Lynch and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] ARTA 452

Lynch and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] ARTA 452 (24 October 2024)
Applicant: Jacob Holden Michael Lynch
Respondent: Minister for Immigration, Citizenship and Multicultural Affairs
Tribunal Number: 2024/5629

Tribunal:Deputy President S Burford
General Member J Papalia
Place:Perth
Date:24 October 2024
Decision:The Tribunal affirms the decision under review.

.............................[Sgd]........................................
Deputy President / Member

Catchwords
MIGRATION – visa cancellation – mandatory cancellation under s 501(3A) of the Migration Act 1958 – where Applicant does not pass the character test – irrelevant juvenile conduct – grievous bodily harm – consideration of uncharged acts – whether there is another reason to revoke cancellation – consideration of Direction no. 110 – protection of the Australian community – meaning of family violence under the Direction – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – legal consequences of decision – extent of impediments if removed – citizen of New Zealand
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 33 and 43

Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), s 3 and Sch 16 Item 24

Administrative Review Tribunal Act 2024 (Cth) ss 9, 54, 56(1)(a)

Children’s Court of Western Australia Act 1988 (WA), s 36(1)

Crimes Act 1914 (Cth), ss 85ZL, 85ZR(2)(b), 85ZS(1)(d)(ii)

Criminal Code (WA), ss 221(1)(d), 297

Criminal Procedure Act 2004 (WA), ss 25, 35

Family Law Act 1975 (Cth)

Migration Act 1958 (Cth), ss 5(1), 5CA(1), 5G 32, 499(1), 499(2A), 500(1)(ba), 500(6B), 500(6L) 501(2), 501(3A), 501(6), 501(7), 501CA(3), 501CA(4), 501E, 501F, 503

Migration Regulations 1994 (Cth), regs 1.03, 2.52(2)(b), Div 1.5, Sch 5.

Prisons Act 1981 (WA) s 85(1), Pt VII

Restraining Orders Act 1997 (WA)

Sentence Administration Act 2003 (WA), Pt 3

Spent Convictions Act 1988 (WA), Pt 3, s 26

Young Offenders Act 1994 (WA), ss 55 189
Cases
Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115
Dore and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 1750
Hall v State of Western Australia [2018] WASCA 151
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6; (2024) 98 ALJR 475

MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1161

MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11; (2021) 284 FCR 152

Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; (2024) 94 ALJR 594

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398

Minister for Immigration, Citizenship, Migrant Services v Thornton [2023] HCA 17; (2023) 276 CLR 136

Ngaronoa v Minister for Immigration and Citizenship [2007] FCAFC 196; (2007) 244 ALR 119
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 27; (2022) 275 CLR 582
Re an Application under the Magistrates Court Act 2004; Ex parte Bartholomew [2008] WASC 52

Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666

Re Peterson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1256
Rukuwai v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 157

Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286

Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 652
Taylor and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2889
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Webb v Minister for Home Affairs [2020] FCA 831
Secondary Materials
PAM3: Act-defined terms instructions – s 5G – s5G Relationships and family members – Child-parent relationships
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024) paras 2, 4 (1), 5.1(3), 5.1(4), 5.2, 6, 7, 7(2), 8, 8(1), 8.1(1), 8.1.1(1)(a), 8.1.1(1)(d), 8.1.1(1)(h), 8.1.2(1), 8.1.2(2)(a), 8.1.2(2)(b), 8.2(1), 8.2(2)(a), 8.2(2)(b), 8.3(1), 8.3(2), 8.4, 8.4(4), 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(a)–(f), 8.5(3), 9, 9.1, 9(1)(a), 9.2(1), 9.3(1)
Statement of Reasons
BACKGROUND

