TCDF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 3186

TCDF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3186 (30 September 2022)
Division:GENERAL DIVISION
File Number: 2022/5789
Re:TCDF
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Deputy President Boyle
Date:30 September 2022
Place:Perth

The decision of the delegate of the respondent dated 7 July 2022 not to revoke the cancellation of the applicant’s Class XB Subclass 202 Global Special Humanitarian (permanent) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (Act) is set aside and substituted with the decision that the cancellation of the applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Act.
...[SGD].....................................................................
Deputy President Boyle
Catchwords
MIGRATION – Migration Act s 501CA(4) – decision of delegate of Minister not to revoke cancellation of applicant’s visa – whether there is “another reason” to revoke cancellation of applicant’s visa – Ministerial Direction No. 90 – alcohol use disorder – applicant a 36-year-old South Sudanese man who arrived in Australia as an 18-year-old – impact on minor children weighs heavily in favour of revocation of cancellation – extent of impediments if removed weighs heavily in favour of revocation of cancellation – links to Australian community weigh moderately in favour of revocation of cancellation – there is another reason to revoke the cancellation of the applicant’s visa – reviewable decision set aside and substituted
Legislation
Migration Act 1958 (Cth) ss 36A, 197C, 197C(3), 499, 499(1), 499(2A), 500(1)(ba), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501(7)(d), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Cases
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CKL21 v Minister for Home Affairs [2022] FCAFC 70
CZCV and Minister for Home Affairs [2019] AATA 91
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454
Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 66
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
JNMK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 26
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2227
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Taylor and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2889
WFFJ and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2626
Secondary Materials
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Publishing, 5^th ed, 2013)
Brian Allen, Erica Cisneros and Alexandra Tellez, ‘The Children Left Behind: The Impact of Parental Deportation on Mental Health’ (2015) 24 Journal of Child and Family Studies 386, 390
Eirini Flouri and Ann Buchanan, ‘The role of father involvement in children’s later mental health’ (2003) 26 Journal of Adolescence 63, 73
Minister for Immigration and Border Protection (Cth), Direction no. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b) (6 September 2017)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021) paras 4(1), 5.1, 5.1(3), 5.2, 5.2(4), 6, 7, 8, 8.1, 8.1.1, 8.1.1(1)(a), 8.1.1(1)(a)(iii), 8.1.1(1)(b), 8.1.1(1)(b)(ii), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.2(3),8.2(3)(d), 8.3, 8.3(4), 8.3(4)(a), 8.3(4(b), 8.3(4)(c), 8.3(4)(d), 8.3(4)(e), 8.3(4)(f), 8.3(4)(g), 8.3(4)(h), 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 9, 9.1, 9.1(2), 9.1(7), 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3, 9.4, 9.4.1, 9.4.1(2)(a)(i), 9.4.1(2)(a)(ii)
Theodore Millon, Seth Grossman and Carrie Millon, ‘Millon Clinical Multiaxial Inventory-IV’ (2015)
REASONS FOR DECISION
Deputy President Boyle
30 September 2022
THE APPLICATION

The applicant seeks review of the decision of a delegate of the respondent (Minister) dated 7 July 2022[1] not to revoke the cancellation of the applicant’s Class XB Subclass 202 Global Special Humanitarian (permanent) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
[1] R1/8.
The applicant’s visa was cancelled under s 501(3A) of the Act on 10 September 2020[2] on the basis that he did not pass the character test by reason of his substantial criminal record, and he was serving a full-time term of imprisonment for an offence against a law of a State.
[2] R1/276–7.
The application for review was made on 15 July 2022 pursuant to s 500(1)(ba) of the Act which allows applications to be made to the Administrative Appeals Tribunal (AAT) for review of decisions of a delegate of the Minister made under s 501CA(4) of the Act.
THE ISSUE
The issue for determination is whether I should exercise the power in s 501CA(4)(b) of the Act to revoke the cancellation of the visa made under s 501(3A). This will require determination of:
(a)whether the applicant passes the character test (as defined by s 501 of the Act); and
(b)if he does not pass the character test, whether there is “another reason” why the decision to cancel the applicant’s visa should be revoked.
THE HEARING AND THE EVIDENCE
The application was heard on 13 and 14 September 2022. The applicant was represented by Mr B Overend of counsel and the Minister was represented by Mr J Papalia of the Australian Government Solicitor. The following witnesses gave evidence at the hearing:
(a)The applicant;
(b)The applicant’s sister; and
(c)Ms Gina Cidoni, psychologist.
The following documents were admitted into evidence:
(a)Statement of the applicant dated 15 August 2022; supplementary statement of the applicant dated 15 August 2022 (A1);
(b)Bundle of documents provided as an annexure to the applicant’s statement of facts, issues and contentions (SFIC); bundle of eight documents listed two to nine (A2);
(c)Applicant’s statement dated 19 June 2022, comprising pages 202–16 of the G documents (A3);
(d)Statement of the applicant’s sister dated 15 January 2021 (A4);
(e)Further statement of the applicant’s sister dated 19 June 2022 (A5);
(f)Report of Ms Gina Cidoni dated 16 June 2022 (A6);
(g)G documents (R1);
(h)Supplementary G documents (R2); and
(i)Email with attachments and letter from Western Australian Police dated 9 August 2022 (R3).
BACKGROUND
The applicant is a 36-year-old South Sudanese man who arrived in Australia in June 2004 aged 18. He is of Dinka ethnicity and Christian religion.
The applicant came to Australia on the visa with his older sister, her husband and their children.
The applicant and his family were settled in north-eastern New South Wales. Between 2004 and 2006 the applicant completed high school.
In 2006, the applicant began a relationship with Ms M whom the applicant had met in Kakuma Refugee Camp in Kenya. In 2007, the applicant and Ms M moved in together and in early 2007, Ms M fell pregnant but lost the baby to miscarriage.
The applicant and Ms M had their first child in December 2007, their second child in June 2009, their third child in November 2011 and their fourth child in March 2015. All of these children presently live with Ms M in Perth.
The applicant has been employed on farms, as a laboratory technician and as a technician conducting unit maintenance checks for Foxtel.
In 2008, the applicant was the victim of a violent assault in which he suffered trauma to the head and neck, requiring stiches and a neck brace.
The applicant has a long history of offending, with offences recorded in New South Wales, Queensland and Western Australia. The applicant’s full criminal and traffic offending history is set out in the annexure to these reasons for decision.[3]
[3] Sourced from Australian Criminal Intelligence Commissions Check Results Report, R1/37–40.
On 27 September 2011, the Department of Immigration and Citizenship sent the applicant a formal warning letter in relation to his serious criminal record.[4] The applicant concedes that he received that letter which contained the following warning:
However [sic] you should note that any further criminal convictions, or any other conduct by you that may bring you within the scope of subsection 501 (6), could result in further consideration of the cancellation of your visa under section 501 of the Act. The consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia and, in most cases, bars on re-entering Australia.[5]
(Original emphasis.)
[4] R1/82–3.
[5] R1/82.
Following receipt of that letter the applicant continued to offend.
In August 2020 the applicant was convicted of multiple offences and sentenced to terms of imprisonment totalling 20 months.[6] The total effective sentence was 14 months’ imprisonment.
[6] 10 and six months to be served concurrently and four months to be served cumulatively.
The applicant had previously been sentenced to terms of imprisonment; multiple sentences totalling 21 months in October 2009 (largely served concurrently) and two terms of 12 months suspended for 12 months in April 2011. The applicant was also disqualified from driving for life.
On 10 September 2020, a delegate of the Minister cancelled the applicant’s visa based on the applicant’s convictions/sentences outlined above.[7] The applicant was notified of this decision and invited to make representations seeking revocation. He did so on 29 September 2020.[8]
[7] R1/88–93.
[8] R1/96–116.
On 7 July 2022, the delegate found that the applicant failed the character test and that there was not another reason why the mandatory cancellation decision should be revoked.[9]
[9] R1/8.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act relevantly provides that:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)...; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Act relevantly provides:
For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); ...
(Original emphasis.)
A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) ...
(b) ...
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
...
(Original emphasis.)
Section 501CA of the Act relevantly provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
...
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
(Original emphasis.)
Ministerial Direction 90
Section 499(1) of the Act provides that:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Section 499(2A) of the Act provides that, “[a] person or body must comply with a direction under subsection (1).”
On 8 March 2021 the relevant minister for the purposes of s 499 of the Act, made a direction titled “Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90).[10] The commencement date for operation of Direction 90 was 15 April 2021. Upon its commencement, Direction 90 revoked the operation of “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA”[11] (Direction 79).
[10] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021).
[11] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018).
Paragraph 5.1 sets out the objectives of Direction 90. Paragraph 5.1(3) relevantly provides:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction 90 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA of the Act. These principles 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. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 90 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 90 (where such considerations are relevant) in order to determine whether the cancellation of the visa should be revoked.
Guidance in relation to how the relevant considerations are to be taken into account can be found in para 7 of Direction 90 which provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of Direction 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.
Paragraph 9 of Direction 90 provides:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)    international non-refoulement obligations;
b)    extent of impediments if removed;
c)    impact on victims;
d)    links to the Australian community, including:
i)strength, nature and duration of ties to Australia;
ii)impact on Australian business interests.
CONSIDERATION
Failure of the character test arises as a matter of law: Harrison and Minister for Immigration and Citizenship.[12] The character test is defined in s 501(6) of the Act (see [22] above). Under s 501(6)(a) of the Act, a person does not pass the character test if the person has “a substantial criminal record”. Section 501(7)(c) of the Act (see [23] above) 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...” Section 501(7)(d) of the Act provides that a person will have a substantial criminal record if they have been “sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more”. The applicant has been sentenced to terms of imprisonment totalling more than 12 months and he therefore has a substantial criminal record. Accordingly, he does not pass the character test.
[12] [2009] AATA 47; (2009) 106 ALD 66.

