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

Ripley and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3250 (7 September 2022)
Division:GENERAL DIVISION
File Number(s):2022/5222
Re:Steven Ripley
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Mr S Evans, Member

Date:7 September 2022
Date of written reasons: 10 October 2022
Place:Sydney

The Tribunal decides that the decision under review, being the decision of a delegate of the Minister dated 18 May 2022 not to revoke the mandatory cancellation of the Applicant’s visa is affirmed.
................................[Sgd]........................................
Mr S Evans, Member
Catchwords
MIGRATION – visa cancellation under subsection 501(3A) of the Migration Act 1958 (Cth) – cancellation not revoked under subsection 501CA(4) – where the applicant has a substantial criminal record – where the applicant does not pass the character test – issue: is there another reason why the visa cancellation should be revoked – where the Applicant appears having taken drugs on the day of hearing – where drugs are available in immigration detention - family violence – links to the Australian community – impediments to removal – Direction no. 90 considered.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Suleiman and Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2015] HCA 15
Secondary Materials
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Mr S Evans, Member
10 October 2022

Steven Ripley (the Applicant) seeks review of a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (the visa) pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act).
For the reasons which follow, the reviewable decision was affirmed on 7 September 2022.
Introduction
The Applicant is a 30 year-old citizen of New Zealand who immigrated to Australia in 1994 aged 2.[1]
[1] G8/63
On 18 August 2020 the Applicant was sentenced to a term of two years imprisonment in the Local Court of Muswellbrook having been convicted of Contravene prohibition/restriction in AVO (Domestic), Possession of prohibited drug, Destroy or damage property (DV) and Assault occasioning actual bodily harm (DV).[2] The Applicant subsequently appealed the sentence which was confirmed by the Newcastle District Court on 12 October 2020.[3]
[2] G3/32-33
[3] G3/31-32
On 22 April 2021 the Applicant was issued with a notice that his visa had been cancelled[4] under subsection 501(3A) of the Act (the mandatory cancellation decision) as he did not pass the character test owing to having a substantial criminal record within the meaning of subsection 501(6)(a). Subsection 501(7)(c) provides a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.
[4] G23/155
On 22 April 2021 the Applicant made representations seeking revocation of the mandatory cancellation decision within the period and in the manner set out in the regulations as required under subsection 501CA(4)(a) of the Act.[5]
[5] G8/61-64
On 15 June 2022 a delegate of the Minister decided under subsection 501CA(4) of the Act not to revoke the mandatory cancellation of the visa (the non-revocation decision).[6] The Applicant was informed of the decision on 15 June 2022[7] and on 23 June 2022 the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the non-revocation decision.[8]
[6] G2/9
[7] G2/9
[8] G1/3
Issue to be determined
The issue for the Tribunal to consider is whether to revoke the original decision to cancel the Applicant’s visa pursuant to subsection 501CA(4) of the Act.
The Tribunal may revoke the original decision if the Tribunal is satisfied:
(a)that the Applicant passes the character test; or
(b)that there is another reason why the original decision should be revoked.
Both parties are in agreement that the Applicant does not pass the character test defined in section 501. As the Applicant was sentenced to 24 months imprisonment on 18 August 2020 I am satisfied he does not pass the character test owing to the operation of subsection 501(7)(c).
As he does not pass the character test, the sole issue for determination is whether the Tribunal can be satisfied that there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked.
Relevant law and Ministerial direction no. 90
Section 501CA of the Act applies where the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the ‘character test’.
Subsection 501(6)(a) of the Act provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Subsection 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Subsection 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 90).
Paragraph 5.2 of Direction 90 provides principles which I have considered when reviewing the Applicant’s application. It relevantly provides:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on 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.
Part 2 of the Direction identifies the considerations the Tribunal must have regard to when determining whether to exercise the discretion to revoke the mandatory cancellation of a visa. The primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be considered secondary considerations as in certain circumstances other considerations may outweigh primary considerations.[9]
[9] Suleiman and Minister for Immigration and Border Protection [2018] FCA 594, [23] per Colvin J
The primary considerations in the Direction are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)family violence committed by the non-citizen;
(3)best interests of minor children in Australia affected by the decision; and
(4)expectations of the Australian Community.
The other considerations set out in Direction 90 which must be taken into account where relevant include but are not limited to:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community.
Evidence
Hearing
The matter was heard over two days and the Applicant, who was self-represented, gave evidence under affirmation. In this matter, the Applicant’s offending was, by his own evidence, strongly linked to his use of illegal drugs, in particular methamphetamine or ‘ice’.
Subject to the rules of procedural fairness, the Tribunal is entitled to inform itself on any matter it thinks appropriate.[10] After the representative for the Respondent had completed cross-examination of the Applicant, I asked him about his family, mental health, offending and history of substance abuse. An excerpt of the transcript follows:
[10] Uelese v Minister for Immigration and Border Protection [2015] HCA 15, [102] per Nettle J
MEMBER: Can you tell me, when did you first start using drugs?
MR RIPLEY: ‑‑‑Around 13.
MEMBER: When did you first start using meth?‑‑‑
MR RIPLEY: Around 18.
MEMBER: Then have you ever - you’ve never been in rehabilitation? No one has ever sought to assist you in stopping or ceasing using drugs, is that the case?‑‑‑
MR RIPLEY: Yes.
MEMBER: When did you last use drugs?
MR RIPLEY: Today.
MEMBER: What did you use today?
MR RIPLEY: Meth, twice.[11]
[11] Transcript of the proceedings dated 24 August 2022, 39
The Tribunal adjourned to consider how to proceed given the Applicant’s use of drugs prior to the hearing. When the hearing resumed, the Respondent’s representative observed that there was no medical evidence before the Tribunal to support how the Applicant might be impaired as a result of his drug use. She also noted that the Applicant ‘had been providing cogent and comprehensive answers’ to questions and was able to present arguments in support of his claims.
Whilst accepting the accuracy of the Respondent’s submissions, I suggested to the Applicant that it may be preferable to adjourn proceedings and resume the hearing the following day:
