SKDF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

SKDF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 5043 (23 December 2021)
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2021/7346

GENERAL DIVISION )
Re: SKDF
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent
DIRECTION
TRIBUNAL:  Senior Member J Rau SC
DATE OF CORRIGENDUM:        20 January 2022
PLACE:           Adelaide

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

The name of the Applicant on the title page of the decision be replaced with the pseudonym “SKDF”;

All references to the Applicant’s name be removed and replace with “the Applicant”;

All references to names of people throughout the decision be replaced with a relevant pseudonym:

Applicant’s younger sister to “CC”;

Applicant’s older sister to “KC”;

Applicant’s older brother to “LC”;

Applicant’s other older brother to “older brother B”;

Applicant’s friends to “TT” and “NL”;

Applicant’s uncle to “uncle A”;

Applicant’s mother to “Applicant’s mother”;

Applicant’s mother’s doctor to “Dr AK”; and

Psychologist to “TGJ”.

......................[Sgnd]......................
J RAU SC
(Senior Member)

Division:GENERAL DIVISION
File Number:2021/7346
Re:SKDF
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member J Rau SC
Date:23 December 2021
Place:Adelaide

The decision under review is affirmed.
............................[Sgnd]..............................
Senior Member J Rau SC
CATCHWORDS
MIGRATION – mandatory cancellation of [VISA] under section 501CA(4) - where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 90 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CAREASONS FOR DECISION
REASONS FOR DECISION
Senior Member J Rau SC
23 December 2021
INTRODUCTION AND BACKGROUND

