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

[2022] AATA 4204

Ryan and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4204 (21 September 2022)

Division:GENERAL DIVISION

File Number(s):      2022/5549

Re:Aaron Terrence Brett Ryan

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Member Lee Benjamin

Date:21 September 2022

Date of Written Reasons:   7 December 2022

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 29 June 2022 to not revoke the cancellation of the Applicant’s visa.

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

Member Lee Benjamin

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of a Transitional (Permanent) (Class BF) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958  (Cth)

Cases

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

FYBR v Minister for Home Affairs (2019) 272 FCR 454

HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202

Minister for Home Affairs v Buadromo [2018] FCAFC 151

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

Member Lee Benjamin

7 December 2022

THE ISSUE BEFORE THE TRIBUNAL

1. Mr Aaron Terrence Brett Ryan (the Applicant) is a 34-year-old citizen of the United Kingdom. He arrived in Australia as a two-year old in November 1990 and has resided here from that time, for around 32 years.[1]The Applicant previously held a Transitional (Permanent) (Class BF) visa.[2]   

   [1]     Exhibit G23 p 256.

   [2]     Exhibit R1, p 17.

2. On 5 May 2021, a delegate of the Respondent mandatorily cancelled the Applicant's visa under s 501(3A) of the Migration Act 1958 (Cth) (Act)[3] because he: (1) did not pass the “character test”; and (2) was serving a sentence of imprisonment, on a full-time basis in the South Coast Correctional Centre in New South Wales, for an offence against a law in Australia.  

   [3]     Exhibit R1, p 85.

3. In response to the Respondent’s 5 May 2021 mandatory cancellation decision, the Applicant made representations about revocation of the cancellation decision on 12 May 2021.[4]

   [4]     Exhibit R1, p 94.

4. By letter dated 23 July 2021, the Respondent's Department advised the Applicant of an error in the 5 May 2021 notice and invited the Applicant to comment on further information which may be taken into account when making the decision whether to revoke the cancellation decision.[5] The Applicant made further representations in response to the 23 July 2021 letter.[6]

   [5]     Exhibit R1, p 223.

   [6]     Exhibit R1, p 227.

5. By letter dated 3 March 2022, the Respondent's Department invited the Applicant to comment on further information which may be taken into account when making the decision whether to revoke the cancellation decision.[7] The Applicant made further representations in response to the 3 March 2022 letter.[8]

   [7]     Exhibit R1, p 241.

   [8]     Exhibit R1, p 244.

6. On 29 June 2022, a delegate of the Respondent decided not to revoke the cancellation decision under s 501CA(4) of the Act.[9] By letter dated 30 June 2022, the Respondent's Department notified the Applicant of the same.[10]

   [9]     Exhibit R1, p 20.

   [10]    Exhibit R1, p 17.

7. On 5 July 2022, the Applicant made an application to the Administrative Appeals Tribunal (Tribunal) for review of the decision not to revoke the cancellation decision.[11] The Tribunal has jurisdiction to review the decision under s 500(1)(ba) of the Act.

   [11]    Exhibit R1, p 14; p 20; p 284.

8. The Tribunal hearing took place by video before me on 12 and 13 September 2022. I received oral evidence from the Applicant. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”. On 21 September 2022, the Tribunal affirmed the decision under review and now provides its written reasons.

   Legislative framework

9. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:

   “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.”

10. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. If either of paragraphs (i) or (ii) are satisfied, I should revoke the cancellation decision.[12] 

    [12]    Minister for Home Affairs v Buadromo [2018] FCAFC 151.

    Does the Applicant Pass the Character Test?

11. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.

12. On 5 July 2011, the Applicant was convicted in the District Court of New South Wales at Sydney of two counts of “Recklessly cause grievous bodily harm”, for which he was sentenced, respectively, to three years imprisonment for the first count and three years and nine months imprisonment for the second count.[13]

    [13]    Exhibit R1, p 37.

13. The Respondent contends,[14] and the Applicant concedes,[15] that the Applicant does not pass the character test as defined by s 501(6). I am satisfied (and find) that the Applicant does not pass the character test because the Applicant has a “substantial criminal record”. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

    [14] Exhibit R2, p 5, para [28].

    [15]    Exhibit A3, p 2, para [5]-[6]. Transcript, p 82, lines 1-3.

    Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?

14. The issue in this review is whether I am satisfied that there is another reason why the cancellation decision should be revoked under s 501CA(4).

15. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90 or the Direction) applies.[16] 

    [16]    See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.

16. For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must guide a decision maker’s application of Part 2 of the Direction.[17]

    [17]    Exhibit R1, p 257.

17. Those principles may be briefly stated as follows:

    “(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. 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 non- citizens 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 non- citizens 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.”

18. Paragraph 6 of the Direction provides that:

    “Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.” [18]

    [18]    Direction, paragraph 6. See also Direction, paragraph 4(1) which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.

19. Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account. They are:

    (1) protection of the Australian community from criminal or other serious conduct;

    (2) whether the conduct engaged in constituted family violence;

    (3) the best interests of minor children in Australia; and

    (4) expectations of the Australian community.

20. Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account, where relevant. They are:

    (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;

    (ii) impact on Australian business interests.

21. I may also take into account other matters that are relevant to whether there is another reason to revoke the cancellation of the Applicant’s visa, such as the prospect of indefinite detention.

22. Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.

    BACKGROUND AND OFFENDING

23. The Applicant has an extensive criminal history in Australia, which is summarised in the table below.

Court	Conviction Date	Offence	Outcome
Blacktown Local Court, NSW	4 September 2007 24.	Learner not accompanied by driver/ police officer/ tester	S10A Conviction with No Other Penalty
		Learner not accompanied by driver/ police officer/ tester	S10A Conviction with No Other Penalty
		Learner not accompanied by driver/ police officer/ tester	S10A Conviction with No Other Penalty
		Learner not accompanied by driver/ police officer/ tester	S10A Conviction with No Other Penalty
		Learner not accompanied by driver/ police officer/ tester	S10A Conviction with No Other Penalty
		Learner not accompanied by driver/ police officer/ tester	S10A Conviction with No Other Penalty
		Learner not accompanied by driver/ police officer/ tester	S10A Conviction with No Other Penalty
		Learner not accompanied by driver/ police officer/ tester	S10A Conviction with No Other Penalty
		Obtain money etc by deception <= $2000-T2	Bond S9: 12 Months 12 months supv NSW prob service obey all reasonable directions for counselling, emotional development or drug and alcohol rehabilitation and report to the Fairfield probation office [address redacted] within 7 days
		Obtain money etc by deception <= $2000-T2	Bond S9: 12 Months     12 months supv NSW prob service obey all reasonable directions for counselling, emotional development or drug and alcohol rehabilitation and report to the Fairfield probation office [address redacted] within 7 days
		Obtain money etc by deception <= $2000-T2	Bond S9: 12 Months     12 months supv NSW prob service obey all reasonable directions for counselling, emotional development or drug and alcohol rehabilitation and report to the Fairfield probation office [address redacted] within 7 days
		Obtain money etc by deception <= $2000-T2	Bond S9: 12 Months     12 months supv NSW prob service obey all reasonable directions for counselling, emotional development or drug and alcohol rehabilitation and report to the Fairfield probation office [address redacted] within 7 days
		Obtain money etc by deception <= $2000-T2	Bond S9: 12 Months     12 months supv NSW prob service obey all reasonable directions for counselling, emotional development or drug and alcohol rehabilitation and report to the Fairfield probation office [address redacted] within 7 days
		Obtain money etc by deception <= $2000-T2	Bond S9: 12 Months     12 months supv NSW prob service obey all reasonable directions for counselling, emotional development or drug and alcohol rehabilitation and report to the Fairfield probation office [address redacted] within 7 days
		Obtain money etc by deception <= $2000-T2	Bond S9: 12 Months     12 months supv NSW prob service obey all reasonable directions for counselling, emotional development or drug and alcohol rehabilitation and report to the Fairfield probation office [address redacted] within 7 days
		Obtain money etc by deception <= $2000-T2	Bond S9: 12 Months     12 months supv NSW prob service obey all reasonable directions for counselling, emotional development or drug and alcohol rehabilitation and report to the Fairfield probation office [address redacted] within 7 days
Blacktown Local Court, NSW 25.	14 November 2007 26.	Drive on road etc while licence suspended	Bond S10: 12 Months
		Use unregistered registrable Class A motor vehicle	Dismissed S10
Blacktown Local Court, NSW 27.	6 February 2008 28.	Receive/dispose stolen property-min incit.off. <=$5000-T2	Bond S9: 2 years Supv NSW prob service psychological and psychiatric counselling and treatment as directed by PPS
		Receive/dispose stolen property-min incit.off. <=$5000-T2	Bond S9: 2 years Supv NSW prob service psychological and psychiatric counselling and treatment as directed by PPS
		Armed w/i commit indictable offence-T1	Imprisonment: 8 Months Suspended on Enter Bond S12: 8 Months Supv NSW prob service psychological and psychiatric counselling and treatment as directed by PP. Severity appeal without stay lodged
Blacktown Local Court, NSW	1 September 2008	Special category driver drive with special range PCA	Fine: $450 Costs - Court: $73 Disqualification: 6 months
Parramatta District Court, NSW	3 September 2008	Armed w/i commit indictable offence-T1	Conviction Confirmed
Sydney District Court, NSW 29.	30.     12 March 2010	31.     Recklessly cause grievous bodily harm-T1	Imprisonment: 3 Years Non parole period with conditions: 2 years commencing 05/08/2009  release subject to supv. Severity appeal lodged
		32.     Recklessly cause grievous bodily harm-T1	Imprisonment: 3 Years & 9 months Non parole period with conditions: 2 years commencing 05/08/2009  release subject to supv. Severity appeal lodged
Sydney District Court, NSW 33.	5 July 2011 34.	Recklessly cause grievous bodily harm-T1	Ordered that: leave to appeal granted : appeal allowed – new trial ordered
		Recklessly cause grievous bodily harm-T1	Ordered that: leave to appeal granted : appeal allowed – new trial ordered
Belmont Local Court, NSW	20 August 2014	Drive with low range PCA – 1st off	Fine: $550. Disqualification: 6 months commencing 20/08/2014 concluding 19/02/2015
Bankstown Local Court, NSW 35.	29 July 2020 36.	37.     Use unregistered registrable Class A motor vehicle on road	Fine: $600
		Drive, licence suspended under s 66 Fines Act – 1st off	Fine: $1,000 Disqualification Driver: 3 months commencing 29/07/2020
38.     Waverley Local Court, NSW	3 March 2021 39.	Custody of knife in public place – first offence	S10A Conviction with no other penalty: Weapon/Implement Fortified to the Crown
		Possess > 3 unregistered firearms w/o licence/permit-T2	Imprisonment: 8 Months Commencing 14/12/2020 Concluding 13/08/2021 Non Parole Period: 5 Months commencing 14/12/2020 concluding 13/05/2021
		Possess prohibited drug	S10A Conviction with No Other Penalty
		Possess unauthorised prohibited firearm-T2	Imprisonment: 8 Months Commencing 14/12/2020 Concluding 13/08/2021 Non-Parole Period: 5 Months commencing 14/12/2020 concluding 13/05/2021
		Possess ammunition w/o holding licence/permit/authority	S10A Conviction with No Other Penalty
		Possess prohibited drug	S10A Conviction with No Other Penalty
Waverley Local Court, NSW	21 April 2021	Drive while licence cancelled – 1st off	Fine: $400 Disqualification - Driver: 6 Months commencing 21/04/2021

1. Based on the Applicant’s criminal history, I consider that the Applicant’s offending may be divided into several phases as set out below.

