Shuter and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 2734

Shuter and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2734 (28 August 2023)
Division:                  GENERAL DIVISION
File Number(s):2023/4056
Re:Graham Shuter
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Antoinette Younes

Date: 28 August 2023
Place:Sydney

The decision under review is set aside, and in substitution, the mandatory cancellation of the Applicant’s visa is revoked.
..................................[SGD]......................................
Deputy President Antoinette Younes
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 99 – nature and seriousness of offending conduct – protection of the Australian community – strength nature and duration of ties to Australia – expectations of the Australian community – impediments to removal – decision set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 43
Migration Act 1958 (Cth) ss 36, 189, 197C, 198, 499, 501, 501CA
Migration Amendment (Aggregate Sentences) Act 2023 (Cth)
CASES
Ali v Minister for Home Affairs [2018] FCA 1895
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
DKYX v Minister for Home Affairs [2019] FCA 495
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs [2020] HCATrans 056
GBV18 v Minister for Home Affairs [2020] FCAFC 17
Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580
Ibrahim v Minister for Home Affairs [2019] FCAFC 89
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Nepata v Minister for Home Affairs [2019] FCA 1197
Pearson v Minister for Home Affairs [2022] FCAFC 203
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Deputy President Antoinette Younes
28 August 2023
BACKGROUND

