Reid and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2023] AATA 79

Reid and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 79 (3 February 2023)
Division:GENERAL DIVISION
File Number: 2022/9428
Re:Barry Lee Reid
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member A. Nikolic AM CSC
Date of Decision: 3 February 2023
Place:Adelaide

The Tribunal affirms the decision under review.
...................[sgnd...........................................
Senior Member A. Nikolic AM CSC
Catchwords
MIGRATION – mandatory visa cancellation – citizen of Scotland – Class BB Subclass 155 Five Year Resident Return visa – failure to pass good character test – substantial criminal record – mandatory visa cancellation – whether another reason to revoke the mandatory cancellation – Ministerial Direction no. 90 applied – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Sex Offenders Registration Act 2004 (Vic)
Cases
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67
Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 056
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Minister for Immigrationand Border Protection v Le (2016) 244 FCR 56
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
NRFX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 21
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394
R v Gavel [2014] NSWCCA 56(2014) 239 A Crim R 469
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Direction No. 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021)
Sentencing Advisory Council, “Imprisonment,” < FOR DECISION
Senior Member A. Nikolic AM CSC
3 February 2023
INTRODUCTION

The Applicant seeks review of the decision by the delegate of the Minister on 10 November 2022, made under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the mandatory cancellation of his Class BB Subclass 155 Five Year Resident Return visa (“the visa”).
This application was heard in person at the Tribunal’s Adelaide Registry on 23 and 24 January 2023. Mr Simon Ower, King’s Counsel, instructed by Scammel & Co Solicitors, appeared for the Applicant. Ms Julia Davey of counsel, instructed by the Australian Government Solicitor, appeared for the Respondent.
For the following reasons the Tribunal affirms the decision under review.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction.
The ‘character test’ is defined at s 501(6) of the Act. A person does not pass it if they have been sentenced to a term of imprisonment of 12 months or more.[1] The Minister is obliged to cancel a person’s visa if satisfied they do not pass the character test and are serving a full-time sentence of imprisonment.[2]
[1] The Act, s 501(6)(c).
[2] The Act, s 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7).
Under s 501CA(3) of the Act, the Minister must give notice of a cancellation decision as soon as practicable, and invite the affected person to make representations about revocation. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act confers a discretionary power upon the Minister to revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied the person either passes the character test, or there is another reason why the original decision should be revoked.
BACKGROUND
The Applicant was born in Scotland and is a citizen of the United Kingdom. He migrated to Australia with his parents and two younger siblings in October 1997. He was 12 years old on arrival[3] and is presently 37 years old. The Applicant has only departed from Australia once for a holiday in 2006.[4] The Applicant’s relatives in Australia include his parents, siblings, grandparents, aunts, uncles, and cousins.[5] He undertook some secondary schooling in Australia, including part of Year 11, before commencing work.[6]
[3] Exhibit R1, 122.
[4] Ibid 123.
[5] Ibid 89.
[6] Ibid 91.
The Applicant has not been law-abiding in Australia.[7] His first conviction as an adult was on 12 August 2005 for Unlawful sexual intercourse. This offence occurred in November 2004 and was committed against a victim who was 14 years old and ‘significantly intoxicated’.[8] The Applicant was sentenced to 18 months’ imprisonment for this offence, which was suspended for two years upon him entering a good behaviour bond. He was also placed on the Australian Child Offender Register (“ANCOR”).
[7] Ibid 38-40.
[8] Ibid 141-142.
The Respondent considered cancelling the Applicant’s visa in 2006 (“2006 Notice”).[9] After considering his representations,[10] however, the Respondent decided not to cancel the visa but issued the following warning:[11]
‘You have not satisfied the delegate of the Minister that you passed the character test, but he has decided NOT to exercise his discretion… to cancel your visa. Instead you are to be WARNED that a fresh assessment will be made with a view to consider cancelling your visa if you are convicted of any further offences.
Please note the cancellation of your visa may be reconsidered in the event of further or fresh information coming to notice. Your visa may also be cancelled in the event of your incurring a liability for cancellation on new or different grounds.
…’
(Emphasis in original)
[9] Ibid 127-130.
[10] Ibid 146-160.
[11] Ibid 131-132.
The Applicant acknowledged this warning on 4 September 2006,[12] but continued to reoffend, including during his two-year bond. Convictions are recorded against him in 2007, 2009, 2010, 2011, 2014, 2016, 2017, 2018, and 2019. He was 34 years old at the time of his 2019 convictions, which included possessing illicit drugs for supply to another, drug driving, dishonesty offending, possessing a knife in a public place, and breaching conditional liberty provisions. The Applicant received fines, periods of imprisonment up to four months, and licence disqualification for some offences. He was also convicted but discharged without penalty for others.
[12] Ibid 132.
The Applicant’s visa issues reflect an extensive procedural history. In addition to the 2006 Notice, two of three visa cancellation decisions by the Respondent since 2019 have been quashed as follows:
(a)On 17 September 2019, while the Applicant was serving a full-time sentence of imprisonment,[13] his visa was mandatorily cancelled under s 501(3A) of the Act.[14] He made representations to have the cancellation decision revoked,[15] but on 12 April 2021 the Minister refused to do so (“non-revocation decision”). The Applicant challenged this in the Federal Court, where Justice Perry quashed the non-revocation decision by consent on 1 November 2021.[16]
(b)The Applicant was notified of a further non-revocation decision on 31 March 2022, on this occasion by a delegate of the Minister. He again challenged this in the Federal Court, and, on 26 August 2022, Justice O’Sullivan quashed the decision by consent of the parties.
(c)On 10 November 2022, another delegate of the Respondent made a non-revocation decision,[17] which the Applicant has asked the Tribunal to review.[18]
[13] Ibid 53.
[14] Ibid 255.
[15] Ibid 76-121.
[16] Ibid 340.
[17] Ibid 11.
[18] Ibid 1.
Under s 500(6L) of the Act, the Tribunal must decide this matter within 84 days of the Applicant being properly notified of the non-revocation decision in accordance with s 501G(1) of the Act or by 6 February 2023. Failure to do so results in the reviewable decision being affirmed by operation of law. These reasons are provided seven working days after the hearing and within the permissible 84-day period.
ISSUE
As the Applicant has been sentenced to a term of imprisonment of 12 months or more, he does not pass the character test.[19] Accordingly, the only basis upon which the Tribunal can revoke the cancellation decision is if satisfied there is ‘another reason’ for doing so.[20] This turns on the evidence at the time of its decision.[21] The task of determining ‘another reason’ was elaborated upon by the Full Court (“FCAFC”) in Viane[22] and Bettencourt.[23] In the latter, their Honours reflected favourably on the approach taken in Viane when summarising the following principles at [27]:
(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.
[19] The Act, s 501(6)(a), read in conjunction with s 501(7)(c).
[20] The Act, s 501CA(4)(b)(ii); Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[21] Nathanson v Minister for Home Affairs [2022] HCA 26 (“Nathanson”); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134].
[22] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
[23] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172.
More recently in Plaintiff M1,[24] the plurality of the High Court stated the following about how representations made under s 501CA(4) of the Act should be approached:
22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
23. It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations…the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims”…
25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
[24] Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417, [22]-[27], (Kiefel CJ, Keane, Gordon, and Steward JJ), [22]-[25].
Ministerial Direction 90
The Tribunal is bound to comply with “Direction No. 90 - Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA” (the Direction”).[25] The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task:
(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. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)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 8.4(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.
[25] The Act, s 499(2A). See also CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] and Nathanson, 2 [4].
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must have regard to clauses 8 and 9, where relevant to the decision.
Clause 8 of the Direction identifies the following as primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The best interests of minor children in Australia;
(d)Expectations of the Australian community.
Clause 9 of the Direction sets out a non-exhaustive list of other considerations:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims;
(d)Links to the Australian community, including: (i) Strength, nature and duration of ties to Australia; and (ii) Impact on Australian business interests.
Clause 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations’. This does not preclude the Tribunal, however, from giving an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[26]
[26] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’. The weighing process, however, is left to individual decision-makers.[27]
EVIDENCE
[27] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, [57].
Documentary evidence
The following documents were tendered into evidence:
(a)G-documents from the Respondent numbering 372 pages;[28]
(b)Tender Bundle from the Respondent numbering 505 pages;[29]
(c)Emails between the Respondent’s instructing solicitor and Adelaide Magistrates’ Court dated 21 December 2022 to 12 January 2023, attaching a Certificate of Record.
(d)Email from the Applicant’s partner dated 13 January 2023;[30]
(e)Email from the Applicant to his solicitor, Ms Ursula Matson, dated 17 January 2023.[31]
[28] Exhibit R1.
[29] Exhibit R2.
[30] Exhibit A1.
[31] Exhibit A2.
Legal Professional Privilege

