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

PKVJ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 46 (22 January 2024)
Division:                  GENERAL DIVISION
File Number(s):2023/8318
Re:PKVJ
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Antoinette Younes

Date: 22 January 2024
Place:Sydney

The Tribunal affirms the decision under review.
...................................[SGD].....................................
Deputy President Antoinette Younes
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – wound person with intent to cause grievous bodily harm – long history of criminal and violent offending – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 99 – nature and seriousness of offending conduct – protection of the Australian community – strength nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – impediments to removal – decision affirmed
LEGISLATION
Crimes Act 1914 (Cth) s 85ZR
Migration Act 1958 (Cth) ss 189, 196, 197C, 198, 499, 501, 501CA
Youth Justice Act 1992 (Qld) s 184(2)
CASES
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs [2020] HCATrans 056
GBV18 v Minister for Home Affairs [2020] FCAFC 17
Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs (S12/2023)
Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17
Nepata v Minister for Home Affairs [2019] FCA 1197
Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 802
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Deputy President Antoinette Younes
22 January 2024
BACKGROUND

The Applicant was born on 15 May 1989 in Honolulu, Hawaii, United States of America (USA).[1] He first arrived in Australia on 1 June 1991, at the age of 2 years and he has remained in Australia since 23 July 2001.[2]
[1] Ex 11, 112, 117.
[2] Ex 11, 164-165.
The Applicant has a long history of criminal offending. On 31 January 2020, the Applicant was sentenced to a period of imprisonment of 5 years and 6 months by the Downing Centre District Court for wound person with intent to cause grievous bodily harm-S1. The offences of possess/attempt to, prescribed restricted substance, possess prohibited drug and stalk/intimidate intend fear physical etc harm (personal)-T2 were taken into account on a Form 1.[3] The sentence gave rise to the Applicant not passing the character test under s 501(6)(a) of the Migration Act 1958 (Cth) (the Act).
[3] Ex 11, 31-34.
On 11 June 2020, the Department informed the Applicant that his Class BB Subclass 155 Five Year Resident Return visa (the Applicant’s visa) had been mandatorily cancelled and invited him to make representations seeking revocation. The Applicant was re-notified on 1 December 2022 due to errors in the original notification.[4] The Applicant requested revocation.[5] However, on 26 October 2023, a delegate of the Minister decided not to revoke the cancellation.[6]
[4] Ex 11, 166-172.
[5] Ex 11, 116-130.
[6] Ex 11, 7-29.
On 9 November 2023, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.[7]
[7] Ex 11, 1-6.
LEGISLATION
Section 501(3A) of the Act compels the Respondent to cancel a visa in certain circumstances:
(3A)     The Minister must cancel a visa that has been granted to a person if:
(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…; and
(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record.’
Section 501(7) of the Act provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i)been found by a court to not be fit to plead, in relation to an offence; and
(ii)the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)as a result, the person has been detained in a facility or institution.
Section 501CA of the Act applies if the Respondent makes a decision under subsection 501(3A) of the Act to cancel a visa that has been granted to a person.
Section 501CA(4) provides:
(4) TheMinister 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.
MINISTERIAL DIRECTION NO. 99
The Respondent is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. Except for the Respondent acting personally, the Direction must be applied by all decision-makers, such as the Respondent’s delegates and the Tribunal.[8]
[8] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69 [4].
On 23 January 2023, the Respondent signed Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 99). The Direction commenced on 3 March 2023 and revoked the previous Direction 90.
The preamble in Direction No 99 sets out the objectives[9] and the overarching principles[10] that provide the framework within which decision-makers should approach their task under ss 501 and 501CA.
[9] Direction 99 [5.1].
[10] Direction 99 [5.2].
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
A decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
(1)Protection of the Australian community from criminal or other serious conduct;
(2)Whether the conduct engaged in constituted family violence;
(3)The strength, nature and duration of ties to Australia;
(4)The best interests of minor children in Australia; and
(5)Expectations of the Australian community.
Paragraph 9 of the Direction identifies the non-exhaustive list of Other considerations:
a)Legal consequences of the decision;
b)Extent of impediments if removed;
c)Impact on victims; and
d)Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, “information and evidence from independent and authoritative sources should be given appropriate weight.” Paragraph 7(2) provides that primary considerations “should generally be given greater weight than the other considerations.”
MATERIAL BEFORE THE TRIBUNAL
The Tribunal has the following material before it:
·The Respondent’s Facts, Issues and Contentions, filed on 18 December 2023 (Exhibit 1);
·The Applicant’s letter to the Tribunal dated 6 December 2023 (Exhibit 2);
·Letter from the Applicant’s mother dated 6 December 2023 (Exhibit 3);
·Letter from the Applicant’s brother filed on 21 December 2023 (Exhibit 4);
·Letter from the Applicant’s mother dated 21 December 2023 (Exhibit 5);
·International Health and Medical Services (IHMS) records filed on 27 December 2023 (Exhibit 6);
·IHMS Clinical Progress Notes from Primary Health Nurse dated 21 December 2023 (Exhibit 7);
·Letter from the Applicant’s friend, Ms B, dated 26 December 2023 (Exhibit 8):
·Respondent’s Tender Bundle, filed on 18 December 2023 (Exhibit 9);
·Respondent’s Chronology of Relevant Events filed on 18 December 2023 (Exhibit 10); and
·G-Documents, filed on 23 November 2023 (Exhibit 11).
Three witnesses gave evidence in the course of the hearing, in support of the Applicant.
FINDINGS AND REASONS
The character test is defined in s 501(6) of the Act. The test is generally concerned with the protection of the Australian community from the risk of harm.
As mentioned earlier, on 31 January 2020, the Applicant was sentenced to a period of imprisonment of 5 years and 6 months by the Downing Centre District Court for a number of offences. A person does not pass the character test only if one of the paragraphs in s 501(6) applies to that person. In this case, the delegate determined that the Applicant did not meet the character test under s 501(6)(a) because the Applicant has a 'substantial criminal record' on the basis of having been sentenced to a term of imprisonment of 12 months or more and was serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.
It is not in dispute that the Applicant does not meet the character test and as correctly pointed out by the Respondent,[11] failure to meet the character test arises as a matter of law.[12] As a sentence of 12 months or more is ‘a term of imprisonment for 12 months or more’ within the meaning of s 501(7)(c) of the Act, the Applicant has a ‘substantial criminal record’ and he does not pass the character test.
[11] Ex 1, [25].
[12] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].
The issue before the Tribunal is whether there is another reason the cancellation of the Applicant’s visa should be revoked.
The purpose of the Direction is to guide decision-makers exercising powers under the Act. Delegates and the Tribunal must generally follow the Minister’s Direction. The Direction identifies certain principles which provide a framework within which decision-makers should approach their task.[13] It prescribes relevant considerations which must be taken into account. It provides guidance only as to the manner in which they are to be balanced.
[13] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [80]–[81]. The Court was discussing Direction No 55, but the reasoning applies equally to Direction 99.
The Direction does not determine rules of general application, but gives directions to the decision-maker, including the Tribunal, as to the policy to be applied in exercising the power conferred by ss 501 and 501CA of the Act. The Direction does not derogate from the Tribunal’s duty to reach the correct or preferable decision in the particular case before it; the Direction has that end as its purpose.[14]
[14] Uelese v Minister for Immigration and Border Protection [2016] FCA 348 [50].
While decision-makers are bound to take into account certain considerations, they are not limited to those set out in the Direction.[15] The Direction specifies the relative, but not the actual, weight to be given to those considerations. The Tribunal is obliged to examine the merits of the case and decide for itself.[16]
[15] GBV18 v Minister for Home Affairs [2020] FCAFC 17.
[16] See Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [21].
The weight to be given to any particular matter is a matter for the decision-maker and cannot be the subject of some formulaic approach.[17] Phrases such as ‘should generally be given greater weight than the other considerations’ and ‘one or more primary considerations may outweigh other primary considerations’ have been interpreted as provisions that are intended to provide guidance to the decision-maker as to how the balancing exercise required by the Direction should be approached. These phrases leave it open to the decision-maker to adopt a different approach in the individual case.[18] It is not the content of the Direction which determines the outcome of the decision, but rather it is the application by a decision-maker to the evidence and material in an individual case.[19]
THE PRIMARY CONSIDERATIONS
[17] Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 [127].
[18] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [83].
[19] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 [78].
Protection of the Australian community from criminal or other serious conduct
The Direction contemplates that decision-makers should have particular regard to the principle that ‘entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.’[20] It indicates that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.[21]
[20] Direction 99 [8.1(1)].
[21] Direction 99 [8.1(2)].
Whether there is a risk that a person would engage in specified conduct requires an evaluative judgement by the decision-maker.[22]
The seriousness of the Applicant’s conduct
[22] See Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 [2]. The Court considered s 501(1), but the reasoning also applies to ss 501(2) and 501(3A).
The Applicant’s criminal history
The Applicant has a long criminal history that began when he was a juvenile. As submitted by the Respondent, the High Court of Australia in Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsvThornton[23] (Thornton) is authority for the proposition that in circumstances where an applicant has offended as a juvenile, in considering whether to revoke a decision to cancel their visa under s 501CA(4) of the Act, a decision maker cannot consider a finding of guilt as a child for which no conviction was recorded, by operation of s 85ZR(2) of the Crimes Act 1914 (Cth) which was engaged by s 184(2) of the Youth Justice Act 1992 (Qld) as a law of a State under which a person is to be taken never to have been convicted of an offence.[24]
[23] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17.
[24] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17, [36], [73].
In the current matter, the Applicant has been convicted under New South Wales laws and not under Queensland legislation. The Respondent referred to Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs[25] (Lesianawai) which is currently under consideration by the High Court in relation to the application of Thornton to NSW legislation. The Tribunal agrees with the Respondent’s submissions that given the High Court’s judgment in Lesianawai is currently reserved and in the circumstances of this case, the Tribunal has decided not to use the Applicant’s juvenile offending history in an adverse manner, and as such, the Tribunal has not placed any weight on that offending.
[25] Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs (S12/2023).
However, and as discussed below, the Applicant’s criminal history as an adult shows that his offending is extensive and serious.
2010 convictions and proposed visa cancellation
At the age of 21 years, on 19 March 2010 (2010 convictions) the Applicant was sentenced to a term of imprisonment for 33 months for recklessly wound any other person -T1 and six months for assault occasioning actual bodily harm-T2. The offence of affray-T1 was taken into account on a Form 1.[26]
[26] Ex 11, 38.

