King and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 3610

King and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 3610 (11 October 2024)
Division:GENERAL DIVISION
File Number:2024/5511
Re:Gabriel Agyenim KING
APPLICANT

Minister for Immigration, Citizenship and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Senior Member Hon J Rau SC
Date:11 October 2024
Place:Adelaide

The decision under review is affirmed.
...............................[sgnd].....................................
Senior Member Hon J Rau SC
CATCHWORDS
MIGRATION – mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa under section 501(3A) – where Applicant does not pass the character test – Applicant has substantial criminal record – Past visa cancellation on 3 December 2020 - cancellation revoked and warning issued on 2 November 2022 – on 28 March 2023 Applicant apprehended possessing methylamphetamine with intent to sell or supply – convicted – Applicant’s visa was mandatory cancelled again on 30 January 2024 - consideration of Ministerial Direction No. 110 - decision under review is affirmed.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 50
SECONDARY MATERIAL
Minister for Immigration, Citizenship, and Multicultural Affairs (Cth), 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
Senior Member Hon J Rau SC
11 October 2024
INTRODUCTION

The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) on 26 July 2024,[1] not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (“the visa”). The visa was cancelled on 30 January 2024 under section 501(3A) on the basis that he did not pass the character test.[2]
[1] Exhibit 2, G-Documents, G4: Decision by delegate, 23; G5: Statement of reasons for decision, 24-36.
[2] Ibid Attachment R: Notice of visa cancellation (dated 30.01.2024), 182-8.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of his conviction of “possessing methylamphetamine with intent to sell or supply”.[3]
[3] Ibid Attachment A: National Criminal History Check, 38.
The Applicant concedes that he does not pass the character test.
The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to s 501CA(4)(b)(ii) of the Act.
The hearing was held on 1 October 2024 via Microsoft Teams. The Applicant was self-represented and the Respondent was represented by Ms Elle Tattersall of Minter Ellison.
The Applicant gave evidence via Microsoft Teams from Yongah Hill detention centre. He presented as a courteous, neatly dressed, intelligent young man. His answers to questions were generally responsive and to the point. He provided information to the Tribunal that added additional context to his story. Some of this new information however, contradicted material previously provided by the Applicant and others. This will be discussed in more detail below, but some examples concern the nature and extent of his connection with a youth gang in Sydney and his relationships with his family, his partner and her son.
I noted that when the Applicant was pressed on matters obviously relevant to the merits of his case, he tended to become evasive. He demonstrated limited insight and a propensity to blame others for his conduct. For example, he said that carrying a weapon such as a knife, or in his case a machete, was normal behaviour in western Sydney. He also demonstrated a reluctance to say anything at all concerning the identity of his gang friends or his drug contacts. This remained so even after he was assured that the Tribunal would not publish any names revealed by him. These were relevant questions because they may have assisted in understanding the Applicant’s networks. This in turn is relevant to assessing his risk of reoffending, if he has maintained those contacts.
The Applicant did not call any witnesses. In this case, this omission adds to my concern about the voracity of his statements. This failure denied the Tribunal the benefit of hearing from people who have provided supporting statements. It denied the Tribunal the opportunity of testing their evidence, and his.
No explanation for this failure was offered.
The Applicant places considerable emphasis on his relationship with his partner (O.O) and her son (Child A). He makes various claims about their wellbeing. He makes claims about the nature of their relationship and their plans for the future. She has provided written material, but she was not called. None of her family, with whom she lives, were called.
The Applicant places considerable emphasis on his support for his immediate family and to a much lesser degree, his extended family in Ghana. He makes various claims about the wellbeing and financial status of his mother, his sister and his brother. None of his immediate family were called. His brother did not provide a statement.
No independent expert evidence was called providing a current risk assessment. No expert or independent evidence was provided regarding the health, or financial circumstances of any of his immediate family, his partner, or her son.
Having regard to all of the evidence, I have come to the view that the Applicant’s evidence is unreliable. It contains convenient lacunas and misleading, if not false assertions. Unless his evidence is supported by independent sources, I generally do not accept critical assertions of fact made by the Applicant.
Background Facts
The Applicant was born in 2001 in Auckland, New Zealand.[4] He is 23 years of age and a citizen of New Zealand.[5]
[4] Ibid Attachment F: Personal Circumstances Form, 89.
[5] Ibid.
The Applicant’s parents came to New Zealand from Ghana in 1997.[6] The Applicant says that he has no family remaining in New Zealand.[7] The Applicant has no biological extended family in Australia although there are some long-term family friends whom he regards as if they were uncles, aunts or cousins. One of the co-offenders in his 2019 violent crimes (R.J.T), is a “cousin” in this sense. The Applicant has maintained contact with R.J.T on a continuing basis, since these offences.[8]
[6] Exhibit 4, Respondent’s Tender Bundle, 246.
[7] Exhibit 2, G-Documents, Attachment G: Letter from the Applicant to the Department (dated 18.04.2024), 108-9.
[8] Ibid Attachment N: Visit History, 120-70.
On 21 February 2004, the Applicant arrived in Australia[9] with his parents and his older brother (G.J.K).[10] He was almost 3 years old.
[9] Ibid Attachment Q: Movement record, 181.
[10] Ibid Attachment F, 91; Attachment G, 108.
On 20 March 2006, the Applicant departed Australia for 6 months.[11]
[11] Ibid Attachment Q: Movement record, 181.
The Applicant told the Tribunal that he went to visit family in Ghana. He lived with his grandparents in the “family house”. He has relatives on both of his parent’s sides still living in Ghana. His grandfather is now deceased. The Applicant agreed that he would have a right to live in Ghana should he choose to do so. He could be supported by family there. He said that this was not a desirable option however, because of the economic circumstances there.
On 30 September 2006, the Applicant returned to Australia, and he has remained here since.[12]
[12] Ibid Attachment Q: Movement record, 181.
In about 2007, when the Applicant was about 6 years of age, his father left the family. The Applicant states that “we have never seen him again”.[13] He told the Tribunal that there was also one isolated contact with his father, when he was first imprisoned.
[13] Ibid Attachment F, 88.
No statement has been provided to the Tribunal by the Applicant’s father.
The Applicant completed year 10. He left school at the start of Year 11 to support his family.[14] He says that he left school without his mother’s knowledge.[15]
[14] Ibid 99.
[15] Exhibit 3.1, Applicant’s Bundle of Documents: Applicant’s Submissions 1 (Direction 110), 1.
The Applicant says that after leaving school, he found a labouring job – doing water proofing while also attending TAFE.[16]
[16] Ibid.
On 20 January 2016, the Applicant was assaulted in his home, by his older brother (G.J.K).[17] This occurred in the presence of his younger sister (S.K). Both the Applicant and SK were minors at the time.
[17] Exhibit 4, Respondent’s Tender Bundle, 125.
On 1 February 2016, an AVO was made to protect members of the Applicant’s family from G.J.K. This expired on 26 January 2018.[18]
[18] Ibid 124.
Police records dated 18 February 2017, state that the Applicant and other family members were protected persons under a final Apprehended Violence Order made against G.J.K. This order prevented G.J.K from residing with the protected persons, including the Applicant.[19]
[19] Ibid 122-3.
The Applicant was asked about this, but he could not recall details. He did say that at some stage, his brother was required to live elsewhere, although he would return from time to time.
From July 2018 – July 2019, the Applicant says that he was employed as a water proofer and labourer.[20] He resumed working as a labourer briefly in January 2023 – February 2023.[21]
[20] Exhibit 2, G-Documents, Attachment F: Personal Circumstances Form, 99.
[21] Ibid 99.
On 8 June 2019, when he was 18 years old, the Applicant was involved in a police pursuit. The police fact sheet says:
“About 11.45pm on the 08/06/2019 a job was broadcast via Police radio regarding a male that had been slabbed multiple times on Kidd Close Bidwill. Police have arrived at the scene and confirmed that a young male had been stabbed multiple times. Further information was broadcast via Police radio that a vehicle of interest involved in the stabbing had decamped with the alleged offenders on board. The description broadcast was a dark coloured ford falcon with a partial registration of [x].
About 2350, Police observed motor vehicle New South Wales registration [x], a dark coloured ford falcon travelling west on Mackellar Street Hebersham. This is only a short distance from where the stabbing occurred. The vehicle has turned right onto Carlisle Ave, failing to indicate. Police have followed the vehicle along Carlisle Ave and observed it tum left onto Manifold Road. The vehicle has continued along Manifold and turned left onto Popondetta and right onto Bougainville Road. Based on the earlier incident and the description of the vehicle, Police have activated the Police vehicles warning lights to stop the vehicle. The vehicle has pulled over to the left and stopped.
Police have approached the vehicle and observed an occupant in the drivers seat and the front passenger seat. Police have looked into the vehicle and observed a male laying down on the rear seat of the vehicle attempting to cover himself with a blanket and hide. Police requested that the male sit up to which he complied.
Police observed what appeared to be a knife set and a hammer in the rear off side foot well. All of the occupants of the vehicle appeared extremely nervous. Further information was provided to Police regarding islanders being involved with this stabbing and an earlier stabbing that occurred. Based on all of the above information Police believed that this vehicle and the occupants were involved in the stabbing that had just occurred. Police requested a licence from the driver of the vehicle. The driver has produced a Provisional drivers licence in the name of Gabriel KING. All of the occupants in the vehicle continued to fidget and had to be told a number of times to leave there hands where they could be seen. Police requested that the rear passenger produce some identification, At this time the rear passenger has produced an expired school identification, however as this was occurring the vehicle has accelerated at speed and decamped.
Police have called for urgent assistance and initiated pursuit 2019/1287. Police continued the pursuit due to the fact that this vehicle and the occupants were possibly involved in a serious offence of stabbing a male only minutes earlier. At the time the pursuit commenced the roads were dry sealed bitumen and the traffic was light.
The vehicle continued along Bougainville Road towards Lethbridge Park. Whilst travelling along Bougainville Road the vehicle reached speeds between 40km/h to 70km/h in a 50km hour zone. The vehicle has turned right onto Luxford Road and left onto Palmyra Ave. The vehicle has reached speeds between 60km/h and 90km/h in a 70km/h zone.
The vehicle has turned left onto Australis Drive, however the driver has lost control of the vehicle and collided with the medium strip on Australis Drive where the vehicles off side front tyre has blown and the front guard of the vehicle has fallen off. The vehicle continued along Australis Drive at a speed no greater than 40km/h in a 50km/h zone.
The vehicle has turned right onto Taradale Ave and continued for about 300 metres at a speed of 30km/h to 40km/h due to the damage occasioned to the vehicle. At the end of Taradale Ave the road sweeps to the left onto Semaphore Street. On this bend the vehicle has stopped parallel next to a parked vehicle on the western side of the road. This restricted the driver from exiting the vehicle. The passengers of the vehicle were attempting to get out of the vehicle from the near side. Police have attempted to block the rear passenger of the vehicle opening the rear door to escape by placing the front of the Police vehicle near the door. As this occurred, the rear passenger has flung open the door which caused minor damage to the front of MD7. The rear passenger has retreated to the other side of the vehicle and has some how exited the vehicle, possibly via the window.
At this time all three occupants of the vehicle have decamped in opposite directions. A perimeter was immediately fanned with the assistance of both PolAir and the dog squad. A short time later an informant has spoken with Police and stated that he observed three islander males crossing into Wilmott. Police extended the perimeter, however the occupants could not be located.
It has been confirmed that the driver of the vehicle was Gabriel KING. The school identification was later located and the rear passenger of the vehicle is confirmed as [x]. At this time Police are still making enquires in regards to the third occupant.
Police have searched the vehicle and located a large amount of weapons and gloves. These weapons included a medium size kitchen knife on the foot well of the front passenger, knuckle dusters with a knife attached in the glove box, a large axe under the front passenger seat, a large kitchen knife in the pocket behind the front passenger seat, a hammer behind the drivers seat and two sets of gloves within the vehicle.
Between the 15th of June and the 20th of July Police have attended the accused address and no persons have been home. Police have spoken with the accused via phone and his next of kin where appointments were scheduled. However, each appointment was broken and the accused did not attend the Police Station.”[22]
[22] Exhibit 4, Respondent’s Tender Bundle, 51-4.
This was put to the Applicant. He agreed that most of the facts in the police record were correct. He was at pains to clarify however, that the stabbing referred to, had nothing to do with him, or his passengers. When asked to do so, he initially refused to name them. He said that “saying any name can be highly frowned upon”. He eventually gave a first name for each. He said that he was unaware that there were any weapons in the car, including those in the front of the vehicle. I do not accept that this was true. He also stated that at the time he was in a “financial panic……after I gave the police my documents. I was under pressure from people in the vehicle to escape…... I caved into peer pressure and committed the offence”.
I note that this is a different account to that contained in his statement provided to the Respondent on 11 February 2022. In that account, he said that he did not stop the vehicle before taking off.[23] In his recent statement, he said: “I was not coping well with the pressure[24] and started to fall in with the wrong crowd, this caused me to panic when getting stopped by the police and driving away instead”.[25]
[23] Exhibit 4, Respondent’s Tender Bundle, 237 at [9].
[24] Financial pressure.
[25] Exhibit 3.2, Applicant’s Submissions 2, 1.
On 17 August 2019, the Applicant was involved in the commission of serious violent offences in the company of others. The particulars are set out in the sentencing remarks, reproduced below. The Applicant was as the time, associated with “a self-styled gang known as the Greater Western gang”.[26]
[26] Exhibit 2, G-Documents, Attachment D: Sentencing remarks of the District Court of New South Wales (20.11.2020), 47.
In the Applicant’s recent submissions, he states: “Around this time I had just lost the job I had been working with since I left school and had been given a great deal of financial responsibility by my immediate family here as well as family overseas".[27]
[27] Exhibit 3.2, Applicant’s Submissions 2, 1.
When asked about this the Applicant said that he was supporting his mother and sending money to Ghana. When pressed for details, he was vague.
He insisted that he was not a gang member. He drew a distinction between being a member and associating with friends who were gang members. A Gang styled jumper found by police in his house when they conducted a search, belonged to someone else, he said. He said that he carried a weapon for his own protection, and that this was commonplace in western Sydney.
It is also significant that the Applicant was filmed during the assault by a co-offender. A “points system” apparently allocated different scores to gang members performing different crimes. The highest points were given for a stabbing.[28] When asked about this he commented that “if it is not filmed, it didn’t happen”. He was also photographed wearing the victim’s stolen watch. He sought to pass this off by saying that it was a different watch, given to him by his mother.
[28] Exhibit 2, G-Documents, Attachment D, 55.
Whether or not the Applicant was recognised as a formal member of a gang, as the Sentencing Judge observed, “is a matter of semantics”.[29]
[29] Ibid 60.
On 21 August 2019, the Applicant was taken into custody.[30] He remained in prison until 20 June 2022.[31]
[30] Exhibit 2, G-Documents, Attachment D, 84; Exhibit 4, Respondent’s Tender Bundle, 108.
[31] Exhibit 4, Respondent’s Tender Bundle, 55.
On 16 September 2019, a search of the Applicant’s shared cell discovered a gaol made weapon, hidden behind a mirror in the shower. The Applicant told the Tribunal that he was new to the cell and knew nothing about the object.
A sentencing Assessment Report dated 3 October 2019 relevantly states:
“Attitudes
·Mr King took minimal responsibility for his offending and did not consider his actions to be serious.
·He stated that his evasion of police was an impulsive decision. He was concerned with the consequences associated with entering the custodial environment.
Driving
·Mr King acknowledged that his reckless driving was dangerous however did not appear to consider the offence as serious.
Insight into impact of offending
·Mr King stated that he "felt pretty bad" about the consequences his offending may have had on the community. He acknowledged the negative impact his offending has had on himself.
Substance abuse
·Mr King stated that he engages in recreational alcohol use on a weekly basis. He denied that his use is problematic.
Willingness and ability to undertake intervention
·Mr King stated his willingness to complete the Traffic Offenders Intervention Program.
Willingness and ability to undertake community service work
·Mr King stated he was unwilling to undertake community service work.
Risk assessment
·Mr King has been assessed at a Medium/Low risk of reoffending according to the Level of Service Inventory- Revised (LSI-R).”[32]
[32] Exhibit 4, Respondent’s Tender Bundle, 61-3.

