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

PKBV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4240 (11 September 2020)
Division:GENERAL DIVISION
File Number: 2019/0444
Re:PKBV
APPLICANT

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

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:11 September 2020
Place:Brisbane

The decision under review is affirmed.
..........................[sgd]..............................................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class WA Subclass 010 Bridging A Visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
REASONS FOR DECISION
Senior Member Theodore Tavoularis
11 September 2020
INTRODUCTION AND BACKGROUND

PKBV (“the Applicant”) is a 23 year old citizen of Tonga. Movement records indicate the Applicant first arrived in Australia on 21 January 2008 on a Class UP Subclass 461 visa. Thereafter, his movement records say:
·he departed Australia on 3 December 2009;
·he returned to Australia on 21 December 2009;
·he departed Australia on 11 November 2010; and
·he finally arrived in Australia on 25 November 2010.[1]
[1] Exhibit R1, Agreed Bundle, page 118.
He has not left Australia since his final arrival in November 2010. The Applicant therefore came to Australia when he was 11 years of age and has spent approximately half of his life here. His residency status in Australia has been underpinned by a series of temporary visas. The abovementioned Subclass 461 visa initially granted to him was the type of visa more commonly known as “a New Zealand relative visa”. While his second application for this particular class of visa was pending, he remained in Australia pursuant to the grant of a Bridging visa (“the visa”). The instant decision under review comprises the delegate’s refusal to revoke the mandatory cancellation of that Bridging visa pursuant to s501F of the Migration Act 1958 (Cth) (“the Act”).
The Applicant has a relatively lengthy criminal history in Australia, commencing (in terms of sentencing) on 21 March 2013 and running until 30 August 2017.[2] He has found himself before lawful authority for sentencing on 9 occasions, for the commission of some 24 separate offences. These offences have ranged across several offending paradigms, but can be summarised as follows:
·failure to follow a lawful direction;
·public nuisance-type offending;
·offence against the person – specifically, a police officer;
·offences against the person – general community;
·offences against the property of others; and
·failure to meet the requirements of bail.
[2] Ibid, pages 43-46.
In terms of specific number of offences committed in each offending paradigm, it is necessary to have regard to the Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), which provides a neat and convenient summary of the offending.[3] First, in terms of substantive offences, they can be summarised as follows:
[3] Exhibit R2, Respondent’s SFIC, paragraphs [8], [9] and [10].
·four convictions for “assault occasioning bodily harm” (including one count of grievous bodily harm);
·three convictions for “larceny and stealing from the person”;
·two convictions for “aggravated break and enter dwelling with intent”;
·two convictions for “destroy or damage property”;
·one conviction for “fail to appear in accordance with bail”;
·one conviction for “contravene prohibition/restriction in AVO (domestic)”;
·two convictions for “assault police officer in actual duty without actual bodily harm”;
·two convictions for “use offensive language in/near public place/school”;
·two convictions for “refuse/fail to comply with police direction”;
·one conviction for “be carried in conveyance without consent of owner”; and
·one conviction for “group threaten violence/cause fear”.
Second, the relevant police records demonstrate that the Applicant has committed additional breaches of bail, travelling without a valid ticket and signing a purportedly valid statutory declaration suggesting he was not in the vicinity of this ticket offence. Third, the material discloses that the Applicant has been punished for certain offences during his time in criminal custody. On 5 September 2017, the Applicant was dealt with for an offence of “damage destroy or deface cell”. On 14 July 2018, the Applicant was dealt with for the offence of “damage destroy property”. On 26 June 2018, the Applicant was dealt with for a further offence of “damage destroy or deface cell”.[4]
[4] Exhibit R1, Agreed Bundle, pages 243-244.
The totality of the Applicant’s offending appears in his abovementioned National Police Certificate.[5] A very detailed summary of that offending history appears as Annexure A to the Respondent’s SFIC. For the sake of completeness, I have attached that particular Annexure to these Reasons and have likewise marked it “Annexure A”.
[5] Ibid, pages 43-46.
The hearing of this remitted matter proceeded before me 21 May 2020. The remittal hearing received oral evidence from the Applicant. Written statements were also filed on behalf of the Applicant and appear in the material. None of the makers of those statements gave oral evidence.[6] The Applicant was represented at the hearing by his current domestic partner, Ms NT.[7] For ease of reference during the hearing, and for the purposes of the writing of these Reasons, the complete suite of written material forming the exhibit record of this proceeding was particularised into an agreed format, a true and correct copy of which comprises the Exhibit Annexure attached hereto and marked “Annexure B”.
[6] See Letter of Support from “Witness PLN” – Exhibit A1; Letter of Support from “Witness TN” and accompanying pictures – Exhibit A2; and Letter of Support from “Witness NT” – Exhibit A3.
[7] Ms NT is also referred to as Witness NT in the immediately preceding footnote.
The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.[8]
[8] For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision – see s 500(6B) of the Act.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(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.
There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[9]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[10]
[9] [2018] FCAFC 151.
[10] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[11] I will address each of these grounds in turn.
[11] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 1 August 2017, the Applicant was convicted of “Steal from the person” and was sentenced to a head custodial term of 18 months, commencing on 6 September 2017 and concluding on 5 March 2019.[12] In addition, even a cursory review of the Applicant’s criminal history demonstrates a totality of head custodial terms in the approximate total sum of 43 months, or three years and seven months.
[12] Exhibit 1, Remitted Bundle, RB 19, page 233.
The Applicant did not cavil with the nature and extent of his offending, nor did he cavil with the recorded sentences that had been imposed upon him. It is accordingly safe to find that the Applicant does not cavil with the reality that he does not pass the character test. Due to the operational effect of ss 501(6)(a) and 501(7)(c), I am therefore satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[13] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[14]
(1)…a decision maker:
…
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.
[13] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79. Note: (1) the previous decision of this Tribunal dated 7 April 2017 was decided pursuant to Direction 65, and (2) for present purposes, this instant remitted matter must be determined pursuant to Direction 79.
[14] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
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 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a

non-exhaustive list in paragraph 14 of the Direction. These considerations are:
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.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[15]
…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[15] [2018] FCA 594 at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(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 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;
(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;
(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 be allowed to come to or remain permanently in Australia; and
(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 for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to 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. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. As previously mentioned, the material discloses that between 21 March 2013 and 30 August 2017, the Applicant came before the courts for sentencing on approximately 9 occasions and that he was convicted of some 24 offences broadly capable of categorisation as (1) failure to follow a lawful direction offences; (2) public nuisance-type offences; (3) offences against the person (against both representatives of lawful authority and members of the general community); (4) offences against the property of others; and (5) failure to meet the requirements of externally imposed orders/conditions, such as bail.
The Nature and Seriousness of the Applicant’s Conduct to Date
Based upon my understanding of the material, it is likely that the determinative primary considerations for present purposes will be the weight ultimately attributable to this Primary Consideration A. It is necessary to properly analyse both the nature of the Applicant’s offences and his apprehension about the nature and causes of those offences. Likewise, there must be an analysis of the extent to which the Applicant can be reasonably expected to re-commence his pattern of offending were he to be returned to the community. The major components of evidence around these two main aspects of Primary Consideration A comprise (1) the Applicant’s evidence in cross-examination, and (2) what the material now before the Tribunal has to say when contrasted with the Applicant’s evidence.
The Applicant did not formally give evidence-in-chief at the hearing before me.[16] He preferred to rely on written material he has tendered to date. I make no adverse inference from the Applicant not giving oral evidence-in-chief. Suffice it to say that he seemed to understand the nature of his offending history. He readily conceded commission of the relevant offences. As will be noted from his responses to questions in cross-examination, it is reasonable to find that the Applicant was aware of the wrongfulness of what he has done, the causative factor(s) behind his unlawful behaviour and what he must do so as to minimise his prospects of re-offending. He was not at all defensive about the predominant extent to which his abuse of alcohol is to be seen as the primary causative factor behind his criminal history to date.
[16] Apart from briefly confirming the totality of the material upon which relies. See Transcript, 21 May 2020, page 6, lines 42–46; page 7, lines 1–28.

