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

Shields and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 51 (23 January 2024)
Division:GENERAL DIVISION
File Number: 2023/8480
Re:Jarrod Patrick Shields
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date of decision: 23 January 2024
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made on 14 November 2023 by a delegate of the Respondent and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
........................[SGD]...........................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – Applicant’s risk of reoffending found to be low- Applicant found to have multiple protective factors in the community – strong ties to Australia – interest of relevant minor child favour revocation- considerations in favour of revocation outweigh those against- Tribunal finding there is another reason to revoke the mandatory cancellation decision- decision under review set aside and substituted.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Bartlett v The Minister for Immigration and Boarder Protection (Migration) [2017] AATA 1561
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Walker v Minister of Home Affairs [2020] FCA 909
Secondary Materials
Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Senior Member Theodore Tavoularis
23 January 2024

Mr Jarrod Patrick Shields (‘the Applicant’) is a 42-year-old New Zealand national born in that country on 4 January 1982.[1] He first arrived here on 13 August 2007 and stayed only two weeks on what appears to have been a social visit as opposed to a re-settlement in this country.[2] He returned on 4 April 2009 and has, for all intends and purposes, regarded Australia as his country of residential abode ever since. Since 4 April 2009, he has departed Australia four times. Three of them were for family reasons back in New Zealand. The fourth involved a trip to Papua New Guinea for work purposes. He has never acquired Australian citizenship and has remained here as the holder a Class TY Subclass 444 Special Category (Temporary) visa (‘the Visa’).
[1] R2, p 1 [1].
[2] R2, p 213.
This Visa was mandatorily cancelled on 17 March 2023[3] by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’ or ‘the Minister’ pursuant to s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’). This was as a result of the Applicant failing the character test[4] because he received a custodial term of imprisonment of 18 months on 27 February 2023 at the Brisbane Magistrates Court.[5]
[3] R2, p 4 [1].
[4] Pursuant to ss 501(6)(1) and 501(7) (c) of the Act.
[5] R1, p 33.
By representations made on 6 April 2023 the Applicant sought revocation of this mandatory cancellation decision.[6] On 14 November 2023, the Minister’s delegate decided, pursuant to section 501CA(4) of the Act, not to revoke the mandatory cancellation decision. For the balance of these Reasons I will refer to this particular decision as the ‘Decision Under Review’.
[6] R1, p 288.
There followed an application to this Tribunal on 15 November 2023.[7] Shortly after filing of the instant application the Tribunal conducted a case management direction hearing by telephone as a result of which this application was set down for an in-person hearing in Brisbane before me on 22 and 23 January 2024 (‘the Hearing’). The Hearing received both written and oral evidence. The written evidence was reduced to an agreed Exhibit List, a true and correct copy of which is attached to these Reasons and marked ‘Annexure A’. Oral evidence was received from: (1) the Applicant ; and (2) Mr Jason Meyn, the Applicant’s friend and prospective employer.
[7] R1, pp 1-5.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this sub-section provides that:
(4)       The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be
revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. There remains to issues presently before the Tribunal. They are:
(a)whether the Applicant passes the character test; and if not
(b)whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.
Does the Applicant pass the character test?
The Applicant fails the character test as a matter of law.[8] It is plain from his criminal history history that he has received a sentence of imprisonment of 12 months or more[9] and thus has a ‘substantial criminal record’[10] which compels this Tribunal to find that he is a person who does not pass the character test. The threshold giving rise to such a finding is met as a result of sentences imposed upon the Applicant on 27 February 2023 by the Brisbane Magistrates Court for which he received terms of imprisonment of 18 months.
[8] Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].
[9] Section 501(7)(c) of the Act.
[10] Section 501(6)(a) of the Act.
IS THERE ANOTHER REASON WHY THE DECISION TO CANCEL THE APPLICANT’S VISA SHOULD BE REVOKED?
Section 499(2A) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about either the performance of those functions or the exercise of those powers. For present purposes in reviewing a non-revocation decision pursuant to s 501CA(4) of the Act, the Tribunal must have regard to the ‘Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (‘the Direction’).
For the purposes of deciding whether or not to revoke the mandatory cancellation of a

non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. There are six such principles and they are to be found at paragraph 5.2 of the Direction.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia:
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to
keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by

non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(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.
I will consider each in turn.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the applicable sub-paragraphs (a) to (h) therein. Sub-paragraph (a) to 8.1.1(1) references (as a guide and without limitation) conduct that is regarded as very serious by the Australian Government and the Australian community. Sub-paragraph (b) references (as a guide and without limitation) conduct that is regarded as ‘serious’ by the Australian Government and the Australian community. The balance of these sub-paragraphs (c) - (g) require analysis of aspects of a non-citizen's offending history such as to assist the Tribunal with allocating a nominated level of seriousness to the offending.
Summary of the Applicant’s offending
The Applicant’s offending history is one of relative temporal brevity. In terms of appearances for sentencing, he was first dealt with at the Southport Magistrates Court on 2 May 2018 and his final sentencing appearance occurred at the Brisbane Magistrates Court on 27 February 2023. This is a less than five year offending period. Yet it evidences the commission of some 67 offences dealt with at 19 separate sentencing episodes. Sentencing modalities imposed upon the Applicant included the following:
·notations of ‘no conviction recorded’ on his record;
·the imposition of fines;
·the notation of ‘conviction recorded and not further punished’ on his record;
·the imposition of actual time in custody. The total amount of such custodial time, expressed as a cumulative figure from his criminal history, amounts to something in the order of five years and 162 days.
He has offended in the realms of (1) possession of dangerous drugs and/or utensils or paraphernalia associated with the ingestion of such drugs; (2) failure to follow a lawful direction; (3) breaches of bail; (4) failures to appear in accordance with a duly provided undertaking; (5) breaking and entering offences including the possession of instruments/ implements for such purpose; (6) possession of property suspected of being stolen; (7) possession of tainted property; (8) receiving tainted property; (9) offences of dishonesty involving him applying the property of others to his own benefit; (10) burglary; and (11) unlawful use of motor vehicles.
Paragraph 8.1.1 Considerations
Paragraphs 8.1.1(1)(a)(i), (ii) and (iii): as mentioned, the chapeau to these three paragraphs stipulates that without limiting the range of conduct which may be considered very serious, the types of crimes described as ‘violent and or sexual crimes’, ‘crimes of a violent nature imposed against women or children (regardless of the sentence imposed)’ and ‘acts of family violence (regardless of whether there is a conviction or a sentence )’ are viewed very seriously by the Australian Government and the Australian community.
During closing submissions the Respondent’s representative conceded that none of the Applicant’s offending falls within the auspices of paragraphs 8.1.1(1)(a)(i) and (ii) that it would otherwise be unsafe to thereby apply the ‘very serious’ descriptor to the totality of his unlawful conduct in this country. The Respondent’s representative was, understandably, more cautious about whether any of the Applicant’s conduct fell within sub-paragraph 8.1.1(1)(a)(iii) such as to comprise acts of family violence regardless of whether there is a conviction for such conduct or a sentence imposed for such conduct.
To be clear, the summonsed material for the Tribunal refers to certain conduct by the Applicant some four-five years ago which involved him displaying conduct towards his former spouse and her then-partner in terms that now can only be described as domestically violent conduct.[11] In respect of that conduct a protection order was made and it was renewed to remain in force up to and including 27 March 2025. During his oral evidence the Applicant was not able to fulsomely recall the minutiae of his conduct particularised in the summonsed material to which I have referred.
[11] See generally R3, pp 9-11.
I accept that in terms of any lack of reliable recollection by the Applicant now, compared to what is clearly recorded in the summonsed material about the circumstances of the conduct, this Tribunal can safely defer to the authoritative independence of the police record of the incident. But that difference should not, for the purposes of this paragraph 8.1.1(1)(a)(iii) automatically default the Tribunal to applying the ‘very serious’ descriptor to the Applicant’s overall conduct, and I will not do so. It should be remembered that:
(i)the Applicant did not vacuously or otherwise contest the initial making of the Domestic Violence Order (‘DVO’);
(ii)although he was not present in court when the initial DVO was made, he accepted its terms and did not subsequently challenge it;
(iii)he then went about his own life without ever breaching the DVO and accepted its extended period without equivocation;
(iv)he subsequently re-established a civil tone of communication with his former aggrieved spouse such as to produce a written agreement between him and her about the time he can spend with the three children of their previous relationship;[12] and
(v)indeed, their eldest child turns 21 next month and her milestone birthday will be celebrated at a party that will be attended by both the Applicant (assuming that he succeeds in this application), his former aggrieved spouse and her partner, the other two children of the Applicant and former aggrieved spouse and invited guests.
[12] See A5.
I am therefore very cautious about utilising the reference to domestic violence at paragraph 8.1.1(1)(a)(iii) of the Direction and will not attribute a ‘very serious’ descriptor to the Applicant’s unlawful conduct.
Paragraph 8.1.1(1)(b): as also mentioned, the chapeau to this paragraph does, without particular limitation, categorise unlawful conduct that the Australian Government and the Australian community regard as being ‘serious’. The Applicant has no conviction arising from him causing a person to enter into a forced marriage or as a result of him otherwise being a party to a forced marriage.[13] Given the formulation of the character test referable to the instant decision, which test the Applicant fails as a matter of law,[14] I am not required to make any finding about whether any of his conduct forms the basis for a finding that he does not pass an aspect of the character test that is dependent on my opinion.[15] The material contains no reference to any crime committed by the Applicant during his time in immigration detention.[16]
[13] Pursuant to paragraph 8.1.1(1)(b)(i) of the Direction.
[14] See [7] of these Reasons.
[15] Pursuant to paragraph 8.1.1(1)(b)(iii) of the Direction.
[16] Pursuant to paragraph 8.1.1(1)(b)(iv) of the Direction.
That said, the Applicant does have convictions for crimes committed against government representatives or officials (specifically the police) which does engage the auspices of paragraph 8.1.1(1)(b)(iii). He has at least one conviction for contravening a direction or requirement of a police officer and such conduct must thereby now be found to be of an, at least, ‘serious’ nature. I so find.
Paragraph 8.1.1(1)(c): in applying this particular paragraph, I am precluded from taking into account sentences imposed on this Applicant for:
(i)any violent offending he may have committed against women and children;[17]
(ii)acts of family violence;[18] and
(iii)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[19]
[17] Paragraph 8.1.1(1)(a)(ii) of the Direction.
[18] Paragraph 8.1.1(1)(a)(iii) of the Direction.
[19] Paragraph 8.1.1(1)(b)(i) of the Direction.
None of the Applicant’s offending involved violent conduct towards women and/or children. Nor does he have any conviction involving him causing or forcing a person to be involved in a forced marriage. We return again to the question of the status this Tribunal should attribute to the Applicant’s conduct involving family violence. This Applicant has no convictions for, or sentences imposed for, acts of family violence.
Therefore, I am safely led to the view that none of the Applicant’s convictions fall within any of the auspices appearing in the abovementioned three categories. However, that is not the end of the enquiry because I am required to look at the sentencing modalities imposed by the Courts for his offending. There is no cavilling with the proposition and finding that the Applicant has received a quite broad range of sentences. This unfortunately includes the imposition of custodial terms, the cumulative total of which amounts to something like five and a half years. These custodial terms represent the last resort in the sentencing hierarchy. Custodial sentences should be viewed as a reflection of the objective seriousness of the totality of this Applicant’s unlawful conduct.[20]
[20] PNLB and Minister for Immigration and Border Protection [2018] AATA 162.
I am satisfied that the sheer scope of sentencing modalities imposed on the Applicant together with the equally significant number of those sentences both strongly militate in favour of a finding that the totality of his conduct must now be found to be (at a minimum) ‘serious’. I so find.
Paragraph 8.1.1(1)(d): this paragraph poses two questions. The first, is whether the Applicant’s offending has been frequent? We are talking about the commission of 67 offences dealt with 19 separate sentencing episodes across an offending period of less than five years running from May 2018 to February 2023. This is clearly frequent offending. The second question involves an inquiry into whether the Applicant’s offending evinces a trend of increasing seriousness. I think it does.
The offending commences with offending predominantly committed in the realm of the possession of dangerous drugs and the utensils and paraphernalia associated with their consumption. As such, it can be safely be viewed as the conduct of an illicit drug user with a growing addiction. The offending then evolves into more purpose-driven, deliberate and wanton conduct involving the unlawful taking of the property of others and its dishonest application for the Applicant’s self-serving purposes of satiating his cravings for illicit drugs. I am satisfied this uplift in his conduct demonstrates a trend of increasing seriousness.
I have no difficulty in concluding that the Applicant’s offending has been both frequent and demonstrative of a trend of increasing seriousness. Analogous with this, my finding must be one of his conduct being of an at least ‘serious’ nature. I so find.
Paragraph 8.1.1(1)(e): this paragraph looks for any cumulative effects to be taken from an unlawful non-citizen’s offending. There are at least four such effects able to be gleaned from his criminal history. First, the Applicant does not seem to have experienced any measure of deterrent effect from the progressively applied sentencing regime imposed on him. He was afforded the benefit of non-custodial sentences for his first 23 offences for which he was convicted. There followed offending of such severity as to attract something like a cumulative total of five and a half years of sentencing time from his 24^th conviction up to his 67^th. It is plain that the Applicant failed to experience any deterrent effect thus far.