On 9 October 2019, the Applicant was convicted of “police pursuit - not stop – drive recklessly” in the Mt Druitt Local Court. He was eventually sentenced to 8 months imprisonment back dated to 17 August 2019. He was ordered to serve a non-parole period of 3 months. He was also disqualified from driving for 3 years.[33]
[33] Exhibit 2, G-Documents, Attachment A, 39.
On 9 December 2019, NSW prison records note that the Applicant was involved in a fight with another inmate.[34]
[34] Exhibit 4, Respondent’s Tender Bundle, 68.
When asked about this, he said that he was acting in self-defence.
On 3 June 2020, the Applicant’s solicitor signed a statement of agreed facts on sentence. This included the following passages:
“AGREED FACTS ON SENTENCE
Regina
-v-
GABRIEL KING
Charges:
2 x Assault occasioning actual bodily harm in company, s 59(2) Crimes Act 1900
Maximum penalty: 7 years imprisonment
1 x Aimed with intent to commit an indictable offence, s 114(1)(a) Crimes Act 1900
Maximum penalty: 7 years imprisonment
1 x Receive stolen property, s 188 Crimes Act 1900
Maximum penalty: 10 years imprisonment
Background
1. The offender is associated with the ‘Greater West’ gang, also known as ‘14’, or ‘27 District’. The gang is based out of Mount Druitt, postcode 2770. It has received some media attention from its hip hop / rap music videos on social media.
2. The ‘Greater West’ are presently in a long running, turf war style feud against the 'Inner West' gang, also known as ‘G40’; this gang is based in Guildford. The feud has been ongoing and has involved public acts of violence by other members, spurred on by provocative postings on social media and the creation of hip-hop songs which taunt the other side.
3. The offences in question· relate to three sets of offending in the Parramatta precinct along the riverside end of Church Street. The offending started on the Church St bridge (“the first offence”), proceeded along the bridge onto Church St itself (“the second offence”) then ended up in a Church St convenience store (“the third offences.) They involved, at various points, five separate offenders and 2 victims (in addition to another man who was chased by them in the lead up to the second offence.
The night in question:
4. On 17 August 2019, [A.S] and [D.S] were in the Parramatta area with a friend, [F.G]. [A.S] posted a photograph of himself on Snapchat identifying that he was in Parramatta. [A.S] is apparently an associate of the Inner West gang. [A.S] and [D.S] had been the victims of a stabbing 2 weeks prior, to which R.J.T has pleaded guilty and for which B.S stands charged. The bases for their responsibility are outlined in the statement of facts for that matter. There is no allegation of the accused having any involvement with that matter.
5. On the same evening, the offender, along with co-offenders R.J.T, A.A and B.S were together at the North Parramatta McDonalds. Jbis is at the "stadium end" of Parramatta. At around 11:04pm, the offenders and an unidentified male walked south down Church Street away from the stadium precinct towards the Parramatta CBD. At that point, Church Street becomes a sandstone bridge which crosses the Parramatta River.
6. Around 11:15pm, [A.S], [D.S] and [F.G] walked across the sandstone bridge, heading north. The offenders crossed the bridge walking in the opposite direction. R.J.T approached [A.S] and blocked his path; he was quickly joined by the offender, B.S and the unknown male. A.A, who had walked past [A.S] originally, jogged back towards the group to join them.
The first offence:
[x] - Assault occasioning the actual bodily harm of [A.S] in company, s 59(2) Crimes Act 1900 (A.A, King, B.S and R.J.T)
7. One of the offenders told [A.S] to “get on your knees”; [A.S] responded, “I don't want any trouble”. The offender punched [A.S] to the face before R.J.T grabbed hold of him, tripping him and punching him as he fell to the pavement.
8. Whilst he was on the ground, R.J.T kicked and kneed [A.S]. B.S then kicked [A.S] to the face and stepped on his shoulder, before the offender stomped twice on his head (see still 1). As [A.S] sat up, the offender punched him to the face (see still 2). At some point during the assault, [A.S]’s watch was removed.
9. [A.S] managed to get up off the ground and ran across the road to the other side of the bridge. As a result of this assault, [A.S] received cuts to his upper lip. He did not seek out medical treatment.
10. A.A recorded the assault in slow-motion on his mobile phone; this footage is to be played at sentence.
11 . After the assault on [A.S] the co-offender B.S left the group.
The second offence:
Common Assault. s 61 Crimes Act 1900 (R.J.T and A.A only)
12. The other offenders ran after [D.S] and [F.G] who were walking down Church Street. R.J.T approached [F.G] from behind and punched him to the back of the head.
13. [D.S] ran towards the road and the offender followed him. [F.G] ran further down Church Street, whilst A.A swung three punches at his head from behind. The offender, King and the unknown co-offender follow shortly after, running at pace.
14. The offender is not charged arising from this incident.
The third offences:
[x] - Assault occasioning the actual bodily harm of [F.G] in company, s 59(2) Crimes Act 1900 (A.A, King, and R.J.T)
[x] Armed with intent to commit indictable offence, s 114(1)(a) Crimes Act 1900 (King only)
15. The pursuit continued into the “Eat Street” precinct. R.J.T caught up with [F.G] outside of the Xpress Mart on Church Street, opposite the Bay Vista Cafe. R.J.T placed a hand on [F.G]'s shoulder and instructed him to kneel. When [F.G] did not comply, R.J.T said “get on your knees or I'll blow your brains out”. The third offences were recorded by A.A on his mobile phone and on the Xpress Mart CCTV. This footage will be played upon sentence.
16. [F.G] ran inside the store. The offender and R.J.T punched [F.G] to the head before the offender produced a machete from his pants and hit [F.G] to the face once with the blade of the knife. The offender attempted a second blow but was blocked by [F.G], causing the offender to drop the machete. The machete was 53 cms long, with the blade itself measuring 40 cms.
17. The offender and R.J.T continued to hit, kick and knee [F.G] who can be heard pleading to be left alone. At one point, A.A approached the group and kicked the victim whilst he was held by the others.
18. R.J.T retrieved the machete from the floor as the unknown male approached the Xpress convenience store and yelled “let's go, let's go, the cops”. The offenders fled on foot. As they fled, the offender removed his grey jumper, abandoning it on the street, and his hat which he placed in a nearby bin.
19. Police attended and spoke to [A.S] and [F.G]. [F.G] received a cut to his nose and [A.S] a cut to his lip.
20. Following the incident, A.A filmed himself and R.J.T cheering and expressing their support for “Greater West”. This is depicted in the stills to the right.
[x] - Receive Stolen Property, s 188 Crimes Act 1900 (King only)
21. Later that evening, A.A filmed the offender and R.J.T dancing and rapping. The offender is seen wearing the gold watch belonging to [A.S]. The offender is depicted in the forefront of the stills below.
Investigation and arrest:
22. On 20 August 2019, the offender uploaded a photograph of himself and R.J.T standing in front of the offender's black Mercedes Benz to Facebook. In the photograph the offender is still wearing the gold Nixon watch belonging to [A.S].”[35]
[35] Exhibit 4, Respondent Tender Bundle, 37-41.
The Applicant was taken through these. He agreed that they were accurate. He agreed that he entered a guilty plea. He also said that he had a ”blurred memory” of the events, although he had taken no drugs or alcohol.
A sentencing Assessment Report dated 3 September 2020 relevantly states:
“History of anti-social behaviour
·Mr King has one previous offence of police pursuit - not stop - drive recklessly; he indicated that it was due to impulsivity.
Attitudes
·In discussing the current offences, Mr King said his actions were "stupid", and on reflection, that he should have kept the argument verbal or walked away.
·Further, Mr King said that he had become uncharacteristically angry, and indicated that he may require assistance or treatment to prevent him behaving in such a way again.
Social influences
·Mr King was resistant to the idea that he and his friends are involved in a "gang", and said the word "gang" is just a term used to describe young people who are friends.
·Although he did admit his friends are labelled as gang members, he claimed he was not influenced or pressured to commit the offences.
Violence and aggression
·Mr King said he normally tries to avoid arguments by walking away before things "get heated". However, on this occasion, he became angry during a verbal argument with the first victim, and made no attempt to de-escalate the situation.
·In relation to the machete, Mr King stated he had had purchased it about two weeks before the offences, and had started to carry it "here and there", and for "just in case", but was noncommittal about how often he would have it on his person.
·Mr King's mother said she had never seen her son angry, and believed that this was uncharacteristic of him.
Insight into impact of offending
·Mr King acknowledged that his actions would have caused the victims and witnesses fear. He considered that his actions may have long term effects an those involved.
Willingness and ability to undertake intervention
·Mr King said that he is willing to engage with Community Corrections and participate in interventions as required.
Willingness and ability to undertake community service work
·Mr King said that he is willing to engage with community service work.
Response to supervision
·Mr King has had no previous supervision with Community Corrections. During the preparation of this report he has engaged appropriately.
Risk assessment
·Mr King has been assessed at a Low-Medium risk of reoffending according to the Level of Service Inventory - Revised (LSl-R).”[36]
[36] Exhibit 4, Respondent’s Tender Bundle, 46.
On 20 November 2020, the Applicant was convicted in the Parramatta District Court of the following offences relating to this offending on 17 August 2019:
·     Armed with intent to commit indictable offence
·     Assault occasioning actual bodily harm in the company of other(s) x 2
·     Receive property-theft
He was sentenced to 4 years and 3 months imprisonment, concluding on 20 November 2023.[37] He was ordered to serve a non-parole period of 2 years and 6 months, commencing from 21 August 2019 and concluding on 20 June 2022.[38]
[37] Exhibit 2, G-Documents, Attachment D, 84.
[38] Ibid Attachment A, 38-9.
The sentencing remarks of Judge Harris contain very serious factual findings about the Applicant’s conduct:
“A.A, C.A, Gabriel King and E.F appear before me today to be sentenced for their involvement in various offences of violence committed in the Western Sydney area in August 2019. A fifth offender, B.S is to appear before me for sentence on 4 December 2020. The commission of the offences is related to the offender’s association with a self-styled gang known as the Greater West gang.
…
The victims of those offences are [J.J.M], [A.S] and [D.S]. This offence carries a maximum penalty of ten years’ imprisonment and a standard non-parole period of four years’ imprisonment.
…
Mr A.A and Gabriel King are to be sentenced for offences arising out of two incidents on Church Street, Parramatta on 17 August 2019. Mr A.A is to be sentenced for two offences of assault occasioning actual bodily harm in company contrary to s 59(2) of the Crimes Act. The two victims of those offences are [A.S] and [F.G]. The maximum penalty for this offence is seven years’ imprisonment.
…
The offender Gabriel King is to be sentenced for four offences related to the same two incidents; two offences of assault occasioning actual bodily harm in company upon the same victims, one offence of being armed with intent to commit an indictable offence contrary to s 114(1) (a) of the Crimes Act, maximum penalty seven years’ imprisonment and an offence of receiving stolen property contrary to s 188 of the Crimes Act, maximum penalty ten years’ imprisonment.
The maximum penalty and standard non-parole period for an offence are legislative guideposts for the Court to take into account along with other sentencing practices and principles. The standard non parole period for an offence represents the non-parole period for an offence falling within the middle range of seriousness taking into account only objective factors that affect the seriousness of the offence. The parties have settled on agreed facts in respect of all offences.
…
Turning now to the offences committed by Mr A.A and Gabriel King. On 17 August 2019 [A.S] and [D.S], the victims of the earlier offences, were in the Parramatta area with a friend, [F.G]. [A.S] posted a photograph of himself on Snapchat identifying that he was in Parramatta. On the same evening Mr A.A, Mr King, T. and Mr B.S were together at the North Parramatta McDonalds at the stadium end of Parramatta. Just after 11pm the offenders and an unidentified male walked south down Church Street away from the stadium precinct towards the Parramatta CBD. At that point Church Street becomes a sandstone bridge which crosses the Parramatta river. Around 11.15pm Mr [A.S], Mr [D.S] and Mr [F.G] walked across the sandstone bridge heading north. The offenders crossed the bridge walking in the opposite direction. Mr A.A walked ahead away from his co-offenders. The co-offenders slowed down and were standing around on the other side of the bridge. T. approached Mr [A.S] and blocked his path. He was quickly joined by Mr King, Mr B.S and the unknown male. Mr A.A then jogged back towards the group.
