then referred to corrective services about having a motivation to abstain from drugs. And you talked about being on the methadone program?
Mr Kerr: Yes.
Ms Tattersall: In February 2009 you referred to – you reported to protective services – you referred to the fact that you were very pleased by the fact that you had gotten through the order. It was the first time you had successfully completed an order. You saw this as further proof that you were now able to live a prosocial lifestyle, which was of great importance to you as a father?
Mr Kerr: Yes.
Ms Tattersall: In September 2012 you denied any use of illicit substances, saying that you abstained for a long time, and you are reported to advise corrective services that you advised a friend of yours that you had been released from jail and asked to live with him. However, you were told no. You explained that you wanted to live a crime-free life and did not want to jeopardise anything with your current housemates who were not antisocial peers?
Mr Kerr: Yes.
Ms Tattersall: That was on 12 September 2012. You then committed an offence a few weeks later on 27 September 2012, being the offence I took you to earlier, the dangerous operation of a motor vehicle, failing to stop, and unlawful use of a motor vehicle?
Mr Kerr: Yes.
Ms Tattersall: In 2016 then, at sentencing, the court was told that you did not have any issues with drugs at that time, and that was on 2 December 2016. But again, as I understand your evidence previously, was that upon immediately being released you resumed your drug use?
Mr Kerr: Was that after the date we lost the children?
Ms Tattersall: Yes?
Mr Kerr: Yes.
Ms Tattersall: And you then were convicted of an additional offence, or next convicted of an offence on 9 June 2017. That was in relation to possessing methamphetamine?
Mr Kerr: Yes.
Ms Tattersall: In 2017 then, your visa was cancelled. I think you were advised of that cancellation on 24 January 2017. And you provided documents in support of that cancellation being revoked?
Mr Kerr: Yes.
Ms Tattersall: And a number of people provided statements in support of that revocation request?
Mr Kerr: Yes.
Ms Tattersall: And a number of those supporting statements referred to, at that time, changes in your behaviour?
Mr Kerr: Yes.
Ms Tattersall: Your mother-in-law at that time stated that you’d learned a lot from your recent experiences, had first-hand – seen first-hand how much of a negative effect the consequences of your actions are having on your family, and that you realised that if you were fortunate enough to remain with the only family you had, you needed to make a clean break?
Mr Kerr: Yes.
Ms Tattersall: Another support, Mr Daily, referred to you having expressed your deep regret and shame for your past offences, and that you desperately wanted to get your life back on track?
Mr Kerr: Yes.
Ms Tattersall: And Ms Hennessey referred to you having displayed remorse and the need for change, and that you had no desire to repeat the mistakes you’d made in your life, and only to move forward?
Mr Kerr: Yes.
Ms Tattersall: She also referred to your wife being the most amazing, positive support in your life. So, they were all submitted in January and March 2017. You were advised that the cancellation of your visa was revoked on 1 March 2017. You were paroled on 6 March 2017, and as previously discussed, you immediately went back to using drugs and committed the next offence on 9 June 2017, being possessing dangerous drugs?
Mr Kerr: Yes.
Ms Tattersall: It seems through that history that the tribunal can have absolutely no confidence that you are now rehabilitated or have any confidence in any of the support letters that people have provided on your behalf?
Mr Kerr: The support letter from Mr Daily, I ended up going to the town where he lived which is Woongarra, on the promise of a job, and he was heavily into drugs. And so I realised straight away that that was going to fall through.
Tribunal: That doesn’t, I think, doesn’t quite go to Ms Tattersall’s question.
Ms Tattersall: It doesn’t. I’ve taken you through quite a number of statements provided in support of you suggesting that you’d changed your ways in 2017. And a number of claims from yourself from 2005, essentially to now, where you’ve stated that you were going to change your ways. And your history has shown that you haven’t?
Mr Kerr: On numerous times I did intend to change my ways, and it wasn’t until the most recent time that I realised that I had to cut everyone completely from my life and start fresh, change my Facebook, change all contact whatsoever. I changed my email, my SIM card, we moved and just completely started again. And that was when I actually really realised that was the only way to successfully change my lifestyle, was to completely rid everything that was linked to my old life. Some good friends, but a lot of them were bad.
Ms Tattersall: And you had essentially known that your visa was being considered for cancellation again since October 2021, haven’t you?
Mr Kerr: Yes.
Ms Tattersall: So would it be right to say that the limited rehabilitation that you have undertaken since that period is directed towards your visa cancellation?
Mr Kerr: No. I had cleaned my life up before I’d gone to jail at that time. That everything else, I just added to that to keep from falling back into that cycle. It was upon my release that I engaged with DrugARM and received positive feedback from how well I was doing there, and not to mention my parole officer showed she had a lot of faith in my, which gave me a sense of accomplishment. And once I started volunteering at the ministry (indistinct) a way to pay off my SPER. That’s when I found that finding God was even more of a major step to not want to go back that way. And hence why I just continued to use every moment of my spare time being involved in church activities and just associating with those people as well as my family.
Ms Tattersall: Now, as I understand it, some of the reports in – I think this is from yourself and also your wife – suggests that your way of not reoffending is essentially to not leave the house wherever possible?
Mr Kerr: That was before my incarceration. That was when I was freshly cut everyone from my friend group, from my phone, everything, changed my number. And I tried to keep myself indoors to eliminate the risk of running into people just when I was still going through that early stage of just having nothing to do with anyone and focusing on moving forward.’
Ms Tattersall also highlighted Mr Kerr’s appalling driving offence record, which the Tribunal acknowledges with the qualification that there has been a considerable effluxion of time since his last driving offence and the present.[27]
[27] Annexure B – Table of Offences and Exhibit R3; S46, page 195-197.
Mr Kerr gave extensive and detailed testimony of his relatively recent (since 2022) engagement with the United City Church in Ormeau, in addition to the documentary evidence relating to this.[28] He also provided detailed evidence about his involvement with a charity group that distributes food to the homeless. [29] While it appears that he initially started with this group under an arrangement to pay off his SPER debt, he gave evidence, supported by documentary evidence[30], that he worked far more than the minimum required hours before entering immigration detention but also drew upon his own drug addiction experiences to locate and assist those in need.
[28] Transcript; page 24, line 6 – page 25, line 45 and page 114, lines 1- 24.
[29] Transcript, page 31, lines 15 – 28.
[30] Exhibit R1: G24, page 214.
His testimony regarding the strength of ties to his father, Ms DK and Ms DK’s children was extensive and detailed, as was the testimony from both Mr Kerr and Ms DK on how he had changed his life to avoid former antisocial associates and forge new prosocial contacts before entering immigration detention.
In considering this part of the Direction, the Tribunal should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.[31]
[31] Paragraph 8.1.2(1) of the Direction.
The Tribunal must also have regard to the following relevant factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.[32]
[32] Paragraph 8.1.2(2) of the Direction.
In assessing the risk to the Australian community and the nature of the harm to individuals or the Australian community were Mr Kerr to engage in further criminal or other serious conduct, the Tribunal has considered the evidence and the parties’ submissions in relation to paragraph 8.1.2.
Tribunal’s finding: the nature of the harm to individuals or the Australian community were Mr Kerr to engage in further criminal or other serious conduct
The Tribunal finds that future repetitions of criminal or serious conduct of the type Mr Kerr has previously engaged in could result in serious and material physical and psychological harm to the potential individual victims and to the Australian community.
Tribunal’s Consideration: the likelihood of the non-citizen engaging in further criminal or other serious conduct
The Tribunal has holistically considered the totality of the oral testimony and documentary evidence that is relevant to or addresses the likelihood or risk of Mr Kerr engaging in further criminal or serious conduct.
The clear legislative intention regarding the threshold is whether there is ‘a’ risk.[33] The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) specifically removed the word ‘significant’ from section 501(6)(d) leaving it as ‘a’ risk.[34] On this occasion, the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 stated (at [46]):
‘The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.’
[33] See the discussion in GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48] - [52].
[34] See the discussion in Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
The issues surrounding the consideration of risk under section 501(6)(d) of the Act, from which paragraphs 8.1.2(1) and (2) are drawn, have been extensively considered by the Tribunal and superior courts.[35]
[35] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (QKVH 2020); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.
While there is an automatically implied risk of reoffending — as is the case with all offenders — the Tribunal must determine the realistic level of risk posed by Mr Kerr at the time of its decision,[36] where the ‘possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk [is], or whether the risk should be ‘tolerated’[37], such that it would be considered an unacceptable risk.[38]
[36] Direction; paragraph 8.1.2(2)(b)(ii).
[37] Murphy v Minister for Home Affairs [2018] FCA 1924 (Mortimer J) (‘Murphy’) [37].
[38] Direction; paragraph 8.1.2(1).