The Respondent contends in its SFIC that, having regard to the Applicant’s offending history, and, in particular, to the multiple sentences of imprisonment imposed upon him, the totality of his history suggests “…that the applicant has an extensive and very serious criminal history, which weighs heavily against the revocation of the cancellation decision.”[17]
Cross-examination of the Applicant
[17] Exhibit R2, Respondent’s SFIC, paragraph [47].
As mentioned earlier, given the Applicant’s forthcoming and accepting approach towards his history of offending, the Respondent’s representative[18] focused her questions in cross-examination towards specific instances of the Applicant’s offending. The first instance of the offending related to the Applicant’s commission of the offence of reckless grievous bodily harm committed while in company, for which he was convicted on 14 January 2014. By way of background, the offending incident occurred on 8 June 2013. It involved the Applicant and four associates approaching a victim and making a relatively simple request for a cigarette. Upon receiving an apparently unacceptable response from the victim, the Applicant and his associates proceeded to initially harass the victim and then continued after him as the victim tried to remove himself from the situation.
[18] Ms Nyabally, Senior Lawyer, Australian Government Solicitor.
The victim did not succeed in removing himself, and suffered the indignity of the Applicant punching him multiple times to the face, causing him to fall to the ground. The relevant police record further notes that while the victim was on the ground, the Applicant proceeded to kick the victim multiple times. As noted in the relevant police report:
“CCTV Footage
CCTV footage captures the offence. The footage shows the complainant being followed by the group including the offender [the Applicant] along Howard Avenue. The footage shows the offender punch and kick the complainant. Whilst the complainant is on the ground the footage shows the offender repeatedly kick or stomp on the complainant.
Medical
As a result of the offence the complainant was taken to Royal North Shore Hospital via ambulance. He was intubated in Emergency. A CT scan showed that he had an undisplaced fracture through the angle of the left mandible and a minimally displaced comminuted fracture of the angle of the right mandible extending to the mandibular notch. On 11 June 2013 the complainant went into theatre for an open reduction (open surgery to set bones) internal fixation (fixation of screws and/or plates) of the fractured mandible.”[19]
[19] Exhibit R1, Agreed Bundle, page 359.
The Applicant was cross-examined about this episode of his offending, and the following transpired:
“MS NYABALLY: …Can I take you to page 681 of that big book?
APPLICANT: Yes.
MS NYABALLY: Okay, so this was from a time in 2013. At about line 10, you were asked about it and the minister’s lawyer said,
On 8 June 2013, you and a number of associates of yours approached a person and asked him for a cigarette.
Is that correct? This was when - at (indistinct)?
APPLICANT: Yes.
MS NYABALLY: And then it says about line 16,
On that occasion, you punched the victim multiple times, and when he fell to the ground, you kicked him a number of times.
Do you remember that?
APPLICANT: Yes, I do.
MS NYABALLY: Okay. And then it says in the police statement, and I won’t take it to you, but just for your reference, it appears at page 357. It says later on, the police went to go to speak to you and you denied having committed the offence. You said it was someone else. Do you remember that?
APPLICANT: Yes, that’s correct, that’s what I said.
MS NYABALLY: Yes?
APPLICANT: Yes, I remember that.
MS NYABALLY: And why did you do that?
APPLICANT: I was scared of getting in trouble. I lied about it. But I – but – but I knew what I was done, you know?”[20]
[20] Transcript, 21 May 2020, page 14, lines 46-47, and page 15, lines 1-26.
The next incident the Applicant was taken to in cross-examination related to his convictions for assault on 22 October 2014. These convictions were, specifically, for “assault occasioning actual bodily harm”. There are two relevant offending dates. First, on 31 May 2014, the Applicant became involved in a friendly scuffle which deteriorated to the extent that he inflicted several punches on the victim and also kicked him in the head while the victim was on the ground. There were witnesses to this incident who gave evidence to the effect that both the victim and the appellant appeared to be well-intoxicated, consuming alcohol from an open bottle. The Applicant subsequently denied commission of the assault and similarly denied having any knowledge of his victim.
The second relevant offending date is 13 July 2014. Again, while adversely affected by heavy intoxication from alcohol, the Applicant punched a man late at night in the Sydney CBD. This physical attack was accompanied by a threat to kill the victim. Consistent with the pattern of his earlier offending, when the victim fell to the ground, the Applicant continued the assault by kicking the victim in the face and, after the victim had fallen unconscious and thus totally unable to offer any form of defence, proceeded to stomp on the victim’s head. He apparently became aggressive towards witnesses of the incident and purported to follow them for a short period after commission of the initial offence. After he had followed the witnesses, the Applicant returned to his already assaulted victim and re-commenced kicking and stomping on the victim’s head.
He was questioned about this offending in cross-examination. He seemed to both recall and accept the nature and severity of these very serious assault offences. He responded as follows:
“MS NYABALLY: Now going on, I want you to stay on page 681, and there’s another occasion at about line 25?
APPLICANT: Yes.
MS NYABALLY: And that was on 31 May when I think you were just – you were with one of your mates and things got out of hand, and you started throwing punches and kicking. Do you remember that as well?
APPLICANT: Yes, I remember that.
MS NYABALLY: And then we have another event, and this is about line 32, about 13 July 2014, where you attacked someone in the CBD in Sydney – sorry, the Sydney CBD. And you’ve said, “I don’t exactly remember what happened.” Is that right?
APPLICANT: Yes, that’s right.
MS NYABALLY: When you say you don’t exactly remember, why is that?
APPLICANT: I was very drunk. But that’s no excuses for what I’ve done.
MS NYABALLY: Now these all happened when you were a kid, when you were under 18. Do you remember where you were living when these happened?
APPLICANT: I was living in and out, out of home, with friends, just pretty much anywhere I could find to live.
MS NYABALLY: And when you kept getting in trouble and you had to go to court for it, you had to go in to meet with corrections officers, did you ever realise that what you were doing was a problem?
APPLICANT: At the time – at the time then, I did not see it. I didn’t see nothing wrong with what I done. I can admit that. But now, I can. I know what I’ve done.
MS NYABALLY: What do you think you did wrong?
APPLICANT: Hurting people. Not just like people, but their family too, community. The community’s safety.”[21]
[My underlining]
[21] Transcript, 21 May 2020, page 15, lines 28-46, and page 16, lines 1-8.
The Applicant was then taken to his convictions for “aggravated enter dwelling in company intent to steal’, and ‘steal from the person’, ‘destroy or damage property (value between $5,000 & $15,000)’ that came before the Manly Local Court for sentencing on 30 August 2017. The offending incident actually occurred on 14 October 2016. It arose from the Applicant’s attendance at an apartment on the second floor of a building to attend a party. The material indicates that at approximately 11:30pm, the Applicant and two associates decided to make their way to the first floor of the apartment building and to break into the victim’s apartment on that floor. They proceeded into the victim’s bedroom and woke the victim. They then proceeded to the kitchen area and stole the victim’s alcohol from his refrigerator, after which they returned to the second floor and the party thereat.
Again, in cross-examination, the Applicant was taken to evidence he gave at the earlier hearing of this matter before this Tribunal. He appeared to readily accept the nature and extent of his offending and sought to attribute most, if not all, of his unlawful behaviour to the influence of alcohol:
“MS NYABALLY: Okay. There’s only two more offences I want to ask you about. So can I take you to page 683 of that big bundle of documents?
APPLICANT: Yes.
MS NYABALLY: Now there are two pretty serious offences you were found – you were convicted of, which you did when you were over 18. And the first one is about what happened at the Bellagio apartments on 14 October 2016?
APPLICANT: Yes.
MS NYABALLY: So I’ll take you to line 45?
APPLICANT: Yes.
MS NYABALLY: Of this page…Now you were giving evidence about what happened, and you’ve said,
We were in another apartment in a different room, and we were drinking in that room. We got locked out of that room, or my friend’s room, and we decided to break into some other guy’s room.
Is that correct?
APPLICANT: Yes.
MS NYABALLY: Then you were asked, “It was a totally separate apartment, was it?” And you said, “Yes.” And you were asked, “You didn’t know the owner of that apartment?” You said, “No, I didn’t.” Is that right?
APPLICANT: Yes, that’s right.
MS NYABALLY: And then at about line 10, Mr Marcus asked, “And there were some beers you stole, is that right?” And you said, “Yes”?
APPLICANT: Yes.
MS NYABALLY: He asked, “While you were in the apartment, you went into the bedroom and the guy who lived there woke up, is that right?” You said, “Yes.” “And he started yelling and chasing you and you ran out, is that right?” And you said, “Yes.” Is that all correct?