MEMBER: I’m concerned about procedural fairness and Mr Ripley - sorry, Mr Ripley, we’re having a conversation about you with you present. Essentially because you’ve told me that you’ve used Ice this morning I’m just a bit concerned that you’re not going to be in the best possible position to provide reliable evidence and to represent yourself. So I’m wondering if it might be in everyone’s interest for us to reconvene tomorrow and perhaps we can do that. Do you want to just explain to me how your drug use today would affect you and how long it would take for that effect to wear off?
MR RIPLEY: Not long. I won’t use for the rest of today. I’ll just come tomorrow sober. How does that sound? Would that be better?
MEMBER: It sounds better to me and the reason I say that is because obviously this is an important hearing for you, it’s an important decision for you. I don’t think it would be appropriate or fair for you to continue through today having told me that you were under the influence of drugs. You know, I’m not a doctor obviously but I do know that meth can affect your thinking and make it, you know, affect your ability to reason and that sort of thing. So I’d prefer that I had an opportunity to hear your evidence without the effect of any drugs. Now, if you’re saying that if you - if we finish today and then we resume tomorrow that you’d be in a better state and the drugs wouldn’t affect you, then I think that that might be a better option. What do you say to that?
MR RIPLEY: I will agree with you.
MEMBER: If we were to finish up today and then pick up tomorrow, you could appear sober and - - -
MR RIPLEY: Yes. [12]
[12] Transcript of the proceedings dated 24 August 2022, 41-42
Having heard from the parties the Tribunal adjourned. When the matter resumed the next day the Applicant confirmed that he was sober, was able to recall the previous day’s evidence and was content to proceed.[13] As the Applicant was self-represented and in order ensure he had an opportunity to present his evidence without influence of drugs, he was taken again through the evidence raised in the first day of hearing.
[13] Transcript of the proceedings dated 24 August 2022, 46-47
It is appropriate to observe that I found the Applicant to be an honest witness and his evidence was consistent on both days on which the matter was heard. I am satisfied that the Applicant’s evidence was reliable.
The Applicant’s evidence
In his application to the Tribunal the Applicant writes that having arrived in Australia as a 2 year-old, he feels Australia has been home his entire life. He states that he accepts ‘full responsibility’ for his offending, is remorseful for his actions and has changed. He writes that he loves his mother, Rose Ripley, who resides in Australia along with the other members of his immediate family.[14]
[14] G1/6
In a sworn statement dated 26 October 2021 the Applicant writes he has abused drugs and alcohol in the past and this led to ‘poor choices’ on his part. He accepts that addiction has been ‘an obstacle to his rehabilitation’.[15] In his oral evidence to the Tribunal the Applicant conceded he has a pattern of aggressive and violent behaviour towards women and has failed on occasion to comply with court orders.[16]
[15] G10/82
[16] Transcript of the proceedings dated 25 August 2022, 51-52
The Applicant does not have a relationship with his father, who resides in Australia but has been absent throughout his life.[17] He was raised by his mother and has two older sisters and a younger sister in Australia, and two brothers who reside in New Zealand.[18]
[17] G10/181
[18] G9/74, see also Transcript of the proceedings dated 25 August 2022, 60, 69
The Applicant had a difficult childhood which he described as ‘tough’. He grew up in a ‘solo parent’ household and has experienced ‘family troubles, domestic violence, sexual abuse, some forms of poverty…psychological abuse…’ which influenced him.[19]
[19] G9/95
In his October 2021 statement the Applicant writes of the passing of two of his brothers. His brother Edward died from a heart attack approximately 11 years ago and his brother ‘Roddy’ committed suicide in 2015.[20] The Applicant and Roddy were living together in a hostel when he died. The Applicant writes in part:
I have had two brothers who have died in my lifetime. Both deaths have been extremely traumatic for me because they were the brothers that I had a close connection to.
…
From these deaths I have felt great loss and fell into depression. I began getting paranoid about things that weren’t actually happening. My partner at the time, LC, told me that I needed to see a doctor because I was deteriorating mentally and she could see it happening. So I went to see a doctor who diagnosed me with schizophrenia with paranoia. [21]
[20] G10/84
[21] G10/83-84
In a statement Rose Ripley writes that he became ‘very sad and depressed’ following the death of Roddy, who he loved and was very close to.[22] The Applicant also shared a close bond with Edward, who was 14 years his senior and the Applicant looked up to. Edward tried to help keep the Applicant away from offending and the Applicant writes that his passing made his heart sink.[23]
[22] G14/129
[23] G10/84
The Applicant has a consistent adult work history. Since 2009 he has held various positions including as a labourer and working in warehousing.[24] The Applicant has an offer of employment at Buildforce Solutions as a labourer. Company director Janusz Piec has written confirming an open offer of full-time employment should the Applicant be released back into the community. The Applicant also plans to further his study and to obtain a forklift licence.[25]
[24] G9/76
[25] Transcript of the proceedings dated 25 August 2022, 69
Should he remain in Sydney the Applicant has friends he can stay with in the short-term. Failing that he is prepared to seek emergency accommodation. However, his intention is to care for his mother, who is currently living in Melbourne. She and the Applicant maintain close contact by telephone. It is the Applicant’s preference that she relocate from Melbourne to Sydney, but he would be prepared to move to Melbourne so that he can care for her.[26]
[26] Transcript of the proceedings dated 25 August 2022, 66
Whilst being held in immigration detention the Applicant has established a relationship with another detainee, who I will refer to as Ms K. In oral evidence the Applicant has indicated that his mother has expressed her disapproval at him entering into a relationship whilst in immigration detention. The Applicant gave evidence that he and Ms K had been speaking since 17 June 2022. He acknowledged that the offending which had ultimately led to his visa being cancelled was ‘because of relationship problems with women’ and observed he was now ‘getting attached or close to another woman, so it’s like a little bit dangerous for me’.[27]
[27] Transcript of the proceedings dated 24 August 2022, 23
Mental health and reform
In his request for revocation dated 22 April 2021 the Applicant writes he was diagnosed at Concord Mental Hospital with schizophrenia – schizoaffective disorder ‘a few years ago’ and had consistently sought treatment since.[28] He gave oral evidence at the hearing that since diagnosis he had received monthly injections of medication to treat the condition. In a submission dated September 2021 he writes that he was feeling well and during the hearing he confirmed his mental health condition remained stable.[29]
[28] G9/77
[29] G11/89
The seriousness of his condition is indicated by a medical report dated September 2017. The report records the Applicant’s admission ‘to the Concord Mental Health Unit in March 2017 following a domestic violent [sic] situation with his ex-partner’ and ‘subsequently suffering an exacerbation of psychotic symptoms of experiencing commanding auditory hallucinations complying [sic] him to jump in front of a moving motor vehicle and paranoid ideation’.[30]
[30] SG1/87