   Initial offending phase – convictions (2007 – 2008)

2. The Applicant’s criminal history commenced with a series of driving and dishonesty offences in September and November 2007, and escalating to “Armed w/i commit indictable offence-T1” in February 2008, together with two counts of “Receive/dispose stolen property-min. indict. off. <=$5000-T2”. The Applicant was put on 8 months' suspended sentence in respect of the former offence and bonds in respect of the latter offences.[19]

   [19]    Exhibit R1, p 38.

   Second offending phase – convictions (2009)

3. The Applicant’s second phase of offences were committed while the Applicant was on conditional liberty.[20]

   [20]    Exhibit R1, p 55.

4. On 5 July 2011, on remittal from the Court of Criminal Appeal, the Applicant was sentenced in the Sydney District Court in respect of two counts of “Recklessly cause grievous bodily harm-T1”. The Court sentenced the Applicant to three years' imprisonment and three years and nine months' imprisonment for the first and second counts, respectively.[21]

   [21]    Exhibit R1, p 37.

5. The Applicant pleaded guilty to the two charges. The Court was provided with the following facts in respect of count 1:[22]

   “Count 1, on 19 June 2009 the offender and [the Applicant’s ex-girlfriend]  went to the home of the victim, [name redacted]. There they consumed alcohol. The offender asked the victim if he could have some friends over, it was agreed to. Shortly after, two males unknown to the victim arrived and were also sitting in the lounge room drinking alcohol. The victim played music and started to dance with [the Applicant’s ex-girlfriend]. After four or five songs had been played the offender has jumped from the lounge, raised his fists and confronted the victim. The offender and the victim have mutually sparred in the lounge room. The offender has grabbed the victim in the headlock and applied force and was choking the victim to the point that the victim was unable to breathe. The offender continued to apply pressure to the victim’s throat. The offender dragged the victim back to the lounge and continued to choke the victim in a headlock. The offender eventually released the victim from the headlock. The victim then said, "Get outside” and walked out the front door to the front lawn. Shortly after the offender ran out from the front door towards the victim, both the victim and the offender have shaped up to each other and the offender said, “On the road, cunt”. The victim has walked onto the road with the offender following him. There were numerous punches thrown at each other. People have exited the house and yelled at them to stop fighting. They stopped punching each other and, whilst he denies it, the facts state they shook hands.

   The offender has walked back inside the house, the victim was on the front lawn. A short time later the victim heard the offender and [the Applicant’s ex-girlfriend] arguing inside the house. The offender has walked out the front door and up to the victim. The offender approached the victim, placed a hand on his shoulder, pulled the victim into him and stabbed the victim with a steak knife to the left side of the stomach and ran off. The victim turned to see where the offender ran when he felt something in his stomach. He looked down and saw the blade protruding from his stomach. He pulled the blade out and chased the offender up the street. The victim felt faint and dropped to the road. The ambulance was called and the victim was conveyed to Westmead Hospital where he underwent surgery for internal bleeding and a perforated bowel. The offender was later arrested.”

   [22]    Exhibit R1, pp 50-52.

1. There was a conflict between the Crown and the Applicant about the reason for the fight, and the Court accepted the Crown's argument that "the only possible reason for the fight and the confrontation and the stabbing was one of jealousy”.[23] The Court concluded that this offence was "at least middle of the range”.[24]

   [23]    Exhibit R1, p 52.

   [24]    Exhibit R1, p 53.

2. The Court was provided with the following facts in respect of count 2:[25]

   ... that on 24 July late in the evening and verging on 25 July a witness watched as the offender walked up behind the victim. There apparently had been a confrontation between two groups and, using his right hand with a closed fist, punched the victim once in the back of the head. The force of the punch caused the victim's head to lurch forward. The victim turned around and told the offender he did not want to fight. As the victim was speaking with the offender females from both groups began scuffling again. The witness heard the offender yelling at the victim before seeing the offender use his right fist to punch the victim on the left side of the face. The offender threw a second punch, this time with his left fist to the right side of the victim’s face. The force of that punch caused the victim to fall to the ground where he lay unconscious. The offender leaned over the victim and continued to punch him five or six more times with both fists whilst the victim was unconscious. Witnesses intervened. The offender had blood all over his hands and left. The victim was still on the ground with blood coming out of his eyes, mouth and nose and he had blood on his left ear. The witness followed the offender and contacted the police. As he followed him the victim was still lying on the road. There was a verbal altercation between the offender and the witness. The police arrived and the offender started running but was apprehended by the police, arrested and handcuffed. CCTV footage does not capture the initial stages of the incident and only shows the victim already on the ground with the offender standing over him. The offender raises his right arm in the air and brings it down in the direction of the victim lying motionless on the ground. It is not clear because of the number of people standing around the victim whether the offender’s arm connects with the victim, it also shows the offender running and being chased by the police. A second witness provided a similar version.

   The victim was taken to hospital, he had injuries being a fracture of the lower and upper jaw, a fracture at the base of the skull, a fracture of the right eye socket and extensive bruising. He underwent surgery to the jaw and a number of plates had been inserted in his jaw.

   [25]    Exhibit R1, p 54.

3. The Court was similarly satisfied that this offence also fell at the mid-range of seriousness.[26] In sentencing the Applicant, the Court found some special circumstances, being the Applicant’s young age, the fact he had served no previous terms in custody and the need for rehabilitation.[27]

   [26]    Exhibit R1, p 55.

   [27]    Exhibit R1, p 61.

   Third offending phase – convictions (2014 & 2020)

4. The Applicant was convicted of further driving offences in August 2014 and July 2020.[28]

   [28]    Exhibit R1, p 37.

   Fourth offending phase – convictions (2021)

5. On 3 March 2021, the Applicant was convicted in the Waverley Local Court of 'Custody of knife in public place – first offence,' 'Possess > 3 unregistered firearms w/o licence/permit-T2,' two counts of 'Possess prohibited drug,' 'Possess unauthorised prohibited firearm-T2' and 'Possess ammunition w/o holding licence/permit/authority'.[29]

   [29]    Exhibit R1, p 37.

6. The Applicant entered pleas, and for the possess firearm offences the Court sentenced him to a term of imprisonment of 8 months with a finding of special circumstances.[30] He was convicted without further penalty for the other offences. 

   [30]    Exhibit R1, p 77.

7. The Applicant's representative made the following submissions at the sentencing:

   “Your Honour can see that he has had a significant ice habit and with a daily habit for over nine months.

   …

   It is the case that he made admissions to the police that he was holding the firearms for somebody else so that he could obtain ice on tick so this is why I said that one way or the other these offences are drug related.”[31]

   [31]    Exhibit R1, p 76.

8. A sentencing assessment report was prepared in March 2021 for Waverley Local Court in relation to the weapons and related offending. The relevant findings are extracted below:

   “Attitudes

   ·Mr Ryan accepted responsibility for his offending behaviour and stated he knew what he was doing was "wrong" and he was also dealing with a "drug habit".

   …

   ·Mr Ryan attributed his offending behaviour and antisocial attitudes to his substance abuse.

   Substance use

   ·Mr Ryan disclosed he was engaging in ICE use on a daily basis for approximately nine months and was "coming down" from ICE at the time of his arrest.

   ·Mr Ryan described his drug use as "full on" and would receive ICE as payment to hold on to the firearms and ammunition.

   ·He disclosed having a history of drug abuse and that he has attended rehabilitation in 2018.

   ·Mr Ryan verbalised his willingness to engage in interventions to address his substance dependence.

   …

   Insight into impact of offending

   ·Mr Ryan demonstrated insight into his antisocial behaviour by identifying the negative impact his offending has had on his mother.

   ·He acknowledged the serious impact his offending would have had on the community and the danger associated with possession of prohibited firearms.

   ·Mr Ryan stated his offending has been a "massive wake up call" and now that he has had time to think about his offending he is "ashamed" by his actions'

   Willingness and ability to undertake intervention

   ·Mr Ryan indicated his willingness to engage with interventions to address substance dependence.

   …

   Assessment and recommendations

   Risk assessment

   Mr Ryan has been assessed at a medium-high risk of reoffending according to the Level of Service Inventory — Revised (LSI-R).”[32]

   [32]    Exhibit R1, p 116-120.

   PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

9. Paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. I should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

10. In determining the weight applicable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires me to give consideration to:

    (a)       The nature and seriousness of the Applicant’s conduct to date; and

    (b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.

11. I will now consider each in turn.

    The Nature and Seriousness of the Applicant’s Conduct to Date

12. When assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I must have regard to the following relevant matters in paragraph 8.1.1 of the Direction:  

    (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)….:;

    (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 re-offended since being formally warned, or since being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status…  

13. I have already set out the Applicant’s offending history and do not propose to recite it here. The Applicant concedes that he has an “extensive criminal history commencing in 2007 when he was around 19 years of age”[33] and that “the volume of the offences is an aggravating feature.”[34] In my view, these submissions can be easily accepted.

    [33] Exhibit A3, p 3, para [6].

    [34] Exhibit A3, p 3, para [7].

14. The Applicant’s offending history includes crimes of violence. In 2010, he was convicted of two counts of “Recklessly cause grievous bodily harm-T1.” The court sentenced the Applicant to three years’ imprisonment and three years and nine months’ imprisonment for the first and second counts, respectively.[35] Initially, the Applicant contended that his offending was “serious”[36], however, at the hearing, the Applicant conceded that the relevant offending was “very serious.”[37] This submission concurs with the Respondent’s position. [38] Accordingly, my finding is that the Applicant’s acts of violence engage sub-paragraph 8.1.1(1)(a)(i) in favour of a finding that the nature of the Applicant’s conduct is “very serious”.   

    [35]    Exhibit A1, p 37.

    [36] Exhibit A3, p 3, para [8].

    [37]    Transcript, p 82, lines 24-25.

    [38] Exhibit R2, p 6, para [35].

15. Separately, the following sub-paragraphs are also relevant in the instant case, reflecting that the Applicant’s offending has been of a “serious” nature:

    ·     Paragraph 8.1.1(1)(c), which looks to sentences for non-precluded violent and other crimes, is engaged because the Applicant has been sentenced to:

    o   two terms of imprisonment for (1) two counts of “Recklessly cause grievous bodily harm-T1” in the Sydney District Court on 5 July 2011; and (2) one count of “Possess > 3 unregistered firearms w/o licence/permit T2” and one of count of “Possess unauthorised firearms w/o licence/permit T2” in the Waverley Local Court on 3 March 2021”[39] - imprisonment is usually a last resort in the hierarchy of available sentencing options;

    o   a term of suspended imprisonment for one count of being “Armed w/i commit indictable offence-T1” in the Parramatta District Court on 6 February 2008;[40] and

    o   a series of at least 10 bonds for a variety of offending, including non-violent dishonesty and related offending.[41]   

    ·     Paragraphs 8.1.1(1)(d) and (e) look to the frequency of the Applicant's offending and any trend of increasing seriousness, and the cumulative effect of the Applicant’s repeated offending, respectively:  

    o   the Applicant's criminal history includes dozens of offences spanning the Applicant's adult life, being a 14 year period from September 2007 to April 2021[42] – the offending has been frequent and has, as the Applicant concedes,  grown in seriousness,[43] from for example, driving offences, to crimes of deception, to dealing with stolen property, to grievous bodily harm, to possessing prohibited drugs, to unlawful possession of firearms and ammunition[44] in drug and drug-debt related circumstances;[45]  

    o   the Applicant’s long offending career demonstrates several cumulative effects, including: (1) the Applicant’s failure to comply, and otherwise meet the requirements of lawful Australian authority, including committing very serious offences while on conditional liberty; (2) the Applicant’s failure to experience any deterrent or dissuading effect of the progressively more severe sentences (including more than three years’ of imprisonment) that have been imposed; (3) the Applicant’s long-term alcohol and drug (including methamphetamine) addictions have severely distorted his moral compass, occasioning his drink driving, dealing in stolen property, dangerous drug possession, violent offending, and unlawful weapons/ammunition possession; (4) the Applicant’s weapons and related offending likely put members of the community at risk given the probability that such weapons could be used in criminal activities; and (5) the Applicant does not seem to have formed a definitive understanding of the necessary level of responsibility and lawful compliance in using a motor vehicle.         

    ·     Paragraph 8.1.1(1)(g), which looks to whether the non-citizen has re-offended since being formally warned, or since being made aware, in writing about the consequences of further offending in terms of the non-citizen’s migration status, is engaged because the Applicant did indeed re-offend after being formally warned, in writing in March 2012, about the consequences of further offending in terms of the Applicant's migration status, following his 2009 offences,[46] which he duly acknowledged.[47]

    [39]    Exhibit R1, p 37.

    [40]    Exhibit R1, p 38.

    [41]    Exhibit R1, p 38-39.

    [42] Exhibit R2, p 6, para [38].

    [43]    Transcript, p 84, lines 36-47, p 85, lines 1-2.

    [44]    Exhibit R1, p 36-40.

    [45]    Transcript, p 108, lines 23-30, p 109, lines 11-24.

    [46]    Exhibit R1, p 72.

    [47]    Exhibit R1, p 72.

    Conclusion about the nature and seriousness of the Applicant’s offending

16. I have applied each of the relevant sub-paragraphs in paragraph 8.1.1(1) of the Direction. With reference to the same, I am of the view that the totality of this Applicant’s unlawful conduct in Australia can be readily characterised as “very serious”.

    The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

17. Paragraph 8.1.2(1) provides that, in considering the risk to the Australian community, I 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 of it being repeated may be unacceptable. 

18. Paragraph 8.1.2(2) provides that, in considering the risk to the Australian community, I must have regard to the following three factors on a cumulative basis:

    (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;

    (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 non-citizen re-offending; and

    (ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and

    (c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

    Paragraph 8.1.2(2)(a) - The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct

19. Sub-paragraph 8.1.2(2)(a) requires an assessment of the nature of harm to an individual or the Australian community were the Applicant to engage in further criminal or other serious conduct. The Respondent contends that if this Applicant were to reoffend, the nature of the harm to individuals or the Australian community would include:

    “(a) A risk of actual violence to a person, or persons, as committed by the applicant in his conduct relevant to his 2009 offences…;

    (b) A risk of further offending by possessing prohibited drugs and weapons, and including a risk of injury and death to a person, or persons;

    (c) A risk of further offending by driving with PCA, and including a risk of injury and death to a person, or persons, and damage to property.”[48]

    [48] Exhibit R2, p 7 para [40].

20. The Applicant conceded that if he was to “re-engage in serious violent offending then obviously that would be very serious to the Australian community…”.[49] The Applicant further conceded that the nature of the harm to individuals or the Australian community, “could be catastrophic”.[50] I have no difficulty in accepting the parties’ submissions. I find that if the Applicant were to reoffend, the nature of the harm to individuals or the Australian community would be serious and involve physical and material harm to individual victims and/or the community at large, including quite conceivably, harm to a catastrophic level.  

    Paragraph 8.1.2(2)(b) - The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    [49]    Transcript, p 92 lines 24-37.

    [50]    Transcript, p 92 lines 45-56, p 93, lines 1-4.

    (i)    Information and evidence on the risk of the Applicant reoffending

21. In his personal circumstances form (PCF), the Applicant provides the following explanation as to the factors that he believes help explain his offending and his belief about the recidivist risk he represents in Australia: “I believe the risk of my future reoffending is next to none.”[51]

    [51]    Exhibit R1, p 109.

22. The Applicant’s (unsigned) statement dated 7 September 2022 does not address, in any serious detail, the Applicant’s views on the likelihood of his reoffending.[52]   

    [52]    Exhibit A4, p 1-21.

23. In the Applicant’s Statement of Facts, Issues and Contentions (SFIC), the Applicant contends that he poses a “low” recidivist risk:

    “We concede that the primary consideration – Protection of Australian community weighs against the revocation of the visa cancellation. However, we submit that the Applicant’s violent offending occurred on 19 June 2009 and the risk to the Australian community should be considered ‘low’ as his serious violent offending were committed over 13 years ago.”[53]

    [53]    Exhibit A3, p 3, para 20.

24. Neither the Applicant’s opening submissions, nor his evidence-in-chief, specifically addressed any issues around the Applicant’s recidivist risk, except to say that the Applicant relied on his SFIC.[54]

    [54]    Transcript, p 5, lines 13-15.

25. The Respondent’s SFIC frames the Minister’s position on the Applicant’s recidivist risk as follows:

    “The Respondent contends that there is a high likelihood that the applicant will engage in further criminal or serious conduct (Direction 90, 8.1.2(2)(b)), having regard to:

    (a) The applicant has attributed his substance abuse as the underlying factor to his offending behaviour. As at the time of the 2021 offences, the applicant's reported engagement in rehabilitation (since 2018) had been unsuccessful [R1, p 117]. At the time of his sentencing, he was assessed at a medium-high risk of reoffending [R1, p 118].

    (b) There is no reasonable basis for the Tribunal to find that the applicant is rehabilitated, or will be rehabilitated in the foreseeable future. Submissions were made on behalf of the applicant on the first occasion of consideration of the cancelation of his visa, in November 2011, that there was "very little likelihood of recidivism in this case" [R1, p 143]. It might be accepted that at the time the applicant committed the 2009 offences he was "still a very young man" [R1, p 144], and had "a much better chance than an older person would have of dealing with his alcohol problem" [R1, p 146]. However, at the time of the most recent 2021 offences, the applicant was about 33 years old, and in the intervening period, he had developed a dependency on methamphetamines. He became addicted soon after his release to parole in August 2012 [R1, p 118]; he was placed in a rehabilitation facility in 2019, but relapsed after release [R1. p 205]. A clinical psychologist has most recently reported that upon his incarceration in 2020 he ceased the habit and was abstinent as at the time of writing i.e. 3 June 2021 [R1, pp 206, 209]. However, this is contradicted by the International Health and Medical Services records.”[55]

    [55] Exhibit R2, p 7, para [41].

1. During the Applicant’s cross-examination, the Respondent sought to impugn the Applicant’s evidence as to recidivist risk and substantiate the Respondent’s submissions about the same as set out in their SFIC.

2. First, it was suggested to the Applicant that he was heavily using and abusing methamphetamine (and, to a lesser extent, cannabis) when he was last in the community – a proposition that the Applicant readily accepted. [56]

   [56]    Transcript, p 25, lines 27-36.

3. Second, the Applicant admitted that he ignored his General Practitioner’s advice that he seek drug rehabilitation and other mental health support for his methamphetamine abuse despite such abuse having adverse physical and mental health implications for the Applicant:     

   “MR SHARPE: You also mentioned that when you were in the community you were seeing a GP, and the GP was assisting you with the medications by prescribing them for you and, also, modifying the dosages as necessary?

   APPLICANT: Yes, correct.

   MR SHARPE: Can you tell me, did you inform your GP, when he was prescribing medications for you, about the other drugs you were taking, the illicit drugs you were using?

   APPLICANT: Yes, he was aware of it. Yes, he was.

   MR SHARPE: Okay. So, what was he aware of? What did you tell him?

   APPLICANT: So, I was telling him about my ice use. That’s what I was prescribed Valium for. I was having – I was having seizures because – because of the ice use and then I stopped using the ice, and then they give me Valium to calm me down, to – because I would have massive seizures and I had the seizure in the cell when I went to gaol this time and they had to sedate me and put me up in the mental hospital, yes.

   MR SHARPE: Just to clarify, I’m asking you questions about what you told your GP when you were in the community, you told your GP about the use of ice?

   APPLICANT: Yes.

   MR SHARPE: And your GP also gave you a prescription for Valium, did he – - -?

   APPLICANT: He was prescribing it, yes.

   MR SHARPE: And what else did you say? What other – did you tell him about your cannabis use, for instance?

   APPLICANT: No.

   MR SHARPE: And were you taking cannabis at that stage?

   APPLICANT: Not much, no.

   MR SHARPE: When you say “not much”, what do you mean by that?

   APPLICANT: It wasn’t like I was taking ice.

   MR SHARPE: Okay. And was your GP, apart from prescribing you Valium to assist you with calming down when you were taking the ice, what was his advice to you – sorry, his, or her, advice to you about the use of ice?

   APPLICANT: So, because I used to have withdrawals and I couldn’t go to the toilet properly because of the ice use, that he would – he said, like, I better take – like take the Valium but he said “Aaron, you’re going to have to go” – he said, “You’re going to have to go to a rehabilitation.” He said, “Mate, you can’t stay like this. Like you can’t just be – like using Valium. It’s just like a Band-Aid”, you know. And pretty much he was giving me them because I was having the seizures because of the ice.

   MR SHARPE: What about your mental health, did he say anything to you about your mental health and the use of ice?

   APPLICANT: Yes, yes. Yes, he said that he – he wanted to – he wanted to refer me to a mental – he wanted to refer to a mental health person and, because – like my ex-partner, I’d say, like, “Yes, yes, yes, all right. Yes, yes, no worries” and then she would talk me out of it sort of thing and then – yes.” [57]

   [57]    Transcript, p 24, lines 41-44, p 25, lines 1-47, p 26, lines 1-7.

4. Third: the Applicant admitted to continuing methamphetamine and cannabis use, and abusing buprenorphine, while in immigration detention:

   “APPLICANT: … Well, when I came in [to Immigration Detention], I was so stressed, then I was using ice and I was smoking cannabis and buprenorphine, and they were trying to get me to do all these urines so they could get me onto the program to stop me from using drugs, and that’s what this one would’ve came from.”[58]

   [58]    Transcript, p 32, lines 10-14.

   “MR SHARPE: Mr Ryan, you referred to wanting to get onto a program and also, refer to having been stressed when you came into immigration detention. Can you just tell me again what was it, what drugs were you using at the time you came into immigration detention?

   APPLICANT: I was using – I was smoking pot and I was smoking ice and I was smoking bupe.

   …

   MR SHARPE: And just when you say smoking – smoke bupe, what do you mean by that?

   APPLICANT: It’s like a prescription drug that they give you, that’s what I’m on now, bupe.

   MR SHARPE: So buprenorphine, is that right?

   APPLICANT: Yes, yes. And I wanted to – because I was trying to get onto the program and Max, the drug and alcohol here, was really recommending that I was to be on his program and I have been now for a year and a half, about a year and a bit. Nearly a year, one – two..”

   MR SHARPE: With the bupe that you were smoking, I’ve seen that referred to as being smoked in strips, is that right, is that correct?

   APPLICANT: Yes, yes, correct.

   MR SHARPE: And you were using bupe, or smoking bupe, when you were in prison as well?

   APPLICANT: No, I didn’t do anything when I was there. I was – yes, it was only when I came here because I was in a stressful environment and the wing that I got put into was – like wasn’t good.”[59]

   “MEMBER: Sorry, just to be clear, Mr Ryan, you’re saying that you were using those drugs in immigration detention?

   APPLICANT: Correct.”[60]

   “MEMBER: Okay. But you are in immigration detention when you’re smoking ice and smoking cannabis, is that correct?

   APPLICANT: Correct. It wasn’t like I wanted to do it, just my cell mate was smoking and I just – he just offered it and gave it to me.”[61]

   [59]    Transcript, p 33, lines 31-46, p 34, lines 1-7.

   [60]    Transcript, p 34, lines 33-34.

   [61]    Transcript, p 46, lines 33-36.

5. Fourth: while the Applicant admitted to some methamphetamine and cannabis use in immigration detention, he denied that he frequently used these substances there, notwithstanding regular use is evidenced by contemporaneous notes and medical records created by independent health professionals:

   “MR SHARPE: Mr Ryan, I think you went onto the program in …2021, remember I took you to the letter from the New South Wales health which had approved you going on the program, do you recall that?

   APPLICANT: Yes.”[62]

   [62]    Transcript, p 47, lines 1-4.

   …

   “MR SHARPE: Okay. Associate, can you turn to page 804 please? So this is a consultation with a nurse again dated 21 February 2022. You see the first entry I wanted to take you to is to show that Ryan attended the clinic for his buprenorphine injection. So that’s the injection you receive as a result of being on the program, isn’t it?

   APPLICANT: I’m sorry, yes, yes, that’s what they give me, yes, correct.

   MR SHARPE: And then, further below that it says, reported using one point of ice last night, and then says, education was given to Aaron on the risk of using substances, states to writer, he is aware of the risk. So what that’s recording is that you were using ice the night prior, so 20 February 2022, you acknowledge that you were using ice in February 2022?

   APPLICANT: February, I – yes like I don’t remember telling them this…”[63]

   [63]    Transcript, p 47, lines 18-27.

   …

   “MR SHARPE: Can I just suggest to you, that would be surprising if a nurse was to misunderstand something you’d said about using either ice or pot?

   APPLICANT: Well, we don’t have really a conversation because they come out and they do the needle outside in the middle of the yard because no one is allowed in the clinic because of COVID, so they do – the last few times then, they were making us take the injection outside.

   MR SHARPE: Well, it’s a fairly specific entry here that says reported using one point of ice last night, so I just want to ask you again, do you want to – do you maintain that this is – if I’ve understood your evidence correctly, are you saying this is an inaccurate record, is that still your evidence?

   APPLICANT: Yes, because I went and seen mental IHMS and I had a conversation with them the other day and I told them that your entries are wrong and I said my mum and everyone is going to be so angry at me and they said, we will fix it up and we will put down there that, you know, that we’ve made a mistake, that’s what they said to me, the lady said to me.” [64]

   [64]    Transcript. P 47, lines 37-47, p 48, lines 1-5.

   …

   “MR SHARPE: Okay, can I ask that we turn now to page 800? This is a nurse consultation dated 22 April 2022. What it records there is that you were see in Lachlan one compound during outreach. There’s a number of entries but then one of the entries says, reported using ice, did not elaborate. So will you acknowledge that you were using ice in April of 2022?

   APPLICANT: No, no. And what’s outreach mean, what does that mean?

   MR SHARPE: Mr Ryan, this is not my entry but all I can suggest to you is that what is recorded is that this may not have been done in a clinic or in the IHMS rooms but it was a result of the nurse going to Lachlan one compound?

   APPLICANT: I don’t know, I don’t know what you’re saying, I don’t know, I don’t know.

   MR SHARPE: Well, I’ll just ask you again. You can tell me whether you agree or not, but what this seems to be recording is in April of 2022 – so, April of this year – you reported to IHMS that you were using ice?

   APPLICANT: I got moved compounds because my cellmate was using ice.

   MR SHARPE: So, do you say this is an inaccurate record, then?

   APPLICANT: I would say yes. There’s a lot of things that I’ve gone through with my solicitor and stuff that they’ve put there that is completely wrong, that they – my words – they’ve twisted and twisted my words, and they’re not listening to me.”[65]

   …

   “MR SHARPE: Okay. Well, I wanted to take you to other entries below that. It says there that, “Reported has been using ice daily. Last use was last night. Education provided regarding drug awareness and risk of physical and mental health.” So, again, this is an entry which is taken by IHMS which appears to be recording something you told them, and the effect of that was that you were using ice as of May 2022. Do you agree that that’s the case, that you were using ice in immigration detention in May of 2022?

   APPLICANT: No. At worst, I would’ve told them that I’ve used extra bupe on top to – so I don’t hang out because I felt sick from, like, my injection running out. That’s at worst, and smoke (indistinct) that’s it.

   MR SHARPE: Okay. Well, I’ll come to that in a moment, but in terms of the ice, then you’re saying again that this is an inaccurate record, is it?

   APPLICANT: I would say correct. About the ice use, correct.

   MR SHARPE: And then you said that you might have told them that you were using extra bupe on top of the injections that you received, so are you telling me that you had been smoking some additional bupe in addition to the injections?

   APPLICANT: To stop me from hanging out at that time, yes, because my injection was low – on a lower dose, so coming towards the end of the month I was having, like, nausea, cramps, and I wasn’t well.

   MR SHARPE: If we can turn to page 769. This is another record may in May of 2022, but this time 23 May, so towards the end of the month. Again, records that you attended a clinic for Buvidal injection. Again states that (indistinct) not stable on current dose; wants to get a higher dose. States there reports that he cannot feel the high. Education was given on OSTP of Buvidal and then also says, “Admits to using ice every now and then.” So, again, this is a record that seems to be suggesting that in May of 2022, you were using ice in immigration detention every now and then; do you accept that that was the case?

   APPLICANT: Correct. But just to add to that quickly is – so, my main thing that I would’ve said to them was to refrain me from using ice and using these things; please help me increase my does, but you got to understand the hiccup there between – like, so you can go on that, the extra dose, but you had to go on that monthly shot, and I didn’t want to have the monthly shot. This is the conversation. So, in order for me to have that monthly shot, I’ve got to have 128 mils, so you got to have extra, and Max would not put me on that extra dose on a weekly shot. You can’t. It’s too fatal.”[66]

   [65]    Transcript, p 47, lines 37-47, p 48, lines [ ]-27.

   [66]   Transcript, p 49, lines 15-47, p 50, lines 1-5.

6. Fifth, the Applicant admitted that he has “an opioid addiction or an opioid dependence.”[67]

   [67]    Transcript, p 71, lines 30-31.

7. The Tribunal received some limited written lay evidence from the Applicant’s “friend and mentor”, Jaroslaw Gruca, who pledged future support to the Applicant.[68] Mr Gruca also provided a letter to the Tribunal dated 7 September 2022.[69]  

   [68]    Exhibit R1, p 27.

   [69]    Exhibit A4, page 27.

8. Separately, the Tribunal has before it:

   ·seven support letters, from 2021, written by, respectively, the Applicant’s mother, Jasmine Pyke,[70] his uncle, Daniel Ryan (x3),[71] and his friends, Souad Daher,[72] Jaroslaw Gruca,[73] and Ashlee Wright,[74] who have addressed some background to the Applicant’s offending and his good nature, and pledged future support to the Applicant but provided little to no insight into the Applicant’s reoffending risk – I give these letters some weight in relation to the Applicant’s character;

   ·one support letter, from 2021, written by the Applicant’s son’s “caseworker” Holly Nashabe[75] – I give this letter some weight in relation to the Applicant’s character but the same letter does not otherwise address the Applicant’s reoffending risk;

   ·nine support letters, from 2011, written by the Applicant’s friends, family and others in support of the Applicant.[76] Given that the letters were issued more than a decade ago and in different circumstances (i.e., before the Applicant’s most recent drug-related weapons offending), I am unable to give their assessment of the Applicant’s character or his risk to the community much weight.

   [70]    Exhibit R1,pp 190 - 191.

   [71]    Exhibit R1, pp 219-220, 235-236, 238-240.

   [72]    Exhibit R1, p 188.

   [73]    Exhibit R1, p 189.

   [74]    Exhibit R1 p 221.

   [75]    Exhibit R1, p 184-185.

   [76]    Exhibit R1, p 131-140.

   (ii)    Evidence of rehabilitation achieved by the Applicant by the time of this decision

9. The Applicant has offered no independent expert clinical evidence about this recidivist risk. Concerningly, the Applicant adduced no expert/clinical evidence regarding his rehabilitation from:

   ·alcohol abuse – which the Applicant concedes was a major factor in his offending,[77] including his serious violent offending;

   ·methamphetamine abuse – which the Applicant concedes was a major factor in his weapons and related offences;[78] and

   ·opioid addiction or dependence.

   [77]    Transcript, p 70, lines 12-16.

   [78]    Exhibit R1, p 116-120.

10. The Applicant readily concedes that there is very little evidence of rehabilitation achieved by the time of the decision by the Tribunal:

    “MEMBER: …the direction requires me to consider evidence of rehabilitation achieved by the time of the decision, giving weight to the time spent in the community since the most recent offence. In respect of that, which is 8.1.2(2)(b)(ii), you would say that there has been very little evidence of rehabilitation achieved by the time of this decision, you’d concede that, wouldn’t you.

    MS MAMAROT: I would, yes.”[79]

    [79]    Transcript, p 91, lines 15-22.

11. The Applicant has undertaken alcohol and drug rehabilitation programs, including a residential rehabilitation, in the past. Unfortunately, these programs do not appear to have achieved their objectives for the Applicant. For example, the Applicant most recently completed a three-month live-in program in Wagga Wagga in 2019:

    “MR SHARPE: And when you came out of prison on remand where I understand the condition of that remand was you go into the residential facility for rehabilitation in Wagga?

    APPLICANT: Yes.

    MR SHARPE: How long was that program that you were meant to attend in Wagga?

    APPLICANT: Three months.

    MR SHARPE: And did you stay there for the entire three months?

    APPLICANT: Yes, I completed it. Yes, correct.”[80]

    “MR SHARPE: And can you tell me what type of courses or programs you did while you were in the rehabilitation program at Wagga?

    APPLICANT: So, you had to learn about sobriety and refraining from drug and alcohol. You had to talk about, you know, it’s group work and then pretty much you have to get up and you have to demonstrate what you’ve learnt and, you know, that’s what I did.

    …

    MR SHARPE: Okay. Well, was it the case you finished the program and then sometime after that you started using ice?

    APPLICANT: Yes.

    MR SHARPE: How long after was it that you finished the program you started using ice?

    APPLICANT: Two or three months.[81]

    [80]    Transcript, p 71, lines 33-41.

    [81]    Transcript, p 72, lines 1-5, 18-23.

12. From November 2021 to now, while in immigration detention, the Applicant has participated in the NSW Opioid Treatment Program for the treatment of Opioid Dependence.[82]  In connection with the same, and more broadly in relation to the Applicant’s alcohol and drug addiction, the Applicant concedes that he remains in the early stages of a rehabilitation journey:       

    MEMBER: Is it fair to say you’re at the beginning of the journey?

    APPLICANT: Well, because I’ve been on the drug and alcohol program for some time now, I don’t think I’d be at the beginning, no.

    MEMBER: So, based on the material that Mr Sharpe took you to earlier where it is recorded that you’ve told people in IHMS that you were using ice and other drugs inside [immigration] detention; would you say that that rehabilitation journey has been rocky and that it’s not yet complete?

    APPLICANT: It has been rocky, yes, it has.[83]

    “MEMBER: Okay. So, at what point do you think you’re at in that rehabilitation journey to get off drugs and alcohol?... So, on a scale of one to ten, one being at the start, ten being at the finish on the rehabilitation journey; where would you say you are at the moment?

    APPLICANT: Four.”[84]  

    [82]    Exhibit R5, p 27.

    [83]    Transcript, p 70, lines 1-8.

    [84]    Transcript, p 70, lines 21-29.

13. The Applicant has participated in a number of courses while in custody, covering topics such as Depression Management, Building Self-esteem, Concentration, Domestic Violence, Anger Management, among others.[85]

    [85]    Exhibit R1, p 216-218.

    (iii)   Conclusions about risk

14. Before addressing my conclusions about the risk that the Applicant poses to the Australian community, I need to say something about the picture painted by the Applicant’s evidence about himself. While the Applicant did demonstrate some commendable insight about his past offending, he also offered contradictory and, frankly, unbelievable evidence about key aspects of drug abuse, especially his current methamphetamine use. On the one hand, the Applicant accepted that he currently uses methamphetamines but on the other hand, he was unwilling to concede the extent of his use, even when faced with contemporaneous evidence from independent medical sources for the same. The Applicant’s apparent unwillingness to be candid about this issue was self-serving and, generally, does not paint the Applicant’s capacity for honesty in a favourable light.     

15. Based on the relevant information before me, I draw the following conclusions:

    ·this is a case in which the risk of harm is so serious that any risk of reoffending is unacceptable – if the Applicant were to reoffend, the nature of the harm to individuals or the Australian community would be serious and involve physical and material harm to individual victims and/or the community at large, including quite conceivably, harm to a catastrophic level;

    ·the Applicant’s claim that the risk of his future reoffending is “next to none” is simply not credible. The Applicant readily accepts that alcohol and drug abuse were key to his grievous bodily harm and weapons offending, respectively, but there is no real evidence of the Applicant’s alcohol and drug rehabilitation. On the contrary, the Applicant continues to still be in the grip of long-term addiction;       

    ·the Applicant previously attempted and failed at rehabilitation in terms of alcohol and drug abuse. In fact, not only has his substance abuse continued but it appears to have escalated; and

    ·overall, I find that this Applicant has a presently serious, and unacceptably high risk of reoffending.

    Is the risk of harm affected by any of the factors referred to in sub-paragraph 8.1.2(2)(c) of the Direction?

1. Paragraph 8.1.2(2)(c) provides:

   “where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.”

2. I address this specific sub-paragraph purely out of an abundance of caution and for the sake of completeness. This matter does not involve a “refusal to grant a visa to a non-citizen”. It involves an application for the “revocation” of a decision to mandatorily cancel the Applicant’s visa. This specific paragraph is not relevant to the determination of this application.

   Conclusion: Primary Consideration 1

3. With reference to the weight attributable to this Primary Consideration 1:

   (a)I have found that the nature and seriousness of the Applicant’s conduct to date has been, “very serious”;

   (b)I repeat my finding that were the Applicant to reoffend, the nature of the harm to individuals or the Australian community would be serious and involve physical and material harm to individual victims and/or the community at large, including quite conceivably, harm to a catastrophic level; and

   (c)I have assessed the Applicant’s recidivist risk of engaging in further criminal or other serious conduct (upon return to the community) as high by taking into account (1) available information and evidence before me informative of such risk; and (2) the dearth of any expert and independent clinical written evidence speaking to the levels of rehabilitation achieved by this Applicant.

4. My analysis of the material before the Tribunal has led me to the finding that this Primary Consideration 1 carries a very heavy weight against revocation of the mandatory cancellation of the Applicant’s visa.

   primary consideration 2: family violence

5. Paragraph 8.2 of the Direction provides: 

   (1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

   (2)This consideration is relevant in circumstances 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.

   (3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered 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 non- citizen’s migration status, should the non-citizen engage in further acts of family violence.

6. It was common ground between the parties that the Applicant has never been convicted of an offence, found guilty of an offence or had charges proven howsoever described that involved family violence.[86] However, the question of whether there is information or evidence from independent and authoritative sources indicating that the Applicant is, or has been, involved in the perpetration of family violence, and the weight attributable to the same, was a point of significant difference between the parties.

   [86]    Transcript, p 127, line 1.

7. The materials before me indicate that:

   ·on 27 May 2015, the Applicant was charged with assault occasioning actual bodily harm of his then de facto partner,[87] and was issued an apprehended violence order (AVO). [88] This matter was dismissed by the court, not guilty, after a hearing.[89] The Respondent put the incident to the Applicant at the hearing and he did not accept any of the allegations;[90] and

   ·on 5 June 2017, the Applicant was charged with seven sequence offences relating to the violent assault of his then de facto partner[91] and was issued another AVO. According to the incident details, on that occasion, the Applicant attacked his de facto with a meat cleaver, which resulted in a laceration to the woman's head, and required three staples, multiple other lacerations and bruising, and a possible cornea eye laceration. The Applicant reportedly also threatened to kill his son.[92] The Applicant was committed to stand trial on four of the seven charges. The charges were subsequently dropped by the Director of Public Prosecutions.[93] The Respondent put the incident to the Applicant at the hearing and he did not accept any of the allegations.[94]

   [87]    Exhibit R6, p 77.

   [88]    Exhibit R1, p 200.

   [89]   Transcript, p 66, lines 33-34.

   [90]    Exhibit R6, 78.

   [91]    Exhibit R6, pp 78, 106-107.

   [92]    Exhibit R2, p 8, para 43.

   [93]    Transcript, p 87, lines 35-38.

   [94]    Transcript, p 87, lines 8-14.

8. There is no dispute between the parties that the victims in relation to the 2015 and 2017 charges, were each a member of the Applicant’s family at the relevant time.

9. The Applicant submits that the Tribunal should accept the court’s finding on the 2015 charge – that the Applicant was not guilty. The Applicant contends that neutral weight should be given to this particular matter and that the Tribunal should not go beyond the court’s decision.[95] On the 2017 charge, the Applicant contends that “the public prosecutor decided on evidence not to proceed…this incident shouldn’t be given much weight based on the fact that there isn’t evidence that the applicant committed the offences, and he gave oral evidence [before the Tribunal] to say that he didn’t agree with the [police] records.”[96]

   [95]    Transcript, p 86, lines 20-42

   [96]    Transcript, p 87, lines 43-46, p 88, lines 1-4.

10. The Respondent contends that the police records in relation to the 2015 and 2017 charges are information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence.[97] While the Applicant concedes that police records are  “independent sources”, he submits that “we don’t know what facts went before the court, and we don’t know how much of that is actually accurate or inaccurate.”[98]

    [97]    Transcript, p 127, lines 5-11.

    [98]    Transcript, p 87, lines 12-14.

11. To my mind, it would be inappropriate for me to rely on evidence contrary to the essential conviction (or non-conviction) by a court in relation to offending,[99] including domestic violence offending.  Accordingly, I am not prepared to look behind the 2015 charge, even though there is obviously an “independent source” for the charge, given that the Applicant was found not guilty of the same. To do otherwise would amount to jurisdictional error on my part. I therefore give neutral weight to the 2015 charge for the purposes of this Primary Consideration 2.

    [99]    HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.

12. The position is different in relation to the 2017 charges. As already indicated, paragraph 8.2(2)(b) does not require that there to have been a criminal conviction for a finding of family violence conduct where there is an “independent source” for the same (as there is in this case). While the 2017 charges were dropped, that does not mean that I am prevented from considering an “independent source” for the Applicant’s relevant conduct under this Primary Consideration.

13. The Respondent helpfully took the Tribunal through the police records – as an independent source – for the 2017 charges as follow:    

    “MR SHARPE: I wanted to take you to that part of the record where it refers to the victim, screaming for help…So that reads [R6, p107], “The victim was screaming for help, begging for the accused not to hit her again with the multi (indistinct), with neighbours hearing the pleas for help and contacting police”. Now, what I wanted to note from that is that here we have something that the police have relied upon – sorry. Police have relied upon evidence taken from other people; here, relevantly, the neighbours, as to what the neighbours heard as a result of the argument that was occurring between the applicant and his former partner, and it was the neighbours who called the police. Further on in the record – sorry, I’ll just get the line number for you. Starting on the 19th line on page 108, in the middle of that line there’s a sentence that commences “with”.     

    Member, what it says there is, “11.35 pm, police attended the location, could hear the accused yelling at the victim and the victim sobbing and pleading with the accused, saying ‘give him to me, let them in’.” It then goes on to say, “The accused opened the front door where police observed the accused to have the child, holding the child under the armpits with the child dangling in front of them. The accused passed the child to the police before the accused was escorted from the residence. On entering the residence, police observed the house to be in a deplorable state with the victim standing in front of the lounge. The victim was hysterical and crying, with blood over her left hand and running down the left side, shoulder, and neck, and chest. Police observed the blood to be coming from a gash to the left side of the victim’s head”. So in this case, these are observations made by the police after they arrived at the residence. So here is not the police relying upon record from anybody else, but making their own observations (indistinct) at the residence. Now, relevantly, police observed the injuries that had been caused to the applicant’s former partner and the ultimate result of that was the blood that was appearing on her left hand and running down her shoulder.

    At the end of the record, again on page 108, on the fifth-last line of the record, it says “At about 5.11 pm on Monday 5 June 2017, police spoke with Dr” – the name of the doctor’s been redacted – “who advised police that the victim has a laceration to her head requiring three staples, multiple other lacerations and bruising, and a possible cornea/eye laceration”. So in that case, the police are relying upon the report which had been received from the doctor, about the observations the doctor had made about injuries that had been caused to the applicant’s former partner. [100]

    [100] Transcript, p 129, lines 33-47, p 130, lines 1-34.

14. The Respondent asked the Applicant, during cross-examination, what he could tell us regarding how the foregoing injuries were caused. His answer was, he didn’t know. He then offered an explanation that possibly the victim had caused the injuries to herself. In response to this, the Respondent contended, and I am inclined to accept, that:

    “MR SHARPE: Now, what this record shows is that there were only two people – before the police arrived, there were only two people in the residence, the applicant and his former partner. I suggest firstly just, it’s improbable that he would not know how it was that injuries such as those that [name redacted] was showing, he would not know how those had been caused. Secondly, it’s improbable, given the description of the types of injuries that were caused, that those injuries would have been caused by Rebecca, will have been self-inflicted. Those circumstances suggest that the applicant’s evidence about this should not be accepted, and you should instead accept the explanation or description given in this record about how those injuries were caused to [name redacted].” [101]

    (Emphasis added)

    [101] Transcript, p 130, lines 35-47, p 131, line 1.

15. Based on the materials before me:

    ·I consider (and find) that, for the purposes of this Primary Consideration 2, the Applicant has, in relation to the 2017 charges, been involved in perpetrating family violence, against his then de facto partner;

    ·I consider (and find) that the Applicant’s family violence conduct in relation to the 2017 charges must be characterised as “serious” family violence conduct, noting that even the Applicant acknowledges that the allegations underlying the same were “very serious with the victim having a laceration to her head;”[102]

    ·while the Applicant appears to have undertaken a domestic violence rehabilitation course,[103] the Applicant does not appear to have achieved any rehabilitation in relation to the domestic violence conduct underlying the 2017 charges – he does not accept responsibility for the conduct, he does not understand the impact of his behaviour and has made limited efforts to address the factors which appear to have contributed to the conduct.        

    [102] Transcript, p 87, lines 23-29.

    [103]  Exhibit R1, p 217.

    Conclusion: Primary Consideration 2

16. I find that this Primary Consideration 2 weighs very heavily against revocation of the mandatory cancellation of the Applicant’s visa.

    primary consideration 3: the best interests of minor children in australia

17. Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether non-revocation under s 501CA is, or is not, in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under eighteen years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

18. The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

    ·the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    ·the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

    ·the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    ·the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways; and

    ·whether there are other persons who already fulfil a parental role in relation to the child.

19. Initially, the Applicant claimed that the best interests of one minor child is affected by his visa cancellation – being his son, (year of birth: 2016) (Son).[104] At hearing, a further five children were identified as being affected by this visa cancellation – being his niece, (year of birth: 2015) (Niece 1), his nephew, (year of birth: 2021) (Nephew 1)[105] and three foster children living with the Applicant’s mother – two boys (Foster Child 1)  and (Foster Child 2) aged “nearly 18” years of age and “15 or 16” years old, respectively, and one girl (Foster Child 3) who is aged “about 14 [or] 15” years old”.[106]  

    [104] Exhibit R1, p 104, Exhibit A3, p 3, para [21].

    [105] Transcript, p 8, lines 32-43.

    [106] Transcript, p 10, lines 1-3.

20. In relation to the Applicant’s Son, the evidence was that the Son is in the care of the Applicant’s mother. He has apparently been placed with the Applicant’s mother under a court order[107] with the involvement of the NSW Department of Family and Community Services (FaCS).[108] According to the Applicant, he has strong bond with his Son.[109] The Applicant’s statement says, “my son is a beautiful boy and I love him very much.”; [110] “Now, my Mum is the primary carer of [my son]…I trust my Mum with my son.”;[111] “I know my son is doing well because my Mum lets me know.”; [112] and “I believe [my mum] is taking good care of [my son]. I believe my son is very happy with my mother and his current living arrangements.”[113]  According to the Applicant, he last spoke with his Son around 12 months ago via WhatsApp.[114]

    [107] Transcript, p 101, lines 20-23.

    [108] Transcript, p 91, lines 40-41.

    [109] Exhibit A3, p 3, para [22].

    [110] Exhibit A4, p 3, para [19].

    [111] Exhibit A4, p 3, para [18].

    [112] Exhibit A4, p 3, para [22].

    [113] Exhibit A4, p 4, para [23].

    [114] Exhibit A4, p 3, para [20].

21. The Applicant’s evidence was that his Son doesn’t have access to his biological mother, and it was submitted that “essentially his position is that Son is his main priority, he wants to play a parental role. He’s completely motivated in terms of getting rehabilitated, getting stable accommodation, getting stable employment; it’s all because of his aspirations in order to get [Son] back into his care”.[115] The Applicant’s mother indicates that it will be “devastating” for the Applicant’s son if the Applicant is deported.[116]  

    [115] Transcript, p 91, lines 42-47. 

    [116] Exhibit R1, p 190.

22. The Respondent’s submission acknowledges that there is an interest for the Applicant’s Son to maintain a relationship with his father:

    “MR SHARPE: But in all the circumstances, particularly given the fact that [Son] is under the care of and in the custody of the applicant’s mother, and there is no indication that there is any lack in care, that [Son] is lacking in any care under those arrangements; that less weight should be given to this consideration that might otherwise be given to the consideration.”[117]

    …

    “Mr Ryan is not providing [parental]  care to [Son]; he speaks of a wish to have [Son] in his custody and care in the future. And a submission I would make about that, and intend to make by written submission, is that that ability for him to take care and custody of [Son], in the same way that a parent might otherwise have care and custody of a child, is something of a – I was going to say unlikely, but I wouldn’t say unlikely. But there is significant hurdles in place for him actually taking that type of care and custody of [Son] again in the future. That is the context I mean by way of less weight that would otherwise be provided to that consideration.”[118]

    [117] Transcript, p 106, lines 42-47.

    [118] Transcript, p 107, lines 14-22.

23. The Respondent subsequently made submissions to the Tribunal dated 15 September 2022, in which the Respondent contended, in summary, that the Applicant would unlikely succeed in obtaining parental custody and care of his Son under applicable New South Wales legislation. The Applicant declined an opportunity to make submissions on this point, having earlier indicated at the hearing that he didn’t see this as having any relevance to the application of this Primary Consideration 3.[119] To my mind, the question of whether the Applicant could obtain parental custody and care of his Son is relevant to this Primary Consideration 3 because the Applicant’s stated plan is re-gain custody of his son. Based on the Respondent’s submissions, I consider it unlikely that the Applicant would re-gain parental custody and care of his Son until such time as, at a minimum, his substance abuse addiction is resolved.

    [119] Transcript, p 104, lines 8-14.