In assessing this consideration, the Tribunal acknowledges that the Australian community may necessarily be expected to accept a degree of risk associated with the holding of visas by non-citizens. However, as Senior Member Taylor observed in Dharma and Minister for Home Affairs,[39] the degree of risk that may be acceptable is ‘inversely related’ to both the likelihood of reoffending and the apprehended significance of the harm that may be caused by such further offending.
[39] Dharma and Minister for Home Affairs [2018] AATA 2757, at [26].
In this context, paragraph 8.1.2(1) of the Direction introduces the notion of an ‘unacceptable risk’; that is, a risk that the community should not be required to tolerate regardless of other considerations. In Tanielu v Minister for Immigration and Border Protection,[40] Her Honour Justice Mortimer (as she then was) drew upon authorities related to other protective schemes to explain that, to determine an ‘unacceptable risk’, a decision-maker must evaluate both the potential consequences of further offending and the likelihood that such consequences will manifest.
[40]Tanielu v Minister for Immigration and Border Protection [2014] FCA 673, at [89] - [104].
Relevantly, in Minister for Immigration and Ethnic Affairs v Baker,[41] it was stated that the reference to ‘criminal conduct’ is:
‘…not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor’s character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material.’
(Emphasis added)
[41] (1997) 73 FCR 187 at 194.
In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal), the Full Court of the Federal Court stated at [2]:
‘… Section 501(6)(d)(i) provides that a person does not pass the character test if
“in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would ... engage in criminal conduct in Australia”. The section requires an evaluative judgment by the decision-maker, in the present case the Minister personally, as to whether the decision-maker is satisfied that there is such “a risk.” Then, if the decision-maker is so satisfied, the decision-maker has a discretion to refuse to grant a visa to the person.’
(Emphasis added)
In Guo Chief Justice Brennan, Justices Dawson, Toohey, Gaudron, McHugh and Gummow of the High Court observed as follows, at (574)-(575):[42]
‘The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.’
(Emphasis added)
[42] QKVH and the Minister for Home Affairs (‘QKVH 2020’) [2020] AATA 4431 (2 November 2020) at [5].
Her Honour Justice Mortimer (as she then was) explored the notion of risk and its nexus to future possibilities in Murphy v Minister for Home Affairs [2018] FCA 1924 (Murphy) at [37], where Her Honour noted:[43]
‘That is, part of the Tribunal’s task was to decide not only whether the Applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.’
[43] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
Consequently, by applying the reasoning in Sabharwal to this matter, the Tribunal’s task is to assess whether there is ‘a risk’ or a likelihood of Mr Kerr engaging in further future criminal or serious conduct, with one consideration being the past events referenced in Guo and guided by Murphy.
When determining whether there is a risk, the High Court’s observations in Gou[44] are pertinent, as are the decisions in GJJF[45] and Roberts[46], when determining if Mr Kerr poses ‘more than a minimal or trivial likelihood of risk,’[47] all ‘available information and evidence’ pertaining to the risk of Mr Kerr re-offending, and the ‘rehabilitation achieved’ by Mr Kerr must be considered.
[44] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (CJ Brennan, JJ Dawson,Toohey, Gaudron, McHugh and Gummow) (‘Guo’).
[45] GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (‘GJJF’).
[46] Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 (‘Roberts’).
[47] GJJF, (n 52) [48]–[52]; Roberts, (n 53) [27].
As observed in GTPT[48], the Tribunal must also ‘giv[e] weight to any time spent in the community since their last offence,’[49] and the more time that passes without Mr Kerr re-offending, irrespective of formal rehabilitation, is evidence that the recidivism risk of Mr Kerr has significantly reduced to the ‘very lower end of low such that it is only a remote risk … not … a real risk that the Applicant will commit further … offences.’[50]
[48] GTPT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021]
AATA 3246, [67] (Senior Member Bellamy) (‘GTPT’).
[49] Ibid [67] citing Direction 110 [8.1.2(2)(b)(ii)].
[50] Ibid [94].
A consideration of the risk or likelihood of Mr Kerr engaging in further criminal or serious conduct should encompass the factors that:
(a)facilitate the risk; and,
(b)conversely, hinder or retard the risk.
Doing this enables the Tribunal, in making its assessment, to consider Justice Mortimer’s question as to ‘whether the risk should be “tolerated”’.
Factors that facilitate the risk
Mr Kerr’s offending history indicates that his drug addiction drives his offending. There are likely to be other factors, but this appears to be the dominant factor.
The High Court’s reasoning in Guo that ‘the extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity’ can be effectively applied here both to Mr Kerr’s offending history and his more recent history of sobriety.
Mr Kerr has spent the better part of four years in the community or in immigration detention without relapsing to drug addiction (while acknowledging his use of medicinal cannabis to address his ongoing medical symptoms). This is a significant achievement in terms of dealing with his drug addiction and should be considered as a major mitigation of the factors that drove his offending.
Factors that hinder or retard the risk – rehabilitation and remorse
Mr Kerr and the other witnesses provided oral testimony in addition to the documentary evidence demonstrating the extent and nature of his rehabilitation, especially his engagement with formal rehabilitation courses, his level of insight and his expressions of remorse about his offending, and his involvement with the United City Church.
Mr Kerr’s recent completion of several rehabilitation programs indicates a degree of acceptance of responsibility for his actions. This is crucial for meaningful rehabilitation.[51] His involvement in his church’s ‘Iron Men’ group, which appears to draw its members from male church members with previous criminal records who wish to turn their lives around, adds weight here.[52]
[51] Exhibit A3.
[52] Exhibit A4; S7, page 17.
Ms DK’s statement as to the risk management measures she and Mr Kerr implemented to prevent Mr Kerr returning to his ‘old’ life are illustrative and were also tested in cross-examination:[53]
‘Daniels [the Applicant] actions and hard work since June 2020 some of which includes:
● Moving to a new house and area.
● Changing his phone number and Getting rid of the number had for 10 years.
● Changing email addresses.
● Deleting, blocking, cutting contact with any and all of his old friends and acquaintances and trying to deactivate facebook which was unsuccessful due to him getting rid of his old contact methods to have a clean break from the lifestyle and circle he kept before.
Becoming a "homebody/hermit" and only leaving the house for absolute essential reasons like, Parole, medical attention, unavoidable appointments, food shopping when items aren't available through online shopping.
● Daniel is on the wait list for a Drug Arm course and has been since March 2022.
● Only travelling in ubers to avoid running into anyone from his old lifestyle on public transport like buses and trains.’
[53] Exhibit R1: G24, pages 203-24.
Risk management factors
The evidence and testimony identify several static risk management factors for Mr Kerr. These include his immediate family, his volunteer work and his involvement with United City Church. The Tribunal acknowledges that his immediate family did not stop Mr Kerr offending in the past. However, his family, in combination with the other factors, now appears to offer Mr Kerr a stronger basis for managing the risk of re-offending. He now has a committed and supportive network of family and friends.
The Tribunal has noted above that it did not find Ms DK to be a credible witness, but with some limited exceptions to this finding. One of them involves this aspect of the Direction. When questioned about Mr Kerr’s change in lifestyle to avoid his previous antisocial associates, Ms DK’s demeanour and manner changed considerably.[54] She gave cogent and detailed evidence about what they had done as a couple to achieve these risk management steps (described above from her earlier statement) and the Tribunal is inclined to accept her testimony on this point and allow it to give support to the nature and efficacy of Mr Kerr’s risk management factors.
[54] Transcript, page 144, lines 20-47.
Risk analysis and consideration
The Tribunal has considered the evidence above and especially the patterns of Mr Kerr’s offending involving repetitions of the same offences, breaches of bail conditions and previous claims of breaking with his antisocial associates. In doing so, it has applied the dictum in Guo that the extent to which past events or conduct are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.
The Tribunal has also considered the evidence of the duration of Mr Kerr’s more recent (since 2020) period of ceasing to offend and his avoidance of drugs, both in the general community and in immigration detention. It again notes the evidence of his involvement with the United City Church and its associated groups such as the Iron Men group, and his volunteer food bank activities. The reasoning in Guo is also applicable here, as a four year period of sobriety and no offending establishes a more recent and prosocial history for Mr Kerr
Tribunal’s finding: risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal finds that the risk to the Australian community should Mr Kerr commit further offences or engage in other serious conduct does exist but is very low.
Conclusion: Primary consideration 1: protection of the Australian community
This consideration weighs substantially but not determinatively in favour of affirming the reviewable decision.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
This paragraph is enlivened by two sets of evidence.
The first set relates to events in 2012 involving Mr Kerr and his former partner.[55] The second is more recent and stems from Mr Kerr’s completion of a domestic violence booklet or survey provided by Queensland Corrective Services (QCS) to gauge the level and types of abusive behaviours Mr Kerr has exhibited and subsequent comments and observations by QCS officers. [56]
[55] Exhibit R4; S79, pages 1-3.
[56] Exhibit R3; S50, pages 265-267.
Ms Tattersall’s contentions are summarised as follow:
·Mr Kerr was convicted of family violence involving physical aggression toward his former partner and has also admitted to engaging in acts of family violence with another partner, inferred by the Minister to be his current partner. This suggests some level of frequency: paragraph 8.2(3)(a).
·As Mr Kerr committed family violence against two different partners, his offending or misconduct does not result in a cumulative effect: paragraph 8.2(3)(b).
·Mr Kerr denies responsibility for the violence against his former partner but has shown some acknowledgment of responsibility for the violence against his current partner. Despite being referred to a domestic violence program in 2019, Mr Kerr disengaged from the probation order and was deemed unsuitable for the program. Consequently, the Respondent contends that Mr Kerr has not participated in any rehabilitation courses directly targeting domestic violence: paragraph 8.2(3)(c).
In relation to the first set of evidence from 2012, the Tribunal notes that, while the Queensland Police Service issued domestic violence orders against Mr Kerr, he was not convicted of a domestic violence offence. He was convicted of common assault. These facts temper the weight of the 2012 incident in assessing this consideration.
In relation to the latter set of evidence, the Tribunal is concerned that there is no record that Mr Kerr received a warning or caution from as to his privilege to avoid self-incrimination before completing the domestic violence booklet with its Abusive Behaviours inventory.[57] [58] The Tribunal notes that Ms Tattersall had made clear in her written submissions that this evidence was in contention.[59] The evidence is material in that it goes directly to support arguments around whether Mr Kerr has committed family violence as defined in the Direction.
[57] Exhibit R3, S50, pages 265 – 269.
[58] See Bainbridge and Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080 (18 September 2024), especially at [68] – [72].
[59] Exhibit R2; Respondent’s SFIC, [44] and ibid at [74].
Mr Kerr, Ms DK and Ms F were questioned about Mr Kerr’s responses in the booklet as described in the Queensland Corrective Services record before the Tribunal.[60]
[60] Exhibit R3, S50, pages 265 – 269.
Mr Kerr gave a lengthy series of answers that provided useful context in examination-in-chief.[61] In cross-examination he provided additional clarification.[62]
[61] Transcript, page 21, line 41 – page 22, line 40.
[62] Transcript, page 53, lines 11-37.
Ms F vehemently denied observing any of the listed abusive behaviours when cross-examined.[63]
[63] Transcript, page 76, lines 8-36.
The Tribunal has noted above that it did not find Ms DK to be a credible witness, but with some specific exceptions to this finding. One of these exceptions involves this consideration. Ms Tattersall took Ms DK through each of the abusive behaviours that
[64] Transcript, page 139, line 39 – page 140, line 30.
Mr Kerr had agreed to.[64] Ms DK’s answers again provided additional context and substantially mitigating the impact of the abusive behaviours inventory. She was ferociously assertive in rejecting or heavily qualifying claims of each type of abusive behaviour on the part of Mr Kerr.
The Tribunal considers that Mr Kerr engaged to an extent in family violence as defined in the Direction in 2012. The Tribunal is not convinced that he subsequently engaged in family violence directed at Ms DK.
Conclusion: Primary consideration 2: family violence committed by the non-citizen
This consideration carries some weight in favour of affirming the reviewable decision.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
The Tribunal here should consider any impact of the decision on Mr Kerr’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
The Tribunal should also consider the strength, nature and duration of any other ties that Mr Kerr has to the Australian community, having regard to:[65]
(a)how long he has resided in Australia, including whether he arrived as a young child, noting that:
(i)less weight should be given where he began offending soon after arriving in Australia; and
(ii)more weight should be given to time he has spent contributing positively to the Australian community.
(b)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.
[65] Direction; paragraph 8.3(2).
Summarising Ms Tattersall’s contentions for the Respondent:[66]
·Mr Kerr arrived in Australia to reside here in 1998 when he was 15 and has lived there for 25 years. Less weight should be given to his time in Australia due to his early offending with his first conviction in 2001.
·Mr Kerr’s wife (Ms DK) and his father are Australian citizens or permanent residents. Removing him from Australia would cause them practical and emotional hardship, especially since Ms DK has stated that her mental health would be affected if that occurred.[67],Mr Kerr’s father requires assistance due to his medical conditions (heart and kidney failures requiring dialysis for five hours three times a week[68]. Although evidence suggests that Ms DK has ovarian cancer, no formal diagnosis has been provided to the Tribunal.
·Mr Kerr has made limited positive contributions to the community. His work history includes jobs as a forklift operator and warehouse manager. He claims to have volunteered for fostering dogs, feeding the homeless, and contributing to a community pantry, though the latter is viewed minimally as it was done to clear a debt with SPER. Character references have been provided by family friends, a pastor, and a community pantry employee.
·The Respondent accepts that this consideration weighs in the Applicant's favour. However, the Respondent contends that this consideration should not attract significant weight and does not outweigh the heavy weight of the Primary Considerations of the protection of the Australian community, family violence and the expectations of the Australian community.
[66] Exhibit R2: Respondent’s SFIC, paragraphs [46] – [50].
[67] Exhibit R1: G24, page 204.
[68] Exhibit R1; G24, page 209.
Based on the evidence and testimony before their, the Tribunal summarises Mr Kerr’s claims and contentions on this consideration as follows:
·In addition to Ms DK and Mr Kerr’s father, Ms F (a permanent resident of Australia[69]) and Ms DK’s three children, if they Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, also constitute Mr Kerr’s immediate family.
·Ms F has stated that she would be shattered, and the three children immensely affected due in part to their existing mental health conditions, if Mr Kerr was deported to New Zealand.[70]
·There are several statements addressing the strength, duration and nature of Mr Kerr’s social links from permanent residents and Australian citizens that evidence the substance and depth of Mr Kerr’s new social links, especially in relation to his volunteer work distributing food and clothing and his engagement with the United City Church and its members.[71]
·It is apposite to quote Ms Katrina Christie’s support letter:[72]
‘This is a letter of support for Mr Daniel Kerr, who has been a volunteer with our community organization since February 2023. Logan West Community Pantry is a subsidiary of Sons of God Ministries Ltd who is a registered charity and has an ongoing partnership with Australian Government SPER since 2022. A work order was completed for Mr Kerr, and he has been attending his to his work order without incident.
Logan West Community Pantry have a volunteer base of over 35 volunteers including Mr Kerr who is a well-liked and well-respected team member. Mr Kerr completes a variety of tasks for the community pantry including Foodbank Qld collections (Mr Kerr has been inducted into Foodbank), food sorting and his main undertaking of manual handling. Mr Kerr is able to complete these tasks without issue and finds much joy and fulfillment in his role.
Mr Kerr will continue his work order with Logan West Community Pantry until his SPER debt is completed (600 hours) early 2025 – but has already completed 230 hours. Logan West Community Pantry is a 100% run charity, and we rely on 100% volunteers, we have no paid staff members. Daniel is in a unique position to be able to serve his community by completing his work order and serve in a way that is meaningful and necessary.’
[69] Exhibit A4; page 21.
[70] Exhibit A4; page 21.
[71] Exhibit A4 and Exhibit R1: G24, pages 210 -211 and 214.
[72] Exhibit R1: G24, page 214.

The Tribunal now considers these contentions and evidence through the lens of each sub-paragraph in paragraph 8.3:
Paragraph 8.3 (1)
Mr Kerr’s immediate family are in Australia. Subject to his immediate family all being Australian citizens, permanent residents or having the right to remain in Australia indefinitely which appears to be valid with respect to Ms DK, Ms DK’s three children, Ms F and Mr Kerr’s father, a decision to affirm the reviewable decision will likely have negative and persistent emotional, psychological and financial impacts on each of these people based on their evidence and testimony before the Tribunal.
Paragraph 8.3 (2)
There is evidence, as well as Ms F’s testimony, to demonstrate Mr Kerr’s relatively recently substantial and strong prosocial ties to the Australian community.
Subject to those in his extended family and network of friends and social links who have provided letters of support or testimony all being Australian citizens, permanent residents or having the right to remain in Australia indefinitely, then the strength of Mr Kerr’s ties to Australia are well made out. The nature of these ties is based in his engagement with his church and his volunteer work distributing food and clothing. His testimony regarding his dedication and efforts to help those in need was convincing.[73] What he did provides value to the Australian community in terms of care and support for the homeless and drug addicted members of that community.
[73] Transcript, page 31, lines 15-28.
Tribunal’s consideration
The Tribunal considers that a decision leading to Mr Kerr's removal will have an adverse and persistent emotional, financial and psychological impact on his immediate family. The same applies, albeit tempered, to his social connections.
Conclusion: Primary consideration 3: The Strength, Nature and Duration of Ties to Australia
The Tribunal gives this consideration substantive weight towards setting the reviewable decision aside on the basis that Mr Kerr’s evidenced ties to Australia involve people who are either Australian citizens, Australian permanent residents or have a right to remain in Australia indefinitely.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
This paragraph is enlivened by Ms DK’s three children.[74] Further, Mr Kerr has provided details of other minor children with whom he claims a relationship.
[74] Exhibit R1: G5, page 32, at [76].
Under this consideration, the Tribunal must assess whether affirming or setting aside the reviewable decision is in the best interests of a child affected by such a decision. This only applies if the child is under 18 years old when the decision to set aside or affirm is made.
When deciding what is in the child’s best interests, the Tribunal must consider how close the child is to the non-citizen, the non-citizen's role as a parent, the impact of the non-citizen's past and future behaviour on the child, how separation would affect the child, and whether the child has been hurt or abused by the non-citizen. The Tribunal should also consider the child's own views, depending on their age and maturity.
Summarising the Respondent’s contentions:
·Mr Kerr has identified the following minor stepchildren who will be affected by this Tribunal’s decision:
oChild A (13 years old).
oChild B (12 years olde).
oChild C (nine years old).
·While Mr Kerr has provided evidence that he has a positive parental relationship with each minor child and that 'their bond is going amazing and getting stronger by the day with our [Child C] frequently referring to Dan as his best friend' [75], the available evidence indicates that his step-children live with their maternal grandmother Ms F and that the children 'were placed under child safety custody about 8 years ago and [Ms F] (sic) and his partner are looking to review custody'.[76]
[75] Exhibit R1; G24, page 203; Paragraphs 8.4(4)(a), (e) and (f) of the Direction.
[76] Exhibit R3; S75, page 491.
·Despite evidence that Mr Kerr has 'worked extra hard to rebuild his relationship and bond' with his three stepchildren, we note that Mr Kerr has been incarcerated for periods which have resulted in him being physically absent.[77]
[77] Paragraph 8.4(4)(a) of the Direction.
·The Respondent contends that Mr Kerr has had a more limited parental role as Ms F has full-time care of the step-children.
·Mr Kerr's ability to play a positive parental role in future will depend upon his ability to abstain from drugs and to not reoffend. Any further offending would have a negative impact on each minor child.[78]
[78] Paragraphs 8.4(4)(b)-(c) of the Direction.
·Ms DK has indicated that each child would be negatively impacted by his removal. The impact is aggravated by their existing mental health and developmental conditions – Child A is autistic and would be unable to cope, Child C is reserved and engages in angry outbursts and Child B has 'bad mental health and self-harm'. Consequently, Mr Kerr's removal would be 'detrimental and dangerous'.[79][80]
[79] Paragraph 8.4(4)(d) of the Direction.
·In his Personal Circumstances Form Mr Kerr states that the children would not be allowed to leave Australia due to 'child safetys involvement in their lives' ,[81] and it is unclear what role the children's biological father plays in their lives.[82]
[81] Exhibit R1, page 198.
[82] Paragraph 8.4(4)(e) of the Direction.
·Mr Kerr has also submitted that the following minor children would be impacted by his removal:
oChild D (Mr Kerr’s biological daughter) (16 years old).
oChild E (nephew) (15 years old).
oChild F (nephew) (12 years old).
oChild G (niece) (11 years old).
oChild H (nephew) (nine years old).
oChild I (niece) (12 years old).
oChild J (nephew) (seven years old).
oChild K (nephew) (nine years old).
oChild L (niece) (nine years old).
oChild M (niece) (three months old).
oChild N (niece) (five years old).
oChild O (nephew) (15 years old); and
oChild P (nephew) (16 years old).
·The Respondent contends that Mr Kerr has occasional contact with his biological daughter, who lives in Western Australia with her biological mother.[83]. Mr Kerr has provided no evidence to indicate that he will play a positive parental role in the future.[84] The Respondent contends that the likely effect of separation of Mr Kerr's biological daughter from Mr Kerr will be minimal, noting that she currently lives interstate, and they may maintain contact by electronic means.[85]
·The Respondent also contends that there are no known views from Mr Kerr's biological daughter, and her mother fulfils the main parental role in relation to her.[86]
·With respect to Mr Kerr's nieces and nephews, the Respondent contends that there is limited evidence regarding the best interests of these children, and that Mr Kerr does play a parental role in their lives.[87] While these minor children may be emotionally impacted by Mr Kerr's removal to New Zealand, they may maintain contact with Mr Kerr by electronic means.[88] There is limited evidence regarding the known views of each niece and nephew.[89]
·The Respondent contends that this Primary Consideration weighs against affirming the reviewable decision, predominantly on the basis of the best interests of Mr Kerr's minor stepchildren but does not outweigh the countervailing primary considerations.
[83] Exhibit R3; S77, page 505; Paragraph of 8.4(4)(a) of Direction.
[84] Paragraph 8.4(4)(b) of the Direction.
[85] Paragraph 8.4(4)(d) of the Direction.
[86] Paragraphs 8.4(4)(e)-(f) of the Direction.
[87] Paragraphs 8.4(4)(b) and (e) of the Direction.
[88] Paragraph 8.4(4)(d) of Direction.
[89] Paragraph 8.4(4)(f) of the Direction.
Tribunal’s Consideration
In considering this paragraph, the Tribunal should give individual consideration to the best interests of each child to the extent that their interests may differ.
Acknowledging the evidence and testimony before it in addition to the Respondent’s contentions, the Tribunal makes the following points in its assessment of this consideration.
Child A
Evidence and testimony indicate that Mr Kerr is endeavouring to be as much of a supportive parental figure to Child A as he can while in detention and while Child A is in Ms F’s care. Without other evidence to assist here and based on the testimony of Ms F that Mr Kerr and Ms DK are working effectively to regain custody of Children A, B and C, the Tribunal will adopt the view that her remaining minor years would be better with Mr Kerr residing in Australia with her, rather than the alternative of Mr Kerr residing in New Zealand and consequently physically away from her.
Mr Kerr provided extensive testimony on his relationship with Child A, as well as Child B and Child C.[90]
[90] Transcript; page 26, line 16 – page 29, line 42.
There is no evidence that Mr Kerr’s offending and misconduct has had a negative impact on Child A.
There is no evidence that Mr Kerr’s family violence conduct, such as it is, has put Child A at risk, nor is there any evidence that Child A has suffered or experienced any physical or emotional trauma arising from Mr Kerr’s conduct.
Child B
The Tribunal makes the same findings in relation to Child B as it did for Child A.
Child C
In addition to repeating its findings from Child A, the Tribunal notes Ms F’s testimony that Mr Kerr succeeded in getting Child C to attend school when Ms F and Ms DK both had been unsuccessful and Ms F’s comment in her testimony that if the custody orders are revoked, Child C would wish to return immediately to live with Mr Kerr and Ms DK.
The Tribunal also observes that Ms DK and Ms F currently reside in adjoining houses.
Child D
While Child D is Mr Kerr’s biological daughter, the Tribunal observes that Mr Kerr’s relationship with Child D is effectively non-parental. Child D lives with her mother and stepfather in Western Australia.
Mr Kerr gave the following testimony in respect of his relationship with Child D:[91]
‘Tribunal: What can you tell the tribunal about your relationship with [Child D]?
Mr Kerr: [Child D], her mum and her left when I was in hospital in 2010. When they were still living down the Gold Coast, [Child D’s mother] would let me visit [Child D], once a week, at least. Anytime I really wanted to, I’d just have to arrange it with her. When we were living in Ipswich, she was on the team of everyone that was trying to rubbish me marrying my partner because of the kids not being mine. There was quite a few, my family included, saying that, yes, that I’m not their father, not their responsibility, but she decided to come up and see the place we’d move into, but I knew it was more to analyse everything, and then just have another reason to, I don’t know, rubbish me or something. But instantly she saw how good I was with the kids, and how our little family was, and then and there she turned around and said, ‘Sorry’, and said, ‘How long do you want [Child D], for?’, and, yes, every week she was bringing her up to Ipswich, and we’d have little – [Child D], missed out on Lani’s birthday one of the times. I saved over some food, and when [Child D], came over the next day, she was supposed to come to the party, but her mum changed her mind – we run a little second party the next day with her, but right up until they moved to Perth, that’s where it became just phone contact. But she’s just turned 16. I speak to her mum more than I speak to her. She’s at the age where I’ve got a lot of making up to do, I suppose. And obviously speak to her mum, [Child D], would be there. A couple of times she’s put [Child D], on the phone, mainly to thank me for the presents I’ve sent. But, yes, I’ll just check on her, and pass messages through her mum. I haven’t pushed for her to get [Child D], on the phone. I figure she’s not ready to talk to me, so yes.
Tribunal: Is there another male parental figure in Scarlet’s life at present?
Mr Kerr: Yes.
Tribunal: Yes, thank you?
Mr Kerr: I’ve met him. He’s a real nice guy.’
[91] Transcript, page 29, line 44 – page 30, line 25.
It appears that while there is the possibility of Mr Kerr playing a positive parental role in Child D’s life, it is unlikely, superfluous to an extent and of likely limited duration before Child D turns 18.
Children E to P
On the basis of the limited evidence before it in respect of these children and without any views from any of these children, the Tribunal observes that Mr Kerr’s relationship with each of them is non-parental, that there are other persons who already fulfil a parental role with regard to each child, that the extent to which Mr Kerr may play a positive parental role is both unknown and consequently limited, that the effect of any separation is unknown and that there is no evidence of any impact on these children arising from Mr Kerr’s prior family violence and other conduct.
Assessing these observations individually and holistically, the Tribunal considers that it is in the best interests of Child A, Child B, Child C, and to a lesser extent, Child D, that Mr Kerr be returned to the Australian community. There is insufficient evidence for the Tribunal to make a finding in relation to Children E to P.
Conclusion: Primary consideration 4: Best interests of minor children in Australia affected by the decision.
This consideration carries a substantive weight towards setting aside the reviewable decision.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5(1) of the Direction provides:
‘The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.’
In addition to the guidance provided by paragraph 8.5(1) of the Direction, paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences in question are such that the Australian community would expect that the person should not be granted or continue to hold a visa.
In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns because of conduct in Australia or elsewhere, of the following kinds:
(a)acts of family violence;
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery;
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations apply, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
As with Paragraph 8.5(4) of the Direction, this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations.
Clause 8.5(4) of the Direction correlates with the reasoning of the Full Court of the Australian Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (“FYBR”).
Notwithstanding the different pathways in judicial reasoning, the plurality of the Court in FYBR held that “Expectations of the Australian community” is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[92]
[92] FYBR (2019) 272 FCR 454 (“FYBR”), at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[93]
[93] Ibid at 473 [75]– [76] (Charlesworth J).
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[94]
[94]FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
Observing the norm stipulated in paragraph 8.5, the Tribunal has also considered the guidance provided by paragraphs 5.2(1) to (6) of the Direction.
The Respondent contends that this Primary Consideration weighs against Mr Kerr. Mr Kerr has notably engaged in offending involving family violence committed against a woman (paragraphs 8.5(2)(a) and 8.5(2)(c)), and significant drug related offences. Through his offending, Mr Kerr has put members of the Australian community at risk, and his interactions with the criminal justice system have been at the expense of the Australian community. The Respondent contends that this factor should be given significant weight in favour of affirming the reviewable decision.[95]
[95] Exhibit R2: Respondent’s SFIC, [63].
The Tribunal has earlier found that Mr Kerr has committed crimes of a violent nature against a woman and a police officer. Therefore, paragraph 8.5(2) of the Direction is enlivened.
The next question is whether there are any factors which modify the Australian community’s expectations.
This question is informed by the principles in paragraphs 5.2(2) to (7) of the Direction. In summary these are:
(a)The Australian Government’s highest priority is the Australian community’s safety.
(b)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa.
(c)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(d)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(e)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(f)In relation to decisions to refuse, cancel and revoke cancellations of visas, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age.
(g)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

In addition to this factor, the Tribunal considers it likely that Mr Kerr can access treatment for his currently manifested health issues – his diabetes and his Hepatitis C - in New Zealand
Sub-paragraph 9.2(1)(b) – any substantial language or cultural barriers
The Tribunal considers that Mr Kerr, based on his oral testimony and the evidence before the Tribunal, would not face any linguistic difficulties if he returned to New Zealand.
The Tribunal also considers that Mr Kerr is unlikely to face significant cultural issues for the same reason.
Sub-paragraph 9.2(1)(c) - any social, medical and/or economic support available to them in that country
The Tribunal considers that, based on the evidence, Mr Kerr would have access to the same medical, social and economic support as that available to other New Zealand citizens.
The Tribunal is concerned at the open question as to whether Mr Kerr is fit to work, as raised in his contentions, and what being unemployed and accessing welfare payments in New Zealand will mean in terms of additional risks to his sobriety.
Tribunal’s Finding
The Tribunal has considered above the extent of any impediments that Mr Kerr, if removed from Australia to New Zealand, will face in establishing himself and maintaining basic living standards, considering the specific factors set out in paragraph 9.2(1).
Having regard to the analysis referrable to each of the three sub-paragraph components of this Other Consideration (b), the Tribunal finds that Mr Kerr would likely face some emotional, hardship but also a high level of practical and financial hardship if he was returned to New Zealand, as well as risks to his sobriety and consequently his health.
This consideration carries strong weight in favour of setting aside the reviewable decision.
Other Consideration (c): Impact on Australian business interests
The Respondent submits that this Other Consideration (c) is not relevant to the instant proceeding.[112] The Tribunal agrees with this submission.
[112] A1 [64].
Tribunal Finding
This consideration carries a neutral weight.
FINDINGS
The Tribunal now summarises the respective weights it has allocated to each of the relevant Primary and Other Considerations (specified in the Direction) in this matter:
·Primary Consideration 1 - protection of the Australian community from criminal or other serious conduct:
oThis consideration weighs substantially but not determinatively in favour of affirming the reviewable decision.
·Primary Consideration 2 – Family Violence committed by the non-citizen:
oThis consideration carries some weight in favour of affirming the reviewable decision.
·Primary Consideration 3 - the strength, nature and duration of ties to Australia:
oThis consideration carries substantive weight towards setting the reviewable decision aside.
·Primary Consideration 4 - best interests of minor children in Australia affected by the decision:
oThis consideration carries a substantive weight towards setting the reviewable decision aside.
·Primary Consideration 5 – expectations of the Australian Community:
oThis consideration carries a small weight in favour of affirming the reviewable decision.
·Other Consideration (a) – legal consequences of the decision:
oThis consideration has neutral weight.
·Other Consideration (b) - extent of impediments if removed:
oThis consideration carries strong weight towards setting the reviewable decision aside.
·Other Consideration (c): Impact on Australian business interests:
oThis consideration carries a neutral weight.
ADDITIONAL CONSIDERATIONS
The Direction does not limit the other considerations to those listed in the Direction (paragraph 9(1) of the Direction).[113]
[113] Per Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
There are no additional considerations before the Tribunal in this matter.
CONCLUSION
The Tribunal has two issues to address:
·character test: whether there is a reasonable suspicion that Mr Kerr does not pass the character test , and whether Mr Kerr satisfies the Tribunal that he passes the character test[114] and, if not;
·exercise of discretion: whether the Tribunal should exercise its discretion conferred by section 501(2) to cancel Mr Kerr’s Visa.
[114] Section 501(2) of the Act.
In determining whether the Tribunal should exercise its discretion conferred by section 501(2) of the Act, the Tribunal has applied the Direction to this matter’s specific circumstances.
The Tribunal has set out above its findings on the weight attributable to the Direction’s Primary Considerations and the Other Considerations.
The Tribunal has assessed and considered all the weights it has identified under the relevant considerations, adopting the process outlined in Demir v Minister for Immigration, Citizenship and Multicultural Affairs at [21]:[115]
‘[21] The metaphor of “weighing” relevant considerations should not be taken too literally. The exercise is not mathematical and cannot depend on the simple aggregation of factors on each side of a ledger. The conclusion as to whether there is “another reason” for the purposes of s 501CA(4)(b)(ii) necessarily involves persuasion of a human decision-maker, whose thought processes cannot be reflected in lines of code, as to what is the right result in the circumstances. That persuasion flows from the decision-maker’s personal understanding as to the significance of each of the factors they are required or permitted to take into account, in the light of all the material they have considered. So much is consistent with the decision-maker’s duty to “call his own attention to the matters which he is bound to consider” (Peko-Wallsend at 39 (Mason J), quoting Wednesbury at 229 (Lord Greene MR)) and to give “proper, genuine and realistic consideration to the merits of the case” (Khan v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Gummow J, 11 December 1987; noted [1987] FCA 457; (1987) 14 ALD 291, 292). Correspondingly, the statutory specification of mandatory considerations requires those considerations to be taken into account, but not necessarily to be given any particular degree of weight: Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758; 176 FCR 153 at [110] (Rares J) (varied on appeal (Australian Competition and Consumer Commission v Telstra Corporation Ltd [2009] FCAFC 68; 176 FCR 203), but not on this point).’
[115] Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870.
In applying this process, the Tribunal has regard to the Direction and specifically paragraph 7(2):
‘The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.’
(Emphasis added)
The use of the term ‘generally’ can be argued to have the implicit effect of negating a decision maker’s discretion to set aside a decision by always giving Primary Consideration 1 greater weight than all the remaining primary and other considerations, overriding the holistic weighing and balancing exercise described in Demir above. This would consequently remove most, if not all of the statutory discretion available to the decision maker.
The decision in Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)[116] sets out a line of higher authorities that substantiates the existence of a discretion in section 501CA(4) to set aside a reviewable decision.[117]
[116] Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 492 (2 February 2024).
[117] Ibid at [37]-[39].
Two further authorities offering guidance are the decision of His Honour Justice Dowsett in Aksu v MIMA[118] at [10] – [13], where His Honour found that the Minister had inappropriately fettered his discretion by assuming that each primary consideration bore at least as much weight as each other consideration, regardless of the facts of the case, and the decision of His Honour Justice Sackville in Lu v Minister for Immigration & Multicultural & Indigenous Affairs[119] at [54].
[118] Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514 (4 May 2001).
[119] Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340.
Additionally, paragraph 5.1(2) of the Direction refers to the discretion:
‘(2) Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.’
(Emphasis added)
Taken together these points imply that the Tribunal retains a discretion to determine whether ‘greater weight’ should be given to Primary Consideration 1 in a specific matter.
Acknowledging paragraph 7(2), but having conducted and considered a comprehensive, holistic and integrated view of the Primary Considerations and the Other Considerations in this matter leads this Tribunal to a finding that it is satisfied that the discretion to cancel Mr Kerr’s Visa pursuant to section 501(2) should not be exercised. Accordingly, the Tribunal makes a finding of setting aside the reviewable decision.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 6 May 2024 and substitutes it with a decision that the discretion under subsection 501(2) of the Migration Act 1958 (Cth) to cancel Mr Kerr’s visa is not exercised.