Prior to Mr A.A joining the group the co-offenders had surrounded [A.S] and began to assault him. At some point during that interaction
Mr [A.S]’s watch was removed. One of the offenders told [A.S] to “Get on your knees” and [A.S] responded “I don’t want any trouble.” King punched [A.S] to the face before R.J.T grabbed hold of him tripping him and punching him as he fell to the pavement. Mr A.A filmed the assault using the camera on his mobile phone. Whilst he was on the ground Mr R.J.T. kicked and kneed Mr [A.S]. [x] then kicked [A.S] to the face and stepped on his shoulder before Mr King stomped twice on his head. As Mr [A.S] sat up Mr King punched him to the face. Mr [A.S] managed to get up off the ground and run across the road to the other side of the bridge. As a result of the assault he received cuts to his upper lip. He did not seek medical treatment.
Mr A.A recorded the assault in slow motion on his mobile phone. His culpability is his participation in the joint criminal enterprise to assault Mr [A.S] by filming the assault. After the assault on Mr [A.S] the co-offender Mr B.S left the group. The other offenders, however, ran after Mr [D.S] and [F.G] who were walking down Church Street. R.J.T approached Mr [F.G] from behind and punched him to the back of the head.
Mr [D.S] turned and ran towards the road and R.J.T followed him.
Mr [F.G] ran further down Church Street with A.A following behind him. Mr A.A swung three punches at Mr [F.G]’s head from behind hitting him on two occasions. One of the punches is depicted in CCTV still included in the facts. Mr A.A, Mr King, R.J.T and the unknown co-offender followed Mr [F.G] down Church Street running at pace. I note that Mr King is not charged with this first assault on Mr [F.G].
The pursuit continued into the ‘Eat Street’ precinct. R.J.T caught up with Mr [F.G] outside the Express Mart on Church Street, opposite the Bay Vista Café. R.J.T placed a hand on Mr [F.G]’s shoulder and instructed him to kneel. When he did not comply R.J.T said “Get on your knees or I’ll blow your brains out.” This incident was recorded by Mr A.A on his mobile phone and on the Express Mart CCTV. Mr [F.G] ran inside the store. Mr King and R.J.T punched Mr [F.G] to the head before Mr King produced a machete and struck Mr [F.G] to the face, once with the blade of the knife. Mr King attempted a second blow but he was blocked by Mr [F.G] causing Mr King to drop the machete. The machete was 53 centimetres long with the blade itself measuring 40 centimetres. Mr King and R.J.T continued to hit, kick and knee Mr [F.G] who can be heard pleading to be left alone. Mr A.A continued to film the offending. At one point Mr A.A himself approached the group and kicked the victim on his leg whilst Mr R.J.T and King were assaulting him. R.J.T retrieved the machete from the floor as the unknown male approached the Express convenience store and yelled “Let’s go, let’s go, the cops”. The offenders fled on foot. As they fled Mr King removed his grey jumper abandoning if on the street and placed a hat he was wearing in a nearby bin.
Police attended and spoke to Mr [A.S] and Mr [F.G].
Mr [F.G] received a cut to his nose and Mr [A.S] a cut to his lip. Following the incident Mr A.A filmed himself and R.J.T cheering support for ‘Greater West’. Later that evening Mr A.A filmed King and R.J.T dancing and rapping. Mr King was wearing the gold watch that belonged to Mr [A.S]. Mr King is to be sentenced for receiving that stolen item.
On 20 August 2019 Mr King uploaded a photograph of himself and Mr R.J.T standing in front of Mr R.J.T’s black Mercedes Benz. In the photograph Mr King is still wearing Mr [A.S]’s watch. On 21 August, four days after the offences, police executed a search warrant at Mr A.A’s home where he resided with his brothers and other family. Police arrested Mr A.A and seized clothing similar to that worn by him during the commission of the offences. Police also located a Greater West jumper in the offender’s sister’s bedroom. Police seized the offender’s mobile phone recovering the videos of the assaults upon Mr [A.S] and Mr [F.G]. Police then executed a warrant at the home of Mr King, arresting him at that address. A large black machete, matching the one used in the attack, was seized as well as the gold watch belonging to Mr [A.S] and the Greater West jumper. Both offenders declined to be interviewed.
The facts demonstrate that each of the offenders was acting in association with a gang known as the Greater West gang. The gang is based out of Mount Druitt, according to the agreed facts, the postcode of which is [x]. The gang is also known as 14 or 27 District. The gang received some social media attention in the past for rap music or hip hop videos. At the time of the offences Greater West was in a turf war style feud with the ‘Inner West’ gang based in Guildford, also known as G40. Whilst some, if not all, the offenders now deny being members of the Greater West gang, whether they can be defined or categorised as a member or not is a matter of semantics. At the time of the commission of the offences they were each acting as part of a group closely associated with the Greater West gang joined with a singular aim of targeting members or associates of a different group; although of the four in the group, Mr E.F’s association with the Greater West gang would appear to be the weakest.
The facts in respect of all the principal offences represent demonstrably serious offences of violence. It is important that the sentences ultimately imposed reflect a substantial degree of general deterrence as a warning to others who might see fit to involve themselves in these types of criminal acts of violence. R v Duncan and Perre [2004] NSW CCA 431 was a case involving offences of actual violence and affray that arose from a fight erupting between two groups of youths in the Wollongong area. Wood J in dealing with the manifest excess grounds said this:
“Young offenders who elect to respond to any form of confrontation between different groups need to understand with crystal clarity that sentences of imprisonment await those who cause the confrontation to be elevated to one involving extreme violence. Particularly is that so if they band together in a brutal and cowardly attack with weapons on a single, unarmed and defenceless victim.”
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OBJECTIVE SERIOUSNESS – KING
Mr King was an active principal participant in the assaults upon Mr [A.S] and Mr [F.G]. Mr King was the offender who punched Mr [A.S] to the head and after he was tripped to the ground Mr King stomped twice on his head. As the victim sat up Mr King punched him in the face. In the offence committed in the convenience store Mr King was involved in the punching of Mr [F.G], punching him to the head, hitting, kicking and kneeing him. Mr King was in possession of the machete, he produced it and struck the victim to the face and attempted a second blow. The assault upon Mr [A.S] is high in the mid-range of objective seriousness and the assault upon Mr [F.G] is substantially above the mid-range, towards the higher end. The offence of being armed with intent, given the size and dangerous nature of the weapon and its possession in a public place is at about the mid-range of objective seriousness. The receiving stolen properly offence involved the receiving of a gold watch that the offender knew had just been stolen from the victim of a serious assault in which he was heavily involved. It is, however, below the mid-range of objective seriousness.
…
SUBJECTIVE FEATURES – KING
There was no subjective material tendered in the case for the offender Gabriel King. He did not give or call evidence. I have taken what I can from the sentence assessment report of community corrections officer [M.B] dated 3 September 2020. Needless to say the information I have about Mr King’s background and upbringing is lacking. The offender’s mother, sister, uncle and girlfriend showed their support for him by their presence at Court on the last occasion. The offender intends to return to his family home when released from custody. He holds the status of a lawful non-citizen. It is reasonable to infer that he faces deportation as a result of these proceedings and the commission of the offences.
The offender completed year 11 and commenced work at an air conditioning factory. He says that misunderstandings led him to being fired. He was working as a casual unskilled labourer at the time of the offences. He told Mr [M.B] that he usually tries to avoid arguments by walking away but at the time of the offences he became uncharacteristically angry and made no attempt to de-escalate the situation. Of the machete he said that he had purchased it two weeks earlier and had started to carry it here and there just in case. He resisted the notion that he and his friends were gang members, however admitted his friends are labelled as such. Despite being one of the younger offenders to be sentenced today he claimed he was not influenced or pressured to participate in the offences. When released to parole, community corrections intend to refer the offender to an anger management programme or psychologist and to supervise his engagement in cognitive behaviour modules addressing conflict resolution, communication, environment management and a pro-social lifestyle.
Turning to questions of remorse. An offender’s remorse for his or her offending can be an important mitigating factor on sentence. It can represent self-reproach, a wish to make amends, a commitment to do better in the future and insight into the impact of offending on the victim and on the wider community. As a sentencing judge it is generally easier, although not necessary, to determine the veracity of an offender’s expressions of remorse if they give evidence and, in doing so, expose themselves to challenge or cross-examination. In that way it is easier to ascertain whether statements of remorse are genuine or whether they are proffered only in anticipation of a more merciful sentence. As I have noted none of the offenders gave evidence before me.
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REMORSE – KING
Mr King told community corrections officer, Mr [M.B], that his actions were stupid and that he should have kept the argument verbal or walked away. He acknowledged that his actions would have caused the victims fear and that they may have long term effects on those involved. On balance I am also satisfied that Mr E.F is genuinely remorseful.
Turning to considerations of the offenders prospects of rehabilitation and risk of re-offending.
…
PROSPECTS OF REHABILITATION – KING
Mr King was assessed by community corrections as low to medium risk of re-offending. He expressed willingness to engage with community corrections and to participate in interventions. He has not been the subject of misconduct charges in custody. At the time of the offences he was working as a casual unskilled labourer and he plans to return to the family home upon his release. As I have noted there is a reasonable possibility that he may be deported as a result of these proceedings and his involvement in the offences. He said that he was not influenced or pressured to commit the offences and he indicated that he may require assistance or treatment to prevent him from becoming as angry as he did during the offences. He said he had purchased the machete that he used to strike Mr [F.G] two weeks before the offence and would not say how often he would carry it with him. Despite what I have found on balance to be genuine remorse, and noting his young age, it is difficult on the very limited material that was placed before me to assess Mr King’s prospects of rehabilitation to be any better than guarded. Given the role he played and the very serious offences he committed there must also remain an appreciable risk that he will re-offend.
SENTENCE – KING
Mr Gabriel King is convicted. I reject the submission advanced on Mr King’s behalf that the s 5 threshold has not been crossed as an arrant failure to appreciate the objective seriousness of his offending. Only a sentence of full time imprisonment will address the gravity of what Mr King did. I indicate the following terms of imprisonment.
1. Assault occasioning actual bodily harm in company upon the victim [F.G], a term of four years’ imprisonment.
2. Assault occasioning bodily harm in company of A.S, a term of two years and six months’ imprisonment.
3. Being armed with intent to commit an indictable offence, a term of 15 months’ imprisonment.
4. Receiving stolen property, a term of two months’ imprisonment.
The aggregate sentence I impose upon Mr King is a term of four years and three months’ imprisonment to date from 21 August 2019, the date he was taken into custody and expire on 20 November 2023. I impose a non-parole period of two years and ten months’ imprisonment. Mr King will be eligible for release to parole on 20 June 2022.”[39]
[39] Exhibit 2, G-Documents, Attachment D, 47-85. See also Exhibit 4, Respondent’s Tender Bundle, 37-41.