As the applicant does not pass the character test, he cannot rely on s 501CA(4)(b)(i) of the Act for the decision to cancel his visa to be revoked. The issue, therefore, is whether the power under s 501CA(4)(b)(ii) of the Act should be exercised on the basis that there is another reason why the decision under s 501(3A) of the Act should be revoked (see [24] above).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1 of Direction 90 provides that, when decision-makers are considering the protection of the Australian community, they:
(1) ... should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (para 8.1.1)
Paragraph 8.1.1 of Direction 90 provides:
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)    without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)    without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)    with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)    the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)    the cumulative effect of repeated offending;
f)     whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)    whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
The applicant’s SFIC makes the following submissions in relation to this consideration:
(a)The applicant’s criminal history should be read together with the information relating to his mental health issues, traumatic upbringing and history of alcohol abuse as they are fundamentally related.[13]
[13] Applicant’s SFIC para 35.
(b)In this regard, the applicant’s SFIC summarised the applicant’s relevant antecedents to be:
(i)When the applicant was approximately three years old, his village was attacked. His older sister took him with her family from Sudan to Ethiopia. The civil war in Sudan was fought between 1983 and 2005, during which time the applicant’s family faced persecution due to their Dinka ethnicity and Christianity.
(ii)After fleeing Sudan the applicant spent approximately 12 months in a refugee camp in Ethiopia. While in that camp, the applicant witnessed several incidents of extreme violence which resulted in death.
(iii)He was also attacked by Ethiopian police while attempting to get necessities such as food, water and firewood. During this period, because of the violence in the Ethiopian refugee camp, the applicant and his sister’s family briefly returned to Sudan.
(iv)In August 1992 when the applicant was six years old they again fled Sudan, ending up in the Kakuma Refugee Camp in Kenya where the applicant lived for approximately 12 years with his sister and her family.
(v)While living in the Kakuma Camp, the applicant struggled to secure sufficient food, experienced physical violence from fellow refugees and witnessed various traumatic incidents, including attacks from Kenyan locals.
(vi)In April 2003 the applicant, his sister and her family were granted their visas and came to Australia, at which time the applicant’s story is as set out from [9] above onwards.
(c)The applicant concedes that his criminal history is serious, involving as it does violence, and having occurred over an extended period. He disagrees, however, with the delegate’s characterisation of his criminal history as very serious.[14]
(d)He says that his offending was dealt with summarily and there is no discernible trend of increasing seriousness.
(e)The applicant concedes that has committed offences involving assault, including offences against police officers and domestic violence against two former partners. This, the applicant contends, should be considered as an indicator of his alcohol use disorder which impaired his decision-making at the time of the offending, rather than an indicator of his attitude to authority and the laws of Australia.[15]
(f)The applicant concedes that he continued offending after being issued a formal warning by the Department (see [15] above) but says that the offending took place before any diagnosis, intervention or treatment for the applicant’s alcohol use disorder.
(g)On 9 October 2009, the applicant was sentenced to his first term of imprisonment by the Parramatta Local Court for a range of offences and received an effective sentence of imprisonment of six months, which included five separate sentences to be served concurrently. This included common assault and assault occasioning actual bodily harm against a domestic partner. The applicant received custodial sentences for the family violence offences of three and four months, respectively, to be served concurrently. The sentence of six months imprisonment for driving while disqualified from holding a licence was the longest of the sentences.[16]
(h)Assault occasioning actual bodily harm attracts a maximum penalty of five years’ imprisonment. The sentences imposed on the applicant indicate the court’s view that his offending was “not some of the more serious examples of that offending.”[17]
(i)The applicant pleaded guilty indicating his remorse and acceptance of responsibility. When interviewed by the police after the family violence incident the applicant denied having done anything wrong, however, he was intoxicated at that time.[18]
(j)For the second assault occasioning bodily harm committed against Ms M in 2018, the applicant received a fine. The applicant was sentenced to his second term of imprisonment on 6 August 2020, with an effective prison sentence of 14 months. The charges before the court were driving and alcohol related offences. At the time of the offences, the applicant was serving a suspended sentence for similar offending. In both tranches of offending before the courts, there were no violent offences.
(k)Of the applicant’s 52 offences,[19] only four counts actually caused injury. All of his charges have been dealt with summarily.
(l)The Tribunal’s assessment of the objective seriousness of the applicant’s offending should reflect and be consistent with the assessment of the criminal courts.[20]
[14] Applicant’s SFIC para 35.
[15] Citing the report of Gina Cidoni, psychologist, A6 para 37. This report also appears at R1/217–25.
[16] Applicant’s SFIC para 39.
[17] Applicant’s SFIC para 40.
[18] Applicant’s SFIC para 41.
[19] I count 53 offences.
[20] Applicant’s SFIC para 46.
The Minister’s SFIC makes the following submissions:
(a)The applicant’s offending history includes family violence in July 2009 and August 2018, and crimes against public officials in 2008, 2009 and 2011. In accordance with sub-paras 8.1.1(1)(a) and (b)(ii) of Direction 90, these are to be viewed as very serious (noting that the 2011 assault was against a female senior constable).[21]
(b)Contrary to the applicant’s submission, the Tribunal has often regarded driving offences to be of a very serious nature.[22]
(c)The applicant has 12 separate convictions for driving under the influence of alcohol since 2008, with separate charges arising from failures to provide samples for breath analysis on other occasions where he has driven without authority (one of which included an assault against the police officer who was trying to require him to provide the sample). In sentencing the applicant, the magistrate described the applicant’s record as showing “a flagrant disregard for road traffic laws” and his conduct of driving while under the influence of alcohol, while not holding a driver’s licence and “deflecting the police from doing their job” as “an egregious example of thumbing his nose at the law and thumbing his nose at court orders.”[23]
(d)Prior community-based orders (including sentences of suspended imprisonment) have not deterred the applicant from re-offending and the applicant’s criminal record, including his traffic record, demonstrates an inability to distinguish right from wrong and a callous disregard for the safety of the public.
(e)The applicant committed further offences (on at least 14 separate occasions) despite a written warning from the Department in September 2011.
[21] Applicant’s SFIC para 44.
[22] Citing JNMK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 26 and the cases cited therein.
[23] Minister’s SFIC paras 36, 46.
The sentences which caused the applicant’s visa to be cancelled under s 501(3A) of the Act were those imposed by the Court on 6 August 2020. The details of the offending which gave rise to those convictions were set out in the sentencing remarks of Magistrate Scaddan as follows:
… There are a number of charges upon which I am sentencing [the applicant] today. They include three offences on 23 October 2019, one of which was a trial matter, and that included failing to provide a sample of breath for a breath analysis test and I found [the applicant] guilty after trial on that particular offence… Three other offences occurred on 21 January 2020.
They were excess .08, wilfully mislead a person performing a function under a road law and no authority to drive on a cancelled licence. There were pleas of guilty at an early opportunity. The other two offences on 23 October 2019 had been driving under suspension and wilfully mislead a person performing a function under a road law. Those two offences were both an early plea of guilty. The situation on 23 October involved [the applicant] driving under suspension.
When he was asked to provide a preliminary sample of breath at the roadside he refused to do so. That then resulted in him being conveyed back to a police station and he refused to provide a sample of breath for breath analysis test. Prior to him being conveyed to the police station he had given the police officer a false name. There had been some toing and froing with various spellings of names, but it wasn’t until [the applicant] had been conveyed back to the police station that his identity could have been or was, I should say, confirmed.
On 21 January 2020 he drove a car again under disqualification. On this occasion it was on a cancelled licence and that arose as a result of previous convictions for driving under suspension. On that occasion he recorded an alcohol reading of .143, which I note is at the upper limit of the excess .08 ban, and at the same time he wilfully misled the police officer who was making inquiries and on that occasion it required police to take fingerprints to identify [the applicant].
On both of those occasions, in my view, the only real inference that can be drawn is that [the applicant] well knew that he ought to be not driving and that he sought to mislead police for as long as was possible or dissuade police from making any further inquiries, and that can be the only reason he gave a false name and maintained his false details until such time as identifying particulars were able to be taken to establish his identity.
Each tranche of offending is aggravated. It was aggravated by reason of the giving false details or wilfully misleading police, and either that or having consumed alcohol while driving having been disqualified from driving or failing to provide a sample of breath having been disqualified from driving.[24]
[24] R1/48–9.
Magistrate Scaddan then went through the applicant’s history of offending and noted:
… what I will note from the record is that the offences for which I am sentencing today are offence number 8 and 9 since 2015. The manner in which [the applicant] has been convicted historically means that it is his fifth conviction for sentence. On each occasion, bar … two, the driving under suspension involved the consumption of alcohol.[25]
[25] R1/50.
Magistrate Scaddan went on to detail the convictions recorded on 17 September 2015, 19 April 2016, 27 April 2017, 15 September 2017, 18 December 2017 and 5 April 2018, all of which involved driving under the influence of alcohol, refusing a breath test, driving with no motor driver’s licence and/or misleading police. Her Honour noted, in relation to the 5 April 2018 conviction that:
On that occasion a suspended term of imprisonment of seven months, suspended for 12 months, was imposed, whereupon it was breached by reoffending, but the suspended imprisonment order was allowed to continue. And, as I say, today I’m dealing with conviction number 5, but the eighth and ninth offence. That gives a potted history of [the applicant’s] offending.[26]
[26] R1/50.
In relation to the seriousness of the applicant’s offending, Magistrate Scaddan commented:
… it does show a flagrant disregard for court orders and it also shows a flagrant disregard for road traffic laws. Demonstrably [the applicant] drives at will whatever the circumstances and on every occasion he drives under suspension or on a cancelled licence there are aggravating features such as having consumed alcohol or trying in some way to deflect the police from doing their lawful duty. It is an egregious example of thumbing his nose at the law and thumbing his nose at court orders.
[The applicant] driving in this manner continues to present a real risk to the public and very little seems to deter him from doing so.[27]
[27] R1/52–3.
The facts of the unlawful assault occasioning bodily harm with circumstances of aggravation and criminal damage or destruction of property charges of which the applicant was convicted on 7 December 2018, were outlined in Magistrate Millington’s sentencing comments as follows:
… [on] 27 August 2018 at [a suburb in metropolitan Western Australia] he unlawfully assaulted [Ms M], thereby did her bodily harm in circumstances of aggravation, namely that they were in a family domestic relationship. That is not in dispute that they were in a family domestic relationship. In relation to the other matter or charge that he wilfully and unlawfully damaged the Apple iPhone valued at $1,200, the property of the same person.
…
The complainant gave evidence and her evidence in basic terms was that she agreed to allow [the applicant] back into the house on a condition that he stay away from her and stay in another room. She says that she woke up with him on top of her. She asked him to get out and he refused to do so. He says she – then there was – try to push by pushing him off because she says that she was pinned down.
She says then he had punched her three times to the left side of the ear and there’s photos to – which she says are consistent with that. There was a grapple and when she went back outside has said that he was coming towards her in the living area and then moved to the laundry before going outside. It’s during that episode in the laundry that there were scratches given to her because he was trying to get her phone.
…
They then went outside and she was trying to call the police. She says that he grabbed her phone and smashed it to the ground. Picked it up again. You could still hear the person talking and then smashed it again and again. Exhibit 2 shows the phone clearly damaged. The evidence of the complainant was that there was no injuries prior to him coming back to the house and again, no damage to her phone. I found her to be a credible witness. She was clear.[28]
[28] R1/58–60.
The evidence of the complainant, Ms M, and that of the applicant differed. Magistrate Millington accepted the evidence of the complainant over that of the applicant and stated his reasons for doing so in his sentencing remarks.[29]
[29] R1/59–61.
In sentencing the applicant, Magistrate Millington made the following observations:
And this is your first assault. That’s not to condone what I found you guilty of. But it’s clear and consistent now that I see your record, because I don’t see your record while – before the trial, that you’ve got an alcohol problem and the evidence was that there was alcohol involved on this night. It’s a positive for you that you’ve done something about that, seeing a psychologist, and you’re continuing to do it. And if you can stay away from it, it looks like you might be able to stay out of trouble.
…
I am of the view, [applicant], that this – it’s not at a point of last resort, being these matters. And I am going to fine you. For the unlawful assault, there’s a fine of $1,500, costs of $107.50. For the criminal damage, there’s a fine of $500. And I should say that even though I made those findings, I accept that when you were told to get out, that Ms – that the complainant did kick you, but she was entitled to do that because you wouldn’t leave.
In relation to – because you’ve been convicted of those, [applicant], it breaches the suspended term of imprisonment that you were placed on. That means under section 80 of the Sentencing Act it says I need to consider whether it be unjust to trigger the suspended term of imprisonment. There’s a lot of options in section 80, but in basic terms, it says unless it’s unjust, I should order that you serve nine months – sorry, the seven months imprisonment. I need to consider what has happened since that was put in place and any other matters that I obviously think are appropriate.
I think – but the most positive thing is that you have done – have got some help with your alcohol, that you are going to a psychologist each week and you’re addressing those issues along with the fact that you well and truly deserved a suspended term of imprisonment for your driving. As I said, on the view that this offending that I’ve convicted you of today does not reach the threshold of imprisonment, it’s for those two reasons I find that is unjust if I was to trigger the suspended term of imprisonment. So, what I’m going to do is allow that suspended term of imprisonment to continue.[30]
[30] R1/64–5.