Second, respect for the lawful authority governing the Australian community back into which the Applicant now seeks re-admission is surely a fundamental requirement of any non-citizen seeking a visa to remain here. The Applicant’s criminal history demonstrates a shocking absence of respect for the lawful authority regulating the use of illicit drugs, the sanctity of other people’s right to own property and the legal authority represented by law enforcement officers in our community.
Third, on his own evidence, the undoubtedly predominant factor behind his offending has been his difficulties with addiction to illicit drugs. The offending devolves from (1) conduct of a drug user per se; to (2) conduct of a drug user motivated by doing whatever it takes to meet a craving for illicit drugs. The significant cumulative effect I am referring to relates to the state of the Applicant’s addiction and whether or not this propensity towards substance abuse is something that can now be safely found to be under some type of remedial management and control were he returned to the community.
Fourth, I again refer to the sheer volume of convictions appearing in the Applicant’s criminal history. It refers to the commission of something like 14 offences a year and an appearance before sentencing courts on almost four occasions per year across its almost five year history. I have no difficulty with finding that his conduct consumed more than its fair share of the community’s law enforcement, judicial sentencing and custodial resources. This inordinate consumption of those resources does, with question, amount to a cumulative effect of this Applicant’s repeated offending.
The abovementioned four cumulative effects of the Applicant’s offending thereby causes this paragraph 8.1.1(1)(e) to strongly militate in favour of a finding that the Applicant’s offending in this country has been ‘serious’. I so find.
Paragraph 8.1.1(1) (f): the material contains reference to a couple of incoming passenger cards[21] that were completed by the Applicant upon his respective returns to Australia in July 2013 and March 2017. The wrongful completion is to be found in his respective responses to the same question involving him ticking the ‘No’ answer in response to the question ‘Do you have any criminal conviction/s?’. Several things can be said about these incorrect answers:
·the Applicant’s first conviction in Australia was in May 2018 which post-dates the date of both incoming passenger cards. Therefore, the Applicant had no Australian offending history at the time he completed both cards;
·of course, the Applicant had compiled three convictions in New Zealand (in March and July 2000) for ‘possession of cannabis (x 2)’ and ‘drink driving’. For the former two charges he received 80 hours of community service on each. For the drink driving he was fined $100 and received a three month disqualification from driving;
·the question in the cards is somewhat vague because it does not carry the words ‘in Australia or elsewhere?’ at the end of it. This is not to artificially explain away the incorrect nature of the answers he provided;
·at the Hearing the Applicant sought to explain the incorrect answers on the basis of (1) having been told that convictions go stale 10 years after they were imposed and that thereafter they do not otherwise exist as disclosable convictions; and (2) that because he did not serve actual custodial time for his New Zealand offences, he did not have to disclose them on either of these cards.
[21] R1, p 210-211.
Be this as it may, I asked the Applicant at the Hearing whether he acknowledged and accepted the incorrectness of his answers to the relevant question on both cards. He did. I then asked him whether he intentionally intended to deceive anyone in the Respondent’s Department by providing these answers? He confirmed he intended no such deception.
The plain terms of this paragraph speak to a finding that the totality of the Applicant’s conduct has been of a serious nature. I so find.
Paragraph 8.1.1(1)(g): the material has nothing to say about the Applicant receiving any formal warning from either the Respondent’s Department, or any other source, about the impact of any subsequent offending thereby imperilling his Visa status to remain here. This paragraph should be put to one side and rendered neutral for present purposes.
Paragraph 8.1.1(1)(h): the Applicant came to reside here on a final basis as a 27-year-old in April 2009. As referred to earlier, he compiled two convictions for cannabis possession in March 2000 in New Zealand together with one conviction for drink driving in July 2000, also in New Zealand. Such conduct is classified as an offence in Australia and, as such, the Applicant’s convictions in New Zealand do speak to a finding that his ensuing conduct in Australia has been serious. I so find.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction. Earlier in these Reasons, I made a finding that the structure of paragraph 8.1.1(1)(a) of the Direction does not safely facilitate the application of the ‘very serious descriptor to the nature and seriousness of the Applicant’s conduct. That said, I have little difficulty in adopting a finding that the totality of his conduct can now be found to have been ‘serious’ within the context of the Direction. It is not easy to ignore the sheer size and scope of the Applicant’s offending history and that it is reflective of offending committed with a drug-induced indifference towards his responsibilities to the Australian community.
It is therefore safe to conclude (and find) that the totality of this Applicant’s unlawful conduct in this country can be readily characterised as ‘serious’.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The Applicant’s offending has been voluminous and, by definition, multi-faceted. There is surely little or nothing to cavil with the proposition that were he to re-commit all or part of it, there would result physical, psychological, measurably material and potentially catastrophic impact on a victim.
He has an appalling number of convictions for unlawfully taking other people’s property and applying it to his own use. This is a fundamental breach of the rights of others to enjoy the property they have worked hard to acquire. If he re-commits his property offending, those victims will, without question, suffer measurable and material loss.
He has repeatedly breached lawfully made instruments requiring him to do or refrain from doing something such as meeting the conditions of bail and/or meeting the requirements of an undertaking compelling him to present himself in a Court on a future date. Any future breaches of these types of instruments compels intervention by the police and the Courts to regulate such a breach. In turn, this consumes the community’s policing, judicial sentencing and custodial resources. Such a cost is ultimately borne by the Australian taxpayer.
If he again unlawfully uses a motor vehicle, it would again expose members of the road-using public to serious and even catastrophic harm. I have previously written of the significant risk to other road users that can result from the irresponsible and/or unlawful driving, management and control of a motor vehicle.[22]
[22] Bartlett v The Minister for Immigration and Boarder Protection (Migration) [2017] AATA 1561 at [43].
Were he to resume drug offending, he will be making his own contribution towards the continued presence of such substances in our community. There is no doubt that the greater the amount of illicit drugs in our community, the greater the risk of now well-publicised physical, psychological and potentially catastrophic harms to victims and their families.
Therefore, these elements of the Applicant’s offending history, if recommitted upon a return to the community, would result in harm that could range from psychological harm, physical harm, measurably material harm up to, quite conceivably, catastrophic harm in the event of its recommission. I so find.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
I will approach the assessment of the Applicant’s recidivist risk by having regard to (1) his past conduct and the factors behind it and his past efforts at engagement with some measure of a rehabilitative process; (2) the evidence of the forensic psychologist, Dr Palk; and (3) the Applicant’s evidence at the Hearing before me.
Factors behind past conduct and past engagement with rehabilitation
It can be safely accepted that the Applicant’s most significant and serious unlawful conduct was committed in the aftermath of his separation from his former wife and resulting financial and mental health difficulties. This caused him to lose virtually any sense of a moral compass and led to his devolution into illicit drug abuse. This was exacerbated by a couple of very unfortunate relationships he formed with women who themselves were illicit drug users. The first, of those was ‘Ms L’ who came to reside at the former matrimonial home the Applicant previously shared with his ex-wife. He took on Ms L as a boarder in order to meet the ongoing expenses of maintaining the home. Ms L told the Applicant that she worked as a Drug and Alcohol counsellor with a very well known community services provider. Astonishingly, it transpired that Ms L had an involvement in illicit drugs to such an extent that it caused police to conduct a raid on the property the Applicant was sharing with her. The Applicant told the Hearing that Ms L was responsible for introducing him to a pattern of regular use of illicit drugs.
This drug use went to a higher level when the Applicant met the subsequent partner ‘Ms DR’. His relationship with her caused his illicit drug use to spiral virtually out of control. He became psychologically and physiologically addicted to ‘ice’ or ‘methylamphetamine’. He met Ms DR while homeless and the relationship devolved into a tragic pattern of them both consuming illicit drugs, becoming addicted to them, committing offences to meet their addictions and to otherwise result in their repeated appearances before sentencing courts.
By October 2022 when the Applicant was arrested and incarcerated, his relationship with Ms DR was at an end and he speaks of having no intention of resuming any contact with her whatsoever into the future. It follows that maintaining a safe distance from the likes of Ms DR must surely positively speak to his prospects of not relapsing into the abuse of illicit substances and a consequential pattern of offending.
From his incarceration in October 2022 until the middle part of 2023 the Applicant completed the following relapse prevention and management plans relating to his methylamphetamine addiction:
‘(a) the Short Substance Intervention (SSI) 6-hour “Explore” program (completed on
10 January 2023);
(b) Drug and Alcohol Abuse 101, a Universal Class course (completed on 22 June
2023); and
(c) Understanding Addictions, a Universal Class course (completed on 3 July
2023).’[23]
[23] R1, p 115.
Following his release on parole in the middle of 2023, the Applicant was taken into immigration detention. While there, he has been liaising with a psychologist and a drug and alcohol nurse on an approximate fortnightly basis. He has been placed on the Opioid Substitution Therapy Program (‘OSTP’) which sees him receive an injection of Suboxone once a month. There is little to suggest he will not be able to access such therapy in the broader community.
He has also developed an involvement with the service described as ‘Lives Lived Well’ which supports people impacted by substance abuse and any consequential mental health issues. The relevant case manager at Lives Lived Well is Ms Eloise O’Neil who, in her letter of 12 July 2023, noted the following:
‘Jarrod completed our brief intervention in his most recent treatment session, and it was mutually agreed that he will continue to access ongoing telephone sessions for the purpose of relapse prevention planning. I understand that a return to the community is Jarrod’s ultimate goal, and he reflects on his children as his primary motivation to sustain his lifestyle change and reported abstinence. Jarrod appears to demonstrate insight in to the severity of risk posed by any further substance use, particularly in the context of deportation.’[24]
[24] R1, p 151.
Ms O’Neil is of the view that the Applicant’s continued abstinence from illicit drugs is sustainable and that the Lives Lived Well program can and will provide the Applicant with strategies that may assist in the management any predisposition he may feel towards returning to illicit substance abuse.
There is a recognition in submissions previously filed on behalf of the Applicant that ‘…previous attempts to rehabilitate indicate and ongoing willingness to seek treatment, even if the previous treatment was not as effective or accessible as his current treatment.’[25] The counter-balancing contention is that regard should be had to the extent of his intended and actual involvement in rehabilitation since his incarceration in October 2022 which demonstrates an intention to overcome his drug addiction with a greater determination than was previously the case.
[25] R1, p 116 [118].
The written evidence of Dr Palk, forensic psychologist
Dr Gavan Palk is a significantly experienced forensic psychologist. He was briefed directly by the Applicant to provide a report on, inter alia, the Applicant’s recidivist risk. Dr Palk interviewed the Applicant by telephone for one hour on 5 December 2023, one hour on 8 December 2023 and for 20 minutes on 10 December 2023. Although the Applicant was questioned about it in cross-examination there is no suggestion about the adequacy or otherwise the nature and extent of material the Applicant briefed to Dr Palk for the purposes of his report.
In his usual fulsome way Dr Palk made a summary of the Applicant’s offending and also made a detailed examination of the Applicant’s personal circumstances including his formative years in New Zealand, his education and employment history, his intimate relationships, his health and substance use, his criminal history and his current situation and plans.
Dr Palk attributed the Applicant’s vulnerability to becoming addicted to methylamphetamine as a result of feelings of depression and hopelessness after the end of his marital relationship. The Applicant told Dr Palk of his spiral into illicit drug use at this time and how he (the Applicant) ‘accepts full responsibility for his current and past offending and …regrets the harm he has caused to the community, his family and himself.’[26]
[26] A2, p 13 [4.4].
Dr Palk also made a careful summary of the Applicant’s attitudes towards rehabilitation and noted the Applicant’s recognition that the first priority was for him to avoid toxic relationships with the likes of Ms L and Ms DR.[27] Dr Palk opined that ‘…Mr Shields displayed a confidence in his determination to make a new man of himself and to prove to his children he can be a worthwhile father and law abiding citizen.’[28]
[27] A2, p 14 [5.11].
[28] A2, p 14 [5.12].
Following administration of various testing methodologies, Dr Palk concluded that:
‘6.10 Mr. Shields’ risk of reoffending is currently low as his substance dependency is remission and his risk can remain low if he continues to implement the rehabilitation strategies he has learnt and refrain from illicit substances when he is released into the community. ’[29]
[29] A2, p 15 [6.10].
Dr Palk’s concluded opinion is that the Applicant:
·genuinely accepts and regrets the nature and extent of his offending;
·is determined not to reoffend;
·appears genuinely remorseful; and
·has a firm commitment not to reoffend and to live a pro-social life as a father to his children and a law-abiding resident of this country.[30]
[30] A2, p 18 [9.7].
Dr Palk’s report concludes with these words:
‘9.8 Mr. Shields is currently regarded as a low risk of re-offending and if he refrains from using illicit substance and continues to practice his relapse prevention strategies, he will remain a low risk for re-offending.’[31]
[31] A2, p 18 [9.8].
Dr Palk was compelled to provide a supplementary report[32] in response to the Respondent’s observation in its Statement of Facts, Issues and Contentions (‘SFIC’) that he (1) did not provide an opinion on the risk of the Applicant relapsing into drug use and (2) an apparent lack of clarity in the circumstances of Dr Palk’s application of certain psychometric testing to the Applicant’s circumstances.
[32] A3.
Dr Palk remedied the first asserted deficiency in his report by making the following further findings:
‘1.16 The writer noted in his report Mr. Shields had taken substantive steps towards drug rehabilitation and was motivated by being a responsible father.
1.17 The writer notes that he has not been tested in the community regarding sustaining his rehabilitation efforts and relapse prevention strategies. The structured environment of the parole setting would assist him in maintaining a drug free life with weekly check-ins, urine testing and general support.
1.18 The writer notes that Mr. Shields is still currently reliant on the suboxone program (monthly injections) and is no longer in a relationship with his drug using partner. He is also repairing his relationship with his children and their mother and taking steps to remove drugs from his life and wean himself off the suboxone program.
1.19 The writer opined in his report that Mr. Shields is currently regarded as having a low- risk of re-offending and if he refrains from using illicit substance and continues to practice his relapse prevention strategies, he will remain a low-risk for re-offending. It therefore follows that if he maintains his current relapse prevention practices when he enters the community his risk of relapsing into drug use will be low.’[33]
[33] A3, p 3 [1.16] - [1.19].
With reference to the second claimed deficiency said to arise from Dr Palk’s manner of application of certain psychometric testing, Dr Palk said this:
‘1.2 A psychometric approach to assessing risk of re-offending is more reliable and accurate (about 70-80%) than a clinical assessment alone. It is not possible to predict risk with 100% accuracy but utilising scientific tools such as the Hare Psychopathy Checklist provides much greater certainty in predicting risk of reoffending.’[34]
[34] A3, p 1, [1.2].