On 3 December 2020, the Applicant’s visa was cancelled on the basis that the Applicant failed the character test (“first visa cancellation”).[40]
[40] Ibid Attachment O: Notice of visa cancellation (dated 03.12.2020), 171-7.
On 5 January 2021, NSW prison records note that the Applicant was involved in an incident where chemical munitions were used by staff to gain access to a part of the prison.[41]
[41] Exhibit 4, Respondent’s Tender Bundle, 69.
In relation to this, the Applicant said that he had been drinking “home brew” with other inmates. He was intoxicated. He could not recall much, other than waking up “in segregation”.
There was a significant delay in the Applicant seeking a review of the first visa cancellation. A request was eventually made through the Applicant’s then solicitors, on 1 April 2021.[42]
[42] Ibid 198-207.
On 24 May 2021, NSW prison records note that the Applicant received mail from his sister (S.K), containing 22 Suboxone strips secreted inside 3 photographs.[43] I note that his sister was only 16 years old at that time.
[43] Ibid 72.
In relation to this the Applicant said that this was “the first I have heard of this”. He denied ever receiving any drugs in prison/ detention. He denied knowing why anyone would send him concealed drugs. He denied that his sister ever sent him drugs or photographs.
On 1 February 2022, the Applicant completed a personal circumstances form in support of his request for revocation of the first visa cancellation.[44] I note that the Applicant claimed no relevant relationship with any minor child in Australia, other than his sister.[45] He stated that he was single.[46] He gives his reasons for revocation as:
“1. I arrived Australia from New Zealand aged 3. I have lived in the Australia community for most of my life.
2. please consider the Primary and secondary Considerations critical to my personal situation.
a) I am aware of my offending behaviour to date. I admit that my conduct to date are serious in nature. Violence offences are serious in nature. But I have utilised my time in gaol to address my offending behaviour. Evidence of rehabilitation comprise undergoing courses in foundations and aggression. This courses have helped positively.
b) also consider the best interest of my sister S.K who is a minor.
c) I do not have family members in New Zealand I will lack family support if I am forcefully removed to New Zealand.
[44] Ibid 212-230.
[45] Ibid 218.
[46] Ibid 216.
[47] Exhibit 4, Respondent’s Tender Bundle, 229.
d) I have been in Australia since I turned 3 years old. I attended primary and secondary school in Australia. I have also worked while in Australia.”[47]
On 8 February 2022, the Applicant was involved in an assault on another detainee. He said that he was defending an older detainee who was being picked on.
On 11 February 2022, the Applicant completed a statement which relevantly states:
“6. I am aware that the Delegate must have regard to the protection of the Australian community from criminal or serious conducts. I have lived in the Australian community for most of my life, since turning three. This is a privilege that Australia conferred on me. I admit that l have not been law-abiding because I have misbehaved grossly and disrespectfully towards pivotal institutions and causing or threatening harm to people and the Australian community.
…
8. As you may have noticed, I began to offend shortly after turning eighteen (18) and will now have to live the rest of my life with these shameful records. I wish I could turn back the clock and achieve better things.
9. With respect to the offence of police pursuit -not stop; driving recklessly, which occurred sometime in mid-2019 (I can’t recall the actual date), I was driving and noticed that the officers of the NSW Police were behind me. Out of panic, I accelerated the vehicle in a reckless manner and sped off. [48]This was a spur-of-the moment decision. I sincerely regret my actions. I acted stupidly and immaturely.
[48] This is inconsistent with the police account of events.
10. Police pursuits are one of the most challenging operational situations facing police officers in New South Wales and Australia at large. Our gallant police officers are there to protect the Australian community, hence, leading them in a pursuit can involve life-and-death outcomes which should be condemned in all ramifications. Reflecting upon my action. I am guilty, and I feel ashamed of my action. lf I could turn back the dock, l would stop to know why the police were after me.[49]
[49] He did know (see police record).
11. The other four convictions where offences of one day, being, armed with a machete, receive property by theft, and assault occasioning actual bodily harn1 in company in two occasions. These are violent offences and I feel guilt and tension about my offending behaviour on that day. There is no excuse for acting the way I did on the fateful day.
12. I lacked social maturity and the ability to demonstrate necessary attitude for personal, interpersonal, and social attributes of an individual. which are fundamental for functioning appropriately in the Society. I have insight into me offending and I regret them because it led to physical and psychological harm upon members of the Australian community.
13. I am determined to turn a new leaf and undergo various rehabilitative plans to ensure I do not re-offend.
14. Growing up, I struggled with social skills. This is different from being social.
15. I have realised that I love to interact with people. But when I do, it may not go well. I developed difficulty with social skills as a result of my inability to manage a life event. My parent's separation when I was five (5) affected my development and dampened my academic performance and desire to finish year 12.
16. As a single mother, my mother suffered financial hardship and emotional hardship because she was subjected to raising 3 children by herself. I saw her make sacrifices to ensure that the basic needs of I and my siblings were met. As a result, I suffered emotional and social difficulties than other children from stable families.
17. If l am accorded a privilege to remain in Australia. I will not reoffend because I have sought aggression and foundation programs to enhance my ability to manage difficult life events and to decrease aggressive behaviour. I achieved these whilst incarcerated and the programs have also improved my social competence and moral reasoning skills, and to better manage anger.
18. I have a strong family and social network. including a very supportive mother and Mr N.N my previous employer and mentor. Mr N.N is the Founder & Chief Executive Officer of [organisation]. He was also the Australian Day Citizen of The Year [x] and I look up to him for guidance. If I am released into the Australian community. I will be employed as a mentor in training with [organisation]. My role will include helping to feed the homeless, assist in sports programs and leadership programs in the community.
19. I do not have any minor children, but l have a minor sister (S. KING) who is sixteen (16). Please consider her best interest.
20. Although I am not [S. King]'s parent. I have been pivotal in her live emotionally, and since I turned 16. financially as well. I left school to support my mother in running the family financially.
21. [S. King] looks up to me for emotional support. I do my best to protect and guide her. My mother relies on me to discipline and encourage her to finish high school. Upon my incarceration, my mother had to take multiple shifts as a support worker to pay household and legal bills and there is no one available to play the role I play in [S. King]’s life. I have been important to her life because I was able to help her communicate with our mother across a cultural and generation divide. [S. King] trusts me with her personal and emotional issues and retracts from my mother and brother. My brother has not been able been able to perform this role in my absence as he has battled mental health problems. Sometime last year 2021, my mother told me that my brother was sick and had been admitted at [institution], a [x] Hospital inpatient mental health unit. My brother has some serious mental health challenges. I doubt that he can assist our minor sister to the extent l have and can in the future or replace the importance of my roles in her life.
22. I also provided day to day care or [S. King], including taking her to school, helping her with homework and taking her out lo social activities. My Mother is a traditional African woman, and she does not understand the importance of my roles to [S. King]. I am a father figure to my sister, and I try to shield her from the hard things of life.[50]
23. Please consider the extent of impediments I may face if I am removed from Australia to New Zealand as this is relevant for your consideration. The thought of deportation has caused me deep depression. I do not have strong family or social support in New Zealand because my parents were African immigrants in New Zealand. My mother inculcated in the minds of my siblings and I, the importance of us sticking together as a family. If I am deported to New Zealand, I may never see my family again. My mother may not be able to visit me due to her stretched finances and my brother needs to be in Australia to follow up with his health professionals. These impediments will permit few if any visits from my immediate family.
24. My mental health is likely to be adversely affected too if l try to establish myself in New Zealand, a country I left 3 years after my birth, as a child of immigrant parents. I have never gone back to live in New Zealand since I left there as a child. I have no connection whatsoever there I will have to try to find accommodation and work to support myself and my family in Australia. while isolated from them. In these circumstances, I fear that I may regress in the steps I have taken towards relapse prevention, which may result in anti-social behaviour and reoffending.
25. Please consider the impact of the decision to cancel my visa to my immediate family members in Australia who have indefinite right to remain in Australia. As I have mentioned earlier, my older brother is battling mental health problems and a decision to deport me may likely exacerbate his mental health.
26. Also consider the strength, nature and duration of any other ties I have to the Australian community and have regard to the fact that I arrived in Australia as a child and the time I have spent contributing positively to the Australian community.
27. I have resided in Australia since 2004 when I arrived aged three (3). l attended [x] High School [x] and was awarded half scholarship to play rugby at representative level until required to leave school to work to help support my family financially. l was active in the church with my family.
28. The offences that led to my visa cancellation were committed when I was 18 years old. I worked for about three years before I was incarcerated. Since leaving school, I have worked at [business], labouring work secured Air conditioning Apprentice work through the assistance of [organisation]. My previous employer provided a reference letter to attest to my work ethic and general behaviour.
29. As well as the adverse impact my deportation from Australia will have on my brother and minor sister, my deportation will harmfully, impact my mother because my capacity to contribute financially to the family will diminish as well as my capacity to provide emotional support to my sister.”[51]
[50] Prison records suggest that she may have supplied him with drugs secreted in photographs.
[51] Exhibit 4, Respondent’s Tender Bundle, 235-241.
I note the Applicant’s assurances, highlighted above, that he would not reoffend if his visa was returned.
A supporting statement from his mother says:
“4. I speak to my son regularly since his incarceration. We have had mother-son discussion about his offending and accept that his offending covers a wide range of behaviours from reckless acts, receive property by theft and physical assaults causing injury. These are very serious offences indeed. Notwithstanding, I plead with the office of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to consider various factors that are personal to my son, including his prospect of rehabilitation.
5. From my discussions with him following his incarceration, my son has deep insight into his offending and has modelled his thinking and behaviour so he will, notwithstanding his past offending, re-establish himself in the community with an awareness to reject wrongdoings, criminal offending and to be a worthy law-abiding resident.
6. I testify to various factors that can assist him in attaining a reasonable prospect of rehabilitation. These include but not limited to his character, criminal history, age, conduct between offending and sentence, therapeutic treatment, offence targeted programs and support networks. My son has a good standing amongst family and our religious community in Sydney which can assist his rehabilitative goals.
7. My son's prospects of rehabilitation should not be low because he does not have a history of repetition of offences.
8. It is also imperative to note that my son's aggressive behaviour may be associated with witnessing family violence, when I was a victim of physical and psychological abuse, perpetrated by my ex-husband and the father of my children who used to establish power and control over me. All my children witnessed this in our home, and I believe some of my children developed cognitive, behavioural, and emotional problems from witnessing series of abuses from my ex.
9. My youngest child (S. KING) is sixteen (16) years of age, and my son has played vital roles in her upbringing. He protects her from harm, provides her with food and clothing from his pay cheque and supports her financially. [S. King] does not have relationship with my ex, so she relies on my son for emotional support, safety, supervision and control and assistance with schoolwork.”[52]
[52] Exhibit 4, Respondent’s Tender Bundle, 246-7.
On 15 February 2022, another mail item, addressed to the Applicant was intercepted. This also contained drugs concealed in photos. The sender was a woman named J.S. The Applicant said that he had never heard of J.S. He said that he knew nothing about this. [53]
[53] Exhibit 4, Respondent’s Tender Bundle, 74.
A supporting statement from his Pastor dated 3 April 2022 states:
“3. Prospect of successful rehabilitation
There is a 100% likelihood of recovery for Gabriel within the Sydney community. As a shepherd, to the best of my knowledge, he is very submissive and listens to instructions. Coming back would allow him to use his experience to address his brethren and let them be aware that the Law is no respecter of persons.
4. Mr King's role and commitment to the church
[54] Exhibit 4, Respondent’s Tender Bundle, 248-50.
He was an active church member and a member of the church's youth group.”[54]
On 28 February 2022, the Applicant was involved in a group assault on another inmate.[55]
[55] Ibid 86.
On 4 April 2022, a NSW Justice pre-release report stated:
“Circumstances at the time of the offence
At the time of the offences, Mr King was living in the family home with his mother, sister and brother. He said he had been casually employed as a labourer during the six months leading up to the offences. Mr King stated he had previously worked for an air conditioning company but had lost that employment due to a “falling out” with his employer. He said he had been associating with his “normal” friends one of whom was a co-offender.
Current family and social circumstances
Mr King has a supportive relationship with his mother and siblings. He has had regular contact and video visits from family members and friends throughout his incarceration. The latest video contact was on 27 March 2022 with a cousin.
Mr King's mother has agreed that he can return to live in the family home with her and his two siblings, who are aged 24 and 16 years. Inquiries with Mr King's mother indicated it appears that it will be a supportive family environment. While his mother was aware of his criminal history it appeared that she had limited knowledge of his associations outside of the family home. However, she is willing to work with Community Corrections should he be subject to parole supervision.
History of anti-social behaviour
Mr King's criminal history is limited to one prior conviction for his involvement in a police pursuit. However, his current offences involved a serious level of violence committed in the company of co-offenders. Mr King has also incurred several misconduct charges during his incarceration for defiant and aggressive behaviour.
Attitudes
Mr King has shown very limited insight into his offending behaviour. He was unable to provide an explanation for committing the offences, claiming he and his friends were “in the wrong place at the wrong time” and that it had occurred a long time ago. While he said, “words were said” and the situation “escalated” he was could not recall what the argument was about. He offered a strategy of having stable employment and keeping himself busy with hobbies, as a means of avoiding involvement in a similar situation in the future, as well as just “walk away”.
Social influences
The current offences were committed in company of co-offenders. The Judge's Sentencing Remarks note that the commission of the offences was related to the offenders' (Mr King and his co-offenders) association with a self-styled gang known as the Greater West gang [pages 1 & 14]. However, Mr King denied being a member of this gang and only associates with friends from school, although he thought one of the co-offenders may have been associated with this gang.
Mr King claimed that he had not been influenced by any of his co-offenders when committing the assaults.
At the time of the offending, the ‘Greater West’ gang was based out of Mount Druitt and were involved in a long running turf war style feud against the ‘Inner West’ gang [Agreed Facts on Sentence, paragraphs 1 & 2].
Violence and aggression
Mr King was described in the JSR as being an active principal in the assaults upon two of the victims [page 18]. The offences involved a serious level of violence. Mr King also had in his possession a machete which he used to strike one of the victims in the face. He said he had bought the weapon approximately two weeks earlier but could not explain why he had it with him on the night of the offences.
While Mr King has said that he is not usually an angry person, he could not offer an explanation as to why the situation had escalated to such a level. Mr King has also engaged in violent behaviour during his custodial term.
Attitude to victim
Mr King said he was 'remorseful' for what had happened because it should not have reached the point of assaulting the victims. However, he had little recollection of the incident and does not appear to have any insight into how his offending may have impacted the victims, either physically or psychologically, other than they might have had a ‘couple of injuries’.
Behaviour in custody
During the current custodial period, Mr King has incurred six internal misconduct charges from 5 January 2021 to 28 February 2022, as described below.
Following sentencing, Mr King was classified as a C2 minimum security inmate on 21 December 2020. However, a month later he was regressed to a B medium classification due to acting in an aggressive and combative manner towards staff on 5 January 2021. Chemical munitions were deployed as he had created a barrier at the door and was also damaging departmental property. Mr King admitted to having been under the influence of a gaol made "brew" at the time. He was subject to a segregation order for this incident from 6 to 22 January 2021 and incurred three misconduct charges for intimidation, disobey direction and destroy/damage property.
He retained the B classification at the next review hearing on 14 February 2022 due to poor interactions with staff, two internal misconduct charges in the past 12 months and involvement in three incidents where contraband was located, two of which involved buprenorphine strips being sent in the mail which were addressed to Mr King.
Mr King spent a further period in segregation from 1 to 14 March 2022 due to being instrumental in a group assault on another inmate who sustained facial and head injuries, however police charges were not requested. He incurred a misconduct charge of 'assaults' and was given seven days off buy ups. During discussions with Community Corrections regarding this incident, Mr King did not appear to take any responsibility for his involvement, describing it as a "misunderstanding with another inmate”.
Offence related programs
Mr King was assessed as eligible• but unsuitable for the Young Adult Offenders Program, due to the regression in his classification in January 2021. He was then deemed eligible for EQUIPS Foundation and Aggression.
Mr King initially commenced the EQUIPS Foundation program on 6 April 2021, however he was• removed from the group on 11 May 2021 for non-attendance. He was re-allocated to the program in August 2021 which he completed on 20 October 2021. He engaged in the group appropriately and was reported to have had a high level 1 of understanding of the program's content.
Mr King completed EQUIPS Aggression on 8 December 2021, having attended all sessions. During the group, he demonstrated a good understanding of the program content and was an active contributor to the group. However, while he demonstrated a willingness to change his aggressive behaviour during the program, his subsequent involvement in the group assault on another inmate on 28 February 2022 is an indication that he is yet to apply the skills and strategies learnt during the program to actual life situations and therefore he will need to apply more effort and a firm commitment into changing his behaviour for the better.
Education
In April 2021, Mr King self-referred to the VTP Business course·, however he was withdrawn from the course in May 2021 as he had failed to attend any sessions.
Employment
Mr King has had various periods of employment during his incarceration with mixed reports regarding his performance. During 2021, he was warned multiple times for playing cards during work hours. He is currently employed in the Textiles Unit at Lithgow Correctional Centre; enquiries made on 29 March 2022 revealed a similar pattern of behaviour. It appears that he has a poor work ethic.
Pre-release leave
Mr King is not eligible for pre-release leave due to his classification.
Accommodation
Subject to Mr King's immigration status, he has been approved to reside with his mother at: [x NSW].
A Risk Mitigation Plan assessment was undertaken by Blacktown Community Corrections who have deemed that his risks can be managed from this address.
….
Supervision level
Mr King has been assessed at a medium-low risk of reoffending according to the Level of Service Inventory - Revised (LSI-R).
For the first 6 weeks following release to parole, Community Corrections supervises all new parolees at the new parolee supervision level. At this level, parolees must have weekly contact with their Community Corrections Officer, including a home visit in the first 2 weeks.
After the first 6 weeks, Community Corrections will supervise Mr King at the Tier 3/medium-low supervision level of the Service Delivery Standards. He will be required to have contact with a Community Corrections Officer every 4 weeks, including a home visit every 12 weeks.
If the Community Corrections Officer identifies any concerns, the officer may revise the risk assessment and supervision level.
…
Overall assessment
Mr King is a young offender who was 18 years old at the time of the current offences which involved acts of serious violence committed in the company of his co-offenders on several victims. Mr King was known to be associating with a gang, known as e ‘Greater West’, although he denied being a member of this gang.
Mr King has demonstrated very limited insight into his offending behaviour and is yet to demonstrate that he is committed to positive behaviour change. He has completed the EQUIPS Foundation and Aggression programs with positive reports about his participation. However, he has involved himself in acts of violence and defiance since he has been in custody. More recently, following ‘completion of the aggression program he was involved in a group assault on another inmate late February 2022.
Mr King's appeal against the cancellation of his visa is yet to be determined. However, should he not be subject to immigration detention, post release plans, including suitable accommodation, have been formulated in conjunction with Blacktown Community Corrections, to mitigate his risks. Although Mr King has shown very limited insight into his adverse behaviour both in the community and custody, it is considered an extended period of time on supervision will enable him to engage in the recommended intervention strategies to assist him to develop the skills to lead a pro-social lifestyle.
Recommendation
Community Corrections recommends that a parole order is made for Mr King, with the addition of the following conditions:
·Condition 28 - not to contact, communicate or associate with the co-offenders
·Condition 32 - immigration
…
Mr King's anti-social and aggressive behaviour in the custodial setting remains of concern. Further to this his limited insight into his adverse behaviour both in the community and custody is also of concern.”[56]
[56] Exhibit 4, Respondent’s Tender Bundle, 83-9.