Two things of significance emerge from the above passage. The first is that Magistrate Millington’s hope that the applicant might stay away from alcohol and stay out of trouble was not realised. The second point of significance in the above passage is that Magistrate Millington was incorrect when he made the statement that the charge of assault was the applicant’s first. The Australian Criminal Intelligence Commission Check Results Report[31] reproduced in the annexure to these reasons for decision, shows that the applicant had been convicted of assault occasioning actual bodily harm in New South Wales in January 2008, of resisting and assaulting an officer in the execution of their duty in June 2008, of assault occasioning actual bodily harm in October 2009 (for which the applicant received a four-month term of imprisonment) and of two counts of assault/obstruct a police officer in 2013.
[31] R1/37–40.
The facts of the assault occasioning actual bodily harm of which the applicant was convicted on 10 January 2008 were contested at the hearing. There was not a transcript of the Court’s sentencing remarks, however, the applicant was taken to the statement of facts that was before the Magistrate.[32] The thrust of the facts as set out in that document was that:
[32] R1/70–4.
(a)The applicant and the victim (a female) were previously in a domestic relationship for five months but did not live together at the time of the assault.
(b)The victim and some friends attended the house at which the applicant was staying.
(c)The applicant, who was heavily intoxicated, and the victim got into an argument which went over several hours. During the argument the victim told the applicant on numerous occasions to leave her alone.
(d)The applicant yelled and screamed at the victim while standing in her personal space and called her a “fucking slut.”
(e)The victim tried to walk away from the applicant who took hold of her wrist and twisted her arm. He held her wrist for one minute causing her immediate pain and causing her to fear for her safety.
(f)The applicant pushed the victim away causing her to stumble backwards a few steps.
(g)The following morning the victim and another person left the premises and caught a train back to the victim’s house. The accused followed the victim on the train.
(h)The victim went to bed at her house but woke when the applicant entered her bedroom without knocking. The applicant and the victim then argued for about 20 minutes.
(i)The applicant asked the victim where her phone was, when he observed her phone in the kitchen, he took it and tried to delete his number from it. The applicant returned to the victim’s bedroom where he swung the phone in a backhand style towards the victim’s face. The phone made heavy contact with the victim’s upper and lower lip area.
(j)The victim then noticed a considerable amount of blood coming from her mouth. The victim received several cuts to her upper and lower lips.
(k)The applicant denied that he had assaulted the victim but admitted that he had thrown the victim’s mobile phone at her. An apprehended violence order was issued and served on the applicant while he was in custody.
The applicant admitted that he had thrown the mobile phone at the victim, however, his evidence was that he did not recall twisting the victim’s wrist.[33] Irrespective of whether the applicant recalls twisting the victim’s wrist as well as throwing the mobile phone at her, the fact is that on 9 October 2009 that applicant was convicted in the Parramatta Local Court of one count of assault occasioning actual bodily harm and one count of common assault, with both noted on the record as being domestic violence offences.
[33] Transcript at 59.
In assessing the seriousness of the applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction 90 (see [37] above), I find that:
(a)Paragraph 8.1.1(1)(a) – the applicant has been convicted of offences involving violence, violence against women and family violence. I accept that the physicality of the violence has been at the low end of the scale.
(b)Paragraph 8.1.1(1)(b) – the applicant has been convicted of offences against officials (police) in the execution of their duties.
(c)Paragraph 8.1.1(1)(c) – the sentences imposed by the courts have been at the lower end of the range of possible penalties.
(d)Paragraph 8.1.1(1)(d) – the applicant’s offending has been frequent; a total of 53 offences over a 12-year period. There is no discernible trend of increasing seriousness.
(e)Paragraph 8.1.1(1)(e) – one aspect of the cumulative effect of the applicant’s offending, in particular his repeated driving offences, was described by Magistrate Scaddan as “an egregious example of thumbing his nose at the law and thumbing his nose at court orders” (see [43] above). I agree with that assessment. The applicant’s record cumulatively shows that the applicant has failed to gain any measure of deterrent effect from the sentencing regime that has been imposed on him. It appears that he learnt nothing from the predominantly non-custodial sentences and suspended sentences initially imposed. Even the imprisonment of the applicant for breaches of his suspended sentences and community-based orders appeared to have had no salutary effect on the applicant. It is also the case that the applicant’s repeat offending has consumed an inordinate amount of law enforcement and court resources.
(f)Paragraph 8.1.1(1)(f) – not relevant in this case.
(g)Paragraph 8.1.1(1)(g) – it is the case that the applicant offended after he was formally warned of the consequences to his visa status if he were to reoffend.
The applicant concedes that his offending record is serious (see [38(c)] above) but disputes the Minister’s characterisation of the record as being very serious. Normally the sheer number of offences, the fact that he has committed family violence and the fact that he committed numerous offences after having received a formal warning, would cause me to characterise the applicant’s offending history as very serious. However, in the present case there are circumstances which cause me to characterise his record as serious, but not very serious. As noted above, his violent offending, including the incidents of family violence, have been at the low end of physicality and were committed while the applicant has been intoxicated. That is also the case with his many driving related offences. It is clear that the applicant’s offending is closely, if not totally, linked to his abuse of alcohol. Having reviewed the applicant and applied a personality test,[34] Ms Cidoni’s assessment was that he was not inherently anti-social or criminal; he did “not present with a criminal mindset”.[35] I do not think that the applicant’s offending has been wilful, rather his offending has been caused by a lack of willpower and his addiction to alcohol.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
[34] Theodore Millon, Seth Grossman and Carrie Millon, ‘Millon Clinical Multiaxial Inventory-IV’ (2015) (MCMI-IV).
[35] Applicant’s SFIC para 65.
Paragraph 8.1.2 of Direction 90 relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the non-citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
The Tribunal in CZCV and Minister for Home Affairs[36] at [56] summarised the task for the decision-maker as follows:
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]- [43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
[36] [2019] AATA 91.
In BSJ16 v Minister for Immigration and Border Protection[37] Moshinsky J stated, at [68]:
... there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.
[37] [2016] FCA 1181.
While the Tribunal and the Court in the above cases (and in the cases referred to therein) were considering visa cancellation in the context of predecessors to Direction 90, given the similarity in the wording of the several Ministerial Directions, the same considerations and principles apply to the present case. I adopt the approach indicated in the above cases.
Nature of harm to individuals or the Australian community (para 8.1.2(2)(a))
The Minister contends that the nature of the harm to individuals and to the community if the applicant were to engage in the criminal behaviour which he has in the past is self-evident and serious. In relation to the consequences of drink driving and, to a lesser extent, driving without a licence, the Minister cites Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[38] at [43] and WFFJ and Minister for Immigration, Citizenship and Multicultural Affairs.[39] At [55] of WFFJ, I stated:
I also again refer to the comments of McKerracher J at [48] in RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [33] and Colvin J’s comments on that passage at [43]–[45] in JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. I adopt their Honours’ observations. In the present case, while it might be that the applicant’s criminal activities did not cause direct harm, or had no apparent victim, as McKerracher J noted at [48] of RQRP:
... the critical feature of these acts is that they attract criminal sanction because committing them creates a greater risk that much more serious conduct that does cause direct and significant harm could result...
and at [58] observed:
The applicant’s significant record of driving offences is also of concern. While obviously at the lower end of criminality, the Tribunal and courts have consistently held that the potential harm inherent in driving offences is not insignificant.
(Emphasis omitted; footnote omitted.)
[38] [2021] AATA 2227.
[39] [2022] AATA 2626.
The applicant’s SFIC identifies the nature of the harm that would be caused if the applicant were to re-offend as “likely to be psychological and financial harm, with a prospect of limited physical harm”.[40]
[40] Applicant’s SFIC para 48.
In closing, Mr Overend made the following statement in relation to the type of harm that could be caused by drink driving:
Now, we know it's broadly accepted and it's common sense that drink driving can and does result in serious injury and potential death and that's not disputed, of course, between anyone and TCDF posed a risk to himself and other members of the community if he were to get behind the wheel of a car again with alcohol in his system.
Mr Overend’s observation as to the type of harm caused by drink driving is obviously correct. Mr Overend submitted that driving without a licence, while in breach of the law, did not have the same potential harm profile. While I accept that to be the case, it should not be overlooked that someone driving without a licence is not covered by the compulsory third party injury insurance scheme, meaning that innocent third parties injured in an accident caused by an unlicensed driver would not be covered by the Western Australian Government compulsory third party insurance.
The harm which would be caused if the applicant were to repeat the violent offences, particularly those involving family violence, must also be taken into account. Such offending has the potential to cause psychological fear, physical injury and property loss.
The harm that would be caused to the community, or to individual members of the community if the applicant were, in the future, to engage in the offending that he has in the past is serious.
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (para 8.1.2(2)(b))
The applicant submitted[41] that it “is widely accepted that a ‘no risk’ assessment is a virtual impossibility”, citing the relevant consideration to be that identified in CZCV quoted in [53] above: whether the applicant poses an unacceptable risk. I agree that that is the appropriate test.
[41] Applicant’s SFIC para 49.
The applicant’s SFIC also cited the following passage from CKL21 v Minister of Home Affairs[42] in the Full Court of the Federal Court of Australia, which refers to the High Court of Australia’s judgment in Minister for Immigration and Ethnic Affairs v Guo.[43] At [74] of CKL21, the Full Court said:
[74] … In curial and administrative decision-making, the task of assessing the degree of likelihood of an event occurring in the future requires more than mere speculation. It must be based on a logical process of reasoning based on the known facts. A conclusion that a risk “cannot be ruled out” does not, of itself, logically establish the existence of a risk. Further … a risk may be so low that it must properly be disregarded. In assessing the likelihood of a future event, the key facts will include the regularity with which the event has occurred in the past, the conditions under which the event occurred in the past and the likelihood that those conditions have since changed or other events have intervened to interrupt the cycle of regularity.
…
[86] … the Minister’s reasons [did] not disclose a probative basis for a finding that there was a risk that the appellant would reoffend in a similar manner. In our view, the Minister’s conclusion must be described as speculative, based on mere conjecture or supposition unsupported by evidence. While the power given to the Minister by s [501CA(4)] is very broad, its exercise is subject to the condition that it be exercised reasonably and rationally. Findings and conclusions must have an evident and intelligible basis, and not be the subject of mere speculation.
(Emphasis added in applicant’s SFIC.)
[42] [2022] FCAFC 70.
[43] [1997] HCA 22; (1997) 191 CLR 559.
The applicant contends:[44]
(a)The risk that the applicant poses must be made reasonably and rationally.
(b)The regularity of the applicant’s past offending and the conditions under which this offending occurred are relevant to assessing his level of risk, as is the likelihood that those conditions have since changed, or other events have intervened to interrupt the cycle of regularity.
(c)A finding that the applicant is a risk of committing serious offences such as those that he has committed in the past must be made on a probative basis.
(d)It is only after weighing all matters raised for consideration that the decision-maker can then form the view as to whether the risk (be it high, moderate or low) is acceptable or not.
[44] Applicant’s SFIC para 56.
The applicant accepts that there is some risk of reoffending, but says that that risk is significantly qualified. He says that his offending in the past has been associated with his alcohol use disorder and the majority of his offences have not resulted in serious harm to the community. The applicant points to Ms Cidoni’s assessment that he did not present with a criminal mindset (see [51] above).
In relation to what the applicant describes as “qualified harm”, the applicant contends[45] that the risk is minimised by the following factors:
[45] Applicant’s SFIC paras 60–67.
(a)The applicant is older and more mature.
(b)The applicant has not committed an offence in the two years that he has been in prison and detention notwithstanding “heightened pressure and surveillance”.
(c)The applicant has abstained from alcohol for over two years.
(d)Prior to 2020 the applicant did not acknowledge that he was unwell, now he does and can access appropriate support and treatment.
(e)Notwithstanding limited programs available in detention, the applicant has sought out alcohol support and behavioural change programs.
(f)The applicant has not committed any offences in detention.
(g)Imprisonment and immigration detention have had an extremely beneficial effect on the applicant.
(h)The threat of removal to South Sudan has had a salutary effect on the applicant.
(i)There are now significant supports available to the applicant in the community which include:
(i)the applicant’s family, in particular his sister;
(ii)the applicant’s engagement in a weekly men’s behavioural change program through the organisation No To Violence Inc.;
(iii)the offer of counselling from Holyoake;
(iv)the applicant’s expression of interest in participating in Alcoholics Anonymous (AA); and
(v)the availability of Federal Government and community-based programs.
(j)Australian Federal Police and their state counterparts are trained to prevent harm to the community and reduce the incidence of crime through community partnerships and awareness of appropriate interventions.
(k)Insofar as the risk is associated with the applicant’s alcohol abuse, Australia has numerous programs in place ready to support him, and citizens and non-citizens alike who suffer similar conditions.
(l)There is substantive evidence of the applicant’s rehabilitation, both in terms of the absence of further offending despite an environment of pressure and surveillance.
(m)The applicant has served his terms of imprisonment and, as far as the criminal justice system is concerned, the applicant is no longer required to be isolated from the community.
In closing, Mr Overend pointed to the applicant’s evidence that since he has abstained from alcohol, he has felt healthier both mentally and physically and has used his time in detention undertaking various courses, including voluntary courses, on drug and alcohol abuse. The applicant now appreciates the significance of addiction and that it is not “a one fix thing”, but rather an ongoing process.[46] In relation to the risk of the applicant engaging in family violence in the future, Mr Overend in closing referred to the matters identified in [66] above and to Ms Cidoni’s assessment of the risk of the applicant reoffending.[47]
[46] Transcript at 108–9.
[47] Transcript at 117–8.