To my mind, Dr Palk’s respective responses adequately answer the two questions raised by the Respondent. It should be noted, however, that in fairness to the Respondent, Dr Palk was not made available for cross-examination. The Applicant told the Hearing of the likely cost of making Dr Palk so available which was duly respected by the Respondent. It is not a cheap exercise to have someone of the stature and experience of Dr Palk available for several hours to give oral evidence at a Hearing like this in circumstances where the Applicant was not able to afford legal representation. I respectfully commend the Respondent’s representative for his understanding approach on this issue.
The Applicant’s evidence
I am cautious about adopting, in any wholesale sense, the narrative appearing in the Applicant’s most recent statement (and indeed any earlier statement) regarding his recidivist risk. This is not to suggest his latest (or any earlier) statement contains untruths. But there is a certain level of caution to be exercised in fulsomely adopting comments by the Applicant along the lines ‘Some people are just NOT good for you. I have learnt this the hard way’[35] and ‘I also have more insight into the people I affected…..If given a second chance, I will not fail.’[36]
[35] A1, p 5 [7].
[36] A1, p 7 [5] - [6].
However, there is a particular paragraph appearing that does appear in his latest written statement which does carry a level of acknowledgement and perspicacity around his storied involvement with illicit drugs. It is worth quoting here because it does, to my mind, provide a segue of sorts into his oral evidence:
‘11. Now that I have failed at rehabilitation a couple times. I am now ready and committed to complete rehabilitation for the rest of my Life. I have the tools and the knowledge now to deal with everyday life. The ups and the downs.’ [37]
[37] A1, p 6 [11].
In terms of his oral evidence at the Hearing, the Applicant referred to having done a lot of rehabilitation during his time in immigration detention. He spoke of having a greater level of self-awareness and the extent to which he understood the very adverse impact that illicit drugs had on his life over the last six or seven years. If returned to the community he intends to maintain an active involvement with the Lives Lived Well program and to also continue a weekly participation in the SMART recovery classes he has already commenced.
He appeared quite insightful about the extent to which toxic relationships with the likes of Ms L and Ms DR has been on his capacity to overcome his addiction and to otherwise avoid committing offences. He spoke of a developed understanding in the differentiation between the respective concepts of ‘relapse’ and ‘lapse’. He referred to a relapse as a temporary indiscretion or departure from the rehabilitative norm while he referred to a lapse as a more dangerous and long term pattern of conduct that would more likely lead to a resumed and addictive pattern of illicit substance abuse.
I found this differentiation quite insightful because it takes into account the very real possibility that the Applicant may be exposed to more easily available alcohol and drugs in the community and that he might, on an isolated occasion, casually participate in such substances. The important part he now seems to have understood is that while total abstinence is the perfect objective, the more realistic objective is to be able to say ‘No’ to prolonged usage and to otherwise not allow casual usage to become prolonged usage.
The Applicant identified specific protective factors that could now be found to speak favourably to his level of recidivist risk. Those factors are (as best as I understood them):
·the significant progress he has made to address his drug addiction including, but not limited to, his placement on the OSTP, his involvement with Lives Lived Well, his involvement with the SMART recovery classes and the balance of online courses he has voluntarily completed;
·his positive attitude towards rehabilitation as a means of controlling his addiction, as noted by Dr Palk;
·the realisation that avoidance of toxic relationships with the likes of Ms L and Ms DR is critical towards maintaining a pattern of abstinence;
·his qualifications as an electrician and his obviously positive prospects of employment; and
·his responsibilities to his children involving his stated intention to fulsomely re-establish himself in their lives as their father and as a law-abiding resident of this country.
In terms of the Applicant’s level of thought dedicated to how he will address his addiction upon a return to the community the material contains reference to a very detailed