According to the Applicant’s partner [O.O], their relationship began in about April/May 2022,[57] though they had known each other for some years before that.[58] According to her sister [V.O] the relationship began “when he was released from prison at the end of 2022”.[59]
[57] Exhibit 4, Respondent’s Tender Bundle, 277.
[58] Exhibit 2, G-Documents, Attachment H,110-11.
[59] Ibid Attachment K,115.
This is not consistent with the Applicant’s claims that he has been in a “committed relationship” with O.O since 2020.[60] In the same document, he claims that the relationship started on 14 May 2022.[61] He was not released from immigration detention until 2 November 2022.[62] The Applicant told the Tribunal that his relationship with O.O. “grew” when he was in prison.
[60] Ibid Attachment F, 92
[61] Ibid 92.
[62] Exhibit 3.2, Applicant’s Submissions 2, 1.
The Applicant told the Tribunal that he first met Child A by video in 2022. He only met him in person after he was released from detention in November 2022.
On 18 June 2022, the Applicant refused to cooperate with prison staff. He was handcuffed.[63]
[63] Exhibit 4, Respondent’s Tender Bundle, 76.
In relation to this incident, he said that he had been promised that he would be permitted a visit from his partner but the staff had changed the arrangements without telling him. He was upset about this.
On 20 June 2022, the Applicant became eligible for parole.[64] He was released from prison and taken into immigration detention.[65]
[64] Exhibit 4, Respondent’s Tender Bundle, 34, 55, 82, 162.
[65] Exhibit 2, G-Documents, Attachment D, 84.
He was detained in Villawood for a couple of months, then he was moved to Yongah Hill.
On 8 July 2022 the Applicant was involved in an assault on another detainee.[66]
[66] Exhibit 4, Respondent’s Tender Bundle, 264-5.
On 16 October 2022, the Applicant prepared a statement giving his account of the assault. He states:
“Response on immigration incident report of 10.10.2022
1. Thank you for the opportunity to comment on your letter of 11 October 2022.
2. I have had time to study the incident report at the Mackenzie compound on Friday 8 July 2022. I have good recollection of what transpired on that day.
3. I understand how the incident may have portrayed me as an aggressive person, considering the charges that led to my conviction. In retrospect, my behaviour towards my fellow detainee is unjustified and I’ve tendered my deepest apologies to the victim as soon as he returned from the hospital.
4. I witnessed an altercation between the detainee victim and my roommate. My roommate could be old enough to be my father and due to his age, I decided to protect him against the victim who is way younger than him.
5. As a child, I was bullied a lot physically and emotionally and because of all that trauma, I grew up to resent bullies and dislike seeing someone being bullied. I now understand that this is a very serious concern and bad approach to my problems, and I have contacted a health professional for help. I need help.
6. You’ll probably ask why I didn’t see a health professional about my problems when I turned 18 or prior to attaining adulthood. Well, growing up, professional help was already hard to get at home and I was under a misconception that keeping it bottled up would be better for me and everyone especially since I needed to step up and help my mother with everything she was struggling with. But instead of bottling it up it came
7. out in a burst of anger, which I immediately regretted and realised I need to find a therapeutic way to cope with these feelings.
8. First, I thought training was a good way to vent any negative energy. Then I turned to my girlfriend[67] who is usually always there, and we talked frequently, and she helps with putting negative feelings and thoughts at ease, although I was ashamed before I realised that I needed to seek professional assistance to help me further, as I have now embarked on.
9. I reacted the way I did when I saw the altercation with the victim and my roommate because of the age of my roommate, but still, I shouldn’t have let myself get to that extent to react in that way I did.
10. I’ve done the aggression program in jail where I learnt a lot and usually identify my anger levels so I can defuse it before it gets out of hand but I am young and a work in progress and things like that can’t be dropped over night but I’m willing to do the hard work so I will one day soon hopefully be able to help someone else who struggled the way I did.
11. I have contacted Dr C.Y. of PsychOrium Forensic and Clinical Psychology and her team of forensic psychologists and counsellors. I am thrilled by the positive google reviews of Dr C.Y and I look forward to undergoing her treatment plan and therapy methods. I anticipate that Dr C.Y’s treatment will facilitate a behavioural change, improved ability to commence and maintain healthy relationships, effective coping mechanism, improved decision-making process, an improved version of myself, among other benefits.
12. I contacted Dr C.Y to treat me due to my growing dissatisfied sense of awareness in a particular aspect of my life and I am truly determined to change that lifestyle.”[68]
[67] On 1 February 2022 (while in prison) he stated in his personal circumstances form that he was single - by Oct 2022 he had a girlfriend (O.O).
[68] Exhibit 4, Respondent’s Tender Bundle, 269-70.
On 18 October 2022, the Applicant’s representative submitted a statement from Ms O.O. which states:
“My name is O.O, I am Gabriel King's partner. We’ve only been together for 6 months[69] but have known each other since childhood. Since knowing Gabriel I know he has been brought up with strong core beliefs, he always puts his family and loved ones first, especially before himself. His deep beliefs and connection with his religion have also helped grow and strengthen mine and my son's spiritual connection with our religion. We frequently pray together every night before we go to sleep.
…
Many people were rooting for Gabriel, we all knew he would make it, and I was very surprised when I found out that he had ended up incarcerated, it just wasn’t the Gabriel I knew and grew up with. I don’t know the exact facts and reasoning behind the altercations he was involved in but I can only testify to the person I knew through school and the amazing man he has grown to be, disciplined, respectful, selfless and goal-oriented. Gabriel plays an important role in mine and my son's life, he has taken on the father figure role not only for my son but as well as with his own family, looking after his siblings in the house, and making sure his mum is doing good. His maturity level is greater than people twice his age.
…
Not only has he made a significant impact in my life but it has also been very beneficial for my son, Gabriel has helped him come back out of that shell he crawled in after my previous negative relationship.
Gabriel has never stopped making the effort to secure all my insecurities, he reassures me with all my doubts. I went from thinking I would never trust a man again or get into another relationship until Gabriel came along, even though he was incarcerated, he made me feel like the most important person in the world, he was battling his stresses but put everything aside to help me through my heartache and never stopped helping me do better and be better. Gabriel slipped in and stepped up and without any complaints, he showed nothing but unconditional love and respect for both my son and myself.
Gabriel and I have had extensive discussions about our future, planning on getting married and expanding the family that we’ve always talked about having. The way I’ve seen Gabriel around his family and mine, as well as my son I know undoubtedly that he would be the most reliable husband and father figure.
We’ve not only been talking about growing our family but also how we are going to grow with each other financially, discussing business plans, thinking ahead of what the next step is after he gets released and working towards bettering both of our lives, together.
[69] ie. since April/ May 2022. He was in prison at the time.
[70] Exhibit 4, Respondent’s Tender Bundle, 277.
I pray from the deepest depths of my heart that you take what I've said into consideration, because not only is him getting deported going to hurt him, but it’s also going to break his family & close ones' hearts and most importantly my son who has grown so attached to him and talks about him and to him every day, waiting for the day he gets out.”[70]
I note that according to this statement, the Applicant came to be a “father figure” for Child A and a “most reliable” prospective husband. He did this over a 6-month period during which he was in prison or detention.
The Applicant told the Tribunal that O.O. and Child A live in house with O.O’s 3 sisters, her mother and her grandmother. Child A’s biological father has him on most weekends.
O.O did not give evidence, so it was not possible to test her claims. Given her living arrangements and Child A’s ongoing contact with his father, I have very little confidence in her claims regarding the Applicant’s crucial role in Child A’s life.
On 2 November 2022, after considering the Applicant’s representations for revocation, the Delegate decided to revoke the first visa cancellation.[71] The letter advising the Applicant included a warning which states:
“Warning: if you engage in further criminal or other serious conduct, this may again result in your visa being cancelled on character grounds.”[72]
and it also states:
“The Delegate of the Minister has issued Mr KING with a clear warning that any such offending in future will be dealt with very seriously, with the real possibility of being removed from Australia permanently. The Australian Government and the Australian community consider offences such as armed with intent commit indictable offence and assault occasioning actual bodily harm in company of others to be very serious violent crimes and have very little tolerance for repeat offending. I acknowledge that this is Mr KING‘s second time in custody, so hopefully it will be his last – that is up to him. He should continue to engage in rehabilitation services in order to reduce his risk of reoffending. If he offends again in future, he cannot expect to receive the same degree of leniency.”[73]
[71] Exhibit 2, G-Documents, Attachment P: Notification of decision to revoke visa cancellation, 178-9.
[72] Ibid 178.
[73] Ibid 179.
On the same day, the Applicant signed an acknowledgement indicating that he understood the consequences if he engaged in further criminal or other serious conduct in these terms:
“I, Gabriel Agyenim KING acknowledge that I have received the Notice of decision to revoke visa cancellation under s501CA(4) of the Migration Act 1958. I understand that if I engage in further criminal or other serious conduct, this may again result in any visa I hold being cancelled on character grounds, and in this case my past conduct and previous relevant information held by the Department can also be reconsidered.”[74]
[74] Ibid 180.
In response to the Delegate’s decision above, the Applicant stated on 18 April 2024:
“… To correct the following, … ‘Mr King’s second time in custody’ is incorrect. My first time in custody was the combined Police Pursuit and Violent Assault.
I have taken the clear and direct warning as a matter of importance. I have not re-offended or committed any violent offences that the one specified, which I plead guilty too. And as I have clearly outlined, have moved away from the youthful peer pressure associated with my 2019 offences.
The current conviction for attempting to sell and supply a prohibitive drug for the first time was foolish and irresponsible. I will complete my sentence for the WA Crimes on 27 July 2024, whereby I will return to Sydney NSW to complete 8 months imprisonment for the 2019 NSW offences.”[75]
[75] Ibid Attachment G, 107-8.
In the passage above, the Applicant implies that he took the Respondent’s warning given on 2 November 2022, to have been confined to violent crime. The Applicant expressly however acknowledged, that if he engaged “in further criminal or other serious conduct, this may again result in any visa I hold being cancelled on character grounds.”[76]
[76] Ibid Attachment P, 180.
I note that the Applicant moved from associating with a gang in Sydney at the time of his August 2019 offending, shortly after his return to the community in November 2022, to “dealing in drugs for profit”[77] in W.A. as a part of an “established criminal network”.[78] He was at the time still on parole. This also occurred after receiving an explicit warning from the Respondent about the possible consequences of re-offending.[79]
[77] Ibid Attachment B, 41.
[78] Finding of Lonsdale DCJ.
[79] Exhibit 2, G-Documents, Attachment P, 178-80.
The Applicant’s account of how this came to happen lacked credibility. He said that he could not recall the name of the man who arranged this, even though he had known him for years from playing rugby with him as a teenager. He conceded that he knew from the start that the proposal was illegal.
From November 2022 to 10 March 2023, the Applicant said that he spent several days per week living with O.O. and her extended family. He denied that this was a breach of his parole conditions. These were not before the Tribunal. It would be unusual for parole conditions not to specify a single address, for obvious reasons. This was his mother’s house. He said that his parole officer said that it “was fine to go between addresses.”
On 10 March 2023, while still on parole, the Applicant boarded a flight from Sydney to Perth using a false identity. This was done to avoid being detected for breaching parole in NSW.[80] The trip to Perth, was planned for an illegal purpose.
[80] Exhibit 4, Respondent’s Tender Bundle, 2.
The Applicant told the Tribunal that he tried several times to contact his parole officer to get permission to travel to WA, but he never replied, so he just went anyway.
The trip was carefully arranged. It is recounted by police in these terms:
“At about 11:35am on Friday 10 March 2023 the accused attended terminal 2 at Sydney Airport in order to board a Jetstar flight JQ986 bound for Perth Airport. The booking reference for this flight was [x].
The accused boarded the flight utilising a electronic boarding pass under the name of [redacted information] and provided an address of [redacted information] in [redacted information]. The flight was scheduled to arrive at Perth Airport at about 1:30pm.
The accused booked a return trip on Jetstar flight JQ987 from Perth to Sydney scheduled to depart on Tuesday 28 March 2023 at about 2:45pm. The booking reference number for this flight was [x].
The return flight was booked separately to the first flight however utilised the name of and provided an address of [information redacted] in [information redacted].
At about 9:00am on Tuesday 28 March 2023, the accused was the passenger in a white Mitsubishi 380 bearing registration [x] travelling on Beaufort Street near Newcastle Street in Perth.
The vehicle was stopped by Police and the accused was spoken to.
The accused was asked by Police to provide his full name and date of birth to which he replied his name was [redacted information] and provided a date of birth of [x] 2001.
During a search of the vehicle Police located a [x] Bankcard in the name of the accused in a Gucci satchel band belonging to the accused. When the accused was spoken to in regards to the bankcard he stated he had provided a false name to Police as he was on parole in New South Wales and as part of his parole conditions he was not authorised to leave the state of New South Wales.
A search of the mobile telephone located in the accused possession was interrogated by Police with officers located the electronic booking records for both Jetstar flights contained within the device.
The accused was conveyed to Curtin House where he participated in an electronic record of interview making full admissions to booking two separate Jetstar flights under a false name in order to be able to fly undetected to Perth from Sydney and back.”[81]
[81] Exhibit 4, Respondent’s Tender Bundle, 138-9.
At about 9AM, on the morning of 28 March 2023, while still on parole, and in WA without permission, the Applicant was apprehended by WA police in possession of methamphetamine and cash.[82] He was booked to return to Sydney on a flight at 2:45PM, on that same day. He was taken into custody. The amended statement of material facts file in the WA District Court states:
[82] Exhibit 2, G-Documents, Attachment B, 41.
“1. At about 9:00am on Tuesday, 28 March 2023, the offender was the passenger in a white Mitsubishi 380 bearing registration [x] travelling on Beaufort Street near Newcastle Street in Perth.
2. The vehicle was stopped by Police and the offender was spoken to.
3. Police asked the offender to provide his full name and date of birth to which he replied his name was [K.L] and provided a date of birth of [x] 2001, this name was identified by Police as being false.
4. Prior to the Misuse of Drugs Act search of the vehicle, the offender declared he had "10 grams of Ice" in his bag.
5. The Police searched the vehicle and found a black Nike duffle bag belonging to the offender.
6. Inside one of the zip lock pockets, Police found a medium sized clip seal sandwich bag containing 15.2 grams of Methylamphetamine.
7. As the search continued, Police found in a separate compartment a large white envelope containing $20,050.00 cash. The cash is suspected to be derived through the sale of prohibited drugs,
8. Digital scales and clip seal sandwich bags used for the sale and supply of methylamphetamine were also found in the offender's bag.
9. The offender's mobile phone was interrogated by Police where they identified the offender as a member of an established criminal network utilising an encrypted chat platform known as [x]. The network used the platform to co-ordinate drug distribution throughout New South Wales and Western Australia. The offender's handle was [x], and the message content relates to conveying Methylamphetamine into Western Australia and collecting cash payments before returning to New South Wales.
10. The drugs were sent to the Chemistry Centre of Western Australia for analysis returning a weight of 15.2 grams and purity of 82%.”[83]
[83] Exhibit 4, Respondent’s Tender Bundle, 12-3.
The Applicant told the Tribunal that he agreed with those facts.
On 29 March 2023, the Applicant was remanded in custody for the drug offences.[84]
[84] Exhibit 4, Respondent’s Tender Bundle, 8.
The Applicant’s sentence in NSW for the offences committed in August 2019 was to expire on 20 November 2023.[85]
[85] Exhibit 4, Respondent’s Tender Bundle, 29.
I note that O.O. lives in NSW and so the only time that she could have spent with the Applicant in the community was between 2 November 2022 when he was released from detention, and 10 March 2023, when he travelled to Perth. He told the Tribunal that she and Child A did visit him once in WA, during his imprisonment.
I note that WA prison records from April 2023 to February 2024, record regular electronic contact between O.O. and the Applicant.[86]
[86] Exhibit 2, G-Documents, Attachment N: Government of Western Australia - Visit History, 120-170.
On 18 January 2024, the Applicant was convicted of:
·possessing methylamphetamine with intent to sell/supply
·Laundering Proceeds of Major Offence
in the District Court of Western Australia. He was sentenced to 16 months and 8 months (con-current) imprisonment respectively.[87]
[87] Ibid Attachment A, 38.
The sentencing remarks of Lonsdale DCJ state:
“LONSDALE DCJ: Yes. So, Mr King, I’m going to sentence you to a term of immediate imprisonment today, but that will come as no surprise to you. I’m sentencing you for one count of possession of methylamphetamine with intent to sell or supply; the maximum penalty for which is 25 years' imprisonment and/or a fine not exceeding $100,000. And also one count of receiving or dealing with money that was the proceeds of an offence and the maximum penalty for that is 20 years' imprisonment.
Now, the facts were read by the State prosecutor. I will briefly summarise those facts as best I can. On 28 March 2023 you were a passenger in a car travelling on Beaufort Street near Newcastle Street in Perth. Police stopped the vehicle and asked you to provide your details. You gave them a false name and date of birth. Police then executed a search warrant. You declared prior to the police executing the search warrant that you had 10 grams of ice in your bag. That was something of an under-estimation because police located 15.2 grams of methylamphetamine in a medium sized clipseal sandwich bag and also $20,050 in cash. And police found other indicia of sale and supply, such as digital scales and clipseal sandwich bags.
Police interrogated your mobile phone and identified that you were a member of an established criminal network utilising an encrypted chat forum to deal drugs. So the drugs weighed 15.2 grams and had a purity of 82 per cent.
Now, you pleaded guilty at your fifth appearance in the Magistrates Court and the State accepts that this was a plea of guilty at earliest reasonable opportunity. I am going to discount your sentence by the maximum discount amount of 25 per cent for your early plea of guilty. I note also that you didn’t cooperate with the police and provided them with a false name, so you’re not being punished for that today, but you’re not entitled to any further reduction for cooperation with police.
Now, your offending was in all of the circumstances very serious. It involved a significant quantity of methylamphetamine, albeit that there are bigger quantities of methylamphetamine that this court has to deal with on a regular basis, but it was 15-odd grams, it had a high purity around 82 per cent, which suggests that it was close to the source. Because of the cash it is plain that you were dealing in drugs for profit, and indeed, you admit that. Your offending is made more serious by the fact that you were on parole from New South Wales.
Now, I heard your explanation for why you offended. It is said that you were struggling mentally and financially because you were unable to work. I don’t have any medical records before me to suggest that you had an injury which rendered you incapable for work. And quite frankly none of this is a mitigating circumstance.
I’ve been told that you couldn’t access benefits because you’re a New Zealand citizen. And I’m not sure whether or not that's right quite frankly, Mr King, given the relationship between New Zealand and Australia. I don’t really know. I’m a bit sceptical, I must say, that you weren’t able to access some kind of benefits being a New Zealand citizen. But perhaps that had something to do with your uncertain immigration status. And I’ve been told by Mr Barber that you spent a certain amount of time in detention challenging your deportation, so perhaps it’s got something to do with that. I don’t know. But in any event it’s hardly an excuse to resort to dealing in drugs.
Now, you have pleaded guilty at the earliest opportunity, as I’ve said, so you get the 25 per cent discount for that. You are also still relatively young. You are 23 years of age now and I think you were 22 at the time. I beg your pardon, are you 23 or 22?
LONSDALE DCJ: You’re still 22, yes. So you still have the benefit of youth, despite the fact that you already have a very significant criminal history. In New South Wales you have a history of violent offending and on one occasion you received a sentence of imprisonment of three years. So that indicates to the court, Mr King, that you’re somebody who has chosen an anti-social lifestyle. And until you start to make better choices, Mr King, you will simply be in and out of prison, and I don’t know why you would want to spend the rest of your life in that way.
……
I accept that there is some uncertainty with your future because you will be extradited back to New South Wales, no doubt to serve out the parole term which was imposed by the courts there, although I’m not sure how that works in that jurisdiction, but it seems likely that you’re going to have to do some more time over there.
Now, you were born in New Zealand. You are the middle child of three children to your parents' union. You moved to Australia in 2004, when you were three years of age. You report having a good childhood, but I note that your parents separated when you were six, and you haven't had any contact with your father really. You didn't have any contact with him between him leaving until you were 18, so one suspects that you lacked positive role models.
You have minimised, I think, to some extent the - your use of substances. You've denied use of methylamphetamine, but that seems to me to be inconsistent with the fact that you were found with a very significant quantity of it, but you do admit using other drugs, such as cocaine and MDMA.
Now, I'm sentencing you, Mr King, for an offence which involves you selling drugs essentially - or offences which involve you selling drugs. And in that respect it doesn't really focus on the issue of your own drug use, but plainly if you're somebody who uses drugs, you're choosing to associate with other people who either use or sell drugs, and that's something that you need to address if you're serious about your rehabilitation in the future.
…..
I consider that it is appropriate that those two sentences be served concurrently with each other, so the total sentence will be one of 16 months. Now, you have been in custody since 28 March 2023, and I'll backdate the sentences to commence on that day.”[88]
[88] Ibid Attachment B, 40-4.

