LMSL and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

LMSL and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 173 (6 February 2023)
Division:GENERAL DIVISION
File Number: 2022/9478
Re:LMSL
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Deputy President Boyle
Date:6 February 2023
Place:Perth

The decision of the delegate of the Minister dated 11 November 2022 not to revoke the cancellation of the applicant’s Class BA Subclass 202 Global Special Humanitarian visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.
...[SGD].....................................................................
Deputy President Boyle
Catchwords
MIGRATION – s 501CA(4) of the Migration Act – refusal of delegate of the Minister to revoke mandatory cancellation of applicant’s visa – whether there is “another reason” to revoke cancellation of applicant’s visa – Ministerial Direction 90 – consideration of aggregate sentencing in FCAFC judgment in Pearson – aggregate sentencing principles in Pearson considered; not applicable in present case – previous sentence of 12 months imprisonment – jurisdiction of the AAT does not extend to decision under 501(3A) – applicant a 38-year-old citizen of Iraq – no reason why other considerations should outweigh primary considerations – there is not another reason to revoke the decision to cancel the applicant’s visa – reviewable decision affirmed
Legislation
Migration Act 1958 (Cth) ss 5M, 36(2)(a), 36(2)(aa), 36(2C)(b)(ii), 36A, 197C, 197C(3), 499, 499(1), 499(2A), 500(1)(ba), 501, 501(6), 501(6)(a), 501(6)(e), 501(7), 501(7)(a), 501(7)(b), 501(7)(c), 501(3A), 501(3A)(a), 501(3A)(b), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4(b)(ii), 501E
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Cases
Brown v Minister for Immigration and Citizenship [2010] FCAFC 33
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454
Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 66
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
Onwong’a and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4631
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Pearson v the Minister for Home Affairs [2022] FCAFC 203
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497
PNLB and Minister for Immigration and Border Protection [2018] AATA 16
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463
Secondary Materials
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)
Minister for Immigration and Border Protection (Cth), Direction no. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b) (6 September 2017)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021) paras 5.1, 5.1(3), 5.2, 5.2(1), 5.2(2), 5.2(3), 5.2(4), 5.2(5), 6, 7, 8, 8.1, 8.1.1, 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii), 8.1.1(1)(a)(iii), 8.1.1(1)(b)(iii), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3, 8.3(4), 8.3(4)(a), 8.3(4)(b), 8.3(4)(c), 8.3(4)(d), 8.3(4)(e), 8.3(4)(f), 8.3(4)(g), 8.3(4)(h), 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 9, 9.1, 9.1(2), 9.1(3), 9.1(7), 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3, 9.4, 9.4.1, 9.4.2
United States of America Department of State, 2021 Country Reports on Human Rights Practices: Iraq (2021)
REASONS FOR DECISION
Deputy President Boyle
6 February 2023
the application

The applicant seeks review of the decision of a delegate of the respondent (Minister) dated 11 November 2022[1] not to revoke the cancellation of the applicant’s Class BA Subclass 202 Global Special Humanitarian visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
[1] R1/14.
The applicant’s visa was cancelled under s 501(3A) of the Act on 11 April 2022[2] on the basis that he did not pass the character test by reason of his substantial criminal record, and he was serving a full-time term of imprisonment for an offence against a law of a State.
[2] R1/179.
The application for review was made on 18 November 2022 pursuant to s 500(1)(ba) of the Act, which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister made under s 501CA(4) of the Act.
background
The applicant is a 38-year-old citizen of Iraq. He arrived in Australia as an 18-year-old in February 2003 as the holder of a Class XB Subclass 202 Global Special Humanitarian visa. He has remained in Australia since then.
The applicant has an extensive criminal record including convictions for dishonesty offences, breaking and entering, drug possession/supply, traffic offences (including using an unregistered car, displaying misleading number plates, speeding and driving under the influence of drugs), stalking, resisting officers and assault. The applicant’s full criminal history is set out in the Annexure to these reasons.[3]
[3] The applicant’s criminal history is taken from the applicant’s SFIC which is based on the applicant’s Australian Criminal Intelligence Commission (ACIC) national criminal history check. Two materially different versions of that document were included in the G-documents.
On 27 February 2020, the applicant committed the offences of “break and enter a dwelling-house with intent to steal” for which he was convicted and sentenced in the Parramatta Drug Court on 10 September 2020. On that day the applicant was also convicted and sentenced on charges of larceny, being in possession of goods suspected of being stolen and driving with an expired licence. The applicant was sentenced to three aggregate sentences of imprisonment that were suspended while the applicant remained on the Drug Court program.
On 10 September 2020, the applicant commenced a Drug Court program on which he remained until 10 February 2022 at which time his participation in the program was terminated[4] because the applicant had “exceeded the drug use limit on a program”.[5]
[4] R1/49.
[5] Applicant’s counsel’s closing submissions: transcript at 112.
On 11 March 2022, the applicant was resentenced for the offences committed on 27 February 2020 for which he had received suspended sentences on 10 September 2020. On 11 March 2022 Senior Judge Dive sentenced the applicant as follows:
So I am going to impose the following indicative sentences:
In matter 1 there will be an indicative sentence of 15 months,
in matter 3, one month,
in matter 5 the break and enter with intent 8 months,
matter 6 goods in custody 2 months.
There will now be an aggregate or total term which will have a non-parole period of 11 months and a total term of 18 months.[6]
[6] R1/53.
On 11 April 2022, the applicant was given notice that his visa had been cancelled under s 501(3A) of the Act.[7]
[7] R1, 179.
On 21 April 2022, the applicant sought revocation of the cancellation decision and provided further submissions and evidence in support of his request.
On 11 November 2022, a delegate of the Minister decided, under s 501CA(4) of the Act, not to revoke the cancellation of the applicant’s visa.[8] The applicant was given notice of that decision by email to his representative on 14 November 2022.[9]
[8] R1/14.
[9] R1/11.
On 18 November 2022, applicant sought review of the delegate’s decision in the Tribunal.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act relevantly provides that:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Act relevantly provides:
For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); ...
(Original emphasis.)
A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
...
(Original emphasis.)
Section 501CA of the Act relevantly provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
...
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
(Original emphasis.)
Ministerial Direction 90
Section 499(1) of the Act provides that:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Section 499(2A) of the Act provides that “[a] person or body must comply with a direction under subsection (1).”
On 8 March 2021 the relevant minister for the purposes of s 499 of the Act, made a direction titled “Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA”[10] (Direction 90). The commencement date for operation of Direction 90 was 15 April 2021. Upon its commencement, Direction 90 revoked the operation of “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA”[11] (Direction 79).
[10] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021).
[11] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018).
Paragraph 5.1 sets out the objectives of Direction 90. Paragraph 5.1(3) relevantly provides:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction 90 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA of the Act. These principles are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 90 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 90 (where such considerations are relevant) in order to determine whether the cancellation of the visa should be revoked.
Guidance in relation to how the relevant considerations are to be taken into account can be found in para 7 of Direction 90 which provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of Direction 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.
Paragraph 9 of Direction 90 provides:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)    international non-refoulement obligations;
b)    extent of impediments if removed;
c)    impact on victims;
d)    links to the Australian community, including:
i)strength, nature and duration of ties to Australia;
ii)impact on Australian business interests.
THE HEARING AND THE EVIDENCE
The application was heard on 24 and 25 January 2023. The applicant was represented by Mr N Dobbie and the Minister was represented by Ms C Taggart of counsel. The applicant and witnesses were assisted by an interpreter as required. The following witnesses gave evidence at the hearing:
(a)the applicant;
(b)Fulvio Di Prinzio, psychologist;
(c)the applicant’s mother;
(d)the applicant’s sister, L; and
(e)the applicant’s brother.
The following documents were admitted into evidence:
(a)Supplementary documents of the applicant filed 20 December 2022, comprising 16 documents (A1);
(b)report of Fulvio di Prinzio dated 17 January 2023 (A2);
(c)witness statement of EN dated 17 January 2023 (A3);
(d)witness statement of AN dated 9 January 2023 (A4);
(e)letter of ME dated 17 January 2023 (A5);
(f)a document titled “Assessments of Mental health and Psychosocial Support Limitations, Needs and Recommendations in Iraq” (A6);
(g)letter dated 6 January 2023 from Penrith Mall Medical Centre (A7);
(h)G-documents filed 2 December 2022 (R1);
(i)summons bundle filed 12 January 2023 (R2); and
(j)supplementary summons bundle filed 23 January 2023 (R3).
THE ISSUEs
In the vast majority of applications seeking a review of a decision under s 501CA(4) not to revoke the cancellation of a visa, the only two issues for determination are:
(a)does the applicant pass the character test under s 501 of the Act;[12] and
(b)if the applicant does not pass the character test, whether there is another reason why the decision to cancel the visa under s 501(3A) of the Act should be revoked.[13]
[12] The Act s 501CA(4)(b)(i).
[13] The Act s 501CA(4)(b)(ii).
In para 9 of his statement of facts, issues and contentions dated 20 December 2022 (applicant’s SFIC), the applicant conceded that he does not pass the character test because he has a substantial criminal record as defined by s 501(7)(c) of the Act. That concession was made on the basis of the applicant’s convictions and sentence on 11 March 2022 (see [8] above). The mandatory cancellation of the applicant’s visa under s 501(3A) of the Act (see [2] above) was stated to be based on:
(a)the applicant having a substantial criminal record as a result of his convictions on 11 March 2022 of “Break & Enter house etc steal value <= $60,000-T1, Larceny-T2, Break and enter dwelling-house etc with intent (steal)-T1 and Goods suspected stolen in/on premises (not m/v)” in the Drug Court of New South Wales at Parramatta for which he was sentenced to an aggregate term of imprisonment of one year and six months (emphasis added); and
(b)“at the time of the decision, … [the applicant was] serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.”[14]
[14] R1/180.

