Nancarrow and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Nancarrow and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2117 (7 July 2020)
Division:GENERAL DIVISION
File Number: 2020/2259
Re:Ali Nancarrow
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:7 July 2020
Place:Perth

The Reviewable Decision dated 16 April 2020 is affirmed.
...........................[sgd].............................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – convictions include grievous bodily harm, assault occasioning bodily harm – alcohol use linked to offending – Applicant is a 20-year-old man who arrived in Australia as a 12-year-old child – Reviewable Decision affirmed
DIRECTION NO 79 – primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – parole – completion of rehabilitation programs – best interests of minor nephew and niece – expectations of the Australian community – strength, nature and duration of ties to Australia – extent of impediments if returned to New Zealand – impact on victims – impact of COVID-19 pandemic – detention for uncertain period if decision affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 198, 499, 499(1), 499(2A), 500(6B), 500(6L), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(ii), 501G(1)
Migration Regulations 1994 (Cth) – reg 2.55(5)
CASES
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
CFVG and Minister for Immigration and Border Protection [2017] AATA 1395
DKXY v Minister for Home Affairs [2019] FCA 495
FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294
FYBR v Minister for Home Affairs (2019) 374 ALR 601
FYBR v Minister for Home Affairs [2019] FCA 500
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
JFSQ and Minister for Home Affairs [2019] AATA 616
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
Peterson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1256
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Subasinghe and Minister for Home Affairs [2019] AATA 751
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s 501 And Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
7 July 2020
BACKGROUND

The Applicant is a 20-year-old man who is a citizen of New Zealand.
He first arrived in Australia on 24 May 2012 as a child when he was approximately 12 years of age (G3/13).
On 23 May 2019 the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (Visa) was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) (G44/119-125) (Cancellation Decision). The basis of the cancellation was that the Applicant did not pass the character test due to having a substantial criminal record as he had been sentenced to a term of imprisonment of 12 months or more, and because he was serving a full-time sentence of imprisonment. The letter advising the Applicant that his Visa had been cancelled also advised the Applicant that he could make representations to seek revocation of the Cancellation Decision.
The Applicant requested revocation of the Cancellation Decision (G10/42) and made representations as to why the Cancellation Decision should be revoked (G10, G11, G12, G13). The grounds on which the Applicant sought revocation of the Cancellation Decision were summarised by a delegate of the Respondent as being (G4/16):
·     his remorse and shame at his offending and lack of historical offences
·     his lack of support in New Zealand
·     his linkage with alcohol counselling and rehabilitation and reconnection with family support and accommodation
·     his history of employment and community engagement and offer of ongoing work in aged care
·     his support from the community to assist with his rehabilitation and his assessment by the Western Australian Department of Justice as low risk for reoffending
However, after considering these representations on 16 April 2020 a delegate of the Respondent decided, under s 501CA(4) of the Migration Act, not to revoke the Cancellation Decision (G4/14). This is the Reviewable Decision that is currently before the Administrative Appeals Tribunal (the Tribunal).
The Applicant was notified of the Reviewable Decision in a hand-delivered letter that was also dated 16 April 2020 (G2/10-11). He is therefore taken to have received the decision when it was handed to him (Migration Regulations 1994 (Cth) reg 2.55(5)).
On 19 April 2020, the Applicant lodged an application in the General Division of the Tribunal (which was dated 16 April 2020) seeking a review of the Reviewable Decision (G1/1-9). Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the Applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the 84-day period started running on 16 April 2020, meaning that the Tribunal must deliver a decision with respect to this application by no later than 9 July 2020.
ISSUES
The issues for determination by this Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act), having regard to the primary and other considerations in Direction no. 79 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction No 79).
MATERIAL BEFORE THE TRIBUNAL
The hearing of this application took place on 25 and 26 June 2020.
Following a Directive from the President of the Tribunal, His Honour Justice Thomas,

the Tribunal temporarily ceased conducting in person hearings from 23 March 2020 as a protective measure due to the COVID-19 pandemic. Consequently, the Applicant appeared by video conference from Yongah Hill Immigration Detention Centre for the first day of the hearing. On the second day of the hearing the Applicant appeared by teleconference. The Applicant’s evidence was given on the first day of the hearing while the Applicant was in attendance via videoconference. The Tribunal is satisfied that neither party was disadvantaged by these arrangements. His representative Mrs Samuta, and Mr Gerrard, representing the Respondent, also appeared by videoconference, although due to technical difficulties on the second day of the hearing, Mrs Samuta appeared by teleconference. The Tribunal thanks the parties for their willingness and cooperation in appearing by video and teleconference.
The Applicant gave oral evidence on the first day of the hearing and was cross-examined. He called his mother as a witness (who was assisted by an interpreter in the Tongan and English languages). He also called his sister. Both gave evidence by telephone. The Applicant also called Dr Jacqui Yoxall (Dr Yoxall), Psychologist and Associate Professor in Allied Health, to give evidence about her independent psychological assessment of the Applicant. Dr Yoxall gave evidence by telephone on the second day of the hearing.
The Tribunal admitted the following exhibits into evidence at the hearing:
(a)Statement of Facts, Issues and Contentions (SFIC) of the Applicant (Exhibit A1). Exhibit A1 attaches the following documents:
(i)a written statement of the Applicant dated 27 May 2020;
(ii)a statement of attainment in “Apply Workplace Health and Safety Concepts” dated 29 October 2019, transcript of vocational education units completed between 15 February 2019 and 24 September 2019; “Outcare” certificates of participation dated 8 October 2019 and 11 March 2019; tickets for “Construction Induction” issued 1 November 2019 and “Working Across Borders” (undated); an undated Certificate of Completion for “Journey: A Program Of Prison Fellowship International”; a “Men’s Group” certificate of participation dated April 2020; “Lifeskills” certificate of participation dated April 2020; and
(iii)21 character references.
(b)A bundle of evidence filed with the Tribunal on 22 June 2020 (Exhibit A2). Exhibit A2 contains the following documents:
(i)six additional witness statements including statements from the Applicant’s mother and sister, and statements from two of the Applicant’s victims;
(ii)a psychological report completed by Dr Yoxall dated 22 June 2020, with Dr Yoxall’s curriculum vitae attached;
(iii)“Lifeskills” certificate of participation dated May 2020 and June 2020, and “Men’s Group” certificate of participation dated May 2020 and June 2020;
(iv)Additional documentation related to the Applicant’s drug and alcohol counselling, his counselling through Relationships Australia and a copy of the Applicant’s birth certificate.
(c)G Documents numbered G1 to G47 from pages 1 to 166 (Exhibit R1);
(d)Supplementary Relevant Documents numbered SG1 to SG2 from pages 167 to 330 (Exhibit R2);
(e)Statement of Issues, Facts and Contentions of the Respondent (SIFC) dated 17 June 2020 (Exhibit R3); and
(f)a briefing letter from Mrs Samuta to Dr Yoxall dated 24 April 2020 (Exhibit R4).
Exhibits A1, A2, R1, R2 and R3 were also contained in a hearing bundle comprising 484 pages which was filed in the Tribunal on the morning of the hearing.
LEGISLATIVE FRAMEWORK
Migration Act
Section 501(3A) of the Migration Act provides that:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)
the person has a substantial criminal record (as defined by

subsection (7); or
…
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7)For 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; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or…
(Original emphasis.)
Section 501CA of the Migration Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No 79
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 79 under s 499 of the Migration Act, which commenced operation on

28 February 2019. This Direction replaced the previous Direction No 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under
s 501CA (22 December 2014) (Direction No 65).
Paragraph 6.1 of Direction No 79 sets out the “Objectives” of the Migration Act, with paragraph 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction No 79 provides “General Guidance” as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No 79 sets out “Principles” which must be taken into account by persons making decisions under s 501CA(4) of the Migration Act, including the Tribunal:
(1)
Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on

non-citizens in the expectation that they are, and have been, law-abiding,

will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Informed by the principles set out in paragraph 6.3 of Direction No 79, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction No 79, with regard to the specific circumstances of the case (Direction No 79 para 13(1)). Specifically, paragraph 13(2) of Direction No 79 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia;
c)    Expectations of the Australian community.

Paragraph 14(1) of Part C of Direction No 79 lists other considerations as follows:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)    International non-refoulement obligations;
b)    Strength, nature and duration of ties;
c)    Impact on Australian business interests;
d)    Impact on victims;
e)    Extent of impediments if removed.
Paragraph 7(1)(b) of Direction No 79 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
a) …
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Further guidance as to how a decision-maker is to apply the considerations in

Direction No 79 can be found in paragraph 8 of Direction No 79, “Taking the relevant considerations into account”, which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant agrees that he does not pass the character test (Exhibit A1, SFIC, para [3(b)]).
Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.
A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
The offence that resulted in the cancellation of the Applicant’s Visa was for “grievous bodily harm” for which he was sentenced in the District Court of Western Australia to 14 months imprisonment on 25 January 2019 (SG1/171; G4/15). At the same time, the Applicant was sentenced to a cumulative term of imprisonment of 6 months for “assault occasioning bodily harm”, and a concurrent term of imprisonment of 10 months for a further conviction of “assault occasioning bodily harm”.
Consequently, the Applicant does not pass the character test under ss 501(6)(a) and