I certify that the preceding two hundred and five paragraphs (205) paragraphs are a true copy of the reasons for the decision herein of Member D. Cosgrave

...............[SGD]....................
Associate
Dated: 26 September 2024

Dates of hearing: 15, 16 & 19 August 2024

Representation for the Applicant: Self-represented litigant

Solicitor for the Respondent:
Ms Tattersall (Special Counsel)

Minter Ellison Lawyers

ANNEXURE A

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

RESPONDENT’S SUBMISSIONS

R1

Section 501 G-Documents

R

Various

24/06/2024

R2

Respondent’s Statement of Facts, Issues and Contentions

R

01/08/2024

01/08/2024

R3

Supplementary Documents

R

Various

01/08/2024

R4

Secondary Supplementary Documents

R

Various

13/08/2024

R5

Applicant’s Gmail Letter

R

25/06/2024

15/08/2024

APPLICANT’S SUBMISSIONS

A1

Applicant’s SFIC (Same as ‘Dan Letter’)

A

Undated

16/07/2024

A2

Collated Applicant Bundle 1

Files Included:

·     Applicant’s Ebay Orders

·     Drug Arm Letter

·     Family Details

·     List of Minor Children

·     Reintegration Plan

·     SMART Letter

·     Volunteer Work History

A

Various

16/07/2024

A3

Collated Applicant Bundle 2 – Certificates

Certificates Included:

·     Workplace Drug Use

·     Child Safety for Parents

·     Anger Management Techniques

·     Depression Management

·     Drug and Alcohol Abuse 101

A

Various

16/07/2024

A4

Collated Applicant Bundle 3 – Statements

Statements Included:

·     Andrew

·     Brad and Sue

·     Chris

·     Dan letter

·     Dee Oral

·     Dee Signed Character Reference

·     Eric

·     Howard

·     Mum Character

·     Nick

·     Jason

·     Sue Oral

A

Various

16/07/2024

A5

Collated Applicant Bundle 4 – Photos

·     Bundle includes 63 photographs and one video

A

Various

11/08/2024

A6

Applicant’s video ‘My movie 1’

A

n/a

11/08/2024

ANNEXURE B

Court Date

Offence Details

Result

10 March 2022

Breach of probation order imposed on 13/04/2018 (re: possessing dangerous

drugs, possess utensils or pipes etc that had been used, fail to take reasonable care and precautions in respect of needle and syringe, possess property suspected of having been used in connection with the commission of a drug offence)

Order(s) revoked

Resentenced for original offence(s)

Conviction recorded

Sentenced imprisonment: 1mo

Concurrent parole release date: 10/03/2022

10 March 2022

[Drugs Misuse Act] 9A(1) Possessing relevant

substances or things (on 15/04/2020)

Conviction recorded

Sentenced imprisonment: 3mo concurrent

Declare that time spent in pre-sentence custody be deemed as time already served under this sentence - 133d (28/10/2021 to 09/03/2022)

Parole release date: 10/03/2022

10 March 2022

[Drugs Misuse Act] 10(4) Fail to take reasonable care and precautions in respect of syringe or needle (on 04/10/2018)

Conviction recorded

Sentenced imprisonment: 14d concurrent

Declare that time spent in pre-sentence custody be deemed as time already served under this sentence -

133d (28/10/2021 To 09/03/2022)

Parole release date: 10/03/2022

10 March 2022

[Bail Act] 33(1) Failure to appear in accordance with undertaking (on 20/08/2019)

Conviction recorded

Sentenced imprisonment: 1mo cumulative

Declare that time spent in pre-sentence custody be deemed as time already served under this sentence - 133d (28/10/2021 to 09/03/2022)

Parole release date: 10/03/2022

10 March 2022

[Bail Act] 33(1) Failure to appear in accordance with undertaking (on 20/08/2019)

Conviction recorded

Sentenced imprisonment: 1mo cumulative

Declare that time spent in pre-sentence custody be deemed as time already served under this sentence - 133d (28/10/2021 to 09/03/2022) Parole release date: 10/03/2022

10 March 2022

[Drugs Misuse Act] 9(1) possessing dangerous drugs (on 29/07/2018)

[Drugs Misuse Act] 9(1) possessing dangerous drugs (on 04/10/2018)

[Drugs Misuse Act] 9(1) possessing dangerous drugs (on 04/10/2018)

[Drugs Misuse Act] 9(1) possessing dangerous drugs (on 15/04/2020)

On all charges conviction recorded

Sentenced imprisonment: 9mo concurrent

Declare that time spent in pre-sentence custody be deemed as time already served under this sentence – 133d (28/10/2021 to 09/03/2022)

Parole release date: 10/03/2022

10 March 2022

[Drugs Misuse Act] 10(2)(b) Possess utensils or pipes etc that had been used (on 29/07/2018)

[Drugs Misuse Act] 10a(1)(a) Possess property suspected of having been acquired for the purpose of committing a drug offence (on 04/10/2018)

[Drugs Misuse Act] 10(2)(a) Possess utensils or pipes etc for use (on 15/04/2020)

[Drugs Misuse Act] 10(2)(b) Possess utensils or pipes etc that had been used (on 15/04/2020)

On all charges conviction recorded

Sentenced imprisonment: 1mo concurrent

Declare that time spent in pre-sentence custody be deemed as time already served under this sentence - 133d (28/10/2021 to 09/03/2022)

Parole release date: 10/03/2022

10 March 2022

[Criminal Code] 433(1) Receiving tainted property (on 04/10/2018)

Conviction recorded

Sentenced imprisonment: 4mo concurrent

Declare that time spent in pre-sentence custody be deemed as time already served under this sentence - 133d (28/10/2021 to 09/03/2022)

Parole release date: 10/03/2022

13 April 2018

[Criminal Proceeds Confiscation Act] 252(1) Possess tainted property (on 30/01/2018)

Conviction recorded

Sentenced imprisonment: 6mo to be suspended for: 2y concurrent

13 April 2018

[Drugs Misuse Act] 9(1) Possessing dangerous drugs (on 04/01/2018)

[Weapons Act] 50(1)(c)(iii) Unlawful possession of weapons category a, b or m (on