APPLICANT: Yes.
MS NYABALLY: Okay. Now you were drinking on this occasion, is that right?
APPLICANT: Yes, I was.
MS NYABALLY: And what made you decide to go into this bloke’s apartment?
APPLICANT: We were just – all we were trying to do is trying to get into the other apartment.
MS NYABALLY: Why did you take the beers?
APPLICANT: We just took it. We just seen it there and we just took it.”[22]
[My underlining]
[22] Ibid, page 16, lines 10-46.
The final example of his offending to which the Applicant was taken in cross-examination involved his convictions for theft and menace with intent that came before the Mount Druitt Local Court for sentencing on 1 August 2017. Consistent with his earlier evidence about the other offending episodes put to him, the Applicant’s evidence, while candid, was otherwise both tepid and unconvincing in terms of providing any rational or other reason behind it.
The two offences occurred on 31 July 2017. At approximately 6:30pm on that day, one of the accomplices of the Applicant approached the employee of a petrol service station and requested cigarettes. The employee told that the Applicant’s associate that no cigarettes would be forthcoming without payment for them, whereupon the Applicant took it upon himself to threaten to stab the employee with a knife. The Applicant then sought to gain direct access to the employee (who presumably was working behind the usual counter console) by trying to enter the employee’s workspace via the counter access door. When the Applicant realised that the counter access door was locked and otherwise inaccessible, he proceeded to accost a 66 year old woman waiting at the counter queue to pay for her petrol. The Applicant stole $20 from this 66 year old lady, who, after witnessing the entire incident, was understandably very frightened that the Applicant may stab her in lieu of the service station employee. Consistent with the approach he has taken to much of his offending, the Applicant denied involvement in the offence shortly after his arrest. This is what transpired in cross-examination:
“MS NYABALLY: Then the last thing you were found guilty of was in relation to the incident at the service station, and I’d like to take you to page 48 of the big bundle of documents?
APPLICANT: Yes.
MS NYABALLY: Okay, so at about line 32 of this, these are the sentencing remarks from the magistrate at the time – sorry, it looks like you’re still looking for it. Let me know when you’ve found the page?
APPLICANT: Page 48?
MS NYABALLY: Yes, about line 32?
…
APPLICANT: Yes, I’ve got it.
…
MS NYABELLY:…Okay, so on that page you’ll see in capital letters it says “His Honour”?
APPLICANT: Yes, I see that.
MS NYABALLY: About halfway down the page, okay. So His Honour says that you pleaded guilty straight away to these offences, and it talks about the victim being an attendant at the United service station. Then I want to take you to the paragraph underneath that, where it says, “An associate of PKBV asked for some smokes, and the victim replied, ‘26 bucks.’ The accused,” being you, “said, ‘I don’t have the cash. You should give them for free. The victim said, ‘I can’t give them for free.’” And then you said, “There’s a knife with me. I’ll kill you if you don’t give me smokes. I’ll smash you if you don’t give me smokes.” And then you put your hand down the front of your pants, suggesting you were carrying a weapon, although you didn’t have a knife – or no knife was sighted. Is that correct?
APPLICANT: Yes.
MS NYABALLY: Then on the next page at the very top it says,
There was a 66 year old female waiting to pay for her fuel. She had $20 in her hand. You faced the 66 year old woman and snatched it from her hand and ran out of the store. She was present during the offence when you said that you would stab the victim, and she felt scared that you were going to stab her and began shaking.
Do you remember doing this?
APPLICANT: I didn’t do that. I didn’t say nothing to her.
MS NYABALLY: This doesn’t say that you said anything to her. It says that you faced her and you snatched the $20 note from her and ran out of the store?
APPLICANT: Yes, that’s correct, yes.
MS NYABALLY: Can you tell the tribunal why you did this?
APPLICANT: I was drunk. I didn’t know what I was doing. But I realise what I was doing.
MS NYABALLY: So ‑ ‑ ?
APPLICANT: I don’t know, I just ‑ ‑ ‑”[23]
[My underlining]
[23] Ibid, page 17, lines 1-47, and page 18, lines 15.
During the sentencing hearing for the immediately preceding offending at the petrol service station, the Applicant’s legal representative sought to ameliorate the seriousness of his offending. This was completely rejected by the sentencing Magistrate, as is revealed in the relevant portion of the transcript from that sentencing hearing:
“Applicant’s representative: Your Honour, after the reading facts [sic] you probably wouldn’t be surprised when I say to you that he was highly intoxicated at the time of the offence, Your Honour. He’s 20 years of age. He’s currently serving his first sentence in relation to other matters…(not transcribable)…I’ve asked your Honour to give him full benefit for his plea, and to accept that there is a degree of contrition involved in making that plea.
He has a problem with alcohol, your Honour. He’s, as I’ve said, a young person. I’d be asking your Honour to take into account his age, and to, when you’re crafting a penalty to him, to emphasise a rehabilitation over punishment. These matters tend to be, in my reading, tend to be in the low range of criminal offences of that type.
HIS HONOUR: What, stealing money out of the hand of a 66 year old woman about to pay for her petrol?
Applicant’s representative: Yes, it’s actually…
HIS HONOUR: That is in the lower end? I completely disagree with that.
Applicant’s representative: In my experience, it usually involves grabbing a handbag of some nature or make applying force to the person, or stealing property out of their presence. There’s a limited degree of force involved in snatching the $20.00 from her hand. No doubt it was distressing for her…
HIS HONOUR: I fundamentally disagree with that submission.”[24]
[My emphasis and underlining]
Application of relevant factors in paragraph 13.1.1(1) of the Direction
[24] Exhibit 1, Agreed Bundle, page 47, lines 34-50, and page 48, lines 1-9.
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
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)…
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 paragraph (b) above, the sentence imposed by the Court 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)…
h)…
i)…
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. There are multiple offending episodes involving violence in the Applicant’s history. His conviction for “reckless grievous bodily harm in company” on 14 January 2014 involving, as it did, the administration of extreme physical violence against a victim, is conduct that falls squarely within this sub-paragraph (a). Likewise, his appalling assaults committed on 31 May and 13 July 2014 involving the infliction of very serious physical injury to a victim, both while the victim was conscious and, extraordinarily, returning to further very seriously assault that victim while that victim was lying unconscious, are squarely captured by this sub-paragraph (a). But for the intervention of providence, there is a genuine likelihood that his conduct at the petrol service station in July 2017 could have resulted in much more serious violence and injury if the counter access door where the service station employee was working could have been opened by the Applicant.
One need look no further for an independent and objective impression of the Applicant’s violent conduct than that formed by the learned Magistrate at the Mount Druitt Local Court, who, in August 2017, sentenced the Applicant for his astonishingly brazen and unlawful conduct at the petrol service station. I find (1) that this sub-paragraph (a) is relevant and applicable to the Applicant’s offending circumstantial matrix and (2) that this sub-paragraph (a) strongly militates in favour of the allocation of a heavy level of weight in favour of a finding that his offending is of at least a serious, if not very serious nature.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction further provides that crimes of a violent nature against women or children are viewed very seriously, “regardless of the sentence imposed”. There is no reference in the material indicative of the commission of crimes of violence against women or children. This sub-paragraph (b) is thus not relevant to determination of this application.
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction asks a decision-maker to have regard to crimes an Applicant may have committed against vulnerable members of the community or government representatives/officials in the performance of their duties. As was the case with sub-paragraph (a), there are offending episodes in the Applicant’s criminal history falling squarely within the ambit of this sub-paragraph (c).
First, the Applicant’s criminal history discloses two convictions for “assault police officer in actual duty without actual bodily harm”. On 14 January 2014, while a juvenile, the Applicant was convicted at the Bidura Children’s Court of one count of “assault police officer in execution of duty”. A probationary order of 12 months’ duration was imposed. Also on 14 January 2014 at the Bidura Children’s Court, the Applicant was convicted of one count of “Intimidate police officer in execution of duty”. I find that both of these offences constitute “crimes committed against government representatives or officials…in the performance of their duties…” for the purposes of this sub-paragraph (c).