The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (the Respondent) made under section 501CA(4) of the Migration Act 1958 (Cth) (the Act) on 7 October 2021, not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (“the Visa”).
The hearing was held on 15 and 16 December 2021. The Applicant was self-represented and appeared via video-link from Villawood Immigration Detention Centre in New South Wales. Edwin Taylor of Mills Oakley Lawyers appeared for the Respondent via video-link.
The Applicant was a poor historian. Some of his evidence contradicted his earlier statements. Some of his evidence was self-serving, and in my view, when presented with alternative sources, not to be preferred. I will give examples in due course. The Applicant called his older brother (“LC”) and sister (“KC”), his mother, and his younger sister (“CC”) to give evidence. They gave evidence by telephone. An undated statement was provided from a Mr TT (“TT”). TT amongst other things states, “I currently have future plans for the Applicant when he is released in order to kickstart his music career”. The Applicant mentioned nothing about TT or a music career in his evidence. TT was not called as a witness.
The Applicant was born in New Zealand and is currently 23 years of age. He is a New Zealand citizen.
On 7 June 2011, when he was 13 years of age, the Applicant moved to Australia, with his family. The Applicant has mostly lived in Australia since that time having returned to New Zealand twice. The first occasion was between 16 January 2013 and 20 July 2013.[1] The second occasion was between 1 November 2016 and 10 November 2016.
[1] Exhibit 3, G2, p 136.
The Applicant is single and has no children. His immediate family in Australia are his mother, an KC, LC, CC and a younger brother.
His KC lives in Queensland and has a six-year-old son (“Child A”). The Applicant has met Child A on a couple of occasions. Irrespective of his incarceration, the Applicant lives in Sydney and KC lives near Rockhampton, Queensland. As such, contact between the Applicant and Child A, inasmuch as it has happened, has been electronic. The Applicant’s association with Child A is peripheral at best. Continuing this level of electronic contact is no more difficult from New Zealand than it would be from Sydney.
His mother lives by herself in Sydney. The Applicant is close to her and says that he would like to support her.
LC lives in Sydney with CC and a friend. He has three children aged eight, six, and four (“Child B”, “Child C”, and “Child D” respectively). He is separated from his former partner who presently lives in Coffs Harbour with Child B, Child C, and Child D. LC has access to these children, but for practical reasons having regard to the distance from Sydney, his access has been monthly. There is some talk of the children and their mother returning to Sydney to live, but this has not been settled. LC was quite guarded in the way in which he gave his evidence, particularly regarding his access arrangements. He stated that he was able to see his children for two weeks each month, saying in effect that he tried to get to Coffs Harbour to see them for two weeks at the end of every month, however, this arrangement could, and did, vary.[2] He said that this caused no problem for his work. This seemed unusual, given that he has a full-time job. The children are at school in Coffs Harbour. The Applicant has only had limited contact with these children since his incarceration. He has not actually met Child D. Before his imprisonment in 2017, he did live in the same house with Child B and Child C. Any future contact that he might have with these children, even if he were to remain in Australia, would be subject to whatever access arrangements and living arrangements their mother may decide upon. He would not be living with them in any foreseeable circumstance.
[2] Covid-19 restrictions have made things more complicated recently.
The Applicant has an older brother (“older brother B”), two uncles (one being “uncle A”), an aunt, a grandmother, and other relatives in New Zealand. According to his mother’s evidence, during the Applicant’s stay in New Zealand in 2013, the Applicant, his younger brother, and CC stayed with his mother’s brother, uncle A. This is contrary to what the Applicant stated in earlier material before the Tribunal. He claimed to have stayed with his older brother, older brother B. The Applicant had not said anything to the Tribunal, or in earlier material, about the existence of uncle A, let alone living with him for 6 months. The Applicant and his younger brother were sent to uncle A so that he could “straighten them out” according to his mother. According to her evidence, the Applicant and his younger brother were “hanging around with the wrong crowd”. The Applicant’s mother suggested that if the Applicant were returned to New Zealand, uncle A may be able to be of some assistance to him.
The Applicant attended high school in Sydney but did not apply himself and he left school during year 11 after his family relocated to Brisbane.[3] During his school time, the Applicant was occasionally involved in fights between groups of young men. He was suspended from school for property damage on several occasions.[4] Since leaving school he has not had any further education, or vocational training. He has worked casually for a few months as a removalist and worked for a period of six months as a full-time forklift operator. He also worked for a while with a timber company. He told the Tribunal that he liked this work. During his period of incarceration, he has failed to demonstrate any interest in vocational training.[5]
[3] Exhibit 3, G2, p 68.
[4] Ibid.
[5] Exhibit 9, R43, pp 223-226.
According to his mother, the whole family relocated to Brisbane in approximately 2015 for eight or nine months. KC gave evidence that this did not work out as planned. She hoped that they would come to rural Queensland, where she lived, not Brisbane. In any event, the move was unsuccessful and the family, (other than KC), returned to Sydney. This timeline does not fit with New South Wales (“NSW”) police records that mention the Applicant being involved in incidents in Sydney throughout that year. The Applicant suggests that it was earlier, perhaps in 2013. KC who still lives in Queensland was not sure of the year either. In any event, the family returned to Sydney and the Applicant and his younger brother went to live with a friend (“AS”) and his mother for approximately six months. This is significant because AS was subsequently fatally injured in a brawl, at which the Applicant was present, on 6 August 2016. This occurred in circumstances that may shed some light on the Applicant’s later offending, on 12 June 2017.
As a youth, from about the age of fifteen, the Applicant became involved with an antisocial peer group and started getting into trouble. This group was involved in theft and encouraged the Applicant to make money from crime. They were also involved in acts of wanton vandalism and graffiti damage to public property. His parents attempted to break the cycle of these connections by sending the Applicant and his younger brother to New Zealand for six months in 2013, as previously mentioned. Department of Home Affairs records confirm that the Applicant was in New Zealand between 16 January 2013 and 20 July 2013.[6]
[6] Exhibit 3, G2, p 136.
From late 2013, until his most recent incarceration, the Applicant has been a serial offender. He has been shown lenience in the form of warnings, cautions, community supervision including bail curfews and bonds, but has continued to re-offend. He was briefly in juvenile detention. He has reoffended when on a bond. Aside from the last four years that he has spent either incarcerated or in immigration detention, the Applicant has spent most of the decade since arriving in Australia being in trouble with the law. It seems that he has been associated with a youth gang called the “212 Gang”. In cross-examination, the Applicant conceded that the name “212 Gang” came from the Pennant Hills post code and that police referred to the group of youths, of which he, and his younger brother, were members in that way. His younger brother has been involved in much of the Applicant’s offending. The evidence of KC suggests that this younger brother has also had his visa cancelled. This is relevant because it may impact on the capacity of the Applicant’s family to supervise/ support him if he were to be released, and the influences to which he may be exposed, if his brother were also to be released into the community.
The Applicant has used cannabis, alcohol, and ecstasy from the age of fifteen. His drug use was a cause of friction with his parents who disapprove of it. The Applicant and his peer group were usually affected by drugs or alcohol when they committed offences. The Applicant’s recorded interactions with police commence on 15 December 2013 when police spoke to him and a group of youths who were smoking and making mischief at Hornsby Westfield.[7]
[7] Exhibit 9, R49, p 404.
The Applicant’s criminal convictions commenced when he was sixteen years of age. In January 2015 he appeared in the Bidura Children’s Court of New South Wales on two occasions in relation to fifteen offences primarily relating to property damage, graffiti, and shoplifting. These offences occurred on 30 August 2014 and 18 October 2014 at which times the Applicant was acting in concert with a group of youths. At this time, he was ordered to enter into a good behaviour bond under the supervision of Juvenile Justice for periods of between three to nine months. Three graffiti charges were dismissed with a caution.[8]
[8] Ibid, R2 & R3, pp 1-3, 5-7.
On 5 July 2015, the Applicant and others, stole a mountain bike from a garage. The victim, who recognised the Applicant as a former student, called out “Applicant put the bike down”. The Applicant dropped the bike and ran away. Police could not find him, and he was not charged.[9]
[9] Exhibit 9, p 50.
On 10 July 2015, the Applicant, along with others, jumped a ticket barrier at Chatswood Railway station, without producing a ticket. He ran off but was detained by police and was given an infringement notice.[10]
[10] Ibid, p 51.
On 3 August 2015, the Applicant was convicted in the Parramatta District Court of two counts of “goods in personal custody suspected of being stolen” and was ordered to enter into a good behaviour bond under the supervision of Juvenile Justice for a period of six months.
On 29 October 2015, the Applicant, again in the company of other youths, was found in the carpark of Thornleigh Railway Station. They were intoxicated and behaving in a disorderly manner. They were issued with a move on direction.[11]
[11] Ibid, 319.
On 10 January 2016, the Applicant completed an incoming passenger card in which he stated that he did not have any criminal convictions. This was clearly wrong at the time this card was completed. In the Applicant’s response to the documents produced by the Respondent he said, “I didn’t know I had to provide information about my criminal history when entering Australia, I thought it would have appeared when they scanned my passport”.[12] In his evidence, he gave a totally different account. He said that his mother had filled in the card and he had just signed it.
[12] Exhibit 1.
On 22 February 2016, the Applicant and others were involved in a fight at Chatswood skatepark. The Applicant was arrested and charged.[13]
[13] Exhibit 9, R49, pp 299-302.
On 17 March 2016, the Applicant was charged with assault occasioning actual bodily harm and Affray in relation to events on 22 January 2016.[14] These charges were later withdrawn.[15]
[14] Ibid, R22, pp 65-66.
[15] Ibid, R47, p 247.
On 19 April 2016, at 1:14 am, police responded to an incident at McDonald’s Thornleigh. The Applicant, who was again in the company of others, was stopped by police but fled. He was in breach of bail conditions (curfew).[16] The Applicant was brought before the Bidura Children’s Court on 2 May 2016 and give a “last warning” about breaching bail conditions.
[16] Ibid, R49, p 293-296.
On 2 June 2016, again in the company of others, the Applicant attempted to start a fight with three people at the Hornsby Inn Bottle Shop.[17]
[17] Ibid, R23, pp 71-72.
On 28 June 2016, the Applicant was convicted of having been involved, along with four others, in purchasing various good with a stolen debit card on 24 October 2014. He was sentenced to a nine-month good behaviour bond.[18]
[18] Ibid, R9, pp 40-43.
On 13 July 2016, the Applicant was convicted of offences relating to the use of a stolen credit card on 4 December 2015.[19]
[19] Ibid, R19, pp 61-63.
On 18 July 2016, the Applicant was again in the Children’s Court this time charged with “dishonestly obtain financial advantage by deception”. He was sentenced to a six-month good behaviour bond.
On 26 October 2016, the Applicant was again charged with Affray, this time relating to events on 6 August 2016. The Applicant was involved in a brawl at a house party during the course of which his friend AS, was stabbed and subsequently died.[20] This charge was also withdrawn.[21]
