Nicholson and Minister for Immigration and Multicultural Affairs - [2024] ARTA 20

Applicant/s:  Adam Dean Nicholson
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/8210

Tribunal:Senior Member S Thode
Place:Sydney
Date:27 December 2024
Decision:The Tribunal sets aside the decision under review and in substitution decides that the cancellation of the applicant’s visa be revoked.

......................[SGD]..................................................
Senior Member S Thode
Catchwords
MIGRATION – s 501(1) of the Migration Act 1958 (Cth) – where the applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation – family violence –where the applicant suffers from a mental illness that contributed to offending – Direction no. 110 considered – common assault on members of the public – strong ties to Australia where applicant arrived as an infant and has lived his life in Australia – impediments to removal where applicant severely cognitively impaired and suffering from chronic schizophrenia – no familial ties to New Zealand – sole relative is the applicant’s brother and carer – decision under review is set aside.
Legislation
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Migration Act 1958 (Cth)
Cases
CRNL v Minister for Immigration Citizenship and Multicultural Affairs[2023] FCAFC 138
Deng v MICMSMA [2021] FCA 1456
Nguyen v Minister for Home Affairs [2019] 270 FCR 555
Suleiman v Minister for Immigration [2018] FCA 594
Secondary Materials
Direction No 110 – Migration Act 1958 – Direction under section 499 – Visa Refusal and Cancellation under section 501 and revocation of mandatory cancellation of a visa under section 501CA
Statement of Reasons

This is an application by Mr Adam Nicholson seeking a review of the decision of the delegate of the respondent dated 16 October 2024. The decision of the delegate under section 501CA(4) of the Migration Act 1958 (Cth) (the Act) was published on 4 October 2024. On 7 October 2024, the delegate declined to revoke the Minister’s decision to cancel the applicant’s Absorbed Person visa by operation of section 501(3A).
The applicant was released from jail on 18 December 2023 after serving five months of a 15 month sentence imposed for assault on two members of the public. The sentencing remarks make it clear that the Court was of the view that the offending and the assault on two members of the public was of sufficient severity to warrant a custodial sentence. As such, the Court was not minded diverting the applicant from the criminal justice system by way of a community corrections order or intense corrections order. An aggregate sentence of 15 months, with a non-parole period of five months was imposed and, in these circumstances, the applicant’s visa was cancelled.
The applicant applied to have the visa reinstated. The delegate considered two questions under section 501CA(4)(b) of the Act. The first was whether the applicant passed the character test prescribed under s501(6). The delegate decided that, in light of his lengthy criminal history the applicant did not pass the character test. The second question the delegate had to consider was whether there was ‘another reason’ warranting the revocation of the visa cancellation and the delegate concluded that there was no other reason why the cancellation decision should be revoked. Accordingly, the power in s501(CA)(4) was not enlivened and the applicant’s Absorbed Person visa remains cancelled.
For the reasons that follow I have decided to set aside the delegate’s decision not to revoke the Minister’s decision to cancel the applicant’s visa.
BACKGROUND FACTS
The applicant is a 47-year-old New Zealander, who was born on 23 August 1977. His movement records indicate that he arrived as an infant in Australia on 30 April 1979 and has remained in Australia ever since. The following facts are not controversial. The applicant had a traumatic childhood at the hands of his abusive father with whom he lived for a time exclusively while his mother and brother, Mr Edward Nicholson, lived separately. The applicant left Homebush Boys High School in year 10 and went on to work in a bicycle repair shop for several years. He worked odd labouring or painting jobs and has only intermittently participated in paid employment. He is a single man and has never been in a relationship. In 1998, he was assaulted by an unknown assailant acquiring a severe brain injury and in 2003 he was diagnosed with chronic schizophrenia. He has been in receipt of a disability support pension since about 2004. The applicant’s father became his full-time carer, which the applicant stated led to further financial and physical abuse, culminating in the applicant’s sexual assault by an associate of his father which the applicant described as ‘lifechanging’.[1] The assault was reported to the Police but as the applicant was unable to identify the assailant, no charges were laid. In 2014 the applicant’s mother was diagnosed with breast cancer at a time when she, the applicant and his brother resided in a one-bedroom apartment in Concord. In 2015, Mr Edward Nicholson became his brother’s full-time carer and received a carer’s pension. In 2018, the applicant’s mother passed away and the applicant ‘ran away’ and became homeless. The applicant has a history of cannabis and alcohol abuse which is reported in the documents tendered by the respondent, in particular the Community and Justice Corrective Services records.
[1] Oral evidence Applicant 13 December 2024.
The applicant’s brother remains the applicant’s carer. When he is not incarcerated or sleeping rough, the applicant lives with his brother in a one-bedroom flat in Lakemba. The applicant was sleeping rough in a tent on Eastwood oval when he was apprehended by Police on 7 October 2024. He was detained in a mental health facility at the Kiloh Centre of the Prince of Wales Hospital pursuant to s19(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). On admission he was described as hallucinating and a risk to others and at risk of further deterioration.[2] He was released from the mental health facility on 21 October 2024 and at the time of the hearing was in custody at the John Morony Correctional Complex.
[2] Prince of Wales Order for Assessment p3.
The applicant’s criminal history
The applicant’s lengthy criminal history is detailed in the National Criminal History Check.[3] The applicant’s offending history is extensive. It includes bail breaches, hindering police, drug offences, common assault, unlawful possession of stolen property, peep and pry and critically, the assault on two members of the public which led to the cancellation of the applicant’s visa.
[3] Ex G p32.
The applicant’s visa was mandatorily cancelled on the basis that he was convicted of two counts of common assault for which he received an aggregate sentence of 15 months and one count of resist arrest for which he received a community corrections order. As the applicant was not represented and as he tendered no documents other than emails provided by his brother Mr Edward Nicholson, I consider it relevant to set out the medical information considered by the sentencing Court.
