Sach and Minister for Home Affairs (Migration) - [2019] AATA 5173

Sach and Minister for Home Affairs (Migration) [2019] AATA 5173 (28 November 2019)
Division:GENERAL DIVISION
File Number(s): 2019/5628
Re:Ian Sach
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:28 November 2019
Place:Perth

The decision under review is set aside and substituted with the decision that the cancellation of the Applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
....................[sgd]....................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – Migration Act 1958 (Cth) – mandatory visa cancellation – s 501CA(4) – substantial criminal record – another reason why the cancellation decision should be revoked – Direction 79 – protection of the Australian community – nature and seriousness of the conduct – the risk to the Australian community – other consideration – indefinite detention – strength, nature and duration of ties – extent of impediments if removed – decision set aside and substituted
LEGISLATION
Australian Constitution – s 51(xix)
Migration Act 1958 (Cth) – ss 48B, 195(A), 499, 499(1), 499(2A), 500(1)(ba), 500(6J), 501, 501(3), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501(CA), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)
CASES
Ali and Minister for Home Affairs (Migration) [2018] AATA 2512
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Brown v Minister for Immigration andBorder Protection [2015] FCA 75
CZCV and Minister for Home Affairs [2019] AATA 91

Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
HMFZ and Minister for Home Affairs (Migration) [2018] AATA 3861
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
LQZW and Minister for Home Affairs (Migration) [2019] AATA 93
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 363 ALR 325
Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178
Pinder and Minister for Home Affairs (Migration) [2019] AATA 1398
Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Re Patterson; Ex parte Taylor (2001) 207 CLR 391
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2019] AATA 4424
Ruddock v Taylor (2005) 222 CLR 612
Sach v Minister for Home Affairs [2018] FCA 1658
Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Department of Home Affairs, 28 February 2019) – paras 2, 6.1, 6.1(3), 6.2, 6.3, 7(1)(b), 8, 8(3), 8(4), 8(5), 12.3, 13.1, 13.1.1(1), 13.1.1(1)(a), 13.1.1(1)(b), 13.1.1(1)(c), 13.1.1(1)(d), 13.1.1(1)(e), 13.1.1(1)(f), 13.1.1(1)(h), 13.1.1(1)(i), 13.1.2, 13.1.2(a), 13.1.2(b), 13.1.2(1)(b), 13.2, 13.2(b), 13.3, 14, 14(1)(a), 14(1)(b), 14(1)(c), 14(1)(d), 14(1)(e), 14.2, 14.2(1)(a)(i), 14.2(1)(a)(ii), 14.3(1), 14.4, 14.4(a)-(e), 14.5, 14.5(1),
REASONS FOR DECISION
Deputy President Boyle
28 November 2019
THE APPLICATION

The Applicant seeks the review of a decision of a delegate of the Respondent
made on 5 September 2019 under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the mandatory cancellation of the Applicant’s Class BF Transitional (permanent) visa (the visa).
The visa had been cancelled pursuant to s 501(3A) of the Act because the Applicant does not pass the character test by reason of his substantial criminal record and because he was serving a term of imprisonment for a crime against a law of the Commonwealth or a state.
The application for review is made in accordance with s 500(1)(ba) of the Act,

which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) of the Act not to revoke a decision to cancel a visa. The Tribunal is satisfied that the application has been made in accordance with the relevant legislation and that the Tribunal has the jurisdiction to review the decision.
THE ISSUE
The issue for determination is whether the Tribunal should exercise the power in
s 501CA(4) of the Act in favour of revoking the mandatory cancellation of the visa.
In addressing the above issue, the Tribunal must determine:
(a)whether the Applicant passes the character test (as defined in s 501(6) of the Act); and
(b) if he does not, whether the Tribunal is satisfied that there is another reason why the cancellation decision should be revoked.
BACKGROUND
The Applicant is a 52 year old (born June 1967) citizen of the United Kingdom. He first arrived in Australia on 5 July 1974, at the age of 7 (R1, G17/123). He has not departed Australia since that date.
On 30 November 2011 the Applicant was sentenced in the Perth Magistrates Court to a period of eight months imprisonment suspended for 12 months for the offence of unlawful assault with circumstances of aggravation (R1, G3/9).
On 13 August 2012, the Department of Immigration and Citizenship notified the Applicant that his visa may be liable for cancellation under s 501 of the Act on character grounds. On 11 July 2013, a delegate of the Minister decided not to cancel the Applicant’s visa, but to issue him a formal warning (R1, G45). That formal warning contained the following paragraph:
Please note that visa cancellation may be reconsidered if you commit further offence or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.
(Original emphasis.)
On 10 September 2015 the Applicant was sentenced in the District Court of Western Australia to a period of two years imprisonment for the offence of threat with intent to prevent/hinder person from doing act as well as six months imprisonment for common assault in circumstances of aggravation or racial aggravation (to be served concurrently) (R1, G18/133).
On 2 February 2017 the Applicant was given notice that his visa had been cancelled under s 501(3A) of the Act (R1, G4). The visa was cancelled on the basis that the Applicant had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory (ss 501(6)(a) and 501(7)(c) of the Act).
On 21 February 2017 the Applicant requested revocation of the cancellation of his visa.
On 14 February 2018 the Assistant Minister personally decided not to revoke the visa cancellation (R1, G10).
On 12 December 2018 the Federal Court quashed the Assistant Minister’s decision and remitted the matter for reconsideration (Sach v Minister for Home Affairs [2018] FCA 1658 (Sach v Minister for Home Affairs) (R1, G55).
Following remittal the Applicant was invited to make representations about the revocation of the visa cancellation (including the introduction of Ministerial Direction 79).

On 2 September 2019 a delegate decided not to revoke the visa cancellation

(R1, G110/117).
On 5 September 2019 the Applicant sought review of this decision in the Tribunal

(R1, G2).
The Applicant’s full adult criminal record is as follows:

Jurisdiction Offence date Result date Offence Result

WA N/A 24/08/1983 Unlawful damage Dism s 26 CWA

WA N/A 25/01/1984 Unlawful damage $40 fine

WA N/A 16/05/1984 Unlawful damage Probation 12 months

WA N/A 24/06/1984 Unlawful damage Dism s 34 CWA

WA N/A 23/08/1985 Stealing GB bond $200 for
12 months

WA N/A 21/01/1986 Stealing, 2 counts $100 fine per charge

WA N/A 09/06/1986 Unlawful damage, 2 counts $100 fine per charge

WA N/A 12/08/1986 Disorderly conduct $30 fine

WA N/A 25/08/1986 Drunk $5 fine

WA N/A 10/10/1986 Unlawfully use MV vehicle 100 hours CSO

WA N/A 10/10/1986 Stealing $100 fine

WA N/A 10/10/1986 Break enter and steal, 2 counts
Probation 18 months

100 hours CSO per charge

WA N/A 10/10/1986 Break and enter with intent 100 hours CSO

WA N/A 13/10/1986 Unauthorised use of a motor vehicle 100 hours CSO

WA N/A 08/09/1987 Break enter and steal $500 fine

WA N/A 24/03/1988 Unlawfully on place/prem $200 fine

WA N/A 10/05/1988 Disorderly conduct $200 fine

WA 21/07/1988 25/05/1989 Double dinking bicycle $25 fine

WA N/A 29/09/1989 Break and enter dwelling with intent
Probation 2 years

150 hours CSO

WA N/A 23/04/1993 Threatening words $40 fine

WA N/A 23/04/1993 Resist arrest $300 fine

WA N/A 23/04/1993 Damage $300 fine

WA N/A 23/04/1993 Assault public officer $500 fine

WA N/A 23/04/1993 Assault common, 2 counts $300 per charge

WA N/A 24/05/1993 Stealing 3 months imprisonment cumulative

WA N/A 24/05/1993 Assault occasioning bodily harm 6 months imprisonment cumulative

WA N/A 24/05/1993 Assault common 3 months imprisonment

WA N/A 04/02/1997 Damage $200 fine

WA N/A 04/02/1997 Assault occasioning bodily harm 12 months imprisonment, suspended 18 months

WA N/A 04/02/1997 Assault common $300 fine

WA 07/06/1997 11/06/1997 Excess 0.08%; method is breath Road Traffic Act 1974 s64
$300 fine

Disq hold/obt MDL
3 months concurrent

WA 07/06/1997 11/06/1997 No motor drivers licence – under fines suspension Road Traffic Act 1964 s49(1)(a) & (2)(a)(iv)
$200 fine

Disq hold/obt MDL
9 months cumulative

WA N/A 11/06/1997 Cannabis possess a quantity $100 fine

WA N/A 19/04/2000 Stealing $500 fine

WA N/A 21/03/2001 Assault common
18 months conditional release order (adult)

$1250 fine

WA 28/01/2003 29/01/2003 Assault common $400 fine

WA 23/10/2003 24/10/2003 Breach of violence restraining order $200 fine

WA 11/03/2005 08/06/2005 Common assault 6 months and 1 day imprisonment concurrent sentence suspended 2 years

WA 12/03/2005 08/06/2005 Threats with intent to influence 2 years intensive supervision order

WA 12/03/2005 08/06/2005 Criminal damage, 2 counts 2 years intensive supervision order

WA 23/06/2005 30/08/2005 Threats to injure
12 months imprisonment cumulative

Sentence suspended 12 months

WA 11/08/2005 30/08/2005 Possess prohibited drug $200 fine

WA N/A 30/08/2005 Breach of intensive supervision order of 08/06/2005
12 months imprisonment suspended 12 months (threat)

9 months imprisonment concurrent suspended 12 months (damage)

7 months imprisonment concurrent suspended 12 months (damage)

WA 23/06/2006 10/10/2006 Carried a controlled weapon $400 fine

WA N/A 10/10/2006 Breach of suspended sentence $300 fine

WA N/A 10/10/2006 Breach of suspended sentence, 3 counts $100 fine per charge

WA 03/07/2006 07/07/2006 Assault common Community based order, 12 months (supervision)

WA N/A 23/02/2007 Resentence of order 10/10/2006 6 months and 1 day imprisonment from 01/12/2006

WA 26/11/2006 23/02/2007 Assault common 9 months imprisonment concurrent from 01/12/2006

WA 26/11/2006 23/02/2007 Assault common 9 months imprisonment concurrent from 01/12/2006

WA 27/11/2006 23/02/2007 Breach of protective bail conditions 3 months imprisonment concurrent from 01/12/2006

WA 01/12/2006 23/02/2007 Breach of protective bail conditions 3 months imprisonment concurrent from 01/12/2006

WA 01/12/2006 23/02/2007 Breach of protective bail conditions 3 months imprisonment concurrent from 01/12/2006

WA N/A 23/02/2007 Breach of community based order of 07/07/2006 6 months imprisonment concurrent from 01/12/2006

WA 21/01/2008 29/05/2008 Possessing stolen or unlawfully obtained property $300 fine

WA 21/01/2008 29/05/2008 Gains benefit by fraud $300 fine

WA 15/06/2008 16/06/2008 Breach of police order $750 fine

WA 31/01/2011 02/03/2011 No authority to drive – never held
$200 fine

MDL disqualified 3 months

WA 10/04/2011 13/05/2011 Unlawfully assaulted with circumstances of aggravation 8 months suspended imprisonment concurrent suspended 12 months from 30/11/2011

WA 04/06/2011 30/11/2011 Stealing $200 fine

WA 04/11/2011 30/11/2011 Breach of violence restraining order Intensive supervision order 12 months current from 30/11/2011

WA 04/11/2011 30/11/2011 Breach of protective bail conditions No penalty

WA 09/11/2011 30/11/2011 Breach of protective bail conditions No penalty

WA 09/11/2011 30/11/2011 Breach of violence restraining order Intensive supervision order 12 months concurrent from 30/11/2011

WA 22/12/2011 07/02/2013 Grievous bodily harm 12 months imprisonment

WA N/A 07/02/2013 Breach of suspended sentence of 30/11/2011 2 months imprisonment cumulative

WA N/A 07/02/2013 Breach of intensive supervision order of 30/11/2011, 2 counts 3 months imprisonment concurrent per charge

WA 11/11/2011 21/03/2013 Assault common in circumstances of aggravation or racial aggravation 6 months imprisonment concurrent from 21/03/2013

WA 02/01/2012 21/03/2013 Breach of violence restraining order 6 months imprisonment concurrent from 21/03/2013

WA 09/01/2012 21/03/2013 Person who breaches conditional release order or community order without reasonable excuse, 2 counts $300 fine per charge

WA 28/03/2012 21/03/2013 Breach of bail undertaking 3 months imprisonment concurrent from 21/03/2013

11/07/2013 Received warning regarding possible future visa cancellation

WA 23/04/2015 10/09/2015 Threat with intent to prevent/hinder person doing act 2 years imprisonment concurrent

WA 23/04/2015 10/09/2015 Assault common in circumstances of aggravation or racial aggravation 6 months imprisonment concurrent
THE HEARING

This application was first listed for a two day hearing commencing on Friday,
8 November 2019. Before the commencement of the hearing it was brought to the Tribunal’s attention that the Applicant intended to rely on a document which may not have been provided to the Respondent at least two business days before the hearing with the result that, if that were the case, then the Tribunal must not have regard to that document
(s 500(6J) of the Act.
Mr Burgess, representing the Respondent, advised the Tribunal that the Respondent conceded that the document in question had been provided electronically to the Respondent within the time required by s 500(6J) but that the electronic version had been corrupted. Mr Burgess further agreed that the information contained in the document was something that would have emerged in examination or cross-examination or in response to questions from the Tribunal and, accordingly, that the Respondent would not take issue with the document’s admission. The prohibition in s 500(6J) of the Act against the Tribunal having regard to documents that have not been provided to the Respondent within the time required is absolute and not merely something to which the Respondent can take objection. Accordingly, the fact that the Respondent may not object to the admission of the document does not get around prohibition contained in that section. The Tribunal is, however, satisfied that the document in question was provided to the Respondent within the required time and that, in any event, the information contained in that document is not contentious and is information that the Tribunal would have sought from the Applicant in evidence in any event.
The hearing of the application thereafter commenced on 8 November 2019. The Applicant was represented by his brother, Mark Sach (Mr Sach), and as noted above, the Respondent was represented by Mr Burgess.
In opening Mr Sach advised that he had only recently been approached by the Applicant to represent him in the application and that he, Mr Sach, had not had the opportunity to familiarise himself with the material. On these grounds Mr Sach sought an adjournment of the hearing. The hearing was adjourned to 19 November 2019.
The only additional material provided by the Applicant following the adjournment was an email on 14 November 2019 identifying Tribunal authorities to which the Applicant would refer at the resumed hearing.
The hearing proceeded on 19 November 2019. Mr Sach again appeared for the Applicant and Mr Burgess appeared for the Respondent. The following documents were admitted into evidence:
(a)Applicant’s Statement of Facts, Issues and Contentions (the Applicant’s SFIC) (Exhibit A1);
(a)Completion Report – Stopping Family Violence dated October 2016 (Exhibit A2);
(c)Certificate of participation in Life Skills Re-entry from Outcare (Exhibit A3);
(d)Certificate of participation in Brief Intervention Cognitive Skills from Department of Corrective Services (Exhibit A4);
(e)Certificate of participation in Living Healthy Lifestyles from Mission Australia (Exhibit A5)
(f)Offender Services Program Report dated 4 August 2015 (Exhibit A6);
(g)Certificates of attendance in Stopping Family Violence Program from Acacia Prison (Exhibit A7);
(h)Letter from Acacia Prison regarding Pathways program (Exhibit A8)
(i)Certificate of participation in Career Development Workshop from Acacia Prison (Exhibit A9);
(j)Acacia Prison FOI letters dated 10 February 2017 (Exhibit A10);
(k)Schedule of documents from Acacia Prison (Exhibit A11);
(l)Encounter details (Exhibit A12);
(m)Acacia Prison FOI letter dated 23 February 2017 (Exhibit A13);
(n)Schedule of documents from Acacia Prison (Exhibit A14);
(o)Encounter details (Exhibit A15);
(p)Pathways certificate dated 3 March 2017 (Exhibit A16);
(q)Movement details (Exhibit A17);
(r)Letter from Ms C dated 11 June 2017 (Exhibit A18);
(s)Letter from Applicant, undated (Exhibit A19);
(t)State pension information (Exhibit A20);
(u)Letter from Applicant dated 24 April 2019 (Exhibit A21);
(v)Letter from Ms C, undated (Exhibit A22);
(w)Letter from Dr Danny, Department of Health, undated (Exhibit A23);
(x)Letter from Dr Palekar regarding Ms C dated 24 April 2019 (Exhibit A24);
(y)Letter from Sharon Sutton dated 18 October 2018 (Exhibit A25);
(z)Letter from Oliviah Sutton dated 29 October 2018 (Exhibit A26);
(aa)MIMS information about Rivotril (Exhibit A27);
(bb)Letter from Ngala dated 25 September 2019 (Exhibit A28);
(cc)Letter from Alexander Leitch dated 1 August 2019 (Exhibit A29);
(dd)Letter from Stephanie Sutton, undated (Exhibit A30);
(ee)Letter from Kelly Rain Oram (Exhibit A31);
(ff)Letter from Mark Sach dated 25 February 2019 (Exhibit A32);
(gg)Letter from Oliviah Sutton dated 25 October 2019 (Exhibit A33);
(hh)Letter from Sharon Sutton, undated (Exhibit A34);
(ii)Letter from Ms C, undated (Exhibit A35);
(jj)Applicant’s statement, undated (Exhibit A36)
(kk)Letter from the Department dated 29 July 2019 (Exhibit A37);
(ll)IHMS letter dated 17 June 2019 (Exhibit A38);
(mm)IMHS health summary (Exhibit A39);
(nn)Section 37 G documents (G1-84) (Exhibit R1);
(oo)Supplementary G documents (Exhibit R2);
(pp)Respondent’s Statement of Facts, Issues and Contentions (the Respondent’s SFIC) dated 16 October 2019 (Exhibit R3); and
(qq)Schedule of Applicant’s Criminal Record (Exhibit R4).

The following witnesses gave evidence at the hearing:
(a)The Applicant; and
(b)The Applicant’s former partner Ms C.
The Applicant also had the following witnesses available to give evidence:
(a)Sharron Sutton;
(b)Oliviah Sutton;
(c)Stephanie Sutton;
(d)Kellie Oram; and
(e)Alex Leitch.
Each of the potential witnesses identified in [23] had provided written statements or letters which were before the Tribunal. Mr Burgess on behalf of the Respondent advised the Tribunal that the Respondent agreed to the witness statements and letters of those identified in [24] being admitted without the authors being cross-examined. The statements and letters were so admitted and the authors were not called to give evidence.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides that:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) …; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
A “substantial criminal record” is defined by s 501(7) of the Act as follows:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a)…
(b)…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or...
(Original emphasis.)
Section 501CA of the Act further provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
...
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(Original emphasis.)
Ministerial Direction 79
Section 499(1) of the Act provides that the Minister may give written directions as follows:
(1) The Minister may give written directions to a person or body having functions or powers under this Act ... if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Section 499(2A) of the Act states that:
[a] person or body must comply with a direction under subsection (1).
On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made a direction under s 499 of the Act, named “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under
s 501CA” (Direction 79). The commencement date for operation of Direction 79 was

28 February 2019 (Paragraph 2 of Section 1 of Direction 79).
Paragraph 6.1 sets out the objectives of Direction 79. Paragraph 6.1(3) relevantly provides:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction 79 provides general guidance as follows:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4) of the Act, including the Tribunal. They are:
(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) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1)(b) of Direction 79 provides that, informed by the principles set out in paragraph 6.3 of Direction 79, the decision-maker (in this case the Tribunal) must take into account the considerations in Part C of Direction 79 in order to determine whether the mandatory cancellation of the visa will be revoked.
Paragraph 13(2), which is in Part C of Direction 79, provides:
In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia;
c)    Expectations of the Australian Community.
Paragraph 14 of Direction 79 provides:
(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
Further guidance as to how a decision-maker is to apply the considerations in Direction 79 can be found in paragraph 8 of Direction 79 which provides:
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
THE EVIDENCE
The Applicant
In his statement (A36) the Applicant says:
(a)He was diagnosed with epilepsy when he was 16 years of age. Notwithstanding taking various medications his seizures have never been under control. He used to take Rivotrol. That had side effects and he no longer takes that drug
(b)A couple of years after coming off Rivotrol he was diagnosed with complex B personality disorder.
(c)When his mother died he “relapsed on Amphetamines” which he thought would help him through the hard time.
(d)He has many ties in Australia: he has no ties to the UK which he left at the age of seven. He has never left Australia.
(e)
In the first decision not to reinstate his visa he was noted as a low risk of

re-offending.
(f)He will not be able to support his son through his gender change. His son is already becoming distant from his family.
(g)His seven year old nephew will not get to know him.
(h)He is currently attending an anger management course and is presently speaking with Palmerston House on phone conferences and that organisation will continue to see him if he gets his visa back.
(i)His whole extended family are Australian citizens.
(j)He would not be entitled to a pension in the UK.
(k)
If he does not get his visa back he will not be able to support his former partner

Ms C if she calls upon him to do so. She has been diagnosed with terminal liver disease.
(l)Under the Australian Constitution he has been absorbed into the Australian community.
(m)He can get a placement at Breathing Space program if the visa is reinstated.
(n)If he has his visa reinstated he will contact disability services to find work.
(o)He will stay with his brother until he gets back on his feet.
There were other statements and letters from the Applicant (A19) and in the G documents at G23, G53, G 56 at 270, G57 at 272, G58, G59, G60 at 291-2, G61, G70 at 322, G71, G72 and G80 as well as the Personal Circumstances Form (R1, G22) completed by the Applicant.
At the hearing the Applicant’s evidence was to the effect of his written statements which he confirmed to be true and correct. He says that he now has a much better appreciation of the consequences of his offending and how it hurts others and him. He is committed to becoming a better person avoiding the triggers that have caused him to offend in the past, including not going back to live with Ms C.
Ms C
The Applicant’s long-time partner Ms C provided a number of letters and statements (A22 which also appears at R1, G74; A18 which also appears at R1, G62 and A35). Ms C also gave evidence at the hearing. Her written statements and letters were was to the following effect:
(a)She has known the Applicant for 27 years during which period they have had their “ups and downs” including the Applicant’s periods in prison and through his drugs and alcohol addictions (A18; R1, G62)
(b)If the Applicant were deported to England, because of his medical condition he would be lost and may relapse into drug and alcohol abuse.
(c)For the most part over the 27 years the Applicant helped Ms C raise her children and taught her son how to be a gentleman (A18; R1, G62)..
(d)The Applicant suffers from depression.
(e)With the help of family and friends the Applicant will stay on the “straight and narrow” (A18; R1, G62).
(f)She has recently found out that she has a terminal liver disease and requires operations, and she needs the Applicant to be at home as she has no family support (A22 and A35).
(g)Since being in detention the Applicant has improved himself and has learnt to control his temper (A35).
Ms C’s evidence at the hearing confirmed the statements made in her written statements as set out above with the exception that her evidence at the hearing was that if the Applicant were allowed to stay in Australia he would not be returning to live with her.
Her evidence at the hearing was that she had no family support, that her illness had progressed and, as noted above, that if the Applicant were able to stay in Australia he would be living with his brother rather than returning to live with her. She would be hurt if he was forced to leave Australia (Transcript at 57).
Stephanie Sutton
In her undated letter (A30) Ms Stephanie Sutton says:
(a)She is 27 years old and has known the Applicant her whole life.
(b)He has always supported her and had taken her and her siblings in to get them away from their “violent and toxic” home environment.
(c)Since the Applicant has been in detention and prison she has had two children who the Applicant has not met.
(d)She is sure that if the Applicant were sent back to the UK he would not cope physically or mentally.
(e)She will support the Applicant if he is allowed to stay, and with family support he will become a good citizen.
Oliviah Sutton
In her letter dated 29 October 2018 (A26 and R1, G65) Ms Oliviah Sutton says:
(a)She is 19 years old and she has known the Applicant her whole life.
(b)She has always referred to him as “Uncle Ian”.
(c)The Applicant used to babysit her when her mother was working and she stayed with the Applicant who always made sure that she was safe and secure.
(d)The Applicant assisted at birthday parties for her and her siblings and helped clean up their yard so they had somewhere to play.
(e)She knows that what the Applicant has done has hurt other people but if he is sent back to the UK it will destroy his health mentally and physically. He knows no one in the UK.
(f)The Applicant has only five to ten years left in his life and will be missed by countless people if he is returned to the UK.
(g)She and her five siblings talk to the Applicant by phone.
(h)She knows that the Applicant is remorseful for what he has done. She will miss him if he is returned to the UK and if he is sent “a big big piece” of her will go with him.
Sharon Sutton
In her letter dated 18 October 2018 (A25 and R1, G64) Ms Sharron Sutton says:
(a)She has been a friend of the Applicant for 26 years.
(b)She has six children ranging in age from 31 to 10 years all of whom grew up knowing the Applicant as “Uncle Ian”.
(c)The Applicant’s epilepsy has been a “huge” disability. She has seen many personality changes in the Applicant over the period and his seizures have become more severe.
(d)The Applicant’s father was a very immature man and that is what the Applicant grew up with.
(e)A “few years” ago she had “had enough of the Applicant’s behaviour” so had not had anything to do with the Applicant until seven or eight months before the letter.
(f)The Applicant had changed and was scared of being deported.
(g)She will support him if he is allowed to stay.
Kellie Oram (nee Sutton)
In her undated email (A31) Ms Oram says:
(a)She has known the Applicant for as long as she can remember.
(b)The Applicant and Ms C rescued her, her mother, and her siblings; and made sure that they were housed and fed.
(c)She is repaying the Applicant by offering to support him now and she believes that he is rehabilitated.
Alex Leitch
In his letter dated 1 August 2019 (A29 and R1, G81), Mr Leitch advised that:
(a)He has known the Applicant since 1979 when they met in grade six and quickly developed a friendship.
(b)They stayed friends through school and after finishing they together ran the local Police and Citizens’ Club weights gymnasium providing instructions to local youth for three years. The Applicant remained involved with the Police and Citizens’ Club after this time.
(c)
He has stayed in regular touch with the Applicant over the past three decades.

The Applicant periodically stayed with Mr Leitch’s mother when Mr Leitch went to the Eastern states.
(d)The Applicant calls Mr Leitch’s mother “mum” and the Applicant is considered to be part of the family.
(e)The Applicant’s epilepsy has never been under control.
(f)The Applicant’s partner is very sick with terminal illness. The Applicant will always have a loving family in the Leitch family.
Mark Sach
Mr Sach provided a statement dated 25 February 2019 (A32 and R1, G76) in which he says:
(a)The Applicant finds himself in his present situation because of “immaturity and poor choices”.
(b)The Applicant came to Australia as a child. Had his parents applied for citizenship for the family before the Applicant became an adult he would not be in the present situation.
(c)Immigrants who immigrated to Australia prior to 1987 became absorbed citizens.
(d)The Applicant has lived in Australia from a young age and would have no means of support and no family network if he were returned to the UK.
(e)The Applicant would have no entitlement to a UK pension.
(f)The Applicant is the “only living biological family” that he has and if he were deported he (Mr Sach) would lose the only family support he could offer.
(g)If he were deported the Applicant would be separated from his nephew.
(h)If the Applicant were allowed to stay in Australia Mr Sach would provide a place for him to live rather than returning to the “toxic living” with Ms C.
(i)The Minister identified that the Applicant was a low risk of re-offending
(j)If the Applicant were deported he would have to “re-establish a rapport with medical staff looking after his condition” (epilepsy). The severity of the Applicant’s epilepsy makes air travel very difficult.

Mr Sach had previously provided a letter of support dated

25 February 2017 (R1, G40) which set out the same information as set out in the statement referred to in [50] above.
While he did not take the witness stand to give evidence, the Tribunal did ask Mr Sach a number of questions. His advised that:
(a)He is 47 years old and is employed as a truck driver.
(b)He spent 22 years in the Australian army.
(c)He lives with his wife and seven year old son.
(d)His adult step-daughter occasionally visits their home.
(e)He has no criminal record.
(Transcript at 27-28)
Other statements and letters, the authors of which were not called to give evidence, were also included in the material before the Tribunal. These were letters of support from Fiona Grace Russon (R1, G63 at 296), Peter Guy Millsteed (R1, G38/187), Denis Moralee (R1, G39/188) and Theo Van Elten (R1, G30/174).
The parties’ submissions
The Respondent
The background facts set out in the Respondent’s SFIC (paras. 7-13) were, in substance, the facts set out in [6]-[15] above. These are not disputed by the Applicant in his SFIC.
The contentions set out in the Respondent’s SFIC were to the following effect:
(f)The Applicant fails the character test. The Applicant does not dispute that.
(g)In deciding whether there is another reason why the original decision of the delegate not to revoke the cancellation of the Applicant’s visa, the Tribunal must have regard to the principles set out in Direction 79. Again the Applicant, correctly, agrees that that is the case.
Protection of the Australian community
In relation to the nature and seriousness of the Applicant’s conduct, the Respondent contends that it should be viewed very seriously for the following reasons:
(a) the Applicant has an extensive criminal history dating back to when he was 18 years of age in 1986 (R1, G18/137). Since that time, there are 29 separate entries recording Court dates where the Applicant has appeared to be sentenced. The nature of the offending has included property offences, weapons offences, drug related offences, criminal damage, assaults, breach of judicial orders, domestic violence and other violent offending.
(b)violent crimes are viewed very seriously, regardless of the sentence imposed (paragraph 13.1.1(1)(a) of Direction 79). The Applicant’s history of violent offending includes assault public officer in 1993, common assaults in 1993, 1997, 2001, 2003, 2006, 2007, 2013 and 2015, grievous bodily harm in 2013 and domestic violence related offending in 1997, 2011 and 2015 (R1, G18 and R2, 521-530).
(c)crimes of a violent nature against women are viewed very seriously, regardless of the sentence imposed (paragraph 13.1.1(1)(b) of Direction 79). In that regard, the Applicant has a history of domestic violence and other violent offending. In 1997, he assaulted his parents, particularly his mother, which Magistrate Malley said in sentencing remarks was “disgraceful” (R12, G48 at 227). In 2015, he cornered his partner, either by pinning her upper arms to the bed or by grabbing her hair, took her belongings and threatened to slit her throat while holding a knife (R1, G20/139).
(d)regard must be had to the fact that the Applicant has been sentenced to multiple terms of imprisonment (paragraph 13.1.1(1)(d) of Direction 79). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy. Accordingly, where a Court has sentenced an offender to a term of custodial imprisonment, this must be viewed as a reflection of the object seriousness of the offences involved.
(e)the Applicant’s conduct shows a pattern of frequent violent and other offending and a trend of increasing seriousness (paragraph 13.1.1.(1)(e))
(f)the Tribunal must have regard to the cumulative effect of repeated offending (paragraph 13.1.1(1)(f)). In that regard, the Applicant has been convicted of 30 separate offences dating back to when he was 18 years of age and despite the Applicant being sentenced to periods of imprisonment and repeatedly appearing before sentencing courts over a period of almost 30 years, the Applicant has continued to commit violent offences.
(g)despite the department’s formal warning in July 2013 (R1, G45), the Applicant has continued to offend (paragraph 13.1.1(1)(h)).
(h)the Applicant has continued to be involved in aggressive confrontations in immigration detention, including headbutting another detainee and threatening to “knock out” a doctor (R1, G72/328; R1, G78/420-421) (paragraph 13.1.1(1)(i)).
In relation to the risk to the Australian community, regard must be had to paragraph 13.1.2(1) of Direction 79, which provides that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.

The decision-maker must have regard, cumulatively, to:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant re-offending…
The Respondent contends that the nature of the harm if the Applicant were to re-offend is serious and could involve physical, psychological and financial harm to members of the Australian community. The nature of the harm to individuals should the Applicant engage in further criminal or other serious conduct is so serious that any risk of similar conduct in the future is unacceptable.
The Applicant seeks to explain his offending by reference to his drug use and his abusive upbringing (R1, G22-G23). He claims that through the rehabilitation programs that he has completed in prison, he will be released “as a different man” (R1, G23/160).

The Respondent says that there is insufficient independent evidence provided to demonstrate that the Applicant has been successfully rehabilitated in circumstances where:
(a) Evidence relating to the claimed rehabilitation is limited; and
(b)The Applicant has been in custody or detention since April 2015. Accordingly,

the Applicant has not been in an unsupervised environment in the Australian community to allow any claimed rehabilitation to be tested such that the likelihood of his re-offending remains a real possibility.
Although the Applicant has provided a number of character references and claims that his partner will provide him with support, the support network did not prevent the Applicant from offending in the past. There is no compelling evidence to suggest that the same support would be any more effective in the future: LQZW and Minister for Home Affairs (Migration) [2019] AATA 93 at [93]. The Applicant concedes that his relationship with his partner has long been volatile and has been marred with multiple instances of domestic violence. As such, he would be returning to the same environment that gave rise to the offending. Reiterating the Prisoners Review Board of Western Australia’s determination dated 23 March 2016, the Applicant therefore still presents an unacceptable risk to the safety of the community (R1, G44).
Given the Applicant’s criminal history, and in the absence of any adequate independent evidence of successful rehabilitation, the Applicant remains at an unacceptable risk of committing further criminal offences. The Respondent contends that the protection of the Australian community heavily weighs against revocation.
Best interests of minor children
The Applicant has not identified any minor children who will be affected by any non-revocation decision (R1, G22 /151-152).
Expectations of the Australian community
The Tribunal must give effect to the “norm” stipulated in paragraph 13.3 of Direction 79 which will, of its nature, weigh in favour of refusal, at least in most cases: FYBR v Minister for Home Affairs [2019] FCA 500 at [42]. The Respondent acknowledges that in line with Principle 5 of Direction 79, the Australian community may afford a higher level of tolerance of criminal or other serious conduct to the Applicant as he has lived in Australia since a young age. However, the Respondent contends that given the severe and persistent nature of the Applicant’s offending and continuing risk that the Applicant poses to the community, the Australian community would expect that he should not hold a visa.
Other considerations
Non-refoulement is not a consideration raised by the Applicant.
Strength, nature and duration of ties to Australia
In relation to the strength, nature and duration of ties to Australia, the Respondent says that while the Applicant has been in Australia since 1974, less weight should be given to this consideration in circumstances where he began offending at 18 years of age, has repeatedly offended for the majority of his adult life in Australia, and has had limited positive community involvement.
The Applicant claims to have engaged in employment including labouring jobs, farm work, rouseabout work and gardening (R1, G22/155). However, the Respondent submits that there is an absence of adequate independent evidence supporting these claims and any weight in the Applicant’s favour in this regard is outweighed by his history of offending and the cost to the community through policing and imprisonment, for example,

in circumstances where it cannot be said the Applicant was “positively contributing” while incarcerated or under a court order.
The Applicant claims to have family and social links with people in Australia and has identified his brother, son, niece and friends. However, in circumstances where the Applicant concedes that he only has occasional contact with his brother (R1, G49/231) and limited contact with his son (R1, G10/77) who has not provided a statement,

the Respondent contends that to the extent that this consideration weighs in favour of revocation, it does not outweigh the primary considerations which weigh heavily against revocation.
Impact on Australian business interests
In relation to the other consideration of the impact on business interests in Australia, such consideration goes to whether the Applicant’s deportation would “significantly compromise the delivery of a major project, or delivery of an important service in Australia” (paragraph 14.3(1) of Direction 79). The Respondent contends there is no evidence that non-revocation would significantly compromise any such project or service.
Impact on victims
In relation to the consideration of impact on victims, the Respondent says that the only evidence from the Applicant’s victims is that of his partner, Ms C. She claims that she needs his support, especially in light of her liver condition (R1, G62; G74). In making that claim, however, Ms C does not acknowledge his domestic violence offending but instead asserts that he has taught her son the “importance of being a gentleman” (R1, G62/294).

In circumstances where there is a risk that the Applicant will re-offend and commit domestic violence against Ms C, and she does not appear to appreciate the risk, the Respondent submits that limited weight can be placed on her evidence. The Respondent submits that this consideration is, at best, neutral: Ali and Minister for Home Affairs (Migration) [2018] AATA 2512 at [135]-[140]; HMFZ and Minister for Home Affairs (Migration) [2018] AATA 3861 at [106]-[110].
Extent of impediments if removed
In relation to extent of impediments if removed (paragraph 14.5 of Direction 79),

the Applicant has submitted that his welfare would be compromised on his return to the United Kingdom on the bases that the medical practitioners there would not be familiar with his conditions, he does not have any meaningful family there, and he has limited prospects of finding employment given his reliance on the disability support pension in Australia. He submits that his conditions would deteriorate and he would, in effect,

be homeless (R1, G23). The Respondent contends there is no evidence that the Applicant is receiving treatment of a particular kind that cannot be accessed in the United Kingdom.
Whilst the Respondent acknowledges that the Applicant may face some difficulty in

re-establishing himself due to his period of residence in Australia, this factor would only present as a short term hardship and would not preclude resettlement.
The Respondent also contends there is no substantial language or cultural barriers for the Applicant to overcome. Further, as a citizen of the United Kingdom, the Applicant has the same access to social, medical and economic support as other citizens.
Indefinite detention
The Respondent accepts that the Applicant has a number of health conditions (R1, G51; G79) and that due to his epileptic seizures, he has been assessed as being unfit to travel such that it would not presently be reasonably practicable to remove him from Australia: (R1, G54, G82/436). Nevertheless, the Respondent submits that the prospect of indefinite detention is presently speculative as there are other possibilities including:
(a)The Applicant may benefit from a favourable exercise of discretion by the Minister under ss 48B or 195A;
(b)He may be the subject of a residence determination under Division 7, Subdivision B of Part 2 of the Act;
(c)He may be resettled in a third country; or
(d)He may subsequently be deemed fit to travel.
The Respondent submits that this consideration, at best, weighs slightly in favour of revocation but does not outweigh the relevant primary considerations which weigh heavily against the Applicant.
The Constitution and the Aliens power
The Respondent says that the Applicant’s argument, relying on a Current Issues Brief (R1, G73) and the case of Ruddock v Taylor (2005) 222 CLR 612 (R1, G77), that as a long-term resident of Australia from the United Kingdom, he is not an alien under the Constitution and cannot therefore be removed from Australia under the Act is misconceived.
It may be accepted that the Respondent’s power to cancel a visa under s 501 of the Act extends to persons who are ‘aliens’ within the meaning of that term in s 51(xix) of the Constitution. In Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 (Nolan) the High Court had to consider whether Mr Nolan, a citizen of the United Kingdom who had moved to Australia in 1967 and had since lived here continuously, was a “non-citizen” under the Act because he was an “alien” within the meaning of the Constitution. Their Honours Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ held that the deportation provisions of s 12 of the Act in their application to Mr Nolan were within the legislative competence of the Parliament under s 51(xix) of the Constitution
(at 186.8). Her Honour Gaudron J dissented.
In Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, at 25 Brennan, Deane and Dawson JJ (with whom Mason J agreed), referred to the joint judgment of six Justices in Nolan and said “it was recognised that the effect of Australia’s emergence as a fully independent sovereign nation with its own distinct citizenship … that the word ‘alien’ in s 51(xix) of the Constitution had become synonymous with ‘non-citizen’”.
Nolan was, briefly, held out of favour. In Re Patterson; Ex parte Taylor (2001) 207 CLR 391 (Re Patterson; Ex parte Taylor) a majority of the High Court, their Honours Gaudron, McHugh, Kirby and Callinan JJ (Gleeson CJ, Gummow and Hayne JJ dissenting), held that as a British subject who had arrived in Australia prior to 1987 but who was not an Australian citizen, Mr Taylor was not an ‘alien’ for the purposes of the Constitution, and that accordingly, the Minister’s power under s 501(3) of the Act to cancel a visa could not apply to him. The effect of the four majority judgments was that the deportation provisions of the Act could not apply to a person, such as the applicant as a British subject who migrated to Australia before, at the earliest, 1973 (when the Royal Style and Titles Act 1973 (Cth), referring to the Queen of Australia, was passed) and, in the view of three of the majority, 1987 (when changes to Australian citizenship laws came into effect), at least where the person has been absorbed into the Australian community.
Like the Applicant, Mr Taylor was born in the United Kingdom and had come to Australia as a child. Mr Taylor arrived on his father’s passport in 1966, and had resided in Australia ever since. Like the Applicant, Mr Taylor had not taken out Australian citizenship.

Mr Taylor had also been on the electoral role since attaining the age of 18, and he had never applied for a passport. Mr Taylor’s visa was cancelled pursuant to s 501(3) of the Act, and he was taken into detention under s 189(1) of the Act.
The authority of Nolan was restored by Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 (Shaw). In Shaw a majority of the High Court, Gleeson CJ, Gummow, Hayne and Heydon JJ (Gaudron, McHugh and Kirby JJ dissenting), overruled Re Patterson; Ex parte Taylor insofar as it was authoritative on the question of the ambit of the word ‘alien’ in the Constitution. The High Court in Shaw at [32] held that the aliens power extends to “all those persons who entered this country after … 26 January 1949 and who were born out of Australia of parents who were not Australian citizens and had not been naturalised”. The Applicant meets that description.
The applicant in Brown v Minister for Immigration and Border Protection [2015] FCA 75 also relied on Re Patterson; Ex parte Taylor in submitting that he was an Australian citizen and not an alien, and therefore was not within reach of the Minister’s powers under either s 501 or s 201 of the Act. Her Honour Bennett J noted at [92] that following Re Patterson; Ex parte Taylor, the High Court again considered the question of the ambit of the word “alien” in the Constitution in Shaw, and that a majority of the High Court had been of the view that Mr Shaw had entered Australia as an alien in the Constitutional sense and that he did not lose that status by reason of subsequent personal history in this country, and consequently upon the cancellation of his visa he became an “unlawful non-citizen” within the meaning of the Act.
Bennett J then referred at [93] to subsequent attempts to re-open the issue of the ambit of the aliens power being rejected in the High Court, and at [94] accepted that there is binding authority to the effect that persons in the position of Mr Brown are “aliens” within the meaning of the Constitution.
The binding effect of Shaw is that the Applicant is an “alien” within the meaning of the Constitution, and accordingly, the delegate did have power under s 501(3A) of the Act to cancel his visa.
The Applicant
The Applicant’s SFIC does not dispute any of the factual contentions in the Respondent’s SFIC.
Protection of the Australian community
The first contention of the Respondent contested by the Applicant is the Respondent’s contention that the nature of the harm if the Applicant were to re-offend is serious and could involve physical, psychological and financial harm and that the harm is so serious that any risk of similar conduct is unacceptable. The Applicant responds to that claim by saying that his offending was drug related and that he has now addressed that addiction. He says that his risk of re-offending is slim and that while it has not been tested in the community, the rehabilitation that he has undertaken has placed him in a different position that which he was in prior to the rehabilitation (Applicant’s SFIC para. 30).
As to the Respondent’s observation that the rehabilitation the Applicant has undertaken has not been tested in the community, the Applicant says that this is because he has been in custody since 2015.

In relation to the Respondent’s contention that the letters, statements of support, and the character references that have been provided do not provide any comfort in relation to the Applicant re-offending because those same supports were available before and did not stop the Applicant offending, the Applicant says things are different now because he has undergone rehabilitation programs and he will have his brother to support him, which he did not have before, and will not be returning to live with his partner Ms C (Applicant’s SFIC para. 33).
The Applicant claims that the counselling that the Applicant has undertaken voluntarily shows that he has a willingness to address his behavioural issues and be a better person (Applicant’s SFIC para. 34).
Best interests of minor children
The Applicant agrees that there are no minor children who would be affected by the non-revocation of the cancellation of his visa (Applicant’s SFIC para. 36).
Expectations of the Australian Community
In relation to the expectations of the Australian community the Applicant submits that as a person who sees himself as Australian, he believes that due to the length of time residing in Australia, the Australian Community would have a higher tolerance to the Applicant's past, especially as he has done all he could to ensure he is a changed man.
Other Considerations
The Applicant agrees that no non-refoulement considerations arise in the present case (Applicant’s SFIC para. 40)
Strength, nature and duration of ties to Australia
The Applicant claims that this consideration weighs in favour of the Applicant because he has lived in Australia since 1974. The Applicant does concede that the costs of his imprisonment and the policing costs associated with his offending were a burden on the Australian community, but he has contributed through his employment and community work.
The Applicant has family ties and he has provided references from members of the community. His relationship with his brother has recently grown.
Impact on Australian business interests
The Applicant concedes that this is not a consideration in his case (Applicant’s SFIC para. 44).
Impact on victims
The Applicant agrees that the only evidence of impact on his victims relates to his partner Ms C. The Applicant does not address the Respondent’s assertion that, given the previous assaults against Ms C, there is a risk that he will assault her again if he is allowed to stay. The Applicant contends that this consideration weighs in favour of revocation albeit only slightly (Applicant’s SFIC para. 45).
Impediments if removed
The Applicant contends that his medical conditions are serious otherwise he would not have been assessed as unfit to travel. He disputes the Respondent’s assertion that any hardship in re-settling in the UK would be short-term. He says that it would be long-term and devastating to his health and well-being.
Indefinite detention
The Applicant asserts that indefinite detention is illegal and that this consideration weighs heavily in favour of revocation of the cancellation of the visa.
The Constitution and the Aliens power
The Applicant made no submissions in response to the Respondent’s analysis of the relevant law (see [75]-[83] above). At the hearing Mr Sach agreed that in light of the authorities the Applicant’s argument could not succeed (Transcript at 72).
CONSIDERATION
The Constitution and the Aliens power
Before looking at the considerations which must be reviewed under the Act and

Direction 79, it is convenient to deal with the threshold issue of the delegate’s power to cancel the Applicant’s visa. The Tribunal agrees with the Respondent’s analysis as set out in [75]-[83] above. The legal position is now clear. The binding effect of Shaw is that the Applicant is an “alien” within the meaning of the Constitution, and accordingly, the delegate did have power under s 501(3A) of the Act to cancel his visa.
The Applicant did not seek to address the Respondent’s argument set out in the Respondent’s SFIC and at the hearing Mr Sach effectively conceded the point (Transcript at 71).
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law: Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at [63]. The character test is defined in s 501(6) of the Act. Under s 501(6)(a) of the Act, a person will not pass the character test if the person has “a substantial criminal record”. This phrase, in turn is 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”. That is clearly so in the Applicant’s case.
The Applicant does not pass the character test. The Applicant cannot rely on

s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

The issue therefore is whether the discretion under s 501CA(4)(b)(ii) should be exercised. In other words, is there another reason why the original decision should be revoked?
PRIMARY CONSIDERATIONS
First primary consideration: Protection of the Australian Community from criminal or other serious conduct (13(2)(a))
Paragraph 13.1 of Direction 79 provides that when decision-makers are considering the protection of the Australian community, they:
(1) ...should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paragraph 13.1(2)(a))
Paragraph 13.1.1(1) of Direction 79 provides:
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)    The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)    The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)     The cumulative effect of repeated offending;
g)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
The Applicant’s criminal record must be viewed as very serious, not only by reason of subparagraphs (a) and (b) of paragraph 13.1.1(1) of Direction 79 requiring the decision-maker to do so, but also on the grounds of community standards. Of obvious concern are the multiple violent offences committed against women and the number of offences committed by the Applicant. In sentencing the Applicant in February 2013 Braddock DCJ noted that at the time that the Applicant committed the assault occasioning grievous bodily harm in December 2011 for which he was then being sentenced, the Applicant had a suspended sentence of eight months and two intensive supervision orders imposed on him less than a month before (R1, G46/203).

As her Honour noted:
That was at a time when you appeared for a series of offences that related to assaulting your de facto partner of many years.
In her Honour’s sentencing remarks, Braddock DCJ outlined the circumstances of assault occasioning grievous bodily harm on 22 December 2011. Her Honour said that the Applicant and the victim, a 27 year old female friend of the Applicant, had been drinking throughout the afternoon and that at some time around 10 PM, by which time the Applicant was “well drunk”, while walking home with her the Applicant became annoyed with her behaviour and punched her forcefully in the head breaking her jaw and knocking her over (R1, G46/204).
As can be seen from the Applicant’s record (see [16] above), there are multiple charges relating to assaults, including assaults on his partner Ms C and an assault on Ms C’s

15 year old daughter (R2, 587). A number of these assaults were committed when there were restraining orders in place against the Applicant approaching Ms C. These gave rise to the multiple charges of breaching restraining orders.
The Tribunal agrees with the Respondent’s characterisation of the nature and seriousness of the Applicant’s conduct set out in [56] above. His violent offending against women must be viewed very seriously (13.1.1(1)(a) and (b) of Direction 79). The assault on the public officer must also be viewed as serious (13.1.1(1)(c)) and, taking into account the sentences imposed (13.1.1(1)(d)), the frequency of the offending (13.1.1(1)(e)),

the cumulative effect of the offending and that fact that the Applicant continued to offend after having received a formal warning (R1, G45) (13.1.1(1)(h)), the Applicant’s record must as a whole be considered very serious. This consideration weighs significantly against the revocation of the cancellation of the visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (13.1(2)(b))
Paragraph 13.1.2 of Direction 79 provides:
(1) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Senior Member Dr M Evans in CZCV and Minister for Home Affairs (Migration) [2019] AATA 91 (CZCV) summarised the task for the Tribunal as follows:
56.... the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]- [43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: “...there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring “… a rational and probative basis”.
This Tribunal agrees with and adopts the approach taken by Senior Member Dr M Evans.
Nature of harm to individuals or the Australian community (13.1.2(1)(a))
The nature of the harm to individuals and to the community if the Applicant were to offend as he has in the past is obvious and serious. As well as the physical and psychological harm which results from violence, particularly violence against women and public officers, to those assaulted, there is also the broader financial cost to the community in policing and imprisoning offenders. This was in effect conceded by the Applicant (see [92] above).
The Tribunal is also mindful of the multiple offences against property that the Applicant has committed. Crimes against property not only give rise to financial consequences,
but there is also a psychological impact on those affected particularly when the sanctity of a person’s home is breached. Members of the Australian community are entitled to expect that their person and property are safe.
The Tribunal finds that the harm to individuals or the Australian community if the Applicant were to re-offend in the nature of his previous criminal offending would be significant.
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (13.1.2(1)(b))
The Applicant says that his offending was drug and alcohol related and that he has now addressed that addiction. He says that his risk of re-offending is slim and that while it has not been tested in the community, the rehabilitation that he has undertaken has placed him in a different position that which he was in prior to the rehabilitation (Applicant’s SFIC para. 30).
The Applicant has undertaken a number of courses while in prison and in immigration detention. At the hearing the Applicant referred to the following courses:
(a)Stop Family Violence undertaken while in prison. His evidence was that course:
…showed me my triggers and things that were setting me off when I’d have a disagreement with people especially Ms C[omitted].
(Transcript at 21)
(b)Pathways undertaken while in prison which the Applicant described as a drug and alcohol offending course which:
…showed me where my other triggers when I was drinking or using substances where I’d be going wrong.
(Transcript at 22).
(c)Counselling while in prison during which the Applicant:
…sat down with a counsellor one on one thing and we were talking about the drugs I used and the bad decisions I was making while I was on the drugs and ways to better myself and not follow those bad decisions in the future.
(Transcript at 22)
The Applicant conceded that notwithstanding having undertaken the above courses,

he continued to re-offend, in particular he again assaulted his partner Ms C (Transcript at 22). In cross-examination the Applicant said that he had undertaken the Pathways course for the first time while in prison in 2013 (Transcript at 44).
While the Applicant agreed that he had re-offended after having undertaken these courses, the Tribunal notes that there is a Pathways completion certificate for the Applicant having completed that program, apparently again, while in Acacia Prison in 2017 (R1, G37 and R1, G31). Further, the Stopping Family Violence Program certificate is dated October 2016 (R1, G29). Accordingly the second Pathways program and the Stopping Family Violence Program appear to have been undertaken in the Applicant’s most recent period of imprisonment, that is, after his last offence.
There is also a certificate of the Applicant having completed a Career Development Workshop in October 2016 (R1, G32). From the certificate it appears that this workshop related to developing employment skills and securing a job.
The Applicant also referred to the possibility of his undertaking some sort of rehabilitation program through Palmerston House. He advised that he had been having weekly “phone counselling with them to re-enlighten the things I’ve touched in the past” (Transcript at 23) and that they had indicated a willingness to continue to support him in the community if his visa is reinstated (Transcript at 5). He also referred to undertaking to contact Breathing Space, which the Tribunal understands to be another program which is apparently offered through a State Government department. Apparently this organisation will also help the Applicant to secure employment (Transcript at 6).
In cross-examination the Applicant was also asked about incidents that have occurred since he has been in immigration detention. These incidents involved fights with or assaults on other detainees. They occurred in November 2017 (R1, G78/427) and

May 2018 when the Applicant punched another detainee and an incident when he inappropriately tickled a female detainee. There is also a report (R1, G78/420) of the Applicant threatening to “knock …out” one of the doctors who was taking blood from the Applicant. He admitted using those words but said that it was “a wrong choice of words” and that he would never assault detention centre personnel (Transcript at 46).
The Applicant was also cross-examined on the contents of a Stopping Family Violence Completion Report dated 11 November 2016 prepared by Serco on behalf of the Department of Corrective Services (R2, 19-24). In that report it had been noted that the Applicant had indicated that the benefits of using abusive processes were::
“keeping control of money, freedom, showing who wears the pants,

self-pride, respect, loyalty, health and stability.
While the Applicant disputed that this was him saying that he agreed with violence against women, he did not completely disavow the sentiment of abusive behaviour having benefits. That is obviously of concern to the Tribunal. The Applicant was also taken to the comment on page 5 of that same report (R2, 23) wherein the author says:
In terms of antisocial beliefs and attitudes demonstrated in the program, as well as lack of trust in his relationships, Mr Sach may further benefit from further support and guidance in this area. For example, counselling and/or other community based support services… In addition, Mr Sach’s antisocial lifestyle is likely to have been densely reinforced over time and may require further support and guidance to consolidate and strengthen treatment gains.
The Applicant agreed that he had not done anything about addressing the family violence issue, however, noted that no such courses are available in immigration detention (Transcript at 48) although he did say that while he has been in detention he has had six or seven telephone counselling conferences on addressing violence through Palmerston House.
The Tribunal also notes that the Prisoners Review Board denied the Applicant’s application for parole in 2013 and again in 2016 (R2/9).
As noted above, while the written statements provided by Ms C maintained that the Applicant would return to living with her if he were allowed to stay in Australia, at the hearing Ms C’s evidence was that the Applicant would not return to living with her. Further, the evidence of both the Applicant and Mr Sach was that if he were allowed to stay the Applicant would live with his brother Mr Sach. That, in the Tribunal’s view, is very significant. It is clear to the Tribunal that much of the Applicant’s offending was the result, in part at least, of the “toxic environment”, as Mr Sach described it (Transcript at 6) of living with Ms C. A significant part of the Applicant’s offences over the more recent period leading up to his present incarceration, particularly the assaults and the breaches of restraining orders, involved Ms C.

While the Applicant’s long record of repeat offending, particularly following the formal warning and terms of imprisonment, indicate that there is a likelihood of the Applicant

re-offending, that risk is ameliorated by the change of the environment into which the Applicant will be going if the cancellation of his visa is revoked. While it is apparent that the Applicant and Ms C have great affection for each other, the Tribunal accepts their respective evidence that they realize that their living together is a formula for conflict and likely further offending. Mr Sach, a 47 year old who served 22 years in the military is a new and positive factor in the Applicant’s life. So too is the acceptance by the Applicant and Ms C that living together is bad idea.
The Stopping Family Violence completion report (R2, 19-24) also provides some evidence that the Applicant has an improved understanding of the consequences of his offending behaviour, the imperative of avoiding drug and alcohol abuse and the need for the Applicant to avoid the factors that have caused him to offend in the past. The Tribunal also gained the impression from the Applicant’s evidence that there had been something of an epiphany in that regard on the Applicant’s part.
The Respondent, correctly, points to the fact that the effectiveness of the Applicant’s most recent rehabilitative programs have not been tested in the community and that while in immigration detention that Applicant has continued to offend. They are fair points, however,

the Applicant’s most recent longer period of incarceration, now over four and a half years, has also meant that he has been out of the environment, including the apparent constant drug and alcohol abuse, which seemed to be behind so much of his offending.
The Tribunal finds that there is a low to moderate risk of the Applicant re-offending.
Second primary consideration: The best interests of minor children in Australia affected by the decision (13(2)b))
Paragraph 13.2 of Direction 79 provides:
(1) Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3) 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.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a)    The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)    The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)    The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)    The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)    Whether there are other persons who already fulfil a parental role in relation to the child;
f)     Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)    Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)    Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant did not identify any minor children relevant to this consideration in his Personal Circumstances Form (R1, G22/152) and agreed in his SFIC that there were no minor children who would enliven this consideration (Applicant’s SFIC para. 36).
However, the Applicant’s brother Mr Sach, has a seven year old son. The Tribunal asked the Applicant whether he had had any contact with his nephew. The Applicant advised that he had no real contact with him and that he had “seen him for half an hour the whole time that I’ve known him” (Transcript at 48). Under questioning from the Tribunal the Applicant again confirmed that there were no minor children who would be impacted if his visa remained cancelled (Transcript at 27). The Tribunal is satisfied that there are no minor children relevant to this consideration. If Mr Sach’s son is to be considered a relevant minor child, then the Tribunal finds that the child’s best interests would not be affected if the visa were to remain cancelled. This consideration is neutral.
Third primary consideration: Expectations of the Australian Community (13(2)c))
Paragraph 13.3 of Direction 79 provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Tribunal also refers to the principles and expectations set out in paragraph 6.3 of Direction 79 (see [34] above).
The proper construction of paragraph 13.3 of Direction 79 and Justice Mortimer’s interpretation of that paragraph in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY) have been the subject of much judicial analysis and, it would be fair to say, disagreement. The two approaches that emerged following her Honour’s decision on YNQY were the so-called broad approach of the type taken by Griffiths J in DKXY v Minister for Home Affairs [2019] FCA 495 (DKXY) and the so-called narrow approach of the type taken by Perry J in FYBR v Minister for Home Affairs [2019] FCA 500 (FYBR) (for an analysis of those approaches see [99]-[114] of Pinder and Minister for Home Affairs (Migration) [2019] AATA 1398).
That debate as to which approach is correct appears to have been resolved by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR (FC)) delivered on 24 October 2019. The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a “kind of deeming provision” – expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2019] AATA 4424 (Rehman) (delivered 31 October 2019).
Justice Stewart in FYBR (FC) found:
89. It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
90. However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
91. The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.
Justice Charlesworth in FYBR (FC) notes that it is necessary to determine the context of the deemed expectation by reference to the paragraph itself rather than some factual inquiry. That task of the decision-maker is to identify the government’s view of community expectation and to have due regard to it. Her Honour notes at [73]:
...The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker’s own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl 11.3 of the Direction.
The clause implicitly recognises that the decision-maker’s assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.
Charlesworth J goes on to observe:
[75] Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
…
[79]...The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
As Member Burford put it in Rehman at [173]-[174]:
[173] It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view deeming the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold the visa.
Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or “deemed” in the Direction, they weigh against revocation with respect to “serious crimes”.
[174] However, it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
The Tribunal finds that the Applicant has committed serious crimes and that the Australian community would expect that the Applicant should not hold a visa, that is, that the cancellation of his visa should not be revoked. This weighs against the revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
Paragraph 14 of Direction 79 provides:
(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)    International non-refoulement obligations;
b)    Strength, nature and duration of ties;
c)    Impact on Australian business interests;
d)    Impact on victims;
e)    Extent of impediments if removed.
Non-refoulement obligations (14(1)(a))
The Applicant does not raise any matters which would give rise to any non-refoulement obligations and agrees that that this consideration is not applicable in the present case (Applicant’s SFIC para. 40). The Tribunal finds that this is not a relevant consideration.
Strength, nature and duration of ties (14(1)(b))
Paragraph 14.2 of Direction 79 is as follows:
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant arrived in Australia as a seven year old child and has been here for

45 years. Clearly that is a long time. However, the Applicant started offending as a minor relatively soon after he arrived in Australia (R1, G3/17) so under paragraph 14.2(1)(a)(i) less weight should be given to the fact that he has been in Australia for a long time and arrived as a young child.
Paragraph 14.2(1)(a)(ii) requires more weight to be given to the length of time that the Applicant has been in Australia and whether he arrived as a young child where the non-citizen has positively contributed to the community. The Applicant has had difficulty holding down many of his jobs, according to the Applicant, because of his epilepsy. He left school in third year high school and had a succession of jobs for periods of weeks and months (Transcript at 23). The Applicant’s longest period of employment appears to have been working in an abattoir in Narrogin where he worked over a period of about 16 years (Transcript at 24).
The Applicant’s employment prospects are also restricted by his inability to hold a driver’s licence because of his epilepsy. The Tribunal does accept that, within his limitations resulting from his epilepsy and depression, the Applicant has been employed for extended periods and did, as a younger person, also contribute to the Australian community through his involvement in the Police and Citizens’ Club. More weight is given to this consideration for that contribution.
The Applicant’s evidence was that he has no ties to the United Kingdom and that the only relative with whom he has contact, his brother Mr Sach, lives in Australia. Both his parents are dead (Transcript at 27). He has no relatives with whom he has had contact in the UK.
The obvious other tie that the Applicant has to Australia is his long-standing relationship with Ms C. While their relationship has obviously been tumultuous and destructive at times, it is clear that they deeply care for each other. Ms C’s evidence at the hearing was that she appreciated that it would not be a good thing for the Applicant to live with her should he be allowed to stay, not only because it would be more beneficial for him,

but also because she has issues of her own (Transcript at 57). Her evidence was that it would hurt her if the Applicant were forced to leave Australia.
Statements were also provided by others who have known the Applicant for many years (see [45]-[49] above). Their evidence was to the effect that the Applicant being forced to leave Australia would have an emotional impact on them. The evidence did not disclose that any of those who provided statements of support would be adversely financially impacted if the Applicant were not able to stay.
The other person who would be similarly emotionally affected is the Applicant’s brother

Mr Sach who, as he put it, would lose “only living biological family” if the Applicant were not allowed to stay (R1, G76/351).
At the hearing it also emerged that the Applicant has a 27 year old son with whom he has had little contact since he was a child. His son is, according to the Applicant, undergoing gender re-assignment. While the Applicant said that he would want to be there for his son as he went through the gender re-assignment process, there is no suggestion that the Applicant would provide any financial support to his son. Given that there has effectively been no contact between the Applicant and his son, he does not know where his son now lives, the Tribunal gives little weight the Applicant’s relationship with his son.
The Respondent concedes that this consideration weighs in favour of revocation of the cancellation but contends that is consideration is outweighed by those considerations which weigh against the revocation of the cancellation of the Applicant’s visa.
The Tribunal finds that this consideration weighs in favour of revocation of the cancellation of the visa but that only minor weight should be given to it.
Impact on Australian business interests (14(1)(c))
Neither party made any submissions on this consideration and the Tribunal finds that this consideration has no application in the present matter.
Impact on victims (14(1)(d))
Paragraph 14.4 of Direction 79 provides:
(1) Impact of a decision not to revoke on members of the Australian community, including the victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
Paragraph 14.4 of Direction 79 directs the decision-maker to consider the impact of a decision not to revoke cancellation of the visa on members of the Australian community, including the victims. That is curious given that a decision not to revoke the cancellation of the visa would result in the non-citizen being removed from Australia. It is not clear how the offending non-citizen being forced to leave Australia would impact members of the Australian community, including victims, other than positively. The more logical consideration for the decision-maker would be the impact of a decision to revoke the cancellation, that is, the impact on the Australian community and victims in Australia of letting the non-citizen stay in Australia. The Tribunal notes that the consideration that the decision-maker is to have regard to under paragraph 12.3 of Direction 79 when considering whether a visa should be issued, is the impact of as decision to grant a visa. That is, the impact of the non-citizen being in the Australian community. That is obviously the relevant consideration when looking at the impact on the Australian community including victims in Australia, not the impact of the non-citizen being removed from Australia as directed by paragraph 14.4.

The Tribunal therefore gives no weight to the consideration as expressed in paragraph 14.4 of Direction 79. Paragraph 14 of Direction 79 states that the “other considerations” “include (but are not limited to)” those listed in subparagraphs (a) to (e). The Tribunal therefore considers that a relevant consideration would be the impact of a decision to revoke the cancellation, that is, to allow the Applicant to stay in Australia. The repeated victim of much of the Applicant’s offending was Ms C. While it appears that the Applicant now has a greater realization of the impact of his offending on his victims, including Ms C, and while both Ms C and the Applicant now say that if he is allowed to stay in Australia he will not live with Ms C, given his history of assaults on Ms C there is obviously a risk to

Ms C specifically, and to the community generally, if the cancellation is revoked. Ms C, however, has made her position clear in her written statements and in her evidence at the hearing. She wants the Applicant to stay in Australia.
Accordingly, while the best interests of the community and the victims would normally be better served by the cancellation not being revoked, in the present case given the express position of Ms C, the only victim in relation to whom the Tribunal has any information,

the Tribunal finds that this consideration, either as expressed in paragraph 14.4 or in the alternative as set out in [160] above, is neutral. In that regard the Tribunal notes that the Respondent’s position on the consideration as expressed in paragraph 14.4 is that it is, at best, neutral (Respondent’s SFIC para. 46).
Extent of impediments if removed (14(1)(e))
Paragraph 14.5(1) of Direction 79 provides:
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen’s age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
It is not disputed that the Applicant has no family with whom he has had any contact in the United Kingdom. It is also not disputed, and the Tribunal finds, that the Applicant’s health is poor. He suffers from a range of conditions, most significantly epilepsy, which would be a significant impediment in his establishing and maintaining himself to the relevant basic living standard.
The Applicant claimed that he would not be entitled to a pension which would be available to someone who had worked in the United Kingdom. Whether that is the case is not clear. The Applicant produced a document (A20), the provenance of which is not clear, which provides some very limited information about entitlements to pensions in the United Kingdom. Whatever that document shows, and the Tribunal does not accept that it establishes that the Applicant would not be entitled to a pension or some other form of state support, as the Respondent notes, the appropriate test is whether the Applicant would have access to the types of support that would be available to other citizens of the country, presumably other citizens in the same category as the Applicant. There is nothing before the Tribunal that would indicate that the Applicant would not be entitled to the same support as other citizens of the United Kingdom in the same circumstances as the Applicant.
It also seems to be accepted by the Applicant that he would be entitled to medical treatment of a similar standard to that which he receives now. The concern expressed by the Applicant and by his brother is that it will take the Applicant time to develop rapport with his treating doctors. Even if one were to accept that, that in the Tribunal’s view, is an impediment which would not be long-lasting.
The Tribunal finds that because of the Applicant’s age, his poor health and the lack of any financial or social support available to him in the United Kingdom, the Applicant will face impediments in establishing himself and for a period maintaining a basic living standard.
This consideration weighs in favour of the revocation of the cancellation.
Indefinite detention
As noted above, the Respondent accepts that the Applicant has a number of health conditions (R1, G51; G79) and that due to his epileptic seizures, he has been assessed as being unfit to travel but says that the prospect of indefinite detention is presently speculative as there are other possibilities including:
(i) The Applicant may benefit from a favourable exercise of discretion by the Minister under ss 48B or 195A;
(ii)He may be the subject of a residence determination under Division 7, Subdivision B of Part 2 of the Act;
(iii) He may be resettled in a third country; or
(iv) He may subsequently be deemed fit to travel.
The Applicant has been assessed as unfit to travel so the third option, that is resettlement in a third country, is not a realistic option. As Barker J made clear at [87] in Sach v Minister for Home Affairs the possibility “of prolonged detention, including the possibility of indefinite detention in Australia” must be taken into account when considering whether the original decision to cancel the visa should be revoked. While it may be the case that, as submitted by the Respondent, there are potentially other possibilities such as the Applicant being fit to travel at some stage, as things presently stand if the Applicant’s visa remains cancelled he will be held in detention for an indefinite period. That, on this Tribunal’s reading of the judgment of Barker J, is the factual scenario which must be considered in the weighing exercise (Sach v Minister for Home Affairs at [89]).
The Weighing Exercise
Guidance is given by Direction 79 as to how the decision-maker should apply the primary and other considerations. Paragraphs 8(3), (4) and (5) of Direction 79 are relevant.
They provide:
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While these cases were generally looking at that exercise under Direction 65, the same considerations apply to the exercise required by Direction 79 which is materially in the same terms. The leading cases in this regard are Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 which was discussed by the Full Court of the Federal Court in Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 363 ALR 325.
Senior Member Dr M Evans in CZCV and Minister for Home Affairs [2019] AATA 91 at [164] summarised the legal position following the various cases referred to above as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so.
The Tribunal agrees with and adopts the approach outlined by Senior Member Dr M Evans.
Looking at the first primary consideration, the protection of the Australian community, the relevant consideration is whether the risk is an unacceptable one taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the behaviour and the likelihood of that occurring. For the reasons set out in [116]-[131] above, the Tribunal finds that the likelihood of the Applicant re-offending is low to moderate but that the risk is not an unacceptable one. The Tribunal finds that in the present case this consideration weighs in favour of revocation of the cancellation, however, that little weight should be given to this consideration.
For the reasons set out above the second primary consideration, the best interests of minor children in Australia, does not arise in this matter or, if it does in respect of the Applicant’s nephew, it is neutral.
The third primary consideration, the expectations of the Australian community, weighs against revocation of the cancellation of the visa, which, as a result of the decision in FYBR (FC) (see [134]-[142] above), it always must.
The “other consideration”, the strength, nature and duration of the ties that the Applicant has to Australia (Direction 79 paragraph 14(1)(b)), in particular the impact that the Applicant’s deportation would have on Ms C, weighs in favour of the revocation of the cancellation of the visa. The consideration of the impediments that the Applicant would face if he is removed also weighs marginally in favour of revocation.
The final relevant consideration, that of the potential for prolonged or indefinite detention of the Applicant because of his unfitness to travel, weighs significantly in favour of the revocation of the cancellation. It is, in this Tribunal’s view, a consideration that tips the balance in favour of revoking the cancellation of the visa. While the Tribunal accepts that the Applicant is a low to moderate chance of re-offending, if it were not for the potential for the Applicant to be indefinitely detained, that risk of re-offending, in light of the consequences that would flow, would be such that the Tribunal would not revoke the cancellation of the visa. Although it is only by a small margin, the result of the weighing exercise is that the correct or preferable decision is that the cancellation of the visa should be revoked.
CONCLUSION
The Applicant does not pass the character test. The issue is whether, guided by

Direction 79, there is another reason why the mandatory cancellation of the visa under s 501(3A) of the Act should be revoked. Taking into account all of the provisions of and considerations required by Direction 79, as guided by the authorities identified above, the Tribunal is satisfied that there is another reason why the decision to cancel the visa under s 501(3A) of the Act should be revoked under s 501CA(4)(b)(ii) of the Act.
DECISION
The decision under review is set aside and substituted with the decision that the cancellation of the Applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

I certify that the preceding 179 (one hundred and seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

.........................[sgd]...............................................
Associate
Dated: 28 November 2019

Date(s) of hearing: 8, 19 November 2019

Advocate for the Applicant: Mr M Sach

Counsel for the Respondent: Mr A Burgess

Solicitors for the Respondent: Sparke Helmore

Jurisdiction	Offence date	Result date	Offence	Result
WA	N/A	24/08/1983	Unlawful damage	Dism s 26 CWA
WA	N/A	25/01/1984	Unlawful damage	$40 fine
WA	N/A	16/05/1984	Unlawful damage	Probation 12 months
WA	N/A	24/06/1984	Unlawful damage	Dism s 34 CWA
WA	N/A	23/08/1985	Stealing	GB bond $200 for 12 months
WA	N/A	21/01/1986	Stealing, 2 counts	$100 fine per charge
WA	N/A	09/06/1986	Unlawful damage, 2 counts	$100 fine per charge
WA	N/A	12/08/1986	Disorderly conduct	$30 fine
WA	N/A	25/08/1986	Drunk	$5 fine
WA	N/A	10/10/1986	Unlawfully use MV vehicle	100 hours CSO
WA	N/A	10/10/1986	Stealing	$100 fine
WA	N/A	10/10/1986	Break enter and steal, 2 counts	Probation 18 months 100 hours CSO per charge
WA	N/A	10/10/1986	Break and enter with intent	100 hours CSO
WA	N/A	13/10/1986	Unauthorised use of a motor vehicle	100 hours CSO
WA	N/A	08/09/1987	Break enter and steal	$500 fine
WA	N/A	24/03/1988	Unlawfully on place/prem	$200 fine
WA	N/A	10/05/1988	Disorderly conduct	$200 fine
WA	21/07/1988	25/05/1989	Double dinking bicycle	$25 fine
WA	N/A	29/09/1989	Break and enter dwelling with intent	Probation 2 years 150 hours CSO
WA	N/A	23/04/1993	Threatening words	$40 fine
WA	N/A	23/04/1993	Resist arrest	$300 fine
WA	N/A	23/04/1993	Damage	$300 fine
WA	N/A	23/04/1993	Assault public officer	$500 fine
WA	N/A	23/04/1993	Assault common, 2 counts	$300 per charge
WA	N/A	24/05/1993	Stealing	3 months imprisonment cumulative
WA	N/A	24/05/1993	Assault occasioning bodily harm	6 months imprisonment cumulative
WA	N/A	24/05/1993	Assault common	3 months imprisonment
WA	N/A	04/02/1997	Damage	$200 fine
WA	N/A	04/02/1997	Assault occasioning bodily harm	12 months imprisonment, suspended 18 months
WA	N/A	04/02/1997	Assault common	$300 fine
WA	07/06/1997	11/06/1997	Excess 0.08%; method is breath Road Traffic Act 1974 s64	$300 fine Disq hold/obt MDL 3 months concurrent
WA	07/06/1997	11/06/1997	No motor drivers licence – under fines suspension Road Traffic Act 1964 s49(1)(a) & (2)(a)(iv)	$200 fine Disq hold/obt MDL 9 months cumulative
WA	N/A	11/06/1997	Cannabis possess a quantity	$100 fine
WA	N/A	19/04/2000	Stealing	$500 fine
WA	N/A	21/03/2001	Assault common	18 months conditional release order (adult) $1250 fine
WA	28/01/2003	29/01/2003	Assault common	$400 fine
WA	23/10/2003	24/10/2003	Breach of violence restraining order	$200 fine
WA	11/03/2005	08/06/2005	Common assault	6 months and 1 day imprisonment concurrent sentence suspended 2 years
WA	12/03/2005	08/06/2005	Threats with intent to influence	2 years intensive supervision order
WA	12/03/2005	08/06/2005	Criminal damage, 2 counts	2 years intensive supervision order
WA	23/06/2005	30/08/2005	Threats to injure	12 months imprisonment cumulative Sentence suspended 12 months
WA	11/08/2005	30/08/2005	Possess prohibited drug	$200 fine
WA	N/A	30/08/2005	Breach of intensive supervision order of 08/06/2005	12 months imprisonment suspended 12 months (threat) 9 months imprisonment concurrent suspended 12 months (damage) 7 months imprisonment concurrent suspended 12 months (damage)
WA	23/06/2006	10/10/2006	Carried a controlled weapon	$400 fine
WA	N/A	10/10/2006	Breach of suspended sentence	$300 fine
WA	N/A	10/10/2006	Breach of suspended sentence, 3 counts	$100 fine per charge
WA	03/07/2006	07/07/2006	Assault common	Community based order, 12 months (supervision)
WA	N/A	23/02/2007	Resentence of order 10/10/2006	6 months and 1 day imprisonment from 01/12/2006
WA	26/11/2006	23/02/2007	Assault common	9 months imprisonment concurrent from 01/12/2006
WA	26/11/2006	23/02/2007	Assault common	9 months imprisonment concurrent from 01/12/2006
WA	27/11/2006	23/02/2007	Breach of protective bail conditions	3 months imprisonment concurrent from 01/12/2006
WA	01/12/2006	23/02/2007	Breach of protective bail conditions	3 months imprisonment concurrent from 01/12/2006
WA	01/12/2006	23/02/2007	Breach of protective bail conditions	3 months imprisonment concurrent from 01/12/2006
WA	N/A	23/02/2007	Breach of community based order of 07/07/2006	6 months imprisonment concurrent from 01/12/2006
WA	21/01/2008	29/05/2008	Possessing stolen or unlawfully obtained property	$300 fine
WA	21/01/2008	29/05/2008	Gains benefit by fraud	$300 fine
WA	15/06/2008	16/06/2008	Breach of police order	$750 fine
WA	31/01/2011	02/03/2011	No authority to drive – never held	$200 fine MDL disqualified 3 months
WA	10/04/2011	13/05/2011	Unlawfully assaulted with circumstances of aggravation	8 months suspended imprisonment concurrent suspended 12 months from 30/11/2011
WA	04/06/2011	30/11/2011	Stealing	$200 fine
WA	04/11/2011	30/11/2011	Breach of violence restraining order	Intensive supervision order 12 months current from 30/11/2011
WA	04/11/2011	30/11/2011	Breach of protective bail conditions	No penalty
WA	09/11/2011	30/11/2011	Breach of protective bail conditions	No penalty
WA	09/11/2011	30/11/2011	Breach of violence restraining order	Intensive supervision order 12 months concurrent from 30/11/2011
WA	22/12/2011	07/02/2013	Grievous bodily harm	12 months imprisonment
WA	N/A	07/02/2013	Breach of suspended sentence of 30/11/2011	2 months imprisonment cumulative
WA	N/A	07/02/2013	Breach of intensive supervision order of 30/11/2011, 2 counts	3 months imprisonment concurrent per charge
WA	11/11/2011	21/03/2013	Assault common in circumstances of aggravation or racial aggravation	6 months imprisonment concurrent from 21/03/2013
WA	02/01/2012	21/03/2013	Breach of violence restraining order	6 months imprisonment concurrent from 21/03/2013
WA	09/01/2012	21/03/2013	Person who breaches conditional release order or community order without reasonable excuse, 2 counts	$300 fine per charge
WA	28/03/2012	21/03/2013	Breach of bail undertaking	3 months imprisonment concurrent from 21/03/2013
11/07/2013			Received warning regarding possible future visa cancellation
WA	23/04/2015	10/09/2015	Threat with intent to prevent/hinder person doing act	2 years imprisonment concurrent
WA	23/04/2015	10/09/2015	Assault common in circumstances of aggravation or racial aggravation	6 months imprisonment concurrent

Date(s) of hearing:	8, 19 November 2019
Advocate for the Applicant:	Mr M Sach
Counsel for the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore