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

McMillan and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2735 (28 August 2023)
Division:GENERAL DIVISION
File Number: 2023/3955
Re:Jerome Raymond Fraser McMillan
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member R Maguire
Date of Decision: 28 August 2023
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 2 June 2023 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
..................................[SGD]..................................
Member R Maguire
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulation 1994 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
DOB18 v Minister for Home Affairs [2019] FCAFC 63; (2019) 269 FCR 636
FYBR v Minister for Home Affairs [2019] FCA 500
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Member R Maguire
28 August 2023
INTRODUCTION

By application made on 8 June 2023 the Applicant seeks the review of a decision[1] of a delegate of the Minister (“the Respondent”) dated 2 June 2023 made pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the decision made on 20 July 2022 under s 501(3A) of the Act to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (“the visa”).
[1] G1, p 12.
Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period provided for in the Migration Regulations 1994 (Cth) (28 days in accordance with reg 2.52), and the decision-maker determines that the Applicant passes the “character test”, or, as provided under s 501CA(4)(b), there is another reason why the mandatory cancellation should be revoked. The Minister accepted that the Applicant had made the necessary representations within the prescribed period.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under

s 501(6)(a) of the Act the person has a substantial criminal record as defined by s 501(7). Relevantly, s 501(7) states:
7For the purposes of the character test, a person has a substantial criminal record if:
...
(c)the person has been sentenced to a term of imprisonment of 12 months or more;...
The term “imprisonment” is defined to include any form of punitive detention in a facility or institution: s 501(12) of the Act.
On 28 June 2022 the Applicant was sentenced to 17 months’ imprisonment.[2]
[2] G1, p 30.
On 20 July 2022, whilst the Applicant was in custody serving a term of imprisonment the Respondent, acted pursuant to s 501(3A) of the Act, acted to mandatorily cancel the Applicant’s visa because he did not pass the character test as he had a substantial criminal record as provided in s 501(7)(c) in consequence of being sentenced to 12 months or more imprisonment. Notice of this decision was given by hand to the Applicant on 20 July 2022.[3]
[3] G1, p 306.
In accordance with reg 2.52(2)(b) the Applicant was invited in accordance with

s 501CA(3)(b) of the Act to make representations to the Minister about revoking the cancellation decision within 28 days after he had received the notice. The Applicant made representations to the Minister within the period and in the manner specified.[4]
[4] G1, pp 118-119.
Following the decision pursuant to s 501CA(4) of the Act, the Applicant made the present application to this Tribunal for a review of that decision.[5] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.
[5] G1, pp 1-4.
By operation of s 500(6L) of the Act, when an application is made to the Tribunal for a review of a decision under s 501CA(4) of the Act not to revoke a decision to cancel a visa, and the decision relates to a person in the migration zone, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision under review in accordance with 501G(1), the Tribunal is taken at the end of that period to have made a decision under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) to affirm the decision under review. At the hearing, it was agreed that for the purposes of this review, and s 500(6L)(c), the 84th day is 28 August 2023. It was therefore open to the Tribunal to make a decision prior to midnight, on that date.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4The 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.
The Applicant has made the representations required by s 501CA(4)(a) of the Act. Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is another reason why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the Applicant which the Tribunal is required to read, identify, understand and evaluate.[6]
[6] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, at [22] and [36].
If the Tribunal exercises the power conferred by s 501CA(4) and in giving reasons makes a finding of fact, the Tribunal must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Tribunal's personal or specialised knowledge or by reference to that which is commonly known. It is open to the Tribunal to adopt the accumulated knowledge of the Department.[7]
[7] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [17]-[20].
As provided in s 501CA(4)(b) of the Act, there are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[8]
[8] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. In addition, and as an alternative, s 501(7)(d) provides that a person will have a substantial criminal record if the person “has been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more.” Section 501(7A) provides that for the purposes of the character test, if a person has been sentenced to two or more terms of imprisonment to be served concurrently (whether in whole or in part) the whole of each term is to be counted in working out the total terms.
Undisputed evidence before the Tribunal,[9] establishes that the Applicant was sentenced to 17 months imprisonment on 28 June 2022.
[9] G1, p 30.
The Tribunal therefore finds that the Applicant does not pass the character test pursuant to

s 501(6)(a) of the Act and that the Applicant therefore cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
The remaining question therefore is found in s 501CA(4)(b)(ii) of the Act, namely whether there is another reason why the original decision should be revoked.
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
Ministerial Direction No. 99
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction” or “Direction 99”) has application.[10] The Direction provides guidance for decision-makers on how to exercise the discretion in s 501CA(4) of the Act.
[10] On 3 March 2023, the former applicable direction, Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 99.
Relevantly, the Direction states that:[11]
“Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”
[11] Direction No 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction/ Direction 99”), page 5, Part 2, 6 – Making a decision.
.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
1Australia 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.
2Non-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.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance or criminal or other serious misconduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6Decision-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 8.55(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 measurable risk of causing physical harm to the Australian community.
Paragraph 7(1) of the Direction provides that in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 7(2) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia;
(5)expectations of the Australian community.
Paragraph 9(1) of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community.
The Tribunal notes the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[12]
“…Direction 65 [now Direction 99] 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”.
[12] [2018] FCA 594 at [23].
The Tribunal now turns to addressing these considerations.
Applicant’s history of offending and other serious conduct
The Applicant’s criminal history and other serious conduct is informed by the following documents:
(a)Australian Criminal Intelligence Commission Check Results Report (CRR) dated 3 August 2022;[13]
[13] G1, pp 29-36.
(b)The New Zealand Police Report produced 22 August 2022[14];
[14] Ibid, pp 106-107.
(c)The Integrated Offender Management System Report from the Queensland Department of Corrective Services dated 4 July 2022[15];
(d)Verdict and Judgment record of the Magistrates Court of Queensland created 28 June 2022[16];
(e)Magistrates Court transcript dated 15 July 2014[17];
(f)Magistrates Court transcript dated 28 April 2016[18]
(g)Magistrates Court transcript dated 18 December 2017[19]
(h)Magistrates Court transcript dated 16 August 2019[20]
(i)Magistrates Court transcript dated 29 January 2021[21]
(j)Magistrates Court transcript dated 28 June 2022[22]
(k)Police Statements of Facts of various Domestic Violence Order breaches[23]
(l)New Zealand Ministry of Justice Convictions History Report dated 7 December 2022[24].
[15] Ibid, pp 108-109.
[16] Ibid, pp 50-51.
[17] G1, pp 72-77.
[18] Ibid, pp 69-71.
[19] Ibid, pp 65-68.
[20] Ibid, pp 59-64.
[21] Ibid, pp 52-58.
[22] Ibid, pp 37-39.
[23] Ibid, pp 78-105.
[24] Ibid, pp 106-107.
EVIDENCE AT HEARING
The hearing took place in Brisbane on Tuesday 8, and Wednesday 9 August 2023. The Applicant was self represented, and, and Ms Letcher-Boldt of Clayton Utz appeared for the Respondent.
The complete suite of written material forming the exhibit record is further particularised in the Exhibit Register Annexure attached hereto and marked “A”.
The Tribunal received oral evidence from the Applicant, his partner, who shall be referred to as Ms T, and his brother, Mr Ezra McMillan.
Prior to the commencement of his evidence, the Tribunal explained to him the legal obligation of truthfulness which arose from his affirmation, and stressed the importance of his evidence being truthful.
Applicant’s evidence at hearing
At the outset of his evidence, the Applicant confirmed that he understood the character test, and that he did not satisfy it, and that his offending was accurately recorded in the Respondent’s Statement of Facts Issues and Contentions (SFIC) and the G documents[25]. He also confirmed that he had not said anything to the Department that was false or misleading in any way[26].
[25] Transcript, p 3, lines 28-34.
[26] Ibid, lines 44-45; p 4, line 1-3.
The Applicant said that he was born in New Zealand in 1985, and committed offences of robbery, burglary, theft, breaches of community work, and possessing drug paraphernalia and trespass while in New Zealand before coming to Australia in 2009[27]. He could not remember, but said he thought declared his offending on entry to Australia.[28]
[27] Transcript, p 5, lines 16-19.
[28] Ibid, lines 24-25.
The Applicant acknowledged that he committed his first offence in Australia approximately two weeks after his arrival.[29]
[29] Ibid, lines 27-29.
The Applicant agreed with Ms Letcher-Boldt that his history involved repeated offences of stealing, theft, fraud, trespass, possession of dangerous drugs, and breaches of orders including domestic violence orders and probation orders, and that his offending in Australia had a similar flavour to his offending in New Zealand.[30]
[30] Ibid, lines 33-39.
He also agreed that his offending in Australia which included possession of weapons and domestic violence offences was definitely more serious than his offending in New Zealand.[31]
[31] Ibid, lines 41-44.
The Applicant was referred a charge of Assault or obstruct a police officer[32], but could not recall the offence.[33]
[32] G1, p 35.
[33] Transcript, p 5, lines 46-47; p 6, line 1-2.
The Applicant was referred an offence[34] of stealing from LiquorLand for which his he partner Ms T was also charged. He said he did the stealing, and Ms T was his driver. She was involved in his offending a couple of times. She had been in the car and had no idea that he was stealing.[35]
[34] G1, p 37.
[35] Transcript, p 6, lines 4-31.