501(7)(c) of the Migration Act.
The Tribunal must now consider whether there is “another reason” why the Cancellation Decision should be revoked (Migration Act s 501CA(4)(b)(ii)).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community
Paragraph 13.1(1) of Direction No 79 provides that:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle 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. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community…
Paragraph 13.1(2) of Direction No 79 then provides:
(2)Decision-makers should also give consideration to:
a)
The nature and seriousness of the non-citizen’s conduct to date;

and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (Direction No 79 para 13.1.1(1))
Paragraph 13.1.1(1) of Direction No 79 further provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)    The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)    The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)     The cumulative effect of repeated offending;
g)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)    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);
i)   Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act;
The Applicant’s adult criminal history consists of one “grievous bodily harm” offence and two offences of “assault occasioning bodily harm”. He was sentenced for each of these offences in the District Court of Western Australia on 25 January 2019 (SG1/171; G4/15). These offences were committed on 11 February 2018. The Sentencing Judge, Scott DCJ, described the offences in the sentencing remarks (G7/30-31):
Mr N [name omitted] was walking, minding his own business, in Northbridge at 1.15am. You shoulder charged him in order to - for whatever reason you did so it is not known to me, but it was an aggressive act.
Subsequently, only about 30 seconds later, he approached you and you and those with you, you got into a verbal altercation. He pushed you. Someone else punched him from behind.
He got up off the ground and during a confrontation with you, he was thrown to the ground. When he was on the ground, you stomped on his head more than once, at least twice, using your right foot during which he became and was rendered unconscious.
The injuries he sustained were multiple fractures to his face, he required facial surgery and the insertion of a metal plate which will be permanent to prevent his eye from collapsing … You were fortunate but more so Mr N was very fortunate that you didn’t kill him and that’s how serious this matter is, or at least that he sustained more serious injuries although the injuries themselves were very serious.
The two persons who were the good Samaritans, they’re the two twins, they tried to stop the assault on Mr N. You were pushed away by [Mr] AG [full name omitted]. You then advanced on him, throwing several punches, two of them, and then your associates are joined in the attack. You turned your attention to [Mr] SG [full name omitted] and threw punches to his head, shoulders and back. He was trying to defend Mr N who lay unconscious on the ground.
Things stopped for a little while and then after a couple of minutes, you approached SG in a boxing stance which we see. SG indicated he didn’t want to fight. You punched him to the head using a closed fist. He fell to the ground. He was in a sitting position, put his hand out in a defensive gesture.
You and a co-offender gathered around him with the intent to continue the assault and the co-offender kicked him to the face with his right foot. SG then immediately went limp. He lay on the ground unconscious, totally vulnerable. You jumped on top of him, punching him once to the face with a right fist before being pushed off by witness who came in, again someone who was brave and came to protect him.
And then as AG was trying to protect his brother who was then unconscious, AG was assaulted by you. You punched him to the head twice with a closed fist. The injuries to SG and AG were not as significant but they both suffered cuts and bruising and AG suffered a broken nose and required to have his broken nose set.
Your actions on this occasion amounted, in my view, to gratuitous thuggery, that’s the best I can define it as being, with little or no regard to the likelihood of significant injury being sustained by any of the victims.
The Sentencing Judge further stated (G7/33):
Each of these offences were particularly serious or serious, particularly, I should say, the offence the subject of count 1 [grievous bodily harm]. You were a member of a group who set upon these three victims. There was no excuse for you to act in the way you did. The violence which you exacted against the three victims, particularly Mr N, was significant and was relentless.
This was not an isolated action. This was not someone being involved in a bit of a blue and throwing a punch and then realising what he had done. This was relentless over some minutes and constituted a number of occasions upon which you exacted violence on one of these victims.
The stomping on Mr N’s head is inexplicable. You’re wearing shoes at the time and one of the witnesses had you jumping in - or both of them had you jumping in the air and landing on his head, one by the heel of your shoe.
Insofar as AG and SG were concerned, they were struck to the face on multiple occasions by you and SG was in fact rendered unconscious by one of your co-offenders. But notwithstanding that, you dived on top of him and punched him to the face with a right fist before a witness luckily had the guts to get you off him.
The Applicant also has a conviction for “disorderly behaviour in public” (SG1/171). This offence was committed on 4 March 2018 at about 2.51am, also in Northbridge (a nightclub district). On 2 November 2018, the Applicant received a spent conviction and a $1500 fine in the Perth Magistrates Court for this offence. The Statement of Material Facts records, in part, that (SG1/178):
The accused [the Applicant] was amongst a group of other members of the public when he approached another male person from behind. The other male person had his arms wrapped around what appeared to be his partner.
Without provocation the accused swung his right arm and struck the back of this male person’s head with his fist. The impact of the force caused the male to fall to the pavement.
Police apprehended the accused at the scene and whilst being detained he yelled “What are you gonna do bitch!” “Suck my dick!” “Fuck you cunts!”
The other party involved in the matter did not wish to make a complaint to Police. He had no apparent injury nor did he require medical attention.
The Applicant has also been convicted of two driving offences, being “Exceed 0.05g alcohol per 100ml of blood; >0.05g/100ml but < 0.06g/100ml…No M.D.L [motor driver’s licence]; Reading 0.058; Method is Breath” and “No authority to drive (never held)” in the Perth Magistrates Court on 8 May 2018. These offences were both committed on 12 April 2018 (SG1/171) and will be referred to as the Driving Offences. The Statement of Material Facts for the latter offence records that the Applicant had “never held a driver’s licence” (SG1/177).
Paragraph 13.1.1(1)(a) of Direction No 79 provides that, “without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously”. Thus, the “grievous bodily harm” and two “assault occasioning bodily harm” offences described by the Sentencing Judge in the passage above must be viewed very seriously by the Tribunal. As described by the Sentencing Judge, the Applicant stomped on Mr N’s head more than once, including after he was rendered unconscious. Mr N’s injuries were extremely serious and included multiple fractures to his face, requiring the insertion of a metal plate to prevent his eye collapsing. As noted by the Sentencing Judge, it was lucky that Mr N was not killed. Another of the victims, who was a good Samaritan trying to assist Mr N, was rendered unconscious. This victim was punched by the Applicant while he was unconscious on the ground. As a result, this victim suffered a broken nose. The other victim, also a good Samaritan, suffered cuts and bruising. Additionally, Scott DCJ described this offending as “gratuitous thuggery” and further described each of these offences as being “particularly serious”.
The Tribunal considers the “disorderly behaviour in public” offence (as described in paragraph [40] above) to be less serious in nature. This is because that offence appears to have resulted from the Applicant shouting abuse at police, rather than the earlier incident involving an alleged punching of a member of the public from behind. This apparently did not result in any charge because, as recorded in the Statement of Material Facts, the member of the public did not wish to make a formal complaint. At the hearing, the Applicant could not recall this incident.
As noted above, the Applicant has been convicted of two driving offences involving unlicensed driving and driving under the influence of alcohol. Previous Tribunal decisions have often regarded offences such as driving under the influence and unlicensed driving as being serious because the unlicensed and/or irresponsible use of a motor vehicle can endanger innocent road users (see for example, Member Webb, in Apire and Minister for Immigration and Border Protection [2014] AATA 193, [16] and Senior Member Tavoularis in Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561, [43]-[45]). The Tribunal also finds that these offences are serious, but not as serious as the Applicant’s violent offences.
Paragraph 13.1.1(1)(b) of Direction No 79 is not applicable because the Applicant has not committed violent crimes against women or children.
Paragraph 13.1.1(1)(c) of Direction No 79 sets out “the principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious.” The Sentencing Judge stated (G7/34):
So many people have been severely injured or killed by those who exact gratuitous violence to them, particularly, violence that’s exacted to or exacted on persons who are on [sic] unsuspecting or vulnerable as is the case here.
(Emphasis added.)
His Honour did not expand on why he thought the victims were unsuspecting or vulnerable, but this was likely a reference to two of the victims being rendered unconscious and being assaulted by the Applicant while they were unconscious. It is the Tribunal’s view that unconscious persons are vulnerable because they cannot defend themselves. This, in the Tribunal’s opinion also confirms the seriousness of the “grievous bodily harm” and two “assault occasioning bodily harm” offences (Direction No 79 para 13.1.1(1)(c)).
Paragraph 13.1.1(1)(d) of Direction No 79 also requires the Tribunal to have regard to the sentences imposed by the Courts for a crime or crimes. As noted above, the Applicant was sentenced to 14 months imprisonment for the “grievous bodily harm” offence. He was also sentenced to a cumulative term of imprisonment of six months for “assault occasioning bodily harm”, and to a concurrent term of imprisonment of 10 months for a further conviction of “assault occasioning bodily harm”. The Applicant was eligible for parole after serving 10 months of his sentence (G7/36). The Sentencing Judge reasoned that it would not be appropriate to give the Applicant a suspended sentence, and that a custodial term of imprisonment was appropriate due to the serious nature of the offending. His Honour stated (G7/35):
The degree of your criminality, Mr Nancarrow, notwithstanding your age at 18 years, is just far too significant in the offending as it took place. What I need to do is to impose a term of imprisonment with respect to each of these offences and in my view a term of imprisonment is warranted with respect to each of them.
Imprisonment is generally an option of last resort, particularly when the offender is of a very young age. At the time of sentencing on 25 January 2019, the Applicant was only 19 years of age. The Tribunal finds that the sentences imposed for these offences indicate that the offending was very serious.
The Tribunal is also required to consider the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness (Direction No 79 para 13.1.1(1)(e)). The “grievous bodily harm” offence and “assault occasioning bodily harm” offences, were committed on 11 February 2018, and were the Applicant’s first, but most serious and violent offences. The “disorderly behaviour in public” offence was committed on 4 March 2018, and the Driving Offences were committed on 12 April 2018. The Tribunal finds that although there is no overall trend of increasing seriousness, it is of concern that the Applicant continued to offend after having committed such serious and violent offences so early in his adult life. It is of concern that committing such serious offences as a very young man did not cause him to pause and reflect. Instead, he continued to offend over a relatively short period of time.
With respect to the cumulative effect of repeated offending (Direction No 79 para 13.1.1(1)(f)), the Applicant does not have a lengthy criminal history, and he has only served one term of imprisonment. The Applicant’s criminal history has likely placed some burden on the resources of police, corrective services and the court system. Comparatively however, the Applicant’s single term of imprisonment cannot be considered as burdensome as that of an offender with multiple prison sentences or repetitive breaches of court orders.
The Applicant has not provided false or misleading information to the Department by failing to disclose prior criminal offending on any incoming passenger cards. Consequently, paragraph 13.1.1(1)(g) of Direction No 79 is not applicable.
The Applicant has not previously received any warning that further offending may affect his migration status, and so paragraph 13.1.1(1)(h) of Direction No 79 is not applicable.
Paragraph 13.1.1(1)(i) of Direction No 79 requires the Tribunal to consider whether the Applicant has committed any crime while in prison, immigration detention as well as during or after an escape from immigration detention. This is not applicable to the Applicant.
Having analysed each of the sub-paragraphs of paragraph 13.1.1(1) of Direction No 79, the Tribunal finds that the Applicant’s offending, particularly the violent offences of “grievous bodily harm” and “assault occasioning bodily harm” committed on 11 February 2018, are very serious. These offences comprise three out of the Applicant’s six offences. The Driving Offences are serious because of the potential harm that can be caused to innocent road users, but to a far lesser extent than the Applicant’s violent offences. His “disorderly behaviour in public” offence, which involved shouting abuse at police officers, is also less serious.