The Applicant is a 34-year-old male, who emigrated to Australia from New Zealand on 10 April 1997, at the age of 7. He was granted a Special Category Visa on arrival. [1]
[1] R1, G17, page 107.
The Applicant has criminal record as an adult in Western Australia spanning between January 2008 and June 2022.[2]
[2] R3, TB6, pages 86-91.
On 30 June 2009, following his conviction and sentencing in the Perth Magistrates Court on 9 March 2009 for a number of offences, the Applicant was notified of the then Minister for Immigration and Citizenship’s intention to consider cancellation of his Special Category Visa under s 501(2) of the Migration Act 1958 (Cth) (Migration Act).
On 30 July 2009, a delegate of the Minister decided not to cancel the Applicant’s visa.[3] In the letter informing the Applicant of this decision, he was warned that ‘visa cancellation may be reconsidered if [he committed] further offences or otherwise breach[ed] the character test in the future. Disregard of this warning w[ould] weigh heavily against [him] if [his] case is reconsidered’.[4]
[3] R1, G24, page 153.
[4] R1, G24, page 153.
On 16 February 2023, the Applicant was convicted by a jury in the South Hedland District Court of one count of grievous bodily harm contrary to 297 of the Criminal Code (WA) (the Grievous Bodily Harm offence).[5]
[5] R3, TB8, page 1123.
On 6 April 2023, Flynn DCJ sentenced the Applicant to 4 years’ imprisonment for this offence, from 29 May 2022.[6]
[6] R3, TB8, page 1123.
On 24 July 2023, the Applicant’s Special Category Visa was mandatorily cancelled by a delegate of the respondent (Minister) under s 501(3A) of the Migration Act due to the April 2023 sentence of imprisonment and the fact he was serving a sentence of imprisonment on a full-time basis at Albany Regional Prison (the cancellation decision).[7]
[7] R1, G18; G19, pages 110-117.
The Applicant was notified of the cancellation decision on the same day and invited to make representations to the Minister requesting revocation of this decision.[8]
[8] R1, G18, pages 110-115.
The Applicant requested revocation on 8 August 2023.[9] He submitted a personal circumstances form and evidence in support of this request using the Department’s template revocation request and personal circumstances forms.[10] On 31 July 2024, a delegate of the Minister refused to revoke the cancellation of the Applicant’s visa under s 501CA(4) of the Migration Act (the non-revocation decision).[11] The Applicant was notified of the non-revocation decision by hand on 1 August 2024.[12] This is the reviewable decision before the Tribunal.
[9] R1, G12, pages 79-83.
[10] R1, G12, pages 84-106.
[11] R1, G3, page 14.
[12] R1, G3, pages 9-13; G32, page 204.
On 7 August 2024, the Applicant lodged an application to the Tribunal for review of the non-revocation decision in accordance with s 500(1)(ba) of the Migration Act.[13] As the application was made within nine days after notification, it complied with the time limit set by s 500(6B) of the Migration Act. The Applicant is in the custody of the State of Western Australia at Albany Regional Prison. Accordingly, the review relates to a person in the “migration zone”.[14]
[13] R1, G1, pages 1-8.
[14] As defined in s 5(1) of the Migration Act.
The Tribunal is required by s 500(6L) of the Migration Act to make a decision in relation to this application by no later than 24 October 2024.
LEGAL FRAMEWORK
The Migration Act provides powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, such as where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel a visa should be revoked.
The question for determination by the Tribunal is whether the reviewable decision not to revoke the mandatory cancellation of the Applicant’s visa was the correct or preferable one on the material before the Tribunal.[15]
[15] Administrative Appeals Tribunal Act 1975 (Cth) (repealed) (AAT Act), ss 2A, 33 and 43; Administrative Review Tribunal Act 2024 (Cth) (ART Act) ss 9, 54, 56(1)(a); Administrative Review Tribunal (Consequential and Transitional Provisions No 1 ) Act 2024 (Cth) (ART Consequential Act No 1), s 3 and Sch 16 Item 24; See also Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [140].
Sub-section 501CA(4) of the Migration Act provides that a mandatory cancellation may be revoked if:
(a)the Applicant makes representations in accordance with the invitation to do so given by the Minister under s 501CA(3); and
(b)the decision-maker is satisfied that:
(i) the Applicant passes the character test (as defined by section 501); or
(ii) there is another reason why the mandatory cancellation should be revoked.
In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 27; (2022) 275 CLR 582 (M1/2021), the majority of the High Court described s 501CA(4) as conferring ‘a wide discretionary power’ to revoke a mandatory cancellation, if the decision-maker (whether the Minister, their delegate or the Tribunal on review of a delegate’s decision) is satisfied that there is ‘another reason’ why the cancellation should be revoked. The majority held that the assessment of whether there was, in fact, ‘another reason’ was to be undertaken by reference to the representations made by the Applicant.[16]
[16] At [22]; See also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398 at [13]-[15]; Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; (2024) 94 ALJR 594 at [6].
In exercising the power under s 501CA(4) of the Migration Act, the Tribunal must comply with Direction no. 110 given by the Minister under s 499(1) of the Migration Act.[17] The Direction commenced on 21 June 2024.[18]
[17] Direction no. 110, cl 5.1(4); Migration Act, s 499(2A).
[18] Direction no. 110, cl 2.
Informed by the principles set out in clause 5.2 of the Direction, the Tribunal must take into account the factors identified in clauses 8 and 9 of the Direction (to the extent relevant in the particular case) in deciding the application.[19]
[19] Direction no. 110, cl 6.
ISSUES
The issues before the Tribunal are:
(a)Whether the applicant has made representations for the purposes of s 501CA(4)(a) of the Migration Act; and
(b)if so, whether the Applicant passes the character test; and
(c)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked.
For the reasons below, the Tribunal has decided that the correct decision is that the decision not to revoke the mandatory cancellation of the Applicant’s visa be affirmed.
THE HEARING AND THE EVIDENCE
The Applicant appeared before the Tribunal at a two-day hearing on 2 and 3 October 2024. The Applicant was incarcerated at Albany Regional Prison at the time of the hearing and the hearing was conducted in person at the Peter Durack Commonwealth Law Courts Building. He was self-represented. The respondent was represented by Ms Jones-Bolla of Sparke Helmore Lawyers, who also appeared in person.
The Applicant gave evidence at the hearing, as did his mother (Ms BW) and older brother – Mr DM. The Applicant’s psychologist, Mr Webb gave evidence by telephone.
The Tribunal admitted the following documents into evidence:
·Applicant’s Bundle of Documents filed 24 September 2024 (Exhibit A1);
·Extract from the Transcript of the Armadale Magistrates Court in Western Australia Police v Jacob Holden Michael Lynch (AR 4829-4832/2021 and 7032/2021) dated 29 November 2021, page 5 (Exhibit A2);[20]
·G-Documents filed 16 August 2024 (Exhibit R1);
·Summons Bundle filed 11 September 2024 (Exhibit R2);