The sentencing remarks contain the only available medical evidence relevant to the applicant’s risk of re-offending as well as the references to a medical report of Dr Elliot. The report was not produced in the summonsed documents and the Tribunal has been unable to obtain a copy of the psychological report. I have taken the Court’s references to the medical evidence and the sentencing remarks into account, and I consider it necessary to set out the sentencing remarks verbatim:
In relation to H ending in 862, this is the assault on the two strangers who were in the Eastwood area, one walking along the street and the other person on the railway station. In relation to that matter, I have taken into account the facts and I have determined that the only appropriate sentence is one of imprisonment. I have taken into account the sentencing assessment report [my emphasis added] that has been filed in relation to these matters. …
There are concerns in relation to community safety. I am satisfied that the matters are too serious in nature to be dealt with by way of intensive corrections order and I am not satisfied that the community will be best served if Mr Nicholson was to serve his term of imprisonment by way of intensive corrections order. In relation to those two matters, I have made an aggregate sentence. I have varied the statutory ratio and I will give my reasons for that.
The facts in relation to the two assaults are these; a lady was walking along the street in Eastwood and without notice Mr Nicholson was speaking to somebody and the victim in that matter went up and tried to assist with the altercation by breaking it up. The victim continued to walk towards a premises called Club Eastwood. The defendant asked her for money, she did not have any so she declined his request. He grabbed her glasses off her face and threw them on the ground, then he kicked the glasses under a car. Then the victim one continued to walk away from the defendant, when the defendant suddenly came in front of her, took her car keys from her and threw the car keys on the pavement. The victim picked up the car keys and began again to walk towards this club. Mr Nicholson pushed her by striking her on the right shoulder. As a result of that, the victim fell to the ground on her left side hitting her left shoulder and the left side of her head. She felt immediate pain. She had some abrasions and bleeding and there was swelling on the side of her head.
On the same day but later, the defendant was on the platform of Eastwood railway station on platform one and he went up to the victim and asked her for money. That was declined. He then made some comment about the phone. The victim has told him to go away. He then stepped on her right foot, holding it down and then he backed away and then he came back towards the victim again, standing on her foot, the same foot. He got up close to her and then pushed her hard in the front shoulder area that caused her to move sideways. The victim then grabbed Mr Nicholson’s wrist and then other bystanders came to assist.
In relation to that matter, I have read reports in relation to Mr Nicholson. He has a longstanding history of schizophrenia, untreated for a long time it seems and it seems that this offence occurred during that period.[my emphasis added] He was homeless for a time living in a tent at Eastwood oval. I have read a number of reports concerning him which indicate his longstanding history of schizophrenia.
Recently, Dr Elliot psychiatrist has prepared a report and prepared a treatment order which I am aware of. Mr Nicholson is not a person that is suitable for general deterrence. He does, however, need to be personally deterred from committing this sort of offence, despite the fact that he has a mental condition.
There is treatment available for him. I have taken into account the effect of these offences on both victims. Mr Nicholson needs to be adequately punished for this offending. His conduct needs to be denounced. I have taken into account the sentencing assessment report which states there is little insight so there is a little bit but not much. Perhaps there is more now that Mr Nicholson has been treated whilst he has been in custody. He has been subject to previous supervision and it has been deemed satisfactory. He is a medium risk of reoffending [my emphasis added]. As I said, Mr Nicholson needs to be personally deterred. In relation to that matter, I impose this aggregate sentence; I have afforded to Mr Nicholson the full 25% discount on sentence. Whilst this matter has been in the list for a very long time since September 22 so more than 12 months, nonetheless I have afforded him the full 25% discount on sentence. THE TOTAL SENTENCE IS 15 MONTHS IMPRISONMENT AND I SET A NON-PAROLE PERIOD OF FIVE MONTHS.
The applicant’s National Criminal History Check confirms that on 19 October 2023 the applicant was convicted at Burwood Local Court for two counts of common assault for which the applicant was sentenced to an aggregate term of imprisonment of 15 months (as per [9] above).
On the same day the applicant was also convicted of common assault for which he was sentenced to a community corrections order for two years; hinder or resist a police officer in the execution of duty, for which he was sentenced to a community corrections order for 12 months; fail to appear in accordance with bail acknowledgment, for which he was convicted and received no further penalty; shoplifting (two counts) and goods in personal custody suspected being stolen for which he was fined.
In respect of the charges of possess prohibited drug, hinder police, common assault, the shoplifting charge and the goods in custody matter the Court took no action but varied an existing community correction order.
The applicant also committed crimes of a sexual nature against a female child. The applicant sat on the footpath bench next to the victim and placed his hand on the victim’s right breast and continued to rub the immediate area. It is submitted by the respondent that this is an offence of a sexual nature against a particularly vulnerable member of the community, a female who at the time was a 17-year-old minor.
On 30 March 2017, the applicant was sentenced to an order to comply with treatment plan for two years for indecently assaulting the 17-year-old female on 25 December 2016. The applicant appealed but the conviction and sentence were confirmed on appeal on 6 February 2018.
On 23 January 2002, the applicant was convicted of ‘peep or pry’ and theft and sentenced to 18 months commission. The applicant was convicted of prying on his female neighbour and stealing her watch and underwear.
The applicant was convicted of ‘resist officer in execution of duty’ on 7 October 2008;[4] and ‘hinder or resist police officer in the execution of duty’ on two counts on 19 October 2023.[5]
[4] GD 35 RB 163.
[5] GD 33 RB 51 to 53.
The applicant has also been convicted of offences of family violence. On 12 July 2013, the applicant was convicted of common assault for assaulting his mother on 8 July 2013. The applicant grabbed his mother’s wrist with his right hand in a hostile manner and slapped his mother across the face on two separate occasions with his open left hand. Once the applicant had let go of his mother’s hand, he continued to make intimidating advances towards her.