04/01/2018)

[Drugs Misuse Act] 10(2)(a) Possess utensils

Or pipes etc for use (on 04/01/2018)

[Drugs Misuse Act] 10(1)(b) Possessing

anything used in the commission of crime defined in part 2 (on 04/01/2018)

On all charges conviction recorded

Sentenced Imprisonment: 6mo

To be suspended for: 2y concurrent

13 April 2018

[Drugs Misuse Act] 9(1) Possessing dangerous drugs (on 09/06/2017)

[Drugs Misuse Act] 10(2)(b) Possess utensils or pipes etc that had been used (on 09/06/2017)

[Drugs Misuse Act] 10(4) Fail to take reasonable care and precautions in respect of syringe or needle (on 09/06/2017)

[Drugs Misuse Act] 10a(1)(b) Possess property suspected of having been used in connection with the commission of a drug offence (on 09/06/2017)

On all charges conviction recorded

Probation period: 2y

02 December 2016

[Health (Drugs and Poisons) Regulations Act] 204 Unlawful possession of restricted drugs (on 19/05/2016)

[Bail Act] 29(1) Breach of bail condition (between 23/06/2016 and 16/08/2016)

[Bail Act] 29(1) Breach of bail condition (on 19/08/2016)

[Criminal Code] 488(1)(a) Forgery (on

11/11/2016)

[Bail Act] 29(1) Breach of bail condition (between 06/11/2016 and 10/11/2016)

[Criminal Code] 488(1)(a) Forgery (between

24/07/2016 and 26/08/2016)

On all charges with traffic matters conviction recorded

Sentenced imprisonment: 3mo concurrent declare that time spent in pre-sentence custody be deemed as time already served under this sentence - 22d (11/11/2016 to 02/12/2016)

Parole release date: 28/02/2017

License disqualified period: 3mo

02 December 2016

[Weapons Act] 61(b) Possess shortened firearms (on 04/05/2016)

[Explosives Act] 34(1) Authority required to possess explosives (on 04/05/2016)

[Drugs Misuse Act] 9 Possessing dangerous drugs (on 04/05/2016)

[Summary Offences Act] 15(1) Possession of implements that was being or was to be used in relation to particular offences (on 20/05/2016)

[Drugs Misuse Act] 10(1)(a) Possessing anything for use in the commission of crime defined in part 2 (on 20/05/2016)

[Drugs Misuse Act] 10(4a) Fail to properly dispose of needle and syringe (on 25/10/2016)

On all charges conviction recorded

Sentenced imprisonment: 12mo concurrent declare that time spent in pre-sentence custody be deemed as time already served under this sentence - 22d (11/11/2016 to 02/12/2016)

Parole release date: 28/02/2017

02 December 2016

[Casino Control Act] 100 Entering or remaining in casino contrary to order or direction (on 20/02/2016)

Conviction recorded not further punished

09 August 2013

[Criminal Code] 408a(1)(a) Unlawful use of motor vehicles aircraft or vessels - use (on 27/09/2012)

[Criminal Code] 328a(1) Dangerous operation of a vehicle (on 27/09/2012)

[Criminal Code] 328a(1) Dangerous operation of a vehicle (on 27/09/2012)

[Police Powers and Responsibilities Act] 754(1)&(2) Fail to stop motor vehicle (on 24/09/2012)

[Police Powers and Responsibilities Act] 754(1)&(2) fail to stop motor vehicle (on 27/09/2012)

[Criminal Code] 408a(1)(a) Unlawful use of motor vehicles aircraft or vessels - use (between 07/12/2012 and 11/12/2012)

On all charges conviction recorded

Sentenced imprisonment: 15mo concurrent declare that time spent in pre-sentence custody be deemed as time already served under this sentence - 141 days (22/03/2013 to 09/08/2013)

Parole release date: 09/08/2013

License disqualified period: 6mo

License disqualified period: 2y

09 August 2013

[Criminal Code] 408c(1)(d) Fraud - dishonestly gain benefit/advantage (on 07/08/2012)

[Police Powers and Responsibilities Act] 791(2) Contravene direction or requirement (on 04/01/2013)

[Summary Offences Act] 16 Unlawful possession of suspected stolen property (on 04/01/2013)

[Drugs Misuse Act] 10(4) Fail to take reasonable care and precautions in respect of syringe or needle (on 04/01/2013)

On all charges conviction recorded not further punished

[Bail Act] 33(1) Failure to appear in accordance with undertaking (on 23/11/2012)

Conviction recorded

Fined: $100.00

Time to pay: 28d

[Bail Act] 33(1) Failure to appear in accordance with undertaking (on 25/01/2013)

Conviction recorded

Fined: $100.00

Time to pay: 28d

[Bail Act] 33(1) Failure to appear in accordance with undertaking (on 08/03/2013)

Conviction recorded

Fined: $100.00

Time to pay: 28d

Breach of probation order

Imposed on 4.9.12 (re: unlawful use of motor vehicles x2, authority required to possess explosives, unlawful possession of suspected stolen property x2, common assault)

For breach of order(s): conviction recorded, admonished & discharged, order(s) revoked, resentenced for original offence(s)

Unlawful use of motor vehicle x2: on all charges: conviction recorded

Sentenced imprisonment: 9mo concurrent

Parole release date: 9.8.13

Authority required to possess explosives, unlawful possession of suspected stolen property x2, common assault: on all charges: conviction recorded

Sentenced imprisonment: 2mo concurrent

Parole release date: 9.8.13

07 March 2013

[Drugs Misuse Act] 10(2)(a) Possess utensils or pipes etc for use (on 15/02/2013)

Conviction recorded

Fined: $100.00

Time to pay: 2mo

20 February 2013

[Drugs Misuse Act] 10(4a) Fail to properly dispose of needle and syringe (on 23/01/2013)

No conviction recorded

Fined: $250.00

Time to pay: 2mo

29 November 2012

[Regulatory Offences Act] 5(1)(c) Unauthorised dealing with shop goods (maximum $150) (on 25/10/2012)

No conviction recorded

Fined: $250.00

Time to pay: 2mo

04 September 2012

[Criminal Code] 408a(1)(a) Unlawful use of motor vehicles aircraft or vessels - use (on 01/05/2012)

[Criminal Code] 408a(1)(a) Unlawful use of motor vehicles aircraft or vessels - use (on a date unknown between 13/03/2012 and 21/03/2012)

[Explosives Act] 34(1) Authority required to possess explosives (on 01/05/2012)

[Summary Offences Act] 16 Unlawful possession of suspected stolen property (on 01/05/2012)

[Summary Offences Act] 16 Unlawful possession of suspected stolen property (on 01/05/2012)

[Criminal Code] 335 Common assault (on

08/04/2012)

On all charges

Conviction recorded

Probation period: 12mo

04 September 2012

[Police Powers and Responsibilities Act] 791(2) Contravene direction or requirement (on 29/04/2012)

[Weapons Act] 51(1) Possession of a knife in a public place or a school (on 21/04/2012)

[Bail Act] 29(1) Breach of bail condition (on 24/05/2012)

[Bail Act] 29(1) Breach of bail condition (on 24/05/2012)

[Bail Act] 29(1) Breach of bail condition (on 14/06/2012)

[Bail Act] 29(1) breach of bail condition (on 21/06/2012)

[Drugs Misuse Act] 10(4) Fail to take reasonable care and precautions in respect of syringe or needle (on 13/07/2012)

On all charges conviction recorded

Fined: $1,000.00

Time to pay: 28d

10 July 2012

[Criminal Code] 469.9(1) Wilful damage by

Graffiti (on 08/06/2012)

No conviction recorded

Fined: $100.00

Time to pay: 2mo

11 July 2007

[Drugs Misuse Act] Possessing dangerous drugs (on 23.02.07)

Convicted & fined $250

I/d imp. 3 days

Time to pay refer to sper

25 May 2007

[Bail Act] Failure to appear in accordance with undertaking (2 chgs on 18.4.07)

One penalty imposed: convicted & fined $400

I/d imp. 6 days

Time to pay 4 months

03 August 2006

[Summary Offences Act] Possess graffiti instrument (on 02.11.05)

Convicted & not further punished

23 November 2005

[Drugs Misuse Act] Supplying dangerous drugs (4 chgs on 17.7.04, 23.7.04, 7.8.04 & 27.8.04)

[Drugs Misuse Act] Supplying dangerous drugs (on 27.8.04) above refers to indictment no. new/05

On all charges: conviction recorded Imprisonment 2 years

Suspended for 2 years after serving 8 months imprisonment

Conviction recorded

Imprisonment 8 months

Probation 16 months

Special conditions: must submit to all such tests, examinations and assessments where and as often as may reasonably be required for the purpose of ascertaining the presence of any dangerous drug in body

Declare that time spent in pre-sentence custody be deemed as time already served under this sentence - 5 days (between 5.3.05 & 7.3.05 and between 21.11.05 & 23.11.05)

21 November 2005

[Bail Act] breach of bail condition (on 19/09/05)

[Police Powers and Responsibilities Act] contravene direction or requirement (2 chgs on 02/11/05, 09/11/05)

One penalty imposed: convicted & fined $600

I/d imp. 6 days

Time to pay 3 months

29 September 2005

[Bail Act] breach of bail condition (btn 11 & 25/08/05)

Convicted & fined $300

I/d imp. 10 days

Time to pay 28 days

07 June 2005

[Drugs Misuse Act] possess property suspected of having been used in connection with the commission of a drug offence (on 28.04.05)

Convicted & fined $500

I/d imp. 10 days

Time to pay 28 days

30 November 2004

Regulatory Offences Act unauthorized dealing with shop goods (maximum $150) (on 12.11.04)

Convicted & fined $75

I/d imp. 2 days

Time to pay 2 months

11 November 2004

[Drugs Misuse Act] possessing dangerous drugs (on 25/09/04)

[Drugs Misuse Act] possess utensils or pipes etc (not to be used for needles & syringes) (on

26/09/04)

One penalty imposed: convicted & fined $1000

I/d imp. 3 months

Time to pay 1 year

20 July 2004

[Drugs Misuse Act] possessing dangerous drugs (on 20.07.04)

Convicted & fined $800

I/d imp. 16 days

Time to pay 4 months

21 May 2004

[Vagrants, Gaming and Other Offences Act] possess graffiti instrument (on 3.5.04)