·Supplementary Tender Bundle filed 13 September 2024 (Exhibit R3); and
·Supplementary G-Documents filed 26 September 2024 (Exhibit R4).
[20] The full transcript is contained within the Respondent’s Summons Bundle (R2) at page 19ff.
The Respondent filed a Statement of Facts, Issues and Contentions (SOFIC) prior to the hearing, with revisions to accommodate material received under summons. The Applicant relied upon the material he had given to the delegate and a handwritten letter that accompanied his application for review. He also provided the Tribunal with a typed written statement, letters from his immediate family members (including supporting material from John Tonkin College regarding the younger siblings’ attendance at school) and a letter from Mr Webb dated 11 September 2024.[21]
[21] These are contained within the Applicant’s Bundle of Documents (A1).
Evidence of the Applicant
The Tribunal was mindful of the Applicant’s lack of representation in the conduct of the proceedings. The Applicant was cross-examined extensively by Ms Jones-Bolla over the course of the hearing, including in respect of a series of uncharged acts and matters for which criminal charges had been dismissed or the Applicant acquitted. The Applicant was advised in simple terms of his right to invoke the privilege against self-incrimination prior to his giving evidence.[22] He was reminded of this right several times during cross-examination.
[22] See Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080 at [64]-[65].
The Applicant was also provided an opportunity at the hearing to respond to matters put to him and to provide answers to questions asked by the Tribunal which were directed at relevant considerations under Direction no. 110.
The Applicant gave evidence about his familial and social connections in Australia, including in respect of his former significant relationships. He also gave evidence regarding his efforts at rehabilitation and plans to maintain a prosocial lifestyle if permitted to remain in the community.
The Applicant also gave evidence and was cross-examined about his conduct and offending. With respect to the events leading to the April 2023 conviction, he accepted that he hit the victim but disputed some of the surrounding facts found by the trial judge. The Applicant’s version of the events of 22 August 2020 included that the victim bit him on the hip after he got on the bonnet of the taxi. He claimed that he and the victim fought but accepted that the older man hit the ground and that he left him there.[23] He repeatedly told the Tribunal that, in hindsight, he should not have stood on the bonnet of the taxi because that was what started the whole incident.[24] He told the Tribunal that the ‘worst part is right – someone got hurt and I left him on the side of the road’.[25]
[23] Transcript, pages 36-40.
[24] Transcript, page 43.
[25] Transcript, page 45.
The Applicant otherwise generally accepted his adult criminal history and the facts pertaining to each conviction. In respect of a conviction for failing to appear in court as required by a bail undertaking in 2016, the Applicant indicated that he was in Perth for another appearance on the same day when he was required to appear in Albany.[26]
[26] Transcript, page 66.
When the Applicant was questioned about either uncharged acts or acts for which he had acquitted, the Applicant generally declined to answer the questions.[27]
[27] Transcript, pages 91-93.
In respect of a police incident report dated 21 February 2013 regarding a 24-hour police order issued under the Restraining Orders Act 1997 (WA) in favour of a former partner – Ms B,[28] the Applicant testified that after the order was issued, he complied with it and that it was the only one on his record.[29]
[28] R3, TB6, page 183.
[29] Transcript, pages 112-114.
In respect of a police incident report dated 9 June 2020 regarding a report made to police by another former partner – Ms P,[30] the Applicant testified that he told Ms P that he had been on a 3-day bender to cover up his infidelity with a backpacker and otherwise denied that he was a recreational drug user or that he had threatened Ms P.[31] Rather, he said that he had contacted her and her brother to try and obtain the passwords for his CommSec portfolio after their break-up.[32]
[30] R3, TB6 page 196.
[31] Transcript, page 110.
[32] Transcript, page 111.
When questioned by Ms Jones-Bolla regarding the fact that three separate former partners had each contacted police to report alleged incidents of domestic violence perpetrated by him, the Applicant testified that relevant police reports were “nothing really” and that there was no evidence to support that he had, in fact, engaged in domestic violence.[33]
[33] Transcript, page 115.
Evidence of Mr Webb
Mr Webb testified at the request of the Tribunal and indicated that he was a psychologist based in the Great Southern Region of Western Australia, which included working with Corrective Services to rehabilitate offenders.[34] He expressly indicated that he was not giving evidence as an expert witness.[35]
[34] Transcript, pages 128-129.
[35] Transcript, page 125.
The Applicant contacted Mr Webb in April 2024 to try and obtain treatment for anger management. The Applicant attended two telephone sessions with him, the first in April and the second in September 2024. After his transfer to another prison in Perth to finish the Violence Prevention Program did not proceed. They had a third appointment scheduled for mid-October.[36]
[36] Transcript, page 127.
Mr Webb accepted in cross-examination that he was still in the process of establishing a therapeutic alliance with the Applicant and that the Applicant’s treatment was in its early stages.[37] The purpose of their sessions was to discuss the thought processes, cognitive processes and behaviour that cause offending. Whilst substance abuse and drug addiction for offenders was generally dealt with by another service provider, Palmerston Association Incorporated, addiction did form part of his case load. The primary focus of the Applicant’s sessions to date, and the written material he had sent the Applicant, had been anger management and consequential thinking.[38]
[37] Transcript, pages 128-129.
[38] Transcript, page 130.
Evidence of Mr DM
The Applicant’s oldest brother – Mr DM, who is in a wheelchair due to falling off a building in 2009,[39] was cross-examined by Ms Jones-Bolla regarding his criminal history and charges against the Applicant stemming from an incident on 24 July 2015 where he was the listed complainant (being aggravated wounding, aggravated assault occasioning bodily harm and criminal damage).[40]
[39] Transcript, page 157.
[40] Charges PE 35773-35775/2015: R3, TB6, pages 131-134; R4, TB10, pages 1210-1212; Transcript, pages 145-158.
Mr DM accepted that there had been a scuffle or fight between the Applicant and himself on the day in question and that he had suffered some injuries that required treatment at the local hospital.[41] He described this as ‘normal brothers fighting’[42] and, when questioned by the Tribunal, indicated that it was not a one-way fight, rather they had both been fighting each other.[43] In re-examination by the Applicant, Mr DM accepted that he had previously put the Applicant in hospital as a result of their fighting on an earlier occasion.
[41] Transcript, pages 154-155.
[42] Transcript, page 148.
[43] Transcript, page 159.