On 30 June 2011, the Department sent the Applicant a Notice of Intention to Consider Cancellation (NOICC) of the Applicant’s visa under s 501(2) of the Act on the basis that the Applicant has a substantial criminal record, as defined in the Act.[27] On 11 January 2012, the Department wrote the Applicant again referring to the NOICC of 30 June 2011, and invited the Applicant to comment on further information relevant to the potential cancellation. This information concerned aspects of the Applicant’s criminal history.[28] The Applicant’s visa was not cancelled on this occasion.
[27] Ex 9, 215-220.
[28] Ex 9, 221-222.
The circumstances of the 2010 convictions relate to an altercation at a nightclub in Sydney that occurred on 20 June 2008. The Sentencing Court referred to the Agreed Facts,[29] noting that the two victims were from England with no prior connection to the Applicant. While at the nightclub in North Sydney, the Applicant was involved in the altercation. He punched one of the victims twice to the face, while the Applicant was holding in his hand a screwdriver with a sharpened point. As a result, the victim suffered a five centimetre cut to his left chin, a 10 centimetre vertical cut on the left side of his neck below his ear and a scratch to his left wrist. The Applicant then stabbed the other victim to the back and chest with the screwdriver. The victim received stab wounds to his right front chest, his rear shoulder blade, his rear midline, his right arm and the back right side of his neck. The wounds were shallow, but the right front chest wound was deep. The victim had a collapsed lung on the front right side, which affected his breathing and required a chest drain. He did not need surgery. The Court accepted that the screwdriver was at the time used to clean out the pipe the Applicant used for smoking ice.
[29] Ex 11, 99-106.
In relation to the offence of affray, the Court noted the facts that after the Applicant left the night club, but before he was apprehended, he and his group were involved in an altercation with a group of young men in Greenwood Plaza in North Sydney, which started with yelling about hating “North Shore kids”. Members of the Applicant’s group of four or five young men punched, head-butted, kicked and pushed the young men in the other group. All the young men were intoxicated to varying degrees by alcohol.
The Applicant gave evidence before the Court on the day of sentencing that at the time of the offences he was smoking ice daily, although he had not smoked ice on that day. He gave evidence that he had been drinking alcohol during the day and night and had taken two ecstasy tablets one to two hours before the offence, which made him “hyperactive, wild and silly”.[30]
[30] Ex 11, 100-101.
One of the victims provided to the Court a victim impact statement, noting that he still suffers from chest pains when exercising, and when playing sport. The victim’s GP told the victim that this was a result of scar tissue present in the intercostal muscles between his ribs where the chest drain was placed. The victim had hoped that they would subside in time, but at the time of sentencing, they were of “great discomfort”. The victim stated that psychologically he did not believe that the offence had a hugely negative effect on him but had him a bit more aware and highlighted his naivety on the night. Medical evidence indicated that the victim had pneumothorax or collapsed lung which was treated with a chest drain in hospital, but the victim has a residual ache in the right side of his chest on exercising.[31]
[31] Ex 11, 101.
The Court took into account that at the time the Applicant’s judgment was affected by drugs and alcohol, “which is not a mitigating matter per se, but that and his impulsivity and depression would distinguish him from someone who acted more cold bloodedly”.[32] The Court noted that prior to the offending, the Applicant had been diagnosed with a psychotic disorder related to his abuse of drugs. He had been prescribed Zyprexa, an antipsychotic medication, but he had stopped using it without his doctor’s approval.[33]
[32] Ex 11, 102.
[33] Ex 11, 102.
At the Tribunal’s hearing, the Applicant accepted that the incident occurred and that he was under the influence of drugs and alcohol. He however argued that he was provoked whilst on the dance floor; he said he was bumped. The Tribunal notes that the Court did not accept the Applicant’s submissions that he was provoked in the course of the altercation.[34] The Court assessed the Applicant’s offending in relation to reckless wounding to be in the low end of midrange of seriousness, and the assault occasioning actual bodily harm offence at low range. The Court accepted that although the Applicant’s remorse was “subdued”, it was nevertheless genuine.[35]
[34] Ex 11, 102.
[35] Ex 11. 103.
2012 convictions
The Applicant was released from prison on 19 March 2010, but approximately 11 months later, he reoffended. In evidence to the Tribunal, he stated that during those 11 months period he was taking drugs, including heroin.
On 2 May 2012, the Sydney District Court convicted the Applicant of break & enter house etc steal value <=$60,000- T1 and eight counts of robbery armed with offensive weapon-S1, for which he was sentenced for ten years. Nine other offences, including assault officer in execution of duty-T2, were taken into account on Form 1 (2012 convictions).[36]
[36] Ex 11, 34-38.
The circumstances of those offences are discussed below.
First offence
The first offence of robbery armed with offensive weapon-S1, occurred on 1 December 2010. The Applicant approached a worker at a 7-Eleven convenience store, threatening the worker with a knife to give him his money, and open the safe, otherwise he would kill the worker. The Applicant stole goods to the value of $1,500.[37]
[37] Ex 11, 85-86.
Second offence
The second offence of robbery armed with offensive weapon-S1, occurred on 4 January 2011. The victim commenced a shift at the City Exchange located within the entry to a 7-Eleven convenience store in George Street, Sydney. The victim conducted a change of shift and accounted for approximately AU$45,000, US$1,000, 8,260 Euros and other currencies. Whilst two persons approached the store for money exchange, an employee of the Exchange Mart was given a large amount of American dollars to take to the City Exchange booth. She believed the amount was between US$20,000 and US$30,000. The Applicant’s co-offender stood inside the City Exchange Mart assisting the Applicant as a lookout. The two persons exchanging their money were asked to stand aside and wait for the dollars to arrive. The Applicant walked up to the City Exchange Mart booth window and asked, “How much will you give me for 1,000 Euro?” The courier with the other money arrived at the City Exchange Mart. The Applicant followed that person from behind and up to the City Exchange Mart security door. The victim, seeing the courier at the security door, opened the security door from inside, not realising that the courier was being followed closely by the Applicant. The Applicant violently grabbed at the courier, causing her handbag to fly off her shoulder, and forced her through the open security door and into the booth.
The Applicant produced a taser and caused it to arc and he ordered the victim and the courier to the floor. Currency was still on the counter and the Applicant reached into the counter and placed AU$10,000 in a small black handbag he was carrying. He then turned to the victim and said, “Open the safe.” The victim opened the safe and the Applicant removed the small box containing coins and placed that box into a small handbag. He left the booth and stood in front of the partially closed door. The Applicant then pointed the taser towards the employee of the convenience store and ordered him to open the doors. Once the front door was re-opened, the Applicant left the convenience store and he and the co-offender ran away.[38] The Court noted that both the victim and the courier were “subjected to a terrifying situation where they feared for their lives”.[39] The entire incident was recorded on the store’s CCTV. The Applicant stole a large amount of funds.
[38] Ex 11, 85-86.
[39] Ex 11, 86.
Third offence
In relation to the third offence, on 20 January 2011, the Applicant was armed with a taser when he and two unidentified co-offenders entered an Officeworks store in Glebe. The second co-offender was armed with a screwdriver as well as a taser. A third co-offender was carrying a knife. They entered the store and concealed their faces. There were ten customers at the front counter of the store, including young children. The Applicant ran behind the front counter of the store, wielding the taser and threatening staff and customers. He demanded that the staff open the tills whilst he activated the taser, causing sparks and an arcing noise. He then lunged forward with the taser in an attempt to strike one of the staff. The cash registers were opened. The Applicant and the co-offenders emptied all the cash registers and ran from the store. It is estimated that $3,640 cash was taken.[40]
[40] Ex 11, 88.
Fourth offence
On 20 January 2011, the Applicant and his co-offender entered the Crystal Palace Hotel at George Street, Sydney, that leads to a gaming room. He had a taser. He ran straight behind the counter bar area of the gaming room towards the victim and demanded she open the till, which she did. He removed cash, pushed the victim towards a second till, and again demanded she open the till. As the victim was not able to do so, the Applicant placed the taser device on her upper left arm and activated it and discharged it for a total of two seconds, causing immediate pain to the victim. The victim feared she would be struck again with the device. She opened the second cash register and removed all the cash. His handkerchief covering his face fell down. He was recognised as he had been a patron at the hotel. He continued emptying the till before he made his way towards the main bar area. He then ran away, with a total amount of $1,330 cash.[41]