The Minister’s SFIC made the following submissions in relation to the likelihood of the applicant engaging in further criminal behaviour:
(a)As noted by Magistrate Scaddan, the applicant’s offending has been linked to his alcohol abuse. The same connection was made by Magistrate Millington in sentencing the applicant in December 2018. At that time, he told Magistrate Millington that he had stopped driving and stopped drinking[48] Neither was true.
[48] Citing R1/63.
(b)The applicant had a traumatic upbringing.
(c)Ms Cidoni diagnosed the applicant with alcohol use disorder (in enforced remission), and noted that he had traits of post-traumatic stress disorder and signs of anxiety, expressing the view that the applicant was a low to moderate risk of reoffending based in his abstinence from alcohol. She noted, however, that the applicant was “vulnerable to relapsing”.
(d)The Western Australian Department of Justice was not supportive of the applicant being granted parole due to the applicant’s “unmet treatment needs, lack of structured released plans, unconfirmed accommodation and significant criminal history with similar nature offending”.[49]
(e)The Prisoners Review Board denied the applicant parole for the following reasons:
(i)The applicant had unmet treatment needs (substance abuse and consequential thinking) evidenced by the nature of his current offences, his criminal history and the assessments by Corrective Services.
(ii)The applicant’s release plan did not include sufficient protective strategies or suitable accommodation.
(iii)The Board’s assessment that because of the applicant’s significant criminal history across three states, particularly for alcohol related traffic offending, the community would be put at significant risk of harm.[50]
(f)The Minister submitted that the risk of the applicant reoffending was closer to moderate and cannot properly be characterised as low.
[49] Citing R1/231–2.
[50] Citing R2/307.
As noted above, a report was provided by Ms Cidoni, a psychologist, who also gave oral evidence at the hearing. In her report, Ms Cidoni made the following observations and findings relevant to this consideration:
(a)She tested the applicant using the MCMI-IV, which she described as a standardised 195-item self-report questionnaire designed for use with adult, clinical populations. It assesses the presence of clinical syndromes in the context of personality traits or disorders and assists in conceptualising these emotional and behavioural patterns on a spectrum of adaptive to maladaptive levels of functioning. It is designed to assist in the diagnosis of Axis I (clinical) and Axis II (personality) disorders to aid in identifying clinical issues and to inform treatment planning as classified by the Diagnostic and Statistical Manual for Mental Disorders (DSM-5).[51]
(b)The applicant has a history of turning to alcohol to fulfil several otherwise difficult-to-achieve psychological functions.
(c)The applicant has traits of post-traumatic stress disorder, where many symptoms have resolved with the passage of time and stability. There are also signs of anxiety.
(d)Regarding general risk of reoffending, empirical literature outlines several risk factors identified in research as increasing an individual’s propensity for recidivism.[52]
(e)The applicant’s risk is considered low to moderate on the basis that he has discontinued alcohol use (through enforced remission). He has strong employment prospects and stable family support. He is vulnerable to relapsing, however, this is amenable to treatment and can be managed through a combination of psychoeducation, psychological intervention, and psychotropic medication. Alcoholism increases the propensity for impulsive, reactive, and irrational behaviour when under the influence, as is evidenced in his case. Therefore, remaining abstinent would reduce the applicant’s risk of recidivism.
(f)The applicant is well supported by his family, and he is finally addressing his issues surrounding alcohol abuse through Holyoake. He is keen to learn about relapse prevention strategies and positive coping mechanisms.
(g)The applicant met the diagnostic criteria for alcohol use disorder (in enforced remission) according to DSM-5.
(h)The applicant’s risk of reoffending is low-medium and if he remains abstinent this risk will lower.
(i)The applicant does not present with a criminal mindset.
[51] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Publishing, 5^th ed, 2013).
[52] Citing “Andrews and Bonta, 2016”.
In her evidence at the hearing, Ms Cidoni expanded on the methodology that she used to assess the applicant and, in particular, her assessment of the risk of the applicant reoffending. She confirmed her view that the applicant’s offending was linked to his alcohol abuse rather than innate anti-social traits. The following exchange took place:
TRIBUNAL:     Would it be fair to say that the applicant's likelihood of reoffending is    inexorably and very closely tied to his abstinence from alcohol?
MS CIDONI:    Yes.
TRIBUNAL:     So, what we're really looking at … the issue that I have to look at is    the risk of him reoffending which is really the risk of him lapsing into   alcohol abuse again; are you able to make any assessment as to the   likelihood of that occurring?
MS CIDONI:    Yes, sir. So, I think, you know, again I'll go back to what I said before.                    That, you know, it is well accepted that alcohol is a disease, right.   You know, Alcohols Anonymous and organisations such as that say   that once an alcoholic, you're either in remission or you're not. It is a   disease, it's a very addictive disease. Prediction of relapse is very,   very, difficult. Other than, you know, relying on the research and my   expertise and work I've done in the field for so many years, is that it's   really based on whether he is - you know, alcoholism is often linked   to psychosocial stressors. So, for example, if he was placed in a    situation where he was under duress, high stress, his relationship   broke down, you know, couldn't get a job, became ill, got in a car   accident, whatever the range of things are it would mean that he   could relapse. So, we can't predict – like, it's a snapshot point in time   while he is in remission, things are looking good.
…
TRIBUNAL:     So … it's driven by the dynamic factors that he's going to face?
MS CIDONI:    Correct. And it is that, sir. But, it's also about what – for example, as    I said to you, if he were – like, we were talking about the topic of   perhaps going back to Sudan, okay. So, he returns back to a place   where he was exposed to quite severe trauma. I would suggest that   his risk of relapsing is high not only because of the severe trauma but   because of the lack of resources in terms of treatment in that   particular part of the world versus being in our good country where   there is a lot of support in relation to - you know, people who are in   remission from various substance abuse issues. But, it is up to him    to pursue that.[53]
[53] Transcript at 94.
I then asked Ms Cidoni about her comment in her report that she had in part based her assessment of risk on the applicant having a stable family support, in particular a relationship with Ms M, the mother of his children. I asked Ms Cidoni whether the applicant not being in a stable relationship with his former partner with whom the children live would impact her assessment. Her answer was:
MS CIDONI:    I think what would make a difference is if the partner was rejected of    him and he couldn't perhaps have – he wants to return to the family   home, he says the partner's supportive.
…
TRIBUNAL:     And if he were not able to reconcile with his partner and return to live                     with her and their children; would that, in your view, elevate the risk   of him returning to alcohol?
MS CIDONI:    Yes, that would certainly be a risk factor. Because, the absence of    the stable social support would not be present.[54]
[54] Transcript 95–6.
It is clear that the applicant’s history of offending, some of which has been serious and some of which must, by operation of Direction 90 be considered very serious (family violence), is linked to his alcohol abuse and to his mental health. The applicant himself says that that is the case. The obvious concern in looking at the risk of the applicant re-offending is whether the applicant’s alcohol abuse and mental health conditions have been addressed. The applicant has undertaken a number of relevant courses while in prison and immigration detention, has been offered ongoing treatment through Holyoake and has stated a desire to be involved with AA.
I also accept that the applicant is sincere in his desire to do everything that he can to not return to alcohol abuse, that he is sincere when he expresses remorse for his offending in the past and that his time in prison and immigration detention has, not only meant that he has been sober for two years, but has also provided the opportunity for the applicant to realise the consequences of his past actions and appreciate the consequences of future offending, particularly the effect on his visa status.
While it could be argued that Ms Cidoni’s assessment of the applicant’s risk of reoffending as being low-medium was based on some factual assumptions which may not be correct, I do think that even if those assumptions proved not to be correct there would be good grounds for me to reject Ms Cidoni’s assessment.
As noted above, the harm that would be caused should the applicant engage in the offending behaviour that he has in the past is serious. This, coupled with my assessment of the risk of the applicant re-offending as low-medium, causes me to consider that this first primary consideration weighs against revocation of the cancellation of the applicant’s visa and that moderate weight should be given to it.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
Paragraph 8.2 of Direction 90 relevantly provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)     a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)     there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:
a)     the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b)     the cumulative effect of repeated acts of family violence;
c)   rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)     Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.
Paragraph 4(1) of Direction 90 relevantly defines family violence as follows:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a) an assault; or
b) a sexual assault or other sexually abusive behaviour; or
c) stalking; or
d) repeated derogatory taunts; or
e) intentionally damaging or destroying property; or
...
(Original emphasis.)
As has been noted in previous AAT decisions and Federal Court judgments, unfortunately, the definition of family violence does not include a definition of a member of a person’s family. In Taylor and Minister for Immigration, Citizenship and Multicultural Affairs[55] at [91]–[99], I reviewed relevant curial and AAT authorities to form the view that family member (for the purposes of this direction) should, in addition to direct family members and spouses, include de facto partners and former de facto partners. I adopt that reasoning.
[55] [2022] AATA 2889.
The Minister identifies the convictions for common assault and assault occasioning actual bodily harm in 2009 and the conviction in 2018 for unlawful assault and thereby did bodily harm as being relevant to this consideration. The Minister submits[56] that:
(a)The convictions arose approximately a decade apart, each involved actual physical violence and were committed in remarkably similar circumstances.
(b)It could not be said that there is any cumulative effect, given the offences were committed against different victims.
(c)There is limited evidence of rehabilitation. The fact that in relation to the most recent conviction the applicant pleaded not guilty and was convicted after a trial indicates limited remorse and insight.
(d)The more recent family violence occurred following a formal warning from the Department about his migration status should he commit further criminal offences.
[56] Minister’s SFIC para 63.
The applicant conceded that he has committed acts of family violence against two domestic partners but notes that the offences were committed almost a decade apart.[57]
[57] Applicant’s SFIC para 68.
The applicant also concedes that acts of family violence must be considered very serious[58] irrespective of the sentence imposed.[59] As the applicant points out, notwithstanding that directive under Direction 90, the decision-maker must still make an assessment of the seriousness of the family violence. Direction as to how that assessment is to be made is provided in para 8.2(3) of Direction 90. In relation to the indicia identified in that provision, I find as follows:
[58] Direction 90 para 8.1.1(1)(a)(iii).
[59] Applicant’s SFIC para 69.
(a)The incidence of family violence has been infrequent; effectively two episodes over nine years apart with no trend of increasing seriousness.
(b)There is no apparent cumulative effect.
(c)While the programs undertaken by the applicant have been limited, primarily due to unavailability:
(i)the applicant does accept that what he did was wrong. In that regard I think that what might be seen as some reticence on the part of the applicant in accepting the facts of the incidents was, in large part, caused by his inability to remember the details due to his intoxication at the time;
(ii)I accept that the applicant understands the impact on the victims in each case;[60] and
(iii)the courses that the applicant has undertaken were primarily aimed at addressing the applicant’s alcohol abuse.[61] As the acts of family violence were committed while the applicant was intoxicated, addressing the applicant’s alcohol abuse issues will largely address the family violence issue. I also note that the applicant is currently engaged in a weekly behavioural change program specifically aimed at men who have committed family violence.
(d)The applicant did receive a warning in 2011 in relation to reoffending generally (see [15] above), however, that warning was not “about the consequences of further acts of family violence” to which sub-para (d) refers. Insofar as the 2018 act of family violence occurred after the applicant had received the formal warning in September 2011, I have taken that into account under the first primary consideration (see [50(g)] above).
[60] Transcript at 31.
[61] ADAPT alcohol and other drugs program, Drug and Alcohol Abuse 101; see A3 paras 51–5; R1/207; also discussed by the applicant in his evidence, see transcript at 32–6.
While, as noted above at [81], all acts of family violence are to be considered as very serious, I accept that, on the scale of seriousness, the applicant’s offending falls at the lower end. The two incidents were isolated acts of disrespect and stupidity, largely driven by intoxication, not premeditated acts of violence deliberately aimed at harming the victims.
This consideration weighs against revocation of the cancellation of the applicant’s visa. Given the relatively minor nature of the incidents of family violence, the fact that they arose from two isolated incidents over nine years apart and my acceptance of the applicant now having taken serious steps to address his alcohol abuse, which was the cause of both incidents, only minor weight should be given to this consideration.
Third primary consideration: The best interests of minor children in Australia (para 8.3)
Paragraph 8.3 of Direction 90 relevantly provides:
(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to ... not revoke the mandatory cancellation of the visa, is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a)    the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)    the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)    the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)    the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)    whether there are other persons who already fulfil a parental role in relation to the child;
f)     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)    evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)    evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

