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

SQKV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 180 (8 February 2021)
Division:GENERAL DIVISION
File Number: 2020/7694
Re:SQKV
APPLICANT

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

Decision
Tribunal:Senior Member Theodore Tavoularis
Date of Decision: 8 February 2021
Date of Written Reasons: 10 February 2021
Place:Brisbane

The decision under review is affirmed.
.........................[sgd]...........................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PNLB and Minister for Immigration and Border Protection [2019] AATA 162
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
TABLE OF CONTENTS
Decision
Catchwords
Secondary Materials
REASONS FOR DECISION
Procedural history of this matter
ISSUES
Does the Applicant pass the character test?
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
Primary Consideration A – Protection of the Australian Community
The Nature and Seriousness of the Applicant’s Conduct to Date
A general overview of the nature of the Applicant’s offending
Application of factors in Paragraph 13.1.1(1) of the Direction
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The respective contentions about recidivism
The medical evidence contemporaneous with the Applicant’s offending in April 2018 (carry offensive weapon) and November 2019 (arson)
A comparison of the Applicant's views about his rehabilitation compared to the views of independent clinicians familiar with his history and symptomatology
The Applicant’s re-integration into the community: Housing
The Applicant’s re-integration into the Australian community: Employment
The lack of stability for the Applicant upon a return to the Australian community

Findings about the Applicant’s risk of recidivism
Conclusion: Primary Consideration A
Primary Consideration B: The Best Interests of Minor Children in Australia
The Applicant’s written material
The Applicant’s other written evidence
The Applicant’s oral evidence at the hearing
Application of Factors in Paragraph 13.2(4) of the Direction
Conclusion: Primary Consideration B
Primary Consideration C: The Expectations of the Australian Community
The relevant paragraphs in the Direction
Factual circumstances relevant to this Primary Consideration C
The Evolution of the Australian Community’s “Expectations”
Analysis – Allocation of Weight to this Primary Consideration C
Conclusion: Primary Consideration C
Other Considerations
(a) International non-refoulement obligations
(b) Strength, nature and duration of ties
(c) Impact on Australian business interests
(d) Impact on victims
(e) Extent of impediments if removed
Conclusion
Decision
REASONS FOR DECISION
Senior Member Theodore Tavoularis
10 February 2021

SQKV (the “Applicant”) is a 52-year-old citizen of New Zealand. Movement records in the material indicate that he initially arrived in Australia on 14 April 1994 aged 25 years. His movement history in and out of Australia since that time is as follows:
·departed Australia 24 January 1998;
·arrived Australia 31 January 1998;
·departed Australia 31 March 2005; and
·arrived Australia 14 April 2005.[1]
[1] Exhibit G1, G16, page 77.
The Applicant has therefore only spent three weeks outside of Australia since his initial arrival in April 1994. At the time of his most recent arrival, the Applicant entered Australia pursuant to a Class TY, Subclass 444 (Special Category) visa (the “visa”).[2] For the instant decision, the relevant visa is that particular visa.
[2] Ibid.
The Applicant has a relatively lengthy history of criminal (and other) offending in Australia. His Australian criminal history spans the period 25 March 1996 to 3 August 2020.[3] He has committed approximately 32 offences that have been dealt with at 15sentencing episodes.[4] In terms of the imposition of custodial time, judicial sentencing officers have, across the totality of his offending history in Australia seen fit to sentence him to a cumulative period of custodial terms amounting to approximately two years and eight months.
[3] Ibid, G12, pages 67–68.
[4] Ibid.
A notable feature of his offending history in Australia is that his first 30 offences were committed between March 1996 and July 2013 and virtually all of those offences arise from the Applicant’s ownership, use and/or operation of a motor vehicle. The three exceptions during this initial period of his offending involve respective convictions for (1) “Fail to pay taxi fare” sentenced on 25 March 1996; (2) “Larceny” sentenced on 30 April 1996; and (3) “Possess equipment to administer Cannabis” sentenced on 30 August 1996.
Thus, there can be said to be three distinct phases to the Applicant’s offending history in this country.
·his first three convictions involving the abovementioned “Fail to pay taxi fare”; “Larceny”; and “Possess equipment to administer Cannabis” dealt with between 25 March and 30 August 1996. No custodial terms were imposed for this offending.
·his27convictions involving the ownership, use and/or operation of a motor vehicle imposed upon him at sentencing episodes commencing on 16 January 2001 and ending on 3 July 2013. One custodial term was imposed for the commission of one of these offences, details of which comprise:
o3 July 2013 – Christies Beach Magistrate’s Court – “Drive under disqualification or suspension” – convicted and sentenced to four weeks imprisonment (wholly suspended for 6 months; released on a $500 bond).
·his two convictions for his most serious offences that can be summarised as follows:
o3 August 2020 – District Court of South Australia – “Carry an offensive weapon” – convicted and sentenced to two months and 12 days imprisonment;
o3 August 2020 – District Court of South Australia – “Arson of building or motor vehicle” – convicted and sentenced to two years, four months and 24 days imprisonment.
The Applicant also has a criminal history in New Zealand.[5] In terms of the first and last dates of commission of those offences, it runs for the period 7 January 1986 through to 5 May 1990. In terms of his appearances before lawful authority for the punishing of those offences, that period runs from 9 January 1986 to 7 May 1990. He also has a traffic history in New Zealand. He committed his first traffic offence on 27 August 1988 and his final traffic offence on 7 February 1990. Lawful authority dealt with his traffic offending during the period 15 March 1989 until 2 April 1990.
[5] Exhibit G1, G13, pages 69–70.
The New Zealand criminal history involves his conviction for the commission of nine offences that were dealt with at eight separate sentencing episodes. Stated briefly, that offending can be described as (1) possession seeds; (2) minor consume liquor in public place; (3) disorderly behaviour – likely cause violence; (4) possess cannabis plant; (5) minor found in bar; (6) return to licensed premises; (7) burgles (Oth Prop) (Over $5000) by day; (8) Discharges airgun in public place; and (9) possession of cannabis. That offending was predominantly punished by non-custodial sentences. In some of the sentences is there to be found a mention of a custodial term, and these are expressed in formulations which I detail at [‎61], below.
The New Zealand traffic history largely mirrors the Applicant’s offending in this realm in Australia. There are convictions for driving under the influence; careless operation of a motor vehicle; exceeding the speed limit; and driving whilst disqualified. Of the seven traffic offences for which he was convicted in New Zealand, five of them were punished by non-custodial sentences. Two of them were punished by a sentencing formula expressed thus:
·Papakura District Court – 2 April 1990 – Drove while Disqualified – “Convicted and Sentenced : Non Residential Periodic Detention – 02/04/1990 – 3 Months / Disqualification From Driving – 02/04/1990 – 6 months”;[6]
·Papakura District Court – 7 March 1990 – Drives When Disq (First Offence) – “Convicted and Sentenced : Non Residential Periodic Detention – 15/03/1990 – 9 Months / Disqualification From Driving – 15/03/1990 – 6 months”[7]
[6] Ibid, G13, page 69.
[7] Ibid.
While the Applicant was serving a term of imprisonment (that is, in actual criminal custody), a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister” or “the Respondent”), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”), decided on 13 August 2020 to mandatorily cancel the Applicant's visa on the basis that he did not pass the character test.[8]
[8] Ibid, G17, 79–86.
On 31 August 2020, the Applicant requested revocation of the abovementioned decision to mandatorily cancel his visa.[9] Another delegate of the Minister decided on 16 November 2020, pursuant to s 501CA(4) of the Act not to revoke the mandatory cancellation of the subject visa.[10]
Procedural history of this matter
[9] Ibid, G3, 33–36.
[10] Ibid, G2, 17–32.
This matter was originally listed for hearing on 20 & 21 January 2021. It’s 84^th day was 8^th February 2021. The final hearing was adjourned twice. First, it was adjourned on the morning of the originally-listed first day (20 January 2021). The reason for this first adjournment was allow the Applicant an opportunity to receive and review certain unredacted material that had been produced under Summons issued by the Tribunal at the request of the Respondent. The Respondent’s representative[11] did not cavil with the adjournment on this basis. Accordingly, the hearing was adjourned to 29 January 2021 for a one-day hearing.
[11] Mr Will Sharpe, Partner, HWL Ebsworth Lawyers.
Second, a further adjournment was necessitated by virtue of the Tribunal’s receipt of certain further material from one of the witnesses whom the Applicant wished to call. This further adjournment was necessitated by the Tribunal’s preference to allow the Applicant the opportunity to adduce certain written evidence from that particular witness that had been filed inside two business-days prior the adjourned hearing date. In fairness to the Applicant and out of an abundance of caution, the Tribunal adjourned the hearing to Monday 1 February 2021 to allow receipt of that written material in a manner that did not offend ss 500(6H) and 600(6J) of the Act. Again, the Respondent’s representative did not cavil with this further adjournment on this basis.
The instant hearing proceeded before me on 1 February 2021. Given the twice-adjourned final hearing of this matter, I formed the view that the most thorough review of the evidence and the most detailed written reasons could not be safely provided in time to meet the 84 day deadline. Based on my intention to consider the material as fulsomely as possible and to deliver an appropriately detailed decision, I caused the Tribunal to publish its Decision in this application pursuant to s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) on Monday 8 February 2021. In so doing, the Tribunal also met the requirements of s 500(6L)(c) of the Act. Attached to these Reasons and marked “Annexure A” is a true and correct copy of that Decision.
In accordance with the principles outlined by the Full Federal Court in Khalil v Minister for Home Affairs [2019] FCAFC 151 (“Khalil”), the Tribunal now publishes the written Reasons to the parties. In Khalil, the Full Federal Court said:
“41. The AAT Act thus draws a clear distinction between the decision of the Tribunal under s 43 which is, relevantly, what causes the 84 day period to stop running, and the reasons for decision. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 the Tribunal had handed down a decision on a review of a decision of the Australian Securities Commission that was before it, confirming an exemption that the Commission had granted on certain conditions, but substituting different conditions. At the time of announcing the decision the Tribunal did not give any reasons. It delivered written reasons some 14 days later. Beaumont J held (at 271-273, Lockhart and Hill JJ agreeing at 253) that the Tribunal's omission to provide reasons at the time of announcing its decision was not an error, as on the proper construction of s 43(2) of the AAT Act, the Tribunal was only required it to give its reasons, oral or in writing, within a reasonable time of the decision.
…
48. What the Tribunal had to do here within the 84 days was to deliver a decision, not necessarily express reasons…”
[My underlining]
The hearing received oral evidence from:
(i)the Applicant; and
(ii)the Applicant’s former partner, Ms V H.
The hearing also received certain written evidence which was particularised into an agreed exhibit list, a true and correct copy (anonymised) of which is attached to these reasons and marked “Annexure B”.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this sub-section provides that:
(4)       The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
The Applicant has made the necessary representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[12]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[13]
[12] [2018] FCAFC 151.
[13] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal is compelled to find that the cancellation of the Applicant’s visa must be revoked.[14] I will address each of these grounds in turn.
[14] Ibid.
Does the Applicant pass the character test?
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”.
I have earlier sought to summarise the nature and extent of the Applicant’s offending, including the nature of custodial terms that have been imposed on him. For the two offences of (1) “Carry an offensive weapon”; and (2) “Arson of building or motor vehicle” for which the Applicant was convicted on 3 August 2020 at the District Court in South Australia, he received approximately two years and seven months of custodial time. Further, another four weeks of cumulative custodial time was imposed upon him in 2013 for driving a motor vehicle while disqualified or suspended from doing so.
Having regard to these respective cumulative terms that have been imposed upon him, there can be no question that the Applicant does not pass the character test pursuant to s 501(6)(a) of the Act. I am consequently satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[15] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[16]
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
[15] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[16] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia;
c)    Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 14 of the Direction. These considerations are:
a)    International non-refoulement obligations;
b)    Strength, nature and duration of ties;
c)    Impact on Australian business interests;
d)    Impact on victims;
e)    Extent of impediments if removed.