The Applicant is a national of New Zealand and is 32 years old. He first arrived in Australia on 16 April 2006 as the holder of a Class TY Subclass 444 Special Category (Temporary) visa (Subclass 444 visa). Since his arrival, he has departed Australia on three occasions, with the last trip to New Zealand from January 2016 to January 2018.[1]
[1] G10, 95, Ex 11.
On 26 May 2022, the Applicant was convicted in the Local Court of New South Wales at Gosford for the following offences:
·Reckless grievous bodily harm;
·Stalk/intimidate intend fear physical etc harm (personal);
·Custody of knife in public place – first offence;
·Contravene prohibition/restriction in AVO; and
·Affray.
The Applicant was sentenced to an aggregate term of imprisonment of 16 months, with a non-parole period of 8 months.[2] The Applicant appealed the severity of the sentence, and the orders were confirmed by Gosford District Court on 25 July 2022.[3]
[2] G3, 31, Ex 11.
[3] G3, 33, Ex 11.
On 16 June 2022, the Applicant's Subclass 444 visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act). The delegate determined that the Applicant did not meet the character test under s 501(6)(a) because he has a 'substantial criminal record' on the basis of having been sentenced, to a term of imprisonment of 12 months or more, and is serving a sentence of imprisonment on a full-time basis in a custodial institution.[4]
[4] G2, 10, Ex 11.
The Applicant made representations on 20 June 2022 and on 5 June 2023, the delegate found that the power under subsection 501CA(4) of the Act to revoke the cancellation under s 501(3A) of the Act was not enlivened.[5]
[5] G2, 13, Ex 11.
On 11 June 2023, the Applicant lodged an application for review with the Administrative Appeals Tribunal (the Tribunal).
LEGISLATION
Section 501(3A) of the Act compels the Respondent to cancel a visa in certain circumstances:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record.’
Section 501(7) of the Act provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i)been found by a court to not be fit to plead, in relation to an offence; and
(ii)the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)as a result, the person has been detained in a facility or institution.
Section 501CA of the Act applies if the Respondent makes a decision under subsection 501(3A) of the Act to cancel a visa that has been granted to a person.
Section 501CA(4) of the Act confers on the Respondent the discretion to revoke the Mandatory Visa Cancellation Decision under s 501(3A).
Section 501CA(4) provides:
(4) TheMinister 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.
MINISTERIAL DIRECTION NO. 99
The Respondent is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. Except for the Respondent acting personally, the Direction must be applied by all decision-makers, such as the Respondent’s delegates and the Tribunal.[6]
[6] s 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69 [4].
On 23 January 2023, the Respondent signed Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 99). The Direction commenced on 3 March 2023 and revoked the previous Direction 90.
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
A decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
(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 identifies the non-exhaustive list of other considerations:
(1)Legal consequences of the decision;
(2)Extent of impediments if removed;
(3)Impact on victims; and
(4)Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, “information and evidence from independent and authoritative sources should be given appropriate weight.” Paragraph 7(2) provides that primary considerations “should generally be given greater weight than the other considerations.”
Material before the Tribunal
The Tribunal has the following material before it:
·The Applicant’s Statements of Facts, Issues and Contentions (SOFIC) dated 19 July 2023;
·The Respondent’s SOFIC dated 7 August 2023;
·International Health and Medical Services (IHMS) records;
·Forensic Mental Health Service Report dated 26 May 2022;
·Sentencing Assessment Report dated 23 May 2022;
·Letters by the Applicant dated 19 July 2023;
·NSW Health – Central Coast Local Health District Records;
·Statement of Mr Mataanuku Mac Paul (Applicant’s father) dated 5 August 2023;
·Statement of Ms Nichole East (Applicant’s step-sister) dated 20 July 2023;
·Statement of Ashlee Treyvaud dated 19 July 2023; and
·Respondent’s G-Documents,.
All of these documents formed Exhibits 1-11.
FINDINGS AND REASONS
The character test is defined in s 501(6) of the Act. It is fair to say that the character test is generally concerned with the protection of the Australian community from the risk of harm. The character test deems persons to be of bad character if they fit any of the criteria listed.
A person does not pass the character test only if one of the paragraphs in s 501(6) applies to that person. In this case, the delegate determined that the Applicant did not meet the character test under s 501(6)(a) because he has a 'substantial criminal record' on the basis of having been sentenced to a term of imprisonment of 12 months or more and was serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.
The Full Federal Court Decision in Pearson v Minister for Home Affairs [2022] FCAFC 203 (Pearson) would have rendered the cancellation invalid as the cancellation was based on an aggregate term of imprisonment of 12 months for multiple offences. However, the Migration Amendment (Aggregate Sentences) Act 2023 (Cth), which was introduced following Pearson, amended the relevant provisions of the Act to clarify that an aggregate sentence can be relied upon for the purposes of considering if a person has a substantial criminal record.
It is not in dispute that the Applicant does not meet the character test. On the basis of his conviction and sentence imposed on 26 May 2022, the Tribunal finds that the Applicant has a 'substantial criminal record' within the meaning of s 501(7)(c) of the Act.
Therefore, the issue before the Tribunal is whether there is another reason why the mandatory cancellation decision should be revoked, having regard to the considerations set out in Direction 99.
The purpose of the Direction is to guide decision-makers exercising powers under the Act. Delegates and the Tribunal must generally follow the Minister’s Direction. However, the Direction does not dictate the way in which the discretion is to be exercised, but rather it creates a framework within which the discretion vested in the decision-maker is lawfully exercised. The Direction identifies certain principles which provide a framework within which decision-makers should approach their task.[7] It prescribes relevant considerations which must be taken into account. It provides guidance only as to the manner in which they are to be balanced. The Direction assists decision-makers with a width of discretion that enables them to take into account different circumstances that may arise in order to reach a finding that is fair and rational in all the circumstances, taking into account crucial considerations.[8]
[7] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [80]–[81]. The Court was discussing Direction No 55, but the reasoning applies equally to Direction 99.
[8] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [83].
The Direction does not determine rules of general application. However, it gives directions to the decision-maker, including the Tribunal, as to the policy to be applied in the exercise of the discretion conferred on it by s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) in exercising the power conferred by ss 501 and 501CA of the Act. The Direction does not derogate from the Tribunal’s duty to reach the correct or preferable decision in the particular case before it; the Direction has that end as its purpose.[9]
[9] Uelese v Minister for Immigration and Border Protection [2016] FCA 348 [50].
While decision-makers are bound to take into account certain considerations, they are not limited to those set out in the Direction.[10] The Direction specifies the relative, but not the actual, weight to be given to those considerations. To that extent, it imposes requirements on the exercise of the Tribunal’s discretion, but the Tribunal is obliged to examine the merits of the case and decide for itself.[11] The weight to be given to any particular matter is a matter for the decision-maker and cannot be the subject of some formulaic approach.[12]
[10] GBV18 v Minister for Home Affairs [2020] FCAFC 17.
[11] See Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [21].
[12] Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 [127].
Phrases such as ‘should generally be given greater weight than the other considerations’ and ‘one or more primary considerations may outweigh other primary considerations’ have been interpreted as provisions that are intended to provide guidance to the decision-maker as to how the balancing exercise required by the Direction should be approached. These phrases leave it open to the decision-maker to adopt a different approach in the exercise of discretion in the individual case.[13] It is not the content of the Direction which determines the outcome of the exercise of the discretion, but rather its application by a decision-maker to the evidence and material in an individual case.[14]
[13] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [83].
[14] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 [78].
THE PRIMARY CONSIDERATIONS
1)Protection of the Australian community from criminal or other serious conduct
The Direction contemplates that decision-makers should have particular regard to the principle that ‘entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that that they are, and have been law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.’[15] It indicates that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.[16] Whether there is a risk that a person would engage in specified conduct requires an evaluative judgment by the decision-maker. If the decision-maker is so satisfied, they have a discretion to refuse or cancel a visa, or revoke a visa cancellation.[17]
[15] Direction 99 [8.1(1)].
[16] Direction 99 [8.1(2)].
[17] See Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 [2]. The Court considered s 501(1), but the reasoning also applies to ss 501(2) and 501(3A).
The seriousness of the Applicant’s conduct
The Applicant was convicted on 25 March 2021 and 1 July 2021 by the Local Court of New South Wales at Gosford of two offences: Possess prohibited drug and destroy or damage property (which were dealt with by way of fines,) and under s 10A conviction for the offence of use of offensive language on public passenger vehicle/train.[18]
[18] G3, 35, Ex 11.
As mentioned earlier, on 26 May 2022, the Applicant was convicted in the Local Court of New South Wales at Gosford for the following offences:
·Reckless grievous bodily harm;
·Stalk/intimidate intend fear physical etc harm (personal);
·Custody of knife in public place – first offence;
·Contravene prohibition/restriction in AVO; and
·Affray.
The Applicant was sentenced to an aggregate term of imprisonment of 16 months, with a non-parole period of 8 months,[19] which was confirmed on appeal.
[19] G3, 31, Ex 11.