In relation to the reference to s 197C of the Act in para 9.1(2) as quoted above, I note that that the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) commenced on 25 May 2021. That Act made amendments to the Act including the introduction of s 197C(3) and a new s 36A relating to “protection findings” in the context of removal. Under the newly enacted s 197C(3) of the Act, an unlawful non-citizen will not be removed to a country if they have made a valid application for a protection visa that has been finally determined, and in the course of considering that application a “protection finding” was made. A “protection finding” includes, but is not limited to, a finding that a person a refugee[83] or is owed complementary protection.[84]
[83] The Act s 36(2)(a).
[84] The Act s 36(2)(aa).
As quoted above, para 9.1(7) of Direction 90 states that where a person makes a claim which may give rise to international non-refoulement obligations and the person is able to make an application for a protection visa, those claims will be “conclusively assessed” before consideration is given to any character or security concerns associated with the non-citizen. That obligation which applies to delegates of the Minister is also stipulated in Direction No 75,[85] made under section 499 of the Act.
[85] Minister for Immigration and Border Protection (Cth), Direction no. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b) (6 September 2017).
In Plaintiff M1/2021 v Minister for Home Affairs[86] the High Court considered the question:
In deciding whether there was another reason to revoke the Cancellation Decision pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), was the Delegate required to consider the plaintiff’s representations made in response to the invitation issued to him pursuant to s 501CA(3)(b) of the Migration Act, which raised a potential breach of Australia’s international non-refoulement obligations, where the plaintiff remained free to apply for a protection visa under the Migration Act?
[86] [2022] HCA 17; (2022) 96 ALJR 497 (Keifel CJ, Keane, Gordon and Steward JJ (with whom Gageler J agreed)).
The High Court found that in deciding whether there was “another reason” to revoke the cancellation decision pursuant to s 501CA(4)(b)(ii) of the Act, where the plaintiff remained free to apply for a protection visa under the Act:
(1) the Delegate was required to read, identify, understand and evaluate the plaintiff's representations made in response to the invitation issued to him under s 501CA(3)(b) that raised a potential breach of Australia's international non‑refoulement obligations;
(2) Australia's international non‑refoulement obligations unenacted in Australia were not a mandatory relevant consideration; and
(3) to the extent Australia's international non‑refoulement obligations are given effect in the Migration Act, one available outcome for the Delegate was to defer assessment of whether the plaintiff was owed those non-refoulement obligations on the basis that it was open to the plaintiff to apply for a protection visa under the Migration Act.
The applicant arrived in Australia on a Class XB Subclass 202 Global Special Humanitarian (permanent) visa. As the applicant has never held a protection visa, he would not be the subject of the bar on making further applications should it be decided not to revoke the cancellation of his visa. This means that he would be able to make an application for a protection visa, where any claims for protection would be “conclusively assessed”. The parties agreed that that was the position. The Minister further conceded that non-refoulement obligations are owed, at least in respect of complementary protection.[87]
[87] Transcript at 120.
The applicant’s position, as stated in his SFIC, is that that on the basis of the High Court’s judgment in M1/2021, the Tribunal “may not fall into error by failing to consider Australia's international non-refoulement obligations unenacted in Australia as they apply to the applicant”,[88] however, the same circumstances that are relied on by the applicant to claim that non-refoulement obligations arise, are relied on by the applicant in claiming impediments to his establishing himself if he were removed, citing M1/2021 at [39] where the High Court found:
Where the cancelled visa is not a protection visa and a decision-maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being “another reason” why the Cancellation Decision should be revoked.
(Footnote omitted.)
[88] Applicant’s SFIC para 111.
The applicant further submits that M1/2021 makes it clear that the Tribunal would not fall into error by considering Australia’s international non-refoulement obligations in a particular case, and that that case does not provide authority for the proposition that such considerations should be given little weight because the applicant is able to make an application for a protection visa. On the contrary, according to the applicant, it would only make sense that the Tribunal attributes appropriate weight reflective of the significance of non-refoulement obligations and the balancing task required in accordance with Direction 90.[89]
[89] Citing Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23], [28] per Colvin J.
The applicant contends that there are only two plausible legal outcomes of an adverse decision: refoulement in breach of Australia’s international obligations, or indefinite detention.
The Minister contends that the appropriate course in the present case is for the Tribunal to defer formal assessment of whether the applicant is owed nonrefoulement obligations on the basis that it is open to him to apply for a protection visa.[90] The Minister does concede that, for the purposes of this decision, and in light of country information, it is accepted that there is a real likelihood that the applicant could face a real risk of significant harm on return to South Sudan. This should, according to the Minister, be given weight in favour of revocation.[91]
[90] Minister’s SFIC para 74.
[91] Minister’s SFIC para 76.
While I appreciate that I would commit no jurisdictional error if I were to defer consideration of whether the applicant is owed non-refoulement obligations, I consider that it is appropriate to have regard to this consideration in the present case. Mr Papalia for the Minister, having confirmed that Minister’s acceptance of non-refoulement obligations being owed to the applicant, agree that it was appropriate for me to do so. As Mr Papalia put it:
I respectfully agree with that course and my submission goes to the fact that, on the basis of the country information before the [T]ribunal – and I note the DFAT report is not before the tribunal – but, it's from 2016, it's not particularly helpful, with the greatest of respect to DFAT, there's clearly a risk of significant harm (indistinct words) if he's returned to South Sudan and, on that basis, it's a cogent reason to find that non-refoulement obligations are owed.[92]
[92] Transcript 121.
I also agree with the applicant’s submission that, in considering non-refoulement, it is appropriate to consider detention for an indefinite period as a possible consequence of the decision that I have to make (see [116] above).
In relation to the possibility of the applicant being detained for an indefinite period if I were to affirm the decision under review, I note Ms Cidoni’s observations about the impact that detention has had and is likely to have on the applicant’s psychological condition. At para 58 of her report Ms Cidoni opined:
If [the applicant] were made to remain in immigration detention indefinitely, he will still be limited in accessing support services. Further, the prospect of indefinite immigration detention will be extremely hard for [the applicant] to come to terms with and will have a severe impact on his mental health.
In relation to the impact that a return to South Sudan would have on the applicant, Ms Cidoni’s view was:
His return to South Sudan could exacerbate alcoholism and cause relapse and worsen his prognosis. He will be unable to access an adequate level of treatment, and assistance from support services as he would here. Further, the gains he has made at present are likely to diminish. He will likely return to what he knows (alcohol consumption) as a mechanism to cope with these further experiences.[93]
[93] R1/223 para 57.
The Minister, correctly in my view, concedes that non-refoulement obligations are owed to the applicant, that “there's clearly a risk of significant harm (indistinct words) if he's returned to South Sudan” (see [118] above) and that this consideration weighs in favour of revocation of the cancellation of the applicant’s visa (see [117] above).
Given the conceded significant harm that the applicant would potentially face if he were to be returned to South Sudan and the impact that detention for an indefinite period is likely to have on his mental health according to Ms Cidoni, I agree that this consideration weighs in favour of revocation of the cancellation of the applicant’s visa and I consider that moderate weight should be given to it.
Extent of impediments if removed (para 9.2)
Paragraph 9.2 of Direction 90 provides:
(1) Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)     the non-citizen’s age and health;
b)     whether there are substantial language or cultural barriers; and
c)   any social, medical and/or economic support available to them in that country.
The relevant consideration is whether, taking into account the considerations identified in sub-paras 9.2(1)(a), (b) and (c), the applicant would face an impediment or impediments in establishing and maintaining basic living standards in the context of the basic living standards that other citizens of South Sudan enjoy.
The applicant submitted that if he were returned to South Sudan, he would not have access to support, intervention or treatment of his alcohol use disorder, which would likely cause his health to deteriorate. The applicant says that he has little memory of South Sudan and has no social or family supports. He further claims that he associates South Sudan with the considerable childhood trauma he endured there, including the loss of his father, separation from his parents and his displacement on two occasions.[94]
[94] Applicant’s SFIC para 159.
The applicant also says that the armed conflict in South Sudan, the food shortages, COVID-19, widespread food insecurity, intercommunal violence and outbreaks of disease represent extraordinary and insurmountable impediments, which would render it impossible for him to establish himself to any safe or tolerable degree.[95]
[95] Applicant’s SFIC para 162.
The Minister accepts that there are likely to be substantial impediments to the applicant establishing himself and maintaining basic living standards in South Sudan and that this should be given weight in favour of revocation.[96]
[96] Minister’s SFIC para 81.
It is obvious that the applicant would face considerable impediments in establishing and maintaining a basic living standard if he were returned to South Sudan. He has not lived in the country for over 30 years, having left as a child. He has no social supports, and while there was no authoritative evidence provided, I accept Ms Cidoni’s observation based on her experience of treating people from Sudan and South Sudan[97] that the supports that are likely to be available to the applicant to address his ongoing treatment needs are likely to be limited. At para 53 of her report,[98] Ms Cidoni summarised the position as follows:
Sudan is one of the world’s poorest countries, with extremely low health, social and economic indicators. The first civil war in Sudan began in 1955, but war is a severe, ongoing issue. Living conditions are poor, malnutrition is common, illness is severe and there are limited health and educational services available.
[97] Transcript at 97.
[98] R1/223.
I find that the applicant would face significant impediments in in establishing himself and maintaining basic living standards even by reference to basic living standards in South Sudan. He has no supports, family or otherwise, has never lived in the country as an adult and faces the distinct possibility of harm (conceded by the Minister), as well as little medical support or treatment for his alcohol use disorder. I find that this consideration weighs heavily in favour of revocation of the cancellation of the applicant’s visa.
Impact on victims (para 9.3)
Paragraph 9.3 of Direction 90 is as follows:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
As noted above, the applicant’s former partner did not provide a statement or given evidence. Accordingly, we do not know what her attitude would be to a decision to allow the applicant to stay.
The applicant made no submission on this consideration and the Minister stated that there are “no known views” and that this factor should be given neutral weight. I agree.
Links to the Australian Community (para 9.4)
Paragraph 9.4 of Direction 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 and 9.4.2 below.
Strength, nature and duration of ties to Australia (para 9.4.1)
Paragraph 9.4.1 of Direction 90 is as follows:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant arrived in Australia as an 18-year-old and has lived here ever since. The impact of a decision on the applicant’s visa will have a significant impact on his immediate family members. The impact on his children has been discussed in the above consideration of the best interests of minor children. As set out in that consideration, the impact will be significant.
The applicant’s sister and her family, including her husband and nine children will also be impacted by a decision not to allow the applicant to stay in Australia, as would the applicant’s brother, who only arrived in Australia four years ago.[99]
[99] Transcript at 76.
The applicant contended that his entire social network is in Australia. With the exception of his mother, who lives in Uganda and from whom he has been separated since he was three or four years old, his entire family is in Australia.
The Minister accepts that the applicant has built social and familial ties within Australia, including people who have an indefinite right to remain in Australia. It is likely that his family members will suffer emotional detriment if the applicant remains in immigration detention.
I am satisfied that the applicant has significant ties to the Australian community, primarily through his immediate family, and that this consideration weighs in favour of revocation of the cancellation of the applicant’s visa. While the applicant has been in Australia since 2004, he did start offending within four years of his arrival.[100] I accept that he has contributed to the community through his regular employment.[101] I find that that moderate weight should be given to this consideration.
[100] Direction 90 para 9.4.1(2)(a)(i).
[101] Direction 90 para 9.4.1(2)(a)(ii).
THE WEIGHING EXERCISE
Direction 90 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account (see [31] above).
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. I am guided by Colvin J’s judgment in Suleiman and the Full Court judgment in Minister for Home Affairs v HSKJ.[102]
[102] [2018] FCAFC 217; (2018) 266 FCR 591.
Colvin J’s judgment in Suleiman was considered by Wigney J in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[103] At [21], Wigney J cited [23] of Colvin J’s judgment which was as follows:
The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 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.
(Emphasis omitted.)
[103] [2021] FCA 775.
Wigney J then observed at [22]:
It is the last sentence of this paragraph of Suleiman which has given rise to the issue in this case. That issue will be discussed in more detail later. It suffices at this point to note that, with the greatest respect to Colvin J, this analysis of paragraph 8 of the relevant direction tends to overcomplicate or over intellectualise the issue. More significantly, it may lead decision-makers into error. Paragraph 8 of Direction no. 79 is expressed in simple terms. Relevantly, decision-makers must take into account the primary and other considerations that are relevant to the individual case and, when it comes to weighing up the relevant considerations, have regard to three relevant principles: first, both primary and other considerations may weigh in favour of, or against, whether or not to revoke a cancellation of a visa; second, primary conditions should generally be given greater weight than other considerations; and third, one or more primary considerations may outweigh other considerations. It is difficult to see why any further elaboration of those simple principles or propositions is necessary or warranted.
(Emphasis omitted.)