[41] Ex 11, 88.
Fifth offence
On 20 January 2011, the victim was working in the 7-Eleven convenience store in Paddington. The Applicant and an unidentified co-offender entered the store. There were no other customers within the store. The victim was working in the back room. As the Applicant and co-offender entered the store, they activated a sensor which alerted the victim that he had a customer. The victim looked up and saw the Applicant and co-offender walk towards him. The Applicant was armed with a taser, which he activated onto the victim’s left upper arm. The victim felt immediate pain. The Applicant continued to activate the taser, over five times before the victim fell to the ground. The Applicant used the device again twice while the victim was lying on the ground. He grabbed hold of the victim’s arm and forced him to his feet.
The victim’s pockets were searched, and a mobile phone and keys were found. The mobile phone was taken. The Applicant returned to an unlocked toilet door where the victim had been placed, and directed the victim to the front of the store. The victim was forced to open a cash register. The taser was pointed at the victim the entire time. The Applicant emptied the cash register and placed packets of cigarettes into a crate. He then took a large number of bus tickets from the counter area and ran out the door. The victim was taken to hospital for treatment for multiple superficial burns. The robbery consisted of approximately $400 in cash, a hundred packets of cigarettes and an unknown amount of pre-paid bus tickets.[42]
[42] Ex 11, 89.
Sixth offence
On 21 January 2011, the Applicant forced open a door and entered the City 4X Money Exchange in George Street, Sydney while armed with a taser. There was an unidentified co-offender outside. The store was staffed by two victims. The Applicant forced one of the victims back into the staff area of the store as she was attempting to leave the store, and he demanded money. The victim handed over money and began to scream loudly.
Police patrolling the area at the time heard the screams. The police came and saw the Applicant armed with a taser. He was challenged by the police at gunpoint. He continued to activate the taser towards the police in a threatening manner in an effort to avoid apprehension. He eventually dropped the taser and was arrested. The victims in the matter were not subject to the direct impact of the taser. One victim reported a minor laceration to her shoulder which occurred while being pushed.[43]
[43] Ex 11, 90.
Seventh offence
On 23 December 2010, the victim was working as a sales assistant in a convenience store in the city. The door alarm activated, the Applicant came in and said he wanted everything. He grabbed hold of the victim’s shirt whilst holding a knife in the other hand, pointing it at the victim’s neck. He pushed the victim towards the sales counter. He commenced going through drawers and took cash of about $300. He also took a number of cigarette packets. He kicked the safe a number of times before it broke free. He then took the safe in a plastic bag and then left the store.[44]
[44] Ex 11, 90.
Eighth offence
This offence includes the Form 1 matters. On 29 December 2010, the victim arrived at work in the City 4X store, a foreign currency exchange service, located in a shop in George Street, Sydney. The victim was counting cash that was well in excess of $100,000. After counting the money, the victim went outside. Whilst she was washing the windows of the shop, she was approached by the Applicant and asked if the store was open. The victim asked the Applicant to wait a moment and used her keys to go back into the shop. As she did so, the Applicant followed her, produced a knife and ordered her to the floor.
The victim was “terrified” and complied with the Applicant’s demands. He told her not to make a noise, stating “do not press any button, I just want money, get on the ground”, and asked where the money was. The victim told him the money was in the drawers. The Applicant went through the drawers and removed the money himself. He was not wearing any disguise or gloves. He demanded that the victim open the safe to which she complied. She entered the wrong code and she was told, “you better open the vault or I’ll kill you”. She got it incorrect the second time. The Applicant became agitated and said, “you’re lucky Miss, I’m going now, get down or I’m going to kill you”. He received from the robbery AU$5,600, US$22,400, 10,000 Japanese Yen and 1,000 Indian Rupees. When converted to Australian currency, it totalled about $28,000.[45]
[45] Ex 11, 91.
Ninth offence
This offence relates to break, enter and steal offence at the 4X Exchange store located in Clovelly. On 24 November, the premises were locked and secured. On 25 November, it was noticed that there was a vehicle driving in the area. The vehicle performed a four-point turn before parking in the driveway. A witness heard banging and crashing from nearby and saw a black car being driven at high speed. The witness discovered that a glass panel at the front of the exchange had been forced in and called police. The police ascertained that $20 cash had been taken from the till, together with two handbags and some other items.[46]
[46] Ex 11, 91.
Other offences
The other offences on the Form 1 include robbery armed with an offensive weapon on 5 December 2010, robbery armed with an offensive weapon on 3 January 2011, robbery armed with an offensive weapon on 3 January 2011, robbery armed with an offensive weapon on 20 January 2011, break, enter and steal on 21 December 2011 and being carried in a conveyance and the assaulting of the police. The Court noted that the details of those offences are somewhat similar to the other matters.[47]
[47] Ex 11, 92.
Having regard to the severity of the offending, the sentencing Court noted that “these are most serious crimes. There are a large number. The victims would have been absolutely terrified and they will carry that with them”.[48] The Applicant was on parole at the time of these offences were committed.[49]
[48] Ex 11, 95.
[49] Ex 11, 92.
The Applicant told the Court that by November 2010, he was spending $500 to $1000 a day buying drugs and that he had committed those offences as the “drug habit took got hold of him, he needed drugs, he owed money for drugs”.[50] He told the Court that he got the taser to scare, rather than cause hurt to any person. The Applicant expressed remorse and acknowledged that he had caused harm to the victims.[51]
[50] Ex 11, 93.
[51] Ex 11, 93.
August 2012 conviction - Assault of law officer
On 13 August 2012, the Applicant was convicted and sentenced for 6 months’ imprisonment for assault law officer (not a police officer)-T2.[52]
2020 convictions
[52] Ex 11, 34.
On 31 January 2020, the Applicant was convicted and sentenced to a period of 5 years and 6 months for wound person with intent to cause grievous bodily harm-S1. The offences of possess/attempt to, prescribed restricted substance, stalk/intimidate intend fear physical etc harm (personal)-T2 and possess prohibited drug were taken into account on a Form 1.[53]
[53] Ex 11, 31-34.
The Agreed Facts on Sentence indicate that on between 11:00pm and 11:55pm of 5 July 2018, the Applicant and co-offender stopped their taxi ride upon seeing the two victims in Rose Bay. After a short conversation between the four men, the Applicant pulled out a bladed instrument that was described by the first victim as a “box-cutter style blade” and both victims “felt afraid”. The Applicant, without saying anything, “stepped towards the victim … and lunged at his face with the blade in his right hand, in one fast slashing-motion”. The slashing caused the victim’s wound that began just beneath the left side of the nose, down and across to the right upper lip and across to the victim’s cheek, next to the side of his mouth. The victim’s wound immediately started bleeding heavily and blood could be seen on his face and on his clothing on the CCTV footage.
The victim was shocked and afraid. He put his hand to his face, and moaned with pain. He then ran to the waiting taxi that still had the front-passenger door open. CCTV footage showed the victim run past and pass behind the co-offender, who was still standing at the side of the taxi. The victim then stepped into the front passenger seat, he slammed the door and told the driver, "Drive. Quick, go, go. Just fucking go!" The taxi driver did as he was told.[54] The victim continued to bleed onto the taxi seat and floor, all the way to the Prince of Wales Hospital where he was treated by Dr Dashwood, who observed that the victim’s wounds were likely to leave a scar.[55]
[54] Ex 9, 93.
[55] Ex 9, 94.
The other victim was left standing at the side of the road next to his car, alone with the Applicant right next to him. The victim “felt shocked and scared after what he had witnessed. He feared being assaulted”.[56] The Applicant’s co-offender then said something like, "We need to drive out of here, not walk". The victim tried to discourage the offenders from getting in his car but the Applicant looked directly at the victim and said, "If you drive, I won't do anything to you". The victim did not want to drive either the Applicant or the co-offender, but he felt scared and intimidated and he did as he was directed. The victim got into the driver's seat of his car, the co-offender got in the back seat and the Applicant got in the front passenger seat. The Applicant started giving instructions to the victim and directing him towards Bondi Beach. Eventually, the victim drove the Applicant to his destination. As the Applicant opened the front passenger door, he put his left leg out, paused, turned back toward the victim and told him not to tell anyone. The Applicant then got out of the car and the victim drove off as quickly as he could.[57]
[56] Ex 9, 93.
[57] Ex 9, 93-94.