The circumstances of the Applicant's offending which resulted in a term of imprisonment of 16 months are summarised in the New South Wales Police Fact Sheet[20] and the judgment of Magistrate J Price.[21]
[20] G5, 44-46, Ex 11.
[21] G6, 36-41, Ex 11.
In summary, on 1 December 2021, the victim was sitting on the front porch of his unit in Gosford with his sister and friend. The Applicant was visiting a friend in another unit. He came onto the balcony and started yelling abuse at the victim such as: “Get out here, get up here, I’m going to hurt you…I’m going to kill you.” The victim walked around and approached the Applicant. The Applicant launched himself at the victim and pushed him with both hands, resulting in the victim falling backwards. A “scuffle” began between the Applicant and the victim physically fighting each other. The victim was “pinned down” by the Applicant and the victim was trying to push the Applicant off himself.
In the course of the fight, the Applicant bit the top of the victim’s left index finger. When the victim stood up and stated that “[the Applicant] bit [his] finger,” the Applicant yelled, “I’m going to bite your toes off next and invite my cousins around.” The victim went to hospital and the top of his finger was unable to be re-attached due to the damage. New South Wales Police records state that the x-rays show that the injury was an “amputation through the base of the third phalanx of the index finger of [the victim’s] left hand.”
In oral evidence, the Applicant stated that the victim had placed his finger inside his mouth. This is not supported by the Court’s findings. The Tribunal refers to the following comments of Magistrate Price:
“The defendant, Mr Graham Shuter, appears before the Court for sentence having been found guilty after hearing of offences of intimidation, that is sequence 1 and carries a maximum penalty of five years; sequence 2 is an offence of recklessly cause grievous bodily harm pursuant to s 35(2) of the Crimes Act, that is a maximum penalty of ten years; sequence 3 is contravening an AVO, that is a maximum penalty of two years; sequence 4 is an offence of affray which is a maximum penalty of ten years; and sequence 5 is custody of a knife in a public place and that is a maximum penalty of two years in prison or a fine of $2,200. There is no discount for any plea in relation to this matter.
In terms of the facts found at hearing on 1 December 2021 the victim was sitting on the front porch of his unit in Gosford having coffee. The offender came out of one of the other units and started yelling abuse. In terms of sequence 1, the intimidation, as part of my factual findings at hearing I found that the words used by the offender, while potentially including the words “you’re terrorising me” also included the words “I’m going to kill you, get out here, get up here, I’m going to hurt you” and 5 that was the offence of intimidation. As a result of that the victim has left with purpose and in response to the offender’s taunting and then both parties have run at each other and willingly engaged in a fight; and that is the basis of sequence 4, the affray.
In the course of that wrestle the victim’s finger has come to be in the defendant’s mouth and I was not satisfied that it was found that the victim, in the course of the wrestle, pushed his finger into the defendant’s mouth or that he pushed his finger well down the defendant’s throat. In the course of that altercation the top of the victim’s left index finger was bitten clean off and was never able to be reattached and self-defence was rejected at the hearing; that is the basis of sequence 2, the reckless GBH.
In terms of sequence 3 which is the contravene AVO, an order was in place in conditions 1, 2 and 8: 8 which was not to go into unit 8 at the address. Evidence was tendered in the hearing without objection as exhibit 4 from Senior Constable Brien(?) which indicated she observed the offender walk out of unit 8.
In terms of sequence 5, the custody of a knife offence, during the arrest of the offender a search was made of his backpack and a 20 centimetre long orange and yellow flat blade knife was located sitting in the bottom of the backpack he was wearing when he exited unit 8 and the Court was not satisfied a reasonable excuse was made out as per s 11C(2).
In terms of my assessment of the seriousness of the matters, sequence 1 the intimidation, clearly there were serious threats made to the victim while he was at his residence and objectively that matter falls at around the midrange.”[22]
[22] G4, 36-39, Ex 11.
In the Applicant’s SOFIC, and in oral submissions to the Tribunal, the Applicant contended that despite having long standing serious mental health issues, he is not a person with a long criminal history. The Applicant submitted that all of his convicted offences occurred in 2021 during the COVID-19 period, and that the incident that led to his imprisonment and multiple offences occurred on 1 December 2021.
The Tribunal refers to the Court’s observations in this regard:
“In terms of the subjective features of the defendant it is accepted that the offending did not involve any significant degree of planning or premeditation and certainly the sentence assessment report notes his insight into the offending is minimal and he minimised his offending and apportioned blame to the victim. What is very clear from the material before the Court, including the psychological report prepared by Mr Lee Knight, the forensic mental health clinical nurse consultant, is that the defendant certainly has a history or a diagnosis of schizophrenia. He has previously been prescribed antipsychotic medications under Community Treatment Orders. The report also from the sentence assessment report noted he has lengthy periods of noncompliance and that seems to be reflected in the material before the Court today. It also notes that his whereabouts in 2021 was largely unknown and he only reported for his medication as a means of coming down from his methylamphetamine intoxication.