1. I am of the view (and find) that:

   ·the Applicant’s mother is performing a quality parental care role to the Applicant’s Son;

   ·the Applicant’s relationship with his son has been characterised by periods of absence and limited meaningful contact;

   ·there is no obvious impediment to the Applicant having contact with his Son via electronic means from the United Kingdom; and

   ·given the Applicant’s substance abuse addiction and absence of rehabilitation, lack of employment and stable housing, he is unlikely to play a positive parental role in his Son’s life until those matters are properly addressed and resolved. However, given the young age of his Son, there is a possibility that the Applicant may rehabilitate before his Son’s adulthood.

2. Overall, I consider (and find) that the best interests of the Applicant’s Son carries moderate weight in favour of the revocation of the cancellation of the Applicant’s visa.

3. In relation to Niece 1 and Nephew 2, the Applicants contends that he doesn’t play a parental role in their lives, but he plays “some role”. He does say that he’s very close to them and, in particular, Niece 1, whose name he has tattooed on his leg which was submitted “does signify that he does care deeply”.[120] The Respondent contends that the evidence that we have is that both of those children are cared for by their parents, they live with their parents, and there is no indication that they are lacking in any way in terms of their care. The relationship he has with them is in the nature of an uncle and nephew and niece, rather than a parental relationship, there is no indication that he has taken on any responsibilities for the care of those children. So even though their best interests would be relevant I would say the weight to be given to their best interests would be minimal.[121] There is no evidence form any of these children and no evidence that the Applicant’s current absence has adversely impacted them. I consider (and find) that the best interests of Niece 1 and Nephew 2 carries limited weight in favour of the revocation of the cancellation of the Applicant’s visa.

   [120] Transcript, p 92, lines 3-8.

   [121] Transcript, p 100, lines 45-47.

4. In relation to Foster Child 1, Foster Child 2 and Foster Child 3, the Applicant concedes that these children are in his mother’s care and the Applicant further concedes that “no real weight” should be placed on their relationship because the Applicant “doesn’t really have that much of a relationship with those foster children.”[122] In a similar vein, the Respondent submits that the Applicant seems to not play a parental role in relation to any of those children. There is no indication that the Applicant takes on any parental role in relation to those children or for their care. As far as the evidence goes, it seems like these children are in the care of the Applicant’s mother and there no indication that they are not being appropriately cared for.[123] There is no evidence from any of these children and no evidence that the Applicant’s current absence has adversely impacted them. I consider (and find) that the best interests of Foster Child 1, Foster Child 2 and Foster Child 3 carries very limited weight in favour of the revocation of the cancellation of the Applicant’s visa.

   [122] Transcript, p 92, lines 10-12, p 93, lines 1-7.

   [123] Transcript, p 101, lines 9-18.

5. The Applicant says that this Primary Consideration 3 weighs heavily in favour of revocation of the visa cancellation, and really should outweigh all other primary considerations.[124] On the relevant material before me, I cannot accept this submission.

   [124] Exhibit A3, p 4, para [25]-[26]; Transcript, p 91, lines 36-38.

   Conclusion: Primary Consideration 3

6. I have had regard to the relevant and applicable factors in paragraph 8.3 of the Direction as those factors relate to each of the relevant children captured by the auspices of this Primary Consideration 3. Having regard to the totality of the evidence and whatever cumulative strength can be found for that evidence upon application of the relevant sub-paragraphs in paragraph 8.3(4) of the Direction, I find that this Primary Consideration 3 weighs moderately, but not determinatively, in favour of revoking the decision to mandatorily cancel this Applicant’s visa.

   primary consideration 4: expectations of the australian community

7. The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[125] The Direction further explains:

   “This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.4(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.”[126]

   [125] Direction, paragraph 8.4(3).

   [126] Direction, paragraph 8.4(4). Paragraph 8.4(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.

8. With reference to the propositions in paragraph 8.4(1) of the Direction, the architecture of this sub-paragraph can, to my mind, be expressed thus:

   (a)the Australian community expects non-citizens to obey Australian laws while in Australia; and

   (b)as a norm, where a non-citizen has either:

   ·breached the expectation in the immediately preceding sub-paragraph (a); or

   ·there is an unacceptable risk that the non-citizen will breach the expectation in the immediately preceding sub-paragraph (a);

   ·then, the Australian community expects that the Australian government will not allow such a non-citizen to enter or remain in Australia.

9. Clearly, this Applicant has breached the Australian community’s expectations by his relatively lengthy criminal record, evidencing repeated breaches of Australian laws. Therefore, the Australian community, “as a norm” expects the Australian government not to allow him to remain in Australia.

10. In addition to the guidance provided by paragraph 8.4(1) of the Direction, paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

    (a)  acts of family violence; or

    (b)  causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

    (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, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

    (d)  commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

    (e)  involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

    (f)    worker exploitation.

11. Earlier in these reasons, I found that the Applicant has committed an act of family violence. The Applicant’s conduct engages the principle in paragraph 8.4(2), which means the Australian community expects that the Australian government can and should cancel this Applicant’s visa.

12. The final question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4) and (5) of the Direction. In summary these are:

    (a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;

    (b)the Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;

    (c)Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life; and

    (d)the nature of a 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 a visa outcome that is not adverse to the non-citizen.

13. In relation to (a), the term, “limited stay visa” is not defined in the Act. However, the Act does classify visas into particular categories. Section 30 of the Act contemplates both (1) “permanent” visas, which permit a right to remain, “indefinitely”; and (2) “temporary visas”, which provide a conditional right to remain. “Limited stay”, as used in the Direction, seems to my mind, to be a reference to non-permanent or, “temporary” visas. This Applicant had a permanent visa, so this principle described in the abovementioned sub-paragraph (a) does not apply to determination of this application.

14. In relation to (b), the Applicant has resided in Australia on a permanent basis from the age of two. He is now 34 years old. Based on the materials before me, the Applicant attended primary school in Australia and has undertaken some vocational skills training. He has a limited employment history in Australia, has fathered one biological child, although he has not had care and custody of the child for some years. This means that the Australian community’s tolerance for this Applicant is increased by this component of the principles.

15. In relation to (c), the Applicant has resided in Australia for more than three decades, having spent around 32 years of his life here in total. This means that the Australian community’s tolerance for this Applicant is increased by this component of the principles.

16. In relation to (d), I am of the view (and find) that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-offending and (on the other hand) whatever countervailing considerations may work in his favour, is necessarily a principle referable to the Australian community’s expectations for present purposes. I have reached this view because I think the Applicant’s conduct, and resulting harm from that conduct (at least thus far), has been of a sufficient magnitude to dispel or quash any applicable countervailing considerations.

17. I therefore arrive at the finding that the Australian community’s expectations are, to a very small extent, modified such that the community has a higher than usual tolerance of the criminal conduct committed by this Applicant. Be that as it may, because of: (1) his repeated breaches of the Australian community’s expectations; and (2) his conduct in the realm of family violence, I am of the view that the community expects the government can and should cancel this Applicant’s visa.

18. I note that the Applicant concedes that this Primary Consideration 4 weighs against revoking the visa cancellation.[127]

    [127] Exhibit A3, p 4, para [17].

    Conclusion: Primary Consideration 4

19. Primary Consideration 4 carries a very heavy weight against revocation of the mandatory cancellation of the Applicant’s visa.

    Other considerations

20. It is necessary to look at the Other Considerations non-exhaustively listed at paragraph 9 of the Direction.

    Other Consideration (a): International non-refoulement obligations

21. There is no suggestion on the evidence before the Tribunal that this consideration is relevant to the review. As such, I find it has neutral weight.[128]

    [128] Exhibit A3, p 4, para [18].

    Other Consideration (b): Extent of impediments if removed

22. Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (a)the non-citizen’s age and health;

    (b)whether there are any substantial language or cultural barriers; and

    (c)any social, medical and/or economic support available to that non-citizen in that country.

    The Applicant’s written submissions

23. The Applicant indicated on his PCF that he has been diagnosed with “bipolar”, has suffered from a long history of anxiety and depression, has low cognitive abilities, has ADHD and borderline personality disorder.[129] On the same PCF, he ticked “yes” to the question on whether he has concerns or fears about what would happen to him if he were to return to the United Kingdom. He explains that he has never left Australia since his arrival. He says that he has “no family/contacts anywhere in England and with my mental health and literacy/comprehension I am worried I will be homeless or dead.”[130] 

    [129] Exhibit R1, p 111.

    [130] Exhibit R1, p 112.

24. The Applicant’s SFIC makes the following contentions:

    “…the Applicant would face practical and emotional hardship upon return to the United Kingdom due to lack of any experience of living there and the absence of any personal support, which is significant due the Applicant’s intellectual limitations and psychological conditions.”[131]

    [131] Exhibit A3, p 4, para [19].

    The Applicant’s oral submissions and evidence     

25. At the hearing, the Applicant made the following relevant submissions about the extent of impediments to the Applicant if he is removed from Australia:

    “MS MAMAROT…obviously the applicant would face practical, emotional hardship if he was removed back to the UK, but I’d be submitting there are significant impediments in this matter. On the evidence we know that the applicant was from childhood a victim of significant domestic violence.”[132]

    [132] Transcript, p 94, lines 9-12.

    …

    “Mr Ryan has had an upbringing of severe – obviously severe domestic violence and it has impacted him… This report that I’m referring you to is one by Community Offender Services, and it’s dated from 2009, so it is relatively old, Member, but I just wanted to show or demonstrate the findings of this report. Page 415 on the first page, and the last paragraph, it talks about an assessment done called a WASI assessment, which is the Wechsler Abbreviated Scale of Intelligence. It says in the last pare that that was completed and that Mr Ryan’s IQ indicated an overall intellectual functioning within the extremely low classification…”[133]

    …

    “This is 2009, Member. We don’t have any updated reports but it has been accepted that he does function at a lower intellectual level. In exhibit 1 at page 60 Garling J did accept that, in that judgment that:

    I accept that he had a difficult upbringing, little education, he functions at the lower intellectual level. He has anger problems, ADHD, borderline personality disorder anxiety, depression”[134]

    …

    “…if Mr Ryan was to be removed the impediments would be very significant in his case, given his vulnerable position in that he’s got a number of problems that have been identified, also with a lower intellect level.”[135]

    …

    “[in relation to social, medical and/or support available] we’re not disputing that he’d have access to the social and health system, being a citizen of the UK that would be available to other citizens, however I would be saying that obviously the impediments will be him having the resources to access given his current impediments. Obviously, language also is not an impediment, but it’s just the support network; what I’d be saying is that even though it’s available, would he have the resources or the knowhow how to access them having no one, knowing no one.”[136]

    [133] Transcript, p 95, lines 6-13.