Direct communication, such as emails between an instructing solicitor and client, are usually privileged information. On this occasion, however, both parties tendered information of this nature into evidence, thereby waiving any privilege attaching to these records. [32]
[32] Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303.
Applicant’s evidence
The Applicant’s evidence occupied almost the entire first day of the hearing. His mother and current partner were called as witnesses. The Applicant’s mother appeared in person. His current partner was scheduled to appear in person but subsequently appeared by video due to work commitments. The Tribunal will refer to her in these reasons as “Ms S”.
At the commencement of his oral evidence the Applicant’s adopted a three-page email from his solicitor dated 29 January 2020 as his statement in this proceeding.[33] His oral evidence is summarised as follows:
[33] Exhibit R1, 334-335.
(a)The Applicant said his family have steadfastly supported him over the years, despite conflict regarding his drug use. He was living with his parents prior to imprisonment in 2019 and intends living with them again if released.
(b)When asked about any minor children in his life, the Applicant referred to one of his paternal uncle’s children, who he thought was 12 or 13 years of age. He used to see this child at family events, and said they had ‘fun together’. The Applicant said he tried to show the child ‘the right way to grow up’. The Applicant could not recall the last time he saw the child, which he said was a ‘long time before’ his imprisonment in 2019. They last exchanged text messages over the recent Christmas / New Year holidays. There is no evidence from this child and the paternal uncle referred to makes no reference to the Applicant’s relationship with this child in a letter dated 26 September 2019.[34] Other documentary evidence from the Applicant suggests the child may be 16 years of age,[35] but there is no independent corroboration of age. The Applicant also referred in oral evidence to his younger brother having a partner with children from a previous relationship. He made no claims about a relationship with these children, who he did not name.
[34] Ibid 116.
[35] Ibid 90.
(c)Much of the Applicant’s oral evidence focussed on his offending. He expressed remorse several times for past conduct and agreed the courts have given him chances to meaningfully change the course of his life through lenient treatment like fines instead of imprisonment. He attributed his early offending to ‘arrogance, immaturity, and silly, repeated mistakes’. He agreed that after receiving the 2006 Notice he was caught drink driving three months later and subsequently caught driving while disqualified ten months later. He stated that because of his addiction to crystal methylamphetamine (“ice”) he did not take the 2006 Notice or the consequences of further offending seriously.
(d)In terms of the Unlawful sexual intercourse offence in late 2004, the Applicant said the victim told him she was 17 and claimed he ‘fell into that trap’ because of intoxication after using ecstasy and ice. His claim about the victim’s age conflicted with the Court’s remarks, which sentenced him on the following basis:
‘…the girl in question, was 14 years old at the time.
…
…though you believed she was 15.’[36]
[36] Ibid 51.
(e)When this inconsistency was put to him, the Applicant insisted the victim told him she was 17 and that immaturity and intoxication meant he failed to consider the consequences. He further insisted the sex was ‘consensual’.
(f)The Applicant said going to court for the sex offence and dealing with the 2006 Notice were stressful for him and his family. He was ‘very frightened’ about the outcome and claimed these experiences were a ‘big wakeup call’. He recalls being relieved to receive a suspended sentence and the news that his visa would not be cancelled. The Applicant agreed that despite these stressful experiences, his drug use worsened, and his crimes continued.
(g)When asked by Mr Ower whether he was offered any programs or counselling following his 2005 conviction, the Applicant stated he was ‘never asked or offered any assistance or counselling’. He said that he would have undertaken this to prove his rehabilitation. Just prior to the hearing, an email was also lodged by the Applicant’s solicitor, reflecting the following instructions:[37]
[37] Exhibit A2.
‘I instruct you that when I was on a suspended sentence of good behaviour bond for the charge of unlawful sexual intercourse corrections at no stage offered me the opportunity of having any treatment of any kind and did not discuss the topic with me had corrections offered me such treatment I would have happily had treatment and done anything offered to me at the time’
(Errors in original)
(h)During cross-examination Ms Davey referred the Applicant to records showing he and his Probation Officer not only discussed attendance on an alcohol / drug course and sex offender’s course,[38] but the Applicant attended the latter. The Applicant said he had no recollection of this, claiming drug use ‘destroyed [his] memory’. He accepted Ms Davey’s proposition, however, that notwithstanding a lack of recall, the records were accurate.
[38] Exhibit R2, 463-466, 471-472, 474,
(i)When asked about his use of ice, the Applicant claimed this commenced when he was 21 years of age, subsequently took over his life, and led him to do ‘stupid things’. He referred to a daily habit of one gram or more at the height of his addiction and agreed he drove vehicles after using ice. He funded drug purchases from his wages while working, and Centrelink payments when he was not, but agreed he also committed crimes and stole from his parents and a sibling. He claimed there was a period between 2013 and 2015 when he was ‘completely 100% drug free’, but subsequently relapsed.
(j)The Applicant’s claims about drug use changed during the course of his evidence. He initially stated that he started using ice at the age of 21, which increased over a four-to-five-year period to the point where it ‘took over’ his life and ‘made [him] do stupid things’. In other evidence he said that he used ecstasy and ice prior to his sexual offending on 19 November 2004, when he was 19 years of age. The Applicant claimed he ceased using ice approximately ‘a year’ prior to his imprisonment in 2019. This later evolved to the effect that he ceased using after a week-long, in-patient rehabilitation program in September 2018. He then said he was abstinent after finding fulltime employment as a concreter ‘about a month after detox’ because ‘there was random drug-testing and [he] couldn’t afford to lose [his] job’. He subsequently conceded that he continued to use ice until his imprisonment in 2019, purportedly on a much-reduced basis.
(k)The Applicant was asked questions about his alcohol use, initially claiming he gave it up completely ‘at least three or four years’ before his most recent imprisonment, which he estimated was around 2015. When asked about the claim recorded by Dr White that he gave up alcohol in 2009, the Applicant said he meant to convey to Dr White that he ‘gave it up totally and never touched it all’ from around 2015.
(l)In terms of rehabilitation, the Applicant said he learned techniques during the last four years to avoid relapsing into drug use, stating he could rely on ‘mechanisms inside [him]self to seek assistance’. He intends to continue rehabilitation if released, including for what he described as a ‘temper, anger problem’. When asked why his assurances about remaining abstinent and law-abiding are any more reliable than past unfulfilled undertakings, the Applicant said he has greater insight after almost four years in custody. He had reflected on his family’s suffering and wants to be a different person. He claimed to have ‘self-rehabilitated’ and said both he and Ms S now abstain from ice. Ms S lives with his parents and, with their support, he is confident of remaining drug free.
(m)The Applicant referred to previously consulting an acupuncturist organised by his grandparents, which he thought was in 2015 or 2016. He also referred to attendance at an approximately week-long residential ‘detox’ in September 2018, claiming this made him feel ‘clear-headed for the first time in a long time’. The Applicant agreed he relapsed after both the acupuncture treatment and September 2018 program. He claimed his abstinence lasted for ‘a couple of months’ after both and disputed the accuracy of one record that said he relapsed within a week.[39] When asked about the claim recorded by psychiatrist Dr Begg about him remaining abstinent for a year after the September 2018 Program, the Applicant could not recall saying this. When asked about a police report stating he was found in possession of an ice pipe on 1 August 2019, the Applicant accepted he continued to use ‘on and off’ until being imprisoned: ‘I started to have a little bit of a smoke whenever I chose to – socially not daily using it fulltime’. He initially claimed this was ‘maybe once a month’, but later agreed it was ‘more like weekly use’. When asked why he told psychologist Dr White he was abstinent since 2018, the Applicant said it was because of a ‘shady’ memory. When asked why he told Dr Begg he only used ice between the ages of 24 and 30, the Applicant said he could not recall telling Dr Begg this.
[39] Ibid 494.
(n)The Applicant claimed to have remained abstinent from drugs while in custodial settings since 2019. If released, he intends avoiding negative associations, remaining physically active, ‘getting back into soccer,’ and surrounding himself ‘with a good support network of family and friends’. He said if previously adverse associates tried to renew acquaintances, he would avoid them.
(o)When asked about reports attributed to him that he sold drugs to others to support his addiction,[40] the Applicant agreed he told Corrections staff this but claimed it was untrue. He said that while he shared drugs with other users it was never for payment. He referred to being given stolen property on one occasion, which he claimed not to know was stolen until police raided his parent’s property under warrant. He tried to sell this property to recover a financial debt, but disagreed it was in exchange for a drug debt. The Applicant explained what he meant to convey to the authors of these reports is that he ‘often got offers for goods in exchange for drugs’, but declined, which may have been misunderstood. He also raised the possibility of being ‘under the influence of some sort of substance during these meetings’. When challenged that this conflicted with his abstinence claims in custody, the Applicant accepted that drug use could not be a valid explanation.