I note from the sentence assessment report he indicates that he was associating at the time of this event with fellow drug users and had ceased his antipsychotic medication and was living a somewhat transient lifestyle and the report notes that he has been a chronic user of methylamphetamine, which had previously led to drug induced psychosis and hospital admissions.
In terms of Mr Knight’s report I note that he indicates as part of his diagnostic impression that the defendant is prescribed large doses of antipsychotic medication but continues to present with residual symptoms of schizophrenia and it is noted that he presented as a serious risk of harm to others due to his persecutory ideation and clearly there is ongoing issues, very real issues, with regard to his mental health.
With regard to the mental health aspects of the matter it impacts in two ways. Firstly, in terms of the prospects of rehabilitation the Court would be very guarded in that regard, noting while he has a limited criminal history the mental health aspects are clearly deep and ongoing. I find that those mental health aspects do allow the Court to find that the moral culpability is lowered....”[23]
[23] G4, 36-39, Ex 11.
The Tribunal accepts that the Applicant suffers from schizophrenia. Despite the Applicant’s protests during the hearing that he does not have schizophrenia, there are numerous references in the IHMS records to the Applicant’s diagnosis of schizophrenia,[24] as well as in the report of Mr Lee Knight, Clinical Nurse Consultant, dated 26 May 2022.[25]
[24] Ex 3.
[25] Ex 4.
The Tribunal is of the view that the imposition of a custodial term upon an offender is considered to be the last resort in the sentencing hierarchy and a reflection of the objective seriousness of the Applicant’s offending. The Tribunal considers the Applicant’s conduct to be serious, as it involved a significant degree of violence towards another person.
For those reasons, the Tribunal is satisfied that the nature and seriousness of the Applicant’s criminal offending weigh heavily against revocation.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The Direction states that decision-makers must have regard to the following considerations cumulatively:
a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the noncitizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
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 Direction contemplates that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.[26] In some circumstances, it may be permissible to conclude that any type of continued offending increases the risk of further violent offending.[27] The Tribunal needs to consider the likelihood and consequences of further offending.[28]
[26] Direction No. 99 [8.1.2(1)].
[27] Nepata v Minister for Home Affairs [2019] FCA 1197 [30].
[28] Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 [95].
In the Applicant’s SOFIC, the Applicant contended that the Tribunal should not consider there to be an “unacceptable risk to the Australian community given the measures to be taken to manage the Applicant’s mental health conditions upon his release into the community along with the support of his father.”[29] The Applicant’s father and step-sister gave evidence about the support they would offer to the Applicant in case of his release.
[29] Ex 1, 11.
Mr Paul, the Applicant’s father, gave oral evidence that he has a Power of Attorney concerning the Applicant’s affairs. Mr Paul gave evidence that during COVID-19 period, the Applicant was not receiving his medication, as at times it was left at his doorstep. Mr Paul expressed his unconditional support for the Applicant and expressed the opinion that the Applicant is not a violent person. Mr Paul stated that that they are looking into rehabilitation with The Glen, a rehabilitation centre, to assist the Applicant to get back on track.[30] In oral evidence and in her statement, Ms East, the Applicant’s step-sister, expressed her support for the Applicant and indicated that his offending conduct is out of character.[31] The Tribunal acknowledges the views expressed by Mr Paul and Ms East.
[30] Transcript Day 1, 81.
[31] Ex 9.
The Applicant accepted that the nature of harm, should the Applicant reoffend, is serious,[32] but drew attention to the Applicant’s need of ongoing rehabilitation and mental health support upon his release. The Applicant relied on his handwritten letters dated 19 July 2023, and his efforts to engage with support mental health services if he is given the opportunity to be released into the community.[33] The Applicant’s submissions referred to Tribunal decisions and Federal Court decisions such as Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 (Splendido).[34] The Applicant contended that while the past may, in some circumstances, constitute a reliable guide to the future, the fact that the Applicant has engaged in certain conduct is not probative of there being a material risk of him doing so again. According to Mortimer J in Splendido, a “bare recitation of what a person has done in the past” is an insufficient basis for a finding as to the person’s likely future conduct.[35]
[32] Ex 1, 11.
[33] Ex 6.
[34] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 [78].
[35] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 [77].
The Tribunal acknowledges that past conduct may not be a reliable guide to the future. There is however, in this case, credible and probative material to suggest that there is a risk of the Applicant reoffending, at least a medium risk. As mentioned by the Court above, the Applicant’s insight into the offending is minimal and he apportioned blame to the victim. In the course of the hearing, the Applicant demonstrated lack of insight into his offending by also blaming the victim. He also showed lack of insight when stating that he does not have schizophrenia. Mr Knight noted in his report that the Applicant has a history or a diagnosis of schizophrenia and has previously been prescribed antipsychotic medications under Community Treatment Orders (CTO). Mr Knight reported that the Applicant continues to present with residual symptoms of schizophrenia and that his judgement appeared to be “grossly impaired.”[36] Mr Knight noted that the Applicant presented as a serious risk of harm to others due to his persecutory ideation and ongoing mental health issues.