Overall, with respect to paragraph 13.1.1 of Direction No 79, the Tribunal finds that the Applicant’s offending is serious, and that this primary consideration, being the nature and seriousness of the Applicant’s criminal offending, weighs strongly against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (Direction No 79 para13.1.2)
A decision-maker must also have regard to the following principle, described in paragraph 13.1.2(1) of Direction No 79 as follows:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 41 VR 359, 389 [111] (which was quoted with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424, 444-445 [95], as well as Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117,
124–5 [42]-[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be.
Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality, but also on the seriousness of the consequences if it does.
(Footnotes omitted.)
In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] Moshinsky J stated that: “there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] Kenny J also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”.
The harm that could result to victims if the Applicant is to reoffend in a violent manner is potentially very serious (Direction No 79 para 13.1.2(1)(a)). The Sentencing Judge stated that “[s]o many people have been severely injured or killed by those who exact gratuitous violence to them” (G7/34). When a person is killed by violent offending, the loss of a loved one can have a devastating and long-lasting impact on the victim’s family members. The physical injuries that can result from violence range from minor to severe and can result in temporary or permanent impairment and loss of quality of life. For example, one of the Applicant’s victims, Mr N, has required the permanent insertion of a metal plate into his face to prevent his eye from collapsing. As well as suffering physical injuries and loss of life, victims of violence can suffer psychological harm, which can be temporary or long lasting.
The Tribunal will now consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community (Direction No 79 para 13.1.2(1)(b)).
The Applicant is a very young man who does not have a lengthy criminal history. This may be indicative that there is an opportunity for the Applicant to mature and reform his behaviour. However, he started offending at the age of 18, and committed six offences (three of which were very serious) in a relatively short period of time. As noted above, after committing the serious offence of “grievous bodily harm” followed by two “assault occasioning bodily harm” offences, he did not pause and reflect on his offending behaviour and committed three other offences shortly after. This offending was, however, closely connected with the Applicant’s alcohol abuse. At the hearing (transcript/18-19), and in his written statement (in Exhibit A1, paragraphs [28]-[38]), the Applicant described being raised by a single mother, and not having his father in his life which had an emotionally detrimental impact on him. He started consuming alcohol after a period of family conflict between his mother and sister. His sister moved to Melbourne and his mother moved in with her boyfriend, leaving the Applicant living in the family home alone and paying the rent and utilities by himself. In his statement, the Applicant described feeling “alone”, “struggling to cope emotionally and financially”, and that he “felt abandoned” (Exhibit A1, paragraphs [30]-[32]). The Applicant further stated in his written statement that (Exhibit A1, paragraphs [33]-[34]):
I turned to alcohol to help myself cope with the pain. I fell into a cycle of drinking alcohol alone at home. I would consume a whole carton of 24 bottles of beer in one drinking session. I was drinking on a daily basis. I would drink when I arrived home from work and keep drinking until I fell asleep. On days when I wasn’t working, I would start drinking in the morning and continue all day. On several occasions, I attended work whilst under the influence of alcohol.
I was drinking very heavily. By the age of 18, I became a binge drinker.
The Applicant further described that around this time he met a girlfriend whom he loved very much and felt understood him. However approximately four to five months later (just prior to Christmas 2017), the Applicant and his girlfriend broke up after an argument and tried hard to “win her back” but was not able to (Applicant’s statement in Exhibit A1, paragraphs [35]-[36]). He described turning to alcohol again following this relationship breakup (Applicant’s statement in Exhibit A1, paragraph [38]):
I felt completely alone - unwanted by my father and unloved by my family. I had been abandoned by my mother, my sister and then my girlfriend. I felt like I had nobody, and suddenly alcohol was my best friend.
In his written statement, the Applicant described how he was intoxicated at the time of the “grievous bodily harm” and the two “assault occasioning bodily harm” offences. He stated (Exhibit A1, paragraphs [42]-[45]):
The offence was committed on 11 February 2018 and I was 18 years old, at the time of the offence I was very intoxicated. I wasn’t in the right state of mind and I take full responsibility.
If I could rewind time I wouldn’t have drank that night and none of this would’ve happened but I can’t change the past so I just have to accept my choices and learn from them.
Before heading out to the city I had finished a carton of beer and had continued drinking when I got to the city. I just wanted to go out and have a good time and it was never my intent to go out and look for trouble.
I was highly intoxicated at the time that I barely even remember what happened. I honestly didn’t mean to hurt anyone. I now know that alcohol brings out the worst in me and has led me to do the most horrible things. Even to this day I can’t recall much memory of what really happened.
The Applicant’s evidence in his written statement was consistent with the observations made by the Sentencing Judge, Scott DCJ when sentencing the Applicant for these offences. His Honour stated (G7/30):
I have no doubt in accepting that you were significantly intoxicated during the course of this event. I need to tell you though that that’s not an excuse. It might well be an explanation as to why you might have acted in this particular way but it’s, by no means, any excuse for your conduct.
In his written statement, the Applicant also described the connection between his alcohol consumption and his other offences, namely “disorderly behaviour in public” and the Driving Offences. He stated (Exhibit A1, paragraph [49]-[51]):
For both offences, I was highly intoxicated.
I was charged with Disorderly behaviour in public, I don’t recall the incident happening - I have no memory of this.
For the driving offences, I didn’t have my driver’s license and I was driving while being intoxicated. I never should have got behind the wheel.
When sentencing the Applicant for the “grievous bodily harm” and the two “assault occasioning bodily harm” offences, the Sentencing Judge accepted that the Applicant was “genuinely remorseful” (G7/32). At the hearing he described being “really disgusted” with himself when he saw the closed-circuit television (CCTV) footage of his violent offending (transcript/20). In his written statement, the Applicant stated (Exhibit A1, paragraph [61]-[62]):
My court proceedings took over a year. The court proceedings, especially coming to a full knowledge of what occurred on 11 February 2018 and the impact of my conduct through witnessing the CCTV footage, shook me to my core. I did not like who I saw in that video, and was ashamed and remorseful of the violence I inflicted on my victims.
I decided to plead guilty because I stomped on Mr N’s head. Nobody deserves to be kicked like that, and I was disgusted by my own behaviour.
When the Applicant was in prison, he wrote letters apologising to his victims of his own initiative, which is a further indication of his remorse. At the hearing, the Applicant explained why he wrote to the victims (transcript/22):
I just wanted to apologise and see if they’re all right. I can’t imagine what I had put them through. I just couldn’t imagine how I can put him and his family through something so reckless and stupid from my actions and I just wanted to apologise so that I can just let him know that I’m actually really sorry.
The Tribunal finds that the Applicant’s remorse was genuine. Expressing remorse can be indicative that an applicant accepts responsibility for his or her offending (JFSQ and Minister for Home Affairs [2019] AATA 616, [65] cited in Subasinghe and Minister for Home Affairs [2019] AATA 751, [52]), and this insight may in turn reduce the likelihood of reoffending.
During cross-examination, Mr Gerrard asked the Applicant about several incidents that took place between the end of 2017 and July 2018 which did not result in convictions. These were recorded in police incident reports. The first incident was alleged to have occurred on 2 December 2017. It was alleged that the Applicant threw a rock at a house and smashed a window (SG1/252). The Applicant recalled this incident and that he admitted to throwing the rock. However, he claimed that the rock was thrown by someone else but that he took the blame for it in order to appear “cool” (transcript/40-41).
The next two incidents were alleged to have taken place on 6 January 2018. The circumstances in which the first of these incidents occurred was described in the police incident report as follows (SG1/233):
The victims were all on a party bus and had alighted at the aforementioned location to head to their next venue. The suspects, who had also alighted from the bus, followed them and instigated a fight with one of the victims, Z [a male, full name omitted].
With respect to the Applicant, the incident report continues to state that:
B [a female, full name omitted] was hit, by NANCARROW, on the right brow area causing slight swelling and bruising, she was also punched at her lower right back (nil visible injuries on back).
Under cross examination the Applicant stated that he did not recall the incident, did not recall going to Subiaco on a party bus and did not recall being spoken to by the police about this matter. He denied that he would ever hurt a female (transcript/41).
Another incident report alleges that on the same evening three offenders were attempting to enter a nightclub and that (SG1/230):
Security refused their entry due to their level of intoxication.
…
NANCARROW walked up to one of the bouncers and punched him in the face causing a cut on his upper lip.
Under cross examination the Applicant denied fighting with security, stating that “I was actually trying to stop it, sir, I wasn’t trying to fight” (transcript/43).
The next incident was the incident on 4 March 2018, described at paragraph [40] above, which resulted in the Applicant being charged with “disorderly behaviour in public” as a result of his interactions with the police. Prior to this incident, it was alleged that the Applicant struck the back of a male person’s head with his fist, causing the man to fall to the pavement (SG1/178). The Applicant did not recall this incident and did not recall abusing police when they attempted to apprehend him (transcript/46-47).
The last of the incidents that did not result in any formal charge was alleged to have occurred on 1 July 2018 in Northbridge. The police incident report records the following (SG1/249):
The victim was standing at the intersection of Lake St and Aberdeen St, Northbridge, speaking with another male.
He was approached from behind by the offender and three other males, at which point the offender has ‘king hit’ the victim to the right-hand side of his jaw, knocking him to the ground. As the victim hit the ground, the back of his head connected with the pavement with such force as to cause a 3 - 4 cm laceration, which bled profusely.
The offender and other males ran off along Aberdeen Street, and were apprehended in a car park nearby.
City of Perth CCTV captured the entire incident.
An internal police incident report running sheet records police speaking to the Applicant and another male about this incident (SG1/250). Under cross-examination, the Applicant stated that he did not recall the incident and did not recall being spoken to by police (transcript/48).
The Applicant’s representative submitted that the Tribunal should not have regard to these incidents because they did not result in charges or convictions. It was submitted that it would be “unfair” to take these incident reports into account, and that they were “irrelevant to these proceedings”. Additionally, it was submitted that the Applicant could not recall the incidents (transcript/7). However, when considering the protection of the Australian community under paragraph 13.1 of Direction 79, the Tribunal can have regard to conduct, as well as offences. The Tribunal agrees that these incident reports contain allegations that have not been tested in a court of law, and that accordingly, some caution should be exercised as to how they are considered, and the weight, if any, to be given to them. At the time of these incidents the Applicant had a significant problem with alcohol. He admitted to being present when the rock was thrown and admitted to being present during the incident when the bouncer was assaulted, but claimed he was trying to stop the fight. There is an unsigned witness statement from the female who was assaulted on the party bus identifying the Applicant (SG1/235, paragraph [14]). The last of the incidents was recorded in the police incident report as being captured on CCTV Although the facts of these alleged incidents have not been tested, at a basic level they do tend to suggest that the Applicant may have been involved in violent or aggressive incidents whilst out at night and intoxicated. However, appreciating the concerns expressed by the Applicant’s representative, Mrs Samuta, the Tribunal gives these incidents very low weight.
When the Applicant was assessed for treatment programs in prison he was assessed as being “a low risk of general offending” using the “Risk of Reoffending- Prison Version (RoR-PV) assessment screening tool”. He was therefore not assessed as requiring any treatment programs (SG2/329). It does not appear that the Applicant was assessed for violent offending, with that part of the Treatment Assessment Report being left blank (SG2/329).
To the Applicant’s credit, he also voluntarily undertook treatment courses prior to his sentencing, during his prison term, and whilst in immigration detention (Exhibit A1, Applicant’s witness statement, paragraphs [54]-[60] and [78], [83], [85], [88]-[93]), as well as vocational courses (Exhibit A1, Applicant’s witness statement, paragraph [74], [76], [80], [84]).
Prior to sentencing, the Applicant completed Outcare Career Development Workshops on 11 March 2019 and 8 October 2019. He also undertook counselling with SMART Recovery (drug and alcohol counselling) and Relationships Australia (to address anger management issues) for approximately 6 or 7 months prior to his incarceration (Exhibit A1, paragraphs [54]-[60]).
Whilst he was in prison, the Applicant undertook the Outcare Career Development Course and Workshop (Exhibit A1, paragraph [78] and [83]). He also completed a program run by the Prison Fellowship called “The Prisoner’s Journey” (Exhibit A1, paragraph [85]), and several vocational and educational courses including a “Food Handler Training Program” on 15 February 2019, a “Prepare to Work Safely in the Construction Industry” on 24 September 2019 and “Apply Workplace Health and Safety Concepts” on 13 May, 22 May and 28 August 2019 (Exhibit A1, Applicant’s statement, paragraph [80]; see also ASETS Transcript issued 30 October 2019 in Exhibit A1). The Applicant also completed a Construction Occupational Health and Safety Induction on 1 November 2019 and career counselling and driver assistance to help him get his driver’s licence back (Exhibit A1, paragraph [84]). These vocational programs are likely to assist the Applicant to find employment and to reintegrate into the community should he be permitted to remain in Australia.
On 20 April 2020, while in immigration detention, the Applicant started attending a weekly group called, “Men’s Group – Life Support” and has also completed the “Lifeskills” course (Exhibit A1, paragraphs [89]-[90]). In immigration detention, the Applicant also resumed fortnightly alcohol counselling with SMART Recovery and weekly telephone counselling with Relationships Australia, with the same counsellor he engaged with prior to his sentencing in January 2019 (Exhibit A1, paragraphs [88]-[92]).
The Tribunal notes that to the Applicant’s credit, he was waitlisted to attend the “Alternatives to Violence” program in prison (Exhibit A1, paragraph [75]), and that he is also on a waiting list for courses addressing violence, which is offered in immigration detention (Exhibit A1, paragraph [93]). Although the Applicant has accessed counselling through Relationships Australia to address his anger management issues, he has not been able to attend any intensive programs which specifically focus on violent offending. The same can be said for the Applicant’s alcohol abuse issues. Although he has been accessing regular counselling, he has not been able to access intensive programs to address alcohol abuse and offending. The Tribunal does accept, however, that the Applicant has tried to access all programs and counselling available to him, which shows a motivation and willingness to change.
It is commendable that the Applicant undertook voluntary programs and counselling. He has also shown insight into his offending behaviour, including the relationship between his alcohol abuse and his offending, as well as the need to address his issues with anger management, which is why he is engaged in counselling with Relationships Australia (transcript/20-21). The Applicant has also expressed a desire to not reoffend as a result of completing these programs (Exhibit A1, paragraphs [94]-[101]). There is, however, no evidence before the Tribunal from the facilitators of these programs as to the extent of any gains made by the Applicant as a result of completing them, and the degree to which his likelihood of reoffending may be reduced.
The Applicant was granted release on parole by the Prisoners Review Board (the PRB) on 22 October 2019, to take effect from 24 November 2019 (SG2/291). However, upon release on parole the Applicant was taken into immigration detention before he could benefit from a period of supervision in the community. The PRB decided that the Applicant’s “release would present an acceptable risk to the safety of the community” for the following reasons (SG2/291):
1.    The salutary impact of your first term of imprisonment and your first opportunity for parole supervision
2.    A minimal court history with no prior violence.
3.    You being assessed as a low risk of reoffending and therefore not meeting the criteria for inclusion in treatment programmes. For this reason intensive treatment programmes in prison will not be available to you.
4.    The Board notes the Judges Sentencing Remarks (25 January 2019) that you are genuinely remorseful.
5.    Your participation in voluntary programmes prior to sentence including engagement with Palmerston to address your alcohol issues and engagement with Relationships Australia for your psychological and anger management issues.
6.    Your parole plan which includes confirmed suitable accommodation and family support.
7.    The fact the conditions of parole will further reduce the risk to the safety of the community.
8.    The fact that your supervision for the remainder of your sentence in the community to monitor your behaviour, assist your reintegration and rehabilitation is likely to offer more protection to the community in the long term than your release without any supervision at the end of your sentence.
9.    The Board notes that your visa was cancelled on 23 May 2019 and upon release you will be taken into immigration detention pending the outcome of your appeal from the cancellation. However, the Board considers that you have a viable parole plan in Western Australia in the event your appeal is successful.