The Tribunal noted that the 2015 charges appeared to have been dismissed for want of prosecution under s 25 of the Criminal Procedure Act 2004 (WA) (Criminal Procedure Act) in circumstances where they do not appear on the Applicant’s History for Court and where the Tribunal has a copy of the prosecution notice for the criminal damage charge[44] where reference is made within that Prosecution Notice to the charges being discontinued by the State on or about 29 June 2016, with the criminal damage charge being left out of the original discontinuance and then subsequently discontinued on 27 July 2016.[45]
[44] R4, TB10, pages 1210-1212 (Charge 35775/2015).
[45] R4, TB10, pages 1210-1212; see also Transcript, page 95.
The Minister accepted that the criminal damage offence had been discontinued but was not prepared to accept that the wounding or assault charges had been. The Minister submitted that it was open to the Tribunal to find that the Applicant had relevantly wounded/assaulted Mr DM on 24 July 2015 having regard to the police Statement of Material Facts for the charges and the evidence given by Mr DM at the hearing.
While the Tribunal accepts it is open to it to consider this conduct,[46] the Tribunal is not satisfied that there is sufficient evidence before it to conclude that there was unlawful conduct committed by the Applicant on 24 July 2015. Relevantly, the Minister accepted that the Applicant was to be presumed innocent of any criminal conduct until proven guilty.
[46] See Ngaronoa v Minister for Immigration and Citizenship [2007] FCAFC 196; (2007) 244 ALR 119 at [11]; MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1161 at [56]-[58], affirmed on appeal in MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11; (2021) 284 FCR 152.
The Minister relied heavily upon the police Statement of Material Facts prepared under s 35(4)(a) of the Criminal Procedure Act in respect of the three charges.[47] The purpose of these statements was described by the Supreme Court in Re an Application under the Magistrates Court Act 2004; Ex parte Bartholomew [2008] WASC 52 (Bartholomew) at [29]-[30] and Hall v State of Western Australia [2018] WASCA 151 (Hall) at [13]-[14]. In Bartholomew, Murray J observed (at [30]) that ‘the Criminal Procedure Act appears to recognise [that the statement of material facts] is merely a convenient summary which may assist a decision as to plea and will inform the accused of the facts which will be presented to the court for sentencing purposes after conviction upon a plea of guilty’. In Hall, the Court of Appeal noted that ‘[t]he stating aloud of the facts [to the court] provides the offender with an opportunity to raise any dispute. If the facts are admitted (or determined on a trial of issues), they provide the basis upon which the offender is to be sentenced’ ([13]-[14]). It follows, that, in and of themselves, the Statements of Material Facts are not evidence of the commission of an offence. It is a plea of guilty that amounts to an admission of the essential elements of the charged offence. Otherwise, there is either a trial of issues if the facts are disputed or a substantive trial, where the State must prove their case beyond reasonable doubt.
[47] R3, TB6, pages 131-134.
The Tribunal otherwise had regard to the police Detected Incident Report and Computer Aided Dispatch record from the incident on 24 July 2015.[48] Alone, these did not satisfy the Tribunal that the Applicant had engaged in unlawful conduct or family violence with respect to Mr DM.
[48] R3, TB6, pages 187-190; 217-227.
Evidence of the Applicant’s mother
Ms BW (the Applicant’s mother) was cross-examined by Ms Jones-Bolla regarding her criminal history and various reports that she had made to police regarding the Applicant.[49] She generally testified that she could not recall reporting that threats had been made by the Applicant or that the police records were incorrect. She was also questioned regarding the 21 November 2008 incident where the Applicant had been convicted of assaulting her and her then partner – Mr H, and damaging their front window. She said nothing similar had occurred since then.[50]
[49] Transcript, pages 166-174.
[50] Transcript, page 166.
Regarding the Applicant’s family, his mother testified that the Applicant was the only one of her children that she could rely upon to look after his siblings should anything happen to her and that they had been previously reliant upon his employment income.[51] She indicated that both of her daughters got anxiety, and that the youngest’s (Miss SH) anxiety had increased after having a baby (Miss M) some 10 weeks prior to the hearing.[52]
[51] Transcript, pages 174-176.
[52] Transcript, page 174.
The Applicant’s mother indicated that she was not presently working, suffered from arthritis and was reliant upon Centrelink payments.[53] The oldest daughter, Ms MH, worked part-time but this was not steady employment. They want the Applicant back in their lives. Her youngest son – Mstr EH, was struggling at school and did not listen to her, but he listened to the Applicant more than anyone else.[54]
CONSIDERATION
[53] Transcript, page 176.
[54] Transcript, page 177.
Representations in accordance with invitation
The Applicant was invited by the Minister to make representations about revocation of the mandatory cancellation of his visa on 24 July 2023.
Regulation 2.52(2)(b) of the Migration Regulations 1994 (Cth) (Migration Regulations) provides that any such representations must be made within 28 days after the person is given the invitation under s 501CA(3) of the Migration Act.
The Applicant made representations seeking revocation within the prescribed period, on 8 August 2023, and using the Department’s template revocation request and personal circumstances forms.
Accordingly, the Tribunal is satisfied that the Applicant made representations in accordance with the invitation for the purposes of s 501CA(4)(a) of the Migration Act.
Treatment of the Applicant’s Juvenile history
The Tribunal notes that the Applicant has a juvenile record in Western Australia, which was referred to when he was sentenced as an adult in both the District Court and the Magistrates Court[55] and in treatment completion reports.[56] That juvenile record is not before the Tribunal.
[55] see, e.g., R1, G9, pages 68 and 72.
[56] see, e.g., R4, TB9, pages 1135, 1150.
The Minister submitted that the Tribunal should disregard those references and the Applicant’s juvenile history because of the High Court’s decisions in Minister for Immigration, Citizenship, Migrant Services vThornton [2023] HCA 17; (2023) 276 CLR 136 (Thornton) and Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6; (2024) 98 ALJR 475 (Lesianawai). The Tribunal agrees with that submission.
The Minister accepted that in order to ascertain whether s 85ZR of the Crimes Act 1914 (Cth) (Crimes Act) picked up the relevant provisions under state law, consideration should be given to the scope and content of those provisions.
Two years has expired since the discharge of any sentence imposed by the Children’s Court following the Applicant’s conviction prior to 2008 for certain state offences. In accordance with s 189(2) of the Young Offenders Act 1994 (WA) (Young Offenders Act), those juvenile convictions are ‘not to be regarded as a conviction for any purpose, as except as provided in [section 189]’.
Part 3 of the Spent Convictions Act 1988 (WA) (Spent Convictions Act) also ‘has effect in relation to a conviction that, under [section 189 of the Young Offenders Act], is not to be regarded as a conviction as if it were a spent conviction under that Act’.[57] Section 26 of the Spent Convictions Act relevantly provides that where a State law permits or allows a person to consider, take into account, or determine the good character, fitness, propriety or other like attribute of a person for the purposes of that written law, the person shall not in doing so have regard to a spent conviction or the charge to which the conviction relates.
[57] Spent Convictions Act s 189(9).
Noting that there is a distinction between sentencing and conviction in the Children’s Court which is dependent upon the nature of the charge and the exercise of the Court’s discretion, the Applicant is otherwise not to be regarded to have been convicted in respect of any other offences for which he was dealt with in the Children’s Court unless a conviction had been specifically recorded for that offence or he was deemed to have been convicted for the purpose of a Road Traffic law or a criminal appeal.[58]
[58] See Young Offenders Act, s 55; Children’s Court of Western Australia Act 1988 (WA), s 36(1).
The combined effect of these state legislative provisions in the Applicant’s circumstances is that, as matter of Western Australian law, the Tribunal should not take into consideration the fact that the Applicant was charged with, or convicted of, any offences as a juvenile.
Sub-section 85ZR(2)(b) of the Crimes Act provides that:
[d]espite any other Commonwealth law … where, under a State law … a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence under a law of that State …: (b) the person shall be taken, in any State …, in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State …, never to have been convicted of that offence.
A “Commonwealth authority” includes this Tribunal: Crimes Act, s 85ZL.
Sub-section 85ZS(1)(d)(ii) of the Crimes Act further provides that:
[s]ubject to Division 6, but despite any other Commonwealth law …, where, under s 85ZR, a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence: … (d) anyone else who knows, or could reasonably be expected to know, that section 85ZR applies to the person in relation to the offence shall not … (ii) in those circumstances, or for that purpose, take account of the fact that the person was charged with, or convicted of, the offence.