[36] Ex 4, 5.
The sentence assessment report dated 23 May 2022 noted that the Applicant has lengthy periods of non-compliance with his antipsychotic medications in the community, that he has unresolved methamphetamine and cannabis dependency, and that his “commitment to abstinence remains untested.”[37] The report referred to the Applicant’s previous engagement with Gosford Community Heath Centre prior to his admission into custody, and noted that contact with the Applicant’s former case manager confirmed that the Applicant’s whereabouts were largely unknown during their dealings with him in 2021. The report stated that the Applicant is claimed to have only reported for his Olanzapine medication as a means of “coming down” from his methamphetamine intoxication. The report noted that the Applicant’s history of anti-social behaviour appears predominantly linked to his drug use and aggression, but that the Applicant stated that he does not have any issues with “aggression or violence and therefore has nothing to address through intervention.”
[37] Ex 5, 4.
On the material before it, the Tribunal is satisfied that the Applicant is at a medium risk of reoffending because:
·He has minimised his offending behaviour and apportioned blame to the victim for instigating the conflict. The Applicant maintains that he was acting in self-defence, indicating that the Applicant does not accept responsibility for his offending actions. The lack of awareness presents a real risk that the Applicant will re-offend in the future.
·The Applicant has minimised the level of violence in his index offences, claiming that his offending behaviour was the result of the victim provoking him,[38] indicating that the Applicant does not accept responsibility for his offending, nor does he appreciate the level of violence involved in his offending, which resulted in his victim being permanently disfigured.
·The Applicant has demonstrated “minimal insight into the impact his offending behaviour has had upon the victim.”[39]
·The Applicant acknowledges that he “will benefit from undertaking a drug and alcohol assessment and engaging with a counselling program to prevent his risk of relapse.”[40] However, he gave oral evidence of continued use of both ice and marijuana. Despite acknowledging the need to do so, the Applicant has not taken steps to engage in a drug and alcohol assessment or a counselling program.
·The Applicant claims that he does not have any issues with aggression or violence and therefore has nothing to address through intervention,[41] demonstrating that the Applicant lacks insight into his offending and has an inflexible view about intervention and rehabilitation.
·The Applicant has “unresolved methamphetamine and cannabis dependency and his commitment to abstinence remains untested.”[42] He gave oral evidence of continued use of ice and marijuana. This leads the Tribunal to be guarded about the Applicant's ability to overcome his substance abuse issues, which he has had for a long period of time.
[38] Ex 5, 2; Transcript Day 1, 57.
[39] Ex 5, 3.
[40] Ex 5, 3.
[41] Ex 5, 3.
[42] Ex 5, 4.
The Applicant has a long and well-documented history of mental health issues. IHMS records refer to “chronic treatment resistant schizophrenia with poor insight…[and] mental illness aggravated by chronic heavy cannabis use.”[43] In terms of the prospects of rehabilitation, the Tribunal would be very guarded, given this history. The Tribunal notes that while the Applicant has a limited criminal history, the Applicant’s mental health issues and substance abuse is clearly deep and ongoing.
[43] Ex 3, 5.
On balance, the Tribunal finds that there is a medium risk and that it is likely that the Applicant would engage in further criminal conduct. Given the seriousness of the potential harm that could be caused, the Tribunal is satisfied that any level of risk is unacceptable.
For these reasons, the protection of the Australian community consideration weighs heavily against revocation of the cancellation decision.
2)Whether the conduct engaged in constituted family violence.
The Direction refers to the Australian Government having “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.”[44]
[44] Direction 99 [8.2(1)].
The Direction contemplates that in considering the seriousness of the family violence engaged in by the non-citizen, the factors that must be considered are:
·the frequency of the offending conduct;
·any trend of increasing seriousness;
·the cumulative effect of repeated acts of family violence;
·rehabilitation achieved at time of the decision since the person’s last known act of family violence (including the acceptance of responsibility, understanding of the impact of the behaviour on the victim/witness of that abuse (particularly children) and the efforts to address factors which contributed to the conduct); and
·whether the person 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.[45]
[45] Direction 99 [8.2(3)].
There is no evidence of family violence in this case.
The Tribunal gives this consideration neutral weight.
3)The strength, nature and duration of ties to Australia.
The Direction at paragraph 8.3(1) contemplates that 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.
In considering a non-citizen’s ties to Australia, the Direction provides, among other things, that decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.[46]
[46] Direction 99 [8.3(2)].
Paragraph 8.3(4) of the Direction requires the Tribunal to consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community and, in doing so, 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 non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending;
(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.