The Applicant said that all of his Domestic Violence Order (‘DVO’) offences[36] involved Ms T, but added that his father had an AVO put against him following an argument when they were living together about five or six years ago.[37]
[36] G1, pp 30-35.
[37] Transcript, p 6 lines 46-47; p 7, line 1-20.
The Applicant said that all of his DVO offences stemmed from his drug and alcohol addictions. He acknowledged that on one occasion[38] he attended Ms T’s home uninvited and took their two year old daughter from his partner.[39]
[38] G1, p 66.
[39] Transcript, p 7, lines 28-31.
He acknowledged that on a separate occasion[40] he threatened to return to New Zealand with his daughter but said that in he was never seriously considering doing it, and he spoke in anger whilst under the influence of drugs.[41]
[40] G1, p 83.
[41] Transcript, p 7, lines 37-39.
The Applicant acknowledged that there is a current DVO in place which allows him to attend at Ms T’s residence on her written invitation. The order was renewed for five years about four years ago.
There were a lot of periods of time when he had lived separately from Ms T due to homelessness and prison. Over the past ten years they had been together sixty or seventy percent of the time. His periods of homelessness were due to his drug and alcohol addictions. When he was homeless, he tried to see her at least every second day, depending on whether she allowed it. She allowed him to visit most times, but he could not visit when she was living in a women’s refuge. It was during some of these visits that breaches of the DVO occurred.[42]
[42] Transcript, p 8, lines 22-47; p 9, lines 1-9.
The Applicant said that he intends to live with Ms T if he is released. He said he had done courses and counselling related to domestic violence, and they were working on their relationship, and were probably closer now than they had ever been. This was the longest period that he had been clean and sober from any substance and he felt normal again. It was his expectation that if he requested written permission he would get it. Not only was this the longest period he had abstained from drug and alcohol use, it was also the longest period that he has been removed from the community in prison or detention.[43]
[43] Ibid, p 9, lines 11-38.
The Applicant recalled that on 20 December 2019 he was notified that the Department intended to consider cancellation of his visa and acknowledged that notwithstanding this notice he committed a further 19 offences after receiving that warning.[44]
[44] Ibid, lines 40-45.
The Applicant acknowledged that he has outstanding fines of between $20,000 and $30,000, and said that he intends to start a repayment plan as soon as he is released. He does not hold a driver’s licence, but intends to obtain one[45].
[45] Ibid, p 10, lines 3-25.
The Applicant was referred to sentencing remarks[46] of Magistrate Vasta on 16 August 2019 where it was recorded that he intended on release to undertake counselling and psychiatric treatment. The Applicant said that on release he did the QuIHN programme, and said it was his fault that he did not see the psychiatrist as he was living on the street.[47]
[46] G1, p 63, lines 1-2.
[47] Transcript, p 10, lines 45-47, p 11, lines 1-10.
The Applicant had attended QuIHN programs between 8 November 2019, and 25 November 2020, but had told the Department[48] that he had attended over three years. He had previously been required to attend a drug diversion programme, but said he did not end up doing it.[49]
[48] G1, p 130.
[49] Transcript, p 11, lines 12–35.
It was put to him that since he engaged with QuIHN he had offended and been charged with possessing dangerous drugs on 17 July 2021 and sentenced on 16 December 2021,[50] and asked what led him to offend. He said that he had never really given himself the chance to be clean and sober, and said that everyone he knew except Ms T used drugs, which were easy to get. He has since ceased contact with his drug using associates.[51]
[50] G1, p 30.
[51] Transcript, p 12, lines 40-46; p 13, lines 1-15.
At the time of the offence of 17 July 2021 he had no support from his partner. He does not have much family, just a couple of brothers and a sister. He said he does not really have any contact with the rest of the family, and did not really speak to his father[52].
[52] Ibid, p 13, lines 30-37; This accorded with his earlier statements at G1, p 128.
The Applicant was referred to a statement[53] by his father Sebastian McMillan dated 13 June 2021, made one month prior to his offending of 17 July 2021 wherein it was recorded that his family was seeing a change of attitude and determination to turn his life around, and family support, at least to abstain from drug and alcohol use at the time. The Applicant said that he had not been comfortable at the time at home with his partner because of his addictions.[54]
[53] G1, p 141.
[54] Transcript, p 14, lines 10-21.
The Applicant agreed with a suggestion that he had previously been subject to community work orders, supervision, good behaviour bonds, fines, probation, as well as a number of terms of imprisonment, and that it was fair to say that that none of these sentences prevented him from committing further offences[55].
[55] Ibid, lines 23-29.
The Applicant agreed that he had previously been referred to an intervention program[56] for men who had used abusive practises but was excluded for poor attendance. The Applicant blamed homelessness, addiction, lack of transport and family struggles and domestic violence for his non-attendance in July 2021.[57] He had re-engaged with them and been excluded again for non-attendance.
[56] G1, p 163.
[57] Transcript, p 14, lines 31-47; p 15, lines 1- 30.
Regarding planned future rehabilitation, the Applicant said that he was on a waiting list with Men & Co.
What was now different from his past efforts at rehabilitation was that he feels better being off drugs and alcohol and knows what he wants now.
The Applicant was referred to sentencing remarks[58] of Magistrate Kennedy made nine years ago, who had asked him “…do you not learn from your previous mistakes?”, and the Applicant had responded by expressing disgust at his past actions, a determination to change his life, and to volunteer his services to help the disadvantaged. He has also said that he had a baby due and had an offer of work[59].
[58] G1, p 73, line 19.
[59] Transcript, p 16, line 26-45.
When asked what was different now, the Applicant said that if he were given another opportunity in the Australian community, he would be starting from a better place. He was 15 months clean and had family support. He had educated himself regarding addictions and anger management and loved and missed his children. He had previously used drugs while in gaol. He was mentally stronger, and cut off negative ties with the outside, and generally expressed determination.[60]
[60] Ibid, p 17, lines 14-24.
The Applicant said that he only has contact with a few of his relatives. He contacts his father four or five times per year, and takes his children to visit him on the Gold Coast where he lives with his partner. His father has not come to visit him.
The Applicant said that he speaks weekly with his brother Ezra who lives on the Gold Coast with his two children and partner.
The Applicant nominated a number of family members with whom he did not really have much contact, and confirmed that his main contact is with his partner, their two children, his brother Ezra and his father. His father and Ezra had not visited him while he was in gaol or detention, but he has had phone contact with them. Ezra’s children are a girl aged about 8 or 9 who will be referred to as Child M in these reasons, and a one year old boy who shall be referred to as Child H. The Applicant said that he has met Child M many times and said that he speaks to her when he speaks to Ezra, but said that he hardly saw her and did not have a close relationship with her.[61] He then said that Ezra is separated from his partner, and that Child M and Child H live with their mother, and he only had contact with them when they were with Ezra. The Applicant said that he only had contact with one year old Child H by phone and it was fair to say that he did not have a close relationship with him.[62]
[61] Transcript, p 20, lines 23-24.
[62] Ibid, lines 43-44.
He did not have much contact with his brother Sherard who lives in Perth, and had not spoken to him for eight months. He did not know the names or ages of any of Sherard’s three children. He agreed that he had no relationship with those children.[63]
[63] Ibid, lines 46-47; p 21 lines 9-10.
The Applicant said that he has spoken to his aunt Edith who lives in Sydney three times in the past ten months. He said that he has a close relationship with her, but has not physically seen her since 2010[64]. He has no contact with his other aunt and uncle.[65]
[64] Ibid, p 21, lines 15-36.
[65] Ibid, lines 38-39.
The Applicant said that he speaks to his sister Sinead, who lives in Beenleigh just south of Brisbane once every month or so, but last saw her about two years ago. She has a daughter aged 14, who shall be referred to as Child L, and whom he also had not seen for two years. He spoken to her on the phone when he spoke to his sister. He said he had a close relationship with Leanna, and used to take her to the beach with before he was imprisoned[66].
[66] Ibid, lines 40-46; p 23 lines 1-12
He said he does not keep contact with his cousin Floyd but speaks to his cousin Oriana once or twice a month. They both live in Sydney and have never visited him, and he has not physically seen them since 2010, but said that he has a close relationship with them. He ultimately said he did not have regular contact with them[67].
[67] Transcript, p 23, line 17-47.
The Applicant stated that his partner, children and his brother Ezra and Sinead are the main relatives that he is involved with and the rest he only sees intermittently. He has more to do with Ezra than Sinead.[68]
[68] Ibid, p 24, lines 1-10.
All his family moved here before he did, and have been present in Australia throughout his offending history.[69]
[69] Ibid, lines 24-28.
When asked about worked as a removalist[70] which he had listed as being from 2021 to 2022 , the Applicant said that he was working for cash on call, and only worked for about six months. He had done infrequent sporadic on call work two or three times a month for about eight different removalist companies, over the past eight to nine years. He had done a range of unskilled jobs, all on a casual on call basis, and worked once or twice per week for short periods. He did not pay tax on the cash jobs, and did not know if tax was taken out of his other pays[71].
[70] G1, p 131.
[71] Transcript, p 24, lines 30-45; p 25, lines 1-45; p 26, line 1-33.
In terms of community involvement he said he had played sports with children at a church, and helped the elderly with food collection three or four years ago. He did this for a year or two when he could make it there.[72] The Tribunal gives little weight to this as it is inconsistent with his Personal Circumstances Form wherein he simply put a line through the section asking him to identify his community contribution.[73]
[72] Ibid, p 26, line 35-47; p 27, lines 1-6.
[73] G1, p 132.
The Applicant said that he had two children with Ms T, and daughter who shall be referred to as Child K born in 2014 and a son who shall be referred to as Child R born in 2019. They previously visited him while he was in detention. He can call Ms T, or the children whenever he likes. They live with Ms T and she is their primary caregiver. Prior to his most recent imprisonment in April 2022, he had been living with Ms T and the children for a year and a half since he was last in prison. Since then, they have visited him once a week while he has been in detention and visited once or twice while he was incarcerated.
The Applicant said that he thinks that Ms T is a citizen of New Zealand and was unsure if she was a permanent resident of Australia. The children have Australian citizenship. His grandfather was an Australian citizen, and his father has been an Australian citizen since before he was born[74].
[74] Transcript, p 29, lines 31-47; p 30, lines 1-43.
The Applicant said that he fears for his safety if returned to New Zealand because of the gang violence in New Zealand which is getting worse. All the people deported under s. 501 that go back are in gangs now. He had friends and cousins who are in the Black Power gang and the Mongrel Mob. He has nothing to do with them now, and has not spoken to them for years. He said that gangs are everywhere in New Zealand. He said it would not be any different for him than it would be for any other New Zealander, and although it was hard, he had managed to avoid gang involvement in the past[75].
[75] Ibid, lines 45-47; p 30, line 1-45.
The Applicant said that he lived in New Zealand until he was 24. He grew up in Auckland. He worked as a removalist and a labourer. He was homeless on and off the streets, and on governmental financial support there, and could not get it in Australia. He had not applied for a protection visa or any other type of visa.[76]
[76] Ibid, p 31, lines 22-41.
Regarding relatives in New Zealand, the Applicant said he has spoken to his mother three time in the last six months, but was uncertain as to precisely where she lived other than it was in the North Island. He does not have anything to do with his mother’s brother, and was unsure if he had relatives on his father’s side. His grandfather who is nearly 90, lives in South Auckland, and has cancer. He speaks to him about once a month. He does not speak to his grandmother, as she separated from his grandfather years ago. He tries to avoid his cousins[77].
[77] Transcript, p 32, lines 1-44.
The Applicant said that Ms T does not want to move to New Zealand as the children are settled here and the daughter is going to school. She has a number of relatives who live in Brisbane. Her mother passed away and her father lives in New Zealand as do some members of her family[78].
[78] Ibid, p 32, line 46-47; p 33, lines 4-35.
The Applicant said that he has no physical health issues. He thinks he is presently all right mentally. He was referred to remarks made by Magistrate Gardiner[79] that he had been diagnosed with attention deficit disorder (ADD) and bipolar disorder. The Applicant said that he had been diagnosed with either ADD or ADHD when he was in New Zealand. To the best of his knowledge he does not suffer from bipolar disorder and does not see anyone about ADD or ADHD, and is not presently on medication for it. He is on anti-depressant mirtazapine to help him sleep[80].
[79] G1, p 66, lines 32-33.
[80] Transcript, p 33, lines 36-45; p 34, lines 1-35.
He was living with his partner prior to his incarceration.
Witness Ms T
The witness said she was born in, and is a citizen of New Zealand and is a citizen born New Zealand and moved to Australia in or about 1993, and is a permanent resident of Australia. She has family in Australia but is not close to them. Neither is she close to any family in New Zealand. She met the Applicant in 2007 while she was living with her grandmother in New Zealand and commenced a relationship with him at that time. She returned with him to live in Australia in 2009, and has lived here since.[81]
[81] Ibid, p 37, lines 1-46; p 37, lines 1-47.
She did not know if he had committed offences in New Zealand. She knew of his domestic violence and stealing offences in Australia. She said he had been in jail four times. She knew only about his stealing and domestic violence offending as she supported him through all his court cases. He has told her the truth of what had happened, and she knew he had more than a few offences. She learned of his offending after he had offended. His character was different when he was using drugs and offending.
She could not recall his being charged, but there were one or two times she was with him when he was offending. He was addicted to meth, and cigarette smoking. Meth changed his spirit. He had issues with alcohol abuse, but the meth was more of a problem.
Ms T acknowledged that some of his offending involved breach of domestic violence orders made to protect her. She knew of one occasion, when he served four weeks in prison.[82] She said she may have kicked him out at the time.
[82] Transcript, p 41, lines 27-38.
The children may have been present during the domestic violence offending[83]. There were heated arguments over the children but nothing to do with hurting them. She could not recall his wrestling the child Child K from her. She said that they had pushed each other during arguments. There is a current domestic violence order until 2025. She was not sure if it covered the children.
[83] Ibid, p 42, line 1.
Ms T said that if the Applicant is allowed to remain in Australia he will live with her and their children. He has close relationships with his siblings in Australia. He has done mainly labouring work in Australia, but had not worked consistently. He has a job offer from a close friend. She did not want to think about moving back to New Zealand. For safety reasons it is not a good idea. She wants their family back together here in Australia. There are violent gangs in the area where he grew up and that is why she left. He is not a member of a gang. It would be hard for him to find work there. They could live in a different area, that would be the first option, but it would be way harder for them living there. The witness became visibly upset at the prospect of returning to New Zealand, but said “I would follow.”[84] She later added that if he was not allowed to stay in Australia there was not much hope for their family[85]. She would follow him anywhere.[86]
[84] Ibid, p 44, line 22.
[85] Ibid, lines 39-40.
[86] Ibid, p 45, lines 8-9.
They had both grown up with violence, alcohol and drugs. It was a struggle to go to school every day. They are not around drugs or alcohol now, and her main reason in coming to Australia was to get away from those things. She feels he has been rehabilitated. It’s the first time he has been sober for nearly a year and a half and he is stronger mentally and there is a chance for him. Their family is very close and she would follow him anywhere. This time is different from past incarcerations. In the past she has had her doubts about the rehabilitation, but this time she feels certain his rehabilitation has worked. He looks like a totally different person. She can feel that he is different this time.
When referred to her previous statement[87] and the fact that he had reoffended after she made it, she said that this time was different as he had not that previously been incarcerated for long enough to detox. Previously he had only been sober for periods of three or four weeks. This time it was fifteen months. His ability to abstain from reoffending relied on his ability to remain sober.[88]
[87] G1, p 138.
[88] Transcript, p 47, line 28-34.
Ms T said that she needs the Applicant’s emotional, mental and financial support. She doubted his prospects of getting employment in New Zealand, and being able to provide adequate financial support. The family needs his emotional support first and foremost.
During the episodes of family violence, she also had been violent. The children had been exposed to episodes of his angry verbal outbursts, but not to his physical violence towards her.[89] His conduct had never presented a danger towards the children.[90]
[89] Ibid, p 50, lines 23-24.
[90] Ibid, lines 42-43.
The witness was asked by the Tribunal to describe what impact the Applicant’s deportation would have on her and the children and replied:[91]
“Oh my god. We have no – we will have no hope, because I can’t, emotionally, mentally, financially, obviously, I could not cope. Could not cope without his supporting, financial support. And also with our children, because we are so close emotionally, I would say would be – there would be no hope, we’d be going back.”
[91] Ibid, p 51, lines 3-7.