The Applicant pleaded guilty to the charge of wound person with intent to cause grievous bodily harm, which carries a maximum sentence of 25 years imprisonment together with a non-parole period of seven years.[58]
[58] Ex 11, 41.
The sentencing Court described the box-cutter style blade weapon as “chillingly dangerous” and noted that the Applicant’s actions were “fraught with potential for extremely serious injuries and consequences”, and that the violence “albeit momentary, was at a significant level and involved the use of a bladed instrument. A blade that is easily concealed, readily available and capable of inflicting horrible injuries”.[59]
[59] Ex 11, 47-52.
The sentencing Court noted that the Applicant’s offending was aggravated by the use of a weapon and the fact it was committed while the Applicant was on parole. The Court noted that:
“[The Applicant’s] record does not assist him at all. At the time of these offences he was on parole for a number of counts of robbery with an offensive weapon and a break, enter and steal for which he had an aggregate sentence of ten years with a non-parole period of six years and six months. Analysis will show that he had only been at liberty on parole in the community for less than two months before committing this substantive offence and those related Form 1 matters. Prior to these robbery matters he has got previous counts of recklessly wound a person together with an assault occasioning actual bodily harm and an affray. He has got prior assaults … His record does not entitle him to leniency.”[60]
[60] Ex 11, 43-44.
The Court rejected the submissions that the injury caused to the victim was not substantial; the Court observed that there was a significant slashing of the victim’s face.[61]
[61] Ex 11, 53.
The Court accepted the Applicant’s contrition and remorse but noted that the Applicant’s behaviour was considerably more than the Applicant’s description of an “overreaction”, it was both “offensive and reprehensible”.[62]
[62] Ex 11, 70.
During the Tribunal’s hearing, the Applicant stated that one of the victims had previously assaulted the Applicant’s now deceased former girlfriend. He stated that she died in 2008, but that this matter was not mentioned in Court. There was a lengthy discussion in the course of the hearing about whether the Applicant was remorseful about this incident. The Tribunal has noted the inconsistency but accepts as plausible that the Applicant is remorseful.
The Tribunal is satisfied that the totality of the evidence indicates that the Applicant’s criminal history is very serious. The offending is objectively serious.[63] The Tribunal is satisfied that over many years, the Applicant has committed serious and violent offences towards innocent members of the public and towards a law enforcement officer. His offending has resulted in sentences of imprisonment on multiple occasions.[64] The Tribunal accepts the Respondent’s submissions that periods of imprisonment are the last resort in the sentencing hierarchy and reflect the seriousness of the Applicant’s offending as assessed by the criminal justice system.
[63] Direction 99 [8.1.1(1)(a)(i)].
[64] Direction 99 [8.1.1(1)(c)].
The Applicant’s offending as an adult continued over time and arguably increased in seriousness and frequency between 2010 to 2020.[65] His criminal history indicates that his offending escalated from being convicted of assault in 2010 to being convicted of violent robberies in 2012 to being convicted of an intentional and aggravated assault in 2020. It is also noteworthy that although the Applicant was formally warned of the potential consequences of reoffending on his migration status, he continued to commit offences. In 2011, he was sent a NOICC. On 16 February 2017, his visa was mandatorily cancelled, but on review by the Tribunal (differently constituted), the cancellation was revoked on 16 May 2018.[66] Soon after and whilst on parole, on 5 July 2018, the Applicant re-offended in a very serious and violent manner. Among other things, his offending involved pulling out a bladed instrument described as a box-cutter style blade that made both victims feel afraid. The Applicant “stepped towards the victim … and lunged at his face with the blade in his right hand, in one fast slashing-motion”.
[65] Direction 99 [8.1.1(1)(d)].
[66] Ex 10, 3.
For those reasons and on balance, the Tribunal is satisfied that the nature and seriousness of the Applicant’s criminal offending weigh heavily against revocation.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The Direction states that decision-makers must have regard to the following considerations cumulatively:
a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the noncitizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c)    where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The Direction contemplates that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.[67] In some circumstances, it may be permissible to conclude that any type of continued offending increases the risk of further violent offending.[68] The Tribunal needs to consider the likelihood and consequences of further offending.[69]
[67] Direction 99 [8.1.2(1)].
[68] Nepata v Minister for Home Affairs [2019] FCA 1197 [30].
[69] Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 [95].
The Respondent contended that there remains a significant likelihood of the Applicant reoffending. On the other hand, the Applicant claimed that his risk of reoffending is minimal. In his letter to the Tribunal,[70] the Applicant provided background details and expressed remorse. He outlined his intentions and plans to be an “upstanding community member” who aims to be a mentor for troubled youths.
[70] Ex 2.
Dr Richard Furst, Forensic Psychiatrist, provided reports including one dated 9 December 2019,[71] and another report dated 23 January 2020.[72]
[71] Ex 9, 108-117.
[72] Ex 9, 106-107.
In his report dated 9 December 2019, Dr Furst noted that the Applicant’s history suggests that the Applicant:
“continues to cope poorly under stress, such as turning to drugs of abuse as a maladaptive means of coping with the frustrations of being detained in Villawood from 2017 to 2018 and again when his passport was apparently lost in the mail in the weeks preceding his offence. He is also more impulsive and more prone to aggression when using drugs, as was likely the case on the night in question before the Court when he had not slept over the previous 24-hours after using methylamphetamine and when he had also consumed both alcohol and Alprazolam, drugs that also make people disinhibited”.[73]
[73] Ex 9, 115.
Dr Furst expressed the opinion that the Applicant is:
“an emotionally troubled 30-year-old man who has already spent a considerable proportion of his adolescence and early adult life in custody, has a long history of relapsing drug addiction and has a history of violent offending. He has poor coping skills. He re-offended within a short period of being released into the community on parole, despite the support of his mother and brothers, both recently and in 2011. Accordingly, [the Applicant’s] risk of reoffending falls in the moderate to high category.
He has already been afforded substantial opportunities to engage in rehabilitation and counselling, making previous assertions he would remain abstinent from drugs in the future, but seemingly lacking the capacity to maintaining abstinence long-term, at least thus far. Therefore, it is difficult to express optimism about his future prospects of being successfully rehabilitated”.[74]
[74] Ex 9, 116.
As discussed in the course of the hearing, although Dr Furst’s report was in December 2019 and could be perceived as being dated, there is a more recent assessment. The latest pre-release report of Corrective Service NSW dated 1 August 2022 refers to the Applicant being a “High Risk Violent Offender”.[75] The report concluded that:
“[The Applicant] has failed to adequately address his criminogenic risks through appropriate programs and interventions in custody. His conduct to date is considered unsatisfactory with ongoing substance use and aggressive behaviour demonstrated toward staff and other inmates. He is expected to be detained at the Villawood Immigration Centre and deported to the United States of America. Given his lack of motivation to address his behaviour releasing him to either deportation or remaining in Australia with no progression demonstrated he would be at significant risk to the community and should remain in custody and directed to undertake programs to better equip himself in the future”.[76]
[75] Ex 9, 173.
[76] Ex 9, 174.
In terms of programs and courses undertaken, the Applicant has provided evidence of completing the EQUIPS Addiction Program in April 2017,[77] EQUIPS Aggression Program in September 2016,[78] an offer in 2014 to study a Bachelor of Commerce at the University of Southern Queensland,[79] a NSW TAFE Statement of Attainment dated December 2012 and academic records relating to workplace hygiene procedures,[80] a Certificate of Merit dated June 2013 for I.L.C.,[81] a Certificate II in Skills for Work Training dated June 2013 and academic records,[82] and academic transcript dated December 2012 for a Certificate I in Aboriginal Languages.[83]
[77] Ex 11, 132.
[78] Ex 11, 131.
[79] Ex 11, 139-141.
[80] Ex 11, 137-138.
[81] Ex 11, 136.
[82] Ex 11, 134-135.
[83] Ex 11, 133.
The pre-release report of Corrective Service NSW dated 1 August 2022 notes that:
“While numerous attempts have been made to have [the Applicant] complete custodial based criminogenic programs, to date he has made no progress, and the classes he has attended reflect little engagement or motivation. [The Applicant] commenced EQUIPS Addictions in August 2021, and subsequently he was removed from the class due to non-attendance and again removed in June 2022, due to being placed in segregation following poor conduct. In March 2022, he commenced EQUIPS Foundations and was removed from the course due to non-attendance. His program pathway was identified as Violent Offender Therapeutic Program (VOTP), however it appears [the Applicant] refused to undertake the program, citing his proposed deportation left him to believe the program was pointless. It is noted, [the Applicant] also declined to participate in this VOPT during his last custodial admission for which he was on parole for at the time of the indexed offence”.[84]
[84] Ex 9, 171.
The Applicant’s clinical records at IHMS indicate that during his detention, the Applicant has been on prescribed “Buprenorphine”[85] used for purposes including as an opioid replacement therapy (ORT) to treat addiction. The Applicant’s IHMS’ records[86] indicate that he had used ice in detention in October 2023, and earlier in May 2023, as well as using heroin and cannabis at different times. In oral evidence, he said that one would exaggerate their drug use in detention in order to get a change in the prescribed treatment such as the ORT. He said he was not truthful when he told the nurse that he had used heroin. He acknowledged that he had used ice in October 2023 due to, among other things, dealing with loss and a range of emotions one deals with at detention.
[85] Ex 9, 278-281.
[86] Ex 9, 276.
The Applicant gave evidence that he had attended drug and alcohol counselling for a few sessions and that he intends to do so. He provided to the Tribunal a copy of IHMS record of a Drug and Alcohol consultation on 21 December 2023.[87] In relation to being offered to undertake the Violent Offenders Treatment Program (VOTP), the Applicant explained that he did not take part for reasons including the existence of more drugs in those programs, and for believing it was detrimental. However, he does acknowledge that recovery from addiction is a long process.
[87] Ex 7.
The Applicant’s mother and brother gave evidence of the support that they would give to the Applicant including emotional, financial, and accommodation support, as well as assisting him in recovery, and finding rehabilitation programs. The Applicant’s brother has offered the Applicant accommodation at his home with his family. The Applicant’s mother gave evidence of discussions she has had with relevant individuals about the Applicant’s recovery. The Tribunal however observes that despite the ongoing support of his family, the Applicant has reoffended.
The Tribunal is satisfied that there is limited evidence of rehabilitation, and although the Applicant has expressed a desire and an intention to address his drug addiction and other aspects of his behaviour, that desire or intention has translated into limited action. His explanations about the limited engagement in programs, particularly the VOTP are not persuasive, but rather indicative of a long-term challenge in addressing behavioural challenges. It is also noteworthy that any desire to refrain from further offending or to change is undermined by the fact that the Applicant has made similar claims in the past, but has continued to engage in violent offending. The Corrective Services NSW pre-release report of 2022 notes that:
“Whilst [the Applicant] verbalises his intention to address his behaviour through intervention based programs and supports his continued insubordinate behaviour suggest otherwise. Recent conversations with [the Applicant] have indicated a renewed desire to be assessed for the Intensive Drug and Alcohol Program (IDAPT), however each time he has been enrolled in EQUIPS programs, as noted below, he has failed to complete them due to attendance issues or poor conduct resulting in segregation”.[88]
[88] Ex 9, 170.
The Applicant has spent a substantial time in prison and detention. He has been on notice of the potential consequences of his reoffending on his visa, but the Tribunal is satisfied that those outcomes have not deterred the Applicant. The Applicant’s behaviour in the prison and detention environments, according to the Corrective Services NSW pre-release report of 2022, reveals that:
“Since entering custody on 7 July 2018, [the Applicant] has incurred eighteen institutional misconducts which appear to be a continued pattern of violent and aggressive behaviour and illicit substance use. The most recent offences in custody were as recent as 3 June 2022 for possession of drugs by two, possession of drug implements by two and assaults by two. He attests he has struggled with ongoing substance abuse in custody to which he attributes to his self-removal form the pharmacotherapy program in 2021. He claimed this was because medical staff believed it beneficial to increase his dose to which he disagreed and ceased treatment. He acknowledged the decision to remove himself from the program and the continuation of substance use in custody were poor judgement on his part.
[The Applicant’s] first classification following sentencing was as an E1 Maximum security inmate with escape risk (historical), he held this classification until 4 March 2021 when progressed to an E2 Medium security classification which to date remains current”.[89]
[89] Ex 9, 170.
The Applicant’s prison records show that from January 2011 until September 2019, the Applicant was involved in 22 incidents of breaches of discipline, including drug possession, damage/destroy property, disobey direction, possess drug implement, intimidation, failed prescribed urine test, and fighting.[90]
[90] Ex 9, 181.
The Applicant’s detention records indicate that the Applicant has been involved in violent incidents. On 14 May 2023, the Applicant was involved in a physical altercation with another detainee.[91] During the hearing, the Applicant gave evidence that there was a verbal argument between the two and the Applicant punched the other detainee in the head. He accepted that this was violent behaviour. On 17 February 2023, the Applicant was seen on CCTV arguing with his female visitor and swearing at her in front of staff, which led to the visit being terminated.[92] As recent as 30 September 2023, the Applicant assaulted another detainee.[93] There is a description of this incident; the Applicant was witnessed to have physically assaulted another detainee who had to be taken to hospital.[94] The Applicant claimed that the other detainee had a knife on him, but this is not mentioned in the records. The Tribunal cannot resolve this inconsistency, but in any event, what is relevant is that the Applicant has continued to behave aggressively, even in a controlled environment.
[91] Ex 9, 238.
[92] Ex 9, 232.
[93] Ex 9, 249.
[94] Ex 9, 255.
The Applicant has a lengthy criminal history. Although it is unreasonable to suggest that on that basis alone, he would reoffend, that history cannot be ignored. That history in the context of the limited rehabilitation is suggestive of a risk that the Applicant would reoffend in the future. The Tribunal is persuaded by the Respondent’s submissions that the lack of motivation to address his behaviour and limited progression demonstrate that the Applicant would be at a significant risk to the community.
The Tribunal acknowledges the Applicant’s participation in courses, but it is difficult to see the impact, if any, of the courses undertaken by the Applicant on the risk of recidivism. The Tribunal also acknowledges the Applicant’s apologies and expressions of remorse but viewed in the context of the Applicant’s limited rehabilitation and continued reoffending, the Tribunal is satisfied that there is a real and significant risk that the Applicant would reoffend, and given the seriousness of the offending, any risk of recidivism is unacceptable.
For those reasons, the protection of the Australian community consideration weighs heavily against revocation of the cancellation decision.
Whether the conduct engaged in constituted family violence
The Direction refers to the Australian Government having “serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.”[95]
[95] Direction 99 [8.2(1)].
Family violence is defined by Direction 99 as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Direction 99 provides non-exhaustive examples of family violence, including assault, stalking, and intentionally damaging or destroying property.[96]
[96] Direction 99 [4(1)].
The Direction contemplates that in considering the seriousness of the family violence engaged in by the non-citizen, the factors that must be considered are:
·the frequency of the offending conduct;
·any trend of increasing seriousness;
·the cumulative effect of repeated acts of family violence;
·rehabilitation achieved at time of the decision since the person’s last known act of family violence (including the acceptance of responsibility, understanding of the impact of the behaviour on the victim/witness of that abuse (particularly children) and the efforts to address factors which contributed to the conduct); and
·whether the person has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement, or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour.[97]
[97] Direction 99 [8.2(3)].