‘re-integration plan.’[38] The document is both impressive and convincing as a result of its attention to items such as: (1) where the Applicant will reside if returned to the community; (2) what family supports he will have; (3) specific treatment destinations to support his mental health and criminogenic needs; (4) his prospects of employment; (5) the professional assistance available to him in the community and (6) people he can approach for mentoring in the community.
[38] A10.
This reintegration plan includes a ‘rehabilitation toolkit’. It provides the name of each rehabilitation service provider and names of people or other contact details the Applicant can readily contact for ongoing rehabilitative support and treatment in the community. It is an impressive schedule and not one the Applicant could have ‘manufactured’ for present purposes. He knows these details because he has either spoken with these people or their names have been provided to him by others in the rehabilitative space.
It is worth mentioning the Applicant’s significant employment history which, in my view, also speaks to his level of recidivist risk. The material contains a duly schedulised employment history.[39] In an earlier submission filed on his behalf it was noted that:
‘…our client has a strong employment history. He has been a fully-qualified electrician (having studied electrical engineering and completed a three-year apprenticeship) for about 22 years, and maintained full-time employment for about ten years in Australia. Although he has expressed that he does not want to return to being an electrician due to the stress of being on call 24/7 and the previous impact that this had on his mental health, we submit that his general skills in this area will have a significant positive effect on his employment prospects going forward.
71. In this respect, our client has received a firm full-time job offer from AUS EE Ratings Pty Ltd. In their support letter, the owners of AUS EE Ratings Pty Ltd speak glowingly of our client’s work ethic and refer to him as an “asset to [their] company”, from when he previously worked for them as a Labourer / Electrical hand. This, we submit, is reflective of our client’s underlying skills in electrical engineering, and the high likelihood that he will be able to secure full-time employment in general.’[40]
(Internal footnote omitted)
[39] A7.
[40] R1, p 116, [70]-[71].
Findings about risk
My findings about the Applicant’s recidivist risk will comprise a synthesis of my above review of the evidence. I state them thus:
·true it may be that the Applicant’s capacity to avoid more generally available illicit substances in the community remains untested, but his resolution towards maintaining a pattern of rehabilitative involvement appears well thought out, structured and deliberate. There are strong prospects of him managing any risk arising from easier availability of such substances in the community if he maintains this rehabilitative pattern;
·the Applicant’s level of insight is convincingly significant. He has come to understand the dreadful impact that drugs have had on his capacity to (1) hold down employment; (2) be the father he wants to be for his children; (3) be the resident of Australia that could be regarded as someone worthy of holding a visa to stay here; and (4) how all of this can come to ruin if he again defaults the dangerously false haven of illicit drugs as a means of dealing with life’s difficulties;
·
while he accepts that management of his predisposition towards illicit drug abuse is, and forever remain, a work in progress, he has come to understand the extreme importance of maintaining vigilance in that endeavour. He has clearly thought about this required vigilance. That level of thinking can be found in his

re-integration plan and rehabilitation toolkit. Put simply, he knows there is something very wrong in his psychopathology but he also knows he has to work very hard to avoid a re-emergence of the past behaviour that led to his serious record of offending in this country and his estrangement from his family;
·he is very well qualified and appears to have convinced others of his capacity to very highly achieve. He held down full-time employment in Australia and secured a senior managerial position at a significantly sized food distribution business, JL Lennard. This is an example of what he can achieve when he keeps drugs out of his life or, at worst, keeps that risk on the ‘relapse’ side of his rehabilitative ledger as opposed to the ‘lapse’ side; and
·there are protective factors around the Applicant. They are (1) his responsibilities to these children; (2) residential security in terms of having somewhere to live; (3) employment security in terms of having somewhere from which to immediately derive an income; and (4) rehabilitative security in terms of knowing who to consult and where to go to reliably maintain a pattern of rehabilitation.
Assessment of recidivist risk
Having regard to the material before me, I am led to a finding analogous to that of Dr Palk. Specifically, I am of the view that the Applicant represents a low risk of reoffending if he (1) refrains from illicit substances; (2) continues to practice his relapse prevention strategies; and (3) adopts and truly values the protective factors around him.
Sub-paragraph 8.1.2(2)(c)
The Direction also contains a reference to sub-paragraph 8.1.2(2)(c). With reference to this specific sub-paragraph, this matter does not involve a ‘refusal to grant a visa to a
non-citizen’. It involves an application for the ‘revocation’ of a decision refusing to revoke the earlier mandatory cancellation of the Applicant’s Visa. This specific paragraph is not relevant to the determination of this application.
Conclusion for Primary Consideration 1:
With reference to the weight attributable to this Primary Consideration 1:
(a)I have found that the nature and seriousness of the totality of the Applicant’s conduct to date has been serious;
(b)I have found that recommission of almost any aspect of the Applicant’s offending has the very real potential for the occasioning of physical, psychological, measurably material and even catastrophic harm to potential victims;
(c)I have found that this Applicant represents a low risk or reoffending if he (1) refrains from illicit substances; (2) continues to practice his relapse prevention strategies; and (3) adopts and truly values the protective factors around him.
My analysis of the material leads me to a finding that this Primary Consideration 1 confers a certain, but not determinative, level of weight towards this Tribunal affirming the Decision Under Review.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
1The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
2This consideration is relevant in circumstances where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
3In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
(a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i)     the extent to which the person accepts responsibility for their family violence related conduct;
(ii)    the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)   efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
As mentioned earlier, the summonsed material before the Tribunal contains a reference to reported conduct by the Applicant that gave rise to the making of a DVO against him. There is no requirement to repeat the terms of the grounds on which that DVO was made. It fulsomely appears in the material.[41] Paragraph 8.2 of the Direction compels two inquiries:
·it is necessary to ascertain who was a member of the Applicant’s family? and
·whether any of the Applicant’s conduct against any such family member amounts to family violence for present purposes? I will address each question in turn.
[41] R3, pp 9-11.
Who was a member of the Applicant’s family?
Paragraph 4(1) of the Direction provides that ‘….a person who has, or has had, an intimate personal relationship with the relevant person’ is a ‘member of the person’s family’ for the purposes of the definition of family violence. The victim of the Applicant’s domestically violent conduct is his ex-wife (‘Ms MS’) who is the same person as the biological mother of the Applicant’s two youngest children while he is the stepfather of her child from a previous relationship. The Applicant told the Hearing that his martial relationship with Ms MS came to an end about six-seven years ago. Be that as it may, Ms MS can be safely found to be a person who has had an intimate personal relationship with the Applicant. In turn, Ms MS can be safely found to have been a member of the Applicant’s family for present purposes.
Did any of the Applicant’s conduct constitute family violence?
‘Family violence’ is defined in the Direction. It is defined as ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful’.[42] This definition poses two separate questions:
·was the Applicant's conduct violent, threatening, or other behaviour that coerced or controlled a member of his family?
·was the Applicant's conduct violent, threatening, or other behaviour that caused a family member to be fearful?
[42] Paragraph 4(1) of the Direction.
The plain terms of the abovementioned grounds on which the DVO was originally made[43] are self-explanatory. It is beyond the question that the Applicant’s conduct, while not physically violent, was nevertheless conduct that was threatening and otherwise comprised behaviour that sought to coerce or control a member of his family, Ms MS. I am further satisfied that it was behaviour that caused Ms MS to be fearful. This is confirmed from the plain words of the relevant police report which says ‘[Ms MS]….stated to police she is fearful of the respondent [i.e. the Applicant] due to his erratic and unpredictable nature which she associates with the separation and the drug use.’[44]
[43] R3, pp 9-11.
[44] R3, p 10.
Is the Applicant’s conduct captured by paragraph 8.2 of the Direction?
With reference to the abovementioned incident, I am of the view (and I find) that even though the Applicant does not have an actual conviction(s)[45] for his domestically violent conduct described in the abovementioned incident, I am nevertheless satisfied that his conduct in the incident is captured by the provisions of paragraph 8.2(2)(b) of the Direction. This is because the circumstances of the conduct referred to in the summonsed document was prepared by the Queensland Police Service as part of an application for the DVO. I am satisfied (and I find) pursuant to paragraph 8.2(2)(b) of the Direction that this document comprises information or evidence from an independent or authoritative source indicating the Applicant has been involved in the perpetration of family violence.
[45] That is, a conviction for an offence against the person such as, for example, assault.
The author(s) of this application for the DVO was/were no doubt suitably experienced police officer(s) who, on any reasonable view, are also experienced in the preparation of such documents and who are also at arm’s length from the allegations they record and the conduct they describe. Therefore, for the purposes of paragraph 8.2(2)(b) of the Direction, the Applicant’s conduct towards Ms MS during this incident can now be found to constitute family violence against her for the purposes of this Direction. I so find.
Assessment of the seriousness of the Applicant’s family violence conduct
I will now consider each of the factors in paragraph 8.2(3)(a)–(d) in turn for the purposes of assessing the nature and seriousness of the Applicant’s family violence conduct.
Paragraph 8.2(3)(a): Paragraph 8.2(3)(a) requires an analysis of the frequency of the Applicant’s family violence conduct and/or whether there is any trend of increasing seriousness. As best as I understood the material, it contains only this one incident of family violence conduct by the Applicant. It is not possible to ascertain frequency or any trend of increasing seriousness from a single reference point. This paragraph should be put to one side and rendered neutral for present purposes.
Paragraph 8.2(3)(b): requires consideration of the cumulative effect of repeated acts of family violence. To repeat, the incident leading to the making of the DVO is a singularity. It is not possible to glean any cumulative effect of ‘repeated acts of family violence’ due to an absence of any such repetition. This paragraph should be put to one side and rendered neutral for present purposes.
Paragraph 8.2(3)(c)
: requires consideration of any rehabilitation achieved by the Applicant at the time of my decision since his last known act of family violence. This