It was over two years since the Applicant had been verbally aggressive towards her, and nearly four years since he had shown actual physical violence towards her[92]. She considered that he had reformed in terms of domestic violence.
[92] Transcript, p 51, lines 14-24.
Ezra McMillan
The witness verified his statements and said he moved to Australia in 2004. He has not visited his brother in detention but had offered to do so. He has had phone contact at least every couple of weeks.
He has never asked about his criminal offending. He understands he has committed petty theft, and did not see him as a violent person, and did not think that he had would harm members of the public.
Closing submissions
In her closing submissions, Ms Lechter-Boldt submitted regarding Primary Consideration 1 that the Applicant’s offending was very serious and included multiple acts of family violence as well as a crime against a police officer.
The Applicant had received multiple terms of imprisonment which was indicative of the seriousness of his offending. He had also reoffended since being formally warned by the Department of an intention to cancel his visa. Ms Lechter-Boldt also submitted that the nature of the Applicant’s criminal offending ought to be viewed as very serious, particularly having regard to the repeated nature and cumulative effect of the Applicant’s offending which had spanned 21 years across New Zealand and Australia.
The Applicant had repeatedly committed crimes involving dishonesty, drugs, and domestic violence, and breached orders put in place in an attempt to curb his criminal offending, and protect his partner, the mother of his children. Regarding the risk to the Australian community should the Applicant commit further offences, Ms Lechter-Boldt submitted that if the Applicant were to reoffend in the same or in a similar manner, that he was likely to cause psychological, physical and financial harm to members of the Australian community. Primary consideration 1 ought to weigh considerably against the Applicant.
Regarding Primary Consideration 2, the Respondent submitted that the Applicant had committed multiple domestic violence offences, and this weighed against revocation.
Regarding Primary Consideration 3, the Respondent submitted that the Applicant has a relationship with his brother Ezra, and Ezra’s two minor children. He had limited interaction with his father, and his father’s partner, and had not spoken to his brother Sherard in eight months and had no relationship with Sherard’s children.
The Applicant did not have much contact with his cousin Floyd, or his cousin Oriana, and had not seen them or his aunt Edith since 2010. He speaks with Ms T and his children daily.
The Applicant arrived in Australia when he was an adult at the age of 24, and committed his first offence less than one month after arriving, and this should limit the weight afforded to this consideration.
The Applicant had undertaken limited work as a removalist and a labourer on a casual or on-call basis during his time in Australia, and it was unclear whether the Applicant had ever paid taxes. Many of his jobs were cash-in-hand, and for the removalist job between 2021 and 2022, the Applicant had said he was unsure whether any tax was paid in respect of those earnings. He had played sport on a few occasions, and that he had also been part of a food drive. On balance, the Respondent contended that the Tribunal should afford limited weight to this consideration.
In relation to Primary Consideration 4 and the best interests of minor children, the Applicant had two minor children residing in Australia, Child K, eight years of age, and Child R, four years of age. The Respondent contended that limited weight should be afforded to this consideration, because Child K, was present during the Applicant’s offending, when he breached a domestic violence order. There were also periods of time in which he was not living with his partner and the children when he was homeless, and he had been absent from the lives of his minor children since his incarceration and detention in April 2022. Ms T was currently fulfilling the role of their primary care giver.
The Applicant had not claimed to have a close relationship with any of Ezra’s children.
Regarding the Applicant’s claims that if returned to New Zealand he would be at risk of harm by members of the Mongrel Mob and Black Power gangs, Ms Lechter-Boldt submitted that the Tribunal should defer an assessment of whether the Applicant’s claims engage Australia’s non-refoulement obligations, and noted that it remained open to the Applicant to apply for a Protection visa.
In submitting that that minimal weight should be afforded to this claim, Ms Lechter-Boldt said that there was no independent evidence before the Tribunal to substantiate the Applicant’s claims to fear harm, and the Applicant had conceded that the risk of harm would not be different to that of other New Zealand citizens. Ms T had agreed in cross-examination that the Applicant could live in a different area in New Zealand to the particular area of concern that was raised. The Applicant’s evidence was that he no longer had a relationship with his gang member cousins, nor any other members of those gangs.
Regarding impediments the Applicant might face if returned to New Zealand, the Respondent accepted that the Applicant may face emotional hardship if returned to New Zealand. With respect to potential impediments and tangible hardships, the Tribunal could not be satisfied that the Applicant has overcome those substance abuse issues, but that this did not constitute an insurmountable impediment to the Applicant’s return to New Zealand.
The Applicant was unlikely to experience any cultural or language barriers given that he was born and raised in New Zealand, and there was no evidence to indicate that he would not have access to the same services that are available to all citizens of New Zealand.
There was no evidence to suggest that the Applicant had any other significant health issues that would constitute an impediment to his return.
The Applicant’s mother and grandparents are in New Zealand, and his partner Ms T had indicated that she and the Applicant’s minor children would likely return to New Zealand if the decision under review is affirmed.
Regarding the Applicant’s claims that he would suffer harm from gang violence if returned to New Zealand, there was no independent evidence to substantiate these claims, and the Applicant acknowledged the risk would be no different than that facing other New Zealand citizens. Accordingly the Tribunal should afford limited weight in favour of the Applicant in respect of this consideration.
Regarding impact on victims, Ms T had given evidence that she would be negatively impacted by a decision to affirm the decision under review. Any weight to be afforded to this consideration in favour of the Applicant was also outweighed by primary considerations 1, 2, and 5.
In his closing submissions, the Applicant apologised for his conduct and said that he was very sorry for everything that he had done. If released into the community, his past conduct would not be repeated. He wanted to remain in Australia with his children and partner. He had done a lot of courses, and a lot to rehabilitate himself. He was a changed person and could be a law-abiding citizen.
The Applicant accepted that Ms T is a member of his family for the purposes of that definition in the Direction.
CONSIDERATION
The Tribunal now turns to the specific considerations of Direction 99. In doing so, the Tribunal does not propose to restate the extensive evidence set out above, and which forms the basis for its reasons.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction compels decision-makers to 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. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Application of Factors in Paragraph 8.1.1(1) of the Direction
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that 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 possession 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, , 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).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of crimes or conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
This Applicant has a very long criminal history which began in New Zealand at the age of 15. He accumulated 23 sentencing appearances in Courts in New Zealand – one of which led to a sentence of one month’s imprisonment - prior to turning 23 years of age. He has had a further 20 sentencing appearances since coming to Australia, and been ordered to serve terms of imprisonment in eight of the 14 years he has lived in Australia.
His record of offending in Australia comprises some eight pages, involving many dishonesty offences, disqualified driving offences, low level drug offences, and multiple breaches of DVOs. The Applicant also has a long record of not complying with probation, including failure to report on 13 occasions,[93] as well as offending whilst on probation or parole.[94] Although a number of his offences are – considered in isolation from the rest of his offending – relatively minor, the sheer volume, range, frequency and duration of his offending is viewed very seriously.
[93] G1, p 53, lines 17-19.
[94] Ibid, lines 32-35.
Having regard to para 8.1.1(1)(a)(iii) of the Direction the Applicant’s DVO offending is also regarded as very serious. As was observed by Acting Magistrate Barrett in December 2017, when the Applicant pleaded guilty and was convicted of two counts of breaches of DVOs (committed during the operational period of a suspended sentence) as well as six other charges[95]:
“Your pleas here today contravene a sentence that was imposed at the Cleveland Court where you were sentenced to one month’s imprisonment for a contravention of a domestic violence order on the 17th 35 of July 2017 for which you had an operational period of six months that was subsequently extended.
…
Domestic violence is an insidious, prevalent and serious problem in the community. Breaches of orders come before the court routinely and they’re far too prevalent. I must impose a penalty upon you that’s going to act as a deterrent to you both personally, and generally to other members of the community that are minded to contravene domestic violence orders.”
[95] G1, pp 65-68.
The Applicant has breached DVO orders on no less than six occasions. Even one isolated breach of a DVO is an inherently serious matter. The inherent seriousness with which such multiple breaches must be viewed increases with each episode, as each such breach represents a missed opportunity to reform and respect the law, and an ongoing increasing contempt for the law, the courts which administer it, and an enduring disregard for the rights of those who are entitled to feel protected by court orders. The commission of multiple such offences during the operational period of a suspended sentence imposed for a similar breach heavily underscores the degree of contempt shown for the courts, and the rights of the protected.
The Applicant also has a very poor traffic history. As was observed by Senior Member Tavoularis[96]
This Applicant (as is the case with virtually all drivers) knew or ought reasonably to have known the potentially serious adverse consequences of unlicensed driving, or driving an unregistered/uninsured vehicle, for other road-users. Whilst no expertise in the motor insurance industry, it is common knowledge that there are insurance implications for unlicensed drivers and/or drivers of unregistered/uninsured vehicles who become involved in motor vehicle accidents. Again, for the Applicant to ignore this obvious and serious consequence of his driving conduct demonstrates an incapacity to distinguish right from wrong and to otherwise conform to the insurance/registration regime of the Australian community as it relates to the ownership and operation of a motor vehicle. The Applicant’s driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users “go to the essential safety of the community”. Other parts of his criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle – be it drinking and driving, driving without a licence, or driving an unregistered vehicle – can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.
[96] Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561, [44] - [45].
Consideration of paragraph 8.1.1(1)(a) of the Direction requires that the Applicant’s criminal offending must be viewed very seriously.
An overall consideration of paragraph 8.1.1(1)(a) of the Direction weighs very heavily against revocation.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that 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 possession 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, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
Among the more serious of the Applicant’s offences is his conviction for an offence of Assault or obstruct a police officer on 25 October 2010[97], and having regard to para 8.1.1(1)(b)(ii) of the Direction, this offending must be regarded as serious.
[97] G1, p 271.
A consideration of paragraph 8.1.1(1)(b)(ii) of the Direction weighs heavily against revocation.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to subparagraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.
This Applicant has received the full spectrum of sentencing options. It is over 18 years since he received his first custodial sentence.[98] Since that time, he has been sentenced to custodial terms, or had suspended sentences for custodial terms increased, on each of the following dates[99]:
(i)15 July 2014[100];
(ii)18 December 2017[101];
(iii)28 November 2018[102];
(iv)16 August 2019[103];
(v)29 January 2021[104];
(vi)16 December 2021[105];
(vii)28 June 2022[106].
[98] Ibid, p 106.
[99] On some these dates, the Applicant was sentenced for offences captured by the exclusion contained in sub-paragraph (c) of paragraph 8.1.1(1). In those instances the Tribunal has disregarded the sentences imposed for the purposes of this consideration, and only considered the offending not captured by the exclusion.
[100] G1, pp 34-35.
[101] Ibid, p 33.
[102] Ibid.
[103] Ibid, pp 31-32.
[104] Ibid, pp 30-31.
[105] G1, p 30.
[106] Ibid.