Direction 99 defines ‘member of the person’s family’, for the purposes of the definition of family violence, as a person who has, or has had, an intimate personal relationship with the relevant person. The phrase should not be construed narrowly.[98]
[98] Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115 [124].
The Tribunal observes that the delegate took into account offences committed by the Applicant as a juvenile and concluded that there was family violence. However, and as explained above, the Tribunal has not taken into consideration the Applicant’s offending as a juvenile.
There is no evidence of family violence occurring as an adult in this case.
The Tribunal gives this consideration neutral weight.
The strength, nature and duration of ties to Australia
The Direction at paragraph 8.3(1) contemplates that decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. In considering a non-citizen’s ties to Australia, the Direction provides, among other things, that decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.[99]
[99] Direction 99 [8.3(2)].
Paragraph 8.3(4) of the Direction requires the Tribunal to consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community and in doing so have regard to:
(a) the length of time the non-citizen has resided in the Australian community, noting that:
(i) considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending;
(ii) more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii) less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant was born in May 1989 in Honolulu and he first arrived in Australia on 1 June 1991, at the age of 2 years. He has remained in Australia since 23 July 2001.[100] He has therefore spent all his formative years in Australia.
[100] Ex 11, 164-165.
In his Personal Circumstances Form,[101] the Applicant identified his mother and three brothers who live in Australia. Apart from one child (nephew), he did not list any other close family members or other relatives. The Applicant’s mother is an Australian permanent resident and his brothers are Australian citizens.[102] The Applicant has a grandmother in the USA who suffers from dementia.
[101] Ex 11, 116-130.
[102] Ex 11, 25.
In his statement provided to the Tribunal,[103] the Applicant’s brother noted that:
“[The Applicant] moved here with no choice of his own and has been here for his whole life excluding 3 or 4 holidays totalling 8 weeks. He is my brother and the brother of my brothers. My parents should have made him a citizen as soon as possible when he was a child.
These events in my life have put burden on me and my family. I don’t know what will happen to me … if he is sent back to USA, my partner will attest to the effects this has had on me, countless nights of unrest, tears and general anxiety of me feeling like a part of my life is being torn away from me. I also feel that my young family is being affected as they will grow up without an uncle.
I also feel it is unfair on [the Applicant] to be sent to country where he has never lived, has no family, and in my eyes deporting an Australian is the wrong thing to do. If he is deported I will have to make a choice that I never thought I would have to make in that do I leave my young family here and go to America for a period of time to support my brother in his attempt at life in USA. I think this is extremely unfair on my partner … and by that time my 2 children”.
[103] Ex, 4.
Members of the Applicant’s family provided supporting statements. The Applicant’s mother and brother gave evidence in the course of the hearing. A friend of the Applicant’s, Ms B, provided a statement and gave evidence in support.
Both the Applicant’s mother and brother came across in the hearing as being kind and genuinely concerned for the Applicant. However, and without intending to sound harsh, in case of his removal to the USA, they can maintain contact with the Applicant in other forms, including by telephone, video, and by travelling to the USA. The Tribunal appreciates that this would not be the same level of contact as they could have if the Applicant were in Australia, and that they would suffer emotionally, and potentially financially, if they have to travel to the USA, given the cost.
The Tribunal accepts that the Applicant has a close and supportive relationship with his mother and siblings. The Tribunal acknowledges that the Applicant’s mother and siblings would be significantly impacted in case of non-revocation. They would experience significant emotional hardship in case of the Applicant’s removal from Australia. As a long term friend, Ms B would also experience some emotional hardship. She would not be able to see the Applicant as often as if he were to remain in Australia.
The Applicant has been in Australia for most of his life. He has attended schools in Australia. It is likely that he has friendships and links who would also be impacted emotionally in case of his removal from Australia.
In terms of contribution to the community, the Applicant states that he has helped a friend’s child with football and training. The Tribunal acknowledges that contribution. It is however relevant to note that his contribution has been limited, mostly due to being incarcerated and detained. The Applicant has spent a substantial part of his adult life in prison and detention, which has limited potential positive contribution to the community.
On balance, the Tribunal is satisfied that the Applicant has significant and strong ties in Australia.
The Tribunal gives this consideration significant weight in favour of revocation.
The best interests of minor children in Australia
The Direction requires decision-makers to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.[104]
[104] Direction 99 [8.4(1)].
In considering the best interests of the child, the Direction states at paragraph 8.4(4) that the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has identified three minor children whose best interests would be impacted by the decision. The Applicant’s brother has two minor children, a boy aged about 18 months and an infant girl aged about 4 weeks. Ms B has a minor child who is 7 years old who has developmental challenges.[105]
[105] Ex 8.
The Tribunal accepts that the Applicant genuinely wants to be part of the lives of the three minor children, but he currently has limited connections with his nephew and the newborn niece. Ms B noted that the Applicant “plays an important role” in her son’s life.[106] The Tribunal accepts that it is in the best interest of the three children for the Applicant’s visa to be revoked, so that he can further develop his relationship with them. However, and as submitted by the Respondent, the Applicant is not the primary caregiver to any of the children. The Applicant’s brother in oral evidence indicated that if the Applicant were to start using drugs again and used drugs in his home, that would not be acceptable and other accommodation might need to be considered.
[106] Ex 8.
The Tribunal is satisfied that given the real risk of reoffending, the seriousness of the re-offending, and potential incarceration, any relationship the Applicant would have with the children would be hindered by the absences due to the potential incarceration. Moreover, given there is a real risk of reoffending, it is difficult to see how the Applicant could play a positive role in their lives. Indeed, given the risk of reoffending, including potentially violent reoffending, and continued use of alcohol and drugs, the Tribunal accepts the Respondent’s submissions that it is unlikely that the Applicant would play any positive role in the children’s lives in the future.