The Applicant has been in Australia since his arrival aged 15 years in 2006. He has been residing in Australia for over 17 years. He spent two years in New Zealand from 2016 to 2018. He attended school until year 10 and later studied a Welding Course at TAFE.
The Applicant was employed from 2006 until 2016 as a furniture removalist/deliverer.[47] Since 2018, he has not worked and received the Disability Support Pension.
[47] G8, 90, Ex 11.
The Applicant has two minor Australia citizen children in Australia. His father, step-sister, aunt, and cousin are in Australia.[48] His step-sister has three minor children. His father and step-sister provided statements in support of the Applicant, and gave oral evidence as witnesses.
[48] G8, 77, Ex 11.
The Applicant has been receiving ongoing medical treatment and support for his mental health challenges. He has been the subject of CTOs and he expressed his willingness to be under a CTO. He has been prescribed anti-psychotic and other medications. He has had multiple admissions to psychiatric hospitals, often detained under the Mental Health Act 2007 (NSW).[49]
[49] Ex 4, 2.
The Respondent contended that the Applicant has not spent his formative years in Australia but nevertheless accepted that some weight should be given in favour of revocation. It is correct that the Applicant has not spent his formative years in Australia. He has however been in Australia for a reasonable length of time, during which he has contributed positively through employment. His offending conduct began in 2021, many years after his arrival in 2006.
On balance, the Tribunal is satisfied that the strength, nature and duration of the Applicant’s ties to Australia weigh heavily in favour of revocation.
4)The best interests of minor children in Australia.
The Direction requires decision-makers to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.[50]
[50] Direction 99 [8.4(1)].
In considering the best interests of the child, the Direction states at 8.4(4) that the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the 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.
In his personal circumstances form,[51] the Applicant referred to having two minor children, from two previous relationships. He named them in his personal circumstances form, but incorrectly named the first child. He did not specify their dates of birth, but stated they were born in 2008 and 2010.[52] The children live in different states with their respective mothers. The Applicant states that he has no contact with his children, but that he receives photographs of them. The Applicant states that if he is removed, they would not in future receive financial assistance from him and would have no father in their lives. The Applicant contended that an adverse decision would mean that the two children will not have the chance to restore the relationship with their father, should they wish to, nor to have regular visits without going at length of travelling overseas and looking for him.
[51] G9, 79-93, Ex 11.
[52] Ex 1.
The Tribunal is satisfied on the evidence that the Applicant does not play any active parental role in his children’s lives, or make any financial, emotional or other contribution to the children. There are other persons who already fulfil a parental role in relation to the children. Whether he would do so in the future or be able to restore their relationship, is entirely speculative.
Ms East gave evidence that she has three minor children, aged 9, 7, and 2 years. She gave evidence that prior to COVID-19, the Applicant was in regular contact. She stated that the Applicant is good with children. Although the Applicant does not have any parental relationship or obligations towards Ms East’s three minor children, the Tribunal is satisfied that their interests would be adversely impacted by non-revocation.
The Tribunal gives this consideration some weight in favour of revocation.
5)Expectations of the Australian community
The Direction at 8.5(1) indicates that the Australian community expects non-citizens to obey Australian laws. It states that 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.
The Direction refers to non-revocation of the mandatory cancellation of a visa, being potentially appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.[53] 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 a kind that includes acts of family violence.[54]
[53] Direction 99 [8.5(2)].
[54] Direction 99 [8.5(2)(a)].
The Tribunal observes that the Direction contemplates that the expectations of the Australian community apply regardless of whether the Applicant poses a measurable risk of causing physical harm to the community.[55]
[55] Direction 99 [8.5(3)].
In the Applicant’s SOFIC, the Applicant contended that his offending is not of the kind mentioned in the Direction, but nonetheless accepted that this consideration, on its face, weighs against revocation. The Applicant argues that this can especially be the case if the narrow approach determined by FYBR[56] is adopted. However, the Applicant noted the broader approach taken in the case of DKXY,[57] which indicated that all other circumstances relevant in every case must also be taken into account. The Applicant contends, but does not articulate, how the language of Direction 99 supports the decision made in DKXY.
[56]FYBR v Minister for Home Affairs [2019] FCA 500. Special leave refused: FYBR v Minister for Home Affairs [2020] HCATrans 056.
[57] DKYX v Minister for Home Affairs [2019] FCA 495.
The Tribunal views this primary consideration to be about the expectations of the Australian community as a whole, and in this respect, the Tribunal should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case. This consideration appears to be consistent with the Full Federal Court authority in FYBR.[58] This consideration is not dealing with an objective or ascertainable expectations of the Australian community; rather, it is a kind of deeming provision by the Minister about how the Government wishes to articulate community expectations, whether or not there is any objective basis for that belief.[59] It imputes or ascribes to the whole of the Australian community an expectation, which wholly aligns with the expectation of the executive government of the day regarding its subject matter.[60]