A grant of parole is not made on the basis that there is no likelihood of the parolee

reoffending. Rather, a grant of parole is made on the basis that any risk to the safety of the community is able to be managed through regular reporting and the imposition of specific conditions. This is coupled with the possibility of a return to custody to serve out the balance of the prison term in the event of breach. This was explained by Deputy President Boyle in Peterson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1256, [75]-[77]:
75.While the Tribunal acknowledges that parole was granted, it also notes that the Parole Board is assessing risk for the period from the date the prisoner is released on parole until the expiry of the maximum sentence. The parole period is a period of supervision during which the prisoner, depending on the terms, will be supervised by, and report regularly to a community corrections officer who will monitor the prisoner’s compliance with the parole conditions imposed by the Board. That does not mean that the Parole Board is of the view that the Applicant is not a risk to the community, not even for the period of his parole.
The import of the parole order is that the Parole Board was of the view that, with monitoring and supervision during the period of parole, the Applicant did not pose an unacceptable risk to the safety of the community.
76.The comforts that the Parole Board have in making an order for parole are that, firstly, it can impose conditions and, secondly, if the prisoner re-offends or breaches the conditions imposed, he will be taken back into custody and out of the community. This Tribunal does not have the benefit of those comforts when assessing whether an Applicant is an acceptable risk. Once an applicant’s visa is restored, the applicant is released free and unconditionally back into the community.
77.The Tribunal also notes and agrees with Senior Member Dr Evans-Bonner [sic] comment in Varley and Minister for Home Affairs [[2019] AATA 376] at [110] that:
The Tribunal cannot, however, defer to the opinion of the PRB to the extent that the Tribunal fetters its own discretion. The Tribunal must undertake its own independent consideration of the Applicant’s likelihood of reoffending, based on the merits of the Applicant’s application before the Tribunal and the submissions and evidence before the Tribunal.
(see also Gage and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [[2020] AATA 326] at [107]].
(Footnotes omitted.)
In the Applicant’s circumstances, the parole order indicates that the PRB regarded the Applicant as still having some level of risk of reoffending, but that the risk could be managed with supervision and the imposition of specific additional parole requirements (conditions). This included imposing a curfew between 9:00pm and 6:00am, a requirement to attend frequent and random urinalysis for illicit substances and alcohol, not to consume alcohol, to submit to random breath testing and to attend programs and counselling as directed, amongst other conditions (SG2/292). Thus, the Applicant’s release on parole was an indication that the PRB regarded any risk to the safety of the community as manageable during the period of parole supervision under these imposed parole conditions.
Nevertheless, if the Applicant is released into the Australian community, he will be subject to parole supervision and the conditions and the additional requirements of parole until