In the circumstance, given the nature of the relationship between the Applicant and the children and other matters discussed above, the Tribunal gives this consideration limited weight in favour of revocation.
Expectations of the Australian community
The Direction at paragraph 8.5(1) indicates that the Australian community expects non-citizens to obey Australian laws. It states that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
The Direction refers to non-revocation of the mandatory cancellation of a visa, being potentially appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.[107]
[107] Direction 99 [8.5(2)].
The Tribunal observes that the Direction contemplates that the expectations of the Australian community apply regardless of whether the Applicant poses a measurable risk of causing physical harm to the community.[108]
[108] Direction 99 [8.5(3)].
The Federal Court of Australia’s decision in FYBR is significant.[109] In FYBR, the applicant argued that the Tribunal had erred in its approach that paragraph 11.3 of the then of Direction 65 as being deeming of what community expectations are, irrespective of the individual’s personal circumstances. The applicant argued that the Tribunal did not appreciate that it was permissible for it to assess whether community expectations would have been the same in relation to the applicant, given that he had already spent so much time in immigration detention.[110] In rejecting the applicant’s argument, Perry J concluded:
It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases.[111]
[109] FYBR v Minister for Home Affairs [2019] FCA 500 (‘FYBR’).
[110] FYBR v Minister for Home Affairs [2019] FCA 500 [21].
[111] FYBR v Minister for Home Affairs [2019] FCA 500 [42].
On appeal to the Full Federal Court, the majority of the Court (Charlesworth and Stewart JJ) essentially concluded that paragraph 11.3 contained a statement of the Australian Government’s views as to the expectations of the Australian community that must be applied,[112] that it is not for the decision-maker to make his or her own assessment of the community expectations,[113] and that in the context of Direction 65, community expectations as expressed normatively are what the Government says that they are (even though ascertainable community expectations might be quite different).[114] In essence, the judgment is authority for the proposition that it is not the decision-maker to make an assessment of community values on behalf of the community, and that those values are expressed as norms in Direction 65. The applicant’s special leave application to the High Court of Australia was dismissed.[115]
[112] FYBR v Minister for Home Affairs [2019] FCAFC 185 [66].
[113] FYBR v Minister for Home Affairs [2019] FCAFC 185 [67].
[114] FYBR v Minister for Home Affairs [2019] FCAFC 185 [91].
[115] FYBR v Minister for Home Affairs [2020] HCATrans 056.
The Tribunal is satisfied that the Applicant has been convicted of multiple serious offences involving violence. The Tribunal is satisfied that the Australian community expects that the Australian Government should not revoke the cancellation of the Applicant’s visa because his conduct is serious.
The Tribunal gives this consideration significant weight against revocation. However, this is slightly moderated, as the Applicant is to be afforded under paragraph 5.2(5) of the Direction the benefit of a higher level of tolerance. The principle at paragraph 5.2(5) of the Direction indicates that Australia ‘will generally’ afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.[116]
[116] In Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 802, the Court rejected the applicant’s submission that ‘most of their life’ in cl 6.3(5) of Direction No 79 (as per para 5.2(5) of Direction No 99) meant ‘most of their adult life’: at [32]. That is, it found that the meaning is plain and that a higher level of tolerance may be afforded to non-citizens who have spent most of their life in Australia, not ‘most of their adult life’.
Direction 99 introduced the principle that the level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years. The Applicant has been in Australia for most of his life, including during his formative years.
THE OTHER CONSIDERATIONS
Legal consequences of the decision
At paragraph 9.1, the Direction indicates that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
The Direction divides the considerations to be applied in this paragraph into two sections:
(1) non-citizens covered by a protection finding; and
(2) non-citizens not covered by a protection finding.
Australia is a signatory to several international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).
Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there would be a risk of harm.
The Applicant has not raised, and there is no evidence before the Tribunal, of any protection claims.
On the evidence, the Tribunal finds that the Applicant is not the subject of a protection finding, as defined in s 197C(5) of the Act, and as such the legal consequence of the Tribunal making a non-revocation decision is that the removal obligation in s 198 will apply and the Applicant will continue to be detained under ss 189 and 196 of the Act until he is removed.
The Tribunal accepts the Respondent’s submissions that the Applicant’s detention and potential removal from Australia are intended legal consequences.
The Tribunal therefore gives this consideration neutral weight.
Extent of impediments if removed
Paragraph 9.2 of the Direction requires the Tribunal to consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country) taking into account:
(a) the non-citizen's age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
The Applicant is 34 years old and he has been in Australia since he was about two years old. He has spent his formative years in Australia. There are no linguistic or cultural barriers, in case of his return to the USA. The Applicant’s mother and siblings live in Australia. He has an elderly grandmother in the USA who suffers from dementia.
The Applicant has a longstanding substance abuse issue and a challenging childhood. The Applicant’s mother gave extensive evidence about the abuse that the Applicant suffered at the hands of the stepfather.
In Dr Furst’s report dated 9 December 2019, Dr Furst refers to the Applicant’s stepfather’s treatment of the Applicant and his family. Dr Furst states that:
“[The Applicant’s] stepfather … treated [the Applicant], his mother and his younger half-brothers badly, including frequent episodes of physical and verbal abuse. He was particularly upset about the way his stepfather treated his mother.
… [The Applicant] was cooperative, clear in his expression and reasonably calm throughout the assessment period. There was some anxiety in relation to the impact of his offending actions and re-incarceration on his family, especially his mother, where he will be in the future, and the likelihood of further problems with his immigration status/risk of deportation to the United States, where he no longer has any family or supports”.[117]
[117] Ex 9, 110, 117.
Dr Furst noted that there was no significant medical history,[118] and he diagnosed the Applicant with “substance use disorder, with persistent use and dependence on drugs of abuse, including opiates, methylamphetamine, benzodiazepines and previously cannabis abuse”.[119] The Applicant has been on prescribed buprenorphine.[120]
[118] Ex 9, 112.
[119] Ex 9, 114.
[120] Ex 9, 278-281.