On 7 October 2008, the applicant was convicted of common assault. The police facts sheet in relation to that offence state that the applicant struck the left side of his mother’s head with his open hand and twisted his mother’s left arm by her wrist. I am satisfied that for the purpose of paragraph 8.1.1(1)(iii) this constitutes family violence and I must have regard to the fact that such violence is viewed very seriously by the Australian Government and the Australian community.
The applicant has been convicted of multiple types of resisting police. This is viewed seriously by the Australian government and community under paragraph 8.1.1 (1) (b) (ii).
The applicant’s evidence
The applicant was unrepresented and supported by his brother, Mr Edward Nicholson. The documentary evidence provided was minimal and was admitted without objection. For completion I have set out the evidence as follows:
·Statement of Mr Adam Dean Nicholson, signed 13 December 2024 (Exhibit A1)
·Email of Mr Edward James Nicholson, unsigned, dated 18 November 2024 (Exhibit A2)
·Medical report of Dr Ashraf Aboud dated 2 March 2024. (Exhibit A3)
·Email of Mr Nabil Raad, unsigned, dated 8 March 2024. (Exhibit A4)
·Letter of Mr Dayle Honess, undated. (Exhibit A5)
·Email of Ms Yolla Raad, unsigned, dated 29 February 2024 (Exhibit A6)
·Email of Mr David Ellis, dated 29 February 2024, unsigned (Exhibit A7).
·The Prince of Wales Hospital and Community Health Service, Police Transfer Letter Discharge Summary, Kiloh Centre, dated 21 October 2024 (Exhibit A8)
·Mission and Community Assistance Record, Salvation Army, 16 February 2024 (Exhibit A9)
·Letter of The Greek Orthodox Parish and Community of Belmore and District “All Saints”, Chris Constanti, undated (Exhibit A10)
·Justice Corrective Services, Dimitrov Pilobolus 5 November 2024 (Exhibit A11)
·Australian government services Australia Centrelink 30 January 2024 (Exhibit A 12).
The respondent’s exhibits
The respondent’s documents were provided to the applicant at the John Morony correctional complex and a copy was provided to the applicant’s support person, Mr Edward Nicholson, on the morning of the hearing. I have considered the following documents:
·G documents (Exhibit G1)
·Respondent’s bundle of documents (Exhibit R1)
·Chronology admitted as aide memoire
·Summonsed material (Exhibit R2)
·Respondent’s bundle page 543 (Exhibit R3).
RELEVANT LAW AND MINISTERIAL DIRECTION 110
Section 501CA of the Act applies where the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6)(a) and 501(7)(c). Paragraph 501(6)(a) provides that a person does not pass the character test if they have a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act.
Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 110).
Paragraph 5.2 of Direction 110 provides overarching principles which I have considered when reviewing the applicant’s application. It relevantly provides:
(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 noncitizens 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 safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

Part 2 of the Direction identifies the considerations the Tribunal must take into account where relevant to a decision.
In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.
The primary considerations in the Direction are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia; and
(5) expectations of the Australian community.
The other considerations set out in Direction 110 which must be taken into account where relevant include, but are not limited to:
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on Australian business interests.
THE ISSUES TO BE DECIDED
The character test
Sections 501(6) and 501(7)(d) of the Act preclude a person from passing the character test if they have a substantial criminal record, which includes a person who has been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more.
The Tribunal finds that on 19 October 2023 the applicant was sentenced to a term of imprisonment exceeding 12 months. The Tribunal finds that the applicant has a substantial criminal record as defined in paragraph 501(7)(c) of the Act. As the applicant has a substantial criminal record, he does not pass the character test.
The two remaining issues before the Tribunal are:
(a)whether the Tribunal is satisfied that there is another reason to revoke the cancellation of his humanitarian visa; and
(b)whether the discretion under s 501(1) of the Act to refuse to grant the Absorbed Person visa should be exercised.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct – 8.1 of Direction 110
When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian government. Decision makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.
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.
The nature and seriousness of the applicant’s conduct to date – 8.1.1 of Direction 110
The Direction provides that violent and/or sexual crimes; crimes of a violent and / or sexual nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence, or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen. Subparagraph (e) requires the decision maker to have regard to the frequency of the non-citizen’s offending and /or whether there is any trend of increasing seriousness.
The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
In considering the nature and seriousness of the applicant’s criminal offending and other conduct to date, I have taken into account all of the respondent’s documents, the police facts sheets and the sentencing remarks of the Local Court at Burwood.
On 19 October 2023, the applicant was sentenced to 15 months imprisonment for assaulting two women who were not known to the applicant, in two separate and apparently random assaults on 20 July 2022.
I have set out the sentencing remarks set out in full at [9] above. The Tribunal considers that the offending meets all three criteria in paragraph 8.1.1(1)(a) being crimes of a very serious nature. The offences include violent offending against two women, increasing the objective seriousness of the offence and the applicant assaulted women who are members of the public going about their daily business who were apparently not known to the applicant.
The police facts sheet describes the offending in full but the short facts are that the victim observed the applicant in an altercation with another person and sought to intervene. The applicant approached the victim outside Club Eastwood, unsteady on his feet, removed her sunglasses from her face and threw them onto the ground. The applicant walked alongside the victim, snatched the victim’s car keys and threw the keys several meters away, the victim picked up her car keys and walked away. Unprovoked, the applicant pushed the victim, striking her on the shoulder, causing the victim to fall against a wall, hitting her left shoulder and the side of her head, she fell to her hands and knees. The victim felt pain in her head. She sustained an abrasion to her left hand with bleeding and some swelling on the left side of her head.