Second, I agree with the learned sentencing Magistrate’s at the Mount Druitt Local Court, who, on 1 August 2017, dealt with the Applicant for one count of “steal from the person” arising from his unlawful taking of money from a 66 year old woman who was simply waiting in a queue at a petrol service station to pay for her petrol. Specifically, this offending does constitute a “crime committed against a vulnerable member of the community” within the ambit of this sub-paragraph (c).
I find (1) that this sub-paragraph (c) is relevant and applicable to the Applicant’s offending circumstantial matrix and (2) that this sub-paragraph (c) militates strongly for the allocation of a heavy level of weight in favour of a finding that his offending is of at least a serious, if not very serious nature.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) above) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.
I have earlier outlined and summarised both the number of offences committed by the Applicant, together with a description of those offences. Having regard to the Applicant’s relatively young age (23 years), his approximately four and a half year criminal history must be viewed as relatively long and, for its duration, substantial. He arrived in Australia in January 2008 and has resided here on an uninterrupted basis since November 2010. What compounds the extent of this history is that it was committed – both as a juvenile and as an adult – across the majority of the Applicant’s time in the general community of this country (i.e. from November 2010 to August 2017). It can be fairly said that the Applicant’s offending and his struggles with law enforcement authority and the judicial sentencing process have been the dominant features of his life in Australia.
It is worth repeating the relevant numbers resulting from the Applicant’s sentencing history. In a criminal history running from March 2013 to August 2017, the Applicant has found himself before judicial authority for sentencing on approximately 9 separate occasions for the commission of some 24 offences. The totality of head custodial terms imposed upon him comes to approximately 43 months, or, three years and seven months. The scope of his offending is broad, encompassing, as it has, offending in the realms of (1) failure to follow a lawful direction offences; (2) public nuisance-type offences; (3) offences against the person (against both representatives of lawful authority and members of the general community); (4) offences against the property of others; and (5) failure to meet the requirements of externally imposed orders/conditions, such as bail.
I find that the Applicant has been a consistent and persistent offender in this country. Prior to his removal from the mainstream Australian community in August 2017, the Applicant spoke of wanting to re-integrate himself into his surrounding family and support network, to avoid bad friendships and relationships and to otherwise significantly moderate and control his intake of alcohol. He spoke of returning to work in the building industry, specifically as a concreter. The difficulty with that contention is that even with his claimed supportive elements of family/support circle and remunerative employment around him, in the past, he still repeatedly resumed his pattern of offending.
Having regard to the totality of the Applicant’s sentencing history, I find that the sentences imposed by the courts for this Applicant’s offending militate strongly in favour of an application of this sub-paragraph (d) to facilitate the allocation of a heavy level of weight in favour of a finding that his offending is of at least a serious, if not very serious nature.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the investigatory exercise required by this sub-paragraph (e) largely mirrors that required by the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.
First, as I have already found, the Applicant is both a frequent and persistent offender. He has been in Australia on a permanent basis since November 2010 and was part of the mainstream Australian community until his most recent removal into criminal custody in August 2017. His approximately four and a half year offending history has caused him to offend on a quite consistent basis since March 2013. There is no requirement to again summarise his offending, as I have done so earlier in these Reasons. Suffice it to say that during his approximately seven years in the mainstream Australian community, the Applicant’s conduct has seen him before lawful authority for sentencing in 2013 (once), 2014 (three times), 2016 (three times) and 2017 (two times). He has been dealt with for 24 offences across an approximately four and a half year sentencing history. This equates to the commission of just over five offences per year during his four and a half year offending history. There can be no other finding other than that the Applicant’s offending has been frequent and persistent.
Second, any discernible trend of increasing seriousness in the Applicant’s offending history would surely be able to be gleaned from the nature of the sentences imposed upon him as his offending history evolved. The concerning aspect of the level of seriousness inherent in the Applicant’s offending is that, even in relation to offences committed as a juvenile, his offending seems to have been of a serious nature virtually from its outset. As a juvenile, he commits the offences of (1) “assault police officer in execution of duty”; (2) “reckless grievous bodily harm”; and (3) “aggravated break and enter and commit serious indictable offence – in company”. Also as a juvenile, he commits the two very serious assault occasioning bodily harm offences for which he was sentenced in October 2014.
It cannot be reasonably found that the seriousness of his offending as an adult has trended downwards. As an adult, he committed, for example, the offences at the petrol service station. Inherent throughout his history is a repeated failure to respect lawful authority and the rules and laws governing his conduct in the general community into which he now seeks re-admission. Thus, an application of this sub-paragraph (e) leads to an inevitable finding that both the frequency of the Applicant’s offending and its consistent level of seriousness – from its outset, including those offences committed as a juvenile - is such as to attract an application of this sub-paragraph (e) with heavy weight in favour of a finding that his offending has been of at least a serious, if not very serious nature.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending.
The Applicant has a four and a half year criminal history. His sentencing history demonstrates that judicial sentencing officers have accepted that his offending has been committed at relatively young age, and, accordingly, the sentences that have been imposed have “graduated” from non-custodial to custodial in nature. Despite the Applicant being favoured with non-custodial sentences, he has failed to curb his propensity to offend. Across the four and a half year criminal history, sentencing courts have imposed non-custodial sentences in the forms of: (1) dismissals with caution; (2) probation; (3) control orders; (4) good-behaviour bonds of a given duration; (5) the recording of a conviction(s) with no other penalty; and (6) early release on parole. These non-custodial instruments have been imposed by way of sentencing regimes on at least 17 occasions across the four and a half year offending period. An obvious cumulative effect of the Applicant’s offending is that he has abjectly failed to derive any deterrent effect from those favourable non-custodial sentences and he also seems to have failed to understand the significant concession that has been afforded to him by those non-custodial instruments.
The further point (and cumulative effect) is that even in sentencing episodes where custodial terms have been imposed, the Applicant has often enjoyed the benefit of either immediate release or early release on parole. One would have thought that even a relatively brief “taste” of a custodial sentence may have caused the Applicant to change his predisposition to offend. Yet this has not occurred. The point sought to be made is that while one may grudgingly accept that even if the imposition of a completely non-custodial sentence may not have had the necessary deterrent effect, the concerning aspect is that he has failed to experience any such deterrent effect even when actually incarcerated – albeit for a short or abridged period as a prelude to his early release on parole.
The Applicant’s readiness to default to the imposition of violence to achieve an outcome or to resolve an issue is another cumulative effect of his offending. The history is redolent of an offender who lacks the necessary cautious hesitation towards the imposition of violence to get himself out of an impasse or to otherwise impose himself on a given situation. Worse still, a deal of his very violent offending has been gratuitous. Resuming and maintaining his appalling assault on an already unconscious victim cannot be explained away. His readiness to impose a violent outcome on the petrol service station employee by trying to enter the employee’s workspace behind the counter is indicative of the Applicant’s failure to establish the necessary borders of self-control and to refrain from violence. This violent predisposition has not just been demonstrated towards members of the general community. It has also been applied by the Applicant towards a police officer in the course of his duty.
Another cumulative effect of his offending can be seen in the range of the offences he has committed. As mentioned earlier, he has committed offences across a relatively broad offending paradigm comprising: (1) a refusal to respect lawful direction; (2) a refusal to respect the rights of others via the commission of public nuisance-type offences; (3) offences against the person; (4) a refusal to respect the property rights of others; and (5) a refusal to respect lawfully imposed orders/requirements compelling him to do or refrain from doing something.
It is clear from his sentencing history that this Applicant has been afforded – via favourable sentencing outcomes – an opportunity to restrain himself and to not re-offend. It is reasonable to conclude that none of those sentencing measures have worked in favour of any reduction in either the level of consistency or seriousness of his offending across its four and a half year span.
Having regard to the totality of the Applicant’s unlawful conduct culminating in his recorded offending history, I am of the view that the cumulative effect of the nature and extent of the Applicant’s repeated offending clearly attracts application of this sub-paragraph (f) heavily in favour of a finding that his offending has been of at least a serious, if not very serious nature.
Sub-paragraph (g) of paragraph 13.1.1(1) of the Direction asks a decision-maker to determine whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. There is nothing in the material disclosing such conduct, and accordingly, this sub-paragraph (g) is not relevant to determination of the instant application.
Sub-paragraph (h) of paragraph 13.1.1(1) of the Direction involves an inquiry about whether the non-citizen has re-offended since being formally warned, in writing, about the consequences of further offending in terms of that non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour). Again, there is nothing in the material disclosing any such warning or counselling type letter from the Respondent. Accordingly, this sub-paragraph (h) is not relevant to determination of the instant application.
Sub-paragraph (i) of Paragraph 13.1.1(1) of the Direction refers to a non-citizen who has committed a crime while in immigration detention in Australia. The material does not disclose any offences or reprimands committed by or received by the Applicant during his time in immigration detention. The material does contain some reference to certain incidents while in criminal custody. That said, I will refer to that conduct of the Applicant while in criminal custody later in these reasons with reference to the “other conduct” provision in the chapeau to the factors at paragraph 13.1.1 of the Direction. Therefore, I am of the view that this sub-paragraph (i) is not relevant to the determination of this application.
The chapeau to the factors at paragraph 13.1.1 of the Direction reads as follows:
“(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: …”
[My underlining]
There are three incidents described in the material that relate to issues of inmate discipline regarding certain instances of the Applicant’s conduct during his time in criminal custody. First, on 12 December 2017, the Applicant was reprimanded about conduct amounting to a “belittling of a correctional services officer in the presence of other inmates”.[25] The relevant report NSW Department of Corrective Services Case Note Report says the following:
“[The Applicant] had to be spoken to with regards to his comments and timming (sic) while out on a Motivator camp. While addressing the intake [the Applicant] was making jokes and trying to get a laugh out of the boys. When I said that he needed to stop this “as I felt it was putting me on show infront of the boys and was belittileing (sic) he got argumentative and said that I had put him on show. I said if he continued to make inappropriate comments while I was addressing the inke (sic) I would simply remove him from the session.”[26]
[25] Exhibit R1, Agreed Bundle, page 605.
[26] Ibid.
Second, on several occasions the Applicant wrote a large amount of graffiti on cell walls recording various things including his name and ‘FBI Full Blooded Islander’. The relevant Parklea Correctional Centre Inmate Discipline Report makes reference to the Applicant defacing the walls of his cell in this fashion and the relevant officer further notes, “I questioned inmate [the Applicant] in relation to these graffiti and he denied defacing these rooms. Inmate [the Applicant] was charged in 2017 for the same offence. I attach the additional statement of ********** who witnessed the incident.”[27]
[27] Ibid, page 535.
Third, on 14 July 2018, the Applicant entered the cell of another inmate and proceeded to kick an object which appeared to be a TV box. This resulted in the inmate later complaining of damage to his TV. The relevant Parklea Correctional Center Inmate Discipline Report notes the following:
“I received a complaint from inmate known to me as [name of inmate redacted] who was housed in 3C cell 17, that his TV had been damaged. Upon review of CCTV footage Camera #332, I could positively identify inmate known to me as [the Applicant] enter cell 17 at 09:14:23 AM and use his right leg to kick an object on the floor which appears to be a tv box. Upon entering that cell I found inmate [name of inmate redacted]’s tv box with tv inside at the back of the cell with his name marked on it. At no time did I or any officer give [the Applicant] permission to damage or destroy property. I submit this report for your information.”[28]
[Errors in original]
[28] Ibid, page 525.
The Applicant was taken to these and other similar incidents I have described earlier in these Reasons[29] during cross-examination and the following transpired:
“MS NYABELLY: You have been reported for a couple of incidents while you were in gaol though. There were a couple of occasions where you damaged property, and that appears, if you want to go to page 243 of the documents?
APPLICANT: Yes.
MS NYABELLY: So right down the bottom of that page?
APPLICANT: Yes.
MS NYABELLLY: You’ll see there’s a heading, “Punishment details,” and then you’ve got three occasions, two on page 243, so happened in July 2018, June 2018, and the top of the next page, you’ve got September 2017. And it says the offence is damage property or deface cell. Can you tell the tribunal what that was about?
APPLICANT: That was about graffiti on a wall. I wrote my names on the cells. Having nothing to do in the cell, we have no TV, you have – but that’s no excuse just to write on the wall, I know that, but I did it.”[30]
[My underlining]
[29] See paragraph [5] of these Reasons.
[30] Transcript, 21 May 2020, page 19, lines 8–20.
While this conduct in criminal custody did not see the Applicant convicted for a “crime committed while the non-citizen was in immigration detention” pursuant to sub-paragraph (i) of the paragraph 13.1.1(1) of the Direction, I am of the view that this conduct while in criminal custody nevertheless falls under the abovementioned chapeau to the factors appearing at 13.1.1 and is indicative of the nature and seriousness of the Applicant’s offending conduct. I am therefore of the view that (1) the totality of this particular aspect of his conduct in criminal custody is relevant to the determination of the instant application; (2) is captured by the reference to “other conduct” referred to in the abovementioned chapeau to paragraph 13.1.1(1) of the Direction; and (3) weighs in favour of a finding that the Applicant’s conduct is of a serious, if not very serious nature.
While not directly relevant for the assessment of the level of seriousness of the Applicant’s offending, it is only fair to him that I make reference to certain harm that he says he has recently suffered while in immigration detention. In his Submissions in Reply, the following is said on the Applicant’s behalf:
“In Response to Paragraph 20
Incidents which have occurred whilst the Applicant has been in custody includes inmates or fellow detainees committing suicide and the Applicant himself being stabbed. He was not helped but took himself to the clinic for bandages and did not file a report. However his visit to the clinic should be on file with Villawood Detention Centre with no legal representation, he has no idea how to access this to include this information in this letter.”[31]
[31] Exhibit 4, Applicant’s Submissions in Reply, second and third pages.
It is difficult to attribute any level of reliability or credibility to this statement due to an absence of any medical or other record of it occurring. The further difficulty arises from the Applicant’s apparent refusal to formally complain to the detention authorities and to identify the alleged perpetrator of this harm. In cross-examination, the Applicant said the following about this alleged incident:
“MS NYABELLY: In particular, in your written submissions, you’ve talked about getting stabbed while you were in detention?
APPLICANT: Yes.
MS NYABELLY: Now in that smaller bundle of documents – actually, sorry, I might take it back. Senior Member, I’m referring here to the applicant’s submissions in reply. On page 2 under the heading, “In response to paragraph 20,” it refers to the applicant himself being stabbed. Now PKBV, I assume this was written by Ms [NT] on your behalf?
APPLICANT: Yes.
MS NYABELLY: But I just want to ask you some questions about this incident. So it says you were stabbed. You weren’t helped, but you took yourself to the clinic for bandages and didn’t file a report?
APPLICANT: Yes, that’s correct.
MS NYABELLY: Okay. Now we have your medical records, which is in that smaller bundle of documents, and there’s no reference to you going – being stabbed or going to the clinic for bandages?
APPLICANT: I don’t know if they write down records of getting band-aids from the clinic, but I know that I went to the clinic that day.
MS NYABELLY: Okay. Can you explain – can you tell the tribunal what happened that day?
APPLICANT: Some boys was getting, you know, getting into a fight and stuff and I got involved somehow trying to stop it, and then, yes, I got in the way.
MS NYABELLY: Where were you stabbed?
APPLICANT: On my arm.
MS NYABELLY: What were you stabbed by?
APPLICANT: I think it was a homemade knife. I can’t describe it. It was just a piece of metal and it was wrapped in a towel.
MS NYABELLY: You said you went to get band-aids?
APPLICANT: Yes.
MS NYABELLY: How bad was the stab wound such that you only needed band-aids and not stitches or going to the hospital?
APPLICANT: I didn’t want to - I didn’t want to go to the hospital because I didn’t want to tell them what really happened.
MS NYABELLY: Why not if you got injured and if you weren’t at fault?
APPLICANT: I just didn’t want the other boys to get in trouble.
MS NYABELLY: When was this?
APPLICANT: I can’t give you a name.
MS NYABELLY: No, no, no, not who, about when was this? When did this happen?
APPLICANT: A couple of months ago now.
MS NYABELLY: Have you had any ongoing physical problems because of this?
APPLICANT: No.”[32]
[My underlining]
[32] Transcript, 21 May 2020, page 19, lines 28–44; page 20, lines 1–24.

Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (c), (d), (e), (f) of paragraph 13.1.1(1) of the Direction are relevant, together with the conduct captured under the chapeau to paragraph 13.1.1 of the Direction, I am of the view that the Applicant’s conduct is readily capable of characterisation as “serious”, if not “very serious”.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(i)paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)paragraph 13.1.2(1)(b) requires me to consider 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 reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The Respondent’s SFIC says the following:
“49. The respondent contends that there is a serious risk for the applicant committing further violent offences and/or theft in the future and that any such conduct would likely to result in psychological and physical harm to members of the Australian community, as well as property and financial loss…”[33]
[My underlining]
[33] Exhibit R2, Respondent’s SFIC, paragraph [49].
For reasons that follow, I am of the view that this contention is well-made and correct. I have characterised the Applicant’s offending as at least serious, more likely very serious. It is therefore very difficult and improbable that the Applicant can escape the effect of principle 6.3(4) such that were he to repeat the nature and level of his past criminal conduct in the community, such a risk would necessarily be unacceptable to that community. The state of the evidence leads to no other finding than this Applicant’s risk of re-offending is no different to what it was immediately prior to his most recent removal from the Australian community. As such, any risk of such conduct recurring would, to my mind, be unacceptable to the Australian community. Further, to the extent that any other strong countervailing considerations may be applied against such a finding, those countervailing considerations are, to my mind, insufficient to justify any decision to restore the Applicant’s visa rights to him.
The Applicant has a four and a half year history of criminal offending in this country. As mentioned earlier, his previous attempts to refrain from offending have been unsuccessful. Many of the pillars of support the Applicant now says will prevent him from committing any future offences had been available to him in the past and failed to prevent him from further offending. His subsequent offending – committed after a stated intention to refrain from offending – has been at least similar (in terms of its seriousness) if not more serious, than his preceding offending. I am of the view that the Applicant’s past offending constitutes a reliable gauge and predictor about the nature of any future offending and the harm that would result from the commission of such offences.
The material seems silent about any factors or indicators militating in favour of a finding that any future harm resulting from future offending will be at a lower level than what his victims have experienced thus far. As will be seen in the discussion relating to his risk of re-offending, there is a dearth of evidence supportive of a finding that the factors previously causative of his offending have, somehow, been removed from his life. There is no doubt that, despite their best efforts, judicial sentencing officers – via their graduated sentencing regimes – have failed to deter the Applicant from re-offending. There is little or nothing else in the material to indicate that the nature of any future offending by the Applicant will be ameliorated to an extent that any future harm arising from it will be of any less severity than harm resulting from it in the past.
His respective propensities to (1) resort to violent means to resolve a difficulty or impasse and (2) refuse to respect the personal and property rights of others, means that any future harm resulting from his offending will surely be of at least the same level to that already experienced by victims of his offending. He has failed to learn anything from previously imposed non-custodial instruments of sentencing and has simply returned to the same, if not more serious, levels of offending. It is thus reasonable to conclude that future harm from his offending will be of at least the same level of seriousness.
To my mind, the state of the evidence confirms that were the Applicant to re-offend – particularly under the influence of alcohol – the harm that would be occasioned to victims would, at the very least, be at the same or similar level to his past offending. Even if the resulting harm remained at its present level, the consequences would surely be very serious and would involve very significant and conceivably catastrophic physical, financial and psychological harm to victims. It is also reasonable to find that this harm would increase commensurate with any increase in the level of severity of his future offending.
I am thus of the view that the nature of harm resulting from the Applicant’s further criminal or other serious conduct would, at the very least, be of the same or similar level of seriousness to the harm resulting from his prior offending. Were he to re-offend, its impact on victims in the Australian community – directly or indirectly – would indeed result in very serious financial, physical, psychological and potentially catastrophic consequences.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Applicant’s written material
In his written material, the Applicant makes the following contentions:
“I … would like to express my sincerest apologies and hopefully be granted the opportunity to show how the past year or so has helped me to learn the very hard way, the error of my ways and has given me plenty of insight and time to reflect and grow as an individual.
…
I think it’s important for me to address that I am well aware of how my actions have adversely affected those around me that may have been past victims of my bad decisions and of course my family who I have been separated from during my time of incarceration and being detained…
I … have begun the process of being a productive member of society, equipped with the lessons I have learnt and courses I have participated in as well as the ongoing support of a small close knit group of positive family members.
…
I have since cut off all contact with persons I feel were negative in my want (sic) to rehabilitate and having been in custody for over a year, successfully abstained from any drugs or alcohol…
I would like to mention that prior to my incarceration I had just begun to reside with my partner and her family. They live well away from the environment I used to be in. It is quite unfortunate I had not met them earlier as I had already gained quite the record by this point….They have been an ongoing support to me during my time of incarceration and a very positive influence on me in general.
I have already taken the right and necessary steps towards integration back in the community by participating in church services held within the detention centre, having close ties to my family and in-laws who will continue to support me emotionally and mentally and also by resuming work in concrete, for the same company which I have worked for prior to my incarceration and have confirmed I can return to.”[34]
Applicant’s evidence in cross-examination
[34] Exhibit 2, Remitted Bundle, pages 11–13.
The Applicant was asked about his contention that he is now at lower risk of re-offending because of the support he says he now has from his current domestic partner, Ms NT, and her family:
“MS NYABELLY: So this happened in 2017, and it was while you were living with ... your girlfriend, [Ms NT].[35] Is that right?
APPLICANT: Yes.
MS NYABELLY: Now the importance of this is that in your statements, you’ve said that one of the reasons why you won’t commit these kinds of crimes in the future is because you had the support … of your girlfriend and the family. So you had their support back in 2017, but you still went out to do what was one of your most serious offences. So what’s changed between now and then?
APPLICANT: They weren’t – they weren’t there when I done the crime. I done – I done the crime by myself. I chose to do it. I did what I did, and I know what I did. Before I went out, they even said to me to stay home and – but I didn’t listen. But right now, the difference is right now, is that we are closer now, we understand each other more and support each other more.
MS NYABELLY: So does that mean that you’re more likely to listen to them now than you were then?
APPLICANT: Yes.
MS NYABELLY: So is the only thing that’s changed your attitude?
APPLICANT: Just – I’ve changed just myself. The way I think about stuff now.”[36]
[My underlining]
[35] The reference to ‘Ms NT’ in this quoted portion of the transcript includes a reference to Ms NT’s family.
[36] Transcript, 21 May 2020, page 18, lines 7–26.
It would be unsafe to attribute a lower risk of re-offending to this Applicant now on the bases of (1) an apparently closer or more understanding relationship between him and his girlfriend/fiancée and her family; and (2) due to the Applicant’s suggestion that “…I’ve changed just myself. The way I think about stuff now.”
The Applicant was questioned about rehabilitative and other courses he has completed during his time in either criminal custody or immigration detention. He responded as follows:
“MS NYABELLY: Which leads me to some of my next questions. So while you were in prison, you’ve completed some courses, some drug and alcohol courses. Is that right?
APPLICANT: Yes.
MS NYABELLY: Can you tell the tribunal a bit about these courses, what you did and what you’ve learned?
APPLICANT: It was just about alcohol and drug use. We learned how to not completely stop drinking, but how to get there, step by step. How to better ourselves. Just learned a lot of things.
MS NYABELLY: Can you give some examples of what kind of techniques they’ve given you to stop or limit your drinking?
APPLICANT: Instead of having a drink out and going out and partying and getting really drunk, just have one or two at home, or you know, stay home and that sort of stuff.[37]
[37] Transcript, page 18, lines28–40
While the Applicant contends to have successfully changed himself, this contention is not independently verified or confirmed by a suitably qualified clinician. Apart from the Applicant’s own contention about having changed himself, there is no independent clinical evidence that (1) the causative aspects behind his offending have been identified, (2) are under some sort of remedial clinical management and control such that (3) this Tribunal can make a safe finding of a low-very low risk of recidivism. The totality of the evidence on recidivism goes no further than suggesting that this Applicant’s risk of recidivism is no different than what it was prior to his most recent removal from the Australian community.
He was questioned about his contention regarding him ridding himself of previous past bad friendships and the consequential impact of those friendships on his propensity to offend. He said the following:
“MS NYABELLY: You’ve also said in your statement that one of your problems was you hanging around with the wrong people, and you said that you started hanging out with these people because you felt more at home when you belonged with them. So again, what’s changed between then and now?
APPLICANT: Now I completely – I don’t talk to any of my friends or anything. I don’t communicate with them. I just block them out and I’m just trying to concentrate on my fiancé and her family and my family. I just want to do the right thing now. I’ve been in for almost three years now, and a lot has changed. The way I think, the way I see things now, it’s a lot different. I can see that I have a really, really bad problem before coming into gaol and places like this. I know what I’ve done. I just can’t do anything about it to change it, but I can change myself, and that’s what I did.”[38]
[38] Transcript, 21 May 2020, page 18, lines 42–47; page 19, lines 1–6.
While this evidence may cautiously be accepted as indicative of the Applicant having developed a level of insight into his offending, it would be unsafe to base a finding of a low or very low risk of recidivism on the basis that the Applicant will simply “block out” his past bad friendships, that he “just wants to do the right thing now” and that he has “changed himself”. The contended solace and equilibrium he has found in his girlfriend/fiancée and her family did not prevent him from abusing alcohol in the past, nor from re-connecting with his bad friendships from the past and, ultimately, re-offending.
The Applicant was taken to a pre-sentence report dated 5 September 2017 prepared under the hand of Ms Rhian Magrath, Unit Leader, Dee Why Community Corrections Office. Specifically, the Applicant was taken to the following portions of Ms Magrath’s report:
“…
Prior management by Community Corrections
…
On 10 August 2016 [the Applicant] was sentenced to a Section 12 Good Behaviour Bond for the offence of Steal from the Person and a Section 9 Good Behaviour Bond for Destroy or Damage Property >$5 000 & <=$15 000 (DV). His response to the current supervision period has been poor with [the Applicant] failing to report as directed and engaged in further offending. The order was subsequently revoked and he was sentenced tot here months in custody, commencing on 1 August 2017.”
…
Factors related to offending
Substance use
[The Applicant] disclosed a history of binge drinking behaviour prior to the current offences. He advised that he was consuming alcohol on a daily basis to intoxication. [The Applicant] has previously been referred to intervention to address his alcohol use, however, does not appear to have engaged with these services.
…
Assessment and community based sentencing options
Assessment
…
It is positive to note that [the Applicant] has recognised the impact of his alcohol use on his offending behaviour, however, he has historically failed to engage in intervention to address this issue. While [the Applicant] has demonstrated a generally poor response to supervision in the community, Corrective Services NSW records indicate he is not recognised as a management concern in the custodial setting.”[39]
[My emphasis and underlining]
[39] Exhibit 2, Agreed Bundle, pages 500–502.
The Applicant was cross-examined about the connection between his drinking alcohol and the commission of crimes after having been taken to the above portions of Ms Magrath’s report. The following transpired:
“MS NYABELLY: One of the things we’ve talked about is the connection between you drinking alcohol and you committing crimes. The fact that you had their support before but yet you still drank alcohol and you committed crimes.
…
MS NYABELLY: So my short point here is that you’ve said today that you recognise that your drinking alcohol is a problem but you said that before, as we’ve seen in the sentencing report. You have the support of your fiancée and her family but you had that before and you still didn’t address your problems with alcohol. There is a clear link between you drinking alcohol and you committing pretty violent crimes, not on necessarily people in your immediate family and friendship group but on innocent members of the Australian community. So what would you like to say to the tribunal to explain to it why you have changed - why it should believe that your behaviour has changed and that this time is different?
APPLICANT: I understand what you guys are saying. I understand what you’re saying about my record and what I’ve done, and I do understand it this time too. I just - I just know in my heart, I just know that I’ve changed this time. There’s no other way we can find out but letting me out of here. That’s all I know. That’s all I can tell you. I can’t prove it to you. I can’t tell you guys. I just know it, I just know it. I just know I can do it this time. I know I’ve changed. I know I’ve said it a lot of times in the past. I understand what you’re trying to say but I just know that I’ve changed. I know this is my last chance if I do ever get out of here. I will make things right.”[40]
[My underlining]
[40] Transcript, 21 May 2020, page 22, lines 6–47; page 23, lines 1–15.
It would, to my mind, be unsafe to make any finding of a low to very low risk of recidivism on the basis of what the Applicant “knows in his heart” or that he simply “knows that [he’s] changed this time”. He accepts that “I know I’ve said it a lot of times in the past” but cannot convincingly say that his risk of recidivism is any different to what it was prior to his most recent removal from the Australian community. He suggests that the only way we can ascertain whether his risk of recidivism is now lower is as follows: “There’s no other way we can find out but letting me out of here”. The unfortunate and unsustainable upshot of that contention is that this Tribunal will not accept a situation of the Australian community being exposed to the Applicant’s untested and unproven claims of rehabilitation outside of the closed and controlled confines of criminal custody and/or immigration detention.
There are two further difficulties with accepting the Applicant’s contentions about claimed rehabilitation. First, Ms Magrath’s report is dated 5 September 2017. It is the most proximate independent discussion about the Applicant’s past offending and his future risk of recidivism relative to the time of his most recent removal from the Australian community. In this most recent report, Ms Magrath observes (1) that the Applicant’s response to the then-current supervision period had been poor, resulting in the revocation of the then-applicable good behaviour bond; and (2) the Applicant had been previously referred to intervention to address his alcohol use but failed to engage with those services. Second, the Applicant’s claimed levels of rehabilitation and consequential low-very low risk of recidivism does not square with the findings of Ms Magrath:
“Risk level and criminogenic needs
According to the Level of Service Inventory – Revised actuarial risk/needs assessment tool, [the Applicant] is assessed as a medium-low risk of re-offending. …”[41]
[Emphasis in original]
[41] Exhibit 2, Agreed Bundle, page 502.
Summary of Recidivism Factors
First, the Applicant’s history is demonstrative of a propensity to offend when abusing alcohol and when he subjects himself to negative social influences. The Applicant commenced consuming alcohol when aged 14 and proceeded to become a daily drinker by the age of 16. While he contends about (1) having completed certain rehabilitative courses and (2) having severed his ties with his past bad friendships, those contentions have been made in the controlled environments of either criminal custody or immigration detention. Due to those controlled environments, the Applicant has been shielded from the exigencies arising from inevitable exposure to negative influences that will confront him upon any return to the broader community. As noted by Ms Magrath, prior to his most recent incarceration his response to the requirements of the supervisory terms of the then-applicable good behaviour bond had been poor and, further, he had failed to engage with intervention services to address his issues with abusing alcohol.