By its decision in Pearson v the Minister for Home Affairs,[15] (handed down on 22 December 2022), the Full Court of the Federal Court of Australia found that for s 501(7)(c) of the Act to have application, the custodial term of 12 months or more must derive from a single offence. The Full Court’s reasoning was based on its finding that Parliament’s intention was that mandatory cancellation of a person’s visa should only apply where a person has been sentenced to a custodial term of 12 months or more for an offence, rather than an aggregation of multiple offences. The obligation on the Minister to cancel a visa under s 501(3A) arises on a failure of the character test under ss 501(6)(a) and 501(6)(e) or sub-ss 501(7)(a), (b), (c), but not s 501(7)(d) (see [13] above).
[15] [2022] FCAFC 203.
In that regard, the Full Court at [47] observed:
… the unqualified expression [in s 501(7)(c) of the Act] can be contrasted with that in s 501(7)(d) – “sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more” – and with the explanation in respect of concurrent sentences in s 501(7A). Had Parliament intended that an aggregate sentence of 12 months or more should be subject to mandatory cancellation of a person’s visa, it would have been a straightforward matter to say so. That it did not do so is consistent with the apparent purpose of s 501(3A), namely that only the most serious offending subjects a person to mandatory cancellation of a visa. Self-evidently, an aggregate sentence may be arrived at after conviction of a series of lesser offences, none of which on their own could render a person liable to have his or her visa mandatorily cancelled.
In the case of Pearson, Ms Pearson’s visa had been cancelled under s 501(3A) because she had been:
… sentenced pursuant to s 53A of the Crimes (Sentencing Procedure) Act [NSW] to an aggregate maximum term of imprisonment of 4 years and 3 months in respect of 10 offences. As is required by s 53A(2) of that Act, indicative sentences were recorded in respect of each offence, one of which was for a term of 18 months.[16]
[16] Pearson at [44].
At [48] of Pearson the Full Court found:
Ms Pearson was not sentenced (for an offence) to a term of imprisonment of 12 months or more. Consequently, her visa was not amenable to mandatory cancellation under s 501(3A). Of course, nothing would have prevented the Minister from exercising his discretion pursuant to s 501(2) or (3) to cancel her visa should he have been satisfied of the matters in that subsection.
As noted at [8] above, 11 March 2022, Senior Judge Dive sentenced the applicant as follows:
So I am going to impose the following indicative sentences:
In matter 1 there will be an indicative sentence of 15 months,
in matter 3, one month,
in matter 5 the break and enter with intent 8 months,
matter 6 goods in custody 2 months.
There will now be an aggregate or total term which will have a non-parole period of 11 months and a total term of 18 months.[17]
[17] R1/53.
On the basis of the Full Court judgment in Pearson, the applicant’s visa “was not amenable to mandatory cancellation under s 501(3A)” (see [33] above) based on the convictions and the aggregate sentences imposed on 11 March 2022. The applicant does not fail the character test for the purposes of s 501(3A) of the Act as a result of those convictions and sentences.
In the applicant’s submissions in reply dated 19 January 2023 (that is after the handing down of the judgment in Pearson), the applicant submitted that, on the basis of the decision in Pearson, “an aggregate term of imprisonment of 18 months … was not one upon which the Minister was permitted to rely to cancel the visa”.[18] The applicant submitted that the cancellation of the visa by the Minister was not valid because it was based on the Minister being of the belief that he was required to cancel the applicant’s visa “having regard to the 11 March 2022 aggregate sentence” and that he “therefore could not have reached the state of satisfaction required by s501(3A)(a) in order to cancel the visa”.[19]
[18] Applicant’s submissions in reply para 2.
[19] Applicant’s submissions in reply para 3.
In the Minister’s statement of facts, issues and contentions (filed on 12 January 2023, after the handing down of the judgment in Pearson) (Minister’s SFIC), the Minister advised that he was “considering filing an application for special leave to appeal Pearson to the High Court” but accepted that the Tribunal is bound by the Full Court decision in Pearson.[20] The Minister contended, however, that Pearson is distinguishable from the present case because of the 19 May 2011 conviction for assault occasioning actual bodily harm and the resulting sentence of a term of imprisonment for 12 months. The fact that the term of imprisonment was wholly suspended (although later called up) does not affect its basic character for the purposes of s 501(7)(c) of the Act as a sentence to a term of imprisonment of 12 months or more.[21] The Minister contended that the cancellation of the visa under s 501(3A) of the Act was, therefore, valid, and further, that by virtue of the conviction and sentence of 19 May 2011, the applicant does not pass the character test.
[20] Minister’s SFIC para 32.
[21] Citing Onwong’a and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4631 at [25].
There are two answers to the applicant’s submissions. The first is that what the applicant is, in effect, asking the Tribunal to do, is to find that the cancellation of the visa by the Minister was invalid. That is beyond the jurisdiction of the Tribunal. The fact is that, validly or otherwise, the applicant’s visa was cancelled. The only decision that the Tribunal has power to review is the delegate’s decision not to exercise the discretion under s 501CA(4)(b) of the Act to revoke the cancellation of the applicant’s visa by the Minister. The Tribunal has no power to set aside the Minister’s cancellation of the visa under s 501(3A) or to declare the cancellation to be invalid. If the applicant’s case is that the cancellation of the visa by the Minister on 11 April 2022 was invalid for the grounds identified by the applicant, that is a matter that is appropriately dealt with by the Federal Court, not the Tribunal.
The second answer to the applicant’s contention is that, while the Minister referenced the sentence imposed on 11 March 2022 as forming the basis of the applicant failing the character test (held by Pearson not to be correct), the fact is that the applicant fails the character test in any event based on his 19 May 2011 conviction and sentence. As the Minister argued, the fact that the 12-month term of imprisonment imposed on 19 May 2011 was suspended does not alter the fact that the applicant was sentenced to a term of imprisonment for 12 months or more for the purposes of having a substantial criminal record under s 501(7)(c) of the Act. The Full Court of the Federal Court in Brown v Minister for Immigration and Citizenship[22] made the following findings in that regard:
The structure of s 501 recognises that there are varying degrees of punishment sufficiently serious to amount to a substantial criminal record for the purposes of ss 501(6)(a) and (7). The definitions of "imprisonment" and "sentence" in s 501(12) are in the inclusive form; that is, each definition elucidates but does not limit the ordinary and natural meaning of the word. A sentence of imprisonment for not less than 12 months that is wholly suspended is a very serious penalty. The focus of ss 501(7)(c) and (d) is on the length of the term of imprisonment to which the person is sentenced, not the manner in which the sentence is to be, or subsequently may be, served.[23]
And;
For these reasons it should be accepted that the appellant was sentenced to a term of imprisonment of 12 months or more within the meaning of s 501(7)(c) in spite of the fact that execution of her sentences was suspended.[24]
[22] [2010] FCAFC 33.
[23] Per Rares J at [7].
[24] Per Nicholas J at [114].
At the time of the Minister cancelling the visa under s 501(3A) on 11 March 2022, the applicant:
(a)failed the character test because he had a substantial criminal record on the basis of s 501(7)(c), having been sentenced to a term of imprisonment of 12 months or more on a previous single sentence;[25] and
(b)was serving a sentence of imprisonment, on a full-time basis in a custodial institution for an offence against a law of a state.[26]
The two factual circumstances requiring the Minister to cancel the applicant’s visa under s 501(3A) were therefore current at the time of the cancellation.
[25] The Act s 501(3A)(a).
[26] The Act s 501(3A)(b).
Section 501(3A) of the Act does not bestow a discretion on the Minister to cancel a visa if he forms a requisite level of satisfaction. It imposes an obligation on the Minister to cancel a visa if the two factual circumstances described in sub-ss (a) and (b) coincide. Insofar as s 501(3A)(a) refers to a level of satisfaction on the part of the Minister, the Minister was obviously satisfied that the applicant failed the character test, which, as a matter of fact was the case. Even if it were within the power of the Tribunal to review the Minister’s decision to cancel the visa (which it is not), it would be a perverse result— a matter of form over substance— if the Minister’s decision were to be set aside in circumstances where, as a matter of fact, the two factual circumstances which obliged the Minister to cancel the visa were extant at the time that the Minister made the decision to cancel the visa.
At the hearing, Mr Dobbie for the applicant raised, in the alternative, the potentially invalid cancellation of the applicant’s visa by the Minister relying on the 11 March 2022 aggregate sentence (or the Minister’s reliance on that sentence in his reasons for cancelling the visa; see [29] above) as being “another reason” under s 501CA(4)(b)(ii) of the Act as to why the decision to cancel the applicant’s visa should be revoked.[27] I do not accept that that would be a relevant matter to take into account in determining whether there is “another reason” to cancel the original decision under s 501CA(4)(b)(ii) of the Act. It is effectively trying to run the same argument which, for the reason set out above, I have determined is not within the scope of the review by Tribunal in this application.
[27] Transcript at 5.
Further, while the considerations under Direction 90 are not expressed to be comprehensive or to exclude consideration of matters not expressly identified in Direction 90, the matter that the applicant is suggesting could be treated as “another reason” to exercise the discretion under s 501CA(4) to revoke the cancellation of the applicant’s visa is of a fundamentally different character to the considerations which Direction 90 dictates “must be considered”.[28] As noted above, the argument raised by the applicant is a legal one that is appropriately dealt with by the relevant court, not this tribunal. In any event, even if it were a factor to be taken into account in determining whether there is “another reason” to revoke the cancellation of the visa, I would give it no weight because the applicant, in any event, fails the character test because he has a substantial criminal record for the purposes of s 501(7)(c) of the Act because of the sentence of 19 May 2011.
[28] Direction 90 para 5.2.
Accordingly, the issues for determination are those identified in [28] above, namely:
(a)does the applicant pass the character test under s 501 of the Act;[29] and
(b)if the applicant does not pass the character test, whether there is another reason why the decision to cancel the visa under s 501(3A) of the Act should be revoked.[30]
[29] The Act s 501CA(4)(b)(i).
[30] The Act s 501CA(4)(b)(ii).
CONSIDERATION
Failure of the character test arises as a matter of law: Harrison and Minister for Immigration and Citizenship.[31] For the reasons set out at [39] above the applicant fails the character test for the purposes of s 501(3A)(a) of the Act. The applicant’s counsel in opening conceded that to be the case.[32]
[31] [2009] AATA 47; (2009) 106 ALD 66.
[32] Transcript at 9.
Further, s 501CA(4)(b)(i) requires only consideration of whether the applicant fails the “character test (as defined in section 501)”. Unlike s 501(3A)(a) which requires the person to fail the character test by operation of ss 501(6)(a), 501(6)(e) or 501(7)(a), (b) or (c) of the Act, s 501CA(4)(b)(i) requires the person to pass the character test, that is not fail the character test, as defined in s 501 of the Act. Accordingly, even if the applicant did not fail the character test for the purposes of s 501(3A)(a) because he did not have a substantial criminal record as defined in s 501(7)(a), (b) or (c), he would still fail the character test “as defined by s 501”. This is not only because of the 19 May 2011 conviction and sentence, but also because the 11 March 2022 sentence, either on its own or combined with the other sentences of imprisonment which the applicant has received, would result in the applicant having a substantial criminal record under s 501(7)(d) of the Act. This results in the applicant not passing the character test for the purposes of s 501CA(4)(b)(i) of the Act.
As the applicant does not pass the character test, he cannot rely on s 501CA(4)(b)(i) of the Act for the decision to cancel his visa to be revoked. The issue for determination, therefore, is whether the power under s 501CA(4)(b)(ii) of the Act should be exercised on the basis that there is another reason why the decision under s 501(3A) of the Act should be revoked (see [16] above).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1 of Direction 90 provides that, when decision-makers are considering the protection of the Australian community, they:
(1) ... should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (para 8.1.1)
Paragraph 8.1.1 of Direction 90 provides:
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)    without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)    without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)    with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)    the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)    the cumulative effect of repeated offending;
f)     whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)    whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
The applicant’s SFIC made the following submissions in relation to this consideration:
(a)The applicant’s offending is to be regarded as serious having regard to Direction 90 at paras 8.1.1(1)(c), 8.1.1(1)(d) and 8.1.1(1)(e). This is self-evident from the frequency of the offences, and nature of some of the offences (for example, assault occasioning actual bodily harm; supplying a prohibited drug (greater than small, less than or equal to an indictable quantity), stalk/intimidate, intend fear or physical harm) and the sentences of imprisonment ordered.[33]
(b)In relation to the offences of “stalk/intimidate intend fear physical etc harm (personal)”, and assault occasioning actual bodily harm, the applicant noted that there has been no reoffending since 2011. The applicant accepted that there was offending of the same nature, for which the applicant was convicted on 6 June 2007, such that it would constitute repeat offending. The applicant submitted that there was now a significant period during which there been no repeat offending of this nature.
(c)The applicant conceded that he is a repeat drug offender. The other offences, such as larceny and break and enter, were attributable to the applicant suffering from substance abuse, namely methamphetamine use.
[33] In opening at the hearing, the applicant’s counsel conceded that “…the sheer volume of his offending makes it very serious. Serious to very serious, I think that would be a fair concession to make without wasting anyone’s time on anything less than that. Mainly because of the continuous offending, yes, over periods of time” (transcript at 12–3).
The Minister’s SFIC made the following submissions in relation to this consideration:
(a)The applicant has committed numerous violent offences[34] including against a woman[35] as well as acts of family violence[36]
(b)The applicant has also committed crimes against government representatives or officials in the performance of their duties by way of resisting arrest[37] and assaulting a Centrelink worker.[38]
(c)Regard must also be had to the fact that the applicant has been sentenced to more than one term of imprisonment for his offending.[39] Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy.[40] Where a Court has sentenced an offender to a term of custodial imprisonment, this should be viewed as a reflection of the objective seriousness of the offences involved.
(d)The applicant has repeatedly offended over the past 17 years. This behaviour must be seen as cumulatively having had a deleterious impact on the Australian community.[41]
[34] Citing Direction 90 para 8.1.1(1)(a)(i).
[35] Citing Direction 90 para 8.1.1(1)(a)(ii).
[36] Citing Direction 90 para 8.1.1(1)(a)(iii).
[37] Citing R2/350–2, 381–5.
[38] Citing Direction 90 para 8.1.1(1)(b)(iii).
[39] Citing Direction 90 para 8.1.1(1)(d).
[40] Citing PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22].
[41] Direction 90 para 8.1.1(1)(e).