In Thornton the High Court considered the Youth Justice Act 1992 (Qld) and in Lesianawai, the Court considered the Children (Criminal Proceedings) Act 1987 (NSW). The outcome in Thornton, as summarised by Beech-Jones J in Lesianawai, was:
[22] In Thornton, Gageler and Jagot JJ held that the effect of the Youth Justice Act was that a finding of guilt for which no conviction was recorded was not, and was ‘not taken to be’, a conviction for any purpose. It followed that s 85ZR(2)(b) was engaged and the ‘the correspondence purpose’ was ‘any purpose’, including the purpose of considering whether to revoke the cancellation of a visa. Their Honours concluded that ‘[t]he Minister’s consideration of Mr Thornton’s youth offending in deciding not to revoke the cancellation of the visa was contrary to the direction in s 85ZR(2)(b) of the Crimes Act (emphasis added).
[23] Gordon and Edelman JJ reached the same conclusion by in part relying on s 85ZS. Their Honours construed s 85ZR(2) so that, if a State law provides that in ‘particular circumstances’ a person is deemed never to have been convicted for any purpose. Their Honours construed ss 183 and 184 of the Youth Justice Act as specifying particular circumstances in which a person was taken never to have been convicted, namely, where a finding of guilt had been made and a court had decided or been mandated not to record a conviction. Thus, their Honours found that s 85ZR(2) was engaged for all purposes in those particular circumstances. Their Honours concluded that ss 85ZS(1)(d)(ii) and 85ZM of the Crimes Act precluded the Minister from taking into account any of the ‘findings of guilt’ made against the respondent or the fact that he had been charged with the offences he committed when he was a child.
(footnotes omitted).
In Lesianawai, Beech-Jones J (with whom Gageler CJ, Gordon, Edelman and Gleeson JJ agreed) considered similar NSW legislative provisions which had the effect that a person under the age of 16 could not be convicted of particular offences, despite being found guilty or pleading guilty. His Honour observed that:
[32] … like the provisions of the Youth Justice Act considered in Thornton, the above provisions of the Children Proceedings Act reflect a clear distinction between a finding of guilt and a conviction. Under the Children Proceedings Act, a finding of guilt is not a conviction and, subject to any statutory provisions that provide to the contrary, is not treated as a conviction for any purpose. An example of a statutory provision that provides to the contrary is s 33(6) of the Children Proceedings Act, which was introduced with effect from 3 November 2008. Section 33(6) deems a finding of guilt by the Children’s Court to be a conviction ‘[f]or the purposes of any provision of the road transport legislation that confers power on a court with respect to a person who has been convicted of an offence’ and enables the Court to exercise power under that legislation as if the person had been convicted of the offence.
(footnotes omitted).
In conclusion, his Honour accepted the plaintiff’s contention that:
[35] … once it is concluded that [the plaintiff] is taken never to have been convicted of the offences for which he was sentenced by the Children’s Court when he was under the age of 16 for any purpose, then s 85ZR(2) is engaged, and it follows from Thornton that s 85ZR(2) and, to the extent necessary, s 85ZS(1)(d)(ii) precluded the delegate from relying on those convictions (or the findings of guilt they embody).
Therefore, as explained by the High Court, the effect of s 85ZR of the Crimes Act is that full force and effect is to be given by the Tribunal to a law of a state under which a person is “for any purpose” to be taken never to have been convicted for an offence. The ‘corresponding purpose’ as referred to in s 85ZR(2) is therefore ‘any purpose’ and this includes the purpose of this Tribunal making a decision on review of a decision made under s 501CA(4) of the Migration Act.
For the above reasons, the Tribunal has not considered any of the Applicant’s juvenile history and it has played no role in our decision as to whether the mandatory cancellation should be revoked under s 501CA(4) of the Migration Act, including whether the Applicant passes the character test as defined in s 501(6).
The Applicant’s conduct and offending as an adult
The Applicant’s criminal record is contained within a six-page Western Australia Police Force History for Court – Criminal and Traffic dated 26 August 2024.[59] Relevantly, this can be divided into two broad categories of offending – offences against the person and traffic offences, with other associated drug or property offending committed throughout the Applicant’s adult life.
[59] R3, TB6, pages 86-91.
Offences against the person
On 20 January 2008 (some months after the Applicant had turned 18), the Applicant committed an aggravated home burglary in Narrogin, where he entered through an unlocked rear door and assaulted an occupant of the dwelling, Mr R – who went through a glass door and sustained minor cuts and abrasions.[60] The Applicant was convicted of the burglary on his own confession in the Perth District Court before Mazza DCJ (as his Honour then was) and, on 9 September 2008, admitted to an intensive supervision order for 12 months with programme and supervision requirements (to deal with alcohol & drugs and anger management).[61] At the time of the original sentence, the Applicant was in custody for other matters pending in the Perth Magistrates Court.
[60] R1, G10, page 72.
[61] R3, TB7, page 358.
On 10 February 2009, the Applicant was convicted in the Perth Magistrates Court of one count, respectively, of escaping lawful custody, breach of bail, aggravated assault occasioning bodily harm, aggravated assault and criminal damage.[62] These five convictions breached the Applicant’s intensive supervision order and the Applicant was re-sentenced for the aggravated home burglary on 15 May 2009 by Keen DCJ to a total effective sentence of 3 months’ imprisonment cumulative upon a separate total effective sentence of 18 months’ imprisonment which had been imposed by the Perth Magistrates Court on 9 March 2009.[63]
[62] R3, TB7, page 345.
[63] R3, TB7, page 353.
On 9 March 2009, the Perth Magistrates Court dealt with the Applicant in respect of a series of charges (including the five breach charges described above). So far as offences to the person are concerned:
(a)First, on 2 January 2008, the Applicant unlawfully assaulted another male (Mr T) and did him bodily harm (assault occasioning bodily harm). Magistrate Heaney’s Sentencing Remarks record that the Applicant relevantly punched Mr T and knocked him unconscious and then when he went to the ground, Mr T was punched and kicked to the face.[64] He suffered serious injuries to his face. The Applicant was sentenced to 12 months’ imprisonment.
(b)Second, on 13 March 2008, the Applicant unlawfully assaulted Mr R, by punching him in the jaw in circumstances where the Applicant had confronted both Mr R and his partner about their reporting the burglary committed on 20 January 2008 to police.[65] The Applicant was sentenced to 4 months’ imprisonment.
(c)Third, on 21 November 2008, the Applicant was at his mother’s address in Narrogin.[66] For an unknown reason, he became angry, walked over to the barbeque that was being cooked by his stepfather (Mr H) and tipped over a tray of meat. He went into the rear room of the house and began having an argument with his mother (Ms W), who had followed him inside. Mr H tried to defuse the situation and stepped between the Applicant and his mother. The Applicant punched Mr H once to the face, causing him to lose balance and fall backwards onto the ground (aggravated assault occasioning bodily harm). Mr H required five stitches above the right eyelid, and severe swelling and bruising around his eye. The Applicant was sentenced to 6 months’ imprisonment, cumulative upon the other sentences imposed for this charge. The Applicant’s mother tried to push the Applicant away from his stepfather, and the Applicant grabbed her and pushed her into a nearby wall, causing her head to punch a hole through it. The Applicant also kicked his mother several times in the leg to stop her from grabbing him (aggravated common assault). He was sentenced to 6 months’ imprisonment (concurrent) for this charge. On his way out of the property, the Applicant smashed a large hole through the window in the front room of the house (criminal damage). He was sentenced to 3 months’ imprisonment (concurrent) for this charge.[67] The Applicant’s mother wrote a letter to the Tribunal indicating that ‘[this] behaviour is exactly what I used to do when angered, I would smash everything’ and that she had noticed a change after that incident and there had not been a repeat performance of that kind.[68]
[64] R1, G9, page 68.
[65] R3, TB6, pages 106-108.
[66] R1, G9, page 68; R3, TB6, pages 119-122.
[67] R1, G9, page 68; R3, TB7, pages 346-347.
[68] A1, page 6.
Late on Friday, 24 July 2015, the Applicant attended an address in Narrogin where he proceeded to wake up the female occupant of the house by shouting and pacing in the front yard. He damaged the front fence and made a threat to injure the female occupant.[69] The Applicant was sentenced on 1 June 2016 by the Chief Magistrate to 9 months’ imprisonment, suspended for 1 year, in respect of the threat to harm and fined $500 for damaging the fence.[70] The Applicant indicated in his most recent written statement to the Tribunal that the threat charge was based upon hand motions captured on CCTV and not any threats made to an actual person. At the hearing he testified that the threat was the cutthroat gesture, made to the camera.[71]
[69] R4, TB10, pages 1206-1209.
[70] R1, G6, page 53.
[71] Transcript, page 59.