The Applicant’s frequent and lengthy offending history has seen him convicted and sentenced for unlawful conduct that can, at best, be characterised as “serious” more likely “very serious”. There can be no question that his resulting criminal history in Australia has surely breached the expectations of the Australian community and is clearly demonstrative of a failure to abide by the laws of Australia.
In terms of the allocation of weight to this Primary Consideration C, the evidence leads me to take the following factors and/or findings into account: as outlined above, the Applicant has made (and has the potential to make) some positive contributions to the Australian community through his employment history in the building and construction industry;[83]
(a)the Applicant has lived in the mainstream Australian community for approximately 8–9 years prior to his most recent removal in December 2017;[84]
(b)the removal of the Applicant may adversely impact his mother, half-sisters, domestic partner, and the infant children N and Z who are all in Australia;[85]
(c)the serious-very serious nature of the Applicant’s offending to date committed upon both individual members of the Australian community and participants in its institutional regulation;
(d)the broad scope of the Applicant’s offending history, involving commission of offences in the realms of (1) failure to follow lawful directions; (2) public nuisance-offending; (3) offences against the person (against both representatives of lawful authority and members of the general community); (4) offences against the property of others; and (5) failure to meet the requirements of externally imposed orders/conditions, such as bail;
(e)the incomplete state of the psychological/psychiatric evidence surrounding the Applicant’s risk of recidivism;
(f)my finding of a strong, convincing and unresolved likelihood that he will engage in further serious and, quite conceivably, very serious conduct if returned to the Australian community; and
(g)my assessment of the quite significant and broad-ranging risk of substantial and potentially catastrophic harm to the Australian community were he to re-offend.
[83] The Direction, paragraph 6.3(7).
[84] The Direction, paragraph 6.3(5).
[85] The Direction, paragraph 6.3(7).
Conclusion: Primary Consideration C
I am of the view that the above factors, read as a whole in the context of this case, militate in favour of not revoking the cancellation of the Applicant’s visa. I accordingly find that this Primary Consideration C is of heavy weight in favour of affirming the non-revocation decision under review.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
As a preliminary matter, it is worth noting the Respondent’s closing submission in relation to three of the five applicable Other Considerations. I think the submission, with which the Applicant did not appear to cavil, is fairly made with reference to determination of the instant application:
“Turning now to the other considerations. The Minister’s submission is that the other considerations of impact on victims and Australian business interests and non-refoulement obligations don’t arise.”[86]
[86] Transcript, 21 May 2020, page 30, lines 13-15.
(a) International non-refoulement obligations
The Applicant has not claimed to fear harm, and none of the evidence suggests a risk of harm, should he be returned to the Tonga. This consideration is not relevant to the determination of this application.
Out of an abundance of caution, I refer a portion of the Applicant’s evidence in cross-examination, where he was asked to comment on certain evidence provided by Ms NT regarding certain physical harm he suffered as a child in Tonga. While this evidence is of no moment, it is confirmatory of the Applicant’s position that he does not fear harm if returned there:
“MS NYABALLY: In Ms [NT’s] statement she referred to you getting beaten up in Tonga when you were a kid. Is that something you’re worried about now?
APPLICANT: No. No.”[87]
[87] Ibid, page 23, lines 24-26.
(b) Strength, nature and duration of ties
There is the following limited concession made by the Respondent:
“74. The Respondent accepts that the Applicant has some ties to Australia. However, in light of the Applicant’s childhood in Tonga and family who continue to reside there, those ties should be given less weight.”[88]
[88] Exhibit R2, Respondent’s SFIC.
During closing submissions, this concession was expressed thus:
“In respect of the strength, nature and duration of ties, I refer back to the principles previously mentioned when considering - and I invite the tribunal to have regard to the fact that the applicant has resided in Australia since he was a young child, and however note that there is only limited evidence of any positive contributions he has provided to the Australian community being his work as a concreter.
The difference between the previous - the submissions made before the previous tribunal and now is the nature and the duration of his ties to Australia. First, his relationship with his mother appears to have improved, as demonstrated through her providing a supporting statement and secondly, that his relationship with his fiancée and her family has been for a slightly longer duration and is clearly a strong relationship as demonstrated by his evidence that they regularly contact and visit him in detention where able.
The Minister accepts that this consideration weighs in the applicant’s favour but the overall weight is only at best moderate given the limited positive contributions has been made to Australia, but accepting the strength and the nature of his ties to Australia.”[89]
[89] Transcript, 21 May 2020, page 30, lines 15-34.
At the previous hearing of this matter before this Tribunal, the Applicant’s evidence regarding the nature and strength of his ties to Australia was summarised by the Respondent’s then-representative:
“MR MARKUS: Now, there are other considerations, including the strengths, nature and duration of the applicant’s ties to Australia and it is a difficult one because the applicant has lived in Australia now for about 11 years. He has his birth mother here, but the relationship between them are not great. It doesn’t appear that the relationship with the family of the birth mother is that strong and on the evidence, at least, it seems that the closest connection the applicant has with Australia is through his girlfriend and the girlfriend’s family. It is not a particularly long-standing relationship.
In saying that, I don’t mean to suggest that it cannot be a strong relationship, but it is not a particularly long-standing relationship. The applicant has lived with the family of his girlfriend, on the evidence, somewhere between four to six months before 1 August 2017. What is clear is that they feel strongly enough about him to be here and to support him.”[90]
[90] Exhibit R1, Transcript of Previous Hearing, 27 March 2019, page 710, lines 29-43.
As I understood the evidence, the primary changes in the Applicant’s life since the previous hearing impacting on this Other Consideration B derive – as identified by the Respondent’s representative in submissions - from the changed nature of the respective relationships between him and his domestic partner (Ms NT) and his biological mother. First, the Applicant said that, were he to be returned to the Australian community, his residential base and primary source of social support would be his domestic spouse/fiancée (Ms NT) and her family. This much is clear from portions I have earlier quoted from the respective statements of Ms NT and Ms NT’s mother. This was confirmed by the Applicant in cross-examination:
“MS NYABALLY: Where do you plan to live?
APPLICANT: I plan to live with my fiancée and her family.
MS NYABALLY: So you’ll go back to live with [Ms NT] and [Ms NT’s mother] and the rest of the family there?
APPLICANT: Correct.
MS NYABALLY: Your family have provided some statements in the past about the kinds of support that you provided to them. For example, it seems like you moved into their house at a pretty difficult time in their lives. Can you tell the tribunal a bit about that, when you moved in back in 2017, the kind of help you provided?
APPLICANT: When I moved in they were going through - so my fiancée’s sister passed away, she committed suicide. It was a very hard time for them, you know, just helped out. I just came in and helped out around the house and I just made sure everyone was all right. I just tried to be there for them and they were having a really, really hard time but, yeah.
MS NYABALLY: When you move back in with them, what kind of - do you plan to give them any help in the future?
APPLICANT: Yes.
MS NYABALLY: Have you discussed sort of what you can do around the house? How you can help you?
APPLICANT: Help out pay the rent and help out with things they need. Go back to work, make some money and just try and be there for them like they have been for me for the last past three years I’ve been in gaol and detention. They’re the only people that’s been there for me and that visit every day. My fiancée’s here pretty much every day when visits - visits is off now but, yes, after work she would come here. I just want to be there for them, do good. I want to do better. I know I can do better.”[91][My underlining]
[91] Transcript, 21 May 2020, page 20, lines 38-47, and page 21, lines 1-16.
Second, during cross-examination, the Applicant spoke of rendering assistance to his mother during the period prior to December 2017, when he was placed into criminal custody, followed by immigration detention:
“MS NYABALLY: Okay. And before you went to gaol and to detention, did you ever help your mum look after your sisters?
APPLICANT: Yes, I did.
MS NYABALLY: Yes, what did you do?
APPLICANT: I used to put money there for rent, food and stuff around the house, when my mother is not there, when she’s at work. And yes, just doing a little stuff around the house and stuff.”[92]
[92] Ibid, page 12, lines 4-9.
As part of his downward spiral into offending, the Applicant’s relationship with his mother soured. The relationship soured commensurate with the increase in his level of drinking. During this phase of his life, he felt like he no longer belonged at home and preferred to associate with the bad influences in his life that caused him to further abuse alcohol and to, ultimately, very seriously offend:
“MS NYABALLY: So I’d like to ask you a bit about your drinking. You previously said that you started drinking around about 15. What made you start drinking?
APPLICANT: Just hanging around, you know, with – trying to fit in somewhere, I guess. I didn’t feel like I belonged at home, so – I felt like I belonged around friends. I thought it was friends back then.
MS NYABALLY: And why didn’t you feel like you belonged at home? So at this point you were living with your mum and your stepdad, half-siblings, is that right?
APPLICANT: Yes.
MS NYABALLY: Yes?
APPLICANT: Yes. I just – I just – I don’t know. I just – I didn’t feel like it was home for me. I felt like I didn’t belong there, then I just started doing stuff that I wanted, you know.
MS NYABALLY: How did you meet the friends you started drinking with?
APPLICANT: Through school.
MS NYABALLY: And how did it make you feel being around them?
APPLICANT: It felt like I belonged somewhere.
MS NYABALLY: What was it about them that made you feel like you belonged?
APPLICANT: It’s just I felt like I believe that they cared for me, and yes, that’s – that’s pretty much why I’d hang out with them.
MS NYABALLY: And they were all drinkers, is that right?
APPLICANT: Yes, they were.”[93]
[My underlining]
[93] Ibid, page 13, lines 14-37.
The relationship between the Applicant and his mother seems to have improved since his removal from the Australian community. She now says she was “wrong” to allow the Applicant to leave home in the first place. In her statement before the Tribunal, she said the following:
“The worst time is I sent him away from home for nearly two years before I let him come back. At this time he is on the streets doing things to survive. It was wrong for me to send him away.
Now my son is a man and no matter what happen before he still calls and we talk and I visit when I can take the time off my work. He is learn from mistakes and much more settled down and happy and meet a nice girl and find love and is accepted by her family and so I’m happy.”[94]
[Errors in original]
[94] Exhibit A1, Letter of Support from the Applicant’s Mother, pages 1-2.
The Applicant arrived here in 2008 (aged 11) and commenced offending in 2013 (aged 15-16). In accordance with paragraph 14.2(1)(a)(i) of the Direction, less weight should be given to this Other Consideration in those circumstances. As against that, there is evidence that he has made some measure of contributions to Australia via his approximately two year period of employment/engagement in the concreting industry. His Personal Circumstances Form says that his cultural contributions to the Australian community comprise: “Working for the Australian community by doing concreting with [name of business redacted].”[95] This does attract some weight in his favour pursuant to paragraph 14.2(1)(a)(ii) of the Direction.
[95] Exhibit 1, Remitted Bundle, page 95.
To my mind, the more tangible level of weight attributable in favour of the Applicant pursuant to this Other Consideration (b) derives from paragraph 14.2(1)(b). It is clear, on the weight of the numbers alone, that the Applicant has a certain level of family ties to Australia. They comprise: his domestic partner/fiancée (Ms NT); her family; his biological mother; his step-siblings; and his Godson. His Personal Circumstances Form also relates to “three uncles/aunts; 3 nieces/nephews and 5 cousins” in Australia.[96] It is reasonable to find that most, if not all, of those family members would be impacted by the Applicant’s removal to Tonga. Accordingly, some measure of weight is attributable to this Other Consideration (b) pursuant to paragraph 14.2(1)(b) of the Direction.
[96] Ibid, page 93.
In his Personal Circumstances Form, the Applicant speaks of the impact of his removal on his family in these terms:
“It’s gonna break my families heart but whatever happens it happens for a reason. God has a plan even tho [sic] some things gonna break you on the way. It’s gonna be in a little bit of struggle cause I’m the one that provides for my families.” [97]
[97] Ibid.
Having regard to the totality of the evidence relevant to this Other Consideration (b), I am of the view that it weighs moderately in favour of revocation of the visa cancellation decision.
(c) Impact on Australian business interests
There is no evidence before me that the cancellation of the Applicant’s visa would have an impact on Australian business interests. This consideration is not relevant to determination of this application.
(d) Impact on victims
There is no evidence before the Tribunal relating to any impact the Applicant’s continued presence in Australia may have on any of his victims. To make any finding about allocable weight to this Other Consideration (d) in the absence of such evidence would be to embark upon a frolic of conjecture about any such impact. I will not do so, and, accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa and is thus neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
With specific reference to the three factors appearing in paragraph 14.5(1) of the Direction, I note the Applicant is a man of 23 years of age. In terms of diagnosed medical or psychological conditions, the material discloses that in response to question in his Personal Circumstances Form about “Do you have any diagnosed medical or psychological conditions?” the Applicant ticked the “No” box.[98] I accept that medical care and governmental social support in Tonga[99] may not be at the same level as that available to the Applicant in Australia. He will have nevertheless have access to those things in the context of what is generally available to other citizens of Tonga. Thus, the age and state of health are not factors that attract any measure of weight to this Other Consideration (e).
[98] Ibid, page 96.
[99] Section 14.5(1)(c) of the Direction.
With further specific reference to the three factors appearing in paragraph 14.5(1) of the Direction, I note the Applicant spent the first 11 years of his life in Tonga. It is thus difficult to accept that he would face significant or substantial language or other cultural barriers upon a return there. As a citizen of that country, he will have access to social, medical and/or economic support in the context of what is generally available to other citizens of Tonga.
In his material, the Applicant speaks of adverse outcomes were he to be returned to Tonga as follows:
“Do you have any concerns or fears about what would happen to you on return to your country of citizenship?
[The Applicant ticked the ‘Yes’ box]
If yes, please describe your concerns and what you think will happen to you if you return.
Having nothing there. Cause I have nothing.
Are there any other problems you would face if you have to return to your country of citizenship?
No.” [100]
[100] Exhibit R1, Remitted Bundle, pages 96-97.
During cross-examination, the Applicant was asked about connections/relatives with whom he can connect in Tonga to assist with him re-settling there. This is what transpired during the cross-examination:
“MS NYABALLY: Do you have a grandfather who lives in Tonga?
APPLICANT: Yes, I do.
MS NYABALLY: Okay, and do you speak to him much?
APPLICANT: No, not really.
MS NYABALLY: About how often?
APPLICANT: I’ve spoken to him probably a year ago.
MS NYABALLY: I want to take you to something in that big bundle of documents. Can you go to page 586 for me?
APPLICANT: 586?
MS NYABALLY: Yes, that’s right. So you’ll see this is some case notes from corrections when you were in gaol in 2016?
APPLICANT: Yes.
MS NYABALLY: I’m sorry, when you were having an appointment with your community corrections officer. So on the fourth line there from the top it says,
David stated he was close to his grandfather and missed him being here in Australia. He said he’d look into the footy club meets and would call his grandfather and think about his goals.
Do you see that?
APPLICANT: Yes.
MS NYABALLY: So in 2016, you said you were close to him and you missed him. Has your relationship changed between now and then?
APPLICANT: Yes.
MS NYABALLY: Yes, can you tell the tribunal how?
APPLICANT: We just don’t really talk much anymore, so we don’t really communicate. He’s also upset, you know, with the things that I’ve – I’m going through.
MS NYABALLY: And when you say upset, how is he upset? What has he said to you?
APPLICANT: He’s just upset with the way that I’ve been going with just stuff like this, getting myself into trouble and – and just leaving home, not communicating with my mother as much, and yes, he’s a little bit upset.
MS NYABALLY: Do you think that he would still help support you if you had to go back to Tonga?
APPLICANT: He can’t – he can’t help me. He’s very – he’s very old. He can’t (indistinct).
MS NYABALLY: You’ve also said that you have quite a few uncles, aunts and cousins in Tonga. Is that right?
APPLICANT: Yes, that’s correct.
MS NYABALLY: Do you have any contact with any of them?
APPLICANT: No.
MS NYABALLY: And why is that?
APPLICANT: We just don’t – I don’t know, we just don’t contact each other. We just – they’re just busy with their own families and they’re all over the place now. There’s some in America, there’s some in New Zealand. They’re just all over the place. They’re just doing their own thing, you know?”[101]
[101] Transcript, 21 May 2020, page 10, lines 28-46, and page 11, lines 1-28.

Perhaps the most significant and facilitative element that will assist the Applicant in any re-settlement in Tonga is the reality that his domestic partner, Ms NT, will accompany him upon any return there. In cross-examination, the Applicant made It clear that she would accompany him upon any return to Tonga:
MS NYABALLY: Another thing that the tribunal needs to think about is what would happen to you and what would happen to your family if you had to go back to Tonga?
APPLICANT: If I have to go back to Tonga, my partner has to come with me. Her family has to suffer. There is no one to look after us back in Tonga. We’re not going to have nothing. Just everyone’s going to be very upset and sad about it.
…
MS NYABALLY: We talked before about you having your grandfather and your extended family living in Tonga. Doesn’t that suggest that you will have some support if you go back there?
APPLICANT: My grandfather can’t support me. He’s very old, he lives by himself. He doesn’t really have much. My grandfather relies on my mother and my aunties and uncles to provide for him. He relies on them and he’s just lucky enough to get through and if I do go back me and [Ms NT], I don’t see how he’s going to help us. I don’t see any way that he’s going to help us.”[102]
[My underlining]
[102] Ibid, page 23, lines 17-22 and 28-35.
I accept the Applicant may face some difficulty in re-establishing himself in Tonga. I qualify the preceding statement with a finding that this factor would present as a short-term hardship and would not preclude his successful re-settlement there.
The Applicant has an albeit short employment history in Australia. He has worked as a concreter in this country. There is little evidence in the material to rebut a presumption that he would not be able to find similar work in the building industry upon his return to Tonga.
The Respondent contends that “The weight to be afforded to this consideration is limited.”[103] I agree with that contention, and I accordingly allocate a limited measure of weight in favour of the Applicant pursuant to Other Consideration (e).
[103] Ibid, page 31, lines 2-3.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which weigh heavily in favour of non-revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: not relevant;
·strength nature and duration of ties: of moderate weight in favour of revocation;
·impact on Australian business interests: not relevant;
·impact on victims: neutral; and
·extent of impediments if removed: of limited weight in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·Primary Consideration B weighs moderately in favour of revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that any of them, even when combined with each other or with Primary Consideration B, outweigh the very significant and determinative combined weight I have attributed to Primary Considerations A and C; and
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