The Tribunal in CZCV at [164] summarised the legal position as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so. ...
I adopt the approach directed by the above cases.
I find that the first primary consideration, the protection of the Australian community, weighs against revocation of the cancellation of the applicant’s visa and that moderate weight should be given to it.
I find that the second primary consideration, family violence, weighs against revocation of the cancellation of the applicant’s visa, but only minor weight should be given to it.
I find that the third primary consideration, the best interests of minor children, weighs heavily in favour of revocation of the cancellation of the applicant’s visa.
The fourth primary consideration, the expectations of the Australian community, as it must, weighs against the revocation of the cancellation of the applicant’s visa but I find that only minor to moderate weight should be given to this consideration.
In relation to the “other considerations” identified in Direction 90, I find that international non-refoulement obligations weighs in favour of revocation of the cancellation of the applicant’s visa and that moderate weight should be given to it.
I find that the consideration of extent of impediments if removed weighs heavily in favour of revocation of the cancellation of the applicant’s visa.
I find that the consideration of links to the Australian Community weighs in favour of revocation of the cancellation of the applicant’s visa and that moderate weight should be given to this consideration.
Having weighed the considerations in favour of the revocation of the cancellation of the applicant’s visa and the considerations against the revocation of the cancellation of the applicant’s visa, I find that the considerations in favour of revocation, particularly the best interests of the children, the links to the Australian community and impediments if removed, outweigh those against revocation. Accordingly, I find that there is another reason to revoke the decision to cancel the visa.
DECISION
The decision of the delegate of the Minister dated 7 July 2022 not to revoke the cancellation of the applicant’s visa pursuant to s 501CA(4) of the Act is set aside and substituted with the decision that the cancellation of the applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Act.