The Applicant’s statements indicate that he was drawn to ‘trouble-makers’ which eventually led him into re-offending, instead of seeking professional help, or turning to his family/ partner when he was struggling with his own mental and emotional stress. The Applicant’s criminal record suggests that he is easily led by any criminal elements who take an interest in him.
Ms M.D (O.O’s mother) also suggests in her letter that “the lack of mental health support contributed to him re-offending.”[146] As previously noted, he has rejected such help, preferring instead to “talk to God”.
[146] Exhibit 2, G-Documents, Attachment J, 114.
The Applicant wants the Tribunal to take his word that he has understood the impact of his wrongful decisions. I note that he apparently did not understand this, as recently as November 2022, when his visa was restored.
He says that he is not a danger to the community and that spending time in prison helped to rehabilitate, although he has not engaged in any treatment or meaningful programs. I do not accept his assurances, given his history.
The Applicant justifies his continued offending as being due to his financial struggles. These are likely to reoccur from time to time in the future. These are a common feature of many people’s lives. Resorting to crime is not an acceptable remedy. We have only his word, that he will not again resort to crime to solve his financial problems.
The Applicant has not demonstrated any significant history of legitimate employment. Based on his history, the probability of him gaining and maintaining legitimate employment if he were to return to the Australian community, is limited.
The Applicant stated that he should have helped his loved ones through ‘legitimate’[147] work. The Applicant had the opportunity in January 2023 when he was working as a scaffolder[148] to do exactly that. He failed to take that opportunity and all the then available support to improve his circumstances. Instead, he deliberately chose a path of easy money in drug crime. His mother, sister and O.O are all apparently gainfully employed and financially independent from him.
[147] Ibid Attachment F, 98.
[148] Ibid Attachment F, 99; Exhibit 3.2, Applicant’s Submissions 2, 1.
The Tribunal does not have the power to impose parole-like conditions, or to grant a conditional visa. If the Applicant has his visa restored, he will be in the community, unsupervised.
In my judgement, based on his conduct, his noted lack of insight, and his total disregard for both his conditions of parole and the explicit warning from the Respondent after the revocation of the first visa cancellation, the Applicant presents at least a medium, if not a high risk, of reoffending.
Conclusion: Primary Consideration 1
Primary consideration number one weighs very heavily against revocation of the Applicant’s visa cancellation.
Primary Consideration 2: Family Violence
There is no evidence of family violence.
Conclusion: Primary Consideration 2
This consideration is neutral.
Primary Consideration 3: Ties to Australia
Paragraph 8.3 of the Direction provides:
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community
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.
The Applicant has lived most of his life in Australia. He came here as a young boy, not quite 3 years of age. He attended school here. He has spent virtually all of his formative years here.
The Applicant has worked for a short period[149] but not as long as he has spent in prison.
[149] Exhibit 2, G-Documents, Attachment F, 99.
The Applicant says that he has been involved in community organisations[150] but there is limited independent evidence of this.
[150] Ibid 100.
The Applicant describes the impact of his removal upon his family in these terms:
“The impact of me being permanently removed from Australia to NZ would have a devastating impact on my family: mother [M.K] (56 yrs); brother [G.J.K] (26 years); and sister [S.K] (18 years). My mother [M.K] relies on me both financially and emotionally. My time incarcerated has been very difficult, but with the real hope on me coming home to take up my important role in the family. The mandatory cancellation of my visa and permanent removal to NZ would be catastrophic impact on her mental health and wellbeing. My younger sister [S.K] has carried the burden looking after my mum and my brother [G.J.K] who is ‘in-and-out’ of institutionalized care. [G.J.K] is diagnosed with schizophrenia and bi-polar. He requires 24hr care. [S.K] is in the same circumstance as my mum. The hope of me coming home to take up the burden of looking after [G.J.K] I am the one to ensure everybody goes well.
I have family/financial responsibility that I was not coping with. Rather than get help (legitimately). I was introduced to people who lead me to commit the crime of Intent to Sell and Supply a Prohibitive Substance in Western Australia, and associated money laundering (proceeds of crime - $20,000). I plead guilty and am serving my custodial sentence. I am not a career criminal (drug dealer) nor an opportunities. In poor judgement I committed the said offences. I have utilized my time in prison to understand there are better ways to help my loved ones with legitimate work and being a responsible son, brother, partner and father to my family who need me.
Due to extra-ordinary circumstances at [x] Prison, [x] WA, (COVID lockdowns, prison riots and fires, low staffing levels and ongoing Industrial Action), I have not been able to engage in any meaningful courses to help me improve my given circumstances. Given this, I have applied for any courses available to me, and have lived a positive lifestyle (drug free) in prison to prepare to return home to Sydney, NSW (family, partner and son).
I had my visa cancelled in 2022 (I was 19 yrs of age). I successfully appealed my mandatory visa cancellation. I have subsequently had my visa cancelled this year (2024). I am currently 22 years of age.
The stupidity of youth and ill-considered decision making has to date had a disasterous[sic] effect. I have sought out good people who are older and wiser than me, who have put me in the ‘right path’ to seeing my family and loved ones as my principal importance.”[151]
[151] Ibid 97-8.
I note that he has been of little practical or financial assistance to his family since August 2019, due to his imprisonment, detention and relocation to WA.
As noted above, his brother is currently in immigration detention. His mother and his sister have jobs. I also note that none of the abovementioned connections to his family deterred the Applicant from traveling to Perth to deliberately engage in the methamphetamine trade.
The Applicant also submits that:
“I came to Australia in 2004 when I was only 3 years old, I have attended preschool here, I attended primary school here and I also attended high school here. In all my schooling I have never been suspended nor expelled ever. I was a good student in top classes always paid attention and loved school. I attended primary school at [institution 1] primary school and [institution 2] primary school, I then moved onto [institution 3] high school for 1 year before I got a scholarship to attend [institution 4] high school for rugby. While I was playing rugby for my school team, I also played in a club teams outside of school and was also in numerous development and representative teams as well. I dropped out of school in the start of year 11 because my mother just lost her job and was struggling to find a new job and bills were piling up and she feared we might become homeless again. So, without her knowledge I dropped out of school found a job and started working as labour for a waterproofing company, while I was attending Tafe and keeping up with my commitment to to my rugby representative team and club team. My mother was incredibly grateful for me doing that but also felt sad and guilty. I told her not to worry that she does not have to take the pressure of everything on her own anymore, that I am older now and can take the stress off her so she could rest a bit. I am remarkably close with my family because they are my only immediate blood family in Australia and all we had growing up was each other. Me being Incarcerated was hard enough on us being separated but saying I will not be able to see them again because I’ll be in another country will be the most painful feeling in my life that I don’t know if I could or ever will recover from. I got a beautiful partner and stepson who are my world we talk to each other every day without a miss we are so close my family has accepted them as ours and my partners family has accepted me as there’s. I have the strongest supportive circle I’ve ever had in my life; everyone whole heartedly just wants to see me do well and be on the right path. They support me emotionally, physically, mentally, and spiritually there isn’t any problem I have now that I can’t just speak to them, and they will give me advice. If I had a negative result on my visa cancellation, I would have absolutely no one back in New Zealand. No family no friends no support circle, how am I supposed to reintegrate into society with no one there to help me in a country I haven’t been in since I was 3 years old. My future and my hope of starting a better life will be completely crushed and doomed before it even starts.”[152]
[152] Exhibit 3.1, Applicant’s Submissions 1 (Direction 110), 1-2.
I accept that the Applicant has close family connections in Australia, at least with his mother and sister.
His relationship with his brother is much more troubled. His brother does not currently have a visa and is in immigration detention. The Applicant was protected from G.J.K by an AVO for some years. The Applicant was negative about the prospect of connecting with his brother if they were both deported.
He has no relationship with his father.
The Applicant describes the impact of his removal upon his partner, O.O and Child A in these terms:
“I met O.O in 2015 and we became a committed couple in 2020 with her son [Child A]. We will be married upon my release from prison which at the earliest will be October 2024 (this year).
O.O has been suffering depression since my incarceration and under medical care. A permanent severance of our relationship would be devastating impact on O.O and particular, [Child A] who is suffering acute anxiety, and is currently withdrawn. My permanent severance of our relationship would be devastating.”[153]
[153] Exhibit 2, G-Documents, Attachment F, 92, 94.
I note that the Applicant has been in custody, prison and immigration since August 2019 , except for the period when he was in the Sydney community between 2 November 2022 – 10 March 2023, and between 10 March 2023 and 28 March 2023, when he was in Perth, involved in the drug trade.
The Applicant’s connection to O.O. and Child A, was not enough to prevent him taking up an “offer” to travel to WA to deal in drugs.
I accept that there is an ongoing connection to O.O. and to a much lesser extent, through her, to Child A. This is borne out by prison communications records.
I do not however, accept the accuracy of the Applicant’s statements about his importance to O.O and especially to Child A. They both live in a house containing several generations of their family. Child A is in weekly contact with his biological father.
Leaving aside electronic communications, which could continue from New Zealand, the Applicant’s claims regarding a relationship that existed from April /May 2022 when he was in detention, and in person from 2 November 2022 to 10 March 2023, when he went to WA, are exaggerated and unreliable.
Notwithstanding the Applicants unreliable claims about his connection to O.O. and especially to Child A, I accept that he has very strong ties to the Australian community, especially his mother and sister.
I accept that if the Applicant were returned to New Zealand, his immediate family, O.O. and to a much lesser extent Child A would be distressed. His other connections may be distressed to a lesser degree.
I accept that he would find the transition very difficult.
Conclusion: Primary Consideration 3
This consideration weighs in favour of revocation of the cancellation of the Applicant’s visa.
Primary Consideration 4: The best interests of minor children in Australia
Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.4(4) of the Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
There is only one relevant child, being Child A.
In the Applicant made further submissions in relation to Child A, which states:
“In the revocation denial they said they acknowledged that my stepson and I have formed a close bond relationship but then say just because I’ve been incarcerated for a while and that he’s in my partner Olivia’s primary care so it wouldn’t really put him at a disadvantage if I was removed. I whole heartedly disagree my stepson [Child A] and I are extremely close anyone who’s close to us can see that. He doesn’t only see me as his father figure but as his best friend, we talk all the time on the phone and since he’s learnt to FaceTime off his iPad, he will FaceTime me randomly and whenever he misses me so we can stay on the phone and talk for ages about anything and everything. My partner told me how he became extremely sad and withdrawn when I was incarcerated often asking my partner to pray with him for me to come home and to spray my cologne on him before he goes to school so he can smell like me or putting my earrings on his teddies to remind him of me. I know it will be in the best interest for him if my visa cancellation was overturned. So, [Child A] and I could do everything we planned to do together, I don’t think either of us could take permanently being separated from each other the outcome would be catastrophic on our mental and emotional health.”[154]
[154] Exhibit 3.1, Applicant’s Submissions 1 (Direction 110), 2.
The Applicant provided a written statement from O.O, which states:
“[Child A] and Gabriel met in 2022, [Child A] was 2 years old at the time. They got along straight away. Gabriel stepped up and welcomed a child that wasn’t biologically his with open arms. A step dad is so much more than just another parent, he made a choice to love when he didn’t have to and he has shown [Child A] nothing but love since day one.
[Child A] needed that male/father figure in the house and that’s exactly what Gabriel is. They would play basketball, soccer, watch movies, go shopping, all the activities a boy would want to do with their dad they did it for hours on end. He is an outstanding dad and ever since they met they have been inseparable.
He looks up to Gabriel, he relies on him for emotional support and guidance. They have formed such a healthy bond and it’s so lovely to see how much [Child A] has come out of his shell after forming a great loving and caring relationship together, they love spending time with each other, they get along so great. [Child A] thinks very highly of Gabriel and he has been looking forward to spending more time with him once he gets released. They are constantly talking on the phone making plans about what they are going to do together when they are reunited.
[Child A] has found this time without Gabriel quite difficult, not only does [Child A] look at him as a bonus parent but also a friend, so him being gone for these past months has taken a toll on [Child A], he’s still quite young and it’s just the uncertainty of if/when Gabriel is coming back home again. Although [Child A] doesn’t always understand what’s going on Gabriel has always reassured him and their relationship has stayed as strong as it’s been since the beginning.
Gabriel has always remained positive throughout this situation in his life, which has been really good for [Child A]. I’m confident in saying I trust him to guide my son through all stages of life.”[155]
[155] Exhibit 3.5, Statement of Ms O. O (Applicant’s partner) (undated).
The Applicant first met Child A in person in November 2022.
Child A lives with several generations of his family in a group home. He has regular contact with his biological father every weekend.
The Applicant is not, has not been and is unlikely ever to be, Child A’s primary carer, unless O.O. totally changes her living arrangements. This is not proposed. The Applicant proposes to move in with them.
The Applicant left for Perth on 10 March 2023. The claim that he has become a critical part of Child A’s life over the course of a few months between 2 November 2022 and 10 March 2023, is inherently improbable. At most the relationship began in April/May 2022, when he was still in prison and detention. I accept that it has continued electronically since.