In respect of the second offending, on the same day, the applicant assaulted a woman on a train platform. The accused placed his face up to the victim’s face and used his right palm to strike her on the left side of her face. The impact of the hit caused the victim to turn her body sideways pivoting on her left foot and she fell and felt immediate pain in the left knee area. The accused used his left hand to pull the victim’s hair at which point bystanders grabbed the applicant to restrain him.
The applicant has also committed crimes of a sexual nature particularly sexual crimes against a female child. On 30 March 2017, the applicant was sentenced to an order to comply with treatment plan for two years for indecently assaulting a 17-year-old female on 25 December 2016. The offending is set out at [13] and [14] above.
I consider that this is relevant to paragraph 8.1.1 (1) (a) (ii) of Direction 110. The police facts sheet describes that the applicant’s actions caused the victim to feel dirty and uncomfortable. The victim stated that she froze, did not know what to do or how she was going to escape. These extracts indicate that the applicant’s indecent assault caused significant psychological trauma for the victim.
On 23 January 2002, the applicant was convicted of ‘peep or pry’ and theft and sentenced to 18 months supervision. The applicant was convicted of prying on his female neighbour and stealing her watch and underwear.
The applicant has also been convicted of offences of family violence. On 12 July 2013, the applicant was convicted of common assault for assaulting his mother on 8 July 2013. The applicant grabbed his mother’s wrist with his right hand in a hostile manner and slapped his mother across the face on two separate occasions with his open left hand. Once the applicant had let go of his mother’s hand, he continued to make intimidating advances towards her.
On 7 October 2008, the applicant was again convicted of common assault, his mother being the victim, as per the facts set out at [18]. I am satisfied that for the purpose of paragraph 8.1.1(1)(iii) this constitutes family violence and I must have regard to it and it is viewed very seriously by the Australian Government and the Australian community.
The applicant’s offending has been frequent within the meaning of paragraph 8.1.1 (f). From 1999 to 2023, the applicant has been convicted of multiple offences and the applicant’s offending has been a burden on law-enforcement agencies and this has had a negative impact on the community.[6] This has been taken into account. However, I have considered that the bulk of the applicant’s offending was not considered of the most serious kind, as is reflected by the fact that the Courts have declined to impose terms of imprisonment and instead given the applicant the benefit of the doubt by resorting to various correctional and other health orders.
[6] Respondent’s Statement of Facts, Issues and Contentions [31].
Having assessed the applicant’s criminal record, I consider the more recent assaults against women and children serious, although, having regard to the facts of each case, I am of the view that they are at the lesser end of the spectrum of violent or sexual offending and should be seen in the context of his severely impaired mental capacity and also take into account lengthy periods of time when the applicant did not offend, as acknowledged by the respondent.
The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 110
Paragraph 8.1.2 (1) of Direction 110 provides that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. This entails the cumulative consideration of the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account information and evidence on the risk of the applicant reoffending and of rehabilitation being achieved (para 8.1.2 (2)).
The respondent contends the applicant has committed very serious offences such that any likelihood that they may be repeated is unacceptable. The respondent contends that the potential harm caused by further acts of criminal or other serious conduct committed by the applicant could involve significant physical and psychological harm to members of the Australian community. This is particularly so taking into account the applicant’s violent offences and family violence offences. The respondent further submits that the applicant has had the benefit of four health care plans and has been placed on bail, and yet has further offended.
Particularly relevant in respect of the applicant’s prospects of re-offending are the results of ‘The Dynamic Supervision of Sexual Offenders” Stable 2007 Tally Sheet.[7] The tally concludes that the applicant has a score of 8 out of 26 which places him in the moderate spectrum of risk of reoffending. I have also considered the sentencing assessment report of Allie Carpenter dated 18 August 2023 that assesses the applicant at a ‘Medium risk of reoffending according to the Level of Service Inventory – Revised (LSI-R)’[8]. The applicant was also deemed as suitable to undertake community service work.
[7] Exhibit R1 at 555.
[8] Ibid at 546.
In relation to paragraph 8.1.2 of Direction 110 I have also considered:
·The applicant’s statement adopted at the hearing and dated 13 December 2024[9] and his oral evidence given at the hearing.
·The statement of Mr Edward Nicholson dated 18 November 2024[10] and the oral evidence given at the hearing;
·The statement of Ms Yolla Raad, dated 29 February 2024 and the oral evidence given at the hearing on 13 December 2024;[11]
[9] Exhibit A1.
[10] Exhibit A2.
[11] Exhibit A6.
The applicant acknowledges that he has previously absented himself from his brother’s house and that this has led to a deterioration of his mental state with the resultant offending, but states that in the event of a revocation he would he highly motivated to remain with his brother. He stated that he has no desire to live rough anymore as he is getting older and ‘may die’ if he continues to live rough. The applicant acknowledges that he is only likely to adhere to a treatment plan with the assistance of his carer. I accept that the oral evidence given by the applicant at the hearing was honest and that the applicant has some insight into the precarious nature of his residency status should he decline treatment and his offending continue.
Mr Edward Nicholson gave compelling evidence that he is aware of the protective influence he may exert and states that he is in a much better position to ensure adherence to any medication regime and treatment plan. He gave evidence that he attended the NDIS office and was assured that the applicant would be eligible for psychological treatment support in the event the revocation application is successful.
Mr Yolla Raad stated that she had known the applicant for a period of four years as the applicant and his brother reside in her mother’s granny flat in Lakemba. She stated that her mother feels much more secure since the brothers have moved into the premises and that Ms Raad would regret the applicant moving away. She describes him as courteous and helpful to her and her mother. The witness stated that the applicant was assured of continued accommodation as her mother, as landlord, wished the tenancy of the applicant and Mr Edward Nicholson to continue indefinitely. Ms Raad stated that she would be prepared to assist the applicant in any way if called upon, including by offering financial support.