I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[17]
“…Direction 65 [now Direction 79] 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.”
[17] [2018] FCA 594 at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are 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;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens 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 whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(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
A general overview of the nature of the Applicant’s offending
It can be fairly said that the majority of the Applicant’s offending history in New Zealand – both in the realm of traffic and criminal offending – are of a relatively minor nature. Put another way, the nature of his offending in New Zealand was not such as to cause judicial sentencing officers to impose anything in the way of lengthy custodial terms. Put at their highest, whatever custodial terms were imposed upon him comprised either “Residential Periodic Detention” and custodial terms that are expressed on the basis of “Convicted and Sentenced : To Come Up For Sentence If Called Upon”. Although not determinative of the overall nature of the Applicant’s offending history, both here and in New Zealand, his offending history in New Zealand alone would not have satisfied me that the Applicant fails the abovementioned character test.
In very broad terms, the same kind of conclusion can be reached for the majority of the Applicant’s offending in Australia. As mentioned earlier, he has been dealt with for the commission of some 32 offences in Australia during the period March 1996 to August 2020. Of those 32 duly convicted offences, only three were punished by way of a custodial term. They comprise:
·3 July 2013 – drive under disqualification or suspension – 4 weeks imprisonment;
·3 August 2020 – arson of building or motor vehicle – 2 years, 4 months, 24 days imprisonment;
·3 August 2020 – carry an offensive weapon – two months, 12 days imprisonment.
Put another way, in the sequence of his 32 offences, only the 29^th, 31^st and 32^nd of those offences attracted the imposition of custodial time by way of punishment. Therefore, the totality of the Applicant’s criminal history, both here and in New Zealand, is, to an extent, unique because it seems to maintain a consistent level of type, quality and level of seriousness of offending save and except for his final two offences committed in Australia which, for reasons I will express, are very serious.
The remaining and earlier components of the Applicant’s criminal history, both here and in New Zealand, are demonstrative of a general level of disregard for laws and regulations governing the community back into which the Applicant seeks re-admission. The Applicant’s driving and criminal histories are demonstrative of him having a history of extensive use of alcohol and illicit drugs. This can be seen in his convictions for (1) driving while under the influence of alcohol in both Australia and New Zealand; and (2) his convictions in New Zealand for offences committed as a minor involving alcohol in New Zealand. As will be noted later in these reasons, the Applicant’s predisposition to abuse alcohol appears to have ceased or dissipated commensurate with his most recent conviction for driving under the influence in mid-2013.
Not much more can be said about the aspects of the Applicant’s offending history that can be attributable to the commission of less serious types of offences. All of that changed in 2020 when he came before the District Court of South Australia for sentencing for the commission of offences described as (1) carry an offensive weapon; and (2) arson of building or motor vehicle. Those offences were committed in April 2018 and November 2019. The South Australian District Court, per His Honour Judge Durrant sentenced the Applicant for both of those offences.
A coherent understanding of the factual circumstances surrounding the commission of both of these offences can be taken from Judge Durrant’s sentencing remarks. The first of those two very serious offences involved a conviction for arson. In His Honour’s sentencing remarks, Judge Durrant said the following:
“As to the circumstances of the more serious offending, the arson charge, at or about 4 p.m. on 29 November 2019 you used a blanket and a cigarette lighter to start the fire at your Housing SA home in [suburb redacted]. The fire caused significant damage to every room of the house.
Police found you standing at the front porch and you made immediate admissions.
Your counsel has told me that you had been using meth constantly for several weeks leading up to the arson and that you were in a state of serious drug induced psychosis, you had not slept in weeks with and were hearing voices constantly.
A report provided to the court dated 27 January 2020, from psychiatrist Dr Raeside records that you told him that you believed the voices were threatening you and that they posed a risk to both your life and your long-term partner's life. You said that the voices had told you that they were going to kill you both. You told Dr Raeside you started the fire to force Housing SA to move you both to another residence away from the voices and dangers at the [suburb redacted] house. Your fears were part of ongoing delusions and psychosis consequent upon your methylamphetamine use. You told Dr Raeside that had your partner been home you would not have started the fire. You also told him that you took time to get your animals, a dog and cat, out of the house and you had intended to put the fire out but were unable to do so”[18]
[18] Exhibit G1, G14, pages 71–72.
The second of the two very serious offences relates to the Applicant’s conviction for carrying an offensive weapon. The circumstances of that offending were also addressed by Judge Durrant in his sentencing remarks:
“As to the circumstances of the offence on 9 April 2018, the carrying of an offensive weapon, you were observed on CCTV footage by police outside the [suburb redacted] Police Station holding and waving around a large knife. You were suffering from a drug induced psychosis which made you believe that the voices in your head were going to kill you and your partner and that you needed the knife for your personal protection. Police confronted you with a taser and you complied with their directions to drop the knife. Police noted that you were rambling incoherently and appeared to be under the influence of drugs or suffering from a form of psychosis. You were subsequently detained under the Mental Health Act.”[19]
Application of factors in Paragraph 13.1.1(1) of the Direction
[19] Ibid, page 71.
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors is:
(a)…
(b)…
(c)…
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)…
(i)…
As an initial exercise, it is necessary to have regard to the terms of Paragraph 13.1.1(1) of the Direction. It relevantly provides that “[i]n considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including: …” [My underlining] The use of the word “including” is significant because, to my mind, it is indicative that the list of factors appearing at paragraph 13.1.1 after its introductory pre-amble are not to be regarded as exhaustive. That is to say, the specific types of categories of offending conduct described in sub-paragraphs (a)–(i) (inclusive) should not be viewed as a complete statement of the types of criminal conduct upon which an assessment of the nature and seriousness of that conduct can be made.
The Applicant’s respective offences of (1) carry offensive weapon; and (2) arson are, to my mind, particularly significant and critically important aspects of his offending in terms of the exercise required by paragraph 13.1.1(1) of the Direction. While the unlawful activity culminating in his respective convictions for these two offences did not occur over any significant period of time, their actual and potential impact could have, and with specific reference to the arson offence, actually did cause very significant harm to the Australian community.
The arson offence involved the destruction of what is, in essence, a public asset. That is to say, the Applicant sought to destroy a residence provided to his former partner from resources sourced from the South Australian public. It was not the former partner’s house, it was a house that had been allocated to her by Housing South Australia. It was certainly not his asset in whole or in part to destroy. Further, the beneficial recipient of this housing was not the Applicant. It was Ms V H.
The other very significant aspect of arson committed upon a structure as large as a typical suburban home is that damage to nearby properties can also readily result. As Judge Durant observed in His Honour’s sentencing remarks:
“As to the circumstances of the more serious offending, the arson charge, at or about 4 p.m. on 29 November 2019 you used a blanket and a cigarette lighter to start the fire at your Housing SA home in [suburb redacted]. The fire caused significant damage to every room of the house.
[…]
It was extremely fortunate that no persons were in the house and that the fire did not spread to any neighbouring properties. It should also not be overlooked that the property was leased from Housing SA. You destroyed a public asset and in doing so deprived other persons of the benefit of the limited pool of public housing available in this State.”[20]
[20] Ibid, G14 , pages 71, 73.
While perhaps not having the same level of generalised potential for harm that is represented by the purported or actual destruction of an entire suburban residential dwelling, the Applicant’s conduct involving the carrying of an offensive weapon and waving it around in a public space is still redolent of a capacity to significantly injure others. In observing the Applicant waving the large knife around, the police did not simply ask him to “move along” or go about his business. They were sufficiently concerned about his conduct to (1) physically impose themselves into the situation; and (2) to do so by presentation of a taser.
The Applicant’s conduct was exacerbated by him being under the influence of illicit drugs which in turn induced a belief in him that he was in some kind of danger. While Judge Durrant did not consider this offence to be at the same level of seriousness as the arson conduct, His Honour nevertheless said:
“I will first deal with the offence of carrying an offensive weapon. You were under the influence of drugs which induced a belief that you were in danger. You did comply with police direction despite your psychotic state and I do not consider the circumstances of your offending to be at the most serious end of the spectrum. The maximum penalty for carrying an offence weapon is a fine of $2,500 or six months imprisonment.”[21]
[21] Ibid, G14, page 73.
I am of the view (and I find) that the Applicant’s offence of carrying an offensive weapon should be regarded as serious. This conduct occurred in a public place and in circumstances where the Applicant’s capacity to control any dangerously impulsive conduct to inflict harm on members of the public was severely impeded by him being in a drug-induced psychosis at that time. It is significant that the police sought to intervene in the incident by way of a taser. It is clear the police felt compelled to do so because they held an apprehension that the Applicant’s conduct represented a genuine risk of harm to members of the public.
Likewise, I am of the view (and I find) that the Applicant’s conduct constituting the offence of arson must also be viewed as serious. This offending is significant because (1) it resulted in the destruction (in whole or in part) of a public housing asset that the community had provided to another person for housing purposes; (2) the subject residence did not belong to the Applicant and he had absolutely no right to seek to cause its destruction in whole or in part; and (3) a fire involving a structure as large as a typical suburban residence gives rise to a very real risk of damage to neighbouring properties and a realistic risk of potential injury or death to nearby residents or others who find themselves within the vicinity of the fire.
To my mind, the Respondent has correctly categorised these two offences as, collectively, very serious:
“For both offences, Judge Durrant determined that a term of imprisonment was appropriate, despite the applicant's plea of guilty. His Honour described both offences as serious, and said that the applicant's offending was 'very serious', but also referred to the arson offence as 'the more serious offending'.”[22]
[22] Exhibit R3, page 12, paragraph [61].
I respectfully concur with the further comments of Judge Durrant when sentencing the Applicant:
“[Applicant], there is no escaping that your offending is very serious. Your personal circumstances and the circumstances of your offending are not sufficient to persuade me to suspend your sentence.”[23]
[23] Exhibit G1, G14, page 74.
I am thus of the view that the Applicant’s most recent two offences involving his carriage of an offensive weapon and arson do comprise offences with the potential for harmful effects on the lives of others in our community. Viewed together, these two most recent offences must be viewed as “very serious”. Further, when his previous offending, albeit not to the same level of seriousness as the two most recent offences, is conjoined with the totality of all of his past offending, both in Australia and New Zealand, the only finding can be that the entirety of the Applicant’s offending history must be found to be “very serious”.
I turn now to an application of the relevant factors contained in paragraph 13.1.1(1) of the Direction as they apply to the Applicant’s offending history.
Sub-paragraphs (a) and (b) of paragraph 13.1.1(1) of the Direction respectively provide that (a) that crimes of a violent and/or sexual nature are viewed very seriously; and (b) crimes of a violent nature against women and/or children are also viewed very seriously. I have carefully reviewed the totality of the Applicant’s offending history both here and in New Zealand. The totality of that history does not contain any reference to an actual conviction for violent and/or sexual criminal offending against any woman or child.
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction provides that “crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious.” While the Applicant’s criminal history has repeated references to the Applicant failing to respect, for example, applicable laws and regulations governing the ownership and operation of a motor vehicle, there is no specific instance of him challenging the actual imposition of that authority on him by a person having lawful authority to do so. There is no example of an offence where he physically or otherwise purports to resist the imposition of lawful authority upon him. Likewise, it cannot be safely found that his offending has involved offences directly committed against elderly, disabled, or vulnerable members of the Australian community.