[58] FYBR v Minister for Home Affairs [2019] FCAFC 185. Special leave refused: FYBR v Minister for Home Affairs [2020] HCATrans 056.
[59] Uelese v Minister of Immigration and Border Protection (2016) 248 FCR 296 [64]-[66].
[60] FYBR v Minister for Home Affairs [2019] FCAFC 185 [67]. Special leave refused: FYBR v Minister for Home Affairs [2020] HCATrans 056.
The Tribunal is satisfied that the enquiry for this consideration does not concern what the Australian community expects in fact, assuming such expectations could be objectively ascertained, but rather concerns what the Australian Government has deemed the community’s expectations to be. The content of the deemed expectation is to be discerned by construing the relevant provision itself.[61]
[61] FYBR v Minister for Home Affairs [2019] FCAFC 185 [68]. Special leave refused: FYBR v Minister for Home Affairs [2020] HCATrans 056.
The Applicant is asking the Tribunal to consider the Applicant’s circumstances under this consideration, as well as others. The Applicant contends that Australia has effectively been the Applicant’s home since he became an adult, and that he is a person:
“…with serious mental health problems who positively contributed to society for many years with his offending starting in 2021 during a period of a pandemic should not be excluded from the community that will offer him the right support including mental health support needed albeit his criminal convictions. Furthermore, the Applicant was diagnosed with schizophrenia. On the day he committed his serious offending he was under delusional beliefs…We also refer to the fact that the Applicant’s children require his support in Australia.”[62]
[62] Ex 1, 16.
Given that community expectations are not expressed in relation to any particular case, it would not be open to the Tribunal to ask itself a question along the lines of, ‘what would the community expect in this case?’[63] The Direction does not ascribe to the Australian community a relevant expectation with regard to the outcome in the particular case.[64]
[63] FYBR v Minister for Home Affairs [2019] FCAFC 185 [68]. Special leave refused: FYBR v Minister for Home Affairs [2020] HCATrans 056.
[64] FYBR v Minister for Home Affairs [2019] FCAFC 185 [68]. Special leave refused: FYBR v Minister for Home Affairs [2020] HCATrans 056.
It could potentially amount to an error for the Tribunal to rely on its own opinion or belief.[65] The matters raised by the Applicant in this case, such as length of time spent in Australia, the Applicant’s mental health and his contribution, are dealt with under primary considerations in the Direction expressly referring to these matters or under ‘other considerations’, which are non-exhaustive.
[65] Ali v Minister for Home Affairs [2018] FCA 1895 [38].
Where the Applicant’s conduct raises serious character concerns, the deeming effect is that this consideration weighs adversely for the Applicant.[66] The Tribunal recognises that its determination as to whether the cancellation in this case should be revoked may differ from the expectations of the Australian community, as the government has deemed those expectations to be.[67]
[66] FYBR v Minister for Home Affairs [2019] FCAFC 185 [68]. Special leave refused: FYBR v Minister for Home Affairs [2020] HCATrans 056.
[67] FYBR v Minister for Home Affairs [2019] FCAFC 185 [79]. Special leave refused: FYBR v Minister for Home Affairs [2020] HCATrans 056.
The Applicant’s criminal conduct is serious. The Tribunal is satisfied that the Australian community expects that the Australian Government should not revoke the cancelation of the Applicant’s visa because his conduct is serious.
The Tribunal gives this consideration significant weight against revocation.
THE OTHER CONSIDERATIONS
a)Legal consequences of the decision.
At paragraph 9.1, the Direction indicates that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
The Direction divides the considerations to be applied in this paragraph into two sections:
(1) non-citizens covered by a protection finding; and
(2) non-citizens not covered by a protection finding.
Australia is a signatory to several international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).
Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there would be a risk of harm.
Non-refoulement obligations is not confined to the protection obligations to which s 36(2) of the Act refers.[68] It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.
[68] See Ibrahim v Minister for Home Affairs [2019] FCAFC 89 [103].
There is no claim or evidence of non-refoulement obligations.
The Tribunal gives this consideration neutral weight.
b)Extent of impediments if removed.
Paragraph 9.2 of the Direction requires the Tribunal to consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country) taking into account:
(a) the non-citizen's age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
The Applicant is 32 years old and he suffers from significant and ongoing mental health issues, including schizophrenia.
There are no cultural or linguistic obstacles, and as a New Zealand citizen, it can generally be argued that the Applicant would be able to access health care and counselling for his mental health issues. However, the Applicant’s mental health issues are significant and cannot be underestimated. Although he has lived in New Zealand for two years since his first arrival in Australia, it cannot be said that this means he should be able to do the same. The Tribunal observes that in oral evidence, the Applicant said that whilst in New Zealand, he initially lived with family, but also went to a rehabilitation centre.[69]
[69] Transcript Day 1, 45-46.