Relevantly to the issues of the applicant’s reoffending the applicant’s evidence and that of his brother and support persons is such that the applicant is more highly motivated since his visa cancellation and that, with the possibility of NDIS-funded psychological and other support, there is a lesser risk of reoffending. The applicant understands how important his relationship with his brother is to him and it was apparent that the applicant appeared highly motivated not to be separated from Mr Edward Nicholson. In combination, the applicant’s increased willingness to adhere to treatment and to be cared for by his brother, his appreciation of secure housing, and his evidence that he infrequently uses drugs and alcohol, are supportive of the proposition that he has a low to moderate risk of reoffending.
The respondent’s representative asked the applicant questions about each of his violent offences. The applicant stated that he cannot recall any of the incidents and that he has no memory of being sentenced, or the length of time he has been incarcerated. I note from Mr Edward Nicholson’s evidence that at the time of the offending in respect of the assaults on members of the public, the applicant was not medicated and was considered homeless. The applicant does remember assaulting his mother and expressed remorse. He said that his mother had forgiven him. I noted that the applicant appeared heavily medicated at the time of the hearing and he confirmed that he was receiving antipsychotic medication for his schizophrenia by depot injections. I accept the applicant’s evidence that at the time of the hearing he was unable to recall events, dates or specific reasons for his incarceration. The applicant did not appear to me to be evasive. Rather, he was only able to comprehend and answer simple questions.
I refer to the transcript and sentencing remarks concerning the applicant’s mental impairment. The Court refers to the medical report of Dr Elliot. It is noted that in the absence of any medical evidence being tendered by the applicant, a summons was issued to obtain a copy of the report, however the document was not produced. No other medical report was tendered in support of the application for revocation. The evidence concerning the severity of the applicant’s mental impairment is contained in the transcript of the sentencing remarks of the Local Court of 19 October 2023. I refer to the submission made on behalf of the applicant at the sentencing hearing:[12]
Beveridge: As it is contained in the report of Dr Elliot which is attend a community mental health centre and that would be Canterbury. We’ve spoken to Canterbury and they’re willing to treat him. It’s also that he abstain from alcohol and drugs which is a risk factor for his offending, and it aggravates his mental health but it’s in addition to the treatment plan which is contained in Dr Elliot’s report. I am also proposing that for the first time and this hasn’t been in place before, for the first time he would be subject to an NDIS support plan and the applicant’s carer has spoken to NDIS and they’re willing to accept him into the program, but what is required is for the applicant to be released in order for that to be formally in place. So that is the treatment plan and, your Honour, I say that his carer is best placed to be the responsible person because there’s supervision required in terms of complying with the abstinence condition and then there’s connection, and you know connecting him and ensuring him that he’s attending his NDIS appointments and then there’s ensuring that he attend Canterbury community mental health centre, and he can oversee all three of those aspects so.
His Honour “ why do you say it’s in the best interests of the community to divert him from the criminal justice system?”
BEVERIDGE: I say that because his mental health impairment is severe and that’s reflected in the report of Dr Elliot, [my emphasis added] best exemplified by the statements that he is making and I accept at that point he wasn’t treated, he hadn’t had a depot injection and he now has so he is much better but because of the severity of his mental health impairment, there’s a need for rehabilitation and that in turn would protect the community. I accept that there are a number of offences before the Court. I accept that your Honour would be concerned about a need for deterrence and punishment. I’m asking your Honour to consider that the need for specific and general deterrence is significantly reduced because of his severe mental health impairment. I’m asking the Court and I think the Court can take this into account, your Honour is able to take into account other relevant factors, that’s what the legislation says. He has been in custody for three months now and I think that your Honour could take that into account in terms of his need for further punishment.
HER HONOUR: My concern is the in some instances the seriousness of the offending, in particular H ending in 862 where he assaulted members of the public in Eastwood. There’s the shoplifting matters and the assault on the shop assistant there.
[12] Exhibit G1 at p39.
I do not consider that the applicant has significant insight into his offending and is not in a position to give meaningful evidence about the prospects of reoffending. The nature of the offending is serious and there are previous offences against his mother and in particular one offence against a child, set out above, that resulted in the applicant being placed on the sex offender register. I would consider that the offending against two women in a public place constitutes an escalation of the applicant’s offending. I note, however, that at the time of the offence giving rise to his conviction, sentence and visa cancellation, the applicant was not medicated and that that was likely a contributing factor for the events that unfolded. While the offences, individually and cumulatively are serious, as is reflected in the sentencing remarks, it should be seen in the context of the applicant’s severe mental health impairment and his lack of medication. While I have not had the benefit of a victim impact statement, I consider the assaults, although undoubtedly serious, on the lower end of the spectrum of serious violent offending.
In conclusion, I have formed the view that the offending was serious but that some consideration must be given to the fact that the applicant is severely impaired, suffers from chronic schizophrenia and at the time of the offence giving rise to the revocation of his visa, was not medicated. The applicant has from time to time abused drugs and alcohol but denies being a heavy drinker and denies taking cannabis for a long time. He is highly motivated to adhere to a treatment plan, and his carer states he is now better placed to monitor medication and treatment. I have weighed the aspect of risk of reoffending cumulatively and I conclude that the harm the applicant would inflict would be serious and that the moderate likelihood of the applicant’s future offending is a significant factor in terms of whether or not the decision should be set aside.

In conclusion, where there remains a moderate risk of reoffending, I conclude that the protection of the Australian community is a factor against the applicant, but only moderately so.
Family Violence – 8.2 of Direction 110
Paragraph 8.2 of Direction 110 concerns family violence and is said to reflect the government’s serious concern about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia.