(p)The Applicant was asked about an immigration detention record stating that on 13 January 2020, he was observed recovering a package thrown from another compound and white powder was found on his mobile telephone that tested positive for methylamphetamine. The Applicant claimed he inadvertently discovered a package in the yard, picked it up, and ‘decided to go back [to a friend’s cell] to investigate’. He said one package contained a concealed cigarette lighter and while ‘the other two’ detainees were unwrapping a package, some ‘white powder fell out’ onto his mobile telephone, which later tested positive for methylamphetamine. He claimed that contrary to the incident report he was the only person behind a shower screen flushing a toilet. When asked why he would involve himself in the recovery and examination of an unknown package given his circumstances, the Applicant said it was ‘very silly’ of him and claimed he ‘wasn’t thinking clearly that day’.
(q)The Applicant was asked about a reference in Dr White’s report to a past gambling problem.[41] He claimed this never got to a point where he was an ‘addicted gambler or [experienced] any hardship through gambling’. He said that he overcame this issue with assistance from his family and it was ‘never a problem after that’.
(r)The Applicant said he has been in a relationship with Ms S for approximately six years. They used drugs together during their relationship and he agreed that his 2019 supply conviction was based on an intention to supply her with ice. The Applicant claimed Ms S’s use of ice was ‘just a social thing…maybe a couple of days every week’ during 2017 and 2018, which she has overcome. He said the ‘substance wasn’t in control of her’ like it controlled him and claimed she remained abstinent since before his ‘detox’ in September 2018. He said they hoped to marry and raise a family together, which could not occur if he was removed from Australia. He claimed Ms S is awaiting a diagnosis regarding ‘cancerous lumps in her body’, but agreed blood results were still pending and no diagnosis had been made.
(s)The Applicant said there were times when he and Ms S had heated arguments but denied allegations that he committed family violence against her. He claimed that during one such argument, which resulted in an intervention order being taken out against him, it was Ms S who struck him three or four times and a female housemate ‘coerced’ her to make a false statement against him to ‘keep [him] out of the house’. The Applicant agreed that being at Ms S’s home on this occasion breached the conditions of his bond.
(t)The Applicant was asked about failing to declare his criminal history on an Incoming Passenger Card (“IPC”). He said this occurred after returning from a Bali holiday[42] to celebrate his 21^st Birthday and agreed the response ‘No’ to a question about his criminal history was incorrect. He claimed this was an ‘honest mistake’ and invoked immaturity and ‘jet-lag’ as the cause. In later evidence he said he assumed his criminal history was known to immigration authorities. When asked why he also failed to declare he was on the ANCOR in a Personal Circumstances Form dated October 2019 (“2019 PCF”),[43] the Applicant said this was a ‘complete mistake’ because he ‘incorrectly read the question’. When asked why he failed to disclose the 2006 Notice in response to a question about previous warnings from the Department,[44] the Applicant variously claimed it was a ‘general mistake’, or due to being in a ‘drug-induced coma’. When pointed out he was imprisoned at this time and claimed not to have taken illicit drugs in custody, the Applicant agreed it was not possible he was in a ‘drug-induced coma’. Later in his evidence the Applicant conceded he was a ‘bit reluctant [to] answer [these questions] correctly’ because he ‘thought it might make [his] situation worse’. During re-examination the Applicant said he was not purposely trying to mislead immigration authorities.
(u)When asked about employment in Australia, the Applicant said he had several jobs, most recently a concreting role in 2018. He had also relied on Centrelink benefits for approximately six years of his residence in Australia. When asked about a report referring to debts totalling ‘approximately $40,000 to $50,000’, which he was concerned about repaying,[45] the Applicant said he and his family had reduced this to around $15,000. There is no independent corroboration of this claim.
(v)In terms of health, the Applicant said he was born with asthma, which was effectively controlled with an inhaler. He also stated he has been hospitalised several times for cellulitis in his leg, for which he received intravenous antibiotics. He referred to ‘therapy’ from a psychologist in July 2017 under a mental health care plan,[46] and said he was prescribed Setraline and Olanzapine for anxiety and depression during the in-patient ‘detox’ he undertook in September 2018. He said this medication continues to keep him calm and help him sleep.
(w)The Applicant referred to an ‘old frail (maternal) grandma in her late 80s’ in the United Kingdom and said there were no relatives there to rely upon for support.
[40] Exhibit R1, 57; 60-61; Exhibit R2, 490.
[41] Exhibit R1, 318
[42] Ibid 123.
[43] Ibid 91.
[44] Ibid 90.
[45] Exhibit R2 498.
[46] Exhibit R1, 68.
Evidence of Applicant’s mother
The Tribunal has considered a one-page joint letter from the Applicant’s parents dated 26 September 2019, which his mother adopted as her statement in this proceeding.[47] The Tribunal was impressed with the dignified and supportive evidence of the Applicant’s mother, who clearly loves the Applicant and has tried to assist him as best she can.
[47] Ibid 119.
The Applicant’s mother said her own 80-year-old mother in the United Kingdom was ‘very poorly’, can ‘barely walk’ and is unable to provide the Applicant any support. She also has a brother living in Scotland, but they are estranged. The Applicant had lived in their shared family home ‘most of his adult life’, and they tried to support him throughout his troubles. She said the Applicant made unsuccessful attempts to overcome addiction. She was unaware of him continuing to take ice after in-patient rehabilitation in September 2018.
The Applicant’s mother said Ms S has lived with her family for about three years. While she held past suspicions about Ms S’s drug use, she has none now.
Evidence of Ms S
The Tribunal has considered a one-page letter from the Ms S dated 28 September 2019, which she adopted as her statement.[48] Her evidence is summarised as follows:
(a)Ms S said she knew about the Applicant’s daily use of ice upon commencing their relationship. She used with him approximately twice a week for about a year until he attended a rehabilitation program in September 2018. Ms S said she decided to remain abstinent ‘so when he got out [ice] wouldn’t be around him’. She had unsuccessfully tried to stop the Applicant using drugs, which ‘he tried to do’. When he started using again ‘a couple of times a week’ after the 2018 program, she asked him to stop but he did not. When asked why, she said ice addiction is a ‘hard thing to get over’. Ms S said the Applicant ‘cut down’ his drug use after the 2018 program.
(b)Ms S has not lived with the Applicant since their heated argument in December 2018 that resulted in a protection order. She has since had this order removed. Ms S moved in with the Applicant’s family in November 2019.
(c)Ms S agreed that she and the Applicant had frequent arguments about his drug use. When asked if voices were raised during these arguments, she responded: ‘could be’. When asked if the arguments became physical, she responded: ‘No’.
(d)When asked about her current claim that she lied to police about the Applicant’s violence against her during an incident in December 2018, Ms S responded: ‘I don’t know what I said in that statement’. When pressed by Ms Davey, she agreed that claims of violence were made but attributed this to her ‘housemate’. She claimed to have contacted police ‘the next day’ to have the assault charge withdrawn, insisting she was the violent one by pushing, slapping, scratching, and pushing the Applicant.[49] She said police would not remove the intervention order until six months passed, and she had to return to court twice to have it lifted.
(e)When asked about specific events during the argument that resulted in the intervention order, Ms S said she ‘can’t remember everything that happened’ because of intoxication. When asked if she denied the Applicant headbutted her, she responded: ‘I believe Barry pushed me against my nose…he used his head to get me out of the way, but not in a violent way’. In relation to the claim that the Applicant’s aggressive conduct caused their pet dog to urinate, Ms S said the dog did so because it was scared by the yelling. When asked if the Applicant grabbed her around the neck and shoved her into a wall,[50] she responded: ‘I can’t answer that’. When asked why, she responded: ‘Can’t remember’.
(f)Ms S said if the Applicant remained in Australia, they would have a future together and had spoken about marriage, but there was ‘nothing definite yet’. Her intentions about accompanying him to the United Kingdom had changed, however, as detailed in a brief note just prior to the hearing on 13 January 2023.[51] In essence she no longer intends accompanying him because of ‘health reasons’, which would mean the end of their relationship. Ms S said she is awaiting medical test results, with an appointment scheduled on 24 March 2023. When asked if she would accompany the Applicant if these medical results were clear, she said that she would not because of other health concerns. No expert evidence was tendered about medical conditions Ms S has or is expecting results for.
(g)Ms S said she is aware methylamphetamine was discovered on the Applicant’s telephone in immigration detention. She claimed, however, not to have asked him about this incident and is unaware of the circumstances.
[48] Ibid 114. The Tribunal has also considered a more recent Statutory Declaration, Ibid 347-348.
[49] Exhibit R2, 226; 413;415; 418; 420.
[50] Ibid 424.
[51] Exhibit A1.
TRIBUNAL CONSIDERATION OF EVIDENCE

The Tribunal has continuing concerns about the extent to which aspects of the Applicant’s evidence and that of Ms S can be relied upon. Many of the Applicant’s responses were inconsistent, or came across as implausible, or were directly contradicted by more reliable evidence. Examples include:
The Applicant’s claims about his use of illicit drugs and alcohol varied considerably:
(i)He said that he used ice on the date of the sexual offence in 2004 when he was 19 years old, which conflicts with subsequent claims that his use of methylamphetamine commenced when he was 21 or 24.
(ii)A report by psychiatrist Dr Jules Begg dated 28 May 2020 records the Applicant’s claim that he used ice between the ages of 24 and 30, or between 2009 and 2015, before purportedly resuming use after an assault in September 2016.[52] Dr Begg records the Applicant’s claim that he ‘was able to abstain from methamphetamines for the following year’ after completing a week-long in-patient rehabilitation course in September 2018.[53] The Applicant says he has ‘no memory’ of making this claim to Dr Begg. The Tribunal considers it unlikely, however, that a qualified psychiatrist would record this claim unless this is what they were told and would also refer to any suspicions about a cognitive deficit. The Applicant could recall that Dr Begg’s report was commissioned for a Victims of Crime matter, for which he eventually received a government-funded payment of $7,900.
[52] Exhibit R1, 329-330.
[53] Ibid 331.
(iii)A report by psychologist Dr Jack White dated 6 February 2020 records the Applicant’s claim that he last used ice in 2018.[54] The Applicant invoked a ‘shady’ memory for providing Dr White with this incorrect information. The Tribunal again considers it unlikely that a qualified psychologist would record claims such as these unless this is what there were told and would refer to any suspicions of cognitive deficit.
[54] Ibid 324.
(iv)An assessment report by the South Australian Department of Correctional Services dated August 2019, records the Applicant’s claim that he started using ice at the age of 21 (or 2006), which escalated to daily use by the time he was 23.[55] The Applicant is also recorded as denying that the use of methylamphetamine ‘had been problematic in his life’.
[55] Ibid 317.
(v)In terms of drug use, the Applicant initially claimed he ceased using ice ‘a year’ prior to his imprisonment in 2019, which then incrementally shifted to stopping use after a week-long, in-patient rehabilitation program in September 2018, then after finding fulltime employment as a concreter ‘about a month after detox’, before eventually conceding he continued using ice at a reduced rate until imprisonment in 2019.
(vi)In terms of alcohol use, a pre-sentence report dated May 2019 states that the Applicant:
‘drank alcohol with peers between the ages of 18 and 23 years, but that over the last seven years he has had only a very occasional beer. He denied ever having an alcohol problem, although it is noted that he has previously been convicted of Driving with excess blood alcohol…’.[56]
(vii)Dr Begg recorded the Applicant’s claim that he consumed alcohol as a ‘moderately heavy drinker’ between 2002 and 2009 but ceased drinking when he was 24.[57] An assessment report by the South Australian Department of Correctional Services dated August 2019, records the Applicant’s claim that he gave up drinking alcohol after a drunk driving conviction in 2011.[58] In oral evidence the Applicant initially claimed he gave up alcohol completely ‘at least three or four years before his most recent incarceration’, which he estimated was around 2015. When asked about the inconsistency of that claim with Dr White’s report, which stated he gave up alcohol in 2009, the Applicant said he meant to convey to Dr White that he ‘gave it up totally and never touched it all’ from around 2015.
(viii)The Applicant conceded during oral evidence he told Corrections staff that he sold ice to others to support his addiction,[59] but now claims this was untrue or may have been misunderstood. This is unpersuasive in circumstances where the same claim is recorded by different report writers on different days. The Applicant’s explanations were overly elaborate and unpersuasive.
(ix)The Applicant’s explanation about why he recovered a package from a yard in immigration detention on 13 January 2020, which was thrown from another compound, and subsequently resulted in white powder on his mobile telephone testing positive for methylamphetamine, came across as feigned naivety. The Applicant’s past drug history, and extended period spent in custodial settings where contraband is prevalent, rendered his explanation unconvincing. His explanation also conflicts with the incident report, which the Tribunal considers a more reliable source of information, particularly given the Applicant’s frequent claims about being unable to recall. It is noteworthy he frequently invoked memory problems for matters adverse to his application but claimed to have good recall about matters he considered favourable. One example is his insistence that the 14-year-old victim of his sexual offending purportedly told him she was 17, which came across as an attempt to diminish his culpability. The Tribunal rejects this claim and prefers the sentencing remarks as the basis upon which he was sentenced.
(x)The Applicant’s explanations about why he failed to declare his criminal history on an IPC, as well as his sex offender status and the 2006 Notice in the 2019 PCF, were overly elaborate and unpersuasive. This includes a claim that he may have been in a ‘drug-induced coma’, which directly contradicted his abstinence claims in custodial settings.
[56] Ibid 57.
[57] Ibid 317.
[58] Exhibit R2, 493.
[59] Ibid 490; Exhibit R1, 57; 60-61.
The Tribunal formed the view after considering the Applicant’s documentary and oral evidence that the credibility of some of his claims and his overall credibility as a witness is questionable. This conclusion is not lightly made and does not arise from objectively minor factual matters or the Applicant’s demeanour, but on substantial evidentiary concerns. The Tribunal considers the Applicant to be an unreliable historian and found him to be less than forthright at times. The Tribunal also found aspects of Ms S’s evidence to be evasive and less than forthright. Ms S now claims her statement to police about the Applicant’s violence against her was ‘complete lies’, while concurrently claiming she could not recall what she told them.[60] Her claim that the Applicant ‘never abused [her] in any way’,[61] is also inconsistent at best.
PRIMARY CONSIDERATIONS
[60] Exhibit R1, 346 [5].
[61] Ibid 346 [12].
Protection of the Australian community from criminal or other serious conduct
Clause 8.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct
Under cl 8.1.1 of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)    violent and/or sexual crimes;
(ii)   crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)    causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)   crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
The Applicant’s offending over almost two decades reflects a persistent disregard for Australian laws. Records disclose that his offending commenced in 2003, at the age of 17, when he committed Larceny,[62] which was dealt with at a Family Conference. The Applicant confirmed this during the hearing. The Tribunal places no weight, however, on his criminal history as a juvenile where a conviction was not recorded. The Federal Court has held such conduct cannot be regarded as ‘criminal offending’.[63] The totality of his behaviour, however, including as a juvenile, is relevant in the context of ‘other conduct to date’.[64]
[62] Exhibit R2, 491.
[63] Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 10, [36].
[64] The Direction, cl 8.1.1(1); LRMM v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1571, [14]-[15].
The Applicant’s crimes encompass three categories as follows:
(a)Sexual offending. The Applicant has a 2005 conviction for Unlawful sexual intercourse, which is viewed very seriously.[65] As a young adult he committed a sexual offence against a ‘significantly intoxicated’[66] and vulnerable 14-year-old girl. Her vulnerability arose both from intoxication and undeveloped emotional maturity. The Tribunal acknowledges the Applicant pleaded guilty at the earliest opportunity, has not committed further sexual offences, and the sentence imposed on him was substantially below the statutory maximum. He was also convicted on 27 June 2014 for failing to comply with his reporting requirements under the ANCOR.[67] These obligations, which transitioned to the Sex Offenders Registration Act 2004 (Vic), expired on 13 January 2021.[68]
(b)Offences involving violence, the threat of violence, or possession of weapons. Findings of guilt or convictions are recorded against the Applicant for ‘Assault occasioning actual bodily harm’ on 1 November 2005,[69] ‘Fighting’ on 26 June 2007,[70] ‘Use or threaten unlawful violence’ on 16 May 2011,[71] and possessing a knife in a public place in May 2019. This offending is not considered overly serious given it was dealt with either without a conviction being recorded, or dismissed without penalty, or through fines. The Tribunal rejects the submission, however, that except for ‘the 2005 Conviction (sic) there are no further offences of a violent nature’.[72]
(c)Drug, driving, dishonesty, and conditional liberty offences. These represent the bulk of the Applicant’s offending since 2004 as follows:
(i)The Applicant’s use of ice has been prolonged, rising to daily use of up to one gram or more at the height of his addiction. His drug convictions commenced in 2010 and his most recent drug conviction was in 2019. The Tribunal notes he was found with small amounts of illicit drugs or an ‘ice pipe’ on 9 September 2015, 9 March 2017 and 1 August 2017, for which he received drug diversion opportunities but failed to attend appointments or respond to follow-up letters.[73] His non-compliance resulted in these matters being referred to South Australia Police for prosecution. His recent supply offence is his most serious drug conviction and, on his own evidence, is not the first time he has shared drugs with others.
(ii)In terms of driving offences, the Applicant has numerous convictions for driving unauthorised, or while under the influence of alcohol or drugs. Sentencing remarks refer to his driving record as ‘significant’ despite having been ‘given the benefit of a suspended sentence of imprisonment for driving while disqualified’.[74] The Applicant has previously failed to stop a motorbike when requested and attempted to evade police.[75]
(iii)The Applicant has several dishonesty convictions, including for Unlawful possession, dealing with property without consent, deceiving others to benefit himself, and repeat convictions for giving police false information. He conceded during the current hearing that he has also stolen from his parents and a sibling.
(iv)In terms of conditional liberty offences, the Applicant has multiple convictions for failing to comply with court orders such as bail. His most recent conviction for this category of offending is Fail to comply with bail agreement on 30 August 2019.
[65] The Direction, cl 8.1.1(1) NRFX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 21, [50] (Rangiah J).
[66] Exhibit R1, 50.
[67] Ibid 39.
[68] Ibid 302.
[69] Exhibit R2, 10-13.
[70] Ibid 40-43.
[71] Ibid 60-63.
[72] Applicant’s Statement of Facts, Issues, and Contentions (“ASFIC”) dated 21 December 2022, 5 [13].
[73] Exhibit R2, 122; 134; 159.
[74] Exhibit R1, 46.
[75] The Direction, cl 8.1.1(1)(b)(ii).
This is not a case where the salutary experiences of the Applicant’s 2005 court appearance, or the 2006 Notice warning him about the potentially dire consequences for his visa status,[76] caused him to remain abstinent and law-abiding. He continued to reoffend and the Court’s 2005 reference to him being ‘unlikely to offend again’[77] was optimistic at best. Multiple convictions are recorded against the Applicant in 2006, 2007, 2009, and 2010. There is a noteworthy period between October 2011 and June 2014 where no convictions are recorded, but the Tribunal notes he did commit further offences during this period that were not heard until later.[78] Numerous convictions then followed between 2014 and 2019.
[76] Ibid, cl 8.1.1(1)(g).
[77] Exhibit R1, 142.
[78] Exhibit R2, 87; 92.
The 2019 sentencing remarks refer to the Applicant’s offending in May 2018 as ‘different in character and seriousness’.[79] The Tribunal rejects the submission that ‘much of the [Applicant’s] offending was concentrated in the 2019 Conviction (sic), at time where [he] experienced a relationship breakdown, the loss of employment and the loss of his residence’.[80] There are approximately 15 court appearances and more than 30 convictions prior to his 2019 court appearances.
[79] Exhibit R1, 45.
[80] ASFIC, 5 [35].
A sentence of imprisonment is the most severe sanction available.[81] It is noteworthy the decision to imprison the Applicant in 2019 followed a lengthy period where he received mostly non-custodial dispositions such as findings of guilt without conviction, drug diversions, fines, suspended sentences, bonds, community-based orders, and licence disqualification. Despite opportunities to meaningfully change the course of his life, the Applicant continued to reoffend. He has done so frequently, and his crimes reflect a trend of increasing seriousness. This includes by virtue of the repeat nature of some crimes, and because his most recent drug offences were for supply to others.[82] While some of his convictions are individually less serious, the persistence of his conduct and accumulation of crimes is very concerning. The Court held in 2019, for example, that his offending is ‘over too long a period of time and too many in number’ to deal with other than by imprisonment.[83]
[81] See for example: Sentencing Advisory Council, “Imprisonment,” <
[82] The Direction, cl 8.1.1(1)(d).
[83] Exhibit R1, 47.
The cumulative effect of the Applicant’s conduct has imposed adverse consequences on his victims. He has been a financial burden on the Australian community through the costs of police intervention, court proceedings, monitoring of conditional liberty arrangements, and incarceration.[84]
[84] The Direction, cl 8.1.1(1)(e).
The Applicant provided false or misleading information in an official context by failing to declare his criminal history in an IPC on 14 February 2006,[85] and by not disclosing the 2006 Notice and his status as a sex offender in his 2019 PCF. The Tribunal does not accept his explanations for these omissions, including because of his history of providing false information and his personal responsibility for documents submitted in his name. In oral evidence, he eventually conceded that a factor in his thinking was concern about the consequences of fully disclosing this information, which evinces a continuing tendency to mislead and fail to take full responsibility for his actions.
[85] Exhibit R1, 123.
In terms of ‘other conduct’,[86] the Tribunal has considered custodial records, which routinely form part of the evidence in non-revocation cases. These are obtained under summons and their probative value is tested during questioning. The Tribunal is not bound by the rules of evidence[87] and, although such records may not have been substantiated in court, there is nothing preventing the Tribunal from considering them within the meaning of ‘other conduct’ at cl 8.1.1(1) of the Direction. Witnesses must be afforded procedural fairness, however, by having the records put to them for response. As Kenny J has pointed out, the Tribunal should treat contemporaneous police and custodial records carefully and acknowledge the ‘limits to the material…said to evidence such conduct, including its cogency and reliability’.[88] Anastassiou J has similarly expressed the need for care about ‘reaching a view that criminal conduct has occurred, absent a prosecution and conviction’.[89]
[86] The Direction, cl 8.1.1(1).
[87] AAT Act, s 33(1)(c).
[88] CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101, [98]-[100].
[89] QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394, [74], citing Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67, [85] (Edmonds J) and cited by the Full Court on appeal in Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113, [128] (Nicholas J, with Moore and Rares JJ agreeing).