24 September 2020. This is only a period of approximately two-and-a-half months monitoring and supervision from the date of this decision. This supervision may nevertheless provide some assistance to the Applicant to help him abstain from alcohol use and to reintegrate into the community and may consequently assist to reduce the likelihood of his reoffending.
The Applicant has a close relationship with, and the support of, his mother and sister who both gave evidence at the hearing. The Applicant’s mother stated that she loves him very much and will “support him wholeheartedly” including taking the Applicant to counselling (letter dated 21 May 2020 in Exhibit A2). At the hearing the Applicant’s mother further stated (transcript/72):
Well, when Ali was imprisoned I did have a good talk with him. I promised him that if he is - if he will stay in Australia, if the courts decide to leave him Australia, I will make sure I will be right beside him. I will make sure that he goes and continue to do his anger management course and alcohol counselling, as well as I will continue take him to church, because I know that that will help him very much. And, also, I was planning to take him back to have some studies, so he would have better, a bit of better education so he could have a better future with a better job (indistinct), opportunity.
The Applicant also has strong support from his sister and brother in law. In a letter dated 19 May 2020 (in Exhibit A2), the Applicant’s sister stated: “We will do our best to guide Ali, we will direct him onto the right path again and we promise you won’t be disappointed in our support we have to offer”. In her evidence at the hearing the Applicant’s sister stated that she had now realised how the earlier conflict between herself and her mother resulting in the Applicant being left alone had detrimentally affected him. She stated that she and her husband had returned to Perth from living interstate in April 2018 in order to support her brother (transcript/61-62). The evidence of the Applicant’s sister was that if the Applicant were able to stay in Australia, he would be able to live with her, her husband and their two children (transcript/62).
In the Applicant’s evidence he spoke of the importance of family in the Tongan culture and that as part of this role he wants to support his mother, sister, niece and nephew (transcript/26). The Applicant’s sister also spoke about the role of family in Tongan culture in her evidence at the hearing (transcript/63):
In our Tongan way it’s - it’s a really respectful way, because as a brother and a sister, a brother is always meant to be there for his sister, and always meant to respect his sister on the highest levels. And, also, with all the things that Ali gets, he’s meant to give the best things to his sister and also in the Tongan way if there’s any celebrations or anything that’s got to do with my children, Ali’s the one that has to stand up and represent my side of the family.
In his written statement, the Applicant stated (Exhibit A1, paragraphs [125]-[126]):
As someone who has felt very strongly about being the man and the provider in my family, I can’t bear leaving my family behind - especially not with my mum having such a normal life here. I also can’t bear the thought of leaving my little nephew behind and never knowing him. That would break my heart.
I also have a niece on the way who is due on 23rd June 2020, (2 days before my court appearing). I will be a uncle all over again to my first niece, I want to watch her grow with my nephew and just be there for them.
The Tribunal finds that the support that the Applicant has from his mother, his sister and his Church, are protective factors that will assist the Applicant not to relapse to alcohol use and reoffend. His intention to fulfil his family role as part of his Tongan culture, together with the Applicant’s desire to be part of the life of his niece and nephew are also likely to be protective factors which motivate the Applicant not to consume alcohol or to reoffend. The Tribunal notes that the Applicant has provided numerous letters of support from friends, members of the Tongan community, and members of his church (see character references in Exhibit A1 and A2; G22-G43). These letters are extensive and indicate that the Applicant has substantial community support. This is also likely to be a protective factor for him.
The Tribunal also had before it an independent psychological assessment of the Applicant dated 22 June 2020 by Dr Yoxall (Report). Dr Yoxall used two types of risk assessment to assess the Applicant. The first was the Violence Risk Appraisal Guide (VRAG) which was described in Dr Yoxall’s Report as “an actuarial tool for the prediction violent recidivism”. The results of this assessment were stated by Dr Yoxall as follows:
The recidivism estimates provided by the VRAG are group estimates based upon reconvictions and were derived from groups of individuals with these characteristics. As such, these estimates do not directly correspond to the recidivism risk of an individual offender. The offender’s risk may be higher or lower than the probabilities estimated in the VRAG depending on other risk factors not measured by this instrument.
On review of the normative sample used to develop the VRAG, the seven-year base rate of violent recidivism was 31% and the 10 year base rate of violent recidivism was 43%. Mr Nancarrow scored 15 on the VRAG which placed him in the VRAG category of 7. Fifty five percent of individuals in this category re offended within a 7-year period and 64% recidivated within a 10-year period. It is not possible to determine whether Mr Nancarrow is most similar to the 55% of the normative sample that reoffended within 7 years or the 45% of the normative sample that did not reoffend within 7 years.
As explained by Dr Yoxall, the results of this assessment tool were based on a normative sample of offenders, and so it was not possible to determine whether the Applicant would be in the category of the 55% of persons who reoffended or the 45% who did not.
Dr Yoxall also used the “Level of Service Inventory – Revised (LSI-R)” to assess the Applicant’s likelihood of reoffending. She stated the results to be as follows:
His score on the LSI-R is 17 and is primarily related to offence history and alcohol misuse. North American norms are commonly used in Australia for this measure. A score of 17 is categorised as a ‘low to moderate’ level of risk and criminogenic needs. In the normative sample approximately 31.1% of those who scored in this range reoffended and were re-incarcerated within 12 months. A score of 17 sits at the 22.4^th %ile indicating that 77.6% of those in the normative sample scored higher than him.
Dr Yoxall explained in her evidence at the hearing that because the results are also based on a normative sample, it would be incorrect to say that the Applicant had a 31.1% chance of reoffending within 12 months (transcript/85).
Dr Yoxall’s overall clinical assessment of the Applicant was that his risk of reoffending was “low”. Specifically, she stated (Report in Exhibit A2, page 25):
Overall, the static risk factors (prior offending and other historical matters) cannot be changed. However, dynamic risk factors are those that are changeable. For Mr Nancarrow these include alcohol dependence (currently in remission), emotional regulation, critical decision making, and vulnerability to mental illness. Mr Nancarrow has completed significant amounts of rehabilitation in regard to each of these dynamic risk factors, both within the community and during his period of immigration detention.
Mr Nancarrow has several protective factors in place, namely his family support, significant Church community support, cultural community support, improved eligibility for employment and contacts for possible employment.
In my opinion, the rehabilitation implemented to date, and the current prosocial support in place has reduced the dynamic risks and increased protective factors.
If protective factors remain in place, and Mr Nancarrow continues to implement new learnings and strategies in his day to day life and abstains from abuse of alcohol, his risk of reoffending, in my view is better described as ‘low’. In terms of his capacity to maintain remission of the alcohol misuse when in community, he has already shown some capacity for this in the months prior to incarceration, and he has established a clear relapse prevention plan but this will of course ultimately need to be demonstrated in community.
Dr Yoxall also acknowledged that if the Applicant were to relapse to alcohol use, his risk of reoffending would increase. She further acknowledged that her conclusion of the Applicant being a low risk of reoffending was based on the Applicant’s ability to abstain from alcohol. The following exchange is relevant (transcript/87):
SENIOR MEMBER:    Dr Yoxall, what is your view about the relationship between Mr Nancarrow and alcohol consumption and his offending in terms of the risk of reoffending?
DR YOXALL:   I think his risk of reoffending will immediately increase if he relapses to alcohol abuse.
SENIOR MEMBER:    All right?
DR YOXALL:   So I think that a core component of his risk of reoffending, measured at low, is on the condition that he abstains from alcohol.
During cross-examination, Dr Yoxall was also asked if her opinion that the Applicant was a low risk of reoffending would change if she had known about the other incidents involving the Applicant. These were the incidents discussed at paragraphs [70]-[77] above, which included alleged assaults bring committed whilst the Applicant was out at night and intoxicated. Her evidence was that (transcript/93):
it wouldn’t change my view that his risk of reoffending is related to his capacity to abstain from alcohol. It would just strengthen my view of that. I think the fact that those incidents did involve intoxication as you’ve described, is an - and all of them did and you’re not telling me of a scenario where he walked up to somebody and a sober state in some other state [sic] and assaulted them, it gives more evidence and more support to the view that this person needs to not drink again, and if he does drink again or fall into a pattern of drinking he’s at risk of reoffending.
And further, Dr Yoxall explained (transcript/94):
if he’s gone out drinking and got himself into another physical altercation of any kind, that adds to what we see as to the view that what he was doing in that period of time was slowly resolving, that substance use disorder. So what I’m saying is, I’m not surprised he’s relapsed and given that I think that his risk of offending is linked to his use of alcohol, that fits within my view of him and my case formulation of him. Whether that raises his risk of reoffending in the future, I don’t think that’s something I can really answer without going through and recalculating everything and reconsidering those components with greater detail. But essentially what you’ve described to me is within that same period there were other events that were alcohol related and potentially - and involved aggression, and that would sit with my view of him. It wouldn’t change it, substantially.
Having considered the evidence outlined above, the Tribunal accepts Dr Yoxall’s expert opinion that the Applicant is a low risk of reoffending if he can abstain from alcohol. Dr Yoxall’s opinion is supported by various protective factors, discussed above, which will assist the Applicant not to reoffend. These included the Applicant’s genuine remorse and insight into his offending; his resolve not to reoffend or to use alcohol again; the voluntary programs and counselling he undertook whilst awaiting sentencing and in prison and in immigration detention; the monitoring and support he will receive for the remainder of his parole (albeit for only a two month period); the support of his mother, sister and church community, as well as his desire to play a role in the lives of his young niece and nephew as their uncle; and his commitment to continue to engage in counselling in the community.
The Tribunal has also considered the fact that any treatment gains made by the Applicant were not able to be measured or reported upon by program facilitators and have been untested in the community. In the past, the Applicant has turned to alcohol when experiencing stressors in his life. Relevant examples of such stressors include the breakdown of the relationship between his mother and sister, the breakdown of his relationship with his girlfriend, and his feelings of financial stress and abandonment. The Tribunal is concerned that if the Applicant faces future life stressors, that he may return to alcohol use, which would increase his risk of violent offending. Indeed, Dr Yoxall’s opinion that the Applicant was a low risk of reoffending was premised upon the Applicant being able to abstain from alcohol, as well as being able to maintain his prosocial network.
Given the nature of the harm that violent offending can cause, including serious and/or permanent injury, impairment, loss of life, and/or psychological harm, the Tribunal is of the opinion that the harms that could potentially arise from similar offending may be so serious that any risk of this type of offending being repeated is unacceptable. Accordingly, the Tribunal finds that the principle set out in paragraph 6.3(4) of Direction No 79 is applicable. This paragraph provides:
In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
In summary, the serious nature of the harm that can result to victims of this type of offending means that even a low likelihood of reoffending in the future is unacceptable. Even though the likelihood of the Applicant reoffending is low, the nature and seriousness of the Applicant’s conduct, on balance, weighs strongly against the revocation of the cancellation of the Applicant’s Visa.
Second primary consideration: The best interests of minor children in Australia (Direction No 79 para 13.2)
Paragraph 13.2 of Direction No 79 provides, in part:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)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 13.2(4) of Direction No 79 continues to outline the factors that a