That said, it should be kept in mind that the Applicant’s arson conduct involved the occasioning of substantial damage to the residential dwelling provided to Ms V H via the relevant public housing instrumentality in South Australia. Ms V H, on her own evidence, is not a well person. She speaks of suffering from the following conditions:
“I suffer lung cancer, bowel cancer and heart disease and [the Applicant] has been my carer for the last 16 years and I really depend on [the Applicant] for my everyday needs […]”[24]
[24] Exhibit A4.
It would be inaccurate and unkind to suggest Ms V H is an elderly member of our community. However, it could be reasonably suggested that she is a “vulnerable” member of the community due to (1) the medical conditions from which she suffers; (2) the extent she says she relies on the Applicant as her “carer”; and (3) her difficult financial circumstances, reliant as she is on the provision of public housing as her sole means of providing a roof over her head.
Having regard to the totality of the evidence, I am hesitant to apply the provisions of this sub-paragraph (c) to the indicia of the Applicant’s offending for the assessment exercise required by paragraph 13.1.1(1) of the Direction. Although directly impacted by Applicant’s arson, it would, to my mind, be unsafe to extend the ambit of that conduct to Ms V H such that she could now be said to be a “vulnerable member of the community” directly impacted by the Applicant’s offending. As best as I understood the material, Ms V H was not the complainant behind the arson charge and there is certainly no reference to her as a victim of that arson in the sentencing remarks of Judge Durrant. Accordingly, and fortuitously for the Applicant, this sub-paragraph (c) is not engaged by the Applicant’s offending.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. It is well-settled that the imposition of a custodial term is regarded as the last resort[25] in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.[26]
[25] See Saleh and Minister for Immigration and Border Protection [2017] AATA 367.
[26] See PNLB and Minister for Immigration and Border Protection [2018] AATA 162.
As mentioned earlier, the Applicant’s history of criminal (and other) offending in Australia discloses the commission of some 32 offences dealt with across 15 separate sentencing episodes. His history in New Zealand comprises the commission of seven traffic offences dealt with across several sentencing episodes plus nine criminal offences dealt with across eight sentencing episodes. The New Zealand history refers to the imposition of different types of sentences (other than fines and driving disqualifications). First, there are three instances of “non-residential periodic detention”. Second, there are two instances of contingent-type sentencing described as “convicted and sentenced : to come up for sentence if called upon”. And third, there is a sentence described as “convicted and sentenced : corrective training – 27/01/08 – 3 months – standard release conditions”.
His history in Australia refers to the imposition of four weeks of custodial time in July 2013, two years, four months and 24 days of custodial time for the arson offence punished on 3 August 2020; and an additional custodial sentence of two months and 12 days for the carry an offensive weapon conviction punished on 3 August 2020.
While it can be accepted that the Applicant’s sentencing history in Australia and New Zealand is not dominated by the imposition of custodial terms, it can nevertheless be safely found that (1) his offending in New Zealand did involve the imposition of purportedly custodial terms on at least three occasions across the totality of 11 sentencing episodes in that country (that is, for both traffic and criminal offending); and (2) his offending in Australia while not predominated by custodial terms for the first 28 offences he committed, his 31^st and 32^nd offences (arson and carry an offensive weapon) were punished by approximately two years and seven months of cumulative custodial time.
I am therefore of the view that the totality of the sentencing regimes imposed upon the Applicant in both Australia and New Zealand very strongly militate in favour of a finding that his offending has been very serious.
Sub-paragraph (e) of paragraph 13.1.1(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 task involving the allocation of any weight to this sub-paragraph (e) largely mirrors that required in relation to the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.
At the risk of repeating myself, this Applicant has committed 32 offences (including traffic offences) in Australia across an offending history that runs from March 1996 to August 2020. This equates to greater than one offence per year. In New Zealand, he has committed approximately 15 offences during an offending period that runs from January 1986 to mid-1990. This equates to approximately four offences per year. Taking into account his offending history in Australia, the Applicant had, until his removal from the Australian community in November 2019, been in this country for approximately 25 years. Little can be said against the contention that his commission of 32 offences in this country during that time means that his offending in this country has been obviously frequent. The weight I allocate (against the Applicant) for this frequency of offending towards this sub-paragraph (e) is primarily predicated upon the frequency of the Applicant’s offending in Australia. I am mindful of his offending history in New Zealand but out of an abundance of caution, I allocate a slightly lower level of weight (against the Applicant) to his frequency of offending in that country pursuant to this sub-paragraph (e).
The next element of this sub-paragraph (e) refers to any detectable trend of increasing seriousness in the Applicant’s offending. Earlier in these reasons, I have alluded to three definable “phases” in the Applicant’s offending history. They comprised:
·his first three convictions in Australia for involving the abovementioned “Fail to pay taxi fare”; “Larceny”; and “Possess equipment to administer Cannabis” dealt with between 25 March and 30 August 1996. No custodial terms were imposed for that offending.
·his 27 convictions involving the ownership, use and/or operation of a motor vehicle imposed upon him at sentencing episodes commencing on 16 January 2001 and ending on 3 July 2013. One custodial term was imposed for the commission of one of these offences, details of which comprise:
o3 July 2013 – Christies Beach Magistrate’s Court – “Drive under disqualification or suspension” – convicted and sentenced to four weeks imprisonment (wholly suspended for 6 months; released on a $500 bond).
·his two convictions for his most serious offences that can be summarised as follows:
o3 August 2020 – District Court of South Australia – “Carry an offensive weapon” – convicted and sentenced to two months and 12 days imprisonment;
o3 August 2020 – District Court of South Australia – “Arson of building or motor vehicle” – convicted and sentenced to two years, four months and 24 days imprisonment.
It is, to my mind, very difficult for the Applicant to cavil with the finding that the third phase of his offending in Australia involves offences that are demonstrably much more serious than the offences he committed during the first two phases. While it can be accepted that offences of irresponsible and dangerous use and ownership of a motor vehicle do present a genuine risk of serious harm to members of the Australian community, the Applicant’s history of traffic offending more involves an abject failure to attend to the primarily administrative aspects attaching to driving privileges than convictions for dangerous driving and/or hooning-type offences. Rather, he repeatedly failed to register, insure, or meet other “codes of practice” or requirements governing his right to operate a motor vehicle on Australian public roads.
A similar finding can be made for the offences in his first phase of offending in Australia for a failure to pay a taxi fare, and possession of equipment to administer cannabis. The conviction for larceny cannot have involved any serious factual circumstances because it was punished by a fine of $50. However, the third and final phase involving his convictions for arson and carrying an offensive weapon are doubtless the most serious of his offences in Australia, and are demonstrative of a trend of increasing seriousness in his offending committed in this country.
I have found that the Applicant’s offending in Australia (and New Zealand) has been frequent. I have also found that his offending in Australia committed across three phases is demonstrative of a clearly discernible increase in the trend of its seriousness. An application of this sub-paragraph (e) leads to a safe finding that the frequency and increasing seriousness of the Applicant’s offending both strongly militate in favour of a finding that his offending has been of a very serious nature.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending. Several cumulative effects can be gleaned from the Applicant’s offending history. Those several aspects may be stated and analysed as follows.
First, it is very difficult to accept that the Applicant has experienced any deterrent or other similar effect resulting from sentences that have previously been imposed upon him. He has had the benefit of a graduated, non-custodial regime of sentencing. In terms of his sentencing history in Australia, he has committed 32 offences. The first 28 of those offences were all punished by non-custodial means such as fines, disqualification of his driving privileges, community service, and a custodial sentence fully suspended upon his entering into a bond in the sum of $500 having an operative period of six months. But not even this brief “taste” of a custodial term was enough to dissuade the Applicant from further offending. Indeed, his 32^nd (arson) and 31^st (carry an offensive weapon) offences are his most serious in terms of their immediate potential to cause very serious harm to members of the Australian community. Those two latter offences were punished by a cumulative custodial term of something in the order of two years and seven months. Therefore, I am hard-pressed to understand how the Applicant has experienced any deterrent effect from punishments that have been imposed upon him across the approximately 23–24 years of his offending history.
Second, analogous to a failure to experience any deterrent effect from a sentencing regime is the reality that this Applicant does not appear to have developed any level of respect for the lawful authority of both this country and that of New Zealand. While it may be said that his offending in New Zealand was committed in his more youthful years where, perhaps, youthful indiscretion may be, albeit trite, an excuse for offending. The situation is starkly different in Australia. It is also trite to suggest that much of his early offending in Australia involves the ownership, use and control of a motor vehicle. To minimise his offending on that basis is to miss the point. It is not simply that the Applicant has failed to follow the laws and regulations relating to motor vehicles. In so doing, he has abjectly failed to comprehend the significant level of harm that may be occasioned on members of the community through the intentional/deliberate mis-use of a motor vehicle including a failure to meet the administrative requirements relating to it such as, for example, registration and payment of insurance. His offending in this realm is so consistent such as to be beyond excuse and logical explanation.
The more concerning aspect of this second cumulative effect of his offending, is that his lack of respect for lawful authority now seems to have extended to a refusal to accept the rights of others to their own accommodation and the right of the community – via its public housing instrumentality – to provide proper accommodation and shelter for those who are not able to afford it. When he committed the arson offence, he failed to consider (1) that he was destroying Ms V H’s place of residence and thus depriving her of somewhere to live; and (2) not only was he directly affecting Ms V H’s life, he was directly repudiating the community’s intention to provide for those less fortunate members of its membership who cannot afford adequate housing and who rely on publicly funded instrumentalities for that housing. To my mind, the Applicant’s historical refusal to yield to the authority represented by the laws and regulations governing our community is another, and very adverse, cumulative effect of his repeated offending.
Third, the Applicant’s difficulties with (initially) alcohol and then methylamphetamine have resulted in a disorientation of his moral compass such that his behaviour has resulted in his alienation from the lives of his three children. I will, of course, discuss and analyse the best interests of the Applicant’s minor children later in these reasons. Suffice it to say for this sub-paragraph (f) that a cumulative effect of the Applicant’s offending since at least the mid-2000’s has been to cause external authorities to intervene in the circumstances of his family life with the result that the three children have been placed in foster care. While Ms V H may now speak of some measure of reliance she apparently has on the Applicant as her “carer”, the misgivings I have with that evidence arise from its self-serving nature and from the reality that a ban has been placed on the Applicant co-habiting with Ms V H in any publicly funded residential housing. This cumulative effect of his offending is not a recent construct. It has been happening since the mid-2000’s and he has done almost nothing to re-focus his life on those people (Ms V H and their children) who have every right to expect responsible support and sustenance from him.
I am of the view (and I find) that the cumulative effect of the nature and extent of the Applicant’s repeated offending attracts application of this sub-paragraph (f) in favour of a finding that his offending – in its totality – has been of a very serious nature.
Sub-paragraph (g) of paragraph 13.1.1(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 material discloses at least one instance where upon re-entry into Australia, the Applicant failed to disclose his criminal convictions in this country.
While not propounded in the Respondent’s amended Statement of Facts Issues and Contentions (“amended SFIC”), the movement records confirm that the Applicant departed Australia on 31 March 2005 and returned about a couple of weeks later on 14 April 2005.[27] Upon re-entering Australia, the Applicant completed the usual and necessary “incoming passenger card”.[28] That incoming passenger card demanded the following from the Applicant: “Do you have any criminal conviction/s?”, to which the Applicant responded with an ‘X’ next to the “No” response. As at April 2005, the Applicant had committed some 27 offences in Australia. Twenty-four of those offences related to convictions for the ownership, management and/or control of a motor vehicle. The remaining three offences comprised “fail to pay taxi fare”, “larceny” and “possess equipment to administer cannabis”.
[27] Exhibit G1, G16, page 77.
[28] Exhibit G1, G15, page 75.
Further, the Applicant had criminal convictions in New Zealand relating to both motor vehicle offences as well as offences in relation to illicit drugs including “possession of cannabis”, “burgles (Oth Prop)(Over $5000) By Day” and “Possession Seeds”. In his representations made to the Respondent in support of his request for the revocation of the mandatory cancellation of his visa, the Applicant provided a copy of the relevant incoming passenger card and at the foot of that photocopy wrote the following words:
“To whom it may Concern, I [name redacted] simply forgot that I had a criminal convictions back in 2005 as it was many years ago could not remember at that time. I forgot to declare it so sorry. [signed] 7/10/202[0]”[29]
[29] Ibid, G5, page 53.
The Applicant’s frank and forthright acknowledgment of the error in the passenger card is to be respected. That said, it is difficult to find any ameliorating factor behind his apparent forgetfulness about his relatively lengthy history (by April 2005) that he had compiled in both Australia and New Zealand. His asserted forgetfulness should be rejected because, at that time, he had most recently been sentenced in July 2004 in Australia. This is less than a year before he erroneously completed the incoming passenger card. There is no ameliorating factor such as, for example, the Applicant feeling emotionally disoriented as a result of a recent bereavement or the loss of employment or some other adverse event. He says he simply forgot about the approximately 25 offences he had committed in Australia by that time, and the 16 offences he had committed in New Zealand.
I therefore find that significant weight can be allocated to this sub-paragraph (g) towards a finding that the totality of the Applicant’s unlawful conduct has been very serious.
Sub-paragraph (h) of paragraph 13.1.1(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. I am not able to locate any such letter or similar communication containing any formal or other warning from the Respondent or any other element of lawful authority putting the Applicant on notice that future offending would imperil his visa status to remain in Australia. This sub-paragraph (h) is not relevant to determination of the instant application.
Sub-paragraph (i) of paragraph 13.1.1(1) of the Direction refers to a non-citizen who has committed a crime while in immigration detention in Australia. The material does not contain any reference to the Applicant’s commission of a crime while in immigration detention. This sub-paragraph (i) is not relevant to the determination of the instant application.
While the Applicant’s above-mentioned conduct in the domestic environment of Ms V H and their children may not be strictly captured by the ambit of sub-paragraphs (a), (b) and (c), it does, to my mind, fall within the “other conduct” referable to the chapeau to the factors at paragraph 13.1.1 of the Direction. It reads as follows:
“(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including: …”
[My underlining]
The first element or component of the Applicant’s behaviour or conduct that I did not consider fell within the ambit of any of the abovementioned sub-paragraphs related to his conduct towards Ms V H in a domestic context. In the material there is a certain “bail enquiry report” prepared by the Department of Correctional Services in South Australia. The date of the report is 5 December 2019.[30] One of the specific headings in the report refers to “Domestic Violence”. The following commentary appears under that heading:
“DOMESTIC VIOLENCE
Previously a domestic violence intervention order was issued protecting [Ms V H] from the defendant but this has since been revoked (JSI indicates it was Issued 24/12/2018 - revoked 14/02/2019). The defendant has past apprehension for alleged assaults against [Ms V H] but these do not appear to have resulted in conviction.
[Ms V H] is known to DCS and has past apprehensions for allegedly assaulting the defendant, indicating possible violence from both partners in the relationship.”[31]
[30] Exhibit R2, pages 9–10.
[31] Ibid, page 9.

The material also contains reference to a “Home detention order suitability report” again prepared by the South Australian Department of Correctional Services. That report is dated 15 June 2020 and contains certain commentary under the heading “The main areas of criminogenic need to be addressed through supervision are”. That commentary refers to the children’s exposure to domestic violence issues between the Applicant and Ms V H:
“Whilst the defendant maintains that the offence was committed due to his drug use and the impact that this had upon his mental health, it is noted that there is an extensive domestic violence history between the defendant and his partner. Over the years, there has been significant concerns noted, however, it is acknowledged that these have not resulted in any convictions. The defendant and [Ms V H] have three children together who, in 2007, were placed under Guardianship orders until their eighteenth birthdays due to the children’s exposure to domestic abuse among other concerns. The defendant did admit to previously perpetrating domestic abuse towards [Ms V H], however, he stated that this is no longer a feature of their relationship and does not believe that he needs to engage in any men’s stopping violence programs. Nevertheless, this requires further exploration and consideration when considering the risk and criminogenic needs which will need to be addressed through supervision.”[32]
[32] Exhibit R2, pages 2–3.
Dr Craig Raeside is a forensic psychiatrist who examined and reported upon the Applicant in relation to his sentencing hearing before Judge Durrant in August 2020. In his report, Dr Raeside does not make any specific findings or observations about any domestic violence history but did observe that (1) the Applicant told him that his relationship with Ms V H had been “up and down”; (2) the relationship was an intermittent one; and (3) the Applicant had lived with another female:
“[The Applicant] reported only the one significant relationship of over 15 years to his ex-partner with her own mental health problems, However, he acknowledged the relationship had been "up and down". I note that he was only living with her intermittently and at times living with another female friend as well. He said that at the time of the fire his partner was an inpatient in the [name of Centre redacted] and was not home. Upon my questioning he acknowledged that he would not have burned the house down If she was at home because "she would have told me to snap out of it and I probably would have listened to her".”[33]
[33] Exhibit R2, page 25
Of further reference to the likely impact of the Applicant’s domestically violent conduct towards Ms V H, is the reality that Housing South Australia have barred him from co-habiting with Ms V H in a Housing South Australia property. The following transpired in the Applicant’s cross-examination. None of that evidence speaks well about the nature of their past relationship nor does it bode well in terms of any future relationship they may now say they have:
“Mr Sharpe: Okay. Now, do you recall when you were in prison that the Department of Correctional Services was making inquiries about where it was that you may be able to live if you were permitted to leave prison; do you recall that?
Applicant: Yes, I do. I had trouble finding a place.
Mr Sharpe: Then - it’s the case, isn’t it, that you’re not able to live with [Ms V H]. Do you accept that?
Applicant: Not at that stage. I’m - [Ms V H has] inquired about it, they wanted me to do the programs if I’m ever going back to live with her. They want me to join programs.
Mr Sharpe: And when you say “they” you mean South Australia Housing; is that right?
Applicant: That’s correct.
Mr Sharpe: Because at the moment they’ve barred you from living in South Australia housing premises?
Applicant: Yes, I know.
Mr Sharpe: And that’s because of what you did by setting - in setting the fire at [Ms V H’s] previous residence?
Applicant: Yes, they’ve barred me but they’ve also put me on category 1 for housing too. I’m on category 1.”[34]
[34] Transcript, page 26, lines 36–47; page 27, lines 1–7.
Thus, while the Applicant does not have convictions for breaches of any domestic violence order, there is nevertheless reliable evidence that (1) a domestic violence intervention order was made against him on 24 December 2018 but then revoked on 14 February 2019; (2) at least some of his past domestically violent conduct occurred in the presence of the children in the mid-to-late 2000’s; (3) Dr Raeside observed that the relationship between the Applicant and Ms V H was “up and down” resulting in him “at times living with another female friend […]”; and (4) the Applicant’s arson of the subject dwelling has been such to cause Housing South Australia to preclude him from co-habiting with Ms V H in any Housing South Australia publicly funded dwelling.
Having regard to the totality of this evidence and bearing in mind that the Applicant does not have convictions for breaches of domestic violence orders, I am nevertheless of the view that the totality of the Applicant’s conduct in a domestic context with Ms V H and their children is such as to attract operation of the chapeau to paragraph 13.1.1(1) of the Direction as a basis for characterising the nature of the Applicant’s offending as very serious.
A second element of the Applicant’s other conduct referable to the chapeau involves the impact of his arson offending on the circumstances of Ms V H. As I have mentioned earlier, I have not allocated any weight contrary to the Applicant’s interests pursuant to the abovementioned sub-paragraph (c) on the basis that I was not of the view that Ms V H comprised an elderly or disabled person who necessarily fell within the definition of “vulnerable members of the community” for the purposes of that sub-paragraph.
However, the reality of the Applicant’s conduct is that he has adversely affected the interests of Ms V H. There is no requirement to re-state the serious medical conditions confronting Ms V H. She is clearly not a well woman. She has spoken of relying upon the Applicant as her “carer” and this evidence should, in my opinion, be taken at face value because her health difficulties and challenges mean she clearly needs all the help she can get to deal with those problems. The effect of the Applicant’s conduct in destroying – in whole or in part – the residential dwelling allocated to Ms V H added to her difficulties by depriving her of somewhere to live and thus compelling her to unnecessarily relocate.
The further difficulty the Applicant’s arson offending created for Ms V H is to deprive her of the “carer” she needs the Applicant to be. As mentioned, Housing South Australia have barred the Applicant from co-habiting with Ms V H in any publicly funded residential facility. While it might be said this difficulty could be obviated by him and her finding alternate private lodgings, the reality is that neither of them can afford any such private residential arrangements. They both require publicly funded housing for their shelter. His conduct means that her difficulties are only worsened by the reality that he cannot act as her carer on a 24 hours a day, seven day a week basis.
While the impact of the Applicant’s arson offending on Ms V H has not necessarily been committed upon a “vulnerable person” falling within the ambit of sub-paragraph (c), I am nevertheless of the view that the above-stated effects of the Applicant’s arson offending upon her have caused and will cause her ongoing difficulties into the future. His conduct in destroying her place of residence very likely increased the extent of her difficulties in dealing with her health challenges until she was relocated to a new Housing South Australia dwelling.[35] This conduct and its impact upon Ms V H is, in my view, “other conduct” falling within the ambit of the chapeau such that it can now be taken into account to support a finding that the Applicant’s conduct has been of a very serious nature.
[35] Transcript, page 47, lines 41–45.
Having regard to the totality of the evidence to which the abovementioned relevant sub‑paragraphs (d), (e), (f) and (g) together with the chapeau of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the totality of the Applicant’s offending, both in Australia and New Zealand, can be readily characterised as “very serious”.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
(i)paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non‑citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
While it may be said that prior to his two most recent and very serious offences (arson and carrying offensive weapon), the Applicant’s offending was not at the same level of seriousness as his earlier offending, it cannot be safely suggested or found that were he to re-commit that earlier offending the nature of the harm to individuals or the Australian community will be any less severe than if he had only committed his two most recent and very serious offences.
Obviously, setting fire to a residential dwelling carries with it a potentially catastrophic risk to people within the dwelling and those nearby as well. Similarly, were things to go awry with the Applicant swinging a large knife above his head in a public place, it is not a stretch to suggest that extremely serious and even catastrophic outcomes could result from that conduct. Be that as it may, the Applicant’s persistently committed offending in the realm of ownership and use of a motor vehicle also carries serious risks to members of the Australian community, were he to re-offend in this way.
The operation of an unregistered vehicle by an unlicensed driver on a public road gives rise to a not insignificant nature of harm to other road users. Motor vehicles are required to be registered for a specific reason. Registration of a vehicle provides some measure of certainty that the vehicle is both roadworthy and otherwise properly insured for the purposes of compulsory or licensed third party insurance cover for other road users. If a vehicle’s registration is not current, the risk to other road users is that any personal injury suffered by third parties resulting from the use or operation of that vehicle may not be indemnified by a licensed insurer.
Similarly, drivers of motor vehicles are required to be licensed to drive and operate those vehicles, also for a specific reason. Vehicles that are driven by unlicensed drivers imperil insurance coverage for those vehicles in the event property damage or personal injury loss to third parties results from their use. A member of the public who has suffered loss as a result of damage caused by either an unregistered vehicle or a vehicle driven by an unlicensed driver may very well have no recourse against a licensed or other insurer to recover such loss. The only recourse may be against a person of limited financial means such as the Applicant.
Paragraph 6.3(4) of the Direction stipulates that decision-makers should be guided by the principle that criminal offending and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. I find that members of the Australian community would regard this Applicant’s offending history – particularly the arson offence and the carry offensive weapon offence – as so serious that they would refuse to accept any risk of its recurrence. The Applicant spoke of being given a “second chance” to re-establish himself in the community.
The difficulty with this request or contention is that he has been afforded a significant level of community health resources to rehabilitate himself from a predisposition to abuse illicit substances that have caused him to enter a state of drug induced psychosis which, in turn, has been a recent cause of his serious offending. Similarly, he cannot rely on simple good luck and fortunate outcomes where he wantonly waves a large knife over his head in a public space but fails to connect with anyone. Or, where his conduct results in the partial or complete destruction of a residential dwelling. It would be an unfair impost on the Australian community to afford the Applicant such a second chance on the basis that providence and sheer good luck will again intervene to prevent the same or significantly more serious, and quite likely catastrophic, outcomes in the event of his future offending.
In its amended SFIC, the Respondent makes the following submissions about the nature of harm resulting from further offending by the Applicant:
“64. The incidents in which the applicant committed the offences of arson and carry an offensive weapon demonstrate that the community would be at risk of a range of harm from the applicant if he again suffers a drug induced psychosis. The community would be at risk of further property damage, and potential physical harm. Judge Durrant described the applicant being 'outside the Christies Beach Police Station holding and waving around a large knife' and 'rambling incoherently'. Further conduct like that has the risk of creating significant psychological harm within the community.
65. If the applicant were permitted to remain in Australia there would also be the risk of further domestic violence in the applicant's relationship with [Ms V H], or in other close personal relationships.”[36]
[36] Exhibit R3, page 12.
During closing submissions, the Respondent’s representative made the, to my mind, convincing contention that a comprehension of the nature of the harm that could result from the Applicant’s future offending ought not be limited to harm that could result from a similar act of arson or carrying an offensive weapon:
“And if he were to offend again, then the type of offences he might engage in could be reflected – or could be consistent with things he’s done in the past: carrying an offensive weapon, and potentially even going to arson again. But really, those offences are just an example of the offences that could be committed while the applicant is in that state of drug-induced psychosis.”[37]
[37] Transcript, page 58, lines 43–46; page 59, lines 1–2.
On the basis of this paragraph 6.3(4), I think the Respondent’s abovementioned submissions – written and oral – about the nature of harm resulting from the Applicant’s further criminal or other serious conduct are correctly made. Were the Applicant to re-offend in a similar way, there is, to my mind, an unresolved and convincing likelihood that his offending will result in very significant physical, emotional and/or financial harm to a quite realistically catastrophic level. It is therefore reasonable and safe to find that the potential consequences flowing from further similar or identical offending by this Applicant would be, at the very least, serious and, more likely, very serious.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The respective contentions about recidivism
In his written material, the Applicant speaks of no longer representing a threat to the community, both in terms of committing further traffic or driving offences and in terms of offending while under the influence of methylamphetamine. With specific reference to no longer being at risk of committing further driving offences, the Applicant said:
“I don't drive anymore due to the fact that I [sic] blind in my left eye which means I will never get another driving charge again.”[38]
[38] Exhibit A1, first page of handwritten statement.
With reference to his risk of further offending while under the influence of illicit substances he said:
“It's the first time I ever taken methylamphetamines and I intend to be abstinent from all drugs in the future. I do not have an addiction for it, it was peer pressure that got me into it I suffered a form of psychosis. I tryed to seek help through the mental health There are many programs that can help me I need to be given a second chance so I can prove to the community and family that I am not a threat and can be helped. I should be allowed to finish my parole here in the community here in australia as a testing time for me. I told my lawyer I was on the drug Ice for three years but when I think back now it was only a year. I am so very sorry for what I done. I lit a mattress inside the house me and my partner shared. I didn't go from room to room lighting fires. I didn't use petrol I didn't do it for money and most of all I didn't hurt or harm anyone. I am very remorseful for what I've done.”[39]
[Errors in original]
[39] Ibid, second page of handwritten statement.
In its amended SFIC, the Respondent makes the following contentions:
“70. Overall, the respondent contends that the information before the Tribunal is unable to support a positive finding regarding the likelihood of rehabilitation.
71. The respondent contends that the Tribunal should find that there is a real risk of the applicant returning to the use of drugs if allowed to return to the community, and that this risk leads to a real risk of him again suffering drug induced psychosis and committing further offences.”[40]
The medical evidence contemporaneous with the Applicant’s offending in April 2018 (carry offensive weapon) and November 2019 (arson)
[40] Exhibit R3, page 13.
To my mind, the best and most reliable analysis of the Applicant's future risk of re-offending can be found in the medical and other evidence contemporaneous with his most recent, and by far his most serious, offences committed, respectively, in April 2018 and November 2019. The former of those two offences committed in April 2018 saw him convicted for the offence of carrying an offensive weapon. When this offence is viewed in the context of his previous offending, it may, at first blush, appear to be conduct dissimilar to the Applicant's previous conduct resulting in his earlier convictions. But this would be to misconstrue the evidence.
His conduct in carrying either offensive weapons or other implements capable of causing harm is not isolated conduct. In his report, Dr Raeside noted that the Applicant “[…] would walk around with a baseball bat or butcher knife but reportedly had never acted aggressively whilst under the influence.”[41] While Dr Raeside may speak of the Applicant not acting aggressively whilst under the influence of illicit substances, it is not unreasonable to suggest that his carriage of a baseball bat or a butcher’s knife is nevertheless suggestive of the potential for the Applicant occasioning some measure of psychological or other harm to members of the community.
[41] Exhibit R2, page 22.
This was clearly the apprehension held by the South Australian Police in April 2018. When they saw the Applicant waving a large knife around his head in a public space, they felt compelled to intervene by way of confronting the Applicant with a taser as a means of securing his compliance with their request that he immediately drop that knife. The motivation behind the intervention of the police into this conduct was clearly predicated on a concern they had for the safety of members of the community in the immediate vicinity of the Applicant because they noticed the Applicant was “rambling incoherently” and otherwise appeared to be “under the influence of drugs or suffering from a form of psychosis”.[42]
[42] Exhibit G1, G14, page 71.

In 2003, this Tribunal said that in considering weight attributable to this Primary Consideration C, one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[74]
[74] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] (per DP Block).
In 2017, Deputy President Forgie of this Tribunal considered that paragraph 13.3(1) of the Direction leads a decision-maker to:[75]
“102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…”
[My underlining]
[75] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
This more circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection (“YNQY”):[76]
“In substance this consideration is adverse to any applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes.”
[My underlining]
[76] [2017] FCA 1466 at [76]–[77].
The learned Justice Mortimer also thought the last two sentences of paragraph 13.3 of the Direction:
“…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…”
[My underlining]
In Afu v Minister for Home Affairs (“Afu”),[77] Justice Bromwich said:
“The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.”
[My underlining]
[77] [2018] FCA 1311 at [85].
In FYBR v Minister for Home Affairs (“FYBR”),[78] Justice Perry observed that:
“It follows, in line with the authorities, that cl 11.3 of Direction 65[79] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, 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. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...” [80]
[My underlining]
[78]      [2019] FCA 500.
[79]      Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
[80]      FYBR, paragraph [42] (Perry J).
The single judge decision in FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld the single judge decision in FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian community.[81]
[81] See FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authorities of YNQY and Afu establish that:
(a)the “expectations of the Australian community” cannot be measured or determined as in the case of a provable fact. Rather, it is an assessment of community values made on behalf of that community;[82]
(b)it is not for the Tribunal to determine for itself what such “expectations” are by reference to the Applicant’s circumstances or evidence about those expectations;[83]
(c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks the “expectations of the Australian community” are, and the Tribunal should have due regard of those statements, if made;[84]
(d)in assessing the weight attributable to this Primary Consideration C, decision‑makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision-maker.[85]
Analysis – Allocation of Weight to this Primary Consideration C
[82]      Afu at paragraph [85].
[83]      FYBR at paragraph [42].
[84]      FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[85] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
I have had regard to the Applicant’s PCF which summarises his work history in Australia. He appears to have held down relatively consistent remunerative employment in Australia during the period 1995–2014. He has worked in a diverse range of fields including: the meat industry, event management, metal polishing, food processing (bakery) and as a labourer in the plumbing and gas trade.[86]
[86] Exhibit G1, G4, page 48
In his PCF, the Applicant was asked to “List positive contributions you have made to Australia for example, volunteer activities, participation in community and cultural activities, employment etc. Provide any references in support.”. The Applicant responded that he “was a Volunteer for “[name of centre redacted]” for many years and help the Community”.[87]
[87] Ibid, G4, page 49.
Further in his PCF, the Applicant was asked to “Give details of any hardship you believe would be caused to members of the Australian community, if you were to be removed from Australia. Provide any letters of support.” The Applicant responded thus:
“I plan on going back to “[name of centre redacted]” and helping the community There as I have done for the last 20 years, The community no me there well”[88]
[Errors in original]
[88] Ibid.
As referred to in his PCF, the Applicant sought and obtained a statement from one of the proprietors of the abovementioned Christian Centre. This is the abovementioned Ms L H to whose reference I have referred earlier in these reasons in my consideration of Primary Consideration B.[89] In this reference/statement, Ms L H said the following:
“16 June 2020
[…]
To Whom it May Concern,
I have known [the Applicant] for over 15 years. He has been a resident in our caravan accommodation for men a number of times and he has been a volunteer at the Church. I have been advised that [the Applicant] is on a charge of Arson for burning down a Housing SA home.
[…] Unfortunately in the past few years, [the Applicant] has been taking drugs and this has affected his mental stability. We have witnessed him having hallucinations and these have filled him with fear. We strongly advised him to seek help for his mental health and although he did seek this assistance we saw no evidence of improvement. […]”[90]
[89] Ibid, G10, page 63.
[90] Ibid.
I am of the view that the totality of the Applicant’s history of criminal and other offending, both in Australia and New Zealand, but, in particular, his very serious offences of arson and carry offensive weapon have, in a cumulative sense, breached the expectations of the Australian community. His quite lengthy history of criminal and other offending is not only frequent and consistent, it has also represented a direct challenge to the lawful authority governing this country back into which the Applicant now seeks re-admission. I have taken the following factors and/or findings into account in assessing the weight attributable to this Primary Consideration C.
(a)it can be accepted that the Applicant has made some measure, albeit relatively minimal, of a positive contribution to the Australian community both via his employment history and to the extent he has engaged in the activities of the abovementioned Christian Centre as a volunteer;
(b)save and except for relevant periods of incarceration and, more latterly, immigration detention, which has seen the Applicant removed from the Australian community since November 2019, the Applicant lived in the mainstream Australian community for approximately 25 years;
(c)I have found that removal of the Applicant to New Zealand may have a very slight impact on his three relevant biological children in Australia;
(d)the very serious nature of the Applicant’s cumulative offending history to date;
(e)my finding that the Applicant’s risk of committing similar or identical offending upon any return to the Australian community is not at any different level than it was prior to his most recent removal from that community in November 2019;
(f)my finding that there is a demonstrably unresolved and consequently convincing likelihood that this Applicant will engage in further at least serious, quite conceivably very serious, offending conduct if returned to the Australian community; and
(g)my finding that, were the Applicant’s offending to be repeated, it could realistically result in very significant physical, emotional and/or financial harm to a quite realistically catastrophic level to members of the Australian community.
Conclusion: Primary Consideration C
I am of the view that the immediately preceding factors (a)–(g) inclusive, read as a whole in the context of this case, militate in favour of not revoking the cancellation of the Applicant’s visa. I accordingly find that this Primary Consideration C is of strong weight in favour of affirming the non-revocation decision under review.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e) to the extent any of them may be relevant to the instant facts.
(a) International non-refoulement obligations
In his PCF, the Applicant was asked “Are there any other problems you would face if you have to return to your country of citizenship”. He responded thus:
“One of the reasons I left New Zealand was because of the gangs of the 1980s & 1990s. I do not want to return to New Zealand and be drawn into the gang life of the 21^st Century.”[91]
[91] Exhibit G1, G4, page 50.
As best as I understood the Applicant’s oral and written evidence, the only reference to “gang life” in New Zealand appears in his PCF, as quoted above. He has not made a claim that he fears being harmed by “gangs” or “gang life”. Even if his reference to “gang life” were taken to be a claim that he might be at some kind of harm upon a return to New Zealand, I am not of the view that such a claim, unarticulated as it is, gives rise to any consideration about Australia’s non-refoulement obligations.
Therefore, I am not of the view that the Applicant has raised any claim that his removal to New Zealand would engage any of Australia’s non-refoulement obligations that could possibly be owed to him. This Other Consideration (a) is not relevant to determination of the instant application.
(b) Strength, nature and duration of ties
In its amended SFIC, the Respondent makes the following limited concession:
“This consideration should be weighed in favour of revocation of the cancellation of the applicant's visa, but it should not outweigh the primary considerations of the protection of the community and expectations of the community.”[92]
[92] Exhibit R3, page 15, paragraph [91].
The Applicant first came to Australia in April 1994 aged 25 years. He commenced offending in this country in March/April 1996 when he was aged approximately 27 years. Having regard to paragraph 14.2(1)(a)(i) of the Direction, I find that the Applicant did begin offending “soon after arriving in Australia”. He commenced his offending activity in this country just less than two years after his initial arrival here. Accordingly, no weight can be allocated in favour of the Applicant on the basis of paragraph 14.2(1)(a)(i).
Comparatively, a certain level of weight can be found in favour of the Applicant via an application of paragraph 14.2(1)(a)(ii). I have found that the Applicant has, of sorts, an employment history in this country. While there is no reference from any former employer in the material, there is a slight prospect that he may one day return to remunerative employment. I say “slight prospect” because he made it clear in his evidence that his initial form of income will be to try to qualify for some type of government benefit. Therefore, for the purposes of paragraph 14.2(1)(a)(ii) of the Direction, I will find that the Applicant has made some measure of a positive contribution to the Australian community. A moderate level of weight is therefore allocable in his favour pursuant to this paragraph 14.2(1)(a)(ii).
I make reference to paragraph 14.2(1)(b) of the Direction and the necessity it compels to assess an Applicant’s strength, duration and nature of any social or family links with Australian citizens or people who can otherwise remain here indefinitely. In his PCF, the Applicant responded to relevant questions as follows:
“List all living parents, step-parents, brothers, sisters and adult children.”
The Applicant listed four brothers and two sisters. He recorded their nationality as “NZ" and further recorded their country of residence as “NZ”
“List other close family members including in-laws, cousins, grandparents, uncles/aunts.”
The Applicant listed three first cousins (a male and two females). He listed their nationality as “NZ” and their country of residence as “Australia”
He also listed two second cousins (a male and a female). He listed their nationality as “NZ” and their country of residence as “Australia”
“State how many other relatives you have in Australia or overseas”
The Applicant said he had no uncles/aunts in Australia or elsewhere. He said he had no nieces/nephews in Australia, but eight nephews/nieces in New Zealand. In terms of cousins, he said he had “50+” cousins in Australia and 15 in New Zealand. He said he had no grandparents in Australia or elsewhere.[93]
[93] Exhibit G1, G4, page 46.
I have also had regard to a certain reference from the Reverend H H M who spoke of a certain connection with the Applicant whom he has known since the Applicant was 15. The Reverend speaks of his church being able to offer support to the Applicant in two ways:
“[…] Firstly, through the strong communal kinship ties of family members who reside in Murray Bridge. Secondly, through the capacity building voluntary programs that are run by the above organisation:
·League is life,
·‘The Shared table,
·Right side up,
Our organisation is willing to support [the Applicant] in his endeavour to move forward
in life.”[94]
[Errors in original; formatting adapted]
[94] Ibid, G9, page 61.
I have had regard to the totality of the evidence relevant to this Other Consideration (b). On the basis that upon securing any right to remain in Australia, the Applicant may (1) experience some measure of re-connection with his children, (2) experience some measure of re-connection with Ms V H, and (3) manage to deal with or otherwise deal with or overcome his predisposition to abuse illicit substances and to consequently seriously offend, it may be found that the strength, nature and duration of his ties referable to this paragraph 14.2(1)(b) of the Direction merits the allocation of a moderate measure of weight in favour of the Applicant.
To the extent that Child T may fall within the ambit of this paragraph 14.2(1)(b), I am of the view that the strength, nature and duration of the Applicant’s ties to Child T attract, at best, a moderate level of weight in the Applicant’s favour. I base this finding on the same grounds as I have outlined in my above discussion regarding Child T relating to Primary Consideration B. To reiterate, in his evidence in cross-examination, the Applicant said the following with specific reference to a question about whether Child T would ever return to live with him:
“Applicant: No I don’t think they ever come and live with us, it was coming of age – like, [Child T] is 19 now, she’s got two jobs, she’s going to campus in Sydney. She’s not ever going to live with us. [Child T] is not going to live with us, she’s got – she’s old enough to get on with her own life”[95]
[95] Transcript, page 21, lines 44–46; page 22, lines 1–2.
Overall, I am of the view that this Other Consideration (b) merits the allocation of a moderate, but not determinative, measure of weight in favour of the Applicant.
(c) Impact on Australian business interests
There is no evidence before the Tribunal that cancellation of the Applicant’s visa would have an impact on Australian business interests. This consideration is not relevant to determination of this application.
(d) Impact on victims
There is no victim impact statement (or equivalent) before me that the Applicant’s continued presence in Australia would have an adverse impact on any of his victims. To make any finding about allocable weigh to this Other Consideration (d) in the absence of such evidence would involve me embarking upon a frolic of conjecture. I will not do so, and, accordingly, I cannot find that this factor attracts any weight either in favour of, or, against, the revocation of the Applicant’s visa and it is thus neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and therefore required to re-establish themselves in that country. Relevant factors to be taken into account include:
(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.
In its amended SFIC, the Respondent makes the following limited concession:
“This consideration should be weighed in favour of revocation of cancellation of the applicant's visa, but it should not outweigh the primary considerations of the protection of the community and expectations of the community.”[96]
[96] Exhibit R3, page 16, paragraph [94].