This primary consideration is relevant because the applicant has been convicted of charges that involve family violence, in this instance the applicant has been convicted of common assault on the applicant’s mother. Several factors must be taken into account when considering the seriousness of family violence, including frequency of the conduct, cumulative effect of repeated acts, rehabilitation achieved, and reoffending after formal warnings about the consequences of further acts. There appears to be no contest between the parties that the assault on the applicant’s mother constitutes family violence within the meaning of paragraph 8.2. Insofar as I am required to make a finding on the issue, I am satisfied that the expression “a member of the person’s family” extends to at least persons who are related to each other, are living together and who are financially dependent upon each other. It would not extend to relatives of a person who are not financially dependent on the person and who are not living with the person. [13]
[13] Deng v MICMSMA [2021] FCA 1456 at [156].
The applicant has been convicted of two acts of family violence on two occasions as outlined in [48] and [49] above. He was convicted of assault in relation to his mother in 2008 and 2013 and the respondent submits that this constitutes frequent family violence. There is little to no likelihood of the applicant re-offending in relation to family violence as the applicant confirms that he has never been in a relationship, other than to state in a medical history given to Corrective Services, that he had a girlfriend in year 7. The applicant has never resided with a partner or formed any significant attachment that could be described as a de-facto relationship. He describes that his sexual contact with women has been haphazard and sporadic. The evidence suggests that the applicant has formed no significant family relationship with persons other than his brother and mother and sadly his mother passed away from cancer in 2018. I accept the respondent’s submissions that there is no evidence of rehabilitative efforts made by the applicant since his last known act of family violence, nor any evidence of him accepting responsibility or understanding the impact of his behaviour. However, a long time has passed since his last offence of family violence. I have considered the applicant’s oral evidence that he was remorseful of striking his mother and that “she forgave him”. I conclude that some insight and remorse was present with regards to the family violence offences. I am satisfied that it is highly unlikely that the applicant will form a family relationship in the future, and given his medical and interpersonal history and as there is evidence of his inability to form attachments, I place little weight on this consideration.
Strength, Nature and Duration of ties to Australia – 8.3 of Direction 110
In accordance with 8.3(1) of the Direction, I have considered the impact of the decision on the applicant’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. The Tribunal should also have regard to the applicant’s positive contributions to the community through limited gainful employment (paragraph 8.3(2)(ii)).
With respect to familial ties, I find, and the respondent accepts, that Mr Edward Nicholson, the applicant’s sole family member, will suffer emotional hardship should the refusal be affirmed. Insofar as the applicant raises his brother as a separate, ‘other’ consideration that matter may be appropriately dealt with under the present consideration.
The applicant has one living relative, his brother, Mr Edward Nicholson, who lives permanently in Australia. I have had regard to Mr Edward Nicholson’s statement. [14] Mr Nicholson has been the applicant’s carer, supported by a carer’s pension, since about 2015. It is the evidence of Mr Edward Nicholson that his brother’s cognitive impairment is of such severity that he would be incapable of accessing services in New Zealand and be likely homeless “and die”. I accept that this assumption causes Mr Edward Nicholson particular emotional distress. Further, Mr Nicholson states that he wants the applicant to continue to live with him in his residence in Lakemba and that he would be able to supervise any medication the applicant is required to take.
[14] Exhibit A2
Mr Nicholson states that the 2023 offence that led to the visa cancellation was based on the applicant’s mental decline after witnessing his mother’s illness and subsequent death in 2018. The family was living in a one-bedroom apartment in Concord, while the applicant’s mother was undergoing chemotherapy. It is Mr Edward Nicholson’s evidence that the applicant was unable to cope with witnessing the gradual decline of their mother and that he ‘ran away’. The applicant lived rough and did not adhere to his medication and that this likely led to the applicant’s further offending.
Mr Edward Nicholson further states that he has applied to NDIS and that the applicant was “accepted” but that due to the conviction of 2023 and subsequent visa cancellation the application could not be advanced. Mr Edward Nicholson states that with NDIS support he has a degree of certainty that the applicant will remain medicated and less likely to offend. Mr Edward Nicholson states that he is aware that government services in New Zealand are available to its citizens. However, he is concerned that the information provided by the respondent suggests that citizens have to reside in New Zealand for a period of two years before becoming eligible for government assistance such as Jobseeker. He submits that relocation to New Zealand would likely render his brother homeless and that by reason of his severe impairment the applicant would be incapable of engaging with social services. The respondent submits and acknowledges that Mr Edward Nicholson would likely experience emotional hardship should the visa cancellation not be revoked.
The applicant has lived in Australia since he was 20 months old and there is some evidence that he has formed social ties in Australia other than with his brother. The applicant has provided four letters from witnesses who support the applicant’s revocation application.
Mr Nabil Raad has provided an email dated 8 March 2024 stating that the applicant resides with Eddie Nicholson as a tenant in Mr Raad’s mothers’ granny flat in Lakemba. Mr Raad’s evidence speaks of a ‘caring, quiet and lovely human being who keeps to himself’. Mr Raad further states the applicant only has his brother to look after him and that the applicant has a disability.[15]
[15] Exhibit A4
I have had regard to an undated letter on a “Real Concrete” letterhead, which was tendered on behalf of the applicant by Mr Dayle Honess, Mr Honess gave oral evidence at the hearing. He states that he has known the applicant for approximately 10 years and that he has ‘always been a gentleman”. Mr Honess further states that she has employed the applicant from time to time and speaks of a ‘kind and beautiful bloke who has problems’. [16] Under cross examination the details of various offences were laid out to Mr Honess, and he maintained his characterisation of the applicant.
[16] Exhibit A5
Ms Yolla Raad gave evidence at the hearing on 13 December 2024 and was cross examined. Ms Raad stated that she has known the applicant and his brother for approximately five years, as tenants in her mother’s granny flat in Lakemba. She states that the presence of the applicant and his brother gives her mother comfort, that she supports the applicant’s continued tenancy and that she would be prepared to assist the applicant financially should the revocation application be successful.[17]
[17]
Despite the witnesses’ positive statements as to their connection with the applicant, I accept the respondent’s submissions that the nature of the relationship with these witnesses is not such that it would lead to hardship stemming directly from the applicant’s removal. However, taking into account the witness statements given in support of the applicant and given the strong primary relationship with his brother, there are ties to the Australian community that must be taken into account in accordance with the Direction. I place significant weight on the fact that the applicant has spent his entire life in Australia, bar 20 months, and completed primary and high school in Australia. I further take into account that the applicant was gainfully employed for some years and has made some limited contribution to the Australian community.
I conclude that the applicant’s ties to Australia is a factor that weighs heavily in favour of the applicant.
Best interest of minor children - paragraph 8.4 of Direction 110
The applicant has no relationship with minor children. This factor is neutral.
Expectations of the Australian community - paragraph 8.5 of Direction 110
Paragraphs 8.5 (1) of Direction 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct and breached this expectation, or where there is an unacceptable risk that they will breach it, the Australian community expects as a norm that the Government will not allow such non-citizens to remain in Australia.
Paragraph 8.5(2) further provides that it may be appropriate to refuse the visa of such a person simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted a visa.
The respondent submits that the consideration of the expectations of the Australian community must weigh against the applicant.
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
This consideration is about the expectations of the Australian community as a whole and in this respect, decision makers should proceed on the basis of the Government’s views as articulated above [in paragraph 8.5(1)-(3)], without independently assessing the community’s expectations in the particular case[18]. The expectation of the Australian community must weigh against the applicant.
[18] FYBR v Minister for Home Affairs [2019] FCAFC 185; 272FCR 454 at [66]-[67]; [91]; [101]; and [104].
I am mindful that the protection of the Australian community is generally to be given greater weight than other primary considerations, but this does not dictate the weight that may be given to other primary considerations, or even other considerations. The Direction requires me to assess each of the primary considerations as they apply to the circumstances of the applicant’s case, and to weigh the various considerations against each other to reach a conclusion as to how the discretion should be exercised.
I have considered the principle expressed in 5.2(6) of the Direction; that is, that the Australian community may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The applicant is now 47 and has lived in Australia since he was an infant. This principle would weigh in favour of the applicant.
I consider that the nature of the applicant’s offending is such that the community expectations must weigh against the applicant, but I conclude that they only do so moderately.
Other considerations
Section 9 concerns so-called ‘other’ considerations. There is a non-exhaustive list of three such considerations.
Legal consequences of the decision
Paragraph 9.1 of the Direction directs a decision-maker to take into account the following:
Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
There is nothing to indicate that there may be practical impediments to the applicant’s removal from Australia and that non-refoulement obligations arise, which may give rise to lengthy detention. I am satisfied these considerations do not arise in this case.
The cancellation of the visa under s 501 means that the applicant will not be entitled to be granted another visa and will not be able to return to Australia to be with his brother or for any other reason.
I accept the respondent’s submission that this factor should be afforded neutral weight as being neither for nor against revocation.[19]
[19] Respondent’s Statement of Facts, Issues and Contentions at [50.2]
Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(i)the non-citizen’s age and health;
(ii)whether there are any substantial language or cultural barriers; and
(iii)any social, medical and/or economic support available to that non-citizen in that country.
The applicant is 47 years of age. He arrived in Australia as a 20 month old child and has not resided in New Zealand since that time. The evidence refers to his severe impairment, diagnosis of schizophrenia and periods of intermittent substance abuse. The applicant presented before me as barely cognisant of the proceedings or the questions that were put to him and I accept that he is not of good health, requiring continuous medical and psychological treatment. I accept the evidence provided by the applicant that his mental health will deteriorate rapidly if not medicated even for short periods of time.
There are no language or cultural barriers that the applicant would face if returned to New Zealand.
There is little evidence before the Tribunal to indicate that the applicant will not be able to receive adequate and appropriate medical treatment in New Zealand or that his access to treatment will be denied or withheld for any reason. However, there was evidence to suggest that citizens may not have access to certain services until a period of two years of residency has expired. Given the deterioration of the applicant’s mental health and the increase in symptoms after a relatively short period of non-medication, any period that the applicant may spend without treatment will likely cause significant deterioration of his mental state.
The applicant claims that he has no family, friends and no support network in New Zealand. Given the length of his absence from that country, I accept that the applicant has no ties in that country and that he would have limited government support, if any. The applicant’s brother submits that, given his cognitive impairment, he will find it difficult to access basic health services and be likely homeless.
There is some evidence before the Tribunal to indicate social or financial support (equivalent to Australian Centrelink and Medicare benefits) may be available to the applicant. The applicant’s brother gave some evidence that the applicant’s circumstances in New Zealand, in terms of accessing basic healthcare and accommodation would be substantially different, or worse, than his circumstances in Australia because he does not have the capacity to access services, negotiate their complexity without the assistance of his carer, Mr Edward Nicholson[20].
[20] Exhibit A1 at [9]
I have had regard to the statements given by the applicant and his brother and the medical history provided in the Department of Community and Justice Corrective Services summonsed documents. I conclude that the only time the applicant receives health care appears to be when the applicant is incarcerated or receives care from his brother who facilitates and enables visits to health care professionals and supervises medication. I have had regard to the letter of Bankstown Community Corrections dated 5 November 2024[21] that states that since the cancellation of his Medical and Centrelink benefits there has been a marked deterioration of his conduct and stability and that the loss of the essential services has significantly impaired his ability to access community resources and maintain a stable lifestyle. The Senior Community Corrections Officer, Ms Lalopoulos, stated that:
Given his diagnosis of schizophrenia, it is imperative that he gains access to mental health to address his issues and again, have the capability to live a law abiding life style. Mr Nicholson’s’ sole familial support appears to be his brother, Mr Eddie Nicholson who has made considerable yet unsuccessful efforts to secure additional support services for him.