sub-paragraph requires three enquiries:
(i)first, paragraph 8.2(3)(c)(i) looks for the extent to which the Applicant has accepted responsibility for his family violence related conduct. The Applicant has accepted – as I have mentioned above – responsibility for the extent to which his criminal offending has affected ‘the people closet [sic] to me…’[46] He thinks very highly of Ms MS, despite the end of their marital relationship.[47] It is not a stretch of the Applicant’s evidence to suggest and find that, just as is the case with his criminal offending, he now accepts responsibility for the abovementioned single incident involving his family violence conduct towards her;
(ii)second, paragraph 8.2(3)(c)(ii) seeks to understand the extent to which a non-citizen comprehends the impact of their behaviour on the abused person. For the same reasons I have referred to in the immediately preceding paragraph I am satisfied that the extent of the Applicant’s insight into his criminal offending can now safely be extrapolated into his understanding of the impact of his family violence behaviour. While the three children were also named as ‘child of the aggrieved’ in the DVO, there is nothing else in the material to suggest they experienced any adverse impact of his behaviour in terms of whatever extent they may have witnessed it. The children are now respectively aged 13, 18 and 20 and are thus of an age of express any such adverse impacts, none of which appears in the material;
(iii)third, paragraph 8.2(3)(c)(iii) seeks to identify efforts made by a non-citizen to address the factors which contributed to their family violence conduct. The initial question is whether the Applicant can be reasonably expected to have undertaken any such rehabilitation. As mentioned, his family violence conduct represents a singularity in his offending pattern. He has never breached the DVO, never challenged its terms at any hearing and did not resist extension of its operative period until March 2025. Ms MS is accepting of an ongoing co-parental commitment in the lives of the three relevant children. In these circumstances, there is nothing untoward in the Applicant not having undertaken any efforts to address the contributory factors contemplated by this paragraph 8.2(3)(c)(iii) of the Direction.
[46] A1, p 7 [4].
[47] See, for example, A1, p 3 [16]-[17] and p 4 [29].