Successive custodial sentences have not deterred the Applicant from further offending.
An overall consideration of subparagraph (c) of paragraph 8.1.1(1) of the Direction weighs heavily against revocation.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
Material before the Tribunal[107] shows that the Applicant has been a very frequent offender over a period of years. The increasing seriousness of his offending can be gleaned from the fact that he has not been deterred by frequent court appearances, and repeated episodes of incarceration.
[107] Ibid, pp 29-36.
A consideration of sub-paragraph (d) of paragraph 8.1.1(1) weighs heavily against revocation.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
This Applicant has committed scores of offences. Many people have been victims of his thefts and dishonesty, and suffered financially. His partner has been subjected to physical violence, and his children have witnessed some of his family violence conduct. He has driven unlawfully on numerous occasions. He has shown a cavalier attitude towards the law, repeatedly demonstrated contempt for court orders, and failed to pay between $20,000 and $30,000 in fines. In addition, the Applicant has cost the Australian taxpayer an inestimable amount of money in terms of police and court resources, as well as the cost of accommodating him during his numerous terms of imprisonment.
A consideration of sub-paragraph (e) of paragraph 8.1.1(1) of the Direction weighs very heavily against revocation.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
There is no clear evidence so as to enliven a consideration of this sub-paragraph.
In these circumstances, a consideration of sub-paragraph (f) of paragraph 8.1.1(1) is given neutral weight.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned or otherwise informed about the consequences of further offending in terms of the non-citizen’s migration status.
The Applicant was given a Notice of intention to consider cancellation under s501(2) of the Migration Act 1958 on 20 December 2019[108], and has committed many offences by way of numerous repeated stealing offences, entering premises and committing an indictable offence, fare evasion, breach of probation orders, possession of dangerous drugs, attempted stealing, possession of tainted property, receiving tainted property and breach of bail condition since that time.[109] That the Applicant should continue offending in the face of a warning from the Department shows a reckless indifference to the visa consequences of his conduct, reflective of his overall contempt for the law.
[108] G1, p 261.
[109] Ibid, pp 30-31.
In these circumstances, a consideration of sub-paragraph (g) of paragraph 8.1.1(1) weighs very heavily against revocation.
Sub-paragraph (h) arises for consideration where an offence or conduct was committed in another country.
Evidence before the Tribunal establishes that the Applicant has committed many offences in New Zealand.[110]
[110] G1, pp 106-107.
In these circumstances, a consideration of sub-paragraph (h) of paragraph 8.1.1(1) weighs heavily against revocation.
Having regard to the totality of the evidence to which the abovementioned relevant sub‑paragraphs (a), (b), (c), (d) (e), (g) and (h) of paragraph 8.1.1(1) of the Direction are relevant, the Tribunal is of the view that the nature and seriousness of the Applicant’s offending conduct can be readily characterised as very serious.
8.1.2 The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker 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.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non- citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Paragraph 8.1.2(2)(a) The nature of the harm
If the Applicant is permitted to return to the Australian community, the nature of the harm that might be caused should he commit further offences or engage in other serious conduct is, based on his past conduct, likely to be substantial physical, financial and psychological harm. Any further offending from this Applicant is unlikely to be an isolated instance, and this would be likely to have a flow on effect to police workload and the courts. More domestic violence offences could result in physical, psychological and emotional injury to his victim. Court orders are likely to be ignored, along with appearance obligations.
The Tribunal views the nature of the harm that might be caused by the Applicant’s further criminal or other serious conduct as serious.
Paragraph 8.1.2(2)(b) The likelihood of the non-citizen engaging in further criminal or other serious conduct
In considering the likelihood of the Applicant engaging in further criminal or other serious conduct, the Tribunal has had regard for all of the material he has put forward.
The various sentencing remarks before the Tribunal raise no expectation that the Applicant is likely to cease offending. Over the years, the Applicant has given assurances to Magistrates of his determination to rehabilitate. He has said the right things, but when push comes to shove, he has not delivered.
On 15 July 2014, the Applicant appeared on a range of charges including disqualified driving before Magistrate Kennedy in the Cleveland Magistrates Court, who had previously disqualified him from driving and specifically warned him not to drive whilst disqualified a mere 8 weeks before the incident for which he was then presently charged. He was asked by the Magistrate, “Do you not learn from your past mistakes” and replied, “I do now.”[111]
[111] G1, pp 73-77.
Extracts of the transcript include:
Bench: Now it’s said your anger is out of control. You and your partner fight constantly. But it is said you stopped taking drugs six weeks ago.
DEFENDANT: Yes.
…
Bench: You’d sunk so low that on the 19th of February 2014, when you asked for a lift, two generous people gave you a lift; and 15 then you stole their money and their mobile phone. They give you a lift. You sit in their car and pinch their money and their mobile phone. You – and you kept using drugs. You were caught on the 15th of March 2014 for failing to dispose of a needle and syringe. But you kept on using drugs. On the 10th of April 2014, you were charged with failing to dispose of a needle and syringe and possess dangerous drugs. But you kept on using drugs. On the 31st of May 2014, you were charged with disqualified driving. So I’ll ask the question I asked right back before. When will you ever learn?
DEFENDANT: Now. I’ve got a baby due in two months. I’ve got work offered to me from my next-door neighbour.
…
Bench: I do not believe you’ve given up drugs for good. I believe that as soon as the next small problem arises in your life, you’ll be back on them. I’d be more - - -
DEFENDANT: No. That won’t happen. I know that’s not going to happen.
BENCH: I’d be more than pleased for you to prove me wrong. Always a delight - - -
DEFENDANT: I – I will prove you wrong
The sentencing remarks[112] of Magistrate Vasta on 16 August 2019 disclose that the Applicant has involved his children in some of his offending, and indicate that the Magistrate thought the Applicant was a kleptomaniac, although this appears to be her Honour’s personal assessment rather than one based on expert evidence:
BENCH: Yes. And what concerns me is that you are now also involving your children, in hiding things in prams having children with you. You are 34. You have gone to jail for disqualified driving and other offences. You have spent 33 days in jail in 2016. You did some jail time in 2014. You did 76 days in jail in 2017, and you have been on parole. You have been on supervised orders before, and you seem to have told yourself, “I cannot help it.” Now, I have dealt with kleptomaniacs in the past. Kleptomaniacs steal one shoe. They steal a baby singlet when they do not have a baby. They steal cat food when they do not have a cat. So somehow, in your brain, you have said to yourself, “I cannot help it.” And that is absolute bullshit. You can help it, and if you find it hard to resist the temptation, you need to not go into shops. You need to just stay right away from shops altogether. And I am sorry that you have got an alcohol problem. Plenty of people have alcohol problems. They just have to buy it themselves, and if you cannot afford it, don’t go the Jim Beam and the – what is it – Dom Perignon? Champagne was a good one. You go for the cheap stuff and you buy it yourself. You pay for it with your own money. So you really do need to see a psychologist or psychiatrist about this story that you have said of “I cannot help it.”
DEFENDANT: I can.
[112] G1, pp 59-64.
The Applicant has committed scores of offences since each of these sentencing occasions.
The Applicant acknowledges that his prospects of reoffending very much hinged on his capacity to abstain from drugs and alcohol.To his credit, the Applicant has completed an impressive number of courses[113] aimed at his rehabilitation including the Triple P Online Positive Parenting Program,[114] a Healthy Relationships course,[115] and an Anger Management 101 course,[116] the NewAccess program[117] and is awaiting a placement in a Responsible Men course.[118]
[113] G1, pp 149-156.
[114] A11.
[115] A12.
[116] A13.
[117] A9.
[118] A14
The Tribunal does not have the benefit of a dedicated expert report as to the Applicant’s prospects of reoffending, although the Tribunal does have before it compilations of medical notes[119] compiled over recent months by a psychologist and other health care professionals pertaining to the Applicant. Extracts of the first of these notes include:
[119] A7; A10.
“Jerome discussed his concern for his upcoming AAT. Jerome reported that he is 15 months clean and sober and this is the longest time for that to happen. Jerome reports that now that he has some time for sobriety under his belt, he feels like he has reassessed his goals and values for the future. Jerome presented as highly motivated to establish sustained change in his future.
…
He reports good sleep, exercise and eating regimen.
● He reports that living in his current environment has allowed him to develop patience and tolerance for others.
● He reports that he is more aware of himself and the choices he is making.
● He reports that he has completed 10 certificate courses whilst at BITA.
● He also reports having incorporated a range of enjoyable activities including art into his daily regimen.
Jerome spoke about his plans for his future hope for reuniting with his wife and children and staying clean and sober.
….
He feels the best he has felt for fifteen years, is able to think clearly and is focused on having a better future for himself and his family.
…
He got kicked out of home when he was 13 years old, the local gang tried to recruit him, he didn't want that so lived on the streets until he was 15 years old when he was placed in Foster care
Drug and Alcohol History Alcohol (PDOC):
First tried 8,would drink in the weekends with his friends then from 16 years old the drinking became daily, drinking up to 22SD. Cannabis: First tried 12, would smoke cannabis from his fathers supply, became daily when older, 1 gram a day. LSD: tried once when 15 years old, had a bad reaction so never again Benzodiazepine: First tried 16, occasional use, got form his Uncles supply, stopped when he was 18 years old Tobacco: First tried 15, daily 25 cigarettes a week.”
Further extracts include:
“Jerome reports wanting to make a fresh start to make a new and better life for himself. Jerome presents as remaining motivated to ensure his commitment to a healthier, happier lifestyle.
Jerome appears motivated to turn over a new page in his life. He reports that his home is free of any alcohol, cigarettes and drugs and that his partner has been very clear that none of that stuff is allowed in the home and that Jerome is only allowed to stay with his family if he remains clean and sober.
Jerome reports that he has been clean and sober and enjoys the feeling of being clear headed, present and aware. He reports that he excited about the opportunity to work for a past member who will keep him accountable. His potential employer has said that he will have to do urine tests to ensure his employment and there are consequences if he drinks or uses.
Jerome reports that he has completed a six week drug and alcohol courses with LivesLivedWell but is awaiting certification. Jerome reports having completed an anger management course that has taught him to react in different ways ….
Jerome reports that he recognizes the safety of keeping a routine and maintaining his fitness and health. He also reports that he is keen to keep his support structures close by and is keen on becoming a worthwhile, contributing member of Australian It society.”
Neither of these sets of notes offers a professional assessment of the extent of rehabilitation achieved by the Applicant, or his likelihood of successful engagement with further rehabilitation.
Notwithstanding his expressed feelings of well-being, the Applicant appears to accept that he is not yet fully rehabilitated, as he proposes further engagement with QuIHN and Men & Co should he be released back into the community. In an email to the Tribunal[120] dated 15 July 2023 the Applicant, expressed his apologies for the consequences of his actions, and set out a three page statement of his plan to stay sober. He committed to re-engaging with QuIHN, and other reputable addiction and family violence counsellors and therapists who specialize in domestic violence and substance abuse. He set out his plans for a healthy lifestyle, and the avoidance of high risk circumstances and people. The email said in part:
It has been 14 months to this date that I have been clean and sober, and I mentally, physically and spiritually feel good and am able to think clearly as this is the longest amount of time I have been sober for in the last 14 years, and I do understand how much of a challenge it will be, once I am back in the community, with all of the temptations, but I 100% know that with all of my support networks, family, friends, and employment opportunities, I feel 100% fully clean and sober again and I can honestly say it’s the first time I've felt this way since I pretty much moved here from NZ and was introduced to meth, and i do want to, and will lead a substance, and crime free life, support my family and be a law abiding citizen of the Australian community
[120] A5.
The Tribunal accepts that the Applicant has been sober from drugs and alcohol for what is, at the time of writing these reasons, a period of some 15 months, and in consequence would seem to be starting any future rehabilitation from a higher base than in the past. Whilst this achievement is encouraging, the Tribunal notes that it has been achieved in a controlled environment, and what this period of sobriety has achieved is yet to be tested when the Applicant is at large in the community and alcohol and drugs are readily available.
The Tribunal nevertheless acknowledges that the Applicant at this stage certainly plans to be taking appropriate steps should he be released into the community. In particular, the Tribunal is referring to a letter[121] dated 23 June 2023 signed by Rebecca Kirkwood of QuIHN, a non-government organisation that provides case management, counselling and group work for people wanting to cease, reduce or moderate their alcohol and/or illicit drug use and manage any co-occurring mental health issues that may be present.  Ms Kirkwood said that the Applicant had engaged with them since 2019, and had attended QuIHN individual and group support sessions for lengthy episodes of care. The letter stated in part:
“Mr. McMillan continues to demonstrate appropriate help-seeking in challenging periods of his life and when required. In March 2023, he contacted QuIHN to re-engage with support around relapse prevention and counselling. Since then, he has attended seven weekly counselling sessions by phone. His primary focus is around building strategies to manage his anxiety associated with being incarcerated whilst waiting for the outcome of his application with immigration. Mr. McMillan consistently presents with good engagement in the counselling process and completes all homework activities. He shows an eagerness to learn additional coping skills which is evidenced by his demonstration of depth of understanding of therapeutic content. Mr. McMillan has also requested to continue his counselling and attend group sessions at QuIHN upon his release and he is most welcome to do so.”
[121] A3; A4.
However, the Tribunal is concerned that in the past, left to his own devices, the Applicant has been excluded from such a course for poor attendance, and when he re-engaged, he was again excluded from Men & Co for poor attendance, and has now contacted this same provider again.[122]
[122] G1, p 163; Transcript, p 15 line 16-40.
The Applicant clearly has the support of his long term partner and DVO victim Ms T, who wrote an email[123] dated 25 July 2023 the substance of which is set out:
I am writing to earnestly request for reconsideration regarding deportation of Jerome McMillan from Australia. I wholeheartedly believe that he has made significant positive changes to his life, both mentally and physically, he deserves a opportunity to remain with his family in Australia. He acknowledges and reflects on past hurt and mistakes he has made. It is equally important to recognize the transformation he has undergone in the last 15 months .This period marks the longest duration of sobriety he has achieved in his life, and this fills me with hope and gratitude to witness his dedication to staying sober and his commitment to both of his ongoing counselling and hard work together also as a couple and for our family's longevity. Jerome's positive transformation has a profound impact on our future together as a family. He has shown determination and a genuine desire to improve himself and to be a responsible caring partner and father of our beautiful children K 8 and R 4. I understand and respect the importance of maintaining strong immigration policies to ensure the safety and well-being of all individuals in Australia. However I kindly request that you consider the progress of Jerome McMillan has made and his support system that surrounds him in Australia. These factors contribute significantly to Jerome McMillan and his ability to contribute positively to our society. Thank you for taking the time to review my genuine letter and for giving careful consideration to our appeal. Your compassionate understanding would mean the world to us and greatly impact the well being and future of our family.
[123] A8.