    [134] Transcript, p 95, lines 26-33.

    [135] Transcript, p 96, lines 15-18.

    [136] Transcript, p 97, lines 15-23.

    The Respondent’s written submissions

26. The Respondent concedes that there would be impediments for the Applicant in establishing himself and maintaining basic living standards in the United Kingdom.[137]

    [137] Exhibit R2, p 10, para [53]-[54].

    The Respondent’s oral submissions

27. At the hearing, the Respondent made the following relevant submissions about the extent of impediments to the Applicant if he is removed from Australia:

    “MR SHARPE: What I wanted to go through initially was to talk about the applicant’s mental health, make some comments upon the applicant’s mental health and his intellectual capabilities. Which I think  has been an issue which has been addressed, and also has figured somewhat prominently in the materials prior to the hearing. I want to first go to the report which appears in the applicant’s tender bundle, the report by Greg Hutcheon, psychologist, that is in the applicant’s tender bundle. So, exhibit [A4], starting at page 22.”[138]

    [138] Transcript, p 98, lines 23-30.

    “…At page 25, in the first – you will see at the top of page 25 there is a heading of “treatment plan progress” there is five paragraphs under that heading, the last of those paragraphs commences by saying “there are limitations with engaging with the therapist.” I wanted to take you to the second sentence there, this is just by way of the applicant’s current mental state, because it says:

    He presents as insightful about his mental health difficulties and motivated to continue addressing them in the future.

    “So that was the first thing I wanted to take you to and to note that comment, that he is “insightful” about those matters. The second entry I wanted to take you to was report of Dr Protuilipac, I will call him, also Dr Zoran, I think as he was referred to by Ms Mamarot.”[139]

    [139] Transcript, p 98, lines 32-46.

    …

    “So that is in the [R1]. The part I wanted to take you to was page 211:

    He matured since the times when he was last assessed, namely 2005, 2010 and 2011 and this necessarily installed some life skills and improved his decision-making processes to a degree.”[140]

    [140] Transcript, p 98, lines 3-11.

    “I acknowledge that is not perfect and there is some caveat to it, but what those two entries both from Greg [Hutcheon] and also by Dr Zoran were indicating is that there is some development and some insight, and that the applicant has developed some life skills. So, despite reports which we’ve seen which have addressed his mental health difficulties and also his intellectual capabilities, what these reports are saying is that there is some ability for the applicant to deal with those situations and also to develop life skills. In terms of his life skills as well, I asked him some questions yesterday about his current circumstances in terms of his income. He had given evidence in relation to receiving income through both Airtasker, this is most recently before he most recently went back into prison, receiving an income on a casual basis working through Airtasker, so showed some indication of ability to establish that business – for him to establish a business to obtain work.”[141]

    …

    “So, despite his mental health difficulties, despite the intellectual capabilities that we have seen reported, he has that ability to establish the life skills and has had the ability to engage with community. And importantly, to do so in a way that ensures that he is able to access the benefits, receive an income through the government benefits that are available to him. He has also through his evidence yesterday, I think shown that he is quite engaged with understanding his mental health circumstances. He is also engaged with the treatment; he is able to relay information in terms of the medications he is on and the purposes of those medications.”[142]

    …

    “…he has shown an ability, an insight into his own mental health circumstances and ability to engage with the treatment for that, for those circumstances as well.”[143]

    …

    “…he shows an ability to engage with the community and also intellectual capabilities which again, go back to some of the reports which have been shown, earlier back in 2008, 2009, shows there has been development in his intellectual capabilities and shows us also a development in his ability to engage with the community and develop those life skills”[144]

    “Now those observations, I suggest, are relevant to the question about him
    

    [141] Transcript, p 99, lines 14-27.

    [142] Transcript, p 99, lines 40-46, p 100, lines 1-2.

    [143] Transcript, p 100, lines 10-12.

    [144] Transcript, p 100, lines 19-24.

    [145] Transcript, p 100, lines 30-34.

    establishing himself and maintaining himself in the UK. I would say his ability to engage with government services, his ability to engage with community shows that he would be able to access services, resources that were available to him.”[145]

    Other evidence 

1. Separately, the Tribunal was provided with various medical information and data in the form of primary reports and records (e.g., prepared by medical and related professionals),[146] and secondary materials (e.g., references to medical conditions and issues in statements and correspondence prepared by or on behalf of the Applicant).[147] Some but not all of the medical information contained in these materials were historic in nature, some clearly constituted “self-reporting” by the Applicant, other materials included a combination of both. I have considered these materials and placed some weight on them for purposes of my deliberations on this Other Consideration (b). Having said that, I have placed greater weight on those materials containing medical information and data identified by the parties and otherwise referred to in the foregoing paragraphs.

   [146] Exhibit R1, pp 148 - 163; Exhibit R1, pp 203 – 212, Exhibit A4, pp 22-26; Exhibit R6 pp 414-428.

   [147] Exhibit R1, pp 175-176; pp 214-215; pp 230-234; and p 254; Exhibit A4 pp 1 – 21.

   Consideration

2. Sub-paragraph 9.2(1)(a): the Applicant is 34 years of age. I do not regard the Applicant’s age as an impediment to him re-establishing himself in the United Kingdom. The evidence before the Tribunal indicates that the Applicant has suffered long-term mental and other health issues (including alcohol and drug addiction). These are obviously significant immediate impediments for the Applicant in establishing himself and maintaining basic living standards in the United Kingdom. That being said, it is likely that the Applicant’s mental and health other conditions can be adequately managed over time in the United Kingdom (noting the comparable levels of healthcare available to the Applicant in that country). Nevertheless, I consider (and find) that some significant health-related resettlement impediments will likely persist for this Applicant in the medium term, notwithstanding the healthcare and related services that will be available to him. 

3. Sub-paragraph 9.2(1)(b): the Applicant was born in the United Kingdom and arrived in Australia on a permanent basis in 1990, aged two years. While the Applicant has spent little time in the United Kingdom, it is difficult to assert that the Applicant will be confronted with any insurmountable or significant language or cultural barries were he returned to that country. I am therefore not of the view that the Applicant would face any significant or substantial language or cultural barriers impeding his return and re-settlement the United Kingdom.

4. Sub-paragraph 9.2(1)(c): I have earlier found that the Applicant’s state of health will present significant impediments upon return and resettlement in the United Kingdom. During the hearing, little or nothing was raised by the Applicant to rebut the presumption that the United Kingdom is a country that would be able to provide a comparable level of publicly available health care. A similar finding can be made with reference to government-related economic supports available to the Applicant in the United Kingdom. On the other hand, the apparent complete absence of social and family support for this Applicant in the United Kingdom is of concern and will obviously impede his short and medium-term re-settlement.         

5. Overall, I am of the view (and find) that this Other Consideration (b) confers very heavy, but not determinative, weight in favour of revocation of the decision under review.

   Other Consideration (c): Impact on victims

6. Paragraph 9.3(1) state that decision-makers must consider the impact of a s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and family member 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.

7. The parties did not propound anything of substance in relation to this Other Consideration (c). Overall, I find that this consideration is of neutral weight.

   Other Consideration (d): Links to the Australian Community

8. Paragraph 9.4 of the Direction requires that decision-makers must have regard to an Applicant’s links to the Australian community. There are two factors which I must consider in determining the weight allocable to Other Consideration (d). They comprise: (1) the strength, nature and duration of ties to Australia; and (2) the impact on Australian business interests if he cannot remain here.

9. In relation to (1) – I find that, on the materials and evidence before me, that the Applicant has very strong ties to the Australian community through his son, mother, father, uncle, aunt, and brother, and having lived in the Australian community for most of his life and from an early age. The Respondent (correctly, in my view) concedes,[148] that the decision to cancel the Applicant’s visa would have an impact on his immediate family. I find that heavy weight attaches to this category.

   [148] Exhibit R2, p 10, para [55].

10. In relation to (2) – I am unable to see material or other evidence before me that a decision not to revoke the Applicant’s visa cancellation would significantly compromise the delivery of a major project or important services to Australia. I find that no weight attaches to this category.

11. Overall I find that this Other Consideration (d) carries heavy, but not determinative weight, in favour of revocation.

    Findings: Other Considerations

12. I now summarise the respective weights I have allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:

    (a)International non-refoulement obligations: neutral weight;

    (b)Extent of impediments if removed: very heavy, but not determinative, weight in favour of revocation;

    (c)Impact on victims: neutral weight; and

    (d)Links to the Australian community: carries a heavy, but not determinative, weight in favour of revocation.

    Conclusion

    Is there another reason to revoke the cancellation of the Applicant’s visa?

13. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.

14. In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:

    ·Primary Consideration 1: carries a very heavy weight against revocation;

    ·Primary Consideration 2: carries a very heavy weight against revocation;

    ·Primary Consideration 3: carries a moderate, but not determinative, weight in favour of revocation;

    ·Primary Consideration 4: carries a very heavy weight against revocation; and

    ·I have outlined the weight attributable to the Other Considerations above. I am of the view (and I find) that the combined weights I have allocated to each of Primary Considerations 1, 2 and 4 are sufficient to determinatively outweigh the combined weight I have allocated to Primary Consideration 3 and Other Considerations (b) and (d), respectively; and

    ·A holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel the Applicant’s visa.

15. Consequently, I cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    Decision

16. Pursuant to s 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 29 June 2022 to not revoke the mandatory cancellation of the Applicant’s visa.

I certify that the preceding 150 (one hundred and fifty) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin

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

Associate

Dated: 7 December 2022

Date of hearing:

12 and 13 September 2022

Solicitor for the Applicant:

Ms Marta Mamarot

South West Migration & Legal Services

Solicitor for the Respondent

Mr Will Sharpe

HWL Ebsworth Lawyers

ANNEXURE A – EXHIBIT LIST

EXHIBIT	PARTY	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
R1	R	G-Documents(G1-G28, pages 1-307)	Various	20 July 2022
R2	R	Respondent SFIC(pages 1-11)	5 September 2022	5 September 2022
A3	A	Applicant SFIC (pages 1-5)	29 August 2022	30 August 2022
A4	A	Applicant Tender Bundle (Amended) (49 pages)	Various	7 September 2022
R5	R	Supplementary Documents (pages 1-32)	Various	13 September 2022
R6	R	Respondent Tender Bundle (pages 1-962)	Various	9 September 2022