The three inquiries compelled by this paragraph 8.2(3)(c) lead me to a finding that they are cumulatively silent about any finding about rehabilitation achieved by the Applicant since his singular known act of family violence.
Paragraph 8.2(3)(d) requires me to look at whether the Applicant has, ‘re-offended since being formally warned, or otherwise since being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence’. As mentioned, the Applicant’s known act of domestic violence is a singularity. He has never breached the DVO.
I have found that paragraphs 8.2(3)(a)-(d) do not assist the Tribunal in assessing the seriousness of this Applicant’s family violence conduct. I am of the view that these paragraphs are cumulatively silent about the seriousness of the Applicant’s domestically family violence conduct. Be that as it may I will, for the sake of completeness, find that it has been of moderate seriousness.
Conclusion: Primary Consideration 2
I have found that despite the absence of any conviction or sentence in relation to it, the Applicant’s conduct, as reported in the abovementioned summonsed material[48] does constitute family violence. I have found that conduct to be of moderate seriousness. I have also found that the material is otherwise silent in terms of assessing the seriousness of the Applicant’s family violence conduct.
[48] R3, pp 9-11.
I am accordingly of the view (and I find) that this Primary Consideration 2 is of a moderate but not determinative level of weight in favour of this Tribunal affirming the Decision Under Review.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Paragraph 8.3(1) of the Direction states:
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
The subsequent sub-paragraphs 8.3(2) and 8.3(3) of the Direction provide guidance to a decision-maker in how to determine the weight allocable to a person’s ties to his child/ren and social links wherein the child/ren and the social links of the person are Australian citizens or permanent Australian residents and/or who have a right to remain in Australia indefinitely.
In the assessment of any other ties a person may have in Australia, paragraph 8.3(4) of the Direction requires a decision-maker to have regard to:
a) the length of time the non-citizen has resided in the Australian community, noting that:
i. considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii. more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii. less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
Paragraph 8.3(1): Consideration of the impact of this decision on the Applicant’s immediate family members
As best as I understood the evidence the Applicant’s immediate family members in Australia comprise:
·his brother, Mr Matthew Shields;
·his sister;
·his adult child, Ms Jordan Shields-Knuth; and
·his adult stepchild, Ms Nyssa Shields.
In his written statement, the Applicant says that his brother resides in suburb north of Brisbane and that his sister resides relatively nearby. His adult child and adult stepchild reside with his ex-wife (Ms MS) in a vicinity comprising the approximate midpoint between Brisbane and the Gold Coast. Were the Applicant to be returned to the Australian community, there is little or no doubt that he would be sufficiently proximate to each of the abovementioned immediate family ties in Australia such as to re-enliven and propagate his relationship with each of them.
While there is no written statement before the Tribunal by either the Applicant’s brother or sister, his adult daughter did provide a supporting statement at an earlier stage of these proceedings,[49] the Applicant’s adult biological daughter, Ms Jordan Shields-Knuth, considers that the Applicant’s time during his removal from the community ‘has affected him extremely’. She notes with some regret that ‘…I couldn’t’ see my own dad on my birthday. I thoroughly wish that my dad can stay in this country to see me….grow up as he has missed so much of my life already.’[50]
[49] R1, p 141.
[50] R1, p 141.
The Applicant’s adult stepdaughter has provided several supportive statements, the latest of which is dated 5 December 2023. Although she is his stepdaughter she says the Applicant ‘has been in my life since I was a baby and step up [sic] the role my biological father could not. I grew up seeing only [the Applicant] as my father and still do to this day. He has provided a life for me I could only dream of….’[51]. In her statement she implores the Tribunal ‘…to consider the effect of his [the Applicant’s] removal from Australia would have on me and my family including my younger siblings.’ She concludes her statement with these words:
‘ I know that [the Applicant] can change and be a better person. It would break my heart and destroy my siblings if he were removed from Australia. If he were removed it would mean that we would never see him again because we cannot afford to travel to New Zealand for financial reasons. My sister struggles from health issues and has had multiple seizures over the past 3 years. If [the Applicant] was to be removed and something happen to my sister it could be devastating to know he may not be able to support his daughter if such crisis occurred. My father has made mistakes in his past but with his family’s support he will be able to make a better life for himself and watch his three children grow up’[52]
[51] A5.
[52] A5.
Despite the absence of written statements from the Applicant’s siblings, I am satisfied that each of the abovementioned four immediate family members-especially his adult daughter and adult stepdaughter-would be adversely impacted in the event of his removal to New Zealand. For their interests to be taken into account, each of these four people must be Australian citizens, Australian permanent residents or persons who have a right to remain in Australia indefinitely. I will make the assumption that each of these immediate family members fall into at least one of the qualifying categories contained in paragraph 8.3(1) of the Direction. I am of the view that the Applicant’s ties with the abovementioned immediate family members in Australia are strong and that those ties militate in favour of allocation of a heavy level of weight in favour of the Applicant pursuant to this Primary Consideration 3.
Paragraph 8.3(2): Consideration of the Applicant’s ties to Australia having regard to the Applicant’s child/ren who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely
I interpret this component of Primary Consideration 3 to require me to determine whether more weight should be allocated to the Applicant’s ties to Australia in circumstances where his biological or stepchildren are Australian citizens, Australian permanent residents and/or who have a right to remain in Australia indefinitely. I have already referred to his adult biological daughter and adult stepdaughter. However, there is one additional relevant child for the purposes of this paragraph comprising the abovementioned Child L who is now 13 years of age and who will turn 14 in the middle part of this year. I will assume Child L was born in Australia and would thus fall within one of the qualifying categories of this paragraph.
Later in these Reasons, I will review the evidence about the extent to which it is in the best interests of Child L for the Applicant to remain in Australia. I am satisfied that for the purposes of this Primary Consideration 3, whatever ties the Applicant has with Child L strongly militates in favour of the allocation of an ultimately heavy measure weight to the strength, nature and duration of ties to Australia. I so find.
Paragraph 8.3(3) Strength, nature, and duration of ties with any family or social links generally
This paragraph looks at the strength, nature and duration of the extent of any ties the Applicant may have with (1) other family members; or (2) social contacts/links in Australia. The limiting proviso on this inquiry is that these two categories of people with whom the Applicant may have ties must be Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely. This paragraph of the Direction does not specifically formulate a methodology as to the manner of how weight is to be allocated to these two categories of ties. Be that as it may, I will proceed to examine the extent (if any) of the Applicant’s links with these two categories of people and allocate weight in his favour on the basis of whatever strength, duration and nature there may be found to be in those links.
In terms of any other family links the Applicant has to Australia, I must exclude any links to his mother because she is not in Australia and is a resident (and presumably a citizen of New Zealand). Despite the end of their marital relationship, and the presence of an extant DVO, Ms MS has, in the best interests of the children, nevertheless maintained a level of contact with the Applicant. There is, for example, a reference to a text message communication between her and him following her taking two of the children to see him in immigration detention.[53] This is augmented by a letter from the detention centre confirming specific dates on which the Applicant received visits, those dates being 11, 15 and 24 June 2023 plus 1, 2 and 6 July 2023. This is not to conclusively find that Ms MS visited the Applicant with any or all of the children on every single one of those dates but it is nevertheless corroborative of the Applicant’s oral evidence that she has repeatedly bought the children to see him in immigration detention.
[53] R1, p 146.
In addition to this, the material contains evidence of the abovementioned written agreement between the Applicant and Ms MS regarding the extent of the Applicant’s contact rights with the children during his time in immigration detention. It is not a stretch of the evidence to suggest and find that Ms MS will have any sort of closed mind to an expansion of those contact rights between the Applicant and the children in the event of his return to the community. It is therefore clear that Ms MS would, to the extent she and the Applicant make their respective parental contribution towards the children, be adversely impacted by the Applicant’s enforced removal from such parental arrangement as a result of his deportation to New Zealand.
The material also points to the Applicant having social links to Australia. The material contains references and supportive letters from the following such links:
·Mr Jason Meyn is the owner and operator of a roofing business based on the Gold Coast. He provided both oral[54] and written evidence to the Hearing. He first met the Applicant in 2018 and says they immediately became good friends. He is impressed by the Applicant’s work ethic and character. He tried to mentor or counsel the Applicant to end his then toxic relationship with Ms DR. He is encouraged by the Applicant’s efforts at rehabilitation and considers that ‘His mindset has changed, and I believe showing real remorse for his action’s [sic].’[55]He goes on to say that if the Applicant’s Visa is returned to him ‘I would gladly offer him work and accommodations [sic] until he is returned to his feet.’[56]
·Mr John Campbell has provided an undated reference at an earlier stage of these proceedings.[57] He says he has known the Applicant for five years and considers they are close friends. He records his appreciation for the Applicant’s support at a time when Mr Campbell’s partner became hospitalised for eight weeks. He is aware of the nature of the breakdown of the marital relationship between the Applicant and Ms MS. He says the Applicant ‘is not a bad person’ but that he has ‘made some bad company and made some mistakes’.[58] He concludes his statement by saying ‘He is my closest friend and would keep the shirt on his back’.[59]
[54] A5.
[55] A5, p 2.
[56] A5, p 2.
[57] R1, p 204.
[58] R1, p 204.
[59] R1, p 204.
Despite the relatively limited nature of the evidence around Ms MS (as an ‘other family member’) and that of Mr Meyn and Mr Campbell (as other ties), I am satisfied that each of these three people would, to an extent, be adversely impacted by the Applicant’s removal to New Zealand. For their interests to be taken into account, each of these three people must be Australian citizens, Australian permanent residents or persons who have a right to remain in Australia indefinitely. I will make the assumption that each of these three people fall into at least one of the qualifying categories contained in paragraph 8.3(1) of the Direction. I am of the view that the Applicant’s ties with these three people are moderately strong and that those ties militate in favour of the overall allocation of a heavy level of weight in favour of the Applicant pursuant to this Primary Consideration 3.
Paragraph 8.3(4): Consideration of the nature of the Applicant’s ties to the Australian community having regard to the length of time he has resided here
This component of Primary Consideration 3 requires me to look at the length of time the Applicant has resided in the Australian community and to take account of the following three elements:
(i)whether the Applicant has been ordinarily resident here during his formative years.[60] The Applicant came here in April 2009 as a 27-year-old. He has departed Australia on only four occasions and has spent about a third of his life in this country. I am therefore satisfied that this Applicant has not been ordinarily resident in Australia during his formative years. This component of paragraph 8.3(4) of the Direction does not assist the Applicant;
(ii)whether the Applicant has positively contributed to the Australian community during his time here.[61] The Applicant has a very strong history of remunerative employment across a ten-year period in this country from April 2009 until October 2022.[62] There is no doubt he will have paid taxation on the income derived from his employment activities. The Applicant has also made a community contribution as follows ‘I was a volunteer Karate Instructor for GKR Karate. [Ms MS] and I along with our 3 Children would run a Karate class In Coomera. We were the biggest class on the gold coast at the time with 80 students training twice a week. My Son [Child L] at age 13 has just graded to First Dan Black Belt whilst I was in immigration detention’[63] This component of paragraph 8.3(4) of the Direction affords a heavy level of weight towards a finding in his favour about the strength of his ties to Australia as a result of the extent of his employment and community contributions to this country;
(iii)can the weight allocable to the strength of the Applicant’s ties to Australia based on the length of time he has spent in the Australian community be lessened because (1) he did not spend his formative years here and (2) he began offending soon after arriving here?[64] With reference to the first question, I have already found that he has not spent his formative years here. With reference to the second question, the Applicant’s movement history confirms he has only left Australia on four short occasions since arriving here on a final basis in April 2009. His first conviction in an Australian court occurred in May 2018.[65] A period of over nine years post-arrival cannot be described as him beginning to offend in Australia soon after arriving here. The weight allocable to the strength of the Applicant’s ties to Australia cannot be impugned pursuant to this specific subparagraph of paragraph 8.3(4)(a)(iii) of the Direction.
[60] Paragraph 8.3(4)(a)(i) of the Direction.
[61] Paragraph 8.3(4)(a)(ii) of the Direction.
[62] A7.
[63] A1, p 3 [15].
[64] Paragraph 8.3(4)(a)(iii) of the Direction.
[65] R1, p 36.
Accordingly, I am of the view (and I find) that based on my analysis of the evidence around subparagraphs 8.3(4)(a)(i), (ii) and (iii) of the Direction, a heavy level of weight is allocable to this paragraph 8.3(4) in favour of the Applicant.
Conclusion: Primary Consideration 3
I have referred to the four relevant components of this Primary Consideration 3. I am of the view, after having analysed the evidence relevant to each of those four components, that the totality of the evidence points to a heavy level of weight in favour of a finding that this Tribunal should restore the Applicant’s Visa status to remain here.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
This primary consideration requires a decision-maker to consider what impact a decision to refuse or not revoke cancellation of a visa will have on children who are and will continue to be under the age of 18 years of age at the time of the decision.[66] The Direction further requires that the best interests of each child must be considered individually if there are more than one minor child/ren identified.
[66] Paragraphs 8.4(1) and 8.4(2) of the Direction.
In assessing the best interests of each child/ren, a decision-maker is required to take into account:[67]
[67] Paragraph 8.4(4) of the Direction.
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Identification of relevant minor child/ren
At the Hearing, the Applicant confirmed that the following three minor children are the only minor children to be taken into account for the purposes of this Primary Consideration 4. They are: (1) his abovementioned biological child, Child L (born in July 2010, currently aged 13 years); (2) his first niece, Child M[68] (born in June 2007, currently aged 16 years); and (3) his second niece, Child A[69] (born in December 2014, currently aged 9 years).
[68] Daughter of his abovementioned sibling, Matthew Shields.
[69] Second daughter of his abovementioned sibling, Matthew Shields.

The Applicant’s evidence is indicative of a close relationship between him and Child L. Both during and after the martial relationship with Ms MS, the Applicant remained the sole financial support for the family he had with Ms MS. Both he and Ms MS wanted the children supported in this way to ensure they received the best upbringing they could give them. The Applicant appears to have a close relationship with Child L taking a particular interest in that child’s extracurricular activates in the sports of karate and rugby. The Applicant expressed much pride at Child L being named a school captain and receiving an excellence scholarship at school.
Before the separation from Ms MS, the Applicant was Child L’s full-time parent for over seven years. Despite the separation, the Applicant maintained regular contact with Child L and would spend time with the three children on weekends by taking them to activities such as the cinema and to Child L’s rugby games. It also seems clear from the material that the Applicant continued to meet the ongoing expenses for the children, certainly during the currency of the marriage and for some time thereafter. As I have mentioned earlier, Ms MS has, to her credit, taken some or all of the children to visit the Applicant during his time in immigration detention.
Child L has himself provided a written statement. It is dated 18 July 2023 and it is worth quoting much of it:
‘National Character Consideration Centre
Department of Home Affairs
GPO Box 241
MELBOURNE VIC 3001
18 July 2023
Dear Case Officer,
This letter is written in relation to the cancellation of Jarrod Patrick Shields visa.
My name is Lucas Shields and I am 13 years old, Jarrod Patrick Shields is my dad. I know that my dad has made some bad decisions and that he has got into a lot of trouble. I do miss my dad a lot and go and visit him. I will be really sad if he has to leave Australia as I won't be able to see him in person and hug him. I hope that he will be able to come and watch me play rugby on the weekends like he used to….’[70]
[70] R1, p 142.
As best as I understood the material, there is nothing before the Tribunal about the nature and extent of the Applicant’s relationship to his two minor nieces. During the Hearing, he said that he is well known to them as their uncle but that the relationship goes further than him being just the ‘loving uncle’. This is because (according to the Applicant’s oral evidence) when he was released from prison in 2021 he went to live with his brother, Matthew Shields. The arrangement that he had with his brother (in terms of accommodation) was that he (the Applicant) would pay half the rent together with half of all the other expenses which included all the expenses relating to both daughters of his brother. In other words, the Applicant’s evidence was that he did, at least for the period he resided with his brother on and after 2021, meet at least some of the expenses relating to Child M and Child A. As mentioned earlier, there is no corroborative statement from the Applicant’s brother and likewise no statement from either minor niece.
Application of factors at 8.4(4) of the Direction to Child L
Sub-paragraph (a): with reference to Child L there is no question the Applicant has had a parental relationship with him. While there have been periods of absence due to the Applicant’s placement in either prison and then immigration detention, their relationship has been characterised by ongoing regular contact, due in no small part to Ms MS’s efforts to facilitate contact after the marital relationship ended and while the Applicant has been in immigration detention. The extent of this contact makes it clear that the best interests of Child L militate strongly in favour of the allocation of a heavy level of weight in favour of the Applicant’s Visa status to remain in Australia being restored to him.
Sub-paragraph (b): given the extent of contact thus far, it is not at all a stretch of evidence to suggest and find the Applicant is very likely to play a positive parental role in the life of Child L for the next five years until he attains the age of 18 years. This likelihood is corroborated by the abovementioned ‘written agreement’[71] between Ms MS and the Applicant governing the extent of his time with Child L while in immigration detention. If Ms MS agreed to such an arrangement with the Applicant in immigration detention and if she readily took the children to see him while he was there, there is every likelihood Ms MS will be receptive to the Applicant playing a positive parental role in the life of Child L. This paragraph strongly militates in favour of the allocation of a heavy level of weight in favour of the Applicant’s Visa status to remain in Australia being restored to him.
[71] A5.
Sub-paragraph (c): we do not know the impact of the Applicant’s prior conduct on Child L, nor do we have any information about how any future conduct by the Applicant will adversely affect that child. This paragraph should be put to one side and rendered neutral for present purposes.
Sub-paragraph (d): we do have the above-quoted short statement from Child L where he says ‘I do miss my dad a lot and go and visit him. I will be really sad if he has to leave Australia as I won’t be able to see him in person and hug him.’ It is therefore clear that Child L will be adversely impacted in the event of the Applicant’s removal although I do take into account the Applicant’s oral evidence that he has communicated with him by non-in-person means. Even so, I am of the view that this paragraph strongly militates in favour of the allocation of a heavy level of weight in favour of the Applicant’s Visa status to remain in Australia being restored to him.
Sub-paragraph (e): Child L’s biological mother (and ex-wife of the Applicant, Ms MS) already fulfills a parental role. Be that as it may, Ms MS (to her credit) has done what she can to maintain a healthy level of contact time between Child L and the Applicant both during the Applicant’s presence in the community (post-separation) and during the Applicant’s time in immigration detention. I will not allow this sub-paragraph to weigh against the Applicant and will put it one side for present purposes.
Sub-paragraph (f): I again refer to Child L’s statement. He has a clear picture of how the Applicant will fit into his life after the Applicant’s return to the community. Indeed, he has an expectation of seeing the Applicant in-person and embracing him. He has a parallel expectation that the Applicant ‘…will be able to come and watch me play rugby on the weekends like he used to’. Accordingly, I am of the view that this paragraph strongly militates in favour of the allocation of a heavy level of weight in favour of the Applicant’s Visa status to remain in Australia being restored to him.
Sub-paragraphs (g) and (h): the material contains no evidence referrable to either of these sub-paragraphs both of which should be put to one side and rendered neutral for present purposes.
Application of factors at 8.4(4) of the Direction to Child M and Child A
There is little or no evidence suggestive or descriptive of any palpable nature and duration of a parental relationship between the Applicant and these two minor children.[72] We do not know the extent to which the Applicant is likely to play a positive parental role in the lives of these children until they attain the age of 18 years.[73] It can be accepted that he has provided a measure of material support towards their care and welfare but none of this is corroborated by the Applicant’s brother or his partner and biological mother of both children.
[72] Paragraph 8.4(4)(a) of the Direction.
[73] Paragraph 8.4(4)(b) of the Direction.
There is nothing before the Tribunal about any impact either of these children have experienced consequent upon the Applicant’s prior conduct or any such future impact were he to repeat it.[74] Likewise, we are not aware of the likely effect that any separation between them and the Applicant would have on them. Although during his oral evidence the Applicant did make a reference to maintaining some level of non-in-person contact with these two children, this contact did not appear to be anything significant.[75]
[74] Paragraph 8.4(4)(c) of the Direction.
[75] Paragraph 8.4(4)(d) of the Direction.
Both children are primarily parented by their parents and there is little or nothing to suggest that despite his past material support for them, the Applicant is likely to play any sort of parental role in their respective futures.[76] Neither of the children’s views are known consequent upon any permanent separation from the Applicant.[77] The material contains no evidence referrable to either of the remaining sub-paragraphs of paragraph 8.4(4) of the Direction[78]both of which should be put to one side and rendered neutral for present purposes.
[76] Paragraph 8.4(4)(e) of the Direction.
[77] Paragraph 8.4(4)(f) of the Direction.
[78] Paragraphs 8.4(4)(g) and (h) of the Direction.
Findings about Child L
In the event of the Applicant’s return to the community, it can be safely found that he will soon resume playing a direct and ‘hands on’ parental role in Child L’s life. This is due to several factors: (1) the efforts of Ms MS to maintain contact between the Applicant and Child L post-separation; (2) her further commendable efforts in facilitating such contacts during the Applicant’s time in immigration detention; and (3) from the words of Child L himself who readily welcomes and expects a return of his biological father into his life. Put simply, the re-introduction of the Applicant as a permanent physical presence in Child L’s life will not be a difficult or awkward matter. The best interests of Child L militate strongly in favour of the allocation of a heavy level of weight in favour of this Tribunal restoring the Applicant’s Visa status to remain in Australia.
Findings about Child M and Child A
The evidence around these two children is much more scant. True it may be that the Applicant provided a measure of material support towards their care and welfare when he resided with his brother in or about 2021, but this support was temporary and there is little or nothing compelling the Applicant to continue to do so in circumstances where he must first provide for and support his own children. Put at its highest, the best interests of Child M and Child A militate only slightly in favour of the allocation of any weight in favour of this Tribunal restoring the Applicant’s Visa status to remain here.
Conclusion: Primary Consideration 4
I have assessed and allocated weight to the best interests of Child L, Child M and Child A by reference to each of the relevant sub-paragraphs at 8.3(4) of the Direction. Having regard to the cumulative weight I have allocated to the best interests of these three children pursuant to the relevant sub-paragraphs of 8.4(4) of the Direction, I am led to a finding that this Primary Consideration 4 must be found to be of heavy weight in favour of revocation of the mandatory cancellation of the Applicant’s Visa.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[79] The Direction further explains:
‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[80]
[79] Paragraph 8.5(3) of the Direction.
[80] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:
4The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
This Applicant has breached the Australian community’s expectations by his record of criminal offending in this country, which is evidenced by a very significant number of breaches of the Australian criminal law and its laws during the period May 2018 to February 2023. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
The Direction also states that visa cancellation or refusal, or non-revocation of a mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:[81]
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
[81] Paragraph 8.5(2) of the Direction.
I have earlier found that the Applicant has committed at least one conviction engaging the operative effect of the abovementioned sub-paragraph 8.5(2)(d) by virtue of his conviction on 10 October 2018 for ‘contravene direction or requirement’. This offending constitutes the commission of a crime against a government representative or official in the performance of their duties. The commission of this offence means the Australian community expects that the Australian Government can and should refuse to set aside the mandatory cancellation of the Applicant’s Visa.
The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4), (5) and (6) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;
(b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[82]
(c)Australia will generally afford a higher level of tolerance towards criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age;[83]
(d)the community’s level of tolerance will rise based on the length of time a non-citizen has spent in this country and, in particular, whether their formative years were spent here;[84]
(e)the nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen;[85] and
(f)if a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f)(inclusive) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[86]
[82] Paragraph 5.2(4) of the Direction.
[83] Paragraph 5.2(5) of the Direction.
[84] Paragraph 5.2(5) of the Direction.
[85] Paragraph 5.2(6) of the Direction.
[86] Paragraph 5.2(6) of the Direction.
In relation to sub-paragraph (a) of the immediately preceding paragraph [145], the term ‘limited stay visa’ is not defined in the Act. The Applicant in this case held a Class TY Subclass 444 Special Category (Temporary) visa until it was mandatorily cancelled on
[87] R2, p 4 [1].
[88] Regulation 444.511 of the Migration Regulations 1994 (Cth).
[89] Walker v Minister of Home Affairs [2020] FCA 909 at [29].
17 March 2023.[87] This Visa permits a citizen of New Zealand to remain in Australia indefinitely.[88] As the Visa permitted the Applicant to remain in Australia without any limit on the duration of his stay, the Visa held by the Applicant cannot be classified as a limited stay visa.[89] Therefore this sub-paragraph (a) is not applicable to the Applicant.
In relation to sub-paragraph (b) of the abovementioned paragraph [145], the Applicant has resided in Australia on a final basis from 2009 when he was 27 years old. He is currently aged 42 years. He has a very solid work history in Australia. He has fathered at least one biological child in Australia, Child L. He has an adult biological and stepdaughter in Australia resulting from his relationship with Ms MS. He also has connections to two minor-aged nieces in Australia. Whatever participation in, and contribution to, the Australian community he may have made during his time here cannot be safely found to have been ‘short’. Therefore, the Australian community’s tolerance is not lowered by this part of the principles in 5.2(4) of the Direction.
In relation to sub-paragraph (c) of the abovementioned paragraph [145], I repeat that the Applicant has resided in Australia since 2009 when he was 27. He is currently 42 years of age. He has spent about a third of his life in this country. This means that the Australian community has a higher than usual tolerance of criminal or other serious conduct by this Applicant.
In relation to sub-paragraph (d) of the abovementioned paragraph [145] I am of the view that the length of time the Applicant has spent here (i.e. from 2009 until now) facilitates a slight raising of the community’s level of tolerance for his offending. This finding cannot be augmented due to him not having spent his formative years in this country.
In relation to sub-paragraph (e) of the abovementioned paragraph [145], I am not of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing his criminal offending of the same type and magnitude already committed and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the sheer scope and extent of his offending and its resulting harm thus far has been of such a significant and serious magnitude as to dispel any applicable countervailing considerations.
In relation to sub-paragraph (f) of the abovementioned paragraph [145], I have found that at least one conviction in the Applicant’s criminal history is captured by sub-paragraph 8.5(2)(d) of the Direction. Given that finding, even strong countervailing considerations in his favour may not assist the Applicant. Therefore, my finding must be that the nature of his offending effectively precludes any countervailing considerations working in his favour.