Arguably the most serious of the applicant’s offences were those committed in February 2020 for which the applicant received the 18-month aggregate sentence on 11 March 2022. The circumstances of those offences were set out in Senior Judge Dive’s sentencing remarks as follows:
The offence in sequence 1 occurred on 27 February 2020. [The applicant] has gone to a residential home in the suburb of [omitted]. The home had been left locked and secured, and [the applicant] has forced his way into the property, and once inside has forced open the victim’s bedroom which was locked and secured within the premises and has stolen a Tissot brand watch from those premises. There is some disagreement as to what that might be valued at - it was an expensive watch and may have been valued at between $1,500 and $3,500. On that day the victim has returned home and observed a motor vehicle parked in the driveway and the front door was open. The victim walked into the hallway and heard a bang, which was the accused who ran in front of her into the lounge room. The victim said “what are you doing in my house?” the offender replied “I did nothing wrong, I didn’t take anything, I just came inside”. The victim said that she was going to call the police and reached for her phone, at which time the accused ran towards her with his hands in a grabbing motion. The victim feared for her safety, so she turned and ran out of the door, and went to a neighbour’s house.
[The applicant] managed to leave the premises, moving some garbage bins out of the way, however he was arrested shortly thereafter.
In sentencing the applicant Senior Judge Dive also made the following observations:
It is the case however that in relation to sequence 1 [the applicant] was still on an Intensive Corrections Order at the time that offence was committed, so that does indicate to the Court that [the applicant] has breached conditional liberty and is less entitled to leniency in those circumstances. So as far as sentence is concerned, that is an aggravating circumstance regarding that matter alone.
[The applicant] remained on the Drug Court program for a long time - a total of some seventeen months, however he did spend a lot of time in custody serving sanctions. Indeed there were five sets of sanctions and he spent a total of eleven weeks or 77 days serving sanctions. So as Ms Walmsley for the DPP has pointed out, his time in the community on the program was about fourteen and a half months. [The applicant] did get himself up to phase 2 of this three phrase program, and that is to be considered as he has met our required criteria for graduation to the second, more trusted phase of the program. [The applicant] did work hard to achieve that, it did take some time, but he did get to phase 2. It is sad to see in the chronology that things seemed to get worse rather than better as time went on, and most of the sanctions [the applicant] served were in more recent times, and he ended up losing his program when there was further unadmitted drug use.
It is also clear from the chronology that [the applicant] was struggling in relation to his mental health across a period of time, and there was a request for a mental health plan when he was serving a 28-day period of sanctions.
So [the applicant] was certainly struggling at the end of his program with his drug use and his mental health. As Mr Ayoub has noted, there has been no new crime committed, so a lot of months have gone by with no new crime.[42]
[42] R1/51–2.
The applicant was convicted of assault occasioning actual bodily harm on 13 November 2012. The facts of that offence were set out in a New South Wales Police “facts sheet”[43] as follows:
About 02:00pm the Accused, [the applicant], has entered … Centrelink located at [omitted].
At 02:05pm the Victim, has approached the Accused and asked him to move from the table he was sitting on to a nearby chair. The Accused has refused and told the Victim to "Fuck Off." The Accused has stood up and begun leaning against the table he was seated upon. The Victim has left the area at this stage.
At 02:09pm the Victim has returned and once again approached the Accused. The Victim has noticed that the Accused was still seated against the table. The Victim has approached the Accused and once again asked him to sit on a chair rather then the table. The Accused began yelling "Fuck off, come outside I'll show you!" The Victim responded with "There's no need, just take a seat, I'm just doing my job."
The Accused began arguing with the Victim who tried to calm him down and was explaining to the Accused that he was just doing his job. The Accused has stood up and placed his face a few inches from the Victim’s. The Accused has continued to argue with the Victim. The Accused has then begun to push the Victim away. The Victim has stepped backward as a result of this push. The Accused has continued to walk towards the Victim as he was moving backwards and continuosly [sic] pushed the Victim with both hands to the Victim's chest.
The Victim has grabbed hold of the Accused wrists as he was being pushed and a brief wrestle has ensued. The Accused has thrown the victim about 2 metres away as he freed himself.
At this stage three Centrelink Employees have approached the Accused and seperated [sic] him from the Victim. The Accused has noticed his shirt was torn and has broken free of the Employees and lunged at the Victim. The Accused has grabbed hold of the Victims shirt and a wrestle has ensued. During this wrestle the Accused has struck the Victim in his face with his right fist. The Accused has torn the Victim's shirt during this wrestle. The Victim has lost his balance and fallen to the floor as a result of this wrestle, pulling the Accused down with him. As he fell the Victim has struck his nose on a nearby table causing it to begin to bleed uncontrollably.
[43] R1/55.
In cross-examination, the applicant was taken to a document[44] setting out the circumstances put forward in support of the application for a provisional apprehended violence order (AVO) before the Fairfield Local Court in September 2010. The incident described in the document resulted in the applicant’s conviction on 19 May 2011 for assault occasioning actual bodily harm for which he received the suspended sentence of 12 months imprisonment. In summary, the document described the circumstances of that offending as follows:
[44] R2/279–80.
·There were three female victims, Ms J, Ms S and Ms M.
·The three victims were attending a large family picnic. The applicant and his family were at the same location.
·After leaving the location, the boyfriend of one of the victims rang the victim Ms J to advise her that the applicant had rung him and defamed her, calling her a slut and claiming that she had slept with 100 men.
·As a result, the three victims and another person (referred to as the witness) attended the applicant’s home. The applicant left the house and came towards the victim Ms J screaming and swearing at her stating that she was a “fucking slut”.
·The applicant pushed victim Ms J, then punched and kicked her several times to the body and abdomen.
·The applicant them produced a 40cm silver-bladed knife and kept pushing the victim Ms J with both hands, including the hand holding the knife.
·At that point victim Ms S has opened the front passenger door of her car to allow Ms J to get into the car to get away from the applicant. The applicant, however, grabbed Ms J by the hair and pulled her away for the car. The applicant then reached into the car and pointed the knife at Ms S causing her to have to lean back in the seat.
·Ms S tried to move the car away, however, there was another car blocking Ms S’s car. At that point the applicant started kicking the rear passenger door of Ms S’s car causing significant damage.
·Police subsequently attended the scene and took statements. Victim Ms J appeared to be distressed and complained of abdominal pain, indicating that she had been kicked or stomped on in that area.
·The victim Ms S was conveyed to the Fairfield Police station where she became visibly sick, experienced excruciating abdominal pain and began to vomit. An ambulance was called and she was taken to Liverpool Hospital.
·The applicant was arrested and charged.
The applicant confirmed that the document accurately reflected what had happened.[45]
[45] Transcript at 50–1.
In addition to the above assaults, the applicant was convicted on three counts of assault occasioning bodily harm in June 2007 and of common assault in 2011. The applicant has multiple drug related offences ranging from possession of minor amounts of drugs to supplying a prohibited drug. He also has multiple driving offences and multiple larceny and possession of stolen goods convictions. In total the applicant has 53 convictions over nearly 17 years (according to the table of offending in the applicant’s SFIC (see [5] above)).[46]
[46] Note also the inconsistency in ACIC records referred to in [4] above.
In assessing the seriousness of the applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction 90 (see [49] above), I find that:
(a)Paragraph 8.1.1(1)(a) – the applicant has been convicted of offences involving violence, including violence against women. These must be viewed as very serious. The assault on Ms J described in [55] above was particularly savage and sustained and resulted in actual physical injury. It involved the applicant punching and kicking the victim, Ms J, and threatening Ms J and Ms S with a knife.
(b)Paragraph 8.1.1(1)(b)(ii) – the applicant has been convicted of assaulting a Centerlink officer (see [54] above).
(c)Paragraph 8.1.1(1)(c) – ignoring the sentence imposed on 19 May 2011 for the assault occasioning actual bodily harm as I am required to do by sub-para (c), the sentences imposed for the applicant’s other offences have been at the lower end of scale of potential sentences.
(d)Paragraph 8.1.1(1)(d) – as the applicant rightly concedes, his offending has been frequent (see [50(a)] above). There has not, however, been a trend of increasing seriousness.
(e)Paragraph 8.1.1(1)(e) – the Minister contends that the cumulative effect of the applicant’s offending has a deleterious impact on the Australian community (see [51(d)] above). All offending, repeated or otherwise, has a deleterious impact on the community. This not only includes the direct physical, financial and psychological impact on victims, but also the cost to the broader community of wasted public resources in the form of public expenditure on policing, courts and prisons. In the present case, another cumulative “effect” of the applicant’s offending is what it tells us about him. The frequency of the applicant’s offending and the fact that he keeps committing the same offences, or types of offences, notwithstanding the repeated intervention of the justice system, in particular the New South Wales Drug Court, indicates that the applicant was unable, or unwilling, to change his offending ways. He appears to have had a total disregard for the law.
(f)Paragraphs 8.1.1(1)(f) and 8.1.1(1)(g) – not relevant in this case.
I agree with the applicant’s counsel’s assessment of the applicant’s criminal record as being serious to very serious (see [50(a)] above).
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
Paragraph 8.1.2 of Direction 90 relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the non-citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Tribunal in CZCV and Minister for Home Affairs[47] at [56], summarised the task for the decision-maker as follows:
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]- [43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
[47] [2019] AATA 91.
In BSJ16 v Minister for Immigration and Border Protection,[48] Moshinsky J stated, at [68]:
... there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.
[48] [2016] FCA 1181.
While the Tribunal and the Court in the above cases (and in the cases referred to therein) were considering visa cancellation in the context of predecessors to Direction 90, given the similarity in the wording of those Ministerial Directions, the same considerations and principles apply to the present case. I adopt the approach indicated in the above cases.
Nature of harm to individuals or the Australian community (para 8.1.2(2)(a))
On the issue of the nature of the harm to the community should the applicant engage in the conduct that he has in the past, at para 28 of the applicant’s SFIC, the applicant submitted that the harm would likely relate to property; being theft and break and enter. This, it was said, was on the basis that the offending after 2012 was non-violent and “would normally be characterised as minor criminal offending”. In closing, Mr Dobbie submitted that that “the nature of the harm to the community should he reoffend, given that his assault offences were more than 10 years ago, in fact 11 years ago, would be likely related to drug possession and property offences, given his track record”.[49] There are two things to note about these submissions. The first is that the submission discounts the applicant’s history of violent offending. The second issue is that the submissions overlook the numerous driving offences that the applicant has committed. These include convictions for driving a motor vehicle without a licence (two counts), driving with illicit drugs in his blood (three counts), driving while licence was suspended (three counts), speeding and driving an unregistered vehicle. The third issue with the applicant’s submissions is that they underplay the potential for serious physical and broader societal harm that results from drug related and driving offences. Clearly, the repeated use and supply of drugs and the repeated driving of motor vehicles contrary to the law, particularly driving with illicit drugs in his system, has the potential to cause harm to much more than property.
[49] Transcript at 114–5.
At para 44 of his SFIC, the Minister made the following submission on the nature of the harm that would be caused to the community if the applicant were to reoffend:
If the applicant were to reoffend by committing further dishonesty and property offences, the nature of the harm that may result includes financial harm to Australian community members and businesses. Further drug offending would result in the continuation of drugs being circulated in the community. If the applicant were to reoffend by committing further driving offences, the nature of the harm that may result includes physical harm, up to and including the possibility of the death, of other road users including drivers, passengers, pedestrians and cyclists. Offending of that nature will also have broader financial and other consequences to the justice and health systems.
I find that the harm that would be caused to the community, or to individual members of the community if the applicant were to engage in the offending that he has in the past, is serious. As noted at [64] above, the harm likely to be caused if the applicant were to reoffend is the direct physical, financial and psychological harm caused to victims and also the cost to the broader community of wasted public resources in the form of public expenditure on policing, courts and prisons.
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of reoffending (para 8.1.2(2)(b))
At para 25 of his SFIC, the applicant submitted that the risk of his causing harm to the Australian community is low. In support of that contention the applicant cited the “Assessment” section of the New South Wales Corrective Services “Community Corrections Immigration Report” dated 27 June 2022[50] and the psychological assessment provided by Ms Rosemary Qummouh, accredited mental health social worker, dated 17 May 2022.[51]
[50] R1/76.
[51] R1/124.
The applicant also said that he has been drug-free while he has been in detention and has undertaken courses relating to substance abuse. In that regard he again refers to his last violence related conviction being more than 11 years ago.
The applicant also refers to Senior Judge Dive’s reference in his sentencing remarks to the sentencing remarks of the judge who originally sentenced the applicant on the same charges. That judge apparently described the applicant’s criminal history as “not extensive”.[52] It appears that his Honour was noting that the applicant’s record at that point in time, compared to other matters that come before the drug court, was not extensive.[53] I find that a curious comment given the applicant’s very extensive criminal record, even at the time that that comment was apparently made. That characterisation of the applicant’s criminal record is hard to understand given the type and large number of convictions. As noted at [50(a)] above, the applicant’s counsel, in my view accurately, commented that “… the sheer volume of his offending makes it very serious. Serious to very serious”.[54]
[52] R1/51.
[53] R2/214.
[54] Transcript at 12.
The applicant provided a report dated 17 January 2023 from psychologist, Fulvio Di Prinzio.[55] Mr Di Prinzio gave evidence at the hearing.
[55] A2.
At para 46 of his SFIC the Minister made the following submissions:
(a)The applicant’s drug use is long standing.
(b)Any abstinence from drugs has been of a short term only and is entirely untested in the community. Furthermore, the applicant engaged in counselling for alcohol and other drug intervention whilst on the Drug Court program,[56] yet continued to use.
(c)The applicant did not complete any programs in prison[57] and the report from Rosemary Qummouh (see [67] above) confirms that he has unmet treatment needs.[58] In 2018, a psychologist (Bianca Frahm) further assessed the applicant as presenting a moderate risk of reoffending.[59]
(d)The support of the applicant’s partner and other family and friends was insufficient to curb his drug use and offending in the past. Furthermore, their statements in support do not demonstrate full knowledge of the applicant’s substance abuse.
(e)Ms Qummouh’s report did not provide any opinion relating to the applicant’s risk of reoffending and, in any event, the weight that the report can be given is questionable in light of the fact that it appears to contain inconsistent information in relation to previous support offered or provided to the applicant.[60]
(f)Prison records indicate that the applicant has been involved in physical altercations whilst in prison and has also been abusive and aggressive to officers.[61]
(g)The applicant has a history of expressing remorse and an intention to engage in rehabilitation upon release from prison[62] and despite such rehabilitation reoffended quickly.[63]
[56] Citing R1/74; R2/336.
[57] R1/74.
[58] R1/127.
[59] R2/354. I note that Ms Frahm has a Masters degree in Forensic Psychology. I also note that Ms Frahm applied the Level of Service Inventory–Revised (LSI-R) in assessing the risk of the applicant reoffending. She describes the LSI-R as a quantitative survey of attributes of offenders and their situations designed to provide a comprehensive risk/needs assessment (R2/361).
[60] Citing R1/120–1, 124.
[61] Citing R2/9, 11–3, 16, 74–9, 87, 89.
[62] Citing R2/18, 29, 118.
[63] Citing R2/18–9.

The Minister contended that, on the totality of the evidence, the primary consideration of the protection of the Australian community weighs heavily in favour of non-revocation.
As noted above, there were three psychological reports which, in some cases, addressed the risk of the applicant reoffending. The first of those reports was that of Ms Frahm dated 17 December 2018.[64] Also as mentioned above, Ms Frahm assessed that the applicant was a moderate risk of reoffending applying the LSI-R. At para 24 and 25 of her report, Ms Frahm commented that:
[The applicant] has a disregard for the law and acknowledges that he continues to drive as a rebellious and thrill seeking experience. It appears that he had impaired ability to consider the consequences, and potential risks to himself and others when driving recklessly and far above the permitted speed limit.
He also has little insight into the degree to which substances are impacting his life, despite the significant functional impact, e.g. mental illness, repeated offending, incarceration, relationship difficulties, employment difficulties, ongoing concern, worry and distress. He will benefit from inpatient treatment at a facility which can address his substance dependence and mental health.
[64] R2/354–67.
The second report, that of Ms Qummouh dated 17 May 2022, made the following observations:
Insight and judgement
Due to reported symptoms warranting an ICD-10 mental disorder, [the applicant] was able to acknowledge and own his drug and aggressive behaviours associated with the circumstances he faced at the time of the charges/events. [The applicant] acknowledges his life was ruined, and his mental health worsened when he started to take ICE and spiralled into a long journey of addiction and crime. [The applicant] acknowledges his pre-and post-settlement traumatic experiences directly attributed to his current psychological state of PTS and drug addiction, stating being "psychologically damaged" from his life experiences and instability. [The applicant] acknowledges and accepts that his drug addiction to ICE has "ruined my life" and is the catalyst for his behavioural responses in his charged events, describing it as irrational behaviours to cope and demonstrating sincere remorse and regret.
[The applicant] identified he needs to seek psychological services to address his complex trauma (PTS) and drug addiction and behaviours to which he never entered any help-seeking services in the past nor has been assessed by a psychiatrist, despite being ordered seven times by the courts to engage in counselling and drug rehabilitation. [The applicant] reports that his Probation and Parole Officers did not follow up with referrals or monitor if he engaged in services as directed, slipping under the radar.
[The applicant] reported entering drug rehabilitation one time out of the seven court-ordered counselling and rehabilitation conditions and reported it as a "pointless" admission as there were drugs in the centre, and he continued to use drugs. [The applicant] reported receiving counselling associated with the last charges (2018), which his lawyer at the time coordinated counselling with the Drug courts (this would be [the applicant’s] first real counselling commitment in the 19 years of his time in Australia).
…
[The applicant] has identified the need to stop his substance abuse to cope and manage his PTS symptoms and stressors. This demonstrates acknowledgement of [the applicant’s] behaviours and willingness to work on his issues and move forward free of drug addiction and criminal behaviours and his reported commitment to the care he provides for his mother, sister [omitted] and girlfriend [omitted].
[The applicant] reports both his criminal record since 2009 to date is a direct result of the toxic and often dangerous environment he found himself in, pre-and post-settlement, his complex trauma history, and not receiving consistent or adequate psychiatric or psychological or rehabilitation opportunities resulting in his behavioural responses fuelled by his substance dependence to methamphetamines abuse.
…
[The applicant’s] criminal history of drug-related offences commenced around 2009; to date, the courts have ordered him to "obey all reasonable directions for counselling, educational development including drug and alcohol rehabilitation" on seven occasions from 2009 to 2021. [The applicant] reports having only once entered drug rehabilitation Odyssey House in early 2019, reporting rehabilitation as ineffective due to the readily available drugs in the centre.
…
[Entering] one year of counselling ordered by the Drug Court of New South Wales in 2021 was the only intervention [the applicant] has received. [The applicant] did not complete the year and was returned to jail to serve his remaining sentence.
…
… [The applicant] acknowledges that the lack of proper rehabilitation and counselling interventions to assist recovery has impacted where he finds himself today. [The applicant] expressed that he wants to turn his life around, receive drug rehabilitation, marry his long-term girlfriend ([omitted]), start a family, move to Queensland with his mother and sister [omitted] (to continue caring for them) to work with his brother in formwork/construction and remove himself from the environment and crowd he associated with in Sydney. [The applicant] has not had the chance or a real opportunity to address his complex [post-traumatic stress disorder (PTSD)] and addiction.
Ms Qummouh noted the applicant as having:
… features consistent with the following diagnosis of F43.10 Complex Post Traumatic Stress Disorder; F15.10 Other/Unspecified stimulant use disorder moderate/severe (methamphetamines) with F41.2 Mixed anxiety and depressive disorder and has been assessed as such.
Under the heading “Recommendations”, Ms Qummouh stated that:
There is evidence of cognitive and addiction disorders requiring psychiatric and psychological evaluation. [The applicant] has not had nor received psychiatric care to address his long-standing complex history of trauma exposures and other complicating factors [the applicant] has been exposed to throughout his lifespan. He would benefit (and be provided with a real opportunity to receive appropriate mental health services) from trauma-focused cognitive behavioural therapy to address and manage PTS symptoms, chronic fear, psychological impacts on his lifespan development, anxiety, and depression.
To address [the applicant’s] substance abuse due to its intensity and persistence would benefit from an inpatient drug rehabilitation program (long term) that is closely monitored and completed (be provided with a real opportunity and chance to receive appropriate drug rehabilitation).
[The applicant] would benefit from psychotherapy interventions surrounding behaviour modification methods, drugs, and alcohol, developing strategies of self-control methods and training to support his drug addiction recovery.
[The applicant] would benefit from close case management & monitoring, liaison, and intensive treatment.
In his report dated 17 January 2023, Mr Di Prinzio made the following observations:
[The applicant] expressed remorse and regret for his transgressions, as well as a sense of trepidation about his capacity to survive and live in Iraq. [The applicant] continually apologised during the session for his actions and substance abuse and became emotional when talking about his plight.
In order to help determine [the applicant’s] current mental health status, [the applicant] was asked to complete the DASS-21 (Depression Anxiety and Stress Scale 21); the K-10 (Keschler 10); and the Post Traumatic Checklist-5 (PCL-5).
The DASS-21 is a measure of symptom severity across three clinical scales of Depression, Anxiety and Stress. Scores on the DASS-21 are presented as severity ratings, ranging from Normal, Mild, Moderate, Severe and Extremely Severe. [The applicant’s] responses indicate that over the seven days prior to completing the screen, he experienced Extremely Severe symptoms on all three clinical scales.
…
[The applicant’s] current symptom presentation is considered to be well explained by a putative diagnosis of Post Traumatic Stress Disorder.
…
I am of the opinion that at the current time, [the applicant’s] current signs and symptoms of distress meet the criteria for a diagnosis of Post-Traumatic Stress Disorder (Classification 309.81) as defined by the Diagnostic and Statistical Manual of Mental Disorders – Fifth Edition (DSM-5).
…
[The applicant’s] capacity to problem solve, particular regarding abstract longer term objectives is compromised by his history and condition. His focus invariably gravitates towards tangible, short term achievable priorities, which are salient in his thoughts. It is difficult for someone with Complex PTSD to maintain continuity in their lives.
…
Hence, [the applicant’s] capacity to adjust and respond functionally to a new way of living, in a new country, is severely compromised by his complex PTSD.
…
… His life experiences to this time placed him at a distinct disadvantage at contending with the mental demands and challenges of life in a western world. [The applicant’s] capacity to engage and cope with change and remain compliant with societal norms and expectation is compromised and as such, he is likely to be disadvantaged in his capacity to exercise sound judgement, particularly without his usual supports. [The applicant’s] relationship with his family remains positive and strong, such that he is likely to adhere to their advice and direction. Hence, having family involvement and support is protective against this psychological limitation.
Under the heading “Risk of Recidivism”, Mr Di Prinzio, set out what he considered to be protective factors (support of family, promise of employment) and negative factors (poor education, fleeting and temporary friendship groups). He then made the following assessment:
There are a number of protective factors that indicate a potential for [the applicant] to refrain from repeating the mistakes he has made to date. He described being highly remorseful and expressed a strong desire to change. This is coupled with the distinct impact that his traumatic past has on his capacity to deal with the demands of life and its stressors.
Hence, I am of the opinion that [the applicant] is at low-moderate risk of recidivism.
In order to lessen the risk, it is strongly recommended that [the applicant] engage in long term intensive psychological therapy to address his trauma, in a place where he feels safe, addressing the memories of these events and their impact on his social and occupational functioning. [The applicant] will continue to live with the reported traumatic memories and the cognitive deficits described. Furthermore, [the applicant] it is also strongly recommended that [the applicant] engage in ongoing drug rehabilitation therapy. Treatment will likely be more effective and successful should he be able to readily access family support.
(Without alteration; footnotes omitted.)
Mr Di Prinzio was cross-examined on his above assessment of the applicant’s risk of reoffending. He was asked whether he had used any diagnostic tools or methods in assessing the applicant’s risk of reoffending. Mr Di Prinzio advised that he had not.[65]
[65] Transcript at 74.
Mr Di Prinzio was then asked to explain what he meant by the applicant being a low to moderate risk of reoffending:
COUNSEL:So when you say “low”, what does that mean? Low to moderate?
MR DI PRINZIO:       Well, I don’t think he is low. I think he is within that band of low to moderate. But it would depend on his (indistinct) for the treatment, and that the treatment that he would have is targeting also the trauma that I believe has to this point been largely not addressed.
COUNSEL:So to be clear, when you offer the opinion that he’s at low to moderate risk of recidivism, is that he’s at low to moderate risk on the assumption he receives treatment?
MR DI PRINZIO:        Yes.
COUNSEL:So assuming if you were asked today on the basis of your understanding of what treatment the applicant has received at present, do you offer a different assessment as to what the level of risk is?
MR DI PRINZIO:        So are you saying without treatment?
COUNSEL:                Yes?
MR DI PRINZIO:       Well, it would be up higher towards the moderate. It would be moderate. But the treatment would need - there’s particularly specific treatment around trauma within the context of his abuse - substance abuse.
COUNSEL:And in considering risk, is it relevant to consider any past efforts or attempts by the applicant to undertake rehabilitation and what the success of those courses or attempts were?
MR DI PRINZIO:        Yes.[66]
[66] Transcript at 74.
The Minister’s counsel then took Mr Di Prinzio to the comments in Ms Qummouh’s report about the applicant’s failure to adhere to any of the drug programs that he had been directed to undertake by the courts in New South Wales.[67] The following exchange then took place:
[67] See para 3 of [74] quoted above.
COUNSEL:Are you aware that the applicant had entered into rehabilitation in a place called Odyssey House?
MR DI PRINZIO:        Yes.
COUNSEL:                And that he was also a participant in the Drug Court program?
MR DI PRINZIO:        Okay, yes.
COUNSEL:And that he was required to leave both of those because of his ongoing drug use?
MR DI PRINZIO:        Okay, yes.
COUNSEL:So those past efforts, including specifically in efforts in relation to rehabilitation, were unsuccessful. Your opinion is that’s relevant to consider in undertaking your risk assessment as you apply it in relation to the risk of recidivism?
MR DI PRINZIO:        Yes.
COUNSEL:And that’s something you didn’t take into account in formulating your opinion as to low to moderate?
MR DI PRINZIO:        No, I didn’t.
COUNSEL:Does it also cause you now to change your opinion that on the basis of the applicant receiving no treatment that his risk is moderate?
MR DI PRINZIO:        I would have to say yes.
COUNSEL:                And what’s the changed opinion?
MR DI PRINZIO:        It is that is moderate.
COUNSEL:                I see. So it’s gone from low to moderate to…?
MR DI PRINZIO:        Moderate.[68]
[68] Transcript at 75.
Counsel then took Mr Di Prinzio to the letter from the applicant’s lawyer which had requested the report:
COUNSEL:If I could turn back to question one under the terms of reference which was whether you think the applicant is at risk of reoffending. If so the level of the risk of reoffending and the nature of such offending?
MR DI PRINZIO:         I have failed to address that question, that aspect of the question.
COUNSEL:Well, given your answers today that the risk factor of moderate and static?
MR DI PRINZIO:        Yes.
COUNSEL:Do we understand from that that the risk factor of moderate recidivism applies to any offence the applicant has committed to date?
MR DI PRINZIO:        Yes.[69]
[69] Transcript at 77.
I then asked Mr Di Prinzio what training he had in assessing risk of recidivism. Mr Di Prinzio advised that he was not (technically) a forensic psychologist or a clinical psychologist but rather was a “generalist”.[70] The following exchange then took place:
[70] Transcript at 79.
TRIBUNAL:So have you undertaken any training in relation to risk assessment?
MR DI PRINZIO:       … yes, in workshops and CPD. So continued professional development.
…
TRIBUNAL:It is the case though, isn’t it, that it is forensic psychologists who specialise in assessment of risk?
MR DI PRINZIO:        Their experience and training is far more in depth than mine.
TRIBUNAL:And so have you had any training in the use of diagnostic sorry, predictive tools that are commonly used by a forensic psychologist to predict likelihood of reoffending?
MR DI PRINZIO:        No. No.
TRIBUNAL:Is there any reason why you didn’t use any of the usually utilised tools for prediction of risk of reoffending?
MR DI PRINZIO:        No.
TRIBUNAL:Now, in relation to your assessment of risk, would it be fair to say that you are really approaching that solely from the PTSD point of view?
MR DI PRINZIO:        Yes.
TRIBUNAL:I think your evidence was that you have no particular expertise in the treatment of, or I assume also, the risk of repeat drug offending?
MR DI PRINZIO:        Yes.
TRIBUNAL:So when you say the applicant is a moderate risk of reoffending, that’s a moderate risk based on his PTSD condition?
MR DI PRINZIO:       And that by addressing the PTSD would increase the well, yes, by treating that, that that will limit or increase the chances of his successfully dealing with his drug problem.
TRIBUNAL:I understood your evidence to be, though, that you didn’t consider him to have a drug condition, or ---?
MR DI PRINZIO:       Well, the - I’ve - well, the - will reduce the chance of recidivism.
TRIBUNAL:So where do you see his drug problem fitting in your modelling of the likelihood of him reoffending? Or did it play no part?
MR DI PRINZIO:        It didn’t play any part.[71]
[71] Transcript at 79–80.
I then asked Mr Di Prinzio about his assessment of the applicant’s understanding of the relationship between his PTSD and drug abuse:
TRIBUNAL:And in your view, having reviewed him, does he have that understanding?
MR DI PRINZIO:       I don’t think so, not at this point. But that would be something that would be explored in therapy, in treatment.
TRIBUNAL:And it perhaps is returning to what Ms Taggart was asking you about, is your assessment of a moderate risk on the assumption that the applicant does maintain or undertake the therapies to which you refer?
MR DI PRINZIO:        Yes.
TRIBUNAL:                And absent him undertaking those therapies the long-term intensive psychological therapy and the ongoing drug rehabilitation, what would you assess the applicant’s risk of reoffending is?
MR DI PRINZIO:        I think it would be higher, a high level.[72]
[72] Transcript at 81.
Consistent with Mr Di Prinzio’s observations in his report and at the hearing, the applicant, both in his written material and in his evidence at the hearing, repeatedly stated that he was sorry for what he had done and for the consequences of his actions. These statements of remorse, however, appear to be remorse for the consequences that his criminal behaviour and his possible deportation have had and are likely to have on him and his family. The applicant appeared to have little genuine insight into his offending or the causes of his offending or the seriousness of that behaviour.
In his statement[73] the applicant said that he was “currently attending a drug and alcohol rehabilitation program within the detention centre to help [him] stop using marijuana”.[74] The applicant attached a certificate with an issue date of 15 December 2022 for “Drug and Alcohol Abuse 101” with seven hours’ contact. I assume that the drug and alcohol rehabilitation program within the detention centre to which the applicant referred was the “Drug and Alcohol Abuse 101” for which the certificate was issued.
[73] Contained in A1.
[74] Para 3.
It is clear that the applicant has not undertaken anything approaching the level of rehabilitation that was indicated as being necessary by the various reports, including those of Ms Qummouh and Mr Di Prinzio. It appears that the sum total of rehabilitation that the applicant has undertaken is the partial completion of a course that he was directed to undertake by the New South Wales Drug Court and the seven-hour “Drug and Alcohol Abuse 101” course in which he participated in immigration detention. I asked the applicant what enquiries he had made as to the availability of suitable rehabilitation programs and treatment upon his release. He had made no enquiries in that regard.[75] The lack of completed rehabilitation courses, lack of treatment for his mental health conditions, and the applicant’s apparent lack of interest in pursuing in a meaningful way such rehabilitation and treatment upon his release, is of great concern. That is the case particularly in light of Ms Qummouh’s (see [76] above) and Mr Di Prinzio’s (see [78] above) recommendations for long-term, focused treatment.
[75] Transcript at 58–9.