decision-maker must consider when determining the best interests of a child:
(4)In considering the best interests of the child, the following factors must be considered where relevant:
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 non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
Applicant’s nephew

The Applicant has a young nephew who is approximately 18 months old. Paragraph 13.2(4)(a) of Direction No 79 requires the Tribunal to consider the nature and duration of the relationship between the child and the Applicant. The Applicant’s nephew is the biological child of the Applicant’s sister and her husband, and so the relationship is non-parental. Although Direction No 79 provides that “[l]ess weight should generally be given where the relationship is non-parental” the Tribunal has considered the submissions of the Applicant about the important role of family in Tongan culture (Exhibit A1, SFIC, para [67]). These submissions indicate that the Applicant would take on the role of a type of father figure in his nephew’s life, irrespective of the fact that the child’s biological father continues to play a primary paternal role. The Tribunal therefore gives this paragraph more weight than it usually would when the relationship is non-parental.
Further, paragraph 13.2(4)(a) of Direction No 79 also continues to provide that less weight should generally be given if there is no existing relationship, long periods of absence, and/or limited meaningful contact. In this regard, the Tribunal notes that the Applicant’s prison term commenced on 25 January 2019 (SG1/171), when his nephew was approximately two months of age, and so he has not been able to have an in person relationship with his nephew (see transcript/26). In his evidence at the Tribunal hearing the Applicant stated that he last saw his nephew at the immigration detention centre before visits closed due to COVID-19, but that he had last “seen them [his nephew] …through the phone this morning” (transcript/26-27). In her evidence at the hearing the Applicant’s sister stated that (transcript/63):
Ali plays a big, big role in [nephew’s name omitted] life. I know Ali - as [the nephew is] Ali’s first ever nephew, my son is a very lucky son to have Ali. Ali’s role is - it’s really important, especially in our Tongan way.
However, the Tribunal interprets the assertion that the Applicant “plays a big, big role” in his nephew’s life to be aspirational, and as referring to the Applicant’s intended future role as an uncle. This is because, immediately following this statement, the Applicant’s sister explained the role of family in Tongan culture and the role that the Applicant would undertake in the family in the future. In a written statement dated 19 May 2020, the Applicant’s sister stated, “[p]lease give him [the Applicant] more time to be a great uncle to my son…” (Exhibit A2, pages 4-5). Also, as noted above, the Applicant has been in prison and immigration detention since the child was approximately two months of age.
If the Applicant can abstain from alcohol use and does not reoffend, he is likely to play a positive and active role in the child’s life. The Tribunal additionally finds that the child would likely benefit from having his uncle in his life (Direction No 79para 13.2(4)(b)).
There is no evidence that any prior conduct of the Applicant has had a negative impact on this child. Although, should the Applicant further develop his relationship with his nephew and commit any future offences, it may have a negative impact on his nephew if he is incarcerated or deported after forming an in person bond with the Applicant (Direction No 79 para 13.2(4)(c)).
The Tribunal finds that if the Applicant were to be returned to New Zealand, it would likely have a negative effect on the child. Although the Applicant would be able to maintain contact with his nephew by telephone or other electronic means, the child would nevertheless be deprived of having an in person relationship with his uncle, who as part of his Tongan heritage is expected to play an important role in the child’s life as a loving uncle and a type of father figure (Direction No 79 para 13.2(4)(d)).
The Applicant’s sister and her husband, who are the child’s parents currently fulfil the parental role in relation to this child (Direction No 79 para 13.2(4)(e)).
The child is only 18 months of age, and there are no known views of the child before the Tribunal (Direction No 79 para 13.2(4)(f)).
There is no evidence that the Applicant has abused or neglected his nephew in any way in the past (Direction No 79 para 13.2(4)(g)), nor is there any evidence that he has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct (Direction No 79 para 13.2(4)(h)).
Having assessed the above considerations of Direction 79 regarding the Applicant’s nephew, the Tribunal concludes that the best interests of the Applicant’s nephew weigh moderately in favour of revocation of the Cancellation Decision.
Newborn Niece
The Applicant has a newborn niece who was approximately two weeks old at the time of the hearing (transcript/63). The Applicant’s sister gave evidence that she and her husband asked the Applicant to name the child, which he did (transcript/63).
At the time of the hearing, the Applicant had not yet had seen his niece in person because she was born whilst he was in immigration detention, and after the COVID-19 pandemic when detention centres were shut to external visitors. Although there is currently no existing relationship or contact, as noted above for the Applicant’s nephew, the Tribunal accepts that as a part of the family’s Tongan culture, the Applicant is likely to have significant involvement in his niece’s life as her uncle (Direction No 79 para 13.2(4)(a)).
If the Applicant can abstain from alcohol use and does not reoffend, he is likely to play a positive and active role in his niece’s life. The Tribunal additionally finds that the child would likely benefit from having her uncle in her life (Direction No 79 para 13.2(4)(b)).
The Applicant’s niece is a newborn, and so there is no evidence that any prior conduct of the Applicant has had a negative impact on the infant. If the Applicant were to develop a relationship with his niece and become a part of her life, this would likely have a negative impact on her in the event the Applicant were to commit any future offences, is incarcerated or deported (Direction No 79 para 13.2(4)(c)).
The Tribunal finds that if the Applicant were to be returned to New Zealand, it would likely have a negative effect on his niece. The Applicant would be able to maintain contact with his niece by telephone or other electronic means. However, this would mean that she is unable to have an in person relationship with her uncle, which, as described above, would likely reflect a type of father-figure relationship, consistent with the family’s Tongan cultural background (Direction No 79 para 13.2(4)(d)).
The Applicant’s sister and her husband, who are the child’s parents, currently fulfil the parental role in relation to this child (Direction No 79 para 13.2(4)(e)).
The consideration regarding the views of the child is not applicable because the Applicant’s niece is a newborn (Direction No 79 para13.2(4)(f)). Similarly, the considerations in Direction No 79, paragraphs 13.2(4)(g) and 13.2(4)(h) are also not relevant, as the child is a newborn and the Applicant has not had any contact with the child.
Having assessed the above considerations under Direction 79, the Tribunal finds that the best interests of the Applicant’s niece also weigh moderately in favour of revocation of the Cancellation Decision.
Third primary consideration: Expectations of the Australian community (Direction No 79 para 13.3)
Paragraph 13.3(1) of Direction No 79 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Until recently there was a lack of clarity concerning the interpretation of this primary consideration. For a time, the accepted position was that of Mortimer J in YNQY vMinister for Immigration and Border Protection [2017] FCA 1466 (YNQY), [76]-[77]. However, subsequently, two decisions of the Federal Court have adopted slightly different approaches to that of YNQY (DKXY v Minister for Home Affairs [2019] FCA 495 and FYBR v Minister for Home Affairs [2019] FCA 500).
This ambiguity was clarified by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 374 ALR 601 (FYBR (FC)). The plurality generally agreed with the approach adopted by Mortimer J in YNQY where her Honour stated:
[76]In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to ‘tolerance’) the Australian community’s ‘expectations’ are defined only in one particular way: namely, that the Australian community ‘expects’ non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77]I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]–[66]).
(Emphasis added.)
The plurality of the Full Court in FYBR (FC) followed Mortimer J’s characterisation of the community expectations primary consideration. Although FYBR (FC) concerned a refusal to grant a visa under the previous Direction No 65, it is equally applicable to the current Direction No 79 as there were no changes to the wording of paragraph 11.3 (which concerns visa refusal), when the Direction was updated. Additionally, paragraph 13.3 (which concerns whether it is appropriate not to revoke a mandatory visa cancellation) is substantially similar in its expression of community expectations.
FYBR (FC)
confirmed that the community expectations primary consideration operates as a kind of deeming provision (see Charlesworth J at 617 [61] and Stewart J at 622 [89]). That is, paragraphs 11.3 and 13.3 contain a statement of the government’s views as to the expectations of the community. The decision-maker (in this case the Tribunal) must have due regard to those views. As noted by Charlesworth J at 618 [67], “[i]t is not for the decision maker to make his or her own assessment of the community expectations…”