A subsequent report dated 28 March 2018 by Psychiatry Registrar Dr Jenny Young of the Hunter Valley Community Mental Health Team questions if the Applicant’s diagnosis was drug induced psychosis or schizophrenia and concludes that the former was more likely.[31]
Character references
[31] SG1/86
Matthew Knight
Matthew Knight has known the Applicant since June 2018 having met him when they were working together. He rented a room to the Applicant and they became friends. He is aware of the Applicant’s criminal offending but considers him to be an ethical person who has made ‘poor choices’ ‘revolving around an extremely toxic romantic relationship’.[32]
[32] G18/141
Rose Ripley – the Applicant’s mother
Rose Ripley has provided a statutory declaration written with the aid of a legal practitioner dated 4 November 2021 in which she states she has early onset dementia.[33] The Applicant’s father is an Australian citizen and Rose Ripley travelled regularly between New Zealand and Australia until settling permanently in Australia in 1994. It was on a return visit to New Zealand that the Applicant was born.
[33] G14/128-131
She writes that the Applicant’s father did not wish to have a relationship with the Applicant and that the Applicant suffered as a consequence. The Applicant would often ask after his father which she describes as ‘heartbreaking’.
Rose Ripley recalls the Applicant’s upbringing was difficult on account of ‘poverty, homelessness and some violence in the family’. She was a single mother working hard and living in her mother’s home. When her children made any noise, it would begin a series of arguments in the house between Rose Ripley and the Applicant’s grandmother, and consequently the Applicant was exposed to aggression and sometimes violence whilst growing up.
When the Applicant was approximately 5 years of age Rose Ripley and three of her children including the Applicant were staying in a homeless shelter. When the Applicant was aged 10 he was diagnosed with ADHD.
Rose Ripley writes that the Applicant had friends at school who were bad influences, but she has not witnessed the Applicant use drugs, though she has seen him consume alcohol. She confirms that the Applicant has never been violent towards her.
Isabella Ripley – the Applicant’s sister
The Applicant’s sister Isabella Ripley notes in correspondence dated 2 December 2021 ‘the recent and significant positive development of [the Applicant’s] character since incarceration’. She writes that the Applicant held a part time job whilst in prison and sought activities and programs to improve his mental health. Whilst aware of his issues and offending, Ms Ripley believes the impact his difficult upbringing may have been a defining factor ‘in his character and learned traits’.[34]
[34] G17/139
Discussion
I now turn to considering the primary considerations set out in Direction 90.
Primary consideration 1 – protection of the australian community from criminal or other serious conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. When considering the protection of the Australian community, Direction 90 requires decision-makers to have regard to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
The Applicant’s offending is set out in a National Criminal Intelligence Commission check results report dated 17 June 2021. His extensive criminal record commenced when he was 17 years old. His most his most significant offending is set out below in reverse chronological order.
On 12 October 2020 the Newcastle District Court confirmed a sentence handed down by the Muswellbrook Local Court on 18 August 2020 of 24 months imprisonment for Assault occasioning actual bodily harm, Possessing prohibited drug, Contravene prohibition/restriction in AVO and Destroy or damage property (DV).[35]
[35] G3/32
On 16 April 2020 the Applicant was sentenced in the Newcastle Local Court for Contravene prohibition/restriction in AVO (domestic) and sentenced to 9 months imprisonment with a non-parole period of 3 months.[36]
[36] G3/33
The Applicant had previously appeared in the Newcastle Local Court on 10 December 2019 where he was sentenced to 10 months imprisonment with 6 months non parole for offences including Common assault (DV) and contravene prohibition/restriction in AVO (domestic) and goods suspected stolen given to other not entitled.[37]
[37] G3/32-33
On 26 August 2019 the Applicant appeared at the Toronto Local Court where he was given a 2 year Community Corrections Order (CCO) for offences including Contravene prohibition/restriction in AVO, Common Assault, Furnish false information/statement to licensee and Goods suspected being stolen given other not entitled.[38]
[38] G3/34-35
On 14 February 2019 the Applicant was disqualified from driving for 3 months and fined $300 having been convicted of Drive vehicle, illicit drug present in blood etc.[39]
[39] G3/35
On 12 April 2017, the Applicant was charged with common assault and stalk/intimidate, but both charges were dismissed without proceeding to conviction by Magistrate Robinson on the condition the Applicant follow a treatment plan for mental illness for 6 months.[40]
[40] G6/55
On 11 March 2016 the Applicant was convicted of Contravene prohibition/restriction in AVO (Domestic).[41]
[41] G3/35
On 11 May 2015 the Applicant was sentenced to 8 months imprisonment and fined $1500 for Destroy or damage property (DV), Affray and Possess prohibited drug.[42]
[42] G3/35
On 25 June 2014 the Applicant was sentenced by the Burwood Local Court for common assault, Contravene Prohibition/restriction in AVO and sentenced to 3 months and 17 days imprisonment.[43]
[43] G3/35
On 22 August 2013 the Applicant was sentenced to 7 months imprisonment for Use carriage service to menace/harass/offence, Contravene prohibition/restriction in AVO (domestic), Stalk/intimidate intend fear physical harm (domestic) and sentenced to 7 months imprisonment.[44]
[44] G3/35-36
On 15 March 2012 the Applicant was convicted of Use carriage service to menace/harass/offence and Contravene prohibition/restriction in AVO (domestic) for which he was convicted and released upon entering a 3 year good behaviour bond.[45] On 29 August 2011 he was sentenced to 3 months imprisonment in lieu for Fail to appear in accordance with bail undertaking, Assault occasioning actual bodily hear (DV) and 2 offences of Stalk/intimidate intend fear of physical mental harm.[46]
[45] G3/36
[46] G3/36-37
On 14 June 2011 he appeared at the Kogarah Local Court where he was sentenced to 6 months imprisonment for Fail to appear in accordance with bail undertaking, Assault occasioning actual bodily harm (DV) and two offences of Stalk/intimidate fear of physical/mental harm.[47]
[47] G3/37-38
On 26 May 2011 the Applicant was sentenced to a month imprisonment for Stalk/intimidate intend fear of physical/mental harm (2 offences), Common assault and Destroy or damage property.[48]
[48] G3/38
The Applicant appeared in Burwood Local Court on 8 October 2010 where he was sentenced to 2 years supervised probation services and was recruited to accept probation service for as long as necessary and to obey reasonable directions for counselling and drug and alcohol rehabilitation for Destroy or damage property >$2000, and was convicted and sentenced to 80 hours community service order for Stalk/intimidate intend fear of physical/mental harm.[49]