Child A has the regular, ongoing support of his biological father.
As previously discussed, I do not accept the extravagant claims made by the Applicant and in O.O’s statements, about his connection to Child A. The Applicant first met Child A in November 2022 according to O.O. In practical terms, that means he saw him for a few days per week, (but not weekends), between 2 November 2022 when he was released from immigration detention and 10 March 2023, when he went to Perth to “take up the opportunity”, to traffic in methamphetamines.
I accept that the Applicant has some ongoing connection to Child A. This is essentially incidental to his connection with O.O. This has mainly been maintained electronically. This connection, such as it is, could continue from New Zealand.
There is nothing to prevent O.O. and Child A visiting the Applicant in New Zealand, or indeed relocating, should they choose to do so. I note that the Applicant has discussed this with O.O. and she has said that it is not in their interests to leave Australia.
I accept that if the Applicant were to be returned to the community and if he did not reoffend, he may be of some modest support and benefit to Child A.
If he were to reoffend, his influence on Child A may be damaging.
Given my view that he is quite likely to reoffend, I give this connection little weight.
Conclusion: Primary Consideration 4
Having regard to all of the above, and assuming in his favour that the Applicant did not reoffend, primary consideration 4 weighs at best slightly in favour of revocation of the Applicant’s visa cancellation.
Primary Consideration 5 – The Expectations of The Australian Community
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that 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. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he may breach, this expectation by engaging in serious conduct.
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 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 through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(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; or
(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; or
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[156]
[156] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to Primary Consideration 5
Accordingly, in assessing the weight attributable to Primary Consideration 5, it is necessary to have regard to the following matters:
a.the Applicant’s very serious criminal record as set out in Annexure B and discussed above, and
b.The Applicant’s demonstrated contempt for his parole conditions and the Respondent’s explicit warning in November 2022, and
c.the other matters discussed above
The Applicant states that he understands the expectations of the Australian community within the framework of Direction 110:
“I understand how the direction indicates that the Australian community expects non-citizens to obey Australia’s law while residing in Australia and I fully respect that. However, none of my offending behaviours were learnt from another country and brought to Australia to cause mischief or the community harm. Everything I’ve learnt, the why I behaviour, the way I take on problematic decisions were all obtained growing up in Australia no where else. I don’t go looking for trouble, but I admit that I’ve just been in bad situation and being juvenile in thought made the wrong decisions. Just because I’m a noncitizen doesn’t mean I’m more prone to violence or criminal behaviour I’m still human and all humans make mistakes regardless their race. I understand my offending and I understand where I went wrong in my decision making and have worked within my self and with advice from loved ones to better my self to not make foolish decisions again. I have been in the under 16 Australian rugby team for [x], but my non citizenship didn’t mean anything then, but now that I’ve made a couple mistakes in life my non citizenship matters. Everyone makes mistakes maybe not as bad as mine sometimes even worst then mine, but Australia is country of new beginnings and opportunity, so I plead to you to give me another opportunity to rectify my mistakes and embark on a new beginning to replenish myself in the law's eyes but also my mothers' eyes.”[157]
[157] Exhibit3.1, Applicant’s Submissions 1 (Direction 110), 3.
The Applicant has committed crimes of violence, he has behaved poorly in prison/detention, he has ignored the fact that he has been given a second chance by having his visa restored after the first visa cancellation, he deliberately breached parole and he has deliberately engaged in serious drug offences.
Conclusion: Primary Consideration 5
Primary consideration 5 weighs very heavily against revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.
(a) legal consequence of the decision:
This is not a relevant consideration in this case.
This Other Consideration is neutral.
(b) Extent of Impediments if Removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is a young man in apparently good health.
I accept that he would find reintegration into the New Zealand community very difficult. I accept that he may experience mental health issues as a result.
He does have the option to go to Ghana to be with his extended family there, though he told the Tribunal that he is not inclined to do this.
There are no substantial language or cultural barriers separating Australia and New Zealand. That said, the Applicant’s family’s cultural heritage, is West African.
The Applicant has however, spent all his formative years in Australia. He has no family in New Zealand. He has no social networks there. He would undoubtedly experience hardship in adjusting to a new environment, finding accommodation and finding employment. He would not have the immediate support of his various Australian connections. He would, however, be able to maintain connection with them electronically, as he has mainly done since his imprisonment in 2019.
It may be that his brother could join him there, though he would see this as a detriment, rather than a benefit.
The Applicant would be entitled to the same social, medical and/or economic support as any other citizen of New Zealand. These supports are generally comparable to those available in Australia.
This consideration (b) weighs in favour of revocation.
(c) Impact on Australian business interests
There is no evidence of this.
This Other Consideration (c) is neutral.
CONCLUSION
It is necessary to weigh up all of the primary and other considerations.
Primary Consideration 1 weighs very heavily against revocation.
Primary Consideration 2 is neutral.
Primary Consideration 3 weighs in favour of revocation.
Primary Consideration 4 weighs slightly in favour of revocation.
Primary Consideration 5 weighs very heavily against revocation.
Other Consideration (a) is neutral.
Other Consideration (b) weighs in favour of revocation.
Other Consideration (c) is neutral.
I note that paragraph 7(2) of the Direction requires that protection of the Australian community is generally to be given greater weight than other Primary Considerations, and that Primary Considerations should generally be given greater weight than the Other Considerations.
The Applicant has engaged in very serious criminal conduct. This has involved crimes of violence and drug related crime. He has reoffended while on parole. He has ignored an explicit warning from the Respondent, committing very serious offences, less than 5 months later.
The gravity of his offending is such that the community would have little, if any tolerance of risking further offending of this nature.
In my view, there is at least a moderate, if not a high risk of the Applicant reoffending. Imprisonment, previous visa cancellation, detention, parole and explicit warnings from the Respondent have not deterred him from reoffending. I have no confidence that his social supports offer any significant protective influence.
He has no concrete plans for rehabilitation, accommodation or employment upon release.
He has expressed a desire to marry O.O. He says that this relationship will now motivate him not to reoffend. It was not protective as recently as March 2023. I give these claims little weight.
All of these factors weigh very heavily against revocation.
On the other hand, the Applicant does have strong ties to Australia. His immediate family are here. He spent his formative years here. O.O is here, and so is Child A (to the extent that that connection exists).
Child A may benefit slightly from the Applicant’s continued presence in Australia, though not to the extent that he claims. In the likely event of him reoffending, he would be of no benefit to Child A, and indeed may become a negative role model.
I accept that the Applicant would find returning to New Zealand difficult and reestablishing himself there would take time. That is not however his only option.
When weighing up all of the considerations, the protection of the Australian community weighs very heavily against revocation, as do the expectations of the Australian community.
The factors in favour of revocation, are collectively insufficient, compared with the considerations heavily weighing against it.
This is a case where the Direction requiring the highest priority to be given to protection of the Australian community, is critical. The Applicant presents an ongoing, and unacceptable risk to our community.
In my view, the proper application of the Direction does not favour the Tribunal to revoking the cancellation of the Applicant’s Visa.
I find that there is not “another reason” pursuant to s 501CA(4)(b)(ii) to revoke the original decision.
DECISION
The decision under review is affirmed.