On Friday, 23 June 2017, the Applicant assaulted a security guard at Perth Arena by pushing him in the back (common assault). He was then rude to both police and arena security (disorderly conduct). The Applicant was sentenced by Deputy Chief Magistrate Woods to fines in the amount of $1,000 and $500 respectively on 14 August 2017.[72] In his written statement to the Tribunal, the Applicant indicated that this involved him pushing the guard away from a friend who was trying to “spew… up in a bin”.[73]
[72] R4, TB10, pages 1201-1203.
[73] A1, page 1.
Lastly, the Applicant was convicted following a jury trial in February 2023 of unlawfully doing grievous bodily harm to a taxi driver in Port Hedland, late on Friday, 21 August 2020. This was the second trial, as the first trial was aborted in May 2022 when the Applicant absconded whilst on bail and during closing directions to the jury.[74] The Applicant was arrested on 24 June 2022 in accordance with a bench warrant.[75] He was ultimately sentenced to 4 years’ imprisonment (from 29 May 2022) and made eligible for parole. The facts for this offence are set out in the sentencing remarks of Flynn DCJ as follows:[76]
[74] R3, TB7, page 794; pages 801-802.
[75] R3, TB6, page 318ff; TB7, page 802.
[76] R1, G5.
Just before midnight on 22 August [2020], [the applicant] entered a taxi at the Pier Hotel. [He] asked to be taken to the yacht club. That taxi was being driven by Mr [J]. Mr [J] was 59 years of age.
A short distance before arriving at the yacht club at [the applicant’s] request the taxi stopped. [The applicant] got out of the taxi. Mr [J] remained in the taxi.
…
In the end, I am unable to make a finding as to the reason for the taxi stopping when it did and the reason for [the applicant] exiting when [he] did. I am not satisfied on the balance of probabilities that it was a fare dispute but nor am I satisfied beyond reasonable doubt that [the applicant] initiated a conflict out of the blue.
…
What followed was the subject of evidence from Mr [J] and from [the applicant]. I am satisfied beyond reasonable doubt of Mr [J]’s account insofar as [the applicant] initiated a violent attack upon him. Insofar as [the applicant’s] testimony suggested issues of self-defence; an unwilled act; an accident – [his] account was not accepted by the jury.
…
My findings are that for no reason that I am able to attribute shortly after [the applicant] exited the taxi and whilst Mr [J] was sitting in the driver’s seat of the taxi, [he] stepped onto the bonnet of the taxi. [He] then went onto [the] windscreen and … then went onto the roof of that taxi.
Mr [J] commenced to get out of the taxi, exiting from the driver’s side door. As he commenced to stand up as he was getting out of the taxi, [the applicant] struck him to the front of his face in he region of the bridge of his nose and cheeks.
…
The strike or strikes from [the applicant] to Mr [J] caused him to be rendered unconscious and caused him to suffer a [number of facial injuries and a] traumatic brain injury.
…
I am satisfied beyond reasonable doubt that Mr [J] was unconscious when [the applicant] left the scene. What happened when emergency services attended was that Mr [J] was transferred to the Hedland Health Campus, where he spent a period of five to six days. He was then transferred to [Perth for further medical treatment and rehabilitation].
Mr [J’s] evidence was that the incident that occurred on 22 August 2020 changed his life. He spoke about his memory not being the same, he spoke about him experiencing fatigue. Specifically, he gave an example of easily feeling exhausted, of being unable to work longer than six hours a day compared to working 12 to 15 hour days before that injury.
The traumatic brain injury, in terms of significance of it, was the subject of the evidence of [medical experts]. I am satisfied beyond reasonable doubt that the traumatic brain injury was of such a nature as to be likely to cause a permanent injury to health from a swelling of the brain.
…
I am further satisfied that the brain injury was also of a nature as to likely to cause permanent injury to health in the form of a permanent cognitive impairment. There was medical evidence that a cognitive impairment from a traumatic brain injury may take the form of an intellectual impairment, may take the form of memory loss, may take the form of general reduced functioning, including fatigue.
There was evidence that each of these was a likely result of traumatic brain injury. There was evidence that medical intervention is required to minimise the risk of that permanent cognitive impairment. That medical intervention in the form of rehabilitation taking the form of physiotherapy, occupational therapy, speech pathology, the involvement of other allied health professionals.
Dr [W] said – and I am quoting the transcript at page 66: Brain injuries are very difficult to treat and unfortunately, there’s almost always going to be a degree of impairment, regardless of how effective the rehabilitation is.
It follows from that last quote from Dr [W], whose evidence I accept, and from the evidence of Mr [J] himself as to the effect of the injury upon him which I have already referred to, that in this case the traumatic brain injury [the applicant] inflicted upon Mr [J] did cause him a permanent injury to health.
Traffic offending
The Applicant has a traffic record (including both convictions and infringements) as an adult which generally spans from October 2011 until he was remanded in custody in early 2022.[77] Relevantly, he drove whilst under the influence of alcohol or illicit drugs in May 2013, April 2019, March 2021 and August 2021. He failed to provide a valid sample of his breath in February 2022. He also drove without authority in March and May 2008, October 2011, July 2013, September 2013, June 2018 and February 2022. The Applicant was generally sentenced to financial penalties for each of those traffic offences, save for, on 9 March 2009 he was sentenced to 3 months’ imprisonment (concurrent) on two separate counts of driving without authority in 2008 and, on 13 September 2013, he was sentenced to 6 months and 1 day’ imprisonment, suspended for 12 months, in respect of driving without authority in July 2013. He was warned by Magistrate Hogan on 13 September 2013 that further offending, including after expiration of the suspended imprisonment order, may result in his immediate imprisonment.[78]
[77] R3, TB5, page 41 and pages 86-91.
[78] R1, G7, page 59.
Character test
The Tribunal must decide whether the Applicant passes the character test as defined by s 501.[79] Failure to pass the character test arises as a matter of law.[80]
[79] See Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 652 at [40]. See also Direction 110, cl 5.1(3) and Annex A.
[80] See Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at [63].
The character test is relevantly defined in s 501(6)(a) of the Migration Act as when ‘the person has a substantial criminal record (as defined by subsection (7))’.
The Applicant was sentenced to 4 years’ imprisonment for the Grievous Bodily Harm offence on 6 April 2023. Accordingly, the Applicant has a “substantial criminal record” within the meaning of s 501(7)(c) of the Migration Act (as he has been subject to a sentence of imprisonment of 12 months or more) and does not pass the character test.
The Tribunal is not satisfied that the Applicant passes the character test.[81]
[81] See Migration Act s 501CA(4)(b)(i).
Is there another reason?
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the representations made by the Applicant and any relevant primary and other considerations contained within Direction no. 110, there is another reason why the cancellation decision should be revoked.
Further guidance as to how the Tribunal is to apply the considerations in