[49] G3/38
The Applicant has also been convicted of offences in 2009, 2010, 2011, 2012, 2013 and 2014 which do not appear in the National Criminal Intelligence Commission check results. Notably he was sentenced to 7 months imprisonment on 26 April 2013 for Common Assault, Stalk/intimidate intend fear physical harm. On 9 March 2014 the Applicant was sentenced to 3 months imprisonment for Common assault, Contravene prohibition/restriction in AVO, Stalk/Intimidate intend fear physical harm.
On 28 December 2014 he was sentenced to a term of 8 months imprisonment in the Sutherland Local Court for Destroy or damage property, Affray and Possess prohibited drug.
In sentencing the Applicant on 18 August 2020 in the Muswellbrook Local Court Magistrate Donnelly observed that the sentences he had received up until that time had been unsuccessful in rehabilitating him. He stated in part:
The defendant is before the Court for four offences committed on 30 July 2020. The first charge is contravene an AVO; the second charge is destroy damage property; the third charge is an assault occasioning actual bodily harm and a fourth charge is possess prohibited drug. The defendant presents as a person who has had several sentences in courts in the last two years. It can be safely concluded that none of these sentences have had a rehabilitative effect on him, at least prior to this offending. The orders today will be designed to at least denounce his conduct and hopefully set him on a path for rehabilitation.
This is a very troubling case because the manner that the defendant acted was in disregard to the fact that he was on parole. He was subject to an apprehended violence order. He had committed offences on the victim before. She had come to a court of law for protection. She had obtained an AVO for her protection but notwithstanding all that, this incident occurred and it is a vicious attack on someone who was weaker than him, probably smaller than him. It was an attack, as I said, committed in breach of an AVO in the presence of children whilst he was on parole, in the home of the victim. The assault involved closed fist punches to the head with a severe injury to the left eye of the victim and she was rendered unconscious for a period.
She has been subjected to assaults by the defendant before. He is entitled to a 25% discount on the basis of the five Judge Bench decision in relation to guilty pleas. He does present as a person with mental health issues. That means general deterrence as a principle will be moderated, but this is a case where personal deterrence is important, and if he suffers from these conditions he has become a danger to the victim and a danger to the community and that is something which the Court has to have regard to.
The issue of community protection, as Hunt J has made clear, in several decisions in the 90’s, is a paramount sentencing consideration. It is the case that this sentence today is designed to denounce the offender’s conduct, make him accountable for what he did, uphold court orders like AVOs, which are there for a reason. He would have been warned repeatedly about this.[50]
[50] G4/45-46
Magistrate Donnelly also detailed the impact of the Applicant’s offending and noted his drug use at the time was not considered a mitigating factor:
The fact that he might have been on ice at the time is not a factor which mitigates the crime and that is by virtue of s 21A(5A) of the Crime (Sentencing Procedure) Act. It is just not something he can rely upon. The fact is not only did he attack the victim in this vicious way; he also pulled off the screen door. The children in that house will probably remember what happened for some time to come. The research is clear. Offences committed in the presence of children in a domestic context can have lasting impact on children, and I refer particularly to information released by the Bar Association of New South Wales which collects research into the impact of domestic abuse on children.[51]
[51] G4/46
In sentencing the Applicant on 12 April 2017 Magistrate Robinson detailed the threats the Applicant had made to his then girlfriend and observed the Applicant had a history of not complying with court orders:
The threats to harm included threats to kill not only his former girlfriend but her sister, who was a witness to the incident, and also his former girlfriend's baby. The common assault involved him throwing his girlfriend onto the bed. The history of the accused shows that he has been before the Court on numerous occasions in the past for matters involving domestic violence. On some of those occasions he has received terms of imprisonment which is a clear indication that the matters before the Court were serious. He has also shown a prevalence to not comply with court-imposed orders given that he has been called up re-sentenced on a number of occasions.[52]
[52] G6/53
Magistrate Robinson acknowledged the Applicant’s mental illness as a factor in his offending and proceeded to deal with the matter pursuant to section 32 of the Mental Health (Forensic Provisions) Act.[53]
[53] G6/54
Previous warning
On 22 February 2017 the Department of Home Affairs (the Department) notified the Applicant that he may be liable to have his visa cancelled under s501 on character grounds. Having made submissions to the Department,[54] the Applicant was sent notice via his sister Ria Andrews on 8 August 2018 that the Department had decided not to cancel his visa under section 501. However, the notice stated that ‘visa cancellation may be reconsidered if you commit any further offence or otherwise breach the character test in the future’ and cautioned that ‘[d]isregard of this warning will weigh heavily against you if your case is reconsidered’.[55]
[54] Transcript of the proceedings dated 25 August 2022, 55
[55] G21/148
When asked about the 2017 warning, the Applicant gave evidence that he was staying with his sister at that time and she dealt with the warning and made representations to the Department on his behalf. He was not entirely aware of the meaning of the warning but recalled being told by his sister that it was ‘serious’.[56] He told the Tribunal:
Like, I was smoking a lot of weed at the time. I was staying with my sister. Me and her partner, we were using cannabis. I was working I think. I was working, earning about - you know, over a grand ever week. Doing lots of overtime and, you know, about 12 hour days, Monday to Saturday. Not Saturday but Monday to Friday. And then Saturday as well. So I was earning good money, I was saving up and the plan I think was to get my own place because my sister said you can’t stay here forever, you know. You’ve got to get out there. I think I’d just managed to get my first car and my license. So I would have been around 25. But prior to that happening, they were still helping me out and we had to go to Sydney for this I think. I think. Any my sister was representing me on the matter because you could have somebody represent you. Because I was just, like, what the hell is this? Like, not - really just dumbfounded. Just dumb about it. So I do remember but that’s how serious I took it.[57]
[56] Transcript of the proceedings dated 24 August 2022, 15