In his PCF, the Applicant was asked “Do you have concerns or fears about what would happen to you if you were to return to your country of citizenship?”. He ticked the “Yes” box. In response to the further question of “If yes, describe your concerns and what you think will happen to you if you return”, the Applicant responded with:
“No family support as my brothers & sisters have had there families and have gotten Old like me. All my uncles & aunties have died. I have more family here in Adelaide Than in Auckland many cousin here.”[97]
[Errors in original]
[97] Exhibit G1, G4, page 50.
Also in his PCF, the Applicant responded to questions regarding “Health Information”. In response to the question “Do you have any diagnosed medical or psychological conditions?”, the Applicant ticked the “No” box. In terms of treatment he had received, the Applicant wrote: “Professional treatment was at [suburb redacted] Adelaide […] the [name redacted] clinic”[98] In response to the further question of “If you are currently being treated by any doctor/health professional/counsellor, provide details […]”. The Applicant responded thus:
“Doctor took me off all medication while in prison as I have improved.”[99]
[98] Ibid, G4, page 49.
[99] Ibid.
To the extent the Applicant does require further treatment for his difficulties with illicit substances, I am of the view that all of the Applicant’s symptomatology can be adequately addressed by similarly qualified clinicians in New Zealand. It is safe to find that each medication and/or treatment that would have been provided or prescribed to him in Australia will be available to him in New Zealand. He will have access to medical care, treatment, and governmental support in New Zealand (both for his symptomatology and his financial support) to the same (or very nearly the same) level as that available to him in Australia. I am thus of the view that the Applicant’s age and state of health are not significant impediments to his removal to New Zealand such as to attract any measure of determinative weight pursuant to paragraphs 14.5(1)(a) and (c) of the Direction.
There are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in New Zealand.[100] New Zealand is culturally and linguistically similar to Australia.[101] It cannot be said that the Applicant will face significant linguistic or cultural barriers were he compelled to return there. In terms of support from family members in New Zealand, it will be recalled that in his PCF, the Applicant referred to “four brothers and two sisters” living in New Zealand. I agree with the submissions made by the Respondent’s representative during closing:
“The applicant until 1994 lived in New Zealand. I think he would have been approximately 25 or 25 years old when he came to Australia.
So he had the opportunity to or he went to school and lived all of his early years in New Zealand. He will be familiar with the culture and the society of New Zealand and his evidence in relation to family there is that all of his brothers and sisters have continued to live in New Zealand. I do note that since him filling out the form – the personal circumstances form, apparently one of his brothers has died. [Applicant’s brother’s name redacted] apparently has died. That nevertheless still means that he has five brothers or sisters living in New Zealand. His evidence was they all lived in the one place – sorry, one suburb, [name of suburb redacted] in Auckland.
Although we don’t have a lot of evidence about his relationship with his brothers and sisters, we do suggest that that is a matter that can be taken into account in terms of his ability to return to New Zealand and establish himself there.”[102]
[100]    Section 14.5(1)(b) of the Direction.
[101]    Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.
[102]    Transcript, page 65, lines 26–43.
Having regard to the evidence, I do not consider there to be any substantial language or cultural barriers that could be construed as “impediments” to the Applicant’s re-settlement in New Zealand. To the extent he may face some difficulty in re-establishing himself in that country, I consider those challenges would not be insurmountable and would only present as a short-term hardship, not precluding his successful re-settlement there. Accordingly, I cannot find that any asserted language or cultural barriers are impediments to any extent such as to attract any measure of determinative weight pursuant to paragraph 14.5(1)(b) of the Direction.
I return to the Applicant’s mention of his possible future exposure to “gang life” in New Zealand. As I have alluded to earlier in the discussion regarding Other Consideration (a), the Applicant, in his PCF, referred to an impediment or problem upon his return to New Zealand exposed him to the possibility of a return to “gang life” in that country. To my mind, such a contention has very limited traction for the purposes of assessing weight allocable to this Other Consideration (e). As noted by the Respondent during closing submissions:
“[…] that’s really a matter for him to manage. If he has to go back to New Zealand, there are choices that he can make in terms of whether or not he does get drawn back into gang life, as he calls it.”[103]
[103] Transcript, page 63, lines 6–8.
The further reason this “gang life” point has no traction for present purposes is because the Applicant will have recourse to police and other law enforcement mechanisms in the event he considers that he is at some type of risk that his rights are otherwise impinged as a result of the “gang life” to which he has referred.
Having regard to the totality of the evidence, I am of the view that this Other Consideration (e) is of moderate, but not determinative, weight in favour of revocation.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which favour non‑revocation very strongly and strongly, respectively. The application of the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: not relevant;
·strength nature and duration of ties: of moderate, but not determinative, weight in favour of revocation;
·impact on Australian business interests: not relevant;
·impact on victims: neutral; and
·extent of impediments if removed: of moderate, but not determinative, weight in favour of revocation.
Conclusion
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs very strongly in favour of non-revocation;
·Primary Consideration C weighs strongly in favour of non-revocation;
·Primary Consideration B weighs very slightly in favour of revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that the totality of the weight attributable to the relevant Other Considerations (b) and (e) combined, even when conjoined with the very slight weight I have attributed to Primary Consideration B, outweigh the significant, combined and determinative weight I have attributed to Primary Considerations A and C; and
·A holistic view of the considerations in the Direction therefore favours the non‑revocation of the decision to cancel the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
Decision
The decision under review is affirmed