Convicted & fined $360

I/d imp. 6 days

Time to pay 28 days

12 May 2004

[Criminal Code] wilful damage (between 1/1 &

8/7/03)

Convicted & fined $200

I/d imp. 4 days

Time to pay 6 months

Restitution $200

I/d imp. 4 days

Time to pay 6 months

06 May 2004

[Drugs Misuse Act] possessing dangerous drugs (on 1/4/04)

Convicted & fined $450

I/d imp. 9 days

Time to pay 3 mths

09 October 2003

[Regulatory Offences Act] wilful destruction of property without consent and thereby caused a loss of $250 or less (on 07.11.02)

Convicted & fined $200

I/d imp. 3 days

Time to pay 2 mths

Restitution $33

10 May 2002

[Police Powers and Responsibilities Act] contravene direction or requirement (on 26.12.01)

[Vagrants, Gaming and Other Offences Act] behave in a disorderly manner (2 chgs on 02.11.01 & 27.4.02)

[Police Powers and Responsibilities Act] obstruct police officer (02.11.01)

[Police Powers and Responsibilities Act] assault police officer (on 02.11.01)

[Police Powers and Responsibilities Act] contravene direction or requirement (on 27.4.02)

One penalty imposed: with traffic convicted & fined $1000

I/d imp. 3 mths

Time to pay 4 mths

License disqualified 2 yrs

One penalty imposed: convicted & fined $600

I/d imp. 3 mths

Time to pay 4 mths

On assault charge: compensation $600

27 April 2002

[Bail Act] breach bail undertaking (on 08/01/02)

No conviction recorded

Fined $300

I/d imp. 5 days

Time to pay 3 months

07 November 2001

[Drugs Misuse Act] possessing dangerous drugs (18/10/01)

Convicted & fined $300

I/d imp. 5 dys

Time to pay 3 mths

02 October 2001

[Regulatory Offences Act] unauthorized dealing with shop goods (maximum $150)(on

01/10/01)

[Drugs Misuse Act] Possessing dangerous drugs (on 13/08/01)

One penalty imposed: convicted & fined $600

I/d imp. 10 days

Time to pay 3 months

10 April 2001

[Vagrants, Gaming and Other Offences Act] publish distribute exhibit indecent or obscene publication (on 30/11/2000)

No conviction recorded

Convicted & fined $150

I/d imp. 3 days

Time to pay 2 months

10 April 2001

[Criminal Code] Wilful damage (on 19.3.01)

No conviction recorded

Recognizance $200 & to be of good behaviour for 4 mths

Restitution $400 in default levy in distress

Time to pay 4 mths

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
R1	Section 501 G-Documents	R	Various	24/06/2024
R2	Respondent’s Statement of Facts, Issues and Contentions	R	01/08/2024	01/08/2024
R3	Supplementary Documents	R	Various	01/08/2024
R4	Secondary Supplementary Documents	R	Various	13/08/2024
R5	Applicant’s Gmail Letter	R	25/06/2024	15/08/2024
APPLICANT’S SUBMISSIONS
A1	Applicant’s SFIC (Same as ‘Dan Letter’)	A	Undated	16/07/2024
A2	Collated Applicant Bundle 1 Files Included: · Applicant’s Ebay Orders · Drug Arm Letter · Family Details · List of Minor Children · Reintegration Plan · SMART Letter · Volunteer Work History	A	Various	16/07/2024
A3	Collated Applicant Bundle 2 – Certificates Certificates Included: · Workplace Drug Use · Child Safety for Parents · Anger Management Techniques · Depression Management · Drug and Alcohol Abuse 101	A	Various	16/07/2024
A4	Collated Applicant Bundle 3 – Statements Statements Included: · Andrew · Brad and Sue · Chris · Dan letter · Dee Oral · Dee Signed Character Reference · Eric · Howard · Mum Character · Nick · Jason · Sue Oral	A	Various	16/07/2024
A5	Collated Applicant Bundle 4 – Photos · Bundle includes 63 photographs and one video	A	Various	11/08/2024
A6	Applicant’s video ‘My movie 1’	A	n/a	11/08/2024

[80] Exhibit R1; G24, pages 207-208.