In relation to the references in evidence to the Applicant telling custodial staff he sold ice to support his own habit, no finding is made in relation to this.[90] In the absence of any charges or convictions, and noting the Applicant’s current denials, there is no proper basis to find he trafficked drugs or exchanged them for stolen property. No weight is placed on these records. The Applicant gave evidence, however, after being given a warning about his privilege against self-incrimination, that he did supply drugs to friends but without payment.
[90] Exhibit R1, 57; Exhibit R2, 490.
Some of the Applicant’s custodial records refer to him as polite, compliant, and cooperative.[91] Others, however, refer to him throwing a sign onto the roof of a tool cage, resulting in a ‘pay reduction’,[92] becoming involved in physical confrontations with two other detainees, aggressive conduct towards a catering assistant, recovering contraband thrown into his compound, and white powder being found on his mobile telephone that tested positive for methamphetamine.[93] Having regard for the Applicant’s documentary[94] and oral evidence about these incidents, the Tribunal is satisfied he has engaged in some misconduct in custody. When regard is had for the Applicant’s past offending involving violence, in conjunction with involvement in aggressive and abusive confrontations in custody or on the roads, this is suggestive of unresolved anger issues.
[91] Exhibit R1, 267; 271.
[92] Ibid 271 (27/08/2019).
[93] Ibid 279-291.
[94] Ibid 294-297.
The totality of the Applicant’s offending and other misconduct is very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction provides:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Clause 8.1.2(2) of the Direction states that in assessing the risk the non-citizen poses to the Australian community, decision-makers must take into account, 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).
The High Court has held that past actions are legitimate predictors of future behaviour.[95] In Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, Katzmann J also reasoned that the ‘conduct in which the person has engaged in is obviously relevant to the risk…he might in the future engage in’ and provides ‘the best and perhaps the only real indicator of the harm he might cause in the future’.[96]
[95] Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, 578-579.
[96] Minister for Immigration and Citizenship v Obele [2010] FCA 1445, [58]-[59].
This aspect of the Direction requires the Tribunal to assess the risk the Applicant poses to the Australian community if he reoffends, taking into consideration the nature of any harm and its probability. Mortimer J has reflected on the Tribunal’s task as deciding:
‘…not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated.”[97]
[97] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
The nature of harm from a repeat of the Applicant’s offending varies. It could include, for example, the death or serious injury of other road users or pedestrians if he again drove a vehicle after consuming ice or had a blood alcohol level above the allowable limit. If he was to again possess illicit drugs for supply, this could cause serious physical or psychological harm to the person the drugs are supplied to. A repeat of his sexual offending against a minor could cause devastating consequences.
The Applicant attributes his offending to being ‘in the grips of a drug addiction’ and claims not to be himself when using drugs such as ice.[98] Other reasons he invokes include negative peer associations, periods of homelessness, and ‘limited positive supports’.[99] His past drug use was described by the Court in 2019 as escalating ‘out of control’.[100] A pre-sentence report refers to him using cannabis since the age of 14, which developed into a daily habit by the time he was 18.[101] It was around this time, at the age of 19, that he committed the ‘Unlawful sexual intercourse’ offence. The Applicant’s claims include that he used methamphetamine daily ‘for around 3-4 years’.[102] Psychologist Dr Jack White noted the Applicant’s claim that he used marijuana from 2000 until 2013, ecstasy from 2003 until 2010, and methamphetamine from 2006 until 2018. It is difficult to unpick the conflicting tendrils of the Applicant’s claims about use of drugs, which include purported abstinence while working for the railways, where he was subjected to random testing.[103] He also claimed to have been abstinent after a period of in-patient rehabilitation and then after securing a concreting job in 2018, before conceding that he continued to use ice, albeit on a reduced basis, until his imprisonment in 2019. This is supported by a 2019 pre-sentence interview, in which the Applicant is recorded as stating that he continued to use ice ‘occasionally on weekends’ if depressed.[104]
[98] Exhibit R1, 90.
[99] Exhibit R2, 491.
[100] Exhibit R1 45.
[101] Ibid 57.
[102] Ibid.
[103] Ibid.
[104] Ibid.
In terms of alcohol use, the Applicant has variously claimed to others that he only consumed ‘a very occasional beer’ after giving up alcohol and previously denied having an alcohol problem. That is despite references in evidence to binge drinking on weekends,[105] and convictions for driving with excess blood alcohol in June 2007, November 2007, August 2009, and October 2011. Psychologist Dr Jack White recorded the Applicant’s claim about being a moderately heavy drinker of alcohol between 2002 and 2009, following which he stopped because it made him ‘more aggressive’.[106] The Applicant’s oral evidence is that he did not entirely give up alcohol until approximately 2015.
[105] Ibid 223.
[106] Ibid 317.
The Applicant claimed ‘there is no risk of [him] reoffending’ because he is a ‘completely changed man’ with developed insight and the ‘psychological tools’ to remain abstinent and law-abiding.[107] In his revocation claims dated October 2019, the Applicant stated:
‘I worked extremely hard prior to being sentenced to overcoming my drug addiction, including engaging rehabilitation in Brisbane, cutting off all associations with other drug users and poor associates, and finding pro-social friends through sporting clubs’. I also had psychological treatment…and have remained abstinent.[108]
[107] Ibid 90.
[108] Ibid 78.
The Tribunal has considered:
(a)References to the Applicant reducing his alcohol use after the sexual offence in 2005, ‘not yet’ commencing programs directed at addressing his drug use, but intending to do so.[109]
[109] Ibid 162.
(b)References to the Applicant entering a rehabilitation program in Brisbane in 2017 at the urging of his grandmother,[110] but then relapsing into drug use.
[110] Ibid 57; 68.
(c)The Court’s reference to the Applicant having ‘successfully completed a detoxification program’ in Adelaide in September 2018,[111] although a pre-sentence report dated May 2019 noted he:
[111] Ibid 45; 120.
‘admitted to continuing to use methamphetamines since completing the program [and] still reverted to methamphetamines from time to time as a coping mechanism to manage depressive symptoms, or feelings of boredom or loneliness’.[112]
[112] Ibid 57.
(d)A Certificate of Completion from Drug and Alcohol Services South Australia (“DASSA”) following the Applicant’s attendance on a seven-day program from 10 to 17 September 2018.[113] He continued to use ice after this program.
(e)A letter dated October 2019 from Mr Murray Cole, an acupuncturist in Queensland, who states the Applicant asked him for treatment and received ‘5 sessions if intensive detox (sic) and he no longer has any drugs in his system’.[114] Mr Cole was not called to give evidence and there is no explanation in his brief letter about what these five sessions involved. The Tribunal is also unable to discern what qualifies an acupuncturist to determine that a person no longer has drugs in their ‘system’. The Tribunal places no weight on this claim.
(f)Sentencing remarks dated 28 May 2019, in which the Applicant is described as having ‘made significant efforts to effect [his] own rehabilitation’.
(g)A pre-sentence report dated May 2019 referred to the Applicant ‘being under considerable financial pressure’ with debts estimated at ‘around $40,000’.[115] This report also noted his requirement for a ‘high level of supervision…to address criminogenic factors’ if released on a Community Corrections Order, to include weekly reporting, referral to programs for assessment, monitoring of his attendance for psychological counselling, directions to abstain from all alcohol and illicit drug use, random breath and urine testing, and other conditions.[116]
(h)References to courses completed by the Applicant including a: Domestic and Family Violence Intervention Program; Making Changes Modules in 2019; and an Alcohol / Drug Program in 2005.[117]
(i)An undated certificate of attendance on ‘Life after a drug addiction’.[118]
(j)Submissions on the Applicant’s behalf that he is remorseful and:
‘…has indicated a strong willingness to rehabilitate himself and seek professional support. He has already undertaken a number of programs to assist in his rehabilitation. His detention in immigration has hindered his opportunity to further progress his rehabilitation however in the same vein it is contended that his lengthy stay in detention has assisted him in no longer having physical cravings for drugs’.[119]
[113] Ibid 120.
[114] Ibid 121.
[115] Ibid 56.
[116] Ibid 62.
[117] Ibid 275.
[118] Ibid 304.
[119] ASFIC 7 [53].
In terms of expert evidence, the Tribunal has considered:
(a)A report dated 28 May 2020 by Psychiatrist Dr Jules Begg, which relates to an assault the Applicant was subjected to in 2016, for which he successfully sought a Victims of Crime payment.[120] Key aspects of Dr Begg’s report are summarised as follows:
[120] Exhibit R1, 329-333.
(i)The Applicant ‘described a Post-Traumatic Stress Disorder’ because of the assault, characterised by intrusive memories:
‘…which was severe for at least a six-month period’ but thereafter significant improvement occurred, but with some recurrence when he has been placed in stressful situations, such as when incarcerated. He is likely to have a recurrence of symptoms when there are further stresses in his life. On a day-to-day basis, is able to function adequately’.
(ii)The Applicant continued to take methamphetamine after this assault and, at the time of the consultation with Dr Begg, met the diagnostic criterial for Methamphetamine Use Disorder.
(iii)Dr Begg did not recommend any further treatment, but a ‘focus on maintaining a healthy lifestyle…’.
(b)A report dated 6 February 2020 by psychologist Dr Jack White,[121] which was commissioned by the Applicant’s solicitor. This was based on a two-hour interview with the Applicant on 8 November 2019. Having regard for the Applicant’s oral evidence, it is clear Dr White proceeded on the erroneous assumption that the Applicant abstained from illicit drugs since 2018 and gave up alcohol at the age of 24. Dr White was not called as a witness and could not be cross-examined, but the Tribunal places less weight on his report in circumstances where the basis of his opinion relies on erroneous self-reported claims. Key aspects of Dr White’s report are summarised as follows:
[121] Ibid 310-326.
(i)In addition to the Applicant’s drug and alcohol history, he started gambling at the age of 20, which developed into a problem, but got help from his parents and no longer considers this an issue.
(ii)The Applicant attributed his offending to ‘drugs and mixing with the wrong people’ but claimed to have taken steps to disassociate with adverse peers.
(iii)After applying a Personality Inventory, the Applicant was assessed as having a personality type indicative of emotional instability and ‘elevated on traits of Self Consciousness and Impulsiveness’.
(iv)The Applicant was noted to have a ‘history of acting out behaviour, most notably in the area of substance abuse, probably involving other behaviours as well’. Dr White opined in respect of the Applicant’s personality profile that his: ‘recklessness had…likely alienated him from his family and friends’ and:
‘Impulsivity and drug use had likely led to severe impairment in his ability to maintain stable employment…Generally impulsive and thrill-seeking, his use of drugs was likely to impair his already suspect judgement. Interpersonal relationships were likely to be superficial, volatile and short lived and even those relationships that had been maintained would have suffered strain from Mr Reid’s egocentricity and from the consequences of his drug use’.
(v)Dr White considered the Applicant had shown insight into his drug addiction and expressed a conditional opinion that: ‘Should he be able to successfully address this issue, with the support of his family and friends, and with productive employment, his prospects of reoffending will be significantly reduced’.
(c)An assessment report from the South Australian Department of Correctional Services dated 14 August 2019.[122] Key conclusions in the report are:
(i)The Applicant constitutes a ‘High’ recidivism risk, with criminogenic needs including ‘alcohol and drug abuse, relationships, as well as criminal and anti-social attitudes’.[123]
(ii)The Applicant needed to be referred to the Domestic and Family Violence Intervention Program ‘to address his use of violence in relationships and gain increased interpersonal communication skills’, as well as the ‘Making Changes Program to address substance abuse issues, anti-social associations and deficits in problem-solving’.
(iii)The Applicant should be ‘referred to a community-based AOD treatment program service to address his problematic substance abuse, assist him to develop pro-social coping strategies alternate to substance use, and develop and strengthen relapse prevention techniques’.
(iv)The Applicant remains concerned about being able to service approximately $40,000 to $50,000 in outstanding personal debts.
(v)The Applicant requires case management support and should be ‘encouraged to avoid antisocial associations and pursue training and or employment opportunities, and…be subject to regular drug testing’.
(vi)The Applicant’s ‘interactions, employment, and adherence to his ANCOR conditions’ should be strictly monitored post-release. The Tribunal notes these obligations have now ended.
[122] Exhibit R2, 489-505.
[123] Ibid 499.
In terms of protective factors, the Applicant invoked:
(a)Remorse and developed insight after a prolonged period in custody approaching almost four years.
(b)Continuing support from his immediate family and Ms S.
(c)Re-engagement with his soccer club and prosocial peers, as well as disassociation with negative peers.
(d)A return to fulltime employment.
(e)Attendance on courses to further advance his rehabilitation.
Past rehabilitative efforts, including those initiated by the Applicant’s family,[124] have not resulted in meaningful periods of abstinence or a law-abiding life. The Tribunal considers the Applicant has unmet rehabilitative needs relating to drug and alcohol use, problem-solving, impulsivity, controlling anger, and relationships. The Tribunal accepts the submission by Mr Ower, KC that the Applicant intends to ‘engage in the more serious problem of drug addiction if released’. In accordance with the Direction, however, decisions should not be delayed for rehabilitation to be undertaken.[125] The Applicant’s future rehabilitative intentions are also somewhat aspirational and unformed. The Tribunal’s confidence in him having the strength of conviction to follow through is low given his history and the credibility concerns previously expressed. Any rehabilitative progress he has made in supervised and controlled custodial settings is relatively recent and untested in the community. Residual doubts arise from the persistence of his offending despite past rehabilitative opportunities, and incidents of misconduct. These include aggressive confrontations and ice being found on his mobile telephone after he recovered a package thrown from another yard. This diminishes the persuasiveness of his current claims about developed insight and rehabilitative progress.
[124] Exhibit R1, 57.
[125] The Direction, cl 8.1.2(2)(b)(ii).
The Tribunal considers the Applicant’s recidivism risk varies according to the category of offences as follows:
(a)The Tribunal accepts the submission of Mr Ower KC that the Applicant’s risk of committing a further sexual offence is ‘low to extremely low’ given there has been no repeat since 2004. The Tribunal rejects the Applicant’s claims that he was not offered rehabilitative opportunities after his sexual offending. It is clear he was referred to and undertook some of a Sex Offender Treatment Program, despite initial resistance and erratic reporting. He reportedly gained some benefit.[126] That said, the Tribunal has residual concerns about the Applicant’s uncorroborated claim at the current hearing that the victim told him she was 17, causing him to fall ‘into that trap’. This contradicts the basis on which he was sentenced, came across as an attempt to diminish his culpability, and diminishes the persuasiveness of his claims about insight and rehabilitation. Moreover, sexual crimes against children fall into a category of offending where even a relatively small chance of repeat may be unacceptable because of the ‘profound and deleterious effects’.[127]
(b)The Applicant’s risk of committing further offences involving violence, the threat of violence, or possession of weapons is moderate. He has been convicted of some offences in this category, most of which are not particularly serious and were relatively lightly punished. The totality of his offending, however, coupled with expert references to his impulsivity, and incidents of aggressive or abusive conduct in custody, continue to raise concerns.
(c)The risk of the Applicant committing offences involving drugs, impaired driving, dishonesty, or breaches of conditional liberty is high. This conclusion arises from the persistent and repeat nature of these types of offences and the ‘other conduct’ discussed earlier.
[126] Exhibit R2, 463.
[127] The Direction, cl 8.1.2(1); NRFX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 21, [50] (Rangiah J) citing R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469, [110].

Given the Applicant’s persistent history of offending and other misconduct, the Tribunal gives little weight to his assurances alone about intending to live an abstinent and law-abiding life. The persuasiveness of the protective factors he currently invokes is also diminished by their past failure to assist him in overcoming his addiction and leading a law-abiding life. This includes steadfast support from his family, past periods of work, engagement with sporting / social clubs, rehabilitative opportunities, and a romantic relationship with Ms S during the last six years. Neither his family nor Ms S have been able to effectively monitor or control the Applicant’s drug use or propensity to commit crimes.
The Applicant has considerable unmet rehabilitative needs. Any abstinence from illicit drugs in controlled and supervised environments during the last four years is untested in the community, where he has previously been unable to avoid negative associations, relapse into drug use, and committing crimes.
The very serious nature of the Applicant’s offending and other conduct, risk of repeat across the categories described above, and the harm that may be caused by further reoffending, results in his overall recidivism risk being high and unacceptable. This primary consideration weighs very substantially against revocation.
Family violence committed by the non-citizen
Clause 8.2(1) of the Direction reflects the Australian government’s concerns about conferring on non-citizens who commit acts of family violence the privilege of coming into or staying in Australia. Clause 8.2(2) provides that this consideration is relevant where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
In considering the seriousness of family violence engaged in by a non-citizen, the Direction requires the following factors at cl 8.2(3) to be taken into account where relevant:
a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.
The Applicant stated in his 2019 PCF that an intervention order remained in place relating to Ms S, which she is ‘trying to get…withdrawn because [he] has changed permanently’.[128] A record dated 2018 refers to the Applicant’s violence against Ms S in the following terms:[129]
[128] Exhibit R1, 91.
[129] Ibid 277-278.
BRIEF OVERVIEW
On Friday 21st December, 2018 Police served Barry Lee REID with a Police Interim Intervention Order…for the protection of [Ms S].
PROTECTED PERSON
The protected person in this matter is [Ms S]. She states that she was in a relationship with REID for about 10 months. On Thursday the 20^th December, 2018, the protected person reported that REID had assaulted her after an argument at her home address….
The protected person states that at about 8.30 pm Thursday 20th December 2018, she was at her home address…celebrating some good news with a friend by having a few drinks. She states that she and the defendant got into an argument at the top of their stairs and during the argument the defendant grabbed her once around the throat with his right hand causing shortness of breath and pain in her neck. She states the defendant then shoved her into a wall.
The protected person and the defendant continued to argue causing the protected person to hide from the defendant out of fear. The protected person states that the defendant harmed their dog together by grabbing it hard enough to make it yelp in pain and urinate itself. She then states the defendant wanted to leave the address so she walked him to the back gate.
While they were there the defendant looked straight at the protected person, threw his head back and then head butted the protected person once to the face causing pain in her nose. The defendant then left the address.
The protected person did not give the defendant any permission to assault her.
The protected person states she is in fear of the defendant and believes she will continue to be at risk of acts of violence by the defendant.
POLICE
At about 9.50 pm on Thursday 20th December 2018 Police [name redacted] was conducting station duties at Elizabeth Police Station when the protected person presented to her to report the defendant for assaulting her. She provided a signed statement to Police and the defendant was flagged as wanted in relation to this occurrence.
…
At about 2.49 am Police served the defendant with a Police Interim Intervention Order…The defendant stated he understood all of the conditions of the Intervention Order.
Ms S has since retracted the claims on which this intervention order is based. She blames herself for this incident because of intoxication and claims she was the one who was violent. The Tribunal notes a record in evidence, however, where Ms S is recorded as telling police she wanted the conditions of the order modified to enable contact, but nevertheless wanted to maintain a condition preventing the Applicant from being within 100m of her premises and work.[130] This is difficult to reconcile with her oral evidence before the Tribunal.
[130] Exhibit R2, 414.
Given the Applicant’s denials, Ms S’s retraction of the claims on which the intervention order is based, and the absence of any charges or convictions, there is an insufficient basis to make a reliable finding that family violence occurred within the meaning of the Direction. This primary consideration is therefore not enlivened and carries neutral weight.
Best interests of minor children in Australia affected by the decision
The Applicant has no biological children. In his revocation submissions dated October 2019, he did not meaningfully advance the interests of any children.[131] There is passing reference to a ‘cousin’[132] and it was the Tribunal that raised this with the Applicant. His responses about this child were general at best. He initially claimed the child was 12 or 13 years of age, but in other documentary evidence it is stated the child was born in early 2007, which means he is 16 years old and approaching adulthood.[133] Mr Ower KC stated during closing submissions that the Applicant only pressed the relationship with this child ‘faintly’ and confirmed there is no independent corroboration to support the Applicant’s claims from the child or his parents.
[131] Exhibit R1, 85-86.
[132] Ibid 88.
[133] Ibid 87.
During his oral evidence the Applicant also stated that one of his younger brothers is in a relationship with a woman who has children from a previous relationship. He made no claims about having any relationship with these children, who he did not name.
In the absence of any supporting evidence, the interests of the Applicant’s brother’s stepchildren are not enlivened and carry no weight. Notwithstanding a paucity of evidence about a minor ‘cousin’, the Tribunal is prepared to accept the Applicant has a relationship with this child, who falls within the meaning of the Direction. Revocation is in the best interests of the child. Having regard for the very limited evidence, however, including that the child has parents who care for him, is approaching adulthood, and contact with the Applicant is intermittent at best, this primary consideration only carries very slight weight in favour of revocation.
Expectations of the Australian community
Clause 8.4(1) of the Direction provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that 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.
Clause 8.4(2) of the Direction states that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect the person should not be granted or continue to hold a visa. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:
(a) acts of family violence;
(b) …;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature…;
(d) …;
...
Clause 8.4(3) provides that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. As per cl 8.4(4), this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in a particular case.
Clause 8.4(4) of the Direction correlates with the reasoning of the Full Court of the Australian Federal Court (“FCAFC”) in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (“FYBR”). Notwithstanding the different pathways in judicial reasoning, the plurality in FYBR held that Expectations of the Australian community is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[134]
[134] FYBRv Minister for Home Affairs (2019) 272 FCR 454, at 471–2 [66] (FYBR) (Charlesworth J), and 476 [91] (Stewart J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[135]
[135] Ibid at 473 [75]–[76] (Charlesworth J).
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[136]
[136]FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 056.
The Applicant’s representations cite past authority that impermissibly invites the Tribunal to ‘guess at the community’s expectations’ and determine ‘whether the Australian community is prepared to give the person another opportunity to remain in Australia…on the basis of the individual circumstances of each case…’.[137] The Tribunal declines to do so.
[137] ASFIC, 13-14 [71]-[72].
The Respondent accepts that because of the time the Applicant has spent in Australia, ‘a higher degree of tolerance would be afforded to him’. It is submitted, however, that the prolonged nature of his offending and recidivism risk is such that the Australian community would expect he should not hold an Australian visa:[138]
‘However, the Applicant has engaged in serious conduct, and the applicant was warned in September 2006 that a fresh assessment would be made with a view to considering the cancellation of the Applicant’s visa if he was convicted of any further offences. Since then he has committed multiple offences (see [16]-[46] above), and the Australian community’s expectation that the applicant’s visa should be cancelled, given the serious character concerns that his criminal record raise about the applicant, would be reinforced by the applicant’s failure to pay any heed to that warning.’
[138] RSFIC 17 [60]-[62].
Contrary to the Applicant’s submission that cl 8.4(2) of the Direction ‘has no application’ regarding his conviction for Unlawful sexual intercourse in 2005,[139] this crime raises serious character concerns within the meaning of cl 8.4(2)(c) of the Direction. The Applicant has also persistently breached the community’s expectation that non-citizens obey Australian laws. Having regard for the norm stipulated at cl 8.4(1) of the Direction and the guidance provided by the principles at cls 5.2 of the Direction, the Australian community would strongly expect he should not hold a visa. This primary consideration weighs substantially against revocation.
[139] ASFIC, 10 [77].
OTHER CONSIDERATIONS
In determining the existence of ‘another reason’ under s 501CA(4) of the Act, the Tribunal must consider a list of other considerations at cl 9 of the Direction, which is non-exhaustive. This includes regard for the consequences resulting from a non-revocation decision.[140]
[140] Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, [61].
International non-refoulement obligations
The Applicant did not make any non-refoulement claims and none can be discerned from the evidence. This consideration is not enlivened and carries neutral weight.
Extent of impediments if removed
Clause 9.2(1) of the Direction provides:
(1) Decision-makers must 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 relatively young. He settled permanently in Australia when he was 12 and has therefore lived here throughout his teenage years and all his adult life. There are no discernible language or cultural impediments disclosed by the evidence.
There are references in evidence to the Applicant using an inhaler for asthma and suffering cellulitis requiring periods of hospitalisation and intravenous antibiotics, but otherwise being in ‘good’ physical health.[141] There are also references to him suffering depression and anxiety since the age of 14, originating from bullying at school, for which he saw a psychologist. There is expert evidence that the Applicant suffered PTSD following an assault in October 2016, which subsequently resolved and did not require further treatment.[142] He also reports having some ‘sessions with a psychologist [regarding] his mental health and drug use’.[143] The Applicant stated in documentary evidence that he was taking medication for anxiety prior to being incarcerated in 2019.[144] In his oral evidence he referred to being prescribed Setraline and Olanzapine for anxiety and depression. No evidence was submitted that the Applicant could not access treatment in the United Kingdom for any current or emerging physical or psychological ailment.
[141] Exhibit R1, 58; 316 [2.4].
[142] Ibid 332.
[143] Ibid 58; 316-317; 335.
[144] Ibid 92.
The Applicant has no family or friends in the United Kingdom except for an ’80 year old grandmother’ who is unable to support him. He also states he is ‘unfamiliar with the country’ or how to establish himself there.[145] Ms S has previously stated she was willing to relocate to the United Kingdom with the Applicant if returned.[146] This is also reflected in custodial records, where the Applicant stated Ms S would be ‘willing to move to Scotland where…they will make a new life’.[147] In an email dated 13 January 2023, however, Ms S stated:
To whom may concern,
I wish to inform that due to a change in circumstances over the last 3 years with my health, which I’m currently still going through tests for [condition redacted] and other health issues under multiple specialists, I’m would not be able or willing to move to Scotland if Barry's visa wasn’t revoked.
We are still very much still in a relationship but my health circumstances have changed.
(Errors in original)
[145] Ibid 78.
[146] ASFIC, 11 [84].
[147] Exhibit R1 267.
Ms S confirmed in her oral evidence she will not accompany the Applicant to the United Kingdom if he is removed, irrespective of the test results she is expecting in late March 2023. She stated their relationship will end if he is removed.
The Applicant’s employment history in Australia is intermittent and he referred during the hearing to being reliant on unemployment benefits for approximately six years of his stay in Australia. The vocational and self-development courses he has undertaken in the past, coupled with work experience, most recently as a concreter, may assist him if removed. The Applicant referred to opportunities in Australia being better for him, which is why his family initially migrated here. The requirement under the Direction, however, is to consider an applicant’s ability to establish themselves and maintain basic living standards ‘in the context of what is generally available to other citizens of that country,’ rather than by comparison with Australia. There is no evidence that if required, the Applicant would not have the same entitlement to income, housing, or other support available to all citizens of the United Kingdom who satisfy required prerequisites.
There would likely be a period of adaptation to life in the United Kingdom if the Applicant was removed, including because of the length of his residence in Australia, criminal history, persistent drug addiction, time spent in custody since 2019, separation from his family and perhaps the end of his relationship with Ms S, and limited if any emotional or practical support in the United Kingdom.
The Tribunal accepts that after living in Australia for so long, the Applicant will be confronted by hardship and adjustment challenges if returned. These are not insurmountable and the Tribunal finds this consideration weighs moderately at best in favour of revocation.
Impact on victims
Clause 9.3 (1) of the Direction states:
Decision-makers must 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.
There is no direct evidence from a victim of the Applicant’s offending, or the family member of a victim, about the impact of a non-revocation decision. This consideration is therefore not enlivened and carries neutral weight.
Links to the Australian community
Clause 9.4 provides that a decision-maker must have regard to cls 9.4.1 to 9.4.2 of the Direction, which includes consideration of the strength, nature, and duration of any ties the non-citizen has to the Australian community and the impact on Australian business interests if the non-citizen is not allowed to remain in Australia. In terms of the latter, there is no evidence Australian business interests are enlivened within the meaning of the Direction. This consideration therefore carries neutral weight.
The strength, nature, and duration of ties to Australia

Clause 9.4.1 of the Direction provides:
(1)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.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
(a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has lived permanently in Australia since the age of 12, which is for approximately 25 years and all his adult life. His circumstances are such that he would be afforded a higher level of tolerance by the community.
The Applicant refers to periodic work for approximately seven years between 2006 and his arrest in 2019.[148] In his oral evidence he also referred to being reliant on Centrelink benefits for approximately six years of his stay in Australia. The Tribunal accepts he may have paid some taxes. He also refers to volunteering as a children’s soccer coach, although there is no corroboration of this from the club he names. Some supportive letters refer generally to him playing soccer or being ‘around the Soccer Club’.[149]
[148] Ibid 91.
[149] Ibid 95.
The Applicant’s closest family relationships in Australia are with his parents, siblings, and grandmother. He claims they would be ‘heartbroken and in a state of long-term grief’ if he is removed.[150] The Tribunal has considered:
(a)A letter from the Applicant’s parents referring to the support he can count on from family and friends, attesting to his ‘good character and good morals’, and highlighting a lack of support in Scotland.[151]
(b)Letters from the Applicant’s grandparents, referring to family efforts to assist him, past relapses, and more recent efforts to improve his situation through work and a new relationship.[152]
(c)A letter from one of his brothers about the stress caused to their parents and how difficult it would be for the family emotionally if the Applicant was deported.[153]
(d)A letter from his other brother is in similar terms and refers to the ‘strong network’ the Applicant has around him.[154]
[150] Ibid 89.
[151] Ibid 119.
[152] Ibid 112; 115; 117.
[153] Ibid 108.
[154] Ibid 109.
The Applicant refers in his revocation claims to Ms S and their plans to marry at the end of 2019.[155] They are yet to marry, and Ms S stated in her oral evidence there is ‘nothing definite yet’. The Applicant stated they still aspire to marry, buy a home, and have children. The Applicant said Ms S would be ‘devastated’ in the event of an adverse decision. The Tribunal has considered Ms S’s documentary and oral evidence about the impact on her if the Applicant is removed. It is accepted their relationship would likely end if this occurred, which would have a serious emotional impact on her.
[155] Ibid 84.
The Tribunal has considered several letters in evidence, many of which do not have contact details for the authors,[156] or only generally refer to the Applicant’s past drug issues and offending. Most letters are brief, common in content, and refer to associations with the Applicant’s family generally, or come across as overstated or inconsistent with more persuasive facts. One letter, for example, refers to the Applicant as a ‘victim of the society we live in’.[157] Another, states that in the months before he was imprisoned in 2019, he ‘massively turned his life around, got clean from drugs, met a lady partner, and moved in together’.[158] This relationship instead commenced in 2017. A letter from an uncle refers to the Applicant going through a ‘troublesome period some time ago as a lot of people do growing up’.[159] Two authors state the Applicant ‘went off the rails’[160] for a few years, significantly understating his past. A work reference refers to the Applicant as a ‘vital part of our team and…a leader to the younger labourers’.[161] This letter does not disclose knowledge of the Applicant’s continued use of ice while holding this job.
[156] Ibid 95; 97; 98; 99; 101; 102; 104; 105; 107; 110; 113; 116; 118.
[157] Ibid 101.
[158] Ibid 104.
[159] Ibid 116.
[160] Ibid 106-107.
[161] Ibid 103.
On balance, however, the Applicant’s closest familial and friendship networks are in Australia after residing here for over 20 years. His family clearly love him and have provided steadfast support. It is accepted a non-revocation decision would cause them and Ms S significant emotional distress. His friendship group would also likely experience disappointment. This consideration weighs very substantially in favour of revocation.
Additional considerations
No additional considerations were advanced by the parties; and the Tribunal has not identified any others under the non-exhaustive list at cl 9(1) of the Direction.
CONCLUSION
The Applicant does not pass the character test. The Tribunal sees no reason on current facts to depart from the guidance in the Direction that greater weight ‘should generally be given’ to primary considerations than other considerations.
The Applicant has committed numerous crimes in Australia and has been unable or unwilling to meaningfully alter the course of his life. There is an unacceptably high risk he will reoffend, which should not have to be borne by the Australian community, who would expect he should not hold a visa.
The Tribunal accepts the Applicant would be confronted by impediments and a period of re-adaptation if removed, which are not insurmountable. It is also accepted he has made some limited positive contribution in Australia and that his closest relationships are here. His family, Ms S, and friends would be adversely affected by a non-revocation decision.
Having weighed the relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because the primary considerations Protection of the Australian community, and Expectations of the Australian community, considerably outweigh the combined weight to be given to the primary consideration Best interests of minor children and the other countervailing considerations.
DECISION
It follows that the Tribunal affirms the decision under review.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the written reasons for the decision of Senior Member A. Nikolic AM CSC

...............[sgnd]......................................................
Associate
Dated: 3 February 2023

Date of hearing: 23 and 24 January 2023

Advocate for the Applicant:

Solicitors for the Applicant:

Mr Simon Ower, KC

Scammel and Co Solicitors

Advocate for the Respondent:

Solicitors for the Respondent:

Ms Julia Davey

Australian Government Solicitor