Direction no. 110 can be found in clause 7, which provides that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
Protection of the Australian Community
The first primary consideration, cl 8(1) of Direction no. 110, requires the Tribunal to consider the protection of the Australian community from criminal or other serious conduct. The Tribunal is directed by cl 8.1(1) to “keep in mind that the safety of the Australian community is the highest priority of the Australian Government” and that the Tribunal 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”.
Direction no. 110 provides that the protection of the Australian community is generally to be given greater weight than other primary considerations.[82]
[82] Direction no. 110 para 7(2).
There are two limbs to this primary consideration:
(a) the nature and seriousness of the applicant’s conduct to date; and
(b)the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
The Tribunal must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date.[83] In doing so, paragraph 8.1.1(1) of Direction no. 110 provides that the Tribunal must have regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. The Direction also provides that certain other crimes or conduct are considered to be ‘serious’. The Tribunal notes that while the Direction expressly provides categories of conduct to be considered to be very serious or serious, it does not limit the range of conduct that may be so regarded.[84]
[83] Direction no. 110 para 8.1(1).
[84] Direction no. 110 para 8.1.1(1)(a).
In considering the nature and seriousness of the Applicant’s criminal offending or other conduct to date, the Tribunal must have regard to the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness; the cumulative effect of repeated offending; whether the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending; whether the Applicant 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 Applicant’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour). In addition, Direction no. 110 introduced a requirement under this section that the Tribunal consider the impact of the offending on any victims and their family, where information regarding this is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness as part of its consideration of the nature and seriousness of the Applicant’s offending and other serious conduct.[85]
[85] Direction no. 110 para 8.1.1(1)(d).
The account of the Applicant’s conduct and offending detailed above demonstrates that the Applicant has committed multiple acts of violence, including against both family members and complete strangers. It is clear from the accounts of those offences, and applying Direction no 110, that this offending is to be viewed very seriously.[86]
[86] Direction no. 110 para 8.1.1(1)(a).
The Applicant’s history also indicates that he has frequently appeared before the courts since he was 18 and that the bulk of his offending occurred after July 2009, when he was warned by the Immigration Department about the consequences of further offending in respect of his right to remain in Australia indefinitely.[87] While the Applicant testified that he could not recall the warning the Tribunal does not accept he was unaware that further offending may have serious consequences with request to his migration status. The Tribunal considers his continued offending in the face of that warning adds to the overall assessment of his conduct and offending as serious.
[87] Direction no. 110 para 8.1.1(1)(h).
With respect to the Grievous Bodily Harm offence, in his sentencing remarks of Flynn DCJ commented on the seriousness of the offending as follows:[88]
I want to say something about the background and circumstances of the offence insofar as this was aggression by [the applicant], a person who was 30, towards a much older person, a man who was aged 59. A man who was engaged in his job, a taxi driver, who is by definition vulnerable. Vulnerable because they [are] alone with someone else. And, in this case, particularly vulnerable because it was in the early hours of the morning in a relatively remote location.
It is also a matter Which is of significance in terms of the seriousness of this offending, is that you left Mr [J] at a point where he had suffered a serious injury on or beside the road.
[88] R1, G5.
In the Tribunal’s view, the circumstances of this offence, reflected in the sentencing judges’ remarks, reflect the very serious nature of the Applicant’s conduct and offending.
The sentencing remarks detailed earlier provide an account of the impact the Grievous Bodily Harm offence had on the victim. There can be no doubt that impact was very serious. However, there is not information before the Tribunal to suggest that any decision regarding the Applicant’s visa will have an impact on Mr J. The Tribunal also heard from some members of the Applicant’s family who were victims of his offending, including his mother. The Tribunal acknowledges the Applicant’s mother testified that the violence towards herself and her then-partner was not repeated and that she supports the Applicant remaining in Australia, including to support her in the care of his siblings and niece.
It is clear from the above history that the Applicant has been given multiple opportunities in which to reform his behaviour including to seek treatment for his alcohol, drug and anger management issues by way of community-based orders, suspended imprisonment orders and whilst in prison. He has not done so and has continued to offend on a consistent and repeated basis, including by causing serious injury to other members of the community. On any measure, in the Tribunal’s view the Applicant’s criminal offending to date is very serious.
Risk to the Australian community should the Applicant engage in further conduct
The Tribunal is required to assess the risk that may be posed by the Applicant to the Australian community by considering, cumulatively, the nature of the harm to individuals or to the community should the Applicant engage in further criminal or other serious conduct and the likelihood of the Applicant engaging in such conduct.[89] There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[90]
Nature of harm should the Applicant re-offend
[89] Direction no. 111, cl 8.1.2(2)(a) and (b).
[90] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, at [41] per Kenny J.
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals or the Australian community should the Applicant reoffend.[91]
[91] Direction no. 110 para 8.1.2(2)(a).
The risk of harm associated with the Applicant’s violent offending against members of the community is clear from the injury caused to the victim of his Grievous Bodily Harm offence. Any further acts of physical violence have similar potential for significant harm. The nature of that harm is very serious.
The risk of harm stemming from other acts of physical violence or drink-driving to members of the community also cannot be underestimated. Committing either act creates an unacceptable risk to the life and wellbeing of persons. Driving under the influence of alcohol or illicit drugs affects reaction times and driving skill and thereby presents a risk to other road users.
The Tribunal finds that the harm which would be caused to members of the community should the Applicant re-offend would be very serious and would include serious physical injury and permanent disablement.
Likelihood of re-offending
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[92]
[92] Direction no. 110 para 8.1.2(2)(b).
It was identified in September 2008, when the Applicant was 18 years of age, that he needed help with alcohol and drug abuse and with anger management.[93] For this reason, Mazza DCJ decided to impose an intensive supervision order in the first instance for the aggravated burglary. Unfortunately, the Applicant breached that order by re-offending in a violent manner only months later.
[93] R1, G10, page 74.
When sentencing the Applicant in April 2023, Flynn DCJ referred to the Applicant’s upbringing where he was exposed to substance abuse (especially alcohol and cannabis) and to violence.[94] His Honour quoted a psychological pre-sentence report (which was not before the Tribunal) which stated:
[5.3] Although Mr Lynch did not attribute his current offence to being intoxicated with alcohol, it is highly likely that his intoxication with alcohol contributed to his poor decision-making that placed him in a high risk situation.
…
[8.1] Research suggests that children exposed to instability, threats to their personal safety, abuse, experience neurological changes and develop hypersensitivity to threats. They are chronically activated by their environment. It impairs decision-making and broader thinking.
…
It’s speculated that a combination of these attitudes supported the use of violence and, to some degree, trauma related fight or flight reactivity, which played a role in Mr Lynch’s past violence offending.[95]
[94] R1, G5, pages 46-47.
[95] R1, G5, pages 46-47; See also STB, p 1152 “The Psychological Report for Court (Wszola, 2023) attributes Mr Lynch’s exposure to violence across his life span as a contributing factor to his index offence. Mr Lynch was raised in an environment that normalised violence and encouraged the use of violence to resolve conflict”.
Flynn DCJ also referred to an extract from the Department of Justice pre-sentence report (which was also not before the Tribunal), where the author noted that:
Mr Lynch expressed insight into his excessive use of alcohol, inability to effectively resolve conflict without the use of violence and his lack of emotional regulation. He advised he will be seeking to address these treatment needs either in prison or the community.[96]
[96] R1, G5, page 49.
The Applicant has not incurred any prison charges[97] during his current sentence of imprisonment and has given negative urinalysis results during testing conducted at Albany Regional Prison from 20 November 2022.[98]
[97] Under Part VII of the Prisons Act.
[98] R4, TB9, pages 1162 [7.1]-[7.2] and 1167-1168.