And further, as noted by Stewart J at 622 [91], “‘community expectations’ as expressed normatively are what the Government says they are, even though in actual fact if they were ascertainable community expectations might be quite different”.
Even though the community expectations primary consideration operates as a kind of deeming provision, it does not determine the outcome of the overall decision. As stated by Stewart J, at 622 [91] “‘community expectations’ as expressed by the Government do not speak to the outcome in any particular case”. This is because community expectations comprise one primary consideration which must be weighed against the remaining primary and other considerations in the exercise of discretion under Direction 79. Thus, as Charlesworth J stated at 620 [79], “[i]n an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be”. Although in most cases community expectations will not favour

revocation of a cancellation decision, the provision does not dictate an inflexible conclusion (Charlesworth J at 620 [75] and Stewart J at 623 [97]) and it is up to the decision-maker to determine the weight to be applied to this consideration (Charlesworth J at

620 [76]-[77] and Stewart J at 624 [102]).
The community expectations primary consideration was summarised succinctly by Stewart J as follows (at 624 [101]):
…community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.”
For a comprehensive summary of the Full Court’s decision in FYBR (FC), see Member Burford in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424, [162]-[170].
Having regard to the judgments of Stewart and Charlesworth JJ in FYBR (FC),

the Tribunal must give effect to the norm stipulated in paragraph 13.3 of Direction No 79 (that the Australian community expects non-citizens to obey Australian laws while in Australia), which will, in most cases, weigh in favour of refusing to revoke the cancellation decision.
The Tribunal has found the Applicant’s offending, particularly his “grievous bodily harm” and “assault occasioning bodily harm” offences to be very serious. The Tribunal is guided by the principle in paragraph 6.3(2) of Direction No 79 which states that “[t]he Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere”. Paragraph 6.3(3) of Direction No 79, in summary, provides that non-citizens who have committed serious crimes, including crimes of a violent or sexual nature, should generally expect to be denied the privilege of staying in Australia. The construction of paragraph 13.3 of Direction No 79 confirmed in FYBR (FC), together with these principles, supports the conclusion that the Australian community would expect the Applicant’s Visa to remain cancelled. Consequently, the Tribunal finds that the expectations of the Australian community would be that the Cancellation Decision should not be revoked.
The Tribunal will discuss the weight to be given to this consideration at the conclusion of these reasons for decision as part of the overall weighing exercise.
OTHER CONSIDERATIONS
Paragraph 14 of Direction No 79 provides:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)    International non-refoulement obligations;
b)    Strength, nature and duration of ties;
c)    Impact on Australian business interests;
d)    Impact on victims;
e)    Extent of impediments if removed.
International non-refoulement obligations
The Tribunal is required to consider whether Australia’s international non-refoulement obligations (Direction No 79 para 14.1) arise in any of the submissions, materials or evidence before the Tribunal.
At the hearing, the Applicant’s evidence was that he was concerned about gang related crime, guns and shootings if he were returned to New Zealand (transcript/54). There is, however, no objective or corroborative evidence which supports these assertions from the Applicant.
The Tribunal cannot conclude that Australia’s non-refoulement obligations are engaged, and regards this consideration as not being applicable to the matter currently before the Tribunal.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No 79 provides:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of
non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Relevantly, paragraph 6.3(5) of the principles section of Direction No 79 states:
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
Further, paragraph 6.3(7) of the principles section of Direction No 79 states, in part:
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
As noted above, the Applicant arrived in Australia as a 12-year-old child. He has lived in Australia for approximately eight years. The Applicant spent his teenage years in Australia, attending school in Australia until year 11 at which point he ceased secondary education. (transcript/15 –16).
The Applicant does not have any history of offending as a juvenile but started offending when he was 18 years of age.
The Applicant has made positive contributions to the Australian community through his employment and volunteer work. The Applicant’s evidence was that when he left school, he commenced work picking grapes and later worked on an almond farm. This involved driving tractors and packing containers. He also worked in hospitality until he went to prison (transcript/16-17). He also stated that he had undertaken volunteer work with the Uniting Church by performing to the homeless in the Church band as well as helping to feed them. The Applicant has been involved in door knocking with the Mormon Church “to help teach the gospel to the community” (Applicant’s written statement in Exhibit A1, paragraph [113]).
The Applicant also has strong family ties to Australia. His mother, sister, brother-in-law, infant niece and 18-month-old nephew live in Australia. His sister and brother-in-law have moved back to Perth from Melbourne in order to support him, and the Applicant will live with them if he is released into the Australian community.
The Applicant’s sister gave the following evidence at the Tribunal hearing as to how it would affect her and her family if the Applicant were to be returned to New Zealand (transcript/62):
I think it would affect me daily, long term. It’s very hard when you only have one sibling, so, I can’t really explain how I would feel, but it just hurts thinking about it. I don’t think my children will get see their only uncle every day. My mother, who only has two children, I think it’s going to affect us really, really much. Yes, like I said, we’ve been really tight, so, it’s going to be very hard to see him go, because, yes, we plan on living here in Australia. We don’t have any family in New Zealand whatsoever. That’s why it’s really hard for us. But, so, yes, it’s going to affect me definitely. It’s going to affect me, yes, I think daily. I’m just thinking about it. I actually need my brother here to support me as well, as he is my only sibling. Yes, I just - I just don’t want to picture him gone. Sorry.