The Tribunal notes that in the past, the emotional financial, and support needs of Ms T, and the support Ms T has given to the Applicant, and the prospect of separation from her and their children has not been a deterrent to prevent him from offending, even since he received the Departmental warning in 2019. The Tribunal also notes that in the past, when the Applicant’s behaviour has been effected by his drug use, Ms T has had him removed from the premises. The Tribunal is concerned that should the Applicant be permitted to remain in Australia, in the event that he resumed drug use, he may once again finish up on the streets, and revert to criminal offending.
The Tribunal accepts that the Applicant has the support of some family members, notably his sister Sinead McMillan and his brother Ezra. Sinead said[124] she was aware of the Applicant’s struggles with addiction and offered her 100% support to him so that he might re-join his family. His brother Ezra[125] who, in an unsigned letter dated 24 July 2023, described the Applicant’s troubled childhood and growing up on the streets as a youth. Ezra said that he had been in constant contact with his brother over the past six months and had witnessed “a remarkable positive transformation and a complete shift in his personality.” Ezra committed to supporting his brother to find work and engage with society. However, the Tribunal notes that this family support was previously present, and was not enough to keep the Applicant sober and prevent him from offending. Further, the Applicant does not seem to have much to do with Sinead, whom he has not seen in two years. His contact with Ezra has been limited by Ezra’s remote work.
[124] A2.
[125] A6
The Tribunal notes that the Applicant also has an offer of employment from Mr Adrian Toala[126] but notes that in the past, having employment to go to did not prevent the Applicant from offending.[127] In any event, the Applicant has no clear history of long term full time employment.
[126] A1
[127] G1, p 53, lines 43-45.
The Applicant has a long term drug addiction, and such addictions are notoriously difficult to break, as is demonstrated by his past failed attempts, never lasting longer than a month. The duration of the Applicant’s addiction, his past failures at breaking it, and uncertainty as to his future attendance at any rehabilitation or counselling upon release into the community leave the Tribunal with strong concerns that he will relapse, and in consequence, re-offend.
Having regard to the totality of the evidence the Tribunal considers that the Applicant’s risk of reoffending is at least moderate.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs very heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
1The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
2This consideration is relevant in circumstances where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
3In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
(a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i)     the extent to which the person accepts responsibility for their family violence related conduct;
(ii)    the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)   efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
It is not disputed that the Applicant’s long term partner Ms T, is the mother of his two children, and, as was agreed by the Applicant, a member of the Applicant’s family for the purposes of the Direction as she has had an intimate personal relationship with him.
Consideration of primary consideration 8.2 is enlivened by the fact that the Applicant has recorded six convictions for breaches of domestic violence orders in respect of Ms T in the circumstances discussed below.
The first such episode was on 17 May 2015 when his aggressive conduct and intentional damage to property caused Ms T to become fearful and to call police[128]. The Tribunal finds that such conduct caused Ms T to become fearful, and therefore constituted family violence in terms of the definition provided in the Direction.
[128] G1, p 79; p 34, Conviction recorded 18/05/2015 .
The second such episode was on 26 March 2016[129] when the Applicant called Ms T a slut and a whore and accused her of wanting to “slut around”, slapped her face, ripped her cell phone from her hand, and then removed their daughter, saying that the child was not safe with Ms T. In circumstances where the Applicant was calling Ms T a “crack smoking whore” and a “crack whore”, this would no doubt have caused Ms T to fear that the child was being removed from her care against her will, and the Tribunal finds this is conduct which constitutes family violence in terms of the definition provided in the Direction. The Tribunal further finds that the Applicant’s slapping of Ms T’s face and grabbing her phone and ripping it from her grasp each involved assaults and therefore constituted family violence in terms of the definition provided in the Direction.
[129] Ibid, p 83; p 34, Conviction recorded 28/04/2016, 6 months’ imprisonment.
The third episode was on 4 December 2016[130] when the Applicant punched Ms T in the nose causing it to bleed. This was plainly an assault and clearly family violence within the definition provided in the Direction.
[130] G1, p 93; p 33, Conviction recorded 18/07/2017, 1 months’ imprisonment.
The fourth such episode was on 10 April 2017[131] when the Applicant attended at Ms T’s residence at 4:20 am when the Applicant grabbed their daughter K and walked away from the premises, and Ms Thad to wrestle their daughter back from him, before departing in fear. The Tribunal finds that this was conduct which caused Ms T to be fearful, and is clearly family violence within the definition provided in the Direction.
[131] Ibid, p 87; p 33, Conviction recorded 18/12/2017, 6 months’ imprisonment concurrent.
The fifth such episode was on 24 September 2017[132] when the Applicant was verbally aggressive, throwing items around the lounge room and child’s bedroom and pouring water on the Foxtel unit causing her to call the police. The Tribunal infers from the fact that Ms T called the police that the Applicant’s conduct caused her to be fearful, and the Tribunal therefore finds that this conduct was family violence within the definition provided in the Direction.
[132] Ibid, p 97; p 33, Conviction recorded 18/12/2017, 6 months’ imprisonment concurrent.
The sixth such episode was on 10 September 2018[133] when the Applicant was extremely verbally aggressive towards Ms T causing her to be fearful, and he also caused a large hole in a kitchen cupboard door. The Tribunal finds that this conduct was family violence within the definition provided in the Direction.
[133] Ibid, p 103; p 31, Conviction recorded 16/08/2019, 6 months’ imprisonment concurrent.
For the purposes of paragraph 8.2(3)(a) of the Direction, the Tribunal finds that the Applicant’s family violence conduct of 6 episodes in a period of some forty months is very frequent. The Tribunal further finds that the Applicant’s repeated acts of family violence continued undeterred even after the imposition of sentences of imprisonment, and in the circumstances such ongoing brazen contempt for court orders and the rights of those intended to be protected must be viewed as increasingly serious with the commission of successive offences.
Consideration of paragraph 8.2(3)(a) weighs very heavily against revocation.
For the purposes of paragraph 8.2(3)(b) of the Direction the cumulative effect of the Applicant’s repeated acts of family violence demonstrates an ongoing contempt for court orders, and the rights of those protected by them.
Consideration of paragraph 8.2(3)(b) weighs very heavily against revocation.
For the purposes of paragraph 8.2(3) (c) of the Direction the Tribunal notes that it is now some years since the last known act of physical family violence. Moreover, the Applicant appears to accept responsibility for, and the impact of his actions, and taken positive steps to address his family violence conduct.
Consideration of paragraph 8.2(3)(c) weighs in favour of revocation.
For the purposes of paragraph 8.2(3) (d) of the Direction, the Tribunal finds that the Applicant has not committed further acts of family violence since being warned about his visa status.
Consideration of paragraph 8.2(3)(d) is given neutral weight.
Even allowing for the factors considered in relation to paragraph 8.2(3)(c), they are easily outweighed by the factors in 8.2(3)(a) and 8.2(3)(b) of the Direction.
Conclusion: Primary Consideration 2
Primary Consideration 2 weighs very heavily against revocation.
PRIMARY CONSIDERATION 3 THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA.
Paragraph 8.3(1) of the Direction requires consideration of 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.
Paragraph 8.3(2) of the Direction requires consideration of a non-citizen’s ties to Australia. More weight should be given to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(3) requires consideration of the non-citizen’s strength duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(4) requires consideration of the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision makers must have regard to:
(a)The length of time the non-citizen has resided in the Australian community, noting that:
(i)     Considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of then their offending commenced and the level of that offending; and
(ii)    more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii)   less weight should be given to the length of time spent in the Australian community where the non-resident was not ordinarily in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
Consideration of paragraph 8.3(1) Impact on Immediate Family
Foremost among the Applicant’s immediate family are his partner Ms T who is a permanent resident, and their two children who are Australian citizens. Ms T has lived in Australia for about thirty years, and Child K has started her schooling here. The deportation of the Applicant will place Ms T between a rock and a very hard place, because she could hardly bear even thinking or talking about the prospect of her returning to New Zealand with their children.
Ms T gave passionate and persuasive evidence of the adverse impact the Applicant’s deportation will have on her and their children. Ms T was emphatic that she did not want the Applicant deported, as she will not cope without him. She has clearly forgiven him for his acts of family violence towards her and appears to regard them as water under the bridge. She regards the Applicant and their children as one family unit, and wants him to live with her and the children as a family unit here in Australia. Ms T’s commitment to maintaining the family unit will create a dilemma for her in the event that he is deported. She will either face the prospect of ending a fifteen year relationship, and raising their children as a single parent without the physical, mental, and financial support of the Applicant, or face the many difficulties presented by uprooting her and her children’s stable lifestyle in Australia to return to a country she clearly does not want to return to because of fears of gang violence and her lack of ties there. She also fears for the Applicant’s well-being if he is returned.
In cases of this nature, this Tribunal has heard sufficient expert evidence to know that both Child K and Child R may well develop psychological problems in later life associated with an enforced separation from their father. In the event that Ms T decides to follow the Applicant back to New Zealand, Child K and Child R will both be uprooted from the only existence they have ever known here in Australia, and will most likely lose contact with nearly all of those to whom they feel bonded.
Ms T, Child K, and Child R, are likely to be most heavily impacted by a decision not to revoke cancellation.
There is scant evidence for the Tribunal to determine what impact if any the Applicant’s deportation on some of the members of his family. The Applicant said in evidence that he did not have much family, just a couple of brothers and a sister that he speaks to. After saying that he did not really speak to his father, and did not have any contact with the rest,[134] the Applicant later said that he spoke to his father four or five times a year, and sometimes visited him on the Gold Coast with his children. His brother Ezra also lives on the Gold Coast, but works on a fly in fly out basis. Ezra is the father of two children by different mothers. Child M is a girl aged about 9, who lives with her mother. The Child H is a younger boy aged one year old. Child H lives with Ezra and his new partner. The Applicant does not claim to have a close relationship with M, and has not met Child H, who was born while he was incarcerated.[135]
[134] Transcript, p 13, lines 32-37.
[135] Ibid, p 20, lines 23-24.
The Applicant did not claim to have any contact with his brother Sharad, who lives “somewhere in Perth” and had not spoken to him in eight months, and did not know the names or ages of any of his three children. He had not seen his Sydney based relatives since 2010.
The Applicant only has intermittent contact with family members other than his partner, his biological children, his brother Ezra, and his sister Sinead (whom he speaks to monthly but had not seen in two years).[136] His involvement with Sinead’s 14 year old daughter Child L, who is limited to phone contact when he speaks to Sinead.
[136] Transcript, p 21, lines 45-46.
The Applicant’s father has not provided a recent statement to the Tribunal, however the Tribunal accepts that the sadness he expressed in his earlier letter[137] is an enduring one, and is likely to be exacerbated should his son be deported, even though they have little to do with each other. In the event that Ms T elects to follow the Applicant back to New Zealand, Mr McMillan senior will face a substantial obstacle to maintaining meaningful contact with his grandchildren other than via phone or video link.
[137] G1, p 141.
There is not sufficient evidence before the Tribunal to allow it to form a view as to any impact which the Applicant’s deportation is likely to have on his brother Sharad and his children.
Beyond Ms T, Child K, and Child R, the Applicant’s closest family member appears to be his brother Ezra, and the Tribunal accepts that Ezra has a good relationship with the Applicant and the Applicant’s children, and will be adversely impacted by the Applicant’s deportation. Ezra will also face a substantial challenge to maintaining meaningful contact with his brother, niece and nephew should Ms T elect to follow the Applicant back to New Zealand.
The Tribunal also accepts that Sinead and Child L will also be similarly adversely impacted by the Applicant’s deportation, but probably to a lesser extent than Ezra.
Conclusion Paragraph 8.3(1)
Having regard to paragraph 8.3(1) of the Direction, the Tribunal finds that members of the Applicant’s family (particularly Ms T, Child K, and Child R) who are citizens, permanent residents, or have a right to remain in Australia indefinitely are going to be adversely impacted to varying degrees by a decision to deport him, and this weighs very heavily in favour of revocation.
Conclusion Paragraph 8.3(2) Ties To Children
Having regard to paragraph 8.3(2) of the Direction the Tribunal acknowledges that the Applicant’s children may in consequence of the Applicant’s deportation either be deprived of their opportunity to grow up with their father, or be uprooted from a settled existence in Australia and deprived of the opportunity to grown up in their country of birth and citizenship, and forced to accompany their mother to a community they do not know in a country they do not know. The Applicant’s ties to his children are given more weight, and the Tribunal finds that this weighs very heavily in favour of revocation.
Conclusion Paragraph 8.3(3) Family Or Social Links
Having regard to paragraph 8.3(3) of the Direction the Tribunal finds that beyond the members his family discussed above, the Applicant appears to have little in the way of social links with persons who are Australian citizens, permanent residents, or have a right to remain in Australia. However, in consequence of the strength nature and duration of his family links with citizens, permanent residents, or have a right to remain in Australia indefinitely (particularly Ms T, Child K, and Child R) weighs very heavily in favour of revocation.
Conclusion Paragraph 8.3(4)
Paragraph 8.3(4)(a)(i) of the Direction is not presently relevant.
Any weight that might otherwise be given to the Applicant’s church and community work in terms of Paragraph 8.3(4)(a)(ii) of the Direction is more than offset by the fact that the Applicant does not appear to have had a full time job or paid any income tax at all during the 14 years he has lived in Australia.
Paragraph 8.3(4)(a)(ii) of the Direction is given neutral weight.
Paragraph 8.3(4)(a)(iii) of the Direction greatly lessens the weight which might otherwise be attributed overall to this primary consideration. The Applicant was not ordinarily resident in Australia during his formative years, and began offending within weeks of his arrival in Australia.
Conclusion Primary Consideration 3
In making its assessment of the strength nature and duration of the Applicant’s ties to Australia, in accordance with paragraph 8.3(2) of the Direction, the Tribunal has given very strong weight to the impact that the Applicant’s removal from Australia would have on his two children. Likewise the Tribunal considers that his partner Ms T will be very heavily impacted by a decision not to revoke the cancellation of his visa. Other family members are likely to be impacted as discussed above, but not to the same extent as Ms T, Child K, and Child R.