I find that the applicant would face impediments in establishing and maintaining a basic living standard if he were returned to Iraq. He has not lived in that country for 20 years. I accept that, given the parlous state of medical services and availability of medicines in Iraq, it is unlikely that the applicant would be able to receive adequate treatment for his not insubstantial mental health conditions. I find that this consideration weighs in favour of revocation of the cancellation of the applicant’s visa and that moderate weight should be given to it.
Impact on victims (para 9.3)
The applicant submitted that this consideration was not applicable[115] and the Minister made no submission on the consideration. I agree that it is not relevant in the present case.
[115] Applicant’s SFIC para 54.
Links to the Australian Community (para 9.4)
Paragraph 9.4 of Direction 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 and 9.4.2 below.
Strength, nature and duration of ties to Australia (para 9.4.1)
Paragraph 9.4.1 of Direction 90 is as follows:
(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 noncitizen 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.
In his SFIC, the applicant contended that his ties to the Australian community are significant and that he has:
(a)been residing in Australia for approximately 19 years and 10 months (now 20 years) and has therefore lived in Australia for over half of his life;
(b)had periods of work, for example, as a form worker (before his incarceration and detention);
(c)significant personal ties to the Australian community, given that his mother, six siblings and their children, as well as uncles, aunts and cousins reside in Australia; and
(d)significant religious ties to the community; for example, to the Ancient Church of the East and the Assyrian Church of the East.
The applicant further submitted that his family would suffer significant harm if the decision to cancel his visa were not revoked. Before he was incarcerated, he played a role of carer for his mother and had also provided support to his sister, L. The witness statements show that the applicant and his family are close and that the possibility of the applicant being returned to Iraq is distressing.
According to the applicant, this consideration should be given significant weight in favour of setting aside the decision to cancel his visa.
The Minister accepted that a decision not to revoke the cancellation of the applicant’s visa may have an adverse effect on members of the applicant’s immediate family in Australia, namely, his mother and siblings.[116] The Minister further accepted that the applicant also appears to have made some positive contributions to the Australian community through his periods of limited employment and involvement with his church.
[116] Minister’s SFIC para 80.
The applicant arrived in Australia as an 18-year-old and has lived here ever since. As the applicant noted, he has spent more than half of his life in Australia. The vast majority of his family lives in Australia. The impact on his mother if he were to be deported would be significant. The applicant provided physical and emotional support to his mother, particularly after his father died. The applicant’s mother is in very poor health, and it is clear from her written statement and from her evidence at the hearing that she would be devastated if the applicant were made to leave Australia.
The applicant is also very close to his sister, L, for whom he was carer. As with the applicant’s mother, the applicant’s sister’s statement and her evidence at the hearing demonstrated her emotional closeness to, and dependence on, the applicant. While there may be some criticism of the somewhat formulaic nature of many of the statements of support filed by the applicant, I accept that the statements and the evidence of family presented at the hearing, show that there is a large number of family members and friends who have close ties with the applicant and that they will be significantly impacted emotionally, and in the case of the applicant’s mother, physically, if he were to be deported.
I am satisfied that the applicant has significant links to the Australian community, primarily through his immediate family, and that this consideration weighs heavily in favour of revocation of the cancellation of the applicant’s visa.
THE WEIGHING EXERCISE
Direction 90 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account (see [23] above).
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[117] and the Full Court’s judgment in Minister for Home Affairs v HSKJ.[118]
[117] [2018] FCA 594
[118] [2018] FCAFC 217; (2018) 266 FCR 591.
Colvin J’s judgment in Suleiman was considered by Wigney J in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[119] At [21], Wigney J cited [23] of Colvin J’s judgment which was as follows:
The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non‑refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
(Emphasis omitted.)
[119] [2021] FCA 775.
Wigney J then observed at [22]:
It is the last sentence of this paragraph of Suleiman which has given rise to the issue in this case. That issue will be discussed in more detail later. It suffices at this point to note that, with the greatest respect to Colvin J, this analysis of paragraph 8 of the relevant direction tends to overcomplicate or over intellectualise the issue. More significantly, it may lead decision-makers into error. Paragraph 8 of Direction no. 79 is expressed in simple terms. Relevantly, decision-makers must take into account the primary and other considerations that are relevant to the individual case and, when it comes to weighing up the relevant considerations, have regard to three relevant principles: first, both primary and other considerations may weigh in favour of, or against, whether or not to revoke a cancellation of a visa; second, primary conditions should generally be given greater weight than other considerations; and third, one or more primary considerations may outweigh other considerations. It is difficult to see why any further elaboration of those simple principles or propositions is necessary or warranted.
(Emphasis omitted.)
The Tribunal in CZCV at [164] summarised the legal position as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so. ...
I adopt the approach directed by the above cases.
I find that the first primary consideration, the protection of the Australian community, weighs heavily against revocation of the cancellation of the applicant’s visa (see [89] above).
The second primary consideration, family violence, is not relevant in the present case.
The third primary consideration, the best interests of minor children in Australia, weighs in favour of revocation of the cancellation of the applicant’s visa, however, only minor weight is to be given to that consideration (see [106] above).
The fourth primary consideration, the expectations of the Australian community, as it must, weighs against the revocation of the cancellation of the applicant’s visa. I find that moderate weight should be given to this consideration (see [117] above).
In relation to the “other considerations” identified in Direction 90, I find that international non-refoulement obligations weighs in favour of revocation of the cancellation of the applicant’s visa and I find that moderate weight should be given to it (see [137] above).
The consideration of the extent of impediments if removed weighs in favour of revocation of the cancellation of the visa, and I find that moderate weight should be given to this consideration (see [145] above).
I find that the consideration of links to the Australian community weighs heavily in favour of revocation of the cancellation of the applicant’s visa (see [155] above).
I am mindful that para 7(2) of Direction 90 states that primary considerations should generally be given greater weight than the other considerations (see [23] above). Nothing has been presented which would indicate that that general principle should not apply in the present case.[120] Having weighed the considerations in favour of the revocation of the cancellation of the applicant’s visa and the considerations against the revocation of the cancellation of the applicant’s visa, I find that the primary considerations which weigh against revocation, in particular the first primary consideration, the protection of the Australian community and the fourth primary consideration, the expectations of the Australian community outweigh the considerations in favour of revocation. Accordingly, I find that there is not another reason to revoke the cancellation of the applicant’s visa.
[120] As Mr Dobbie for the applicant said in opening, “the other considerations is where the applicant puts a lot of his effort.” (Transcript at 14).
DECISION
The decision of the delegate of the Minister dated 11 November 2022 not to revoke the cancellation of the applicant’s Class BA Subclass 202 Global Special Humanitarian visa pursuant to s 501CA(4) of the Act, is affirmed.