Court Date	Offence Details	Result
10 March 2022	Breach of probation order imposed on 13/04/2018 (re: possessing dangerous drugs, possess utensils or pipes etc that had been used, fail to take reasonable care and precautions in respect of needle and syringe, possess property suspected of having been used in connection with the commission of a drug offence)	Order(s) revoked Resentenced for original offence(s) Conviction recorded Sentenced imprisonment: 1mo Concurrent parole release date: 10/03/2022
10 March 2022	[Drugs Misuse Act] 9A(1) Possessing relevant substances or things (on 15/04/2020)	Conviction recorded Sentenced imprisonment: 3mo concurrent Declare that time spent in pre-sentence custody be deemed as time already served under this sentence - 133d (28/10/2021 to 09/03/2022) Parole release date: 10/03/2022
10 March 2022	[Drugs Misuse Act] 10(4) Fail to take reasonable care and precautions in respect of syringe or needle (on 04/10/2018)	Conviction recorded Sentenced imprisonment: 14d concurrent Declare that time spent in pre-sentence custody be deemed as time already served under this sentence - 133d (28/10/2021 To 09/03/2022) Parole release date: 10/03/2022
10 March 2022	[Bail Act] 33(1) Failure to appear in accordance with undertaking (on 20/08/2019)	Conviction recorded Sentenced imprisonment: 1mo cumulative Declare that time spent in pre-sentence custody be deemed as time already served under this sentence - 133d (28/10/2021 to 09/03/2022) Parole release date: 10/03/2022
10 March 2022	[Bail Act] 33(1) Failure to appear in accordance with undertaking (on 20/08/2019)	Conviction recorded Sentenced imprisonment: 1mo cumulative Declare that time spent in pre-sentence custody be deemed as time already served under this sentence - 133d (28/10/2021 to 09/03/2022) Parole release date: 10/03/2022
10 March 2022	[Drugs Misuse Act] 9(1) possessing dangerous drugs (on 29/07/2018) [Drugs Misuse Act] 9(1) possessing dangerous drugs (on 04/10/2018) [Drugs Misuse Act] 9(1) possessing dangerous drugs (on 04/10/2018) [Drugs Misuse Act] 9(1) possessing dangerous drugs (on 15/04/2020)	On all charges conviction recorded Sentenced imprisonment: 9mo concurrent Declare that time spent in pre-sentence custody be deemed as time already served under this sentence – 133d (28/10/2021 to 09/03/2022) Parole release date: 10/03/2022
10 March 2022	[Drugs Misuse Act] 10(2)(b) Possess utensils or pipes etc that had been used (on 29/07/2018) [Drugs Misuse Act] 10a(1)(a) Possess property suspected of having been acquired for the purpose of committing a drug offence (on 04/10/2018) [Drugs Misuse Act] 10(2)(a) Possess utensils or pipes etc for use (on 15/04/2020) [Drugs Misuse Act] 10(2)(b) Possess utensils or pipes etc that had been used (on 15/04/2020)	On all charges conviction recorded Sentenced imprisonment: 1mo concurrent Declare that time spent in pre-sentence custody be deemed as time already served under this sentence - 133d (28/10/2021 to 09/03/2022) Parole release date: 10/03/2022
10 March 2022	[Criminal Code] 433(1) Receiving tainted property (on 04/10/2018)	Conviction recorded Sentenced imprisonment: 4mo concurrent Declare that time spent in pre-sentence custody be deemed as time already served under this sentence - 133d (28/10/2021 to 09/03/2022) Parole release date: 10/03/2022
13 April 2018	[Criminal Proceeds Confiscation Act] 252(1) Possess tainted property (on 30/01/2018)	Conviction recorded Sentenced imprisonment: 6mo to be suspended for: 2y concurrent
13 April 2018	[Drugs Misuse Act] 9(1) Possessing dangerous drugs (on 04/01/2018) [Weapons Act] 50(1)(c)(iii) Unlawful possession of weapons category a, b or m (on 04/01/2018) [Drugs Misuse Act] 10(2)(a) Possess utensils Or pipes etc for use (on 04/01/2018) [Drugs Misuse Act] 10(1)(b) Possessing anything used in the commission of crime defined in part 2 (on 04/01/2018)	On all charges conviction recorded Sentenced Imprisonment: 6mo To be suspended for: 2y concurrent
13 April 2018	[Drugs Misuse Act] 9(1) Possessing dangerous drugs (on 09/06/2017) [Drugs Misuse Act] 10(2)(b) Possess utensils or pipes etc that had been used (on 09/06/2017) [Drugs Misuse Act] 10(4) Fail to take reasonable care and precautions in respect of syringe or needle (on 09/06/2017) [Drugs Misuse Act] 10a(1)(b) Possess property suspected of having been used in connection with the commission of a drug offence (on 09/06/2017)	On all charges conviction recorded Probation period: 2y
02 December 2016	[Health (Drugs and Poisons) Regulations Act] 204 Unlawful possession of restricted drugs (on 19/05/2016) [Bail Act] 29(1) Breach of bail condition (between 23/06/2016 and 16/08/2016) [Bail Act] 29(1) Breach of bail condition (on 19/08/2016) [Criminal Code] 488(1)(a) Forgery (on 11/11/2016) [Bail Act] 29(1) Breach of bail condition (between 06/11/2016 and 10/11/2016) [Criminal Code] 488(1)(a) Forgery (between 24/07/2016 and 26/08/2016)	On all charges with traffic matters conviction recorded Sentenced imprisonment: 3mo concurrent declare that time spent in pre-sentence custody be deemed as time already served under this sentence - 22d (11/11/2016 to 02/12/2016) Parole release date: 28/02/2017 License disqualified period: 3mo
02 December 2016	[Weapons Act] 61(b) Possess shortened firearms (on 04/05/2016) [Explosives Act] 34(1) Authority required to possess explosives (on 04/05/2016) [Drugs Misuse Act] 9 Possessing dangerous drugs (on 04/05/2016) [Summary Offences Act] 15(1) Possession of implements that was being or was to be used in relation to particular offences (on 20/05/2016) [Drugs Misuse Act] 10(1)(a) Possessing anything for use in the commission of crime defined in part 2 (on 20/05/2016) [Drugs Misuse Act] 10(4a) Fail to properly dispose of needle and syringe (on 25/10/2016)	On all charges conviction recorded Sentenced imprisonment: 12mo concurrent declare that time spent in pre-sentence custody be deemed as time already served under this sentence - 22d (11/11/2016 to 02/12/2016) Parole release date: 28/02/2017
02 December 2016	[Casino Control Act] 100 Entering or remaining in casino contrary to order or direction (on 20/02/2016)	Conviction recorded not further punished
09 August 2013	[Criminal Code] 408a(1)(a) Unlawful use of motor vehicles aircraft or vessels - use (on 27/09/2012) [Criminal Code] 328a(1) Dangerous operation of a vehicle (on 27/09/2012) [Criminal Code] 328a(1) Dangerous operation of a vehicle (on 27/09/2012) [Police Powers and Responsibilities Act] 754(1)&(2) Fail to stop motor vehicle (on 24/09/2012) [Police Powers and Responsibilities Act] 754(1)&(2) fail to stop motor vehicle (on 27/09/2012) [Criminal Code] 408a(1)(a) Unlawful use of motor vehicles aircraft or vessels - use (between 07/12/2012 and 11/12/2012)	On all charges conviction recorded Sentenced imprisonment: 15mo concurrent declare that time spent in pre-sentence custody be deemed as time already served under this sentence - 141 days (22/03/2013 to 09/08/2013) Parole release date: 09/08/2013 License disqualified period: 6mo License disqualified period: 2y
09 August 2013	[Criminal Code] 408c(1)(d) Fraud - dishonestly gain benefit/advantage (on 07/08/2012) [Police Powers and Responsibilities Act] 791(2) Contravene direction or requirement (on 04/01/2013) [Summary Offences Act] 16 Unlawful possession of suspected stolen property (on 04/01/2013) [Drugs Misuse Act] 10(4) Fail to take reasonable care and precautions in respect of syringe or needle (on 04/01/2013)	On all charges conviction recorded not further punished
[Bail Act] 33(1) Failure to appear in accordance with undertaking (on 23/11/2012)	Conviction recorded Fined: $100.00 Time to pay: 28d
[Bail Act] 33(1) Failure to appear in accordance with undertaking (on 25/01/2013)	Conviction recorded Fined: $100.00 Time to pay: 28d
[Bail Act] 33(1) Failure to appear in accordance with undertaking (on 08/03/2013)	Conviction recorded Fined: $100.00 Time to pay: 28d
Breach of probation order Imposed on 4.9.12 (re: unlawful use of motor vehicles x2, authority required to possess explosives, unlawful possession of suspected stolen property x2, common assault)	For breach of order(s): conviction recorded, admonished & discharged, order(s) revoked, resentenced for original offence(s) Unlawful use of motor vehicle x2: on all charges: conviction recorded Sentenced imprisonment: 9mo concurrent Parole release date: 9.8.13 Authority required to possess explosives, unlawful possession of suspected stolen property x2, common assault: on all charges: conviction recorded Sentenced imprisonment: 2mo concurrent Parole release date: 9.8.13
07 March 2013	[Drugs Misuse Act] 10(2)(a) Possess utensils or pipes etc for use (on 15/02/2013)	Conviction recorded Fined: $100.00 Time to pay: 2mo
20 February 2013	[Drugs Misuse Act] 10(4a) Fail to properly dispose of needle and syringe (on 23/01/2013)	No conviction recorded Fined: $250.00 Time to pay: 2mo
29 November 2012	[Regulatory Offences Act] 5(1)(c) Unauthorised dealing with shop goods (maximum $150) (on 25/10/2012)	No conviction recorded Fined: $250.00 Time to pay: 2mo
04 September 2012	[Criminal Code] 408a(1)(a) Unlawful use of motor vehicles aircraft or vessels - use (on 01/05/2012) [Criminal Code] 408a(1)(a) Unlawful use of motor vehicles aircraft or vessels - use (on a date unknown between 13/03/2012 and 21/03/2012) [Explosives Act] 34(1) Authority required to possess explosives (on 01/05/2012) [Summary Offences Act] 16 Unlawful possession of suspected stolen property (on 01/05/2012) [Summary Offences Act] 16 Unlawful possession of suspected stolen property (on 01/05/2012) [Criminal Code] 335 Common assault (on 08/04/2012)	On all charges Conviction recorded Probation period: 12mo
04 September 2012	[Police Powers and Responsibilities Act] 791(2) Contravene direction or requirement (on 29/04/2012) [Weapons Act] 51(1) Possession of a knife in a public place or a school (on 21/04/2012) [Bail Act] 29(1) Breach of bail condition (on 24/05/2012) [Bail Act] 29(1) Breach of bail condition (on 24/05/2012) [Bail Act] 29(1) Breach of bail condition (on 14/06/2012) [Bail Act] 29(1) breach of bail condition (on 21/06/2012) [Drugs Misuse Act] 10(4) Fail to take reasonable care and precautions in respect of syringe or needle (on 13/07/2012)	On all charges conviction recorded Fined: $1,000.00 Time to pay: 28d
10 July 2012	[Criminal Code] 469.9(1) Wilful damage by Graffiti (on 08/06/2012)	No conviction recorded Fined: $100.00 Time to pay: 2mo
11 July 2007	[Drugs Misuse Act] Possessing dangerous drugs (on 23.02.07)	Convicted & fined $250 I/d imp. 3 days Time to pay refer to sper
25 May 2007	[Bail Act] Failure to appear in accordance with undertaking (2 chgs on 18.4.07)	One penalty imposed: convicted & fined $400 I/d imp. 6 days Time to pay 4 months
03 August 2006	[Summary Offences Act] Possess graffiti instrument (on 02.11.05)	Convicted & not further punished
23 November 2005	[Drugs Misuse Act] Supplying dangerous drugs (4 chgs on 17.7.04, 23.7.04, 7.8.04 & 27.8.04) [Drugs Misuse Act] Supplying dangerous drugs (on 27.8.04) above refers to indictment no. new/05	On all charges: conviction recorded Imprisonment 2 years Suspended for 2 years after serving 8 months imprisonment Conviction recorded Imprisonment 8 months Probation 16 months Special conditions: must submit to all such tests, examinations and assessments where and as often as may reasonably be required for the purpose of ascertaining the presence of any dangerous drug in body Declare that time spent in pre-sentence custody be deemed as time already served under this sentence - 5 days (between 5.3.05 & 7.3.05 and between 21.11.05 & 23.11.05)
21 November 2005	[Bail Act] breach of bail condition (on 19/09/05) [Police Powers and Responsibilities Act] contravene direction or requirement (2 chgs on 02/11/05, 09/11/05)	One penalty imposed: convicted & fined $600 I/d imp. 6 days Time to pay 3 months
29 September 2005	[Bail Act] breach of bail condition (btn 11 & 25/08/05)	Convicted & fined $300 I/d imp. 10 days Time to pay 28 days
07 June 2005	[Drugs Misuse Act] possess property suspected of having been used in connection with the commission of a drug offence (on 28.04.05)	Convicted & fined $500 I/d imp. 10 days Time to pay 28 days
30 November 2004	Regulatory Offences Act unauthorized dealing with shop goods (maximum $150) (on 12.11.04)	Convicted & fined $75 I/d imp. 2 days Time to pay 2 months
11 November 2004	[Drugs Misuse Act] possessing dangerous drugs (on 25/09/04) [Drugs Misuse Act] possess utensils or pipes etc (not to be used for needles & syringes) (on 26/09/04)	One penalty imposed: convicted & fined $1000 I/d imp. 3 months Time to pay 1 year
20 July 2004	[Drugs Misuse Act] possessing dangerous drugs (on 20.07.04)	Convicted & fined $800 I/d imp. 16 days Time to pay 4 months
21 May 2004	[Vagrants, Gaming and Other Offences Act] possess graffiti instrument (on 3.5.04)	Convicted & fined $360 I/d imp. 6 days Time to pay 28 days
12 May 2004	[Criminal Code] wilful damage (between 1/1 & 8/7/03)	Convicted & fined $200 I/d imp. 4 days Time to pay 6 months Restitution $200 I/d imp. 4 days Time to pay 6 months
06 May 2004	[Drugs Misuse Act] possessing dangerous drugs (on 1/4/04)	Convicted & fined $450 I/d imp. 9 days Time to pay 3 mths
09 October 2003	[Regulatory Offences Act] wilful destruction of property without consent and thereby caused a loss of $250 or less (on 07.11.02)	Convicted & fined $200 I/d imp. 3 days Time to pay 2 mths Restitution $33
10 May 2002	[Police Powers and Responsibilities Act] contravene direction or requirement (on 26.12.01) [Vagrants, Gaming and Other Offences Act] behave in a disorderly manner (2 chgs on 02.11.01 & 27.4.02) [Police Powers and Responsibilities Act] obstruct police officer (02.11.01) [Police Powers and Responsibilities Act] assault police officer (on 02.11.01) [Police Powers and Responsibilities Act] contravene direction or requirement (on 27.4.02)	One penalty imposed: with traffic convicted & fined $1000 I/d imp. 3 mths Time to pay 4 mths License disqualified 2 yrs One penalty imposed: convicted & fined $600 I/d imp. 3 mths Time to pay 4 mths On assault charge: compensation $600
27 April 2002	[Bail Act] breach bail undertaking (on 08/01/02)	No conviction recorded Fined $300 I/d imp. 5 days Time to pay 3 months
07 November 2001	[Drugs Misuse Act] possessing dangerous drugs (18/10/01)	Convicted & fined $300 I/d imp. 5 dys Time to pay 3 mths
02 October 2001	[Regulatory Offences Act] unauthorized dealing with shop goods (maximum $150)(on 01/10/01) [Drugs Misuse Act] Possessing dangerous drugs (on 13/08/01)	One penalty imposed: convicted & fined $600 I/d imp. 10 days Time to pay 3 months
10 April 2001	[Vagrants, Gaming and Other Offences Act] publish distribute exhibit indecent or obscene publication (on 30/11/2000)	No conviction recorded Convicted & fined $150 I/d imp. 3 days Time to pay 2 months
10 April 2001	[Criminal Code] Wilful damage (on 19.3.01)	No conviction recorded Recognizance $200 & to be of good behaviour for 4 mths Restitution $400 in default levy in distress Time to pay 4 mths