The Tribunal considers that Primary Consideration 3 weighs very heavily in favour of the revocation of the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under s 501, or non-revocation under s 501CA, is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of the Direction provides a list of factors to be considered in determining the best interests of the minor children. Those factors relevantly comprise for present purposes:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Tribunal has set out above the circumstances of the Applicant’s children K and R. Consideration 8.4 arises because both children will be under 18 years of age at the time the decision is made.
Having regard to paragraph 8.4(3), their interests do not differ, and are considered jointly.
Consideration of para 8.4(4)(a)
The Applicant has a life-long parental relationship to each of Children K and R, however less weight is given to this consideration having regard to the fact that there have been long periods of separation from the children by reason of the Applicant’s homelessness, incarceration, and detention.
Conclusion: Para 8.4(4)(a)
Para 8.4(4)(a) weighs moderately in favour of revocation.
Consideration of para 8.4(4)(b)
The extent to which the Applicant is likely to play a positive parental role in the period of 9 years before Child K reaches the age of 18 years, and the period of 14 years before Child R reaches the age of 18 years is very much limited by his prospects of abstaining from drugs and alcohol, and consequent further offending. The Tribunal has already concluded that the Applicant’s risk of reoffending is at least moderate, and the likelihood of his playing a positive parental role is lessened accordingly, and is at best, moderate.
Conclusion: Para 8.4(4)(b).
Para 8.4(4)(b) weighs moderately in favour of revocation.
Consideration of para 8.4(4)(c).
There is evidence that in the past that Child K has been exposed to some of the Applicant’s family violence. It is possible that this may have already had some impact on her, but there is no clear evidence to that effect. There is no evidence that Child R has been exposed to prior family violence conduct by the Applicant. The Applicant’s family violence conduct appears to have diminished in recent years, and there appears to be a low likelihood that they will be exposed to such conduct in the future.
Conclusion: Para 8.4(4)(c).
Para 8.4(4)(c) is given neutral weight.
Consideration of para 8.4(4)(d).
It is clear from the evidence that Ms T does not want Child K or Child R to be separated from the Applicant, and the Tribunal accepts that any such separation could have an enduring long term emotional and psychological impact on either or both children. There does not appear to be any reason to believe that Ms T would not facilitate telecommunications contact between the Applicant and the children in the event that Ms T elects to continue living in Australia. The Tribunal nevertheless accepts that electronic contact is a poor substitute for face-to-face interaction and physical contact.
Conclusion: Para 8.4(4)(d)
Para 8.4(4)(d) weighs moderately in favour of revocation.
Consideration of para 8.4(4)(e)
Ms T is currently fulfilling the parental role for each of the children, and her conduct in this role has not been the subject of criticism before the Tribunal. Ms T has stated that she needs the Applicant’s support in this role.
Conclusion: Para 8.4(4)(e)
Para8.4(4)(e) weighs moderately in favour of revocation.
Consideration of para 8.4(4)(f)
The Tribunal accepts that each of the children would wish for their father to remain in Australia.
Conclusion: Para 8.4(4)(f)
Para8.4(4)(f) weighs heavily in favour of revocation.
Consideration of para 8.4(4)(g)
There is some evidence that Child K has been exposed to the Applicant’s family violence conduct. There is no similar evidence in respect of Child R. There is no evidence that either Child K or Child R have been abused or neglected by the Applicant in any way.
Conclusion: Para 8.4(4)(g)
Para 8.4(4)(g) weighs moderately in favour of non-revocation.
Consideration of para 8.4(4)(h)
There is no clear evidence that either Child K or Child R has suffered any physical or emotional trauma arising from the Applicant’s conduct.
Conclusion: Para 8.4(4)(h)
Para 8.4(4)(h) is given neutral weight.
The Tribunal now turns to consider primary consideration 4 with regard to the children, his nieces Child L, Child M, and his nephew Child H. In doing so, the Tribunal notes, and gives strong weight to the Applicant’s prior statement in his Personal Circumstances Form[138] wherein he was invited to identify all minor children including nephews and nieces in his life. Not only did the Applicant leave the response part of the form blank, but he hand wrote at the top of it “no contact unknown”. None of these children were ultimately identified by the Applicant as being involved in his day to day life.
[138] G1, p 127.
Regarding the Child M, the Applicant has stated that he hardly sees her and does not have a close relationship with her[139]. Accordingly the Tribunal finds that Child M is not a child affected by this decision for the purposes of this primary consideration.
[139] Transcript, p 20, lines 23-24.
Regarding the Child H there is no evidence to suggest that a decision in this matter will impact Child H in any way, as he is one year old and has only had telephone contact – to the extent that a one year old is capable of such – with the Applicant. In his evidence, the Applicant agreed that it was fair to say that he did not have a close relationship with him.[140] The Tribunal therefore finds that Child H is not a child affected by this decision for the purposes of this primary consideration.
[140] Ibid, lines 46-47.
Regarding the Child L, the Applicant told the Tribunal that he had taken her to the beach on occasions, but had not seen her for two years, and only spoke to her when he spoke to her mother, his sister Sinead.
There is insufficient evidence before the Tribunal to enable it to conclude that the Child L is a child affected by this decision for the purposes of this primary consideration.
Conclusion: Primary Consideration 4
For the purposes of Primary Consideration 4, the best interests of the children weighs heavily in favour of revocation.
PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the possession they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
“This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case”.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[141]
[141] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Analysis – Allocation of Weight to this Primary Consideration 5
The Applicant has clearly failed to meet the expectations of the Australian community, and the Tribunal is satisfied that there is at least a moderate risk that he will offend again.
Having regard to paragraphs 8.5(1) and 8.5(2) of the Direction, the Tribunal considers that the nature of the Applicant’s offending is such that the Australian community would expect that his visa remain cancelled.
Conclusion: Primary Consideration 5
Accordingly, Primary Consideration 5 weighs very heavily against revocation of the mandatory cancellation of the Applicant’s visa.
PARAGRAPH 9: OTHER CONSIDERATIONS
Under the heading Other Considerations paragraph 9(1) of the Direction provides a non-exhaustive list of considerations as follows:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed;
(c)Impact on victims;
(d)Impact on Australian business interests.
(a) Legal consequences of the decision
In the course of his request for revocation, the Applicant asserted[142] that “I was used and abused by the gangs in NZ my life will be doomed if I am sent back.” He further stated[143] that he “…had been terrorised by the mongrel mob from a young age.” He has made a further statement[144] which is not clearly reproduced in the electronic file provided to this Tribunal. Only the top half of words are clear, but they appear to be “It’s a life and death situation for me now.” The Applicant further stated:[145]
“If I was to return to NZ, I would be forced to hide and or defend my life due to unresolved issues the mongrel mob and black power have with me, I’ve never been in a gang and never wanted to be. I grew up from a young age being terrorised and abused by them. They’ve kidnapped and beaten me and done a number of things to me. It was tit for tat right up until I left New Zealand. I’ve tried so hard to forget that life.”
[142] G1, p 118
[143] Ibid, p 124.
[144] Ibid, p 130.
[145] Ibid, p 133.
In his evidence, the Applicant enlarged on his concerns[146] saying that gang violence in New Zealand is now worse than it was when he left the country to get away from it.
[146] Transcript, p 29, lines 46-47; p 30, lines 1-46; p 31, lines 1-9.
When questioned by the Tribunal, the following exchange occurred:
“MEMBER: But will it be different for you than it is for any other New Zealander?
APPLICANT: Yes. Depends on like what lifestyle you have, and, I suppose, sort of like what you look like. No, it wouldn’t be different for any other New Zealander, but ‑ ‑ ‑
MEMBER: Sorry?
APPLICANT: I’m not too sure.
MEMBER I couldn’t hear you?
APPLICANT: I’m not too sure how to answer that question.
MEMBER: Well I mean ‑ ‑ ‑?
APPLICANT: I can’t speak for other New Zealanders. I can only speak for myself.
MEMBER: You wouldn’t be singled out for any particular reason, for any unpleasant attention?
APPLICANT: I don’t know. I was singled out when I was living there before I come here.
MEMBER: In what way?
APPLICANT: Just for – I had family that was Black Power and family that were Mongrel Mob, and my – I was like – I didn’t want to pick a side, so I was pretty much in between. And just grown up around it my whole life, pretty much.
MEMBER: But you managed to avoid involvement with them, did you?
APPLICANT: Yes. It was – it was hard, yes.
MEMBER: Okay?
APPLICANT: I think my – when I met my partner, she, like, pretty much saved my life.
MS LETCHER-BOLDT: So you said just before that you have family in the Mongrel Mob and Black Power. Are those gangs?
APPLICANT: Yes.
MS LETCHER-BOLDT: Which family members are part of those gangs?
APPLICANT: Just cousins from my mother’s side and cousins from my dad’s side that I don’t really have much to do with, pretty much. And going to school, friends – I had friends that were like divided into gangs.
MS LETCHER-BOLDT: Do you have anything to do with those friends now?
APPLICANT: No. Definitely not.
MS LETCHER-BOLDT: So you don’t have anything to do with those cousins or those friends?
APPLICANT: No. I haven’t spoken to them for years.”
Based on this evidence, the Tribunal finds that the Applicant’s concerns arise from past conduct of family members and friends with whom he has severed contact, and not spoken to for years. The Tribunal further finds that after a 14 year absence from New Zealand, there is little reason to believe that the Applicant will be singled out for any adverse treatment more so than any other New Zealander, and notes that the Applicant has advanced no clear reason why this would be the case. His concerns do not presently appear to be well founded. Should the Applicant’s concerns prove to be well founded, it will be open to him to engage the assistance of New Zealand police, or to relocate to an area where he is unknown.
The Tribunal is mindful that there is a distinction between considering harm, or the risk of harm and hardship which a former visa holder may face on return to their homeland on the one hand, and, on the other, considering whether or not the former visa holder is a person to whom non-refoulement obligations are owed.[147]
[147] DOB18 v Minister for Home Affairs [2019] FCAFC 63; (2019) 269 FCR 636 per Robertson J (at [185]).
On the evidence presently before it, the Tribunal is not satisfied that this Applicant is owed a non-refoulement obligation under the Act. However, none of this prevents the Applicant from further developing his arguments in the course of an application for a protection visa.
To date, the Applicant has made no claim for a protection visa, and it has been, and remains open to him to do so. Having regard to the High Court’s decision in Plaintiff M1/2021v Minister for Home Affairs [2022] HCA 17, the Tribunal considers that the question of whether the Applicant is owed any non-refoulement obligations are best dealt with if and when he applies for a protection visa.
Otherwise, the first consequence of an affirmation of the decision under review is that the will remain an unlawful non-citizen.[148] As such, the Applicant will be liable for removal from Australia as soon as reasonably practicable pursuant to ss 189 and 198 of the Act. A further consequence of the Tribunal’s affirming the decision under review is that pursuant to s 501E of the Act the Applicant will not apply be able to apply for another visa while he remains in Australia unless this the decision is set aside or revoked prior to his making the visa application. The only exceptions are an application for a protection visa (subject to s. 48A of the Act) or a visa specified in the Migration Regulations 1994 (the Regulations) (i.e. reg 2.12AA) as set out in s 501E(2) of the Act.
[148] Section 15 of the Act.
The Tribunal is unable to conclude that the legal consequences of this decision will impact this Applicant in any manner different from how others are similarly impacted.
This Other Consideration 9(1)(a) is therefore given neutral weight.
(b)Extent of Impediments if Removed
Paragraph 9.2(1) of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant raised concerns about the risk of exposure to gang violence in his home country. Those concerns are adequately discussed above, and it is not proposed to repeat them. As discussed above, it presently appears that the Applicant’s concerns are not insurmountable as they may be addressed by police intervention or relocation within New Zealand. Moreover, it does not appear that any threat of gang violence to the Applicant will be any different from that faced by other New Zealanders, and this concern is therefore given neutral weight.
Paragraph 9.2(1)(a) - Age and health

The Applicant is a 38 year old man. He raised no health concerns as being an impediment to his return to New Zealand either in his Personal Circumstances Form submitted to the Department, or in evidence before the Tribunal.[149]
[149] G1, p 132; Transcript, p 33, lines 37-45; p 34, lines 1-47; p 35, line 1-4.
The Applicant does however, have a long and strong history of drug and alcohol addiction. New Zealand does however have a health system which is well recognised as being comparable to that of Australia, and there is no reason to believe that he should not be able to obtain comparable treatment for his addictions in New Zealand should he seek it.
The Tribunal finds that the Applicant’s age and health are not impediments to his return to New Zealand, and are therefore given neutral weight.
Paragraph 9.2 (1)(b) Substantial language or cultural barriers
The Applicant lived in New Zealand to the age of 24, and there is no evidence to suggest that he would encounter and language or cultural barriers were he to return to New Zealand.
Moreover, it has not been submitted that this consideration is relevant in this case, and it is therefore given neutral weight.
Paragraph 9.2(1)(c) - any social, medical and/or economic support available to that non-citizen in that country.
It has been accepted on many occasions that New Zealand has a comparable level of social, medical and other support available to its citizens to that available in Australia.
Accordingly, this consideration is given neutral weight.
CONCLUSION PARAGRAPH 9.2 EXTENT OF IMPEDIMENTS IF REMOVED
Having regard to the factors in Paragraph 9.2(1) of the Direction, the Tribunal finds that this consideration is given neutral weight.
(c) Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of the ss 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The only evidence from a victim of the Applicant’s criminal behaviour is Ms T, and her evidence has already been discussed at some length earlier in these reasons, and does not require repetition.
Based on that evidence, the Tribunal finds that an adverse decision for the Applicant will impact very heavily and adversely on Ms T.
In the circumstances, Other Consideration 9.3 weighs very heavily in favour of revocation.
9.4 Impact on Australian Business interests
Paragraph 9.4(1) of the Direction requires that decision makers, must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence before the Tribunal that the Applicant’s deportation will, by itself, impact on Australian business interests in the manner contemplated by Direction 99, i.e. that the decision would “significantly compromise the delivery of a major project, or delivery of an important service in Australia.”
This Other Consideration 9.4 is therefore given neutral weight.
CONCLUSION AS TO PARAGRAPH 9: OTHER CONSIDERATIONS
An overall consideration of Paragraph 9: Other considerations weighs very heavily in favour of revocation of the mandatory cancellation of the Applicant’s visa.
CONCLUSION
The Tribunal is now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, The Tribunal finds as follows:
·Primary Consideration 1 weighs very heavily in favour of non-revocation;
·Primary Consideration 2 weighs very heavily in favour of non-revocation;
·Primary Consideration 3 weighs very heavily in favour of revocation;
·Primary Consideration 4 weighs heavily in favour of revocation;
·Primary Consideration 5 weighs very heavily in favour of non-revocation;;
·Other considerations weigh very heavily in favour of revocation.
·Having regard to paragraph 8.1.2 of the Direction, and applying the principles in paragraphs 5.2(2),(3) and (6) of the Direction, the Tribunal is of the view that the harm that could be caused from future similar offending is so serious that even countervailing considerations are insufficient to justify revoking the mandatory cancellation of the Applicant’s visa.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
The Tribunal is therefore not prepared to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 2 June 2023 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