I certify that the preceding 170 (one hundred and seventy) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...[SGD].....................................................................
Associate
Dated: 6 February 2023

Dates of hearing: 24-25 January 2023

Counsel for the Applicant: Mr N Dobbie

Solicitors for the Applicant: Dobbie & Devine Immigration Lawyers

Counsel for the Respondent: Ms C Taggart

Solicitors for the Respondent: Ms D Jones-Bolla, Sparke Helmore Lawyers
ANNEXURE[121]
[121] The results in this annexure are taken directly from the ACIC report, as reflected in the applicant’s SFIC.

Date

Court

Offence

Result

11/03/2022

Parramatta Drug Court

Larceny

“H 74465715: IMPRISONMENT (AGGREGATE) : 18 MONTHS COMMENCING 03/06/2021 CONCLUDING 02/12/2022 NON PAROLE PERIOD : 11 MONTHS COMMENCING 03/06/2021 CONCLUDING 02/05/2022 INDICATIVE SENTENCE H74623271 (001) 15 MTHS H 74465715 (001) 1 MTH (003) 8 MTHS (005)”

11/03/2022

Parramatta Drug Court

Goods suspected stolen in/ on premises (not a motor vehicle)

”H 74465715: IMPRISONMENT (AGGREGATE) : 18 MONTHS COMMENCING 03/06/2021 CONCLUDING 02/12/2022 NON PAROLE PERIOD : 11 MONTHS COMMENCING 03/06/2021 CONCLUDING 02/05/2022 INDICATIVE SENTENCE H74623271 (001) 15 MTHS H 74465715 (001) 1 MTH (003) 8 MTHS (005) 2 MTHS (DRUG 88126)”

11/03/2022

Parramatta Drug Court

Break and enter dwelling – house etc with intent (steal)

“H 74465715: IMPRISONMENT (AGGREGATE) : 18 MONTHS COMMENCING 03/06/2021 CONCLUDING 02/12/2022 NON PAROLE PERIOD : 11 MONTHS COMMENCING 03/06/2021 CONCLUDING 02/05/2022 INDICATIVE SENTENCE H 74623271 (001) 15 MTHS H 74465715 (001) 1 MTH (003) 8 MTHS (005) 2 MTHS (DRUG 88126)”

11/03/2022

Parramatta Drug Court

Break and enter house etc steal value less than or equal to $60,000

“H 74623271: IMPRISONMENT (AGGREGATE) : 18 MONTHS COMMENCING 03/06/2021 CONCLUDING 02/12/2022 NON PAROLE PERIOD : 11 MONTHS COMMENCING 03/06/2021 CONCLUDING 02/05/2022 INDICATIVE SENTENCE H 74623271 (001) 15 MTHS H 74465715 (001) 1 MTH (003) 8 MTHS (005) 2 MTHS (DRUG 88126)”

10/09/2020

Parramatta Drug Court

Licence expired two years or more before – first offence

“H 74465715: S10A CONVICTION WITH NO OTHER PENALTY : (DRUG 88112)”

10/09/2020

Parramatta Drug Court

Larceny

“H 74465715: IMPRISONMENT (AGGREGATE) : 13 MONTHS INDICATIVE SENTENCE H 74465715 (001) 2 MTHS (003) 12 MTHS (005) 3 MTHS SENTENCE SUSPENDED S7(3) DRUG COURT ACT : (DRUG 88112)”

10/09/2020

Parramatta Drug Court

Goods suspected stolen in/on premises (not motor vehicle)

“H 74465715: IMPRISONMENT (AGGREGATE) : 13 MONTHS INDICATIVE SENTENCE H 74465715 (001) 2 MTHS (003) 12 MTHS (005) 3 MTHS SENTENCE SUSPENDED S7(3) DRUG COURT ACT : (DRUG 88112)”

10/09/2020

Parramatta Drug Court

Break and enter dwelling – house etc with intent (steal)

“H 74465715: IMPRISONMENT (AGGREGATE) : 13 MONTHS INDICATIVE SENTENCE H 74465715 (001) 2 MTHS (003) 12 MTHS (005) 3 MTHS SENTENCE SUSPENDED S7(3) DRUG COURT ACT : (DRUG 88112)”

10/09/2020

Parramatta Drug Court

Licence expired two years or more before – first offence

“H 74623271: S10A CONVICTION WITH NO OTHER PENALTY : (DRUG 88112)”

10/05/2019

Parramatta District Court

Supply prohibited drug: greater than small, less than or equal to indictable quantity

“H 68777564: ORDER VARIED : INTENSIVE CORRECTION ORDER : 10 MONTHS COMMENCING 10/05/2019 CONCLUDING 09/03/2020 - NOT COMMIT ANY OFFENCES - SUBMIT TO SUPERVISIONBY A COMMUNITY CORRECTIONS OFFICER - THE OFFENDER MUST ACCEPT ALL REASONABLE DIRECTIONS AS TO RECEIVING TREATMENT FOR DRUG RELAPSE PREVENTION,THIS CAN INCLUDE RESIDENTIAL REHABILITATION AND TREATMENT FROM A PSYCHOLOGIST OR PSYCHIATRIST THE OFFENDER MUST REPORT TO FAIRFIELD COMMUNITY CORRECTIONS OFFICE AT 1.30PM ON MONDAY 13 MAY 2019. SUPERVISION : 10 MONTHS COMMENCING 10/05/2019 CONCLUDING09/03/2020 SUPERVISED BY COMMUNITY CORRECTIONS SERVICE COMMUNITY SERVICE WORK: 60 HOURS ABSTENTION : 10 MONTHSCOMMENCING 10/05/2019 CONCLUDING 09/03/2020 TYPE: DRUGS COURT CASE REFERENCE NUMBER 2018/00244260”

17/01/2019

Fairfield Local Court

Resident three months not obtain NSW licence – prior offence

“H 68777564: S10A CONVICTION WITH NO OTHER PENALTY”

17/01/2019

Fairfield Local Court

Supply prohibited drug, greater than small but equal to or less than indictable quantity

“H 68777564: IMPRISONMENT : 16 MONTHS COMMENCING 30/10/2018 CONCLUDING 29/02/2020 NON PAROLE PERIOD WITH CONDITIONS : 8 MONTHS COMMENCING 30/10/2018 CONCLUDING 29/06/2019 FIND SPECIAL CIRCUMSTANCES AND VARY THE STATUTORY RATION IN S.44 C(SP) ACT TO ALLOW FOR A LONGER PERIOD ON PAROLE UNDER THE SUPERVISION OF COMMUNITY CORRECTIONS SO AS TO ADDRESS THE DEFENDANTS

ONGOING DRUG AND ALCOHOL RELATED AFFLICTIONS. SEVERITY APPEAL LODGED : (LCRT 13914)”

17/01/2019

Fairfield Local Court

Use unregistered registrable Class A motor vehicle on road

“H 68800840: S10A CONVICTION WITH NO OTHER PENALTY”

17/01/2019

Fairfield Local Court

Resist or hinder police officer in execution of duty

“H 68800840: IMPRISONMENT : 2 MONTHS COMMENCING 30/10/2018 CONCLUDING 29/12/2018”

17/01/2019

Fairfield Local Court

Use class A vehicle displaying misleading etc number-plate

“H 68800840: S10A CONVICTION WITH NO OTHER PENALTY”

17/01/2019

Fairfield Local Court

Possessed prohibited drug

“H 68800840: IMPRISONMENT : 3 MONTHS COMMENCING 30/10/2018 CONCLUDING 29/01/2019”

18/12/2018

Fairfield Local Court

Class A motor vehicle exceed speed > 30 km/h - Lidar

“H 67824045: FINE : $700 DISQUALIFICATION - DRIVER : 3 MONTHS COMMENCING 18/12/2018”

18/12/2018

Fairfield Local Court

Resident 3 months not obtain NSW licence - prior offence

“H 67824045: FINE: $500”

18/12/2018

Fairfield Local Court

Drive motor vehicle while licence suspended – second or more offence

“H 404910692: FINE :$700 DISQUALIFICATION - DRIVER : 6 MONTHS COMMENCING 18/12/2018 (LCFCO 7048)”

18/12/2018

Fairfield Local Court

Drive vehicle, illicit drug present in blood etc – second or more offence

“H 404910692: FINE : $700 DISQUALIFICATION - DRIVER : 6 MONTHS COMMENCING 18/12/2018 (LCFCO 7048)”

18/12/2018

Fairfield Local Court

Class A m/v exceed

speed > 30 km/h -

Estimated

$200 fine

18/12/2018

Fairfield Local Court

Drive motor vehicle during disqualification period – second or more offence

“H 238864598: FINE : $1,200 DISQUALIFICATION - DRIVER : 12 MONTHS COMMENCING 18/12/2018”

18/12/2018

Fairfield Local Court

Drive vehicle, illicit drug present in blood – second or more offence

“H 70284351: FINE : $1,000 DISQUALIFICATION - DRIVER : 12 MONTHS COMMENCING 18/12/2018”

24/01/2018

Parramatta Local Court

Drive motor vehicle while licence suspended – first offence

“H 67162931: FINE :$500 DISQUALIFICATION - DRIVER : 3 MONTHS COMMENCING 24/01/2018 CONCLUDING 23/04/2018”

07/08/2017

Parramatta Local Court

Enter enclosed land not

“presc premises”

w/o lawful excuse

$150 fine

02/08/2017

Goulburn Local Court

Larceny – less than or equal to $2,000

“H 58575479: ORDER CONFIRMED : HOME DETENTION :2 MONTHS COMMENCING 02/08/2017 CONCLUDING 01/10/2017 OFFENDER IS TO ATTEND DRUG COUNSELLING AS DIRECTED. COURTCASE REFERENCE NUMBER 2015/00159795”

02/08/2017

Goulburn Local Court

Goods suspected stolen in possession/ on premises (not motor vehicle)

“H 58575479: ORDER CONFIRMED : HOME DETENTION : 2 MONTHS COMMENCING 02/08/2017 CONCLUDING 01/10/2017 OFFENDER IS TO ATTEND DRUG COUNSELLING AS DIRECTED. COURTCASE REFERENCE NUMBER 2015/00159795”

02/08/2017

Goulburn Local Court

Drive vehicle, illicit drug present in blood etc – first offence

“H 63225763: ORDER CONFIRMED : FINE : $600 DISQUALIFICATION - DRIVER : 3 MONTHS COURT CASE REFERENCE NUMBER 2016/00299945”

03/04/2017

Fairfield Local Court

Carry, use or possess explosive flare or firework

“H 65392355: BOND S10: 6 MONTHS”

14/06/2016

Albury Local Court

Larceny – less than or equal to $2,000

“H 58575479: (CALL UP) FINE : $350 IMPRISONMENT : 2 MONTHS COMMENCING 14/06/2016 CONCLUDING 13/08/2016 SUSPENDED ON ENTER BOND S12 : 2 MONTHS TO ADVISE THE COURT (AND COS, IF APPLICABLE) IN WRITING 7 DAYS PRIOR TO ANY CHANGE OF ADDRESS DURING THE CURRENCY OF THE BOND AND TO CONTACT THECOURT (AND COS IF APPLICABLE) PERSONALLY TO CONFIRM RECEIPT OF SUCH ADVICE WITHIN 10 DAYS OF IT BEING SENT.”