[20] Ibid, R24, pp 75-82.
[21] Ibid, R47, pp 247.
On 26 May 2017, police attended a lane in Chatswood at 11:50pm and found a group of males fighting. The Applicant attempted to run away but was caught by police. The Applicant is described as having taunted police with “snide remarks and actions”. He was on bail at the time.[22]
[22] Ibid, R49, pp 282.
On 1 June 2017, the Applicant, along with three others were observed to be in a speeding car. The car accelerated and drove on the wrong side of the road. The car stopped and the Applicant and three others left the car. The vehicle was stolen and had been used in the commission of an aggravated break and enter on 31 May 2017.[23]
[23] Ibid, pp 279-280.
On 11 May 2018, the Applicant was given a psychological evaluation at the request of his then solicitor in relation to the criminal charges that were the subject of subsequent sentencing on 8 June 2018. The report dated 22 May 2018 by TGJ states amongst other things:
“Based on his self-reported history and collateral sources of information, it is likely that the Applicant would have met criteria for Conduct Disorder during adolescence. I note that this is a risk factor for future offending, and the Applicant shows additional areas of criminogenic risk and need including antisocial attitudes, identification with an antisocial peer group, limited vocational and educational attainment, substance abuse in the community, and a general lack of insight and remorse with regard to his offending.
……
Whether in custody or the community, it is my opinion that the Applicant would benefit from participation in general offender programs that would develop his insight into his offending with a view to future risk mitigation. His participation in such programs will be subject to internal risk needs assessments by NSW Corrective Services and/or Community Corrections, and I recommend that this report is furnished to the relevant parties as an additional source of information towards this end.
It is my understanding that the Applicant currently remains on remand for charges unrelated to the index offence, however I note that his ongoing exposure to an antisocial milieu in the custodial environment is likely to impinge upon his prospects for rehabilitation, and he would instead benefit from community sentencing options should these be considered by the Court. Given the risk factors outlined in the previous section, I would respectfully recommend that conditions of community supervision should include random drug screening, an overnight curfew, and/or non-association orders with his co-accused.”[24]
[24] Ibid, R33, pp 121-128.
On 8 June 2018, the Applicant was convicted in the District Court of New South Wales at Newcastle of “robbery in company”, for which he was sentenced to two years and seven months imprisonment. The date of the offending was 12 June 2017. The victim was a man who the Applicant blamed for AS’s death. His denial that revenge was a motivation is not credible. He said in evidence that he got a call to say that the victim was at a venue and that he should go there and meet others. There is little doubt that the plan was to bash and rob the victim.
In her sentencing remarks of 8 June 2018, Judge Herbert of the New South Wales District Court criminal division made the following remarks:
“He denied ever being dependent on anything, he regarded it as a recreational choice. His drug use had caused difficulties for his relationship with his parents because they did not approve and were concerned. He said that his peers and himself were typically affected by drugs or alcohol when they committed offences. In relation to his psychological and psychiatric history he has denied any history of psychiatric diagnoses; he has never been treated for any mental health condition; he does not have any history of psychotic phenomena; and is unaware of any family history of mental illness. He rated his mood as a seven out of ten and he said his mood was largely stable. There were days where he felt worse and he struggles with being in custody, but broadly he reported a normal psychological functioning, including adequate sleep, appetite and energy.
The offender was described as being open about his criminal history stating that during his mid-teens he began spending time with a group of antisocial peers who engaged in theft and taught him that you could make money from crime. With his contact in Juvenile Justice he was subject to community supervision including bail curfews and house arrest. He was briefly nin juvenile detention. When asked about the results or consequences for himself he had difficulty in identifying consequences of his offending for himself or for others.
In relation to the offence he was able to provide a clear account which was consistent with the facts. He did say that he and his peers had a history of conflict with the victim. They were alerted by another friend to the fact the victim was at the Hornsby Inn and they went there with the intention of meeting him. He said that their intention was to rob the victim and he went along with the plan even though "I thought there was no point," but did it because he had nothing else to do. He was not affected by drugs or alcohol at the time of the offence. When asked if he regretted the offence, he said he did, but he framed his remorse in terms of the consequences for himself, being incarceration and possible deportation, rather than any thought for the victim.
In terms of future plans he said he would live with his parents upon release and he would like to return to his previous job. He said he would like to support his family financially and he would like to avoid to return to custody. He realised that he would need to avoid criminal activity and spending time with antisocial peers. He pointed out that many of his friends are currently in custody. While he has been in custody he has seen older men who spent long periods there and he said “I do not want to be like that”.
In relation to psychological testing, he obtained a score of two on the depression scale which places him in a minimal symptom category, similarly for anxiety in the minimal symptom category and nothing on the stress subscale, indicating minimal difficulties with stress. He is below the cut-out for any potential drug related problems or drug dependence having scored four out of 44 in relation to that.
The summary recommendations made by the psychologist included the fact that she said he impressed as a young man who generally lacks insight into risk factors for offending and the consequences of actions for himself and others. She said he was fairly open, expressed antisocial attitudes related to his offending, but he did show an emerging awareness of the need to change his lifestyle in order to achieve his goals and avoid further contact with the criminal justice system in future.
She said that the offender would have met the criteria for a conduct disorder during adolescence and she said that this was a risk factor for future offending. His criminogenic risks included antisocial attitudes, identification with antisocial peer group and limited vocational and educational attainment, substance use in the community and a general lack of insight or remorse in regard to his offending. She did identify several potential protective factors in place including the fact that he had stable mental health and emotional coping; he has an intact family; the lack of a substantive history of substance dependence; and he has shown a degree of contemplation in relation to his need to change is lifestyle. In relation to recommendations the psychologist said that the general offender programmes that would help develop his insight into his offending and future risk mitigation, and that there would be programmes available within Corrective Services subject to an internal risk assessment.
The offender gave evidence before me in relation to this matter. In relation to his offending he has actually now expressed remorse and a level of insight in relation to the harm done to the victim; he was able to identify the fact that he would not like it to happen to him; and that he realised that the victim would now be scared when he goes out and that is something that should not have happened to him. The offender confirmed matters that arose during the course of [co-offender] sentence proceedings, that the victim was a person that was known to them and that there was a belief that the victim had been involved in the death of a close friend of the offenders. I do not take this to be vigilante action but it is clear that this could have been something of a motivating factor for targeting the victim when the offender is a person who has never been involved in violence in the past.
The offender also gave evidence that his father has been diagnosed with cancer and he is currently undergoing chemotherapy. Because of his illness, or because of the treatment, it has meant that his father has not been actually able to visit him much in gaol, and even when he did try to come to visit him in gaol he was not able to leave the car park because it was just too far for him to walk to be able to come to the custody area. His mother has been visiting him as much as she is able, consistent with working and having to look after her father and his younger siblings. In relation to his plans for the future, he would be happy to return to forklift driving but he has identified that he would like to become an electrician and is aware that he would need to undertake studies at TAFE to do so.
I find that the offender's prospects of rehabilitation are somewhat guarded. He needs to disassociate from his antisocial and negative peer group, and to stop using drugs, but he has started to develop a degree of insight. One of the factors he has identified is having seen men in gaol who have been there repeatedly, he realises that he wants to change and this is a motivating factor for him to obtain employment, because as he has recognised if he is employed that he will not be getting into trouble. I cannot be satisfied that the offender will not commit further offences.
MORAL CULPABILITY
The offender's youth and immaturity would have contributed to the commission of the offence. The comparative youth does have some impact on the weight to be given to considerations of general deterrence. Clearly in sentencing young offenders general deterrence may give way to considerations of rehabilitation. However, that principle itself yields to others where young offenders commit crimes of an adult nature. The use of violence to solve issues commonly by comparatively young men mean that moderation of youth on the consideration of general deterrence will not be significant. It is an aggravating factor in this matter that the offender was on conditional liberty at the time of the offence.
PARITY
The offence was one involving a joint criminal enterprise and each offender bears criminal responsibility for the actions of others, but that does not mean that each has the same moral culpability. The role of the offender in the present matter was that he took a less active role than his co-offenders. He did not strike the victim, unlike his co-offenders. In this matter there was evidence of planning which was absent for the co-offender, even though the present offender did not initiate the plan, he was aware of it and went to the hotel as he said because he had nothing else to do. The present offender does not have any convictions as an adult and he does not have any offences of violence on his record.
The subjective case of the offender does not contain a number of the features that were significant for his co-offender… being he does not come from a significantly disadvantaged childhood such as to reduce his moral culpability, and the fact that [co-offender] was suffering from a mental illness meant that he was not a suitable vehicle for general deterrence. In relation to the present offender, there is the added factor that his father is currently suffering from a serious illness and that this will mean that there was an additional degree of hardship for the present offender in relation to time spent in custody, as it means that he is unable to have contact with his father and I take this into account that it does cause him hardship.
In this matter I have considered s 5(1) of the Crimes (Sentencing Procedure) Act requiring that a Court must not sentence an offender to imprisonment unless it is satisfied having considered all possible alternatives that no penalty other than imprisonment is appropriate. I am so satisfied.
I find special circumstances in this matter. The offender would benefit from an extended period of supervision to ensure that he addresses his drug usage while in the community.
Applicant, please stand.
I impose a sentence of imprisonment consisting of a non-parole period of one year and six months commencing from 8 November 2017 and a head sentence of two years and seven months.
You will become eligible to be released on parole in this matter on 7 May 2019. This sentence has been reduced by 25% and rounded to the nearest month.”[25]
[25] Exhibit 3, G2, pp 35-40.