[57] Transcript of the proceedings dated 24 August 2022, 14
Conclusion as to the nature and seriousness of the Applicant’s offending
The Applicant accepts that his offending is serious. The seriousness of the Applicant’s offending is reinforced by the sentences imposed upon him which include multiple terms of imprisonment. When considered in aggregate, the frequency and increasing seriousness of the Applicant’s offending is apparent.
The Applicant has consistently shown himself to be unaccountable and prepared to defy court orders including AVOs. His reoffending following a formal warning that his visa may be cancelled adds to the seriousness of his conduct.
Having regard to the Applicant’s offending and the compounding nature of his offences over time, I find that the nature and seriousness of his offending to be very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Subparagraph 8.1.2(1) of Direction 90 provides that in considering the protection of the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases. Subparagraph 8.1.2(2) provides that in assessing the risk posed by a non-citizen to the Australian community, I should consider, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending and evidence of rehabilitation achieved by the time of decision, with weight to be given to the time spent in the community since the non-citizen’s most recent offending.
Should the Applicant engage in further criminal conduct similar to that in which he has engaged in the past it may result in significant physical and psychological harm to members of the Australian community including women and children. As such, the risk of further offending by the Applicant is considered very serious.
In relation to the risk of reoffending the Applicant submits that he has undergone a gradual shift in thinking and self-improvement such that he now understands how serious his offending has become.
In his sworn statement of October 2021 the Applicant writes that he will not reoffend because he is working on himself and appreciates that his own choices, and particularly the people he spends time with, will determine his future. He is motivated by an understanding that ‘this is the last chance’ he has to stay in Australia.[58]
[58] G10/83
The Applicant considers himself a good person with a desire to ‘do the right thing’. He gave evidence as to the causes and consequences of his offending which is consistent with the pattern and nature of his convictions, telling the Tribunal:
Like, obviously I want to do the right thing. That’s not the problem. Like, I don’t think I’m a baddy, you know. I try and stay out of trouble. I’m not sure what it is. Drugs are a factor that don’t help. And the circles I seem to get around involving drugs. And - but that’s not, you know, everything. That’s just only a portion of it. And then my relationships that I seem to always get involved in.[59]
[59] Transcript of the proceedings dated 24 August 2022, 15
The Applicant gave evidence of having previously made positive changes to his life in 2017 when he was living with his eldest sister Ria Andrews. He was working, saving money, had purchased his first car and had plans to move into his own accommodation. After he and his sister had a falling out, he moved in with his then girlfriend, SZ. SZ and the Applicant used drugs together and she became a victim of his offending.[60] He described the relationship with SZ as ‘toxic’.[61] NSW Department of Corrective Services case notes detail multiple breaches of Apprehended Domestic Violence Orders (AVO) by the Applicant over an extended period.[62] A case note report dated 14 August 2020 details a cycle of destructive behavior in the period leading up to his most recent offending:
[60] Transcript of the proceedings dated 24 August 2022, 52
[61] Transcript of the proceedings dated 24 August 2022, 60
[62] See for example SG7/1683, SG7/1712, SG7/1735 and SG7/1809
[The Applicant] described his relationship with [SZ], the victim of the offence and PINOP [person in need of protection] in relation to the active AVO as one of the most toxic and dysfunctional relationships he's ever experienced and he admitted, he's had a few. He said the relationship is based on sex and drugs and sex with drugs.
[The Applicant] said he's not been honest with community corrections at all since his recent release. He said, in fact, [SZ] picked him up when he was released despite the AVO and they did everything they could to ensure they remained together throughout. He said they were determined to be together.
[The Applicant] said they were smoking ICE together on almost a daily basis. He said he accessed his superannuation for the purpose of buying a car and finding independent accommodation however used the majority of it partying on drugs with [SZ]. He said when the money ran out and the drugs ceased, the fights started.
[The Applicant] said he thought he had it all under control but clearly didn't.
[The Applicant] is diagnosed with schizophrenia, anxiety and depression; he is currently on a medication regime with a monthly depot injection.
[The Applicant] reports that he is open to participating in programs both in custody and in the community, he said he would benefit from residential rehab and feels this is his only hope if released to the community.
[The Applicant] was previously working casually as a labourer and states he desperately wants to maintain employment in the future and just have a "normal boring" life.
[The Applicant] reports that due to his offending behaviour and drug use, he has lost a fair few pro-social friends /supports.
[The Applicant] reports daily use of ICE in the community leading up to and during the offence, he also stated that he previously used while in custody and thinks about using often. When asked if he missed ICE he confirmed that he does and is unsure on how he will abstain in the community.
[The Applicant] has a history the same violent offending and while he expresses that he wants to change, his prosocial verbalisations are not consistent with his behaviour.
[The Applicant] blames his ICE addiction for his violent behaviours and displays some insight however knowing full well how aggressive he becomes while high as well as how it exacerbates his schizophrenia he continues to abuse drugs with his partner who is the victim. [The Applicant] reported that he spent most of his leisure time partaking in drug abuse. [The Applicant] also reports that it is hard to abstain in the community as his partner [SZ] also uses.
[The Applicant] displayed a level of motivation to change, he expressed that he is willing to participate in supports and services for reintegration and rehabilitation needs.
[The Applicant] verbalized the impact his offending has had on the victim as well as the impact it has on others. In relation to the offence, [The Applicant] said the argument ensued over the remaining amount of money which was only about $2000. He wanted to keep it to purchase a car. He said [SZ] refused to give it back to him. A fight ensued, he wanted to leave, he tried to take [SZ’s] car keys. She locked herself in the room. [The Applicant] admitted he kicked in the door and became violent with [SZ]. He admitted he was under the influence of ICE.[63]
[63] SG7/1680