The Applicant’s family expressed concerns about the Applicant’s mental health in case of removal from Australia. The Applicant’s mother and brother confirmed that in case of removal, they would continue to support the Applicant, although that would be challenging financially and practically.
In consideration of the evidence as a whole, the Tribunal is satisfied that in case of the Applicant’s return to the USA, there would be practical challenges, including finding accommodation, employment, medical/mental health care services, emotional support, and the need to re-establish himself. The Tribunal has considered the Applicant’s circumstances and is satisfied that there are impediments, particularly given the Applicant’s mental health status and history of drug abuse which arguably could impact on his ability to adjust, adapt, and deal with the practical challenges. However as a citizen of the USA, he would have the same access to social, medical and economic supports as other USA citizens.
On balance, the Tribunal gives this consideration some weight in favour of revocation.
Impact on victims
The Direction requires decision-makers to consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.[121]
[121] Direction 99 [9.3].
There is no evidence of the impact of the decision on victims, and as such, the Tribunal gives neutral weight to this consideration.
Impact on Australian business interests
At paragraph 9.4 of the Direction, it is noted that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence of any impact on Australian business interests if the Applicant is not allowed to remain in Australia.
The Tribunal gives this consideration neutral weight.
Other matters for consideration
Paragraph 9 of the Direction expressly states the other considerations 'are not limited' to the matters listed therein.
There are no other matters for consideration.
CONCLUSION
The Applicant has repeatedly committed serious and violent offences. He has demonstrated a fundamental lack of ability to change his drug abuse and violent pathways. He came before the Tribunal previously and was given a chance when the previous Member decided in favour of revocation. However, within a very short period of time, he reoffended violently demonstrating, among other things, an inability to control his violent behaviour, for which there is no excuse. He was previously put on notice of the potential consequences of reoffending on his migration status, but that did not change his behaviour. It is correct that he has spent most of his life in Australia, including his formative years, and that he had a difficult upbringing but those cannot be the reasons to revoke the cancellation. The Tribunal has found that there is a real risk of re-offending, which is unacceptable given its seriousness. The Applicant is now an adult who has been given opportunities by the legal system, the Department as well as the Tribunal but he has not used those opportunities in a positive way. Instead he has continued to offend, and the offence that led the cancellation subject to this review, namely, wound person with intent to cause grievous bodily harm-S1 was violent. Overall, the protection of the Australian community weighs heavily against revocation.
There are considerations in favour of revocation, but the considerations against revocation outweigh those in favour. The protection of the Australian community, which encompasses the seriousness and nature of the Applicant’s offending conduct and the risk of reoffending, as well as the expectations of the Australian community (albeit slightly moderated), weigh heavily against revocation. The strength, nature and duration of the Applicant’s ties to Australia, the best interests of minor children, and the extent of impediments if removed, are considerations that to a varying degree, weigh in favour of revocation. The Tribunal is satisfied that on balance, the cumulative weight of the considerations in favour of revocation does not outweigh the significant cumulative weight of the considerations weighing against revocation.
Having regard to all relevant material before it, the Tribunal is satisfied that the correct and preferable decision is not to revoke the cancellation of the Applicant’s visa.
DECISION
The Tribunal affirms the decision under review.

153. I certify that the preceding one hundred and fifty-two (152) paragraphs are a true copy of the reasons for the decision herein of Deputy President Antoinette Younes.

................................[SGD]...................................
Associate

Dated: 22 January 2024

Date of hearing(s):

3 & 4 January 2024

Applicant:

Self-represented

Solicitor for the Respondent:

Ms M Kelly, Sparke Helmore Lawyers

[2024] AATA 46

22 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies

Date of hearing(s):	3 & 4 January 2024
Applicant:	Self-represented
Solicitor for the Respondent:	Ms M Kelly, Sparke Helmore Lawyers