On 18 December 2019, the Applicant was sentenced by Judge Buscombe of the District Court of New South Wales Criminal Division. On this occasion the Applicant was one of five defendants who were charged with offences involving wounding with intent to cause grievous bodily harm to 2 victims contrary to section 33 (1) (a) of the Crimes Act (New South Wales). The date of this offending was 30 December 2016. The offending involved a joint enterprise. Robbery appears to have been the motivation. The injury suffered by the victims were serious and in the case of one of them life-threatening. The Applicant was sentenced to 9 years imprisonment with a non-parole period of six years.
The Sentencing assessment report dated 3 December 2019 states as follows:
“Name: APPLICANT
Date of birth: 14/05/1998
MIN: 584292
Court: PENRITH DISTRICT COURT
Court date: 06/12/2019
Offences: Wound person with intent to cause grievous bodily harm-SI X 2
Sources of information
- Interviews with the Applicant
- Contact with the Applicant’s mother
- Police facts and criminal history
- Contact with the Department of Home Affairs
- Corrective Services NSW records
Current circumstances
Family and social circumstances
- The Applicant maintains the support of his mother and brother. They remain in contact via custodial visits and telephone calls. Both parties reported the relationships as positive. The Applicant’s mother confirmed that he may reside with her on release.
- It is noted that the Applicant is an unlawful non-citizen and is subject to detention under s189 of the Migration Act upon his release from criminal custody.
Education and employment
- The Applicant has a history of sporadic employment in the building sector, he reported that prior to the offence he was unemployed for a several months. He reported that he intends on seeking employment in the building sector when released.
- The Applicant has not engaged in any custodial employment or educational activity due to his remand status.
Factors related to offending
History of anti-social behaviour
- The Applicant has a criminal history dating back to his teen years, however it would appear that his offending has escalated since 2016. Despite the current offence, being in company as well as his previous 2017 offence of Robbery in Company, the Applicant denied his co-offenders or peers having any negative influence on him. Additionally, he described their friendships as pro-social.
Attitudes
- The Applicant did not display any insight into his offending behaviour, and he denied his involvement in the current offence. Additionally, he claimed that he did not see, hear or recall anything that occurred between his co-offenders and the victims. Despite this, the Applicant denied having had any underlying issues that could affect his memory recall.
Social influences
- Despite the current offence being in the company of his peers, the Applicant described his co-offenders as positive supports, It would appear that the Applicant has little insight into the negative impact such associations have on his life.
Violence and aggression
- It is noted that the Applicant has no other convictions for violent or aggressive offences with the exception of his 2017 Robbery in Company offence. He appears to have no insight into his violent behaviour and denied being an aggressive or violent person. The Applicant takes no responsibility for his offence as he continued to deny his involvement.
Responsivity
Insight into impact of offending
- Despite his denial of the offence the Applicant verbalised some victim empathy, albeit superficially. He claimed that the victim may have been traumatised and that he (the Applicant) simply should not have been there at the time. He failed to verbalise any further victim impact and could not identify the triggers that led to his offending behaviour.
Willingness and ability to undertake intervention
- The Applicant verbalised a willingness to engage in intervention, however his motivation appears superficial. He claimed that he has no criminogenic factors to address, and he will “do it if he has to”.
Willingness and ability to undertake community service work
- The Applicant stated that he is willing to engage in Community Service Work. There does not appear to be any factors that would preclude his participation.
Response to supervision
- The Applicant has not been previously supervised by Community Corrections.
Assessment and recommendations
Risk assessment
The Applicant has been assessed at a Medium risk of reoffending according to the Level of Services Inventory – Revised (LSI-R).
Supervision plan
If the court makes a supervised order, Community Corrections will supervise the Applicant at the Tier 2/Medium supervision level of the Service Delivery Standards. This means that he will be required to report to a Community Corrections Officer every 2 weeks, and receive home visits from the officer every 12 weeks.
Community Corrections will implement the following supervision plan:
- The Applicant will be referred to the NSNSW Pacific Islander Liaison Officer. Additionally, he will be referred to the Community of Inquiry into Pacific and Maori Family Issues. The next program will commence on 6 February 2019. This is an 11 week program that addresses attitude, violence and familial issues within a culturally supportive context. Furthermore, the Applicant will be referred to the EQUIPS Foundation program which is due to commence on 4 February 2019 and the Mt Druitt Community Corrections Office.
- The Applicant’s contact with police and his associations will be monitored.
- During interviews with his supervising officer, the Applicant will participate in Practice Guides for Intervention (PGI) activities such as; managing stress and anger, pro-social lifestyle and managing environment.
Recommended order conditions
Community Corrections considers that no conditions other than a supervision condition are required to implement the supervision plan above.
Community service assessment
Community Corrections has assessed the Applicant as suitable to undertake community service work. Community Corrections can provide the equivalent of up to 21 hours of work per month.
If a community service work condition is made. The Applicant should report to the Mt Druitt Community Corrections Office within 24 business hours of release.”[26]
[26] Exhibit 9, R34, pp 129-132.
The NSW Corrections Case Note Report of 4 February and 13 May 2020, notes as follows:
“Inmate: Applicant
Min: 584292
Work Location: Heavy engineering
Wage Level: 5
Start Date: 04/02/2020
1. Workplace Skills
1.1 Demonstrates punctuality?
Inmate is unreliable
1.2 Demonstrates preparedness to work?
Inmate show no interest in any work at all
1.3 Works to agreed quality standards and specifications?
Inmate is not a willing worker and refuses to participate
1.4 Works to agreed OH & S procedures and workplace behaviours?
Inmate wears minimum PPE
1.5 Keep area clean.
No
1.6 Uses appropriate procedures, tools and equipment?
Inmate is not willing to work and does not use tolls
1.7 Accepts and provides constructive feedback?
Inmate cannot be encouraged to work or contribute to the work location.
2. Self Management Skills
2.1 Plans and organises own making good use of time and materials?
Inmate doesn’t engage in work activities
2.2 Assesses situations and identifies problems?
Inmate stays in the one location for the whole day
2.3 Applies problem solving strategies?
2.4. Identifies and accesses learning opportunities?
Inmate is not will to involve himself in work activities
2.5 Demonstrates a desire to learn and to apply that learning?
Inmate has been ask encouraged on requested to work and fails to respond and is not suited to this type of centre
2.6 Adapts to changing requirements and information?
No
3. Initiative
3.1 Help others to learn on the job?
No
3.2 Seeks out other work or information which helps the job at hand?
Inmate has [no] interest in helping other involved in work activities
3.3 Shows interest and effort?
No
3.4 Passes on information and checks understanding with others?
No
3.5 Considers risks and evaluates options and chooses best option?
Inmate is at very low risk as he is not involved in work place activities
4. Communication Skills
4.1 Works independently?
No
4.2 Communicates effectively with others?
No
4.3 Understands and responds to the needs of a customer?
No
4.4 Clearly organises and effectively presents ideas orally?
No
4.5 Willing to participate and be flexible when there are production pressures?
No
4.6 Manages and resolves conflict where appropriate?
No
4.7 Locates, understands and interprets information in the workplace?
No
4.8 Recognises and respects people’s diversity, differences and perspective?
No
4.9 Work effectively as a team member to achieve a shared goal?
No
5. Application, Responsibility
5.1 Skills demonstrated beyond established routines and procedures?
No
5.2 Skills demonstrated over a variety of contexts.
No
5.3 Able to demonstrate some discretion and judgement.
No
5.4 Applies her to the task and is not easily discouraged or distracted.
No.
Additional Comments:
This inmate is not suited to this working environment and shows no interest learning. He has been encouraged to commit to his skills but refuses to take part in any activities at all.
Inmate Applicant is employed in heavy engineering at MCC however refuses to work or contribute in any way. Inmate prefers to sleep and/or play cards instead of trying to contribute to the unit. Inmate is in my opinion not suited to be placed in this working centre.” [27]