The evidence before the Tribunal is that the Applicant’s schizophrenia is not fully under control, whether this is due to non-compliance with respect to his medication, illicit drug abuse, or inherent features of the illness, is not really the issue for the Tribunal to resolve. The fact is that due to his psychiatric illness, the Applicant is a vulnerable person with considerable cognitive and psychosocial impairments. Whilst it can be suggested that drug abuse is a choice, the same cannot be said for a significant mental health issue such as schizophrenia. The Applicant’s medical support system is in Australia and has been so for many years. If returned to New Zealand in this vulnerable state, it is fair to say that the Applicant could face insurmountable challenges, which could worsen his mental health conditions.
The Applicant’s father and step-sister gave evidence of their unconditional support of the Applicant if released. Mr Paul, the Applicant’s father, gave evidence that the Applicant would live with him if released. The Tribunal is mindful that Mr Paul confirmed that there has been an Apprehended Violence Order against the Applicant for Mr Paul’s protection.[70] The Tribunal is concerned about this matter but is of the view that it would be disproportionate to conclude that Mr Paul’s plan for the Applicant to live with him is questionable (the order does not include provisions excluding this potential arrangement). The Applicant’s foster parents in New Zealand have passed away, and the main relative he has in New Zealand is his elderly aunty.
[70] Ex 7, 2; Transcript Day 1, 88.
On the evidence, the Tribunal is satisfied that the Applicant’s emotional, medical, psychiatric, and practical supports are in Australia, not in New Zealand. Given the magnitude of his mental health, the Tribunal is satisfied that there are considerable impediments for removal from Australia to New Zealand.
The Tribunal gives this consideration significant weight in favour of revocation.
c)Impact on victims.
The Direction requires decision-makers to consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.[71]
[71] Direction 99 [9.3].
The Tribunal does not have specific information about any impact of non-revocation or revocation on the victims.
The Tribunal gives this consideration neutral weight.
d)Impact on Australian business interests.
At paragraph 9.4 of the Direction, it is noted that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence of impact on an Australian business.
The Tribunal gives this consideration neutral weight.
Other matters for consideration
There are no other matters for consideration.
CONCLUSION
There are aspects against revocation, such as protection of the Australian community, and the expectations of the Australian community, which weigh heavily against revocation. There are neutral aspects and those in favour of revocation. The strength, nature, and duration of the Applicant’s ties to Australia, and the extent of impediments in case of removal, weigh heavily in favour of revocation.
The Tribunal, and for the explained reasons, finds that:
·Primary considerations 1 and 5 weigh heavily against revocation.
·Primary consideration 2 is neutral.
·Primary consideration 3 weighs heavily in favour of revocation.
·Primary consideration 4 weighs slightly in favour of revocation.
·Other consideration a is neutral.
·Other considerations b weighs heavily in favour of revocation.
·Other considerations c and d are neutral.
As previously mentioned, Direction 99 provides that, generally, primary considerations should be given greater weight. They are primary in the sense that, absent some factor that takes the case out of that which pertains 'generally', they are to be given greater weight. However, Direction 99 does not require that the other considerations be treated as secondary in all cases, nor does it provide that primary considerations are 'normally' given greater weight. Rather, it concerns the appropriate weight to be given to both 'primary' and 'other considerations'. This, in effect, requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[72] The Tribunal is of view that the other consideration, being the extent of impediments in case of removal weighs heavily in favour of revocation, should be given greater weight.
[72] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 [23] considering para 8(4) of Direction No 79, the equivalent to para 7(2) of Direction 99. The Full Court endorsed this interpretation in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19. The Full Court held at [34] that the reference in Suleiman to an inquiry as to whether the case is outside the circumstances that generally apply should not be read as requiring an inquiry as to whether there was something about the nature of the case that was unusual or uncommon or out of the ordinary. Rather, the question was whether there was some reason why the general circumstance where the primary considerations should be given greater weight than the other considerations should not apply when it came to weighing the various considerations that were relevant to the particular case.

Having regard to all relevant material before it, the Tribunal is satisfied that the correct and preferable decision is to revoke the cancellation of the Applicant’s Subclass 444 visa.
DECISION
The decision under review is set aside, and in substitution, the mandatory cancellation of the Applicant’s visa is revoked.

I certify that the preceding one-hundred and eleven (111) paragraphs are a true copy of the reasons for the decision herein of Deputy President Antoinette Younes.

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

Dated: 28 August 2023

Date of hearing(s):

16 and 17 August 2023

Solicitor for the Applicant:

Ms M Lewis, Crossover Law Group

Solicitor for the Respondent:

Ms S Hardie, HWL Ebsworth Lawyers

Date of hearing(s):	16 and 17 August 2023
Solicitor for the Applicant:	Ms M Lewis, Crossover Law Group
Solicitor for the Respondent:	Ms S Hardie, HWL Ebsworth Lawyers