207. I certify that the preceding two-hundred and six (206) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis.

...............................[sgd].........................................
Associate
Dated: 11 September 2020

Date of hearing: 21 May 2020

Representative of the Applicant:

Ms NT (Lay Representative)

Solicitor for the Respondent: Ms Siran Nybally (Senior Lawyer)
Australian Government Solicitor
“A”
EXHIBIT ANNEXURE -APPLICANT’S RECORD OF CONVICTIONS

Adult Convictions

Court Date Offence convicted Sentence

30 August 2017
Destroy or damage property >$5000 &

<=$15000
Imprisonment 3 months (callup)

Steal from person Imprisonment 3 months (callup)

Aggravated enter dwelling in company intent to steal <=$60000 Imprisonment 3 months

Fail to appear in accordance with bail Imprisonment 1 month

1 August 2017 Demand property with menaces with intent to steal Imprisonment 12 months(non-parole period 9 months, release; release subject to supervision)

Steal from person
Imprisonment 18 months

(non-parole period 12 months; release subject to supervision

10 August 2016
Destroy or damage property >$5000 &

<=$15000
Bond,[104] 11 months supervision by NSW probation services (callup)

Steal from person Imprisonment 3 months (suspended on bond under supervision of NSW probation services)

20 July 2016 Contravene prohibition / restriction in AVO (domestic) Conviction with no penalty[105]

10 May 2016
Destroy or damage property >$5000 &

<=$15000
Bond,6[106] 12 months compensation ($7,838)
[104] Crimes (Sentencing Procedure) Act 1999 (NSW) s 9
[105] Crimes (Sentencing Procedure) Act 1999 (NSW) s 10A
Juvenile convictions

Court Date Offence convicted Sentence

22 October 2014 Assault occasioning actual bodily harm (2 counts) Control order 24 months (non-parole period 15 months; release subject to supervision by juvenile justice)

Larceny <=$2000 Good behaviour bond[107] 6 months

15 April 2014 Destroy or damage property <=$2000 Good behaviour bond[108] 6 months

14 January 2014 Intimidate police officer in execution of duty without actual bodily harm Good behaviour bond[109] 18 month (with supervision by juvenile justice)

Use offensive language in/near public place/school Good behaviour bond[110] 6 months

Refuse/fail to comply with part 1411 direction Good behaviour bond[111] 6 months

Be carried in conveyance taken without consent of owner Good behaviour bond[112] 9 months

Aggravated break and enter & commit serious indictable offence in company Probation[113] 18 months (with supervision by juvenile justice)

Reckless grievous bodily harm in company
Control order[114] 18 months

(non-parole period 6 months; release subject to supervision by juvenile justice, alcohol counselling, drug counselling, not to

consume alcohol, obey all reasonable directions of Department of Juvenile Justice, attend alcohol and other drug counselling or treatment, family counselling)

Assault police officer in execution of duty without actual bodily harm Probation[115] 12 months (with supervision by juvenile justice)

>=3 people threaten violence cause fear Probation[116] 18 months (with supervision by juvenile justice)

21 March 2013 Use offensive language in/near public place/school Dismissed with caution[117]

Continue intoxicated etc behaviour after move on direction Dismissed with caution[118]
[107] Children (Criminal Proceedings) Act 1987 (NSW) s 33(1)(b)
[108] Children (Criminal Proceedings) Act 1987 (NSW) s 33(1)(b)
[109] Children (Criminal Proceedings) Act 1987 (NSW) s 33(1)(b)
[110] Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
[111] Children (Criminal Proceedings) Act 1987 (NSW) s 33(1)(b)
[112] Children (Criminal Proceedings) Act 1987 (NSW) s 33(1)(b)
[113] Children (Criminal Proceedings) Act 1987 (NSW) s 33(1)(e)
[114] Children (Criminal Proceedings) Act 1987 (NSW) s 33(1)(g)
[115] Children (Criminal Proceedings) Act 1987 (NSW) s 33(1)(e)
[116] Children (Criminal Proceedings) Act 1987 (NSW) s 33(1)(e)
[117] Children (Criminal Proceedings) Act 1987 (NSW) s 33(1)(a)(i)
[118] Children (Criminal Proceedings) Act 1987 (NSW) s 33(1)(a)(i)
“B”
EXHIBIT ANNEXURE

Exhibit Number	Description of Evidence
R1	Agreed Bundle of Relevant Documents (received by the Tribunal on 6 March 2020)
R2	Respondent’s SFIC (received by the Tribunal on 16 April 2020)
R3	Respondent’s Supplementary Remittal Documents (received by the Tribunal on 18 May 2020)
A1	Letter of Support (Witness “the Applicant’s Mother”) (received by the Tribunal on 28 March 2020)
A2	Letter of Support (Witness “Ms TuN”) and accompanying pictures (received by the Tribunal on 28 March 2020)
A3	Letter of Support (Witness “Ms NT”) (received by the Tribunal on 28 March 2020)
A4	Applicant’s Submissions in Reply (received by the Tribunal on 2 May 2020)

[106] Crimes (Sentencing Procedure) Act 1999 (NSW) s 9

[2020] AATA 4240

11 September 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date of hearing:	21 May 2020
Representative of the Applicant:	Ms NT (Lay Representative)
Solicitor for the Respondent:	Ms Siran Nybally (Senior Lawyer) Australian Government Solicitor

Court Date	Offence convicted	Sentence
30 August 2017	Destroy or damage property >$5000 & <=$15000	Imprisonment 3 months (callup)
	Steal from person	Imprisonment 3 months (callup)
	Aggravated enter dwelling in company intent to steal <=$60000	Imprisonment 3 months
	Fail to appear in accordance with bail	Imprisonment 1 month
1 August 2017	Demand property with menaces with intent to steal	Imprisonment 12 months(non-parole period 9 months, release; release subject to supervision)
1 August 2017	Steal from person	Imprisonment 18 months (non-parole period 12 months; release subject to supervision
10 August 2016	Destroy or damage property >$5000 & <=$15000	Bond,[104] 11 months supervision by NSW probation services (callup)
10 August 2016	Steal from person	Imprisonment 3 months (suspended on bond under supervision of NSW probation services)
20 July 2016	Contravene prohibition / restriction in AVO (domestic)	Conviction with no penalty[105]
10 May 2016	Destroy or damage property >$5000 & <=$15000	Bond,6[106] 12 months compensation ($7,838)