[27] Ibid, R43, pp 223-226.
The Applicant’s attitude to work was totally negative and he agreed in cross examination that his non-cooperation was designed to speed up his transfer to another facility. He also complained about the fact that he would not be paid very much for performing any of the work and it was therefore not worth his while.
New South Wales Correctional Services records indicate that on 22 June 2020, the Applicant refused to cooperate in a urine test for drug analysis.[28]
[28] Ibid, p 227.
New South Wales Correctional Services records dated 3 July 2020 state:
“Inmate was recently classified GLB due to ongoing poor attitude, refusal to work and general non-compliance with centre routine. Inmate now continues to be non compliant with centre routine and is causing issues with the regimented structured day routine of this centre. Inmate has been removed from the main area of the centre is now housed in the MPU on a section 78A order, inmate will remain housed in this location until removed to centre of classification.”[29]
[29] Ibid.
Prison records dated 16 January 2021, report the following:
“At approximately 16:30hrs I was conducting a targeted search on [the Applicant] because of an earlier altercation in another unit where a few items had been stolen out of cell where the incident happened and found in his cell a pair of what appears to be white Nike runners size 10 and a white soul black strap pair of what appears to be Lucid slides. I later pulled up his property card and saw there was none of these items on the card so they were confiscated from his cell and taken to the supervisors office.”[30]
[30] Ibid, R36, p 140.
In his evidence, the Applicant accepted that these shoes were not his property, but that they had been given to him by the owner because he was a “friend”.
Prison records dated 27 May 2021 indicate that the Applicant was found to be in possession of a drug namely Buprenorphine. This is an opiate. In his evidence, the Applicant conceded that the drug was concealed inside of his diary. He initially said that that was “from a long time ago”. Later he said that it belonged to somebody else but that he would not reveal who it was, because you did not do that in prison. He considered that the drug had value inside the prison.[31]
[31] Ibid, R39, pp 157-161.
The Applicant subsequently appealed against his conviction and on 21 July 2021 the New South Wales Court of Criminal Appeal allowed the appeal in the Applicant’s case. In respect of this appeal the Court of Criminal Appeal said:
“The Appeals
The balance of these reasons assumes a familiarity with the principal judgment. As notes, each of the Applicant and KC seeks to rely on the reasons and findings in the principal judgment.
The submissions made on behalf of KC accepted that, at the trial, it was not in dispute that he was one of the group of males who assembled at the car park behind the Pennant Hills Library at around 8.00pm on 30 December 2016, disguised themselves and then walked across Ramsay Street and entered Pennicook Lane (principal judgment at [63] to [64]). However, it was contended, by reference to the findings of all three members of the Court, that it was not open to the jury “to be satisfied that the applicant was part of the group that returned down Pennicook Lane” and by reference to the findings of two members of the Court, Bell P and Rothman J, that it was not “open to ... be satisfied that the applicant was part of the group that made its way up to the victims’ unit and balcony.” The submissions made on behalf of the Applicant adopted the submissions made on behalf of KC. In particular it was contended that the evidence adduced at the trial was “incapable of establishing to the criminal standard that the applicant entered the victims’ balcony or unit area.”
Based on the findings in the principal judgment, the Crown conceded that the convictions were unreasonable and that there was no, or at least insufficient, evidence to establish that either the Applicant or KC returned back along Pennicook Lane or went to the second-floor balcony of the victims’ apartment.
These submissions should be accepted. In the principal judgment all the members of the Court accepted that it was a reasonable possibility that, of the seven members of the group who walked up Pennicook Lane, only six returned and that was an inference consistent with the innocence of at least SK, BK and MS that was not excluded by the other evidence at the trial (at [4] per Bell P, at [29] to [30] per Rothman J and at [103] per Beech-Jones J). Unless there was some evidence specifically incriminating the Applicant or KC, as a majority found there was with [co-offender], then they are also entitled to the benefit of that reasonable possibility. Further Bell P, with whom Rothman J agreed, found that, even if the entirety of the group of youths who went up Pennicook Lane returned, “the facts did not in my opinion support the view that the only possible and non-conjectural inference was that all of the appellants together with the Applicant and KC were present on the balcony or in the unit during the assaults” on the victims (at [15] per Bell P and at [36] per Rothman J; Beech-Jones J contra at [103]). Again, unless there was some evidence specifically incriminating the Applicant or KC, as a majority found there was with [co-offender], then they are entitled to the benefit of that reasonable possibility.
In the principal judgment, Bell P and Beech-Jones J found that there was evidence that specifically incriminated [co-offender] in the attack on the two victims, namely certain admissions he made during various intercepted telephone calls (at [17] and [119] respectively). Rothman J took the contrary view (at [49] to [50]). In relation to the Applicant and KC, the Crown’s submissions noted that KC’s fingerprints were found in EV’s car and documents were located inside that car in the Applicant’s name. However, the Crown accepted that that evidence “does not establish that either KC or the Applicant returned back on Pennicook Lane or went up to the second floor balcony”. We agree. The evidence at the trial raised various possibilities consistent with innocence as to how the Applicant and KC could have been present in EV’s car both before and after the attack on the victims. Their presence in her car at some point was not capable of demonstrating that they returned down Pennicook Lane or entered the balcony area of the victims’ unit.
Accordingly, we would allow the appeals of each of the Applicant and KC.”[32]
[32] T-Docs, G2, p 97-99.
The Applicant’s criminal conviction in respect of the offending on 30 December 2016 was set aside. However, certain facts relating to the events of that day remain uncontroversial and are relevant to these proceedings. The Applicant was a part of a group who acted in concert, some of whom, perpetrated a violent home invasion /robbery, during the course of which two innocent men were assaulted and attacked with a knife. One victim sustained very serious and potentially life-threatening injuries. The burden of proof required to sustain a criminal conviction was found on appeal, not to have been discharged. This is not a judicial finding of innocence. The original sentence of 9 years imprisonment is reflective of how very serious this offending was. The Applicant was beyond question an active participant, though he cannot be identified beyond reasonable doubt, as one of those involved in the assault and wounding.
In his evidence, the Applicant explained his presence at this time and place on the basis that he was there to observe or and or participate in a fight, because there had been an “altercation” between other people (not specified,) earlier in the day. Even if this account is taken at face value, it is a matter of concern that the Applicant would travel to a destination to observe or participate in a fight involving groups of youths.
“Annexure B” is a summary of a report from the Australian Criminal Intelligence Commission obtained on 22 September 2021 setting out the Applicant’s criminal history.
On 8 January 2019, the Applicant’s Visa was cancelled under section 501(3A) of the Act. At the Applicant’s request, this decision was reviewed by the Respondent who on 7 October 2021, determined not to revoke the cancellation of the Applicant’s Visa.
It is this decision that the Applicant seeks to have reviewed in these proceedings before the Tribunal.
LEGISLATIVE FRAMEWORK
Section 501(1) of the Act provides that:
“The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. “
There are two issues presently before the Tribunal:
·whether the Applicant can satisfy the Tribunal that he passes the character test; and if not;
·whether the Tribunal considers that there is “another reason” to revoke the original decision.
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 8 June 2018, the Applicant was sentenced by the District Court of New South Wales to a term of imprisonment of 2 years and 7 months with a non-parole period of 1 year and 6 months.[33]
[33] Page 40 – Tender Bundle / T-Docs…
The Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. This is not contested by the Applicant. The Tribunal must therefore consider whether “there is another reason why the original decision should be revoked”.
In considering whether to exercise this discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[34]
[34] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizens visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.

The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four 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 best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[35]
“…Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide 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 65 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, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it 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.”[36]
[35] [2018] FCA 594.
[36] Ibid, [23].
OFFENDING HISTORY
A summary of the Applicant’s criminal record as produced by the Australian Criminal Intelligence Commission is outlined at Annexure B.
The Applicant’s offending commenced in late 2013. He has continued to offend ever since. The seriousness of his offending has escalated.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. 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 applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
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 a number of factors. I will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
The scope of conduct that may be regarded as very serious is not limited to the examples given in subparagraph (a). I read the direction as referring to criminal convictions, unless the allegation involves family violence. In this instance that is not a relevant consideration.
The Applicant’s conviction for robbery in company was a very serious offence. It involved the use of violence and intimidation against the victim, though not specifically by the Applicant. The head sentence of 2 years and 7 months for such a young offender, is also an indication of objective seriousness.
The fact that the Applicant was convicted of 18 offences between 6 January 2015 and 8 June 2018, ranging from theft, to fraud, to vandalism and robbery, is very serious.
Having regard to all these matters, the Applicant’s offending must be regarded as very serious. This weighs heavily against revocation.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention.
This Sub-paragraph is also not confined to the matters set out in (i) to (iv). In fact, (iii) invites a comprehensive consideration of the Applicant’s record as a whole.
Section 501(6)(c) of the Act states:
“(6) For the purposes of this section, a person does not pass the character test if:
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character…”
The Applicant’ s conduct, taken as a whole, must be regarded as serious. This weighs heavily against revocation.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
The Applicant was sentenced to a significant term of imprisonment of 2 years and 7 months.
This weighs heavily against revocation.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Applicant has been a serial offender, despite his relative youth. The severity of his offending has escalated and involved premeditated criminal conduct in collaboration with others. This weighs heavily against revocation.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
The cumulative effect of the Applicant’s behaviour has been to be a repeat offender with increasingly worrying and serious consequences. This weighs heavily against revocation.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
The Applicant made a false declaration on an incoming passenger card on 10 November 2016.[37] His explanation is inconsistent and unsatisfactory (see paragraph 21 above).
[37] P 135 (G-Docs)
This weighs against revocation.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
There is no evidence of the Applicant having been warned so this consideration is neutral.
I do not consider factor (g) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh very heavily against revocation of the cancellation of the Applicant’s visa.
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 need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers 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 that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(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 their 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.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The Applicant has not only been a repeat offender but the impact of his offending on others has escalated. He appears to have little insight into his behaviour and its impact on others. In his evidence he said that he regretted his offending because but for that “I wouldn’t be in here”. He then went on to mention what he had put his family through, and lastly, he mentioned the victim. He seems to be easily swayed by peer pressure and prepared to participate in premeditated criminal behaviour. He has been part of a criminal group and embedded in an anti-social, criminal sub-culture. He seems to have no constructive outlets. His work record is patchy at best. He has no special work skills and has shown himself to be totally disinterested in acquiring any.[38]
[38] P 223-225 (TB)
He has no concrete plans about where he would live if released, though his mother and his older brother, LC, have offered to house the Applicant. As previously noted, they may be assisting his younger brother as well, should he be released. This may be a problem to manage, given that they have a history of co-offending.
He has no concrete plans about getting work, though is mother and LC have both offered to ask friends and contacts to assist with giving him employment.
Given the escalation of the Applicant’s offending, the risk of harm to others should he reoffend is very serious.
He is described in the sentencing assessment report of 3 December 2019 as being at a medium risk of reoffending.
There is nothing to suggest that he has engaged in any rehabilitation to speak of.
He has not been in the community since his incarceration on 8 November 2017.
Likelihood of engaging in further criminal or other serious conduct
The Applicant has shown little insight and has continued to offend. There is nothing compelling to suggest that he has made a decision to change his ways. The Tribunal does not have the power to grant a conditional visa, or to impose parole like conditions requiring supervision in the community. He has a social network made up of anti-social and criminal elements. He has no apparent interest in rehabilitation or obtaining work skills. He must be regarded as presenting a medium to high risk of reoffending. His psychological assessment is not encouraging.
His plans about what he would do if released are vague and aspirational.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs heavily against revocation.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
There is no evidence of family violence.
Conclusion: Primary Consideration 2
Primary Consideration 2 is neutral.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ

The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·     whether there are other persons who already fulfil a parental role in relation to the child;
·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·     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;
·     evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The relevant minor children in Australia are:
(a)Child A, KC’s son; and
(b)Children B, C, and D, LC’s children.
The Applicant’s connection to these children is discussed above at paragraphs 6, 7, and 9.
The Applicant has had some historic interaction with Child B and Child C. He has not met Child D. He has met Child A on a few occasions. For the last 4 years such contact he has had with any child, has been mostly electronic. He has never been a primary carer or major financial contributor.
In summary, assuming that the Applicant were to stop his anti-social ways, he may be of some minor benefit to some of the children. This is putting things at their highest from his perspective.
Conclusion: Primary Consideration 2
Having regard to all of the above, Primary Consideration 3 weighs slightly in favour of revocation.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
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 above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[39]
[39] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
(a)the Applicant’s criminal record as set out above and in Annexure B;
(b)the Applicant’s lengthy association with anti-social and criminal groups; and
(c)the Applicant has been a burden on the Australian community since at least 2014. He has been gainfully employed and paying taxes only for brief periods. For most of the time he has been in this country, he has been unemployed or imposing on the criminal justice system.
Conclusion: Primary Consideration 4
Primary Consideration 4 weighs heavily against revocation.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International non-refoulement obligations
This consideration does not arise.
This Other Consideration (a) is neutral.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is 23 years of age and there is no evidence to suggest that he has any health problems.
The Applicant would experience no substantial linguistic or cultural barriers if he were to be returned to New Zealand. The Applicant has spent more of his life in New Zealand, than he has in Australia.
The Applicant has a grandmother, an older brother, two uncles, an aunt and possibly other relatives in New Zealand. He has lived with one of his uncles in the past when he went back to New Zealand for 6 months in 2013. It is unclear to what extent, they would be willing or able to assist him.
There is no doubt that the Applicant would suffer some difficulties in adjusting to life as an adult in New Zealand. He came to Australia initially as a 13-year-old. He did return to New Zealand for a lengthy period of approximately 6 months when he was 15 years old. He would be denied the opportunity of living with his immediate family. His prospects of employment would be similar to those in Australia.
The Applicant states that his grandmother is his contact in New Zealand. He had little to say about his brother and neglected to mention his uncles and aunt at all.
New Zealand citizens enjoy very similar standards of welfare services and access to health care to citizens of Australia and so he would in no way be disadvantaged in that respect.
This Other Consideration (b) weighs moderately in favour of revocation.
(c) Impact on victims
This Other Consideration (c) requires that decision-makers must 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.
There is no evidence about the impact on victims.
This Other Consideration (c) is neutral
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant’s immediate family are in Australia. They gave evidence that his removal from Australia would cause them distress, though they have not been supported by him in the past. Despite his assertions, there is nothing in his history to suggest that he could, or would, support his mother. He sought to emphasise her medical issues before the Tribunal, to an extent not corroborated by her.
If the Applicant were to be released to the community, his mother has offered to have him stay with her to assist in supporting him to re-join the community successfully. His brother in Sydney (LC), has made a similar offer. How this would be managed, particularly if his younger brother were also to be released, is unclear.
The Applicant asserts that if he were to be returned to the community, he would be able to help in supporting his family. This has not been the case in the past. Whether he would be able to make any positive contribution to his family depends entirely on whether he was able to put his criminal history and associations behind him. He would also need to change his attitude to work.
Aside from his family, there is very little evidence of ties to the Australian community, other than a lengthy association with a cohort of anti-social, criminal youths. As previously mentioned, the Applicant has not been a net contributor to the Australian community, having regard to his brief period of employment and his very lengthy period of criminal offending
This Other Consideration (d), paragraph 9.4.1 of the Direction, weighs moderately in favour of revocation.
Impact on Australian business interests
There is no evidence of any impact on Australian business interests.
This Other Consideration (d), paragraph 9.4.2 of the Direction, Is neutral
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: neutral;
(b)extent of impediments if removed: moderately favours revocation;
(c)impact on victims: neutral;
(d)links to the Australian community including the strength, nature, and duration of ties to Australia: moderately favours revocation; and
(e)the impact on Australian business interests: neutral.
CONCLUSION
It is necessary to weigh up all of the primary and other considerations.
Primary consideration 1 weighs heavily against revocation.
Primary consideration 2 is neutral.
Primary consideration 3 weighs slightly in favour of revocation.
Primary consideration 4 weighs heavily against revocation.
Other considerations, a, c, and e are neutral.
Other considerations b and d moderately favour revocation.
In my view, the proper application of the Direction favours the Tribunal not exercising the discretion to revoke the cancellation of the Applicant’s Visa. I do not find that there is “another reason” pursuant to s501CA (4)(b)(ii) to revoke the original decision.
DECISION
The decision under review is affirmed.