I certify that the preceding 227 (two hundred and twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

[sgd]
Associate
Dated: 10 February 2021

Date(s) of hearing: 20 January & 1 February 2021

Applicant: Self-represented

Advocate for the Respondent: Mr Will Sharpe (Partner)

Solicitors for the Respondent: HWL Ebsworth Lawyers
ANNEXURE A

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2020/7694

General Division )

Re: SQKV
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent
DECISION
TRIBUNAL:              Senior Member Theodore Tavoularis
DATE:   8 February 2021
PLACE:                    Brisbane
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 16 November 2020 to not revoke the cancellation of the Applicant’s visa.

The Tribunal will give written reasons for this decision within a reasonable time of the decision.

[sgd]

Senior Member Theodore Tavoularis

ANNEXURE B

EXHIBIT DESCRIPTION OF EVIDENCE DATE OF DOCUMENT DATE RECEIVED

G1 Section 501 ‘G-Documents’ (paged 1–136) - 4 December 2020

RESPONDENT’S MATERIAL

    R1     Respondent’s SFIC (paged 1–15) 8 January 2021 8 January 2021

    R2     Unredacted Supplementary Documents (paged 1–32) - 21 January 2021

    R3     Respondent’s Amended SFIC (paged 1–16) 21 January 2021 21 January 2021

APPLICANT’S MATERIAL

A1    Applicant’s written statement faxed under cover of AAT Registry Transfer letter
(8 unnumbered pages, including blanks) 24 December 2020 24 December 2020

A2    Email from Ms A T to the Tribunal (1 page) 23 December 2020 23 December 2020

A3    Email chains from Ms V H, the Applicant’s partner, to the Tribunal (4 pages) 23 January 2021 23 January 2021

A4    Email from Ms V H, the Applicant’s partner, to the Tribunal (1 page) 27 January 2021 27 January 2021

[2021] AATA 180

8 February 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Date(s) of hearing:	20 January & 1 February 2021
Applicant:	Self-represented
Advocate for the Respondent:	Mr Will Sharpe (Partner)
Solicitors for the Respondent:	HWL Ebsworth Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 ‘G-Documents’ (paged 1–136)	-	4 December 2020
RESPONDENT’S MATERIAL
R1	Respondent’s SFIC (paged 1–15)	8 January 2021	8 January 2021
R2	Unredacted Supplementary Documents (paged 1–32)	-	21 January 2021
R3	Respondent’s Amended SFIC (paged 1–16)	21 January 2021	21 January 2021
APPLICANT’S MATERIAL
A1	Applicant’s written statement faxed under cover of AAT Registry Transfer letter (8 unnumbered pages, including blanks)	24 December 2020	24 December 2020
A2	Email from Ms A T to the Tribunal (1 page)	23 December 2020	23 December 2020
A3	Email chains from Ms V H, the Applicant’s partner, to the Tribunal (4 pages)	23 January 2021	23 January 2021
A4	Email from Ms V H, the Applicant’s partner, to the Tribunal (1 page)	27 January 2021	27 January 2021