14/06/2016

Albury Local Court

Goods suspected stolen in possession/ on premises (not motor vehicle)

“H 58575479: (CALL UP) FINE :$350 IMPRISONMENT : 2 MONTHS COMMENCING 14/06/2016 CONCLUDING 13/08/2016 SUSPENDED ON ENTER BOND S12 : 2 MONTHS TO ADVISE THE COURT (AND COS, IF APPLICABLE) IN WRITING 7 DAYS PRIOR TO ANY CHANGE OF ADDRESS DURING THE CURRENCY OF THE BOND AND TO CONTACT THECOURT (AND COS IF APPLICABLE) PERSONALLY TO CONFIRM RECEIPT OF SUCH ADVICE WITHIN 10 DAYS OF IT BEING SENT.”

14/06/2016

Albury Local Court

Possess prohibited drug

$350 fine; drugs to be destroyed

14/06/2016

Albury Local Court

Possess prohibited drug

$350 fine; drugs to be destroyed

11/04/2016

Fairfield Local Court

Larceny – less than or equal to $2,000

$2,000 fine; property returned to owner

11/04/2016

Fairfield Local Court

“Enter inclosed land not presc premises w/o lawful excuse”

$250 fine

23/10/2015

Blacktown Local Court

Enter vehicle or boat without consent of owner/occupier

$200 fine

23/10/2015

Blacktown Local Court

Goods suspected stolen in possession/ on premises (not motor vehicle)

“H 58575479: COMMUNITY SERVICE ORDER : 125 HOURS PROPERTY TO OWNER : COMMUNITY SERVICE ORDER REVOKED :”

23/10/2015

Blacktown Local Court

Larceny – less than or equal to $2,000

“H 58575479: COMMUNITY SERVICE ORDER : 125 HOURS PROPERTY TO OWNER : COMMUNITY SERVICE ORDER REVOKED :”

13/11/2012

Fairfield Local Court

Assault occasioning bodily harm

H 146001696: (CALL UP) INTENSIVE CORRECTION ORDER : 12 MONTHS COMMENCING 13/11/2012 CONCLUDING 12/11/2013 (EECO 7766)

13/11/2012

Fairfield Local Court

Contravene prohibition/ restriction in AVO

“H 46794263: INTENSIVE CORRECTION ORDER : 8 MONTHS COMMENCING 13/03/2013 CONCLUDING 12/11/2013 COSTS - COURT : $83”

19/05/2011

Fairfield Local Court

Assault occasioning bodily harm

“H 146001696: IMPRISONMENT : 12 MONTHS SUSPENDED ON ENTER BOND S12 : 12 MONTHS COSTS - COURT : $79”

28/04/2011

Fairfield Local Court

Stalk/intimidate intend fear physical etc harm (personal)

$800 fine; $79 in court costs

28/04/2011

Fairfield Local Court

Destroy or damage property

$100 fine; $79 in court costs; $800 compensation

28/04/2011

Fairfield Local Court

Common assault

“BOND S9 : 2 YEARS”

02/12/2009

Fairfield Local Court

Behave in offensive manner in/ near public place/ school

$200 fine; $76 in court costs

21/01/2009

Burwood Local Court

Possess prohibited drug

“H 33490643: BOND S9 : 18 MONTHS SUPV NSW PROB SERVICE OBEY ALL REASONABLE DIRECTIONS FOR COUNSELLING, EDUCATIONAL DEVELOPMENT INCLUDING DRUG AND ALCOHOL REHABILITATION AND REPORT TO THE FAIRFIELD PROBATION OFFICE WITHIN 7 DAYS. COSTS - COURT : $73”

21/01/2009

Burwood Local Court

Possess prohibited drug

“H 33490643: FINE : $500 COSTS - COURT : $73 DRUG TOBE DESTROYED”

06/06/2007

Liverpool Local Court

Assault occasioning bodily harm

“H 27512027: TAKEN INTO ACCOUNT ON FORM 1 : AT LIVERPOOL, LOCAL ON 06062007”

06/06/2007

Liverpool Local Court

Assault occasioning bodily harm

“H 27512027: PERIODIC DETENTION : 8 MONTHS COMMENCING 22/06/2007 NON PAROLE PERIOD : 6 MONTHS”

06/06/2007

Liverpool Local Court

Assault occasioning bodily harm

“H 27512027: PERIODIC DETENTION : 8 MONTHS COMMENCING 22/06/2007 NON PAROLE PERIOD : 6 MONTHS”

26/05/2005

Fairfield Local Court

Fail/refuse to comply with a direction

“H 22522630: BOND S10 : 12 MONTHS SUPV NSW PROB SERVICE TO ACCEPT PROBATION SUPERVISION FOR AS LONG AS CONSIDERED NECESSARY, OBEY ALL REASONABLE DIRECTIONS, MUST ATTEND ENGLISH CLASSES. TO REPORT TO THE FAIRFIELD PROBATION OFFICE WITHIN 7 DAYS.”

26/05/2005

Fairfield Local Court

Resist officer in execution of duty

“H 22522630: BOND S9 : 12 MONTHS SUPV NSW PROB SERVICE TO ACCEPT PROBATION SUPERVISION FOR AS LONG AS CONCIDERED NECESSARY, OBEY ALL REASONALBE DIRECTIONS, MUST ATTEND ENGLISH CLASSES. TO REPORT TO THE FAIRFIELD

PROBATION OFFICE WITHIN 7 DAYS.”

26/05/2005

Fairfield Local Court

Drive on road etc while licence suspended

“H 24528516: BOND S9 : 12 MONTHSSUPV NSW PROB SERVICE TO ACCEPT PROBATION SERVICE SUPERVISION FOR AS LONG AS CONSIDERED NECESSARY, OBEY ALL REASONABLE DIRECTIONS, MUST ATTEND ENGLISH CLASSES. TO REPORT TO THE FAIRFIELD PROBATION OFFICE WITHIN 7 DAYS. DISQUALIFICATION : 12 MONTHS COMMENCING 08/09/2005.”

[2023] AATA 173

6 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Dates of hearing:	24-25 January 2023
Counsel for the Applicant:	Mr N Dobbie
Solicitors for the Applicant:	Dobbie & Devine Immigration Lawyers
Counsel for the Respondent:	Ms C Taggart
Solicitors for the Respondent:	Ms D Jones-Bolla, Sparke Helmore Lawyers