The Tribunal accepts the detention, removal and visa limitations which result from a decision not to revoke the cancellation of the visa are an intended consequence of the operation of s 501 and related provisions. However, noting the Applicant’s ties to Australia, the Tribunal considers that the impact these consequences and in particular the prospect of permanent exclusion would have on the Applicant weigh slightly in favour of revocation in the Applicant’s case.
Extent of impediments if removed
The Tribunal must consider the extent of any impediments that the Applicant may face if removed from Australia to New Zealand, in establishing himself and maintaining basis living standards (in the context of what is generally available to other citizens of that country), taking into account the applicant’s age and health, whether there are substantial language or cultural barriers, and any social, medical and/or economic support available to him in New Zealand.[162]
[162] Direction no. 110 paras 9.2(1).
The Applicant is 34 years of age and has no known psychological or psychiatric issues. He has no apparent disability and a history of employment in the construction industry. The Applicant has taken some steps to deal with his substance use. Whether he remains free from illicit drugs and alcohol abuse in the community is yet to be tested.
Whilst the Applicant considered that his employment prospects were better in Australia, he accepted in cross-examination by the Tribunal that he would have transferrable skills.[163]
[163] Transcript, page 218.
The Applicant has no remaining familiar ties in New Zealand, to which he has any association. However, there are no substantial language or cultural barriers between Australia and New Zealand and there are comparable health and social security supports to which the Applicant would have access. [164]
[164] Webb v Minister for Home Affairs [2020] FCA 831 at [100]; Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [68]-[69]).
The Tribunal Accepts that the Applicant will suffer significant emotional hardship in being removed to New Zealand and that his ability to participate in the lives of family will be constrained by physical separation. This attracts slight weight in favour of revocation.
Impact on Australian business interests
There is no evidence of any impact of the decision on an Australian business interest, especially one which would significantly compromise the delivery of a major project or important service in Australia.[165]
[165] Direction no. 110, cl 9.3(1).
The Tribunal considers this consideration should be afforded neutral weight in the Applicant’s case.
CONCLUSION
The Tribunal is required to bring together the relevant considerations in this matter and consider, as part of a single evaluation, their relative significance in terms of whether the Tribunal is ultimately satisfied that there is “another reason” why the mandatory cancellation decision should be revoked.
In determining the weight to be applied to each consideration, the Tribunal has considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and according to the guidance provided by Direction no. 110. The Tribunal has gone on to compare and balance all of the considerations to determine whether there is another reason the cancellation should be revoked.
The Tribunal has considered all of the primary considerations, including the protection of the Australian community which weighs strongly against revocation in the Applicant’s circumstances. The consideration of family violence weighs against revocation but only carries limited weight in the Applicant’s case. The strength, nature and duration of the Applicant’s ties to Australia carry heavy weight in favour of revocation. The best interests of the Applicant’s brother, sister and niece carry moderate weigh in favour of revocation. The expectations of the Australian community would be that the visa would remain cancelled and this consideration weighs heavily against revocation.
In relation to the relevant ‘other considerations’ identified in Direction no. 110, the Tribunal finds that the legal consequences of the decision carries slight weight in favour of revocation the Applicant’s case. The impact on Australian businesses weighs neutrally in the Applicant’s circumstances. The extent of impediments if removed weigh slightly in favour of revocation in the Applicant’s case.
Paragraph 7(2) of Direction no. 110 states that primary considerations should generally be given greater weight than the other considerations. Further it states that primary consideration 8.1 (protection of the Australian community) is generally to be given greater weight than other primary considerations.
Having weighed the considerations in favour of the revocation of the cancellation of the Applicant’s visa and the considerations against revocation, the Tribunal finds that the considerations weighing against revocation being the primary considerations of the protection of the Australian community, family violence and the expectations of the Australian community, outweigh those weighing in favour of revocation, being the primary considerations of the strength, nature and duration of ties to Australia and the best interests of minor children and the other consideration of the legal consequences of the decision and the extent of impediments if removed.
In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction no. 110, the Tribunal is not satisfied that there is ‘another reason’ why the cancellation decision should be revoked.
Consequently, the correct decision is that the delegate’s decision should be affirmed.
DECISION
The decision of the delegate of the respondent dated 31 July 2024, not to revoke the cancellation of the Applicant’s Special Category Visa, is affirmed.

I certify that the preceding one hundred and eighty-six (186) paragraphs are a true copy of the reasons for the decision herein of Deputy President S Burford and Member J Papalia

....................[Sgd]......................................
Associate
Dated: 24 October 2024

Date of hearing:

2 and 3 October 2024

Applicant:

In person

Solicitors for the Respondent:

Ms D Jones-Bolla, Sparke Helmore Lawyers

Date of hearing:	2 and 3 October 2024
Applicant:	In person
Solicitors for the Respondent:	Ms D Jones-Bolla, Sparke Helmore Lawyers