The Applicant reflected on his offending history in written documents dated 12 November 2021. He writes in part:
Looking back at my criminal record has been an eye opener for me. I have showed a lack of understanding, poor judgement and very little patience. Also a very irresponsible attitude. I now realize the errors of being violent. It [gets] me no where except prison and a loss of valuable time, plus im left to deal with the shame and everything that comes with it.
…
I now know that I am responsible for all my actions and they have consequences. I have let me and everyone around me down. I feel it is time for me to stop acting foolishly. I am fairly capable ive just always gotten caught up in the wrong things. Violence is never the answer… I plan to keep my hands to myself especially when it come to women. I will try hard to communicate openly and calmly with any future partners. The main charges that are consistent on my record are breach of AVO and assaults. I can see the pattern that has emerged and I know what I must do from here onwards. Stay single for quite some time, give plenty of time for relationships to develop, stay focused and act responsible. The use of my emotional and logical mindsets to find the in between wise mindset/choice/decision.[64]
[Errors in original]
[64] G12/107
In a handwritten note titled ‘Reflection’ dated 19 November 2021[65] the Applicant recounts his history of committing acts of domestic violence beginning with him being arrested when he was 16 years old. A dispute with his first girlfriend resulted in a brief stint in prison. A domestic dispute resulted in a term of 3 months imprisonment with his second girlfriend. He was imprisoned on 3 occasions while with his third girlfriend. He was imprisoned following a domestic dispute with his fourth partner. While with his most recent partner he was imprisoned on 5 occasions. He writes in part:
Through out the last 10 years I have been in and out of prison for Domestic Violence charges such as breach/AVO, assaults, stalk/intimidate etc. I cannot imagine how my victims may have felt. Probably scared and frightened and fearful for their own lives. I am ashamed and sorry for the hurt I have caused these woman. I now realise the error in being violent and that it gets me no where except into trouble. I look to change my ways for a brighter future.[66]
[Errors in original]
[65] G12/109
[66] G12/109
On 28 November 2021 he wrote that whilst in prison and detention he has been learning to deal with life without drugs:
I have learnt to deal with life without drugs recently due to being in prison and detention. So far it feels good to be sober and have a clear head. I am reenforcing this by abstaining and steering clear of the (drugs). I am doing this soley for myself so that I can have a better future and not repeat the mistakes in my past such as violent outburst towards women I care about, and just overall bad decisions when im high on drugs.[67]
[Errors in original]
[67] G12/113
Subsequent diary entries including that of 12 December 2021 indicate that he was seeing the benefits of abstaining from substance abuse and the progress he was making.[68] He was regularly taking his medication and his mood had stabilized, but he was still experiencing stress. He writes of making plans to diffuse situations in which he may reoffend and of the need to control his emotions. He identifies the importance of maintaining his sobriety and acknowledging the impact drug use has on his judgement and choices.
[68] G12/116
The Applicant has completed courses which may help him avoid further offending including EQUIPS 1 through 5 and a Domestic Violence Offenders program he completed in ‘2019 or 2020’. He also gave evidence that he had contacted Mensline for counselling which he had yet to commence.[69] He has received counselling on two occasions whilst in detention, which he found difficult to arrange.[70] He plans to continue counselling in the community as he believes it will help ensure he does not reoffend.[71]
[69] Transcript of the proceedings dated 25 August 2022, 54
[70] Transcript of the proceedings dated 24 August 2022, 17
[71] Transcript of the proceedings dated 25 August 2022, 77
The Applicant’s coursework for a domestic violence prevention program demonstrates considerable thought and insight into his offending. He writes on 26 October 2021 that his mother had taught him to do better and that his own behavior has on many occasions ‘fallen short’.[72] He also made some general observations about the prevalence and causes of domestic violence in the Australian community. His written submissions demonstrate an appreciation of the role and function of power in relationships. Notably he acknowledges he struggles to express anger constructively which he attributes to his own experiences as a child.[73] In relationships he writes he ‘always let my emotions get the better of me’. He writes that he loves women but needs to learn to walk away and control his anger when he feels ‘hard done by’. He must also learn to manage conflict or disagreement and communicate his thoughts and feelings.[74]
[72] G12/92
[73] G12/97
[74] G12/98
In a written submission dated 25 October 2021 the Applicant states he has been researching drug dependency and programs that can help overcome drug addiction including 12-step programs. He claims his research had helped him understand what drug addiction is and how he might be successful in making changes in his own life.[75]
[75] G12/91
When questioned about his history of drug use during the hearing the Applicant told the Tribunal that he had stopped using drugs and alcohol ‘to a certain extent’.[76] He acknowledged relapsing into drug use since being transferred into immigration detention, telling the Tribunal:
I have relapsed whilst I’ve been here [Villawood Immigration Detention Centre (“Villawood”)]. Not unlike jail, this place is - I don’t know what to say. This place is just - it’s very easy to deteriorate here in Villawood. You need to really be on the straight and narrow and have all your ducks in a row. You’ve got to be strong minded because it’s just easy to just fall off the track here. And not just in here, outside as well. But I have sort of relapsed and been using. I hate that I’m too honest and I have to admit it. But yes, that’s the truth. I have been using.[77]
[76] Transcript of the proceedings dated 24 August 2022, 17
[77] Transcript of the proceedings dated 24 August 2022, 17
He was taken to an International Health and Medical Services report dated 26 July 2022 in which it is recorded that the Applicant ‘is smoking methamphetamine … just self-medicating due to the stress of this place and also because I am bored’. The Applicant confirmed that the report was correct and was taken to an earlier report of 15 June 2022 where it was recorded he reported smoking ice most days and cannabis less so, which he confirmed was also correct.[78]
[78] Transcript of the proceedings dated 24 August 2022, 18
Asked to explain why he remained drug-free in prison but relapsed whilst in immigration detention, the Applicant told the Tribunal that the ease with which drugs could be obtained in detention made continued abstinence difficult, stating in part:
So there was like no real drug use in prison at all. It’s hard to come by and very expensive. Maybe towards the end of the sentence I did, but for the majority, the vast majority of the sentence that I done in Cessnock, 14 months, I was clean. Then I got here and this place was like, wow, drug central, “What do you need?”, it’s all here. Well, not here but you know what I mean? They’ve got this selection every day and it’s just readily available. So when you’ve got those odds, it’s a little bit difficult. I tried to get in with a good bunch of boys here, I still now, I have dropped off tremendously, but when I first got here I was doing it all, doing the activities, going to the gym all the time, trying to stay clean, but not routine, just bored in this place, but that’s no real excuse. I’m not sure what it is, exactly. One thing I did learn from that Understanding Addictions, I do think it is a disease of the mind, not that that’s funny, but, yes, you know. I don’t even understand it, why I continually use. Whether it’s a coping mechanism or - I’m not exactly sure…
It’s taking money and my health. It’s not doing me any favours.
The Applicant said that until his transfer into immigration detention he had not participated in programs or rehabilitation to address his drug use. Despite his continued drug use, he expressed a desire and commitment to remain drug free upon his return to the community. Asked about his plans to do so in the context of having relapsed whilst in detention, he told the Tribunal he plans to keep himself busy, stay out of trouble, remain single and look after his mother. He proposed resuming his involvement in sport and indicated his mother did not approve of his using drugs.[79] The Applicant intends to engage support services in the community and to work on his mental health.
[79] Transcript of the proceedings dated 24 August 2022, 21
Conclusion as to the protection of the Australian community
The Applicant submits that he has taken the initiative to reflect on his behavior and has engaged in ‘persistent self-learning about the causes of his offending’.[80] He has demonstrated this by participating and completing programs and seeking to understand his addiction and his offending, for which he takes responsibility.
[80] G13/119
A submission made on his behalf dated 8 December 2021 states that he has ‘stopped using illicit drugs’ and that he ‘has reached a level of self awareness that he has assured himself and others that he is committed to improving himself before forming intimate relationships’.[81] Based on his evidence of having relapsed into drug use, this is no longer the case.