Date	Court	Offence	Result
11/03/2022	Parramatta Drug Court	Larceny	“H 74465715: IMPRISONMENT (AGGREGATE) : 18 MONTHS COMMENCING 03/06/2021 CONCLUDING 02/12/2022 NON PAROLE PERIOD : 11 MONTHS COMMENCING 03/06/2021 CONCLUDING 02/05/2022 INDICATIVE SENTENCE H74623271 (001) 15 MTHS H 74465715 (001) 1 MTH (003) 8 MTHS (005)”
11/03/2022	Parramatta Drug Court	Goods suspected stolen in/ on premises (not a motor vehicle)	”H 74465715: IMPRISONMENT (AGGREGATE) : 18 MONTHS COMMENCING 03/06/2021 CONCLUDING 02/12/2022 NON PAROLE PERIOD : 11 MONTHS COMMENCING 03/06/2021 CONCLUDING 02/05/2022 INDICATIVE SENTENCE H74623271 (001) 15 MTHS H 74465715 (001) 1 MTH (003) 8 MTHS (005) 2 MTHS (DRUG 88126)”
11/03/2022	Parramatta Drug Court	Break and enter dwelling – house etc with intent (steal)	“H 74465715: IMPRISONMENT (AGGREGATE) : 18 MONTHS COMMENCING 03/06/2021 CONCLUDING 02/12/2022 NON PAROLE PERIOD : 11 MONTHS COMMENCING 03/06/2021 CONCLUDING 02/05/2022 INDICATIVE SENTENCE H 74623271 (001) 15 MTHS H 74465715 (001) 1 MTH (003) 8 MTHS (005) 2 MTHS (DRUG 88126)”
11/03/2022	Parramatta Drug Court	Break and enter house etc steal value less than or equal to $60,000	“H 74623271: IMPRISONMENT (AGGREGATE) : 18 MONTHS COMMENCING 03/06/2021 CONCLUDING 02/12/2022 NON PAROLE PERIOD : 11 MONTHS COMMENCING 03/06/2021 CONCLUDING 02/05/2022 INDICATIVE SENTENCE H 74623271 (001) 15 MTHS H 74465715 (001) 1 MTH (003) 8 MTHS (005) 2 MTHS (DRUG 88126)”
10/09/2020	Parramatta Drug Court	Licence expired two years or more before – first offence	“H 74465715: S10A CONVICTION WITH NO OTHER PENALTY : (DRUG 88112)”
10/09/2020	Parramatta Drug Court	Larceny	“H 74465715: IMPRISONMENT (AGGREGATE) : 13 MONTHS INDICATIVE SENTENCE H 74465715 (001) 2 MTHS (003) 12 MTHS (005) 3 MTHS SENTENCE SUSPENDED S7(3) DRUG COURT ACT : (DRUG 88112)”
10/09/2020	Parramatta Drug Court	Goods suspected stolen in/on premises (not motor vehicle)	“H 74465715: IMPRISONMENT (AGGREGATE) : 13 MONTHS INDICATIVE SENTENCE H 74465715 (001) 2 MTHS (003) 12 MTHS (005) 3 MTHS SENTENCE SUSPENDED S7(3) DRUG COURT ACT : (DRUG 88112)”
10/09/2020	Parramatta Drug Court	Break and enter dwelling – house etc with intent (steal)	“H 74465715: IMPRISONMENT (AGGREGATE) : 13 MONTHS INDICATIVE SENTENCE H 74465715 (001) 2 MTHS (003) 12 MTHS (005) 3 MTHS SENTENCE SUSPENDED S7(3) DRUG COURT ACT : (DRUG 88112)”
10/09/2020	Parramatta Drug Court	Licence expired two years or more before – first offence	“H 74623271: S10A CONVICTION WITH NO OTHER PENALTY : (DRUG 88112)”
10/05/2019	Parramatta District Court	Supply prohibited drug: greater than small, less than or equal to indictable quantity	“H 68777564: ORDER VARIED : INTENSIVE CORRECTION ORDER : 10 MONTHS COMMENCING 10/05/2019 CONCLUDING 09/03/2020 - NOT COMMIT ANY OFFENCES - SUBMIT TO SUPERVISIONBY A COMMUNITY CORRECTIONS OFFICER - THE OFFENDER MUST ACCEPT ALL REASONABLE DIRECTIONS AS TO RECEIVING TREATMENT FOR DRUG RELAPSE PREVENTION,THIS CAN INCLUDE RESIDENTIAL REHABILITATION AND TREATMENT FROM A PSYCHOLOGIST OR PSYCHIATRIST THE OFFENDER MUST REPORT TO FAIRFIELD COMMUNITY CORRECTIONS OFFICE AT 1.30PM ON MONDAY 13 MAY 2019. SUPERVISION : 10 MONTHS COMMENCING 10/05/2019 CONCLUDING09/03/2020 SUPERVISED BY COMMUNITY CORRECTIONS SERVICE COMMUNITY SERVICE WORK: 60 HOURS ABSTENTION : 10 MONTHSCOMMENCING 10/05/2019 CONCLUDING 09/03/2020 TYPE: DRUGS COURT CASE REFERENCE NUMBER 2018/00244260”
17/01/2019	Fairfield Local Court	Resident three months not obtain NSW licence – prior offence	“H 68777564: S10A CONVICTION WITH NO OTHER PENALTY”
17/01/2019	Fairfield Local Court	Supply prohibited drug, greater than small but equal to or less than indictable quantity	“H 68777564: IMPRISONMENT : 16 MONTHS COMMENCING 30/10/2018 CONCLUDING 29/02/2020 NON PAROLE PERIOD WITH CONDITIONS : 8 MONTHS COMMENCING 30/10/2018 CONCLUDING 29/06/2019 FIND SPECIAL CIRCUMSTANCES AND VARY THE STATUTORY RATION IN S.44 C(SP) ACT TO ALLOW FOR A LONGER PERIOD ON PAROLE UNDER THE SUPERVISION OF COMMUNITY CORRECTIONS SO AS TO ADDRESS THE DEFENDANTS ONGOING DRUG AND ALCOHOL RELATED AFFLICTIONS. SEVERITY APPEAL LODGED : (LCRT 13914)”
17/01/2019	Fairfield Local Court	Use unregistered registrable Class A motor vehicle on road	“H 68800840: S10A CONVICTION WITH NO OTHER PENALTY”
17/01/2019	Fairfield Local Court	Resist or hinder police officer in execution of duty	“H 68800840: IMPRISONMENT : 2 MONTHS COMMENCING 30/10/2018 CONCLUDING 29/12/2018”
17/01/2019	Fairfield Local Court	Use class A vehicle displaying misleading etc number-plate	“H 68800840: S10A CONVICTION WITH NO OTHER PENALTY”
17/01/2019	Fairfield Local Court	Possessed prohibited drug	“H 68800840: IMPRISONMENT : 3 MONTHS COMMENCING 30/10/2018 CONCLUDING 29/01/2019”
18/12/2018	Fairfield Local Court	Class A motor vehicle exceed speed > 30 km/h - Lidar	“H 67824045: FINE : $700 DISQUALIFICATION - DRIVER : 3 MONTHS COMMENCING 18/12/2018”
18/12/2018	Fairfield Local Court	Resident 3 months not obtain NSW licence - prior offence	“H 67824045: FINE: $500”
18/12/2018	Fairfield Local Court	Drive motor vehicle while licence suspended – second or more offence	“H 404910692: FINE :$700 DISQUALIFICATION - DRIVER : 6 MONTHS COMMENCING 18/12/2018 (LCFCO 7048)”
18/12/2018	Fairfield Local Court	Drive vehicle, illicit drug present in blood etc – second or more offence	“H 404910692: FINE : $700 DISQUALIFICATION - DRIVER : 6 MONTHS COMMENCING 18/12/2018 (LCFCO 7048)”
18/12/2018	Fairfield Local Court	Class A m/v exceed speed > 30 km/h - Estimated	$200 fine
18/12/2018	Fairfield Local Court	Drive motor vehicle during disqualification period – second or more offence	“H 238864598: FINE : $1,200 DISQUALIFICATION - DRIVER : 12 MONTHS COMMENCING 18/12/2018”
18/12/2018	Fairfield Local Court	Drive vehicle, illicit drug present in blood – second or more offence	“H 70284351: FINE : $1,000 DISQUALIFICATION - DRIVER : 12 MONTHS COMMENCING 18/12/2018”
24/01/2018	Parramatta Local Court	Drive motor vehicle while licence suspended – first offence	“H 67162931: FINE :$500 DISQUALIFICATION - DRIVER : 3 MONTHS COMMENCING 24/01/2018 CONCLUDING 23/04/2018”
07/08/2017	Parramatta Local Court	Enter enclosed land not “presc premises” w/o lawful excuse	$150 fine
02/08/2017	Goulburn Local Court	Larceny – less than or equal to $2,000	“H 58575479: ORDER CONFIRMED : HOME DETENTION :2 MONTHS COMMENCING 02/08/2017 CONCLUDING 01/10/2017 OFFENDER IS TO ATTEND DRUG COUNSELLING AS DIRECTED. COURTCASE REFERENCE NUMBER 2015/00159795”
02/08/2017	Goulburn Local Court	Goods suspected stolen in possession/ on premises (not motor vehicle)	“H 58575479: ORDER CONFIRMED : HOME DETENTION : 2 MONTHS COMMENCING 02/08/2017 CONCLUDING 01/10/2017 OFFENDER IS TO ATTEND DRUG COUNSELLING AS DIRECTED. COURTCASE REFERENCE NUMBER 2015/00159795”
02/08/2017	Goulburn Local Court	Drive vehicle, illicit drug present in blood etc – first offence	“H 63225763: ORDER CONFIRMED : FINE : $600 DISQUALIFICATION - DRIVER : 3 MONTHS COURT CASE REFERENCE NUMBER 2016/00299945”
03/04/2017	Fairfield Local Court	Carry, use or possess explosive flare or firework	“H 65392355: BOND S10: 6 MONTHS”
14/06/2016	Albury Local Court	Larceny – less than or equal to $2,000	“H 58575479: (CALL UP) FINE : $350 IMPRISONMENT : 2 MONTHS COMMENCING 14/06/2016 CONCLUDING 13/08/2016 SUSPENDED ON ENTER BOND S12 : 2 MONTHS TO ADVISE THE COURT (AND COS, IF APPLICABLE) IN WRITING 7 DAYS PRIOR TO ANY CHANGE OF ADDRESS DURING THE CURRENCY OF THE BOND AND TO CONTACT THECOURT (AND COS IF APPLICABLE) PERSONALLY TO CONFIRM RECEIPT OF SUCH ADVICE WITHIN 10 DAYS OF IT BEING SENT.”
14/06/2016	Albury Local Court	Goods suspected stolen in possession/ on premises (not motor vehicle)	“H 58575479: (CALL UP) FINE :$350 IMPRISONMENT : 2 MONTHS COMMENCING 14/06/2016 CONCLUDING 13/08/2016 SUSPENDED ON ENTER BOND S12 : 2 MONTHS TO ADVISE THE COURT (AND COS, IF APPLICABLE) IN WRITING 7 DAYS PRIOR TO ANY CHANGE OF ADDRESS DURING THE CURRENCY OF THE BOND AND TO CONTACT THECOURT (AND COS IF APPLICABLE) PERSONALLY TO CONFIRM RECEIPT OF SUCH ADVICE WITHIN 10 DAYS OF IT BEING SENT.”
14/06/2016	Albury Local Court	Possess prohibited drug	$350 fine; drugs to be destroyed
14/06/2016	Albury Local Court	Possess prohibited drug	$350 fine; drugs to be destroyed
11/04/2016	Fairfield Local Court	Larceny – less than or equal to $2,000	$2,000 fine; property returned to owner
11/04/2016	Fairfield Local Court	“Enter inclosed land not presc premises w/o lawful excuse”	$250 fine
23/10/2015	Blacktown Local Court	Enter vehicle or boat without consent of owner/occupier	$200 fine
23/10/2015	Blacktown Local Court	Goods suspected stolen in possession/ on premises (not motor vehicle)	“H 58575479: COMMUNITY SERVICE ORDER : 125 HOURS PROPERTY TO OWNER : COMMUNITY SERVICE ORDER REVOKED :”
23/10/2015	Blacktown Local Court	Larceny – less than or equal to $2,000	“H 58575479: COMMUNITY SERVICE ORDER : 125 HOURS PROPERTY TO OWNER : COMMUNITY SERVICE ORDER REVOKED :”
13/11/2012	Fairfield Local Court	Assault occasioning bodily harm	H 146001696: (CALL UP) INTENSIVE CORRECTION ORDER : 12 MONTHS COMMENCING 13/11/2012 CONCLUDING 12/11/2013 (EECO 7766)
13/11/2012	Fairfield Local Court	Contravene prohibition/ restriction in AVO	“H 46794263: INTENSIVE CORRECTION ORDER : 8 MONTHS COMMENCING 13/03/2013 CONCLUDING 12/11/2013 COSTS - COURT : $83”
19/05/2011	Fairfield Local Court	Assault occasioning bodily harm	“H 146001696: IMPRISONMENT : 12 MONTHS SUSPENDED ON ENTER BOND S12 : 12 MONTHS COSTS - COURT : $79”
28/04/2011	Fairfield Local Court	Stalk/intimidate intend fear physical etc harm (personal)	$800 fine; $79 in court costs
28/04/2011	Fairfield Local Court	Destroy or damage property	$100 fine; $79 in court costs; $800 compensation
28/04/2011	Fairfield Local Court	Common assault	“BOND S9 : 2 YEARS”
02/12/2009	Fairfield Local Court	Behave in offensive manner in/ near public place/ school	$200 fine; $76 in court costs
21/01/2009	Burwood Local Court	Possess prohibited drug	“H 33490643: BOND S9 : 18 MONTHS SUPV NSW PROB SERVICE OBEY ALL REASONABLE DIRECTIONS FOR COUNSELLING, EDUCATIONAL DEVELOPMENT INCLUDING DRUG AND ALCOHOL REHABILITATION AND REPORT TO THE FAIRFIELD PROBATION OFFICE WITHIN 7 DAYS. COSTS - COURT : $73”
21/01/2009	Burwood Local Court	Possess prohibited drug	“H 33490643: FINE : $500 COSTS - COURT : $73 DRUG TOBE DESTROYED”
06/06/2007	Liverpool Local Court	Assault occasioning bodily harm	“H 27512027: TAKEN INTO ACCOUNT ON FORM 1 : AT LIVERPOOL, LOCAL ON 06062007”
06/06/2007	Liverpool Local Court	Assault occasioning bodily harm	“H 27512027: PERIODIC DETENTION : 8 MONTHS COMMENCING 22/06/2007 NON PAROLE PERIOD : 6 MONTHS”
06/06/2007	Liverpool Local Court	Assault occasioning bodily harm	“H 27512027: PERIODIC DETENTION : 8 MONTHS COMMENCING 22/06/2007 NON PAROLE PERIOD : 6 MONTHS”
26/05/2005	Fairfield Local Court	Fail/refuse to comply with a direction	“H 22522630: BOND S10 : 12 MONTHS SUPV NSW PROB SERVICE TO ACCEPT PROBATION SUPERVISION FOR AS LONG AS CONSIDERED NECESSARY, OBEY ALL REASONABLE DIRECTIONS, MUST ATTEND ENGLISH CLASSES. TO REPORT TO THE FAIRFIELD PROBATION OFFICE WITHIN 7 DAYS.”
26/05/2005	Fairfield Local Court	Resist officer in execution of duty	“H 22522630: BOND S9 : 12 MONTHS SUPV NSW PROB SERVICE TO ACCEPT PROBATION SUPERVISION FOR AS LONG AS CONCIDERED NECESSARY, OBEY ALL REASONALBE DIRECTIONS, MUST ATTEND ENGLISH CLASSES. TO REPORT TO THE FAIRFIELD PROBATION OFFICE WITHIN 7 DAYS.”
26/05/2005	Fairfield Local Court	Drive on road etc while licence suspended	“H 24528516: BOND S9 : 12 MONTHSSUPV NSW PROB SERVICE TO ACCEPT PROBATION SERVICE SUPERVISION FOR AS LONG AS CONSIDERED NECESSARY, OBEY ALL REASONABLE DIRECTIONS, MUST ATTEND ENGLISH CLASSES. TO REPORT TO THE FAIRFIELD PROBATION OFFICE WITHIN 7 DAYS. DISQUALIFICATION : 12 MONTHS COMMENCING 08/09/2005.”