I certify that the preceding one hundred and fifty-one (151) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Rau SC.

.............................[Sgnd].............................
Legal Administrative Assistant

Dated: 23 December 2021

Date of hearing: 15 & 16 December 2021

Applicant:

Self-Represented

Advocate for the Respondent:
Edwin Taylor

Mills Oakley Lawyers

Annexure A – List of Exhibits

Exhibit no.

Lodged by

Document

1

Applicant

Submission – “G-Documents I Disagree With”

2

Respondent

Statement of Facts, Issues and Contentions

3

Respondent

G-Documents

4

Applicant

Bundle of Statements:

1. TT (Applicant’s friend)

2. LC (Applicant’s older brother)

3. Applicant’s mother

5

Applicant

Certificate of capacity / certificate of fitness – NSW State Insurance Regulatory Authority

6

Applicant

Bundle of documents re Applicant’s mother:

1. Referral Letter – Dr AK – 10.04.2017

2. Final Report – Discharge Referral, Cardiology

3. Consent to Obtain / Release Information – Prestige Health Services Australia

7

Applicant

Bundle of Statements:

1. CC (Applicant’s younger sister)

2. Applicant

3. KC (Applicant’s older sister)

4. NL (Applicant’s friend)

8

Applicant

Certificate – Drug and Alcohol Abuse 101 – 15.11.2021

9

Respondent

Respondent Tender Bundle

Annexure B – Applicant’s Offending History

Court

Court Date

Offence

Court Result

Bidura Children’s Court

06/01/2015

Intentionally mark premises etc without prescribed consent

Bond – 3 months

Bidura Children’s Court

06/01/2015

Shoplifting value <=$2000

Bond – 3 months

Bidura Children’s Court

08/01/2015

Destroy/damage property in company >$2K <=$5K

Bond – 9 months supervision Juvenile Justice

Bidura Children’s Court

08/01/2015

Destroy/damage property in company >$2K <=$5K

Bond – 9 months supervision Juvenile Justice

Bidura Children’s Court

08/01/2015

Destroy/damage property in company >$2K <=$5K

Bond – 9 months supervision Juvenile Justice

Bidura Children’s Court

08/01/2015

Destroy/damage property in company >$2K <=$5K

Bond – 9 months supervision Juvenile Justice

Bidura Children’s Court

08/01/2015

Destroy/damage property in company >$2K <=$5K

Bond – 9 months supervision Juvenile Justice

Bidura Children’s Court

08/01/2015

Destroy/damage property in company >$2K <=$5K

Bond – 9 months supervision Juvenile Justice

Bidura Children’s Court

08/01/2015

Destroy/damage property in company <=$2000

Bond – 9 months supervision Juvenile Justice

Bidura Children’s Court

08/01/2015

Destroy/damage property in company <=$2000

Bond – 9 months supervision Juvenile Justice

Bidura Children’s Court

08/01/2015

Destroy/damage property in company <=$2000

Bond – 9 months supervision Juvenile Justice

Bidura Children’s Court

08/01/2015

Destroy/damage property in company <=$2000

Bond – 9 months supervision Juvenile Justice

Parramatta Children’s Court

28/06/2015

Goods in personal custody suspected being stolen (not m/v)

Bond – 6 months supervision Juvenile Justice

Parramatta Children’s Court

28/06/2015

Goods in personal custody suspected being stolen (not m/v)

Bond – 6 months supervision Juvenile Justice

Parramatta District Court

03/08/2015

Goods in personal custody suspected being stolen (not m/v)

Order Confirmed

Bond – 6 months supervision Juvenile Justice

Parramatta District Court

03/08/2015

Goods in personal custody suspected being stolen (not m/v)

Order Confirmed

Bond – 6 months supervision Juvenile Justice

Bidura Children’s Court

18/07/2016

Dishonesty obtain financial advantage etc by deception

Bond – 6 months

Parramatta District Court

08/06/2018

Robbery in company

Imprisonment – 2 years 7 months

Non-parole period 1 year 6 months

[2021] AATA 5043

23 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2021/7346
GENERAL DIVISION	)

Exhibit no.	Lodged by	Document
1	Applicant	Submission – “G-Documents I Disagree With”
2	Respondent	Statement of Facts, Issues and Contentions
3	Respondent	G-Documents
4	Applicant	Bundle of Statements: 1. TT (Applicant’s friend) 2. LC (Applicant’s older brother) 3. Applicant’s mother
5	Applicant	Certificate of capacity / certificate of fitness – NSW State Insurance Regulatory Authority
6	Applicant	Bundle of documents re Applicant’s mother: 1. Referral Letter – Dr AK – 10.04.2017 2. Final Report – Discharge Referral, Cardiology 3. Consent to Obtain / Release Information – Prestige Health Services Australia
7	Applicant	Bundle of Statements: 1. CC (Applicant’s younger sister) 2. Applicant 3. KC (Applicant’s older sister) 4. NL (Applicant’s friend)
8	Applicant	Certificate – Drug and Alcohol Abuse 101 – 15.11.2021
9	Respondent	Respondent Tender Bundle

Court	Court Date	Offence	Court Result
Bidura Children’s Court	06/01/2015	Intentionally mark premises etc without prescribed consent	Bond – 3 months
Bidura Children’s Court	06/01/2015	Shoplifting value <=$2000	Bond – 3 months
Bidura Children’s Court	08/01/2015	Destroy/damage property in company >$2K <=$5K	Bond – 9 months supervision Juvenile Justice
Bidura Children’s Court	08/01/2015	Destroy/damage property in company >$2K <=$5K	Bond – 9 months supervision Juvenile Justice
Bidura Children’s Court	08/01/2015	Destroy/damage property in company >$2K <=$5K	Bond – 9 months supervision Juvenile Justice
Bidura Children’s Court	08/01/2015	Destroy/damage property in company >$2K <=$5K	Bond – 9 months supervision Juvenile Justice
Bidura Children’s Court	08/01/2015	Destroy/damage property in company >$2K <=$5K	Bond – 9 months supervision Juvenile Justice
Bidura Children’s Court	08/01/2015	Destroy/damage property in company >$2K <=$5K	Bond – 9 months supervision Juvenile Justice
Bidura Children’s Court	08/01/2015	Destroy/damage property in company <=$2000	Bond – 9 months supervision Juvenile Justice
Bidura Children’s Court	08/01/2015	Destroy/damage property in company <=$2000	Bond – 9 months supervision Juvenile Justice
Bidura Children’s Court	08/01/2015	Destroy/damage property in company <=$2000	Bond – 9 months supervision Juvenile Justice
Bidura Children’s Court	08/01/2015	Destroy/damage property in company <=$2000	Bond – 9 months supervision Juvenile Justice
Parramatta Children’s Court	28/06/2015	Goods in personal custody suspected being stolen (not m/v)	Bond – 6 months supervision Juvenile Justice
Parramatta Children’s Court	28/06/2015	Goods in personal custody suspected being stolen (not m/v)	Bond – 6 months supervision Juvenile Justice
Parramatta District Court	03/08/2015	Goods in personal custody suspected being stolen (not m/v)	Order Confirmed Bond – 6 months supervision Juvenile Justice
Parramatta District Court	03/08/2015	Goods in personal custody suspected being stolen (not m/v)	Order Confirmed Bond – 6 months supervision Juvenile Justice
Bidura Children’s Court	18/07/2016	Dishonesty obtain financial advantage etc by deception	Bond – 6 months
Parramatta District Court	08/06/2018	Robbery in company	Imprisonment – 2 years 7 months Non-parole period 1 year 6 months