I certify that the preceding 281 (two hundred and eighty-one) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

.................................[SGD]..................................
Associate
Dated: 28 August 2023

Dates of hearing: 8 and 9 August 2023

Representative for the Applicant: Self-represented

Solicitor for the Respondent: Emma Letcher-Boldt

Clayton Utz
ANNEXURE A

282.    EXHIBIT

283.    DESCRIPTION OF EVIDENCE

284.    PARTY

285.    DATE OF DOCUMENT

286.    DATE RECEIVED

287.    R1

288.    Respondent’s Statement of Facts, Issues and Contentions

289.    (paged 1-36)

290.    R

291.    31 Jul 2023

292.    31 Jul 2023

293.    G1

294.    Section 501 G-Documents

295.    (G1-G14, paged 1-308)

296.    R

297.    Various

298.    20 Jun 2023

299.    A1

300.    Letter of Support by Adrian Toala

301.    (1 page)

302.    A

303.    10 Jul 2023

304.    10 Jul 2023

305.    A2

306.    Letter of Support by Sinead McMillan

307.    (1 page)

308.    A

309.    11 Jul 2023

310.    14 Jul 2023

311.    A3

312.    Letter of engagement with QuIHN by Rebecca Kirkwood

313.    (1 page)

314.    A

315.    23 Jun 2023

316.    14 Jul 2023

317.    A4

318.    Letters by the Applicant

·     Rehab Plans to Stay Sober;

·     Understanding the impact of family violence and my criminal offenses; and

·     Employment and ties to Australia

319.    (3 pages)

320.    A

321.    15 Jul 2023

322.    23 Jul 2023

323.    A5

324.    Letter of Support by Ezra McMillan

325.    A

326.    20 Jul 2023

327.    23 Jul 2023

328.    A6

329.    Medical Notes

330.    (7 pages)

331.    A

332.    Various

333.    24 Jul 2023

334.    A7

335.    Letter of Support by Ms T

336.    (1 page)

337.    A

338.    25 Jul 2023

339.    25 Jul 2023

340.    A8

341.    Letter from Recovered Futures Regarding Course Completion

342.    A

343.    24 Jul 2023

344.    25 Jul 2023

345.    A9

346.    Notes of SMART Recovery and Sujata Kumar

347.    (2 pages)

348.    A

349.    Various

350.    26 Jul 2023

351.    A10

352.    Triple P Completion Certificate

353.    (1 page)

354.    A

355.    7 May 2023

356.    26 Jul 2023

357.    A11

358.    Course Completion Certificate for Healthy Relationships

359.    (1 page)

360.    A

361.    23 Apr 2023

362.    26 Jul 2023

363.    A12

364.    Course Completion Certificate for Anger Management

365.    (1 page)

366.    A

367.    21 Mar 2023

368.    26 Jul 2023

369.    A13

370.    Email Correspondence Regarding Attendance for DVConnect Responsible Men program

371.    (1 page)

372.    A

373.    27 Jul 2023

374.    27 Jul 2023

[2023] AATA 2735

28 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Dates of hearing:	8 and 9 August 2023
Representative for the Applicant:	Self-represented
Solicitor for the Respondent:	Emma Letcher-Boldt
Clayton Utz

282. EXHIBIT	283. DESCRIPTION OF EVIDENCE	284. PARTY	285. DATE OF DOCUMENT	286. DATE RECEIVED
287. R1	288. Respondent’s Statement of Facts, Issues and Contentions 289. (paged 1-36)	290. R	291. 31 Jul 2023	292. 31 Jul 2023
293. G1	294. Section 501 G-Documents 295. (G1-G14, paged 1-308)	296. R	297. Various	298. 20 Jun 2023
299. A1	300. Letter of Support by Adrian Toala 301. (1 page)	302. A	303. 10 Jul 2023	304. 10 Jul 2023
305. A2	306. Letter of Support by Sinead McMillan 307. (1 page)	308. A	309. 11 Jul 2023	310. 14 Jul 2023
311. A3	312. Letter of engagement with QuIHN by Rebecca Kirkwood 313. (1 page)	314. A	315. 23 Jun 2023	316. 14 Jul 2023
317. A4	318. Letters by the Applicant · Rehab Plans to Stay Sober; · Understanding the impact of family violence and my criminal offenses; and · Employment and ties to Australia 319. (3 pages)	320. A	321. 15 Jul 2023	322. 23 Jul 2023
323. A5	324. Letter of Support by Ezra McMillan	325. A	326. 20 Jul 2023	327. 23 Jul 2023
328. A6	329. Medical Notes 330. (7 pages)	331. A	332. Various	333. 24 Jul 2023
334. A7	335. Letter of Support by Ms T 336. (1 page)	337. A	338. 25 Jul 2023	339. 25 Jul 2023
340. A8	341. Letter from Recovered Futures Regarding Course Completion	342. A	343. 24 Jul 2023	344. 25 Jul 2023
345. A9	346. Notes of SMART Recovery and Sujata Kumar 347. (2 pages)	348. A	349. Various	350. 26 Jul 2023
351. A10	352. Triple P Completion Certificate 353. (1 page)	354. A	355. 7 May 2023	356. 26 Jul 2023
357. A11	358. Course Completion Certificate for Healthy Relationships 359. (1 page)	360. A	361. 23 Apr 2023	362. 26 Jul 2023
363. A12	364. Course Completion Certificate for Anger Management 365. (1 page)	366. A	367. 21 Mar 2023	368. 26 Jul 2023
369. A13	370. Email Correspondence Regarding Attendance for DVConnect Responsible Men program 371. (1 page)	372. A	373. 27 Jul 2023	374. 27 Jul 2023