I certify that the preceding 155 (one hundred and fifty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...[SGD].....................................................................
Associate
Dated: 30 September 2022

Dates of hearing: 13–14 September 2022

Counsel for the Applicant: Mr B Overend

Solicitors for the Applicant: Asylum Seeker Resource Centre

Counsel for the Respondent: Mr J Papalia

Solicitors for the Respondent: Australian Government Solicitor
ANNEXURE

Court

Result Date

Offence

Result

Perth Magistrates Court

6 August 2020

Exceed 0.08g of alcohol per 100ml of blood

$1,600 fine; Motor driver’s licence disqualified for 30 months (concurrent)

Perth Magistrates Court

6 August 2020

No authority to drive (disqualified)

Four months’ imprisonment (from 6 August 2020); motor driver’s licence disqualified for nine months (cumulative)

Perth Magistrates Court

6 August 2020

No authority to drive – suspended

Motor driver’s licence disqualified for nine months (cumulative); six months’ imprisonment from 6 August 2020 (concurrent)

Perth Magistrates Court

6 August 2020

Fail to provide sample of breath for breath analysis test

Motor driver’s licence disqualified for life; imprisonment for 10 months from 6 August 2020 (concurrent)

Perth Magistrates Court

6 August 2020

Wilfully mislead a person

$500 fine

Perth Magistrates Court

6 August 2020

Wilfully mislead a person

$700 fine

Perth Magistrates Court

7 December 2018

Unlawfully assault and thereby did bodily harm with circumstances of aggravation

$1,500 fine

Perth Magistrates Court

7 December 2018

Criminal damage or destruction of property

$500 fine

Perth Magistrates Court

5 April 2018

Wilfully mislead a person

$200 fine

Perth Magistrates Court

5 April 2018

Exceed 0.05g of alcohol per 100ml of blood

Motor driver’s licence disqualified for eight months; $500 fine (concurrent)

Perth Magistrates Court

5 April 2018

No authority to drive – suspended

Suspended imprisonment order to continue; motor driver’s licence disqualified for nine months (cumulative)

Perth Magistrates Court

5 April 2018

Give false personal details to police

$200 fine

Perth Magistrates Court

18 December 2017

Driver failed to give name and address (property damage)

$200 fine

Perth Magistrates Court

18 December 2017

No authority to drive – never held an Australian licence and is disqualified

$1,800 fine; motor driver’s licence disqualified for nine months (cumulative)

Perth Magistrates Court

15 September 2017

No authority to drive – never held an Australian licence and is disqualified

$1,800 fine; motor driver’s licence disqualified for 12 months (cumulative)

Perth Magistrates Court

15 September 2017

Drove under the influence of alcohol

$2,000 fine; motor driver’s licence disqualified for 30 months (concurrent)

Perth Magistrates Court

27 April 2017

Provided false or misleading personal details

$400 fine

Perth Magistrates Court

27 April 2017

No authority to drive – suspended

$1,500 fine; motor driver’s licence disqualified for one year (cumulative)

Perth Magistrates Court

19 April 2016

No authority to drive – suspended

$1,000 fine; motor driver’s licence disqualified for nine months (cumulative)

Perth Magistrates Court

19 April 2016

Exceed 0.08g of alcohol per 100ml of blood

$1,600 fine; motor driver’s licence disqualified for 18 months (cumulative)

Perth Magistrates Court

17 December 2015

No authority to drive – suspended

$400 fine; motor driver’s licence disqualified for nine months (cumulative)

Perth Magistrates Court

17 December 2015

Fail to provide sample of breath analysis test

$900 fine; motor driver’s licence disqualified for 10 months (concurrent)

Perth Magistrates Court

17 December 2015

Exceed 0.08g of alcohol per 100ml of blood

$1,000 fine; motor driver’s licence disqualified for six months (concurrent)

Perth Magistrates Court

17 December 2015

No authority to drive – suspended by disqualification notice

$600 fine; motor driver’s licence disqualified for nine months (cumulative)

Brisbane Magistrates Court

14 December 2013

Commit public nuisance (on 14 December 2013)

$200 fine; in default imprisonment for three days; time to pay of six months

Brisbane Magistrates Court

14 December 2013

Assault or obstruct police officer (on 25 June 2011)

On all charges: conviction recorded, $200 recognisance; good behaviour period of 12 months

Brisbane Magistrates Court

14 December 2013

Assault or obstruct police officer (on 25 June 2011)

Brisbane Magistrates Court

14 December 2013

Failure to appear in accordance with undertaking (on 18 July 2011)

No conviction recorded; not further punished

Lismore Local Court

16 January 2012

Destroy or damage property of lesser or equal value to $2,000

Conviction with no other penalty

Lismore Local Court

18 April 2011

Drive with middle range prescribed concentration of alcohol

12 months’ imprisonment (suspended on entering bond); 12 months’ supervision by NSW probation service; motor driver’s licence disqualified for 12 months (concluding on 25 December 2013); disqualification (habitual offender): quashed

Lismore Local Court

18 April 2011

Drive while disqualified from holding a licence

12 months’ imprisonment (suspended on entering bond); 12 months’ supervision by NSW probation service; disqualified for two years (concluding 25 December 2014); disqualification (habitual offender): quashed

Lismore Local Court

18 April 2011

Driver/rider state false name/address

Conviction with no other penalty

Parramatta District Court

10 November 2009

Drive while disqualified from holding a licence

(Call up) conviction confirmed: (appeal lodged prior to revocation of bond dated 9 October 2009

Parramatta Local Court

9 October 2009

Drive while disqualified from holding a licence

(Call up) six months’ imprisonment (commencing 17 July 2009, concluding 16 January 2010); severity appeal without stay lodged

Parramatta Local Court

9 October 2009

Drive with middle range prescribed concentration of alcohol

(Call up) four months’ imprisonment (commencing 17 July 2009, concluding 16 November 2009); disqualification of three months commencing 4 March 2009, concluding 3 June 2009

Parramatta Local Court

9 October 2009

Armed with intent to commit indictable offence

(Call up) imprisonment for two months (commencing 10 August 2009, concluding 9 October 2009

Parramatta Local Court

9 October 2009

Resist or hinder police officer in the execution of duty

Two months’ imprisonment (commencing 10 August 2009)

Paramatta Local Court

9 October 2009

Common assault

Three months’ imprisonment (commencing 17 July 2009