In a written statement dated 19 May 2020 (in Exhibit A2), the Applicant’s sister also stated that her husband was injured at work and had not been able to return to work for the last 10 months. If the Applicant is permitted to stay in Australia, and lives with his sister and her family, he may also be able to assist them financially once he finds employment.
The Applicant also gave evidence about the impact on his mother and sister if he were returned to New Zealand (transcript/25):
Yeah, so my concerns of maybe getting deported back to New Zealand and how it’s going to affect my family is that my mother needs me. My sister needs me and (indistinct) actually really needs me and to get departed back there to a place where I don’t know well, got no family, no ties, no support system, like and to have my mum say that she wants to come back with me and struggle, like I don’t want that for her. Like she’s already got her life here, she’s got everything here, she’s happy and I don’t want to be the one who takes that away from her. So my concerns are that I will be - that I will destroy their lives too. I’ve already done it whilst being stupid and reckless and going to gaol and coming there and taking their time and their money, their efforts to come and see me, so I don’t want to do that again to them.
The Tribunal also notes the Applicant’s evidence that he wants to work hard and one day buy a house for his mother (Applicant’s written statement in Exhibit A1, paragraph [97]). The Tribunal accepts the evidence of the Applicant’s mother and sister and finds that the Applicant being returned to New Zealand would have a detrimental emotional impact on them, and in addition, may impact upon them financially.
As noted above, the Applicant’s sister was also hopeful that the Applicant would have significant involvement with her children, being the Applicant’s niece and nephew. Her evidence (as well as the Applicant’s) was that family was an important part of their Tongan culture. If the Applicant were returned to New Zealand, his niece and nephew would be deprived of their uncle having significant involvement in their upbringing.
The Applicant also has an aunt, uncle and two cousins living interstate. The many character references in support of the Applicant in the evidence before the Tribunal show that the Applicant has a broad network of family friends in Australia. He also has social connections and support within the Tongan community, the Mormon Church, and the Uniting Church (see generally, Applicant’s written statement in Exhibit A1 paragraphs [102]-[114]).
The Tribunal finds that the Applicant has close ties to Australia, particularly with respect to him having resided in Australia since he was a 12-year-old child. He has family and friends in the community who would be emotionally impacted by his removal and who are willing to offer him support.
The Tribunal finds that the Australian community would have a higher level of tolerance for the Applicant, given that he has resided in Australia since he was a child (Direction No 79 para 6.3(5)). However, this tolerance would be somewhat tempered by the Applicant having committed serious criminal offences when he was 18 years of age. Nevertheless, the Tribunal finds that this consideration of the strength, nature and duration of the Applicant’s ties to Australia weighs strongly in favour of the revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 14.3(1) of Direction No 79 provides that the Tribunal is to consider the:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This consideration does not arise on the material before the Tribunal and is therefore not relevant.
Impact on victims
Paragraph 14.4(1) of Direction No 79 provides that the Tribunal is to consider the:
Impact of a decision not to revoke 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 that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The victims of the Applicant’s “assault occasioning bodily harm” offences, who are referred to above as AG and SG, both submitted written statements to the Tribunal. Both statements supported the Applicant’s Visa being reinstated and the Applicant being permitted to stay in Australia. Additionally, both victims stated that they would not fear for their safety if the Applicant were permitted to stay in Australia (Exhibit A2, pages 8, 10).
This consideration does not, however, concern the views of victims, but rather the impact that a decision not to revoke the Cancellation Decision would have upon them. There is nothing to suggest that a decision to remove, or not to remove, the Applicant from Australia would have any impact on AG, SG or their families. Consequently, the Tribunal finds this consideration to be neutral.
Extent of impediments if removed
Paragraph 14.5(1) of Direction No 79 provides:
(1)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 substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
The Applicant is currently 20 years of age and is in good physical health. The Applicant expressed concerns for his mental health if he were returned to New Zealand (Applicant’s written statement in Exhibit A1, paragraph [127]). In her evidence at the hearing Dr Yoxall confirmed that whilst the Applicant felt anxious about his potential deportation, he did not currently meet the diagnostic criteria of depression or anxiety (transcript/88). The Applicant had previously described himself as a “depression drinker” (transcript/21). Dr Yoxall’s report indicated that the Applicant had, “denied any formal personal psychological or psychiatric history.” (Exhibit A2, 20). She did however note that in the course of her assessment, the Applicant indicated that he now, in hindsight, believes that he was in fact depressed both prior to his offending, and for the period of his offending (Exhibit A2, Report, page 20). When asked about the Applicant’s self-description as a “depression drinker,” Dr Yoxall inferred that the Applicant had suffered from depression in the past which she described as “a key driver to the commencement and perpetuation with alcohol abuse” (transcript/94).
The Applicant has no social support in New Zealand. He does not have any family or friends there. Having lived in Australia since the age of 12 years, he would undoubtedly face difficulties in establishing himself in New Zealand. The separation from his family members in Australia, including his mother, sister, brother-in-law, nephew and niece, as well as being in an unfamiliar country, would likely prove to be emotionally challenging. Such a situation may also be detrimental to the Applicant’s mental health and his recovery from alcohol abuse.
The Applicant did, however, agree under cross-examination that there is a large Mormon faith population in New Zealand and that if he were returned there, he would seek support from the Church (transcript/55). If he were able to do so, the Church may be able to offer him some social support that would assist him to adjust to life in New Zealand.
There are no language or substantial cultural barriers that would constitute an impediment to the Applicant returning to New Zealand. The Applicant would have access to the same services as other citizens of New Zealand, including economic support, social security, and access to education, employment and health services.
The Respondent submitted that New Zealand has organisations that assist persons who are removed from Australia to New Zealand. One of these organisations is People at Risk Solutions (PARS) (Exhibit R3, paragraph [52]). The Respondent cited Deputy President Dr Kendall (as he then was) in CFVG and Minister for Immigration and Border Protection [2017] AATA 1395, [90]:
The Tribunal also notes the considerable efforts of organisations like PARS to assist deportees from Australia to New Zealand. This is a significant social undertaking and its benefits to men like CFVG should not be underestimated…
In his evidence at the hearing the Applicant stated that he was not aware of this assistance but agreed he would contact them if he is returned to New Zealand (transcript/55). If he does so, this organisation may be able to provide the Applicant with some form of assistance in resettling.
The Applicant has some work experience and has completed some vocational training which may assist to a certain degree when he is seeking employment. The Tribunal also notes that the duration and impact of the COVID-19 pandemic is uncertain. This would likely enhance the difficulties and uncertainties that the Applicant would face in re-establishing himself, finding employment and accessing support services if he were returned to New Zealand.
Overall, the Tribunal finds that the Applicant is likely to encounter difficulties establishing himself and maintaining a basic standard of living if he were to return to New Zealand. He is a very young man, who would face separation from his immediate family. Accordingly, he would likely experience emotional hardship and possible negative impacts on his mental health and his recovery from alcohol abuse. However, these difficulties are not insurmountable, and in the Applicant’s circumstances, there are organisations such as PARS, as well as the Mormon Church, both of which may be able to provide some assistance and support to the Applicant. The Tribunal finds that this consideration weighs moderately in favour of the revocation of the Cancellation Decision.
Impact of COVID-19 pandemic
If the Tribunal does not revoke the Cancellation Decision, s 198 of the Migration Act provides that the Applicant must be removed to New Zealand as soon as is reasonably practicable. It may not, however, be possible for the Applicant to be removed in the immediately foreseeable future due to restrictions on international travel caused by the COVID-19 pandemic. This means that the Applicant may face an additional period of detention before it will be reasonably practicable to remove him to New Zealand. As noted by Member Eteuati in FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294, [299] the period of detention is likely to be “prolonged but not indefinite … until the risk presented by the virus … subsides”.
The potential that the Applicant may need to spend additional time in immigration detention if the Cancellation Decision is not revoked, weighs slightly in favour of the revocation of the Cancellation Decision.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
The Tribunal has therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 79.
In relation to the first primary consideration, the Tribunal finds that:
(a)the nature and seriousness of the Applicant’s conduct weighs strongly against the revocation of the Cancellation Decision (Direction No 79 paras 13.1, 13.1.1); and
(b)the nature of the harm that could result if the Applicant were to engage in further violent offending is very serious. Even a low likelihood of reoffending is unacceptable. Consequently, the consideration of the risk to the Australian community should the Applicant commit further offences weighs strongly in favour of the Tribunal refusing to revoke the Cancellation Decision (Direction No 79 para 13.1.2).
Overall, with respect to the first primary consideration, the Tribunal concludes that the protection of the Australian community (Direction No 79 paras 13.1, 13.1.1, 13.1.2), weighs strongly in favour of the Tribunal refusing to revoke the Cancellation Decision.
With respect to the second primary consideration, being the best interests of minor children (Direction No 79 para 13.2), the Tribunal finds that the best interests of the Applicant’s nephew and niece weigh moderately in favour of the revocation of the Cancellation Decision.
In relation to the other considerations that are applicable:
(a)the strength, nature and duration of the Applicant’s ties to Australia (Direction No 79 para 14.2(1)) weigh strongly in favour of the revocation of the Cancellation Decision;
(b)the impact of a decision not to revoke the Cancellation Decision on victims is neutral (Direction No 79 para 14.4(1)); and
(c)the impediments the Applicant would face if returned to New Zealand weigh moderately in favour of the revocation of the Cancellation Decision (Direction No 79 para 14.5(1)).
The other considerations listed in paragraph 14 of Direction No 79 are not limited to those listed. Therefore, the Tribunal can consider other considerations it regards as relevant. Consequently, the Tribunal has considered the impact of the COVID-19 pandemic, including the uncertain period that the Applicant may face in immigration detention if the Reviewable Decision is affirmed. This consideration weighs slightly in favour of the revocation of the Cancellation Decision.
The Tribunal has found that Australia’s non-refoulement obligations are not engaged as a result of any claims raised by the Applicant.
The Tribunal has found that the expectations of the Australian community would be that the Cancellation Decision should not be revoked. In determining the weight to be applied to this consideration, the Tribunal has considered the primary considerations, including the serious nature of the Applicant’s offences which include grievous bodily harm and assault occasioning bodily harm. The Tribunal has also considered the Applicant’s attempts at rehabilitation, his protective factors and his low risk of reoffending. However, it was concluded that, given the seriousness of the Applicant’s violent offending, even a low risk of the offending being repeated was unacceptable. Overall, the first primary consideration weighed strongly against the revocation of the Cancellation Decision.
The Tribunal has also balanced this consideration against those which weigh in the Applicant’s favour. Firstly, the primary consideration of the best interests of minor children, weighs moderately in favour of revocation of the Cancellation Decision. Additionally, the Tribunal has considered the impediments the Applicant would face if he were returned to New Zealand. This consideration weighs moderately in his favour, as well as his ties to Australia which weigh strongly in his favour. The Tribunal has also considered the impact on victims which is neutral, and the prospect of detention for an additional period due to COVID-19 restrictions, which weighs slightly in favour of revocation.
The Tribunal has assessed these considerations proportionally and has considered the relevant principles in Direction No 79, including the principle in paragraph 6.3(4). This, in summary, provides that in some circumstances criminal offending and the harm that would be caused if it were to be repeated may be so serious that any risk of similar conduct in the future is unacceptable (which in the Tribunal’s opinion includes violent offending). The Tribunal concludes that the expectations of the Australian community would weigh strongly against the revocation of the Cancellation Decision (Direction No 79 para 13.3).
Accordingly, the Tribunal finds that the primary considerations of the protection of the Australian community and the expectations of the Australian community substantially outweigh the other relevant considerations. These are the primary consideration of the best interests of the Applicant’s niece and nephew, the other considerations of the Applicant’s strength, nature and duration of ties to Australia, the extent of impediments if removed and his potential detention for an uncertain period of time due to COVID-19 travel restrictions.
Having had regard to all the relevant primary considerations and the relevant other considerations in accordance with Direction No 79, the Tribunal is of the view that the correct or preferable decision is not to revoke the Cancellation Decision, and consequently, the Reviewable Decision should be affirmed.
DECISION
The Reviewable Decision dated 16 April 2020 is affirmed.

I certify that the preceding 187 (one hundred and eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

........................[sgd].............................................
Associate
Dated: 7 July 2020

Date of hearing:

25 and 26 June 2020

Representative for the Applicant:

Representative for the Respondent:

Mrs J Samuta, Samuta McComber Lawyers

Mr A Gerrard, The Australian Government Solicitor

[2020] AATA 2117

7 July 2020

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Remedies

Standing