I certify that the preceding two hundred and ninety-three (293) paragraphs are a true copy of the reasons for the decision herein of Senior Member Hon J Rau SC.

..............................[sgnd].....................................
Associate

Dated:   11 October 2024

Date of hearing: 1 October 2024

Advocate for the Applicant:

Self-represented

Advocate for the Respondent: Elle Tattersall
(Minter Ellison)

ANNEXURE A – LIST OF EXHIBITS

Exhibit no.

Lodged by

Document

1

Respondent

  Statement Of Facts, Issues And Contentions

2

Respondent

G-Documents

3

Applicant

Bundle of Documents

1.          Applicant’s submissions 1 (Direction 110) (3 pages)

2.          Applicant’s submissions 2 (3 pages)

3.          Letter of Support from Ms S. King (Applicant’s Sister) (undated)

4.          Letter of Support from Mr S. A (Applicant’s Friend) (undated)

5.          Statement of Ms O. O (Applicant’s partner) (undated)

6.          Screen shot 1

7.          Screen shot 2

8.          Certificate of participation for Prison Yoga Project

4

Respondent

Tender Bundle

ANNEXURE B – APPLICANT’S OFFENDING HISTORY

Court	Court Date	Offence	Court Result
Perth Magistrates Court (WA)	23.01.2024	Give False Personal Details To Police	Fine: $200
Perth Magistrates Court (WA)	23.01.2024	False ID information	Imprisonment: 1 Months Concurrent From 23.01.2024
Perth District Court of Western Australia (WA)	18.01.2024	Possess Methylamphetamine With Intent to Sell/Supply	Imprisonment: 16 Months Concurrent From 28.03.2023
Perth District Court of Western Australia (WA)	18.01.2024	Laundering Proceeds of Major Offence	Imprisonment: 8 Months Concurrent From 28.03.2023
Parramatta District Court (NSW)	20.11.2020	Armed w/i commit indictable offence – T1	Imprisonment (Aggregate) : 4 Years And 3 Months Commencing 21.08.2019 Concluding 20.11.2023 Non-Parole Period : 2 Years And 10 Months Commencing 21.08.2019 Concluding 20.06.2022
Parramatta District Court (NSW)	20.11.2020	Assault occasioning abh in company of other(s)-T2	As Above
Parramatta District Court (NSW)	20.11.2020	Assault occasioning abh in company of other(s)-T2	As Above
Parramatta District Court (NSW)	20.11.2020	Receive property-theft = serious indictable offence <=$5000-T2	As Above
Mt Druitt Local Court (NSW)	09.10.2019	Police Pursuit - Not Stop - Drive Recklessly - 1st Off-T2	Imprisonment : 8 Months Commencing 17/08/2019 Concluding 16/04/2020 Non-Parole Period : 3 Months Commencing 17/08/2019 Concluding 16/11/2019 Disqualification - Driver : 3 Years Commencing 09/10/2019

Date of hearing:	1 October 2024
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Elle Tattersall (Minter Ellison)

Exhibit no.	Lodged by	Document
1	Respondent	Statement Of Facts, Issues And Contentions
2	Respondent	G-Documents
3	Applicant	Bundle of Documents 1. Applicant’s submissions 1 (Direction 110) (3 pages) 2. Applicant’s submissions 2 (3 pages) 3. Letter of Support from Ms S. King (Applicant’s Sister) (undated) 4. Letter of Support from Mr S. A (Applicant’s Friend) (undated) 5. Statement of Ms O. O (Applicant’s partner) (undated) 6. Screen shot 1 7. Screen shot 2 8. Certificate of participation for Prison Yoga Project
4	Respondent	Tender Bundle