[21] Exhibit A11
Having regard to the evidence of Ms Lalopoulos, and as set out elsewhere in these reasons for decision, I am of the view that the applicant’s ability to proactively or voluntarily to engage with services in New Zealand is non-existent, as he lacks the capacity to do so because of the severe cognitive impairment which was demonstrated during the hearing.
In addition, there is evidence to support the contention that citizens have a waiting period of two years before being able to access certain services[22]. Although the applicant’s brother stated under cross-examination that he may be forced to relocate to New Zealand to support his brother, given Mr Edward Nicholson is currently receiving no income after the cancellation of his carer’s pension, the likelihood of him being in a financial position to relocate to assist the applicant, even if he elected to do so, is remote. I am not persuaded that the relocation of Mr Edward Nicholson is a relevant consideration.
[22] RB p591
In conclusion, while there is evidence that there are a range of publicly funded mental health services available in New Zealand the evidence suggests that the applicant would be unable to access that support without his carer.
The Tribunal finds that this consideration weighs heavily in favour of revoking the visa cancellation.
Impact on Australian business interests
Paragraph 9.3.1 of Direction 110 directs a decision-maker to take into account the following:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.’
The applicant has not been in gainful employment for many years. This consideration is neutral.
CONCLUSION
Under section 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the applicant’s visa: either the applicant must be found to pass the character test, and if not, I must be satisfied there is another reason, pursuant to the Direction, to revoke the cancellation decision. As noted, (and found) previously in these reasons, the applicant does not pass the character test.

The consideration of the factors in Direction 110 is not a mathematical exercise, but rather is evaluative and it is for me in this case to determine the relative weight to be given to each factor. [23] The nature of an evaluative exercise permits consideration of the context of facts which are relevant to the matters in paragraphs 8 and 9 of Direction 110. While primary considerations should generally be given greater weight than the other considerations, they are not necessarily “secondary considerations” and particular circumstances of a case may justify greater weight being given to one or more of the other considerations than one or more of the primary considerations.[24]
[23] Nguyen v Minister for Home Affairs 920190 270 FCR 555 at [33].
[24] Suleiman v Minister for Immigration [2018] FCA 594 at [23]
I have considered that the applicant has committed serious offences, including family violent offending in relation to his mother and offences against women and children. The last offending resulted in a 15 month custodial sentence. The applicant has committed multiple offences since 1992. From 2008 onwards the applicant’s offending has included assaults on women, although I consider the offending on the lesser side of seriousness on the scale of violent offending. The Direction explicitly makes the protection of the Australian community the highest priority of the Australian Government priority. This priority is to be given greater weight generally than other primary considerations. The inherent nature of certain conduct, such as family violence, is so serious that strong countervailing considerations may be insufficient to justify revoking a mandatory cancellation even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community: see, for example, paragraph 5.2(8). I have determined that the offending was serious and, importantly, that there remains a moderate risk of the applicant reoffending.
I am satisfied that the primary consideration of family violence committed by the applicant weighs against exercising the discretion to revoke the cancellation of the applicant’s visa. However, I place less weight on this consideration in view of the extended period that has passed, and that the offending behaviour has not been repeated. Further and as set out above, I have concluded that it is unlikely the applicant will offend against a family member in the future.
A significant factor that weighs in favour of the revocation is the extent of the applicant’s ties to Australia, particularly given his very lengthy residence in Australia. The applicant’s immediate family, his brother and carer being his sole remaining familial connection, remains in Australia. The applicant has been living in Australia for about 46 years and has spent his formative years in this country. I have formed the view that the extent and duration of the applicant’s ties to Australia weigh strongly in favour of the revocation.
I accept that the applicant does not have any meaningful links with New Zealand where he has not lived since, he was a very young child. I accept that there would be significant impediments in the event the applicant is removed to New Zealand, as he has little ability to negotiate re-settlement in New Zealand or accessing support services. The applicant, by reason of is severe mental impairment, is unlikely to have the capacity to form new ties or to seek support. These factors weigh heavily in favour of the revocation.
I have considered the recent decision of the Full Court of the Federal Court concerning the operation of Direction No. 90 in CRNL v Minister for Immigration Citizenship and Multicultural Affairs.[25] The Court found that the Tribunal must weigh and balance the various primary and other relevant considerations outlined in the Direction ( in this case Direction no 110) against each other but to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task. See CRNL at [35]:
The balancing process is directed to determining whether there is “another reason” why the visa cancellation should be revoked. It requires an identification of the matters that may constitute “another reason” and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.
[25] [2023] FCAFC 138.
Applying the principles in CRNL, I have decided to give great weight to the primary considerations of protection of the Australian community, the fact that some of the offending conduct constitutes family violence, and the expectations of the Australian community. The extensive nature of the applicant’s criminal history and the fact that it does involve some offences relating to violent conduct against women and children must be weighed against the fact that the criminal conduct is on the lesser end of the spectrum of violent offending and that the applicant suffers from a cognitive impairment that is described by Dr Elliot as ‘severe’ as well as a history of mental illness that allows only a limited insight into the offending, and the fact that he is remorseful of the offending he remembers. The primary considerations therefore weigh against revoking the visa cancellation. I consider these to be outweighed by the impediments upon removal set out above, the strength, nature and duration of ties to Australia which arise from the applicant’s strong reliance on his brother Mr Edward Nicholson and because of the length of time he has spent in Australia.
In the circumstances of this case, I have decided that other considerations outweigh the primary considerations.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that the cancellation of the applicant’s visa be revoked.

Date(s) of hearing: 12 and 13 December 2024

Applicant: Self-Represented

Solicitors for the Respondent: Ms Q Ren, HWL Ebsworth Lawyers

Date(s) of hearing:	12 and 13 December 2024
Applicant:	Self-Represented
Solicitors for the Respondent:	Ms Q Ren, HWL Ebsworth Lawyers