Having regard to the above discussion around sub-paragraphs (a)–(f) (inclusive) referenced in paragraph [145] of these Reasons, I am of the view that the Australian community’s expectations are not modified such that the community does not have a higher than usual tolerance of criminal conduct by the Applicant. Because of the very extensive and serious nature of the Applicant’s offending between May 2018 and February 2023, this Primary Consideration 5 compels a finding that the community expects the Australian Government can and should refuse to set aside the mandatory cancellation of the Applicant’s Visa. I so find.
Conclusion: Primary Consideration 5
Primary Consideration 5 confers a strong level of weight in favour of this Tribunal affirming the Decision Under Review.
OTHER CONSIDERATIONS
Other Considerations (a): Legal consequences of the decision; (c): Impact on victims and (d): Impact on Australian business interests
With reference to Other Consideration (a), I accept the Applicant does not claim to be owed non-refoulement obligations. To whatever extent he may contend that a legal consequence of this decision may cause him to become the subject of indefinite detention, it is safe to find that he is not a person covered by a protection finding. Consequently, were this Tribunal to affirm the Decision Under Review the Applicant would be liable to removal from Australia as soon as reasonably practical.
I am of the view that the totality of the evidence before the Tribunal does not otherwise compel ventilation or analysis of any of the three abovementioned Other Considerations (a), (c) and (d) of the Direction. I will put these Other Considerations to one side and allocate neutral weight to each of them.
Other Consideration (b): Extent of impediments if removed
The Applicant’s evidence
In his latest written statement the Applicant describes his prospects upon a return to New Zealand in these terms:
‘Prospects in New Zealand
1. If returned to New Zealand, I would face enormous hardships.
2. My mother Karen Shields [the Applicant’s mother] is the very last of the Shields generation in New Zealand.
3. Karen Shields was born on 14 July 1957.
4. Karen Shields is a registered nurse at the Waikato hospital that is looking at the pro-spects [sic] of retirement.
5. All of Karen’s grand children are here in Australia. The only reason Karen doesn’t move to Australia is because of her pension.
6. Once retired, Karen Shields will spend much of her retired life in Australia.
7. My cousin Lisa Ann McKenzie lives in Hamilton with her partner and 5 children. She is struggling and would be unable to assist.
8. My rehabilitation will suffer due to losing connection with my network that is built up over time and experience.
9. My mental health will suffer.
10. My children’s mental health will suffer.
11. Barr Electrical is no longer operational. So, any prospects of work are very low.
12. All my New Zealand licensing is expired or now invalid.
13. No rehabilitation network in New Zealand’[90]
[90] A1, p 8 [1] – [13].
In an earlier statement (dating from July 2023) , the Applicant described his mental health in these terms:
‘Mental Health
35. After our separation, I went to a psychologist at Upper Coomera Medical and I was diagnosed with depression, anxiety and post-traumatic stress disorder (PTSD). I realise now that my post-traumatic stress disorder stemmed from my father’s death, which came to a head with my separation from [Ms MS].
36. My history of poor mental health led me to spiral downwards. When things later in my adult life went wrong, I started to spiral pretty quickly because it had a cumulative effect on the trauma I had experienced as a child and into my early adulthood.’[91]
[91] R1, p 76 [35] – [36].
The Applicant’s observations are somewhat at odds with the findings of Dr Palk who explained to the Applicant ‘…that he is more likely to be suffering from unresolved grief issues related to his soured relationship with his father rather than PTSD as his symptoms would not meet the criteria to be diagnosed with PTSD.’[92] Dr Palk was of a further opinion that the Applicant ‘….meets the DSM-5 Criteria for substance use disorder (cannabis and methylamphetamine) and an adjustment disorder with features of anxiety and depression. At times his adjustment disorder has manifested into major depression.’[93]
[92] A2, p 9 [3.33].
[93] A2, p 18 [9.5].
The Applicant’s oral evidence at the Hearing before me was somewhat more forthright. He agreed that as a 42-year-old man he could be said to be at the prime of his life with no physical health issues. As best as I understood his oral evidence, and why I think it was more forthright than his written evidence, was that while he pointed to mental health issues in the form of unresolved grief and/or substance use disorder, he seemed to accept that the primary focus of his mental healthcare regime involved a continued connection with rehabilitation for the psychopathological factors predisposing him to illicit substance abuse. This seems to be the predominant focus of whatever health issue he may be experiencing.
Factors to be taken into account
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Paragraph 9.2(1)(a): the Applicant is 42 years of age and seems to accept that he is of robust physical health but that he does have mental health issues around a diagnosed substance use order requiring ongoing remedial management and control. His earlier-mentioned ‘re-integration plan’ and ‘rehabilitation toolkit’ is exemplary for its detail and level of thought that went into its production. As a diagnosed issue per se, the Applicant’s substance use disorder consequent upon the end of his marital relationship with Ms MS and his unresolved grief issues arising from the soured relationship with his late father, can now be found to be actual or potential impediments to the Applicant’s and re-settlement in New Zealand. As against that, the Applicant will have available to him the same level of publicly available mental healthcare for such symptoms as would be available to other citizens of that country. Such care would not be dissimilar to that available to him in Australia.
Paragraph 9.2(1)(b): there is little or nothing in the evidence about any substantial language or cultural barriers impeding the Applicant’s re-settlement in New Zealand. The Applicant spent the first 27 years of his life in New Zealand and lived the first two thirds of his life in that country. He has made three, albeit relatively brief, return trips to New Zealand since arriving and settling here on a final basis in 2009. This Tribunal (differently constituted) has previously noted: ‘New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand.’[94]
[94] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301, [101].
Paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and / or economic support available to the Applicant in New Zealand. During his oral evidence, the Applicant agreed that there would be little or no difficulty with him returning to his mother’s home in New Zealand and residing there for at least the short and medium to longer term. He agreed that he would be able to source employment in New Zealand but that it would take between six and 12 months for his electrical trade qualifications to be recognised and re-instated in New Zealand. It is difficult to believe that during this six-to-12-month period the Applicant would be completely unable to source any type of work at all in New Zealand. He otherwise agreed that he would be available to government support/benefits (in the realm of Centrelink payments) in New Zealand to the same extent as would be available to other citizens of that country. I am thus satisfied that the Applicant would have available to him sufficient social, medical and/or economic support in New Zealand if compelled to return there by virtue of an adverse outcome in this matter.
Findings about impediments
Given the relevance of sub-paragraph (a) of paragraph 9.2(1) of the Direction to the Applicant’s circumstances, I am of the view that this Other Consideration (b) confers a moderate level of weight in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.
Findings: Other Considerations
The allocation of weight to the Other Considerations in the present matter can be summarised as follows:
(a)legal consequences of the decision: is of neutral weight;
(b)extent of impediments if removed: is of moderate weight in favour of revocation;
(c)impact on victims: is of neutral weight;
(d)impact on Australian business interests: is of neutral weight.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted (and found) previously in these Reasons, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the power afforded by s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s Visa, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: carries a certain, but not determinative weight in favour of affirming the Decision Under Review;
·Primary Consideration 2: carries a moderate, but not determinative weight in favour of affirming the Decision Under Review;
·Primary Consideration 3: is of a heavy weight in favour of setting aside the Decision Under Review;
·Primary Consideration 4: is of heavy weight in favour of setting aside the Decision Under Review;
·Primary Consideration 5: confers strong weight in favour of affirming the Decision Under Review;
I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to Primary Considerations 3 and 4 and Other Consideration (b) are sufficient to outweigh the combined weights I have allocated to Primary Considerations 1, 2 and 5.
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding that there is another reason to revoke the mandatory cancellation of the Applicant’s Visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made on 14 November 2023 by a delegate of the Respondent and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

I certify that the preceding 170 (one hundred and seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

................[SGD]...............
Associate
Dated: 23 January 2024

Date of hearing: 22 January 2024

Applicant: Self-represented litigant

Solicitor for the Respondent: Mr Ingmar Duldig (Lawyer)

Clayton Utz Lawyers
ANNEXURE A

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT/S

DATE RECEIVED

RESPONDENT’S SUBMISSIONS

R1

501G documents

21 December 2023

21 December 2023

R2

Respondent’s SFIC

Various

22 December 2023

R3

Court material summonsed

Various

16 January 2024

APPLICANT’S SUBMISISONS

A1

Applicant’s Statement

Undated

11 December 2023

A2

Report by Dr Gavin Palk

10 December 2023

11 December 2023

A3

Response of Dr Gavin Palk to Respondent’s SFIC

11 January 2024

11 January 2024

A4

Statement of Mr Russell Gardner

Undated

11 December 2023

A5

Written contact arrangements and character references

Various

11 December 2023

A6

Details of remunerative employment since March 2009

Various

11 December 2023

A7

Employment history

Undated

11 December 2023

A8

Certificates of completion

4 December 2023

11 December 2023

A9

List of children

Undated

11 December 2023

A10

Re-integration plan

Undated

11 December 2023

A11

Details of Unique student Identifier

27 July 2023

11 December 2023

A12

Evidence of professional assistance

19 November 2023

11 December 2023

A13

List of documents provided

Undated

11 December 2023

[2024] AATA 51

23 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Natural Justice

Date of hearing:	22 January 2024
Applicant:	Self-represented litigant
Solicitor for the Respondent:	Mr Ingmar Duldig (Lawyer)
Clayton Utz Lawyers

RESPONDENT’S SUBMISSIONS
R1	501G documents	21 December 2023	21 December 2023
R2	Respondent’s SFIC	Various	22 December 2023
R3	Court material summonsed	Various	16 January 2024
APPLICANT’S SUBMISISONS
A1	Applicant’s Statement	Undated	11 December 2023
A2	Report by Dr Gavin Palk	10 December 2023	11 December 2023
A3	Response of Dr Gavin Palk to Respondent’s SFIC	11 January 2024	11 January 2024
A4	Statement of Mr Russell Gardner	Undated	11 December 2023
A5	Written contact arrangements and character references	Various	11 December 2023
A6	Details of remunerative employment since March 2009	Various	11 December 2023
A7	Employment history	Undated	11 December 2023
A8	Certificates of completion	4 December 2023	11 December 2023
A9	List of children	Undated	11 December 2023
A10	Re-integration plan	Undated	11 December 2023
A11	Details of Unique student Identifier	27 July 2023	11 December 2023
A12	Evidence of professional assistance	19 November 2023	11 December 2023
A13	List of documents provided	Undated	11 December 2023