[81] G13/120
Nonetheless, I accept the Applicant’s submission that he has redeemable qualities. His forthright account of his continued drug use and candor about having entered into a romantic relationship whilst in detention lead me to conclude the Applicant takes responsibility for his actions. I found the Applicant’s honesty, even when it was not in his interests, reassuring and supports his prospects of future recovery.
His understanding of the drivers and causes of his offending demonstrate both intelligence and self-awareness which should assist in his genuine efforts to improve upon himself and avoid further offending. He specifically identified his drug use and inability to deal with stresses in the context of his relationships with women as substantial risk factors, which is borne out by his offending history.
However positive his insights and intentions regarding his offending, they are overshadowed by his continuing to engage in behaviors which increase the risk of reoffending – most notably his drug use. The sum of the protective factors identified are in my view insufficient in the context of his extensive history to conclude that there is anything less than a moderate to high risk of him reoffending at this time.
Given the nature of the harm further offending may cause to vulnerable members of the community, I give this consideration heavy weight in favor of non-revocation of the cancellation decision.
PRIMARY CONSIDERATION 2 - Family violence
The second primary consideration is whether the conduct engaged in by the Applicant constituted family violence. Direction 90 subparagraph 8.2(3)(a) to 8.2(3)(d) provides that in considering the seriousness of the family violence engaged in by the non-citizen, factors such as the frequency of the conduct, any trend of increasing seriousness, the cumulative effect of repeated acts of family violence, rehabilitation achieved and whether the non-citizen has reoffended since being formally warned are relevant factors.
Family violence is defined in Part 4 of Direction 90 to include violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
For his part, the Applicant concedes that his serious offending includes acts of family violence. He submits that his acts of family violence are in part attributable to the violence he experienced as a child and ‘became normalised for him’.[82]
[82] G13/120
The victims of the Applicant’s conduct include his former partners,[83] and I am satisfied that they were members of the Applicant’s family for the purposes of Direction 90 at the time of the offences.
[83] G13/121
I acknowledge and accept that the Applicant himself was exposed to family violence from a young age and was a victim of violence as a child. The Applicant now acknowledges that family violence is ‘not the solution to problems arising out of a relationship’.[84] He has empathized with the victims of his conduct and appears remorseful for his offending. He has identified the pattern that has emerged and has taken some tentative steps towards rehabilitation since his imprisonment, including taking part in Domestic Violence 101 in February and Anger Management in March of 2022, as well as programs aimed at understanding and managing addictions.[85]
[84] G13/121
[85] Applicant’s bundle No. 3, 2-4
Between 2009 and 2020 the Applicant has repeatedly engaged in offences which constitute family violence. He has been warned about his conduct,[86] particularly towards his girlfriends, by the courts and has been subject to AVOs which he has regularly breached.[87] Paragraph 8.2(3) of the Direction requires that any increase in seriousness of family violence offending be given consideration and based on the sentences imposed upon him, I am satisfied that the seriousness of the family violence has escalated over time. Taking these factors into account, I find that the family violence committed by the Applicant weighs against revocation of the mandatory cancellation decision and is afforded significant weight.
[86] G6/53
[87] G3/31-38
primary consideration 3 - BEST INTERESTS of MINOR children
Paragraph 8.3 of Direction 90 sets out a number of factors to be considered in assessing the best interests of minor children. These include the nature and duration of the relationship between the child and the person, the extent to which the person is likely to play a positive parental role in relation to the child, the impact of the non-citizen’s past conduct and any likely future conduct on the child, the likely effect that any separation from the person would have on the child, whether there are any other people who fulfil parental roles in the future with the child, any known wishes of the child, and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person’s actions including through exposure to family violence.
The Applicant does not have any minor children in Australia. When asked if there were any minor children he was close to or had a relationship with in Australia he answered ‘no’. He acknowledged his nieces and nephews, although none specifically, and stated he hopes to have been a good role model to them and recalls positive interactions in the past. Owing to the deterioration of his relationships with his siblings, his recent interactions with his nieces and nephews has been limited. However, an earlier submission made on behalf of the Applicant’s states that he had a close relationship with his sister Isabella who has children and that she ‘warmly welcomes’ the Applicant into her home and supports his rehabilitation.[88] This indicates a continued relationship with his nieces and nephews may be possible at some point in the future.
[88] G13/122
In his request for revocation the Applicant confirmed that he has two minor sons, one born in January 2013 and another born in August 2014. He writes that both children live in New Zealand with their mother with whom he had a ‘toxic’ relationship.[89]
[89] G10/84, see also G9/70
The Applicant writes that he has not seen his sons for several years having lost contact with them as his attention was focused on a new partner and her children. Previously, when the children were in Australia, he had supervised visits which occurred up to 12 times a year. He would try to make the visits and his time with his children happy occasions where he would try and express his love for them.[90]
[90] G9/71
Should he seek to contact the children in the future, he plans to do so having first focused on ‘getting himself right’.[91]
[91] G10/87
The Applicant appears to have played an active role in supporting the five children of his former partner who was also the victim of his most recent offending.[92] However, I note they are now estranged and there is no indication that their interests would be affected by his removal.
[92] Transcript of the proceedings dated 24 August 2022, 30-31
Cancellation of the Applicant’s visa will likely deprive him the opportunity to participate in the lives of his nieces and nephews in the future. As such, I consider their best interests are served by revocation of the cancellation decision. I find this primary consideration weighs in favour of revocation but afford it limited weight.
primary consideration 4 - Expectations of the AUstralian community
Paragraph 8.4 of the Direction requires me to consider the expectations of the Australian community. Subparagraph 8.4(1) relevantly states:
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.
In FYBR v Minister for Home Affairs[93] (FYBR) the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration. That is, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to paragraph 8.4 of Direction 90.
[93] [2019] FCAFC 185
The Direction lists specific conduct which the Australian community as a whole expects would raise serious character concerns and an expectation that the person would not hold an Australian visa. Having regard to the provisions of Direction 90 and the nature and seriousness of the Applicant’s criminal offending, the Australian community would expect that the Applicant should not continue to hold a visa.
Observing the norm and the principles outlined in in paragraph 5.2 of Direction 90, I am satisfied that the expectations of the Australian community would normally weigh against revoking the visa cancellation on account of the Applicant’s criminal conduct. The weight afforded to this consideration is to be determined by the Tribunal and I give this consideration significant weight in favour of not revoking the cancellation decision.
Other considerations
I now turn to considering other relevant considerations set out in the Direction.
Extent of impediments if removed
I am required to consider the extent of any impediments that the Applicant may face if removed from Australia in establishing himself and maintaining basic living standards in New Zealand.
The Applicant claims not know anyone in New Zealand and states that he feels Australian having lived here since he was a small child. Should he be required to return to New Zealand the Applicant is concerned he will not have the support network he is able to access in Australia. He writes that ‘it would be incredibly stressful …to find my way in what is essentially a foreign country’ and it ‘would exacerbate [his] mental health condition irreparably’. He notes he has always tried to obtain the best medical care and treatment for his mental health.[94] His concerns are supported by Rose Ripley, who writes she is fearful the Applicant would not be able to cope with being relocated ‘to a new country he has never known’ on account of his mental health issues.[95]
[94] G10/85
[95] G14/131

The majority of the Applicant’s family is in Australia, but with the exception of Rose Ripley they currently have limited contact with him. He gave evidence that should he remain drug free and not enter a ‘toxic relationship’ his siblings may be prepared to assist him. He told the Tribunal that his family in Australia ‘want to see [him] doing well for himself’, after which he may begin to rebuild his relationships with them.[96]
[96] Transcript of the proceedings dated 24 August 2022, 27
The Applicant has two brothers who live in New Zealand and an aunt who lives in Wellington and has offered to assist him in the event he is removed to New Zealand.[97]
[97] Transcript of the proceedings dated 24 August 2022, 27
At 30 years of age the Applicant is a young man who considers himself to be fit and healthy, apart from what he describes as his ‘mental health struggles’.[98] Nonetheless, having spent the vast majority of his life in Australia, reintegration into New Zealand would be difficult. Based on their limited contact, the Applicant does not believe his brothers in New Zealand would provide any practical assistance to him.[99]
[98] SG1/86
[99] Transcript of the proceedings dated 25 August 2022, 69
Should he return to New Zealand the Applicant would have access to the same healthcare and social security as other New Zealand citizens.
He also has relatives in New Zealand, including his brothers, to whom he is known but does not have an existing relationship. He would be required to manage his mental health and arrange to continue treatment for which he receives monthly medication which must be administered by a health professional. Unless he does so the impact on his behaviour and the risk he may pose to himself is substantial. The Applicant would be expected to be able to access comparable treatment to that he currently receives in New Zealand.
I do not consider the challenges the Applicant would face to be insurmountable, but I accept he would be expected to face a difficult and challenging period of adjustment. He has never lived in New Zealand as an adult, and his capacity to manage the process of reintegration is limited by his addiction and mental health issues. I expect that the Applicant will likely face practical, financial and emotional hardship on return to New Zealand. He will not have an established support network available to him in New Zealand to provide emotional or practical support such as accommodation or to assist with finding employment. These factors are genuine impediments that are appropriately afforded significant weight in the Applicant’s favour.
Overall, this consideration weighs extremely heavily in favour of revocation and is afforded significant weight for the reasons set out above.
Links to the community
I am required to consider the strength, nature and duration of the Applicant’s ties to Australia. That the Applicant has been residing in Australia since he was 2 years old is afforded significant weight in his favour under subparagraph 9.4.1(2) of the Direction.
The Applicant’s immediate family reside in Australia including his mother, father and sister Ria, sister Marie and sister Isabella. He has two brothers, Thomas and John, who both live in New Zealand. Other family members in Australia include two uncles, an aunt and 4 cousins.[100]
[100] G9/74
He submits that his removal would be difficult for his relatives in Australia as they are a small family who value one another. The impact of his removal on his family members would be ‘devastating and sad’.[101]
[101] G9/74
When asked the Applicant confirmed he does not speak to his family regularly, though I note his evidence to have maintained regular contact with his mother. He gave evidence that he and his other family members including his sisters ‘fell out’ after he commenced his most recent relationship.[102] He has, however, maintained frequent contact with his youngest sister Isabella who resides in Queensland and has provided a statement in support of his application.
[102] Transcript of the proceedings dated 24 August 2022, 28
Rose Ripley is seeking to have the Applicant stay and assist her as she is suffering memory loss. She would welcome him living with her. Having the Applicant live with her would enable them to support each other. She is confident he would stay out of trouble should he live with her. Having lost two sons, she would be devastated to ‘lose’ another by having the Applicant deported.[103]
[103] G14/130
During the hearing the Applicant was asked how living with his mother would work given she currently lives in Melbourne. He told the Tribunal he would like her to move up to Sydney where he has work arranged so that he can care for her. Failing that, he would be prepared to move to Melbourne to be with her if required.[104]
[104] Transcript of the proceedings dated 25 August 2022, 66
The Applicant has spent almost his entire life in Australia. While I accept the Applicant’s intention to care for his mother is genuine, his capacity to do so is limited by his own challenges and the need for his mother or him to relocate. Whilst acknowledging the relationships he has with other family members are currently strained, I am persuaded by the Applicant’s intention to improve upon himself with a view to strengthening those relationships. I accept that his removal would have an impact on his immediate and extended family, most notably his mother, who would be expected to suffer even if the Applicant was unable to provide practical support for her.
For these reasons, this consideration is afforded significant weight in favor of revoking the cancellation decision.
Conclusion
The Applicant has a significant offending history and has resisted previous attempts by the courts to alter his offending behaviour. Whilst accepting he has been chastened by a significant term of imprisonment and having his visa cancelled, and has made a genuine attempt to reform, there remains a real risk of further offending by the Applicant.
It is unfortunate that the Applicant had access to drugs whilst in immigration detention. His evidence was that his drug use interrupted a sustained period of abstinence, which I accept may have been a basis for his long-term recovery. The Applicant’s immigration health records confirm he was open about his drug use whilst in detention and he submits he found it difficult to access support including counselling. When asked specifically about the support he was offered having told detention centre staff he was using drugs, he said it felt like the ‘bare minimum’. He reported being told to speak to a drug and alcohol nurse and did so on only one occasion during his time in detention.
Regardless of the circumstances of his drug use, when making an assessment as to the protection of the Australian community from criminal and other serious conduct, his continued use of drugs is a significant risk factor for the reasons I have outlined. Given the seriousness of the Applicant’s offending and the risk to the Australian community, the first primary consideration weighs heavily against his application.
The nature of his offending, including family violence and acts of violence towards women also weighs against him, as do the expectations of the Australian community.
The Applicant’s ties to the Australian community are numerous and significant which is to be expected given he has lived in Australia since he was a small child. Notably his mother is dependent on him for support and has expressed a strong desire that he remain in Australia. I take into account that should he stay in Australia, the Applicant has an opportunity to rebuild his relationships with his siblings and other family members and as such I give this consideration considerable weight in favour of revocation. Whist his nieces and nephews are children he cares about; he does not claim to have a significant or parental role in their lives at present. Nonetheless, the primary consideration in relation to the best interests of minor children weighs in favour of the Applicant, though it is afforded little weight in the circumstances.
Despite his difficulties, the Applicant has proven capable of working and supporting himself. He is young, and apart from his mental illness for which he is receiving medication and states is stabilised, he is in good health. He also has an offer of support from a relative should he return to New Zealand. The impediments he would face should he return to New Zealand are not insurmountable, but I acknowledge the difficulties he would be expected to face given his mental health condition and drug dependency. I afford significant weight to this consideration in the Applicant’s favour.
On balance, however, the totality of the considerations set out in the Direction weigh against revoking the cancellation decision. As there is not another reason to revoke the cancellation of the Applicant’s visa, the reviewable decision will be affirmed.
Decision
For the reasons outlined above, the Tribunal decides that the decision under review, being the decision of a delegate of the Minister dated 18 May 2022 not to revoke the mandatory cancellation of the Applicant’s visa is affirmed.

I certify that the preceding 140 (one-hundred-and-forty) paragraphs are a true copy of the reasons for the decision herein of

......................................[Sgd]..................................
Associate
Dated: 10 October 2022

Date(s) of hearing: 24 and 25 August 2022

Applicant: In person

Solicitors for the Respondent: Sarah Hardie

[2022] AATA 3250

7 September 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies

Date(s) of hearing:	24 and 25 August 2022
Applicant:	In person
Solicitors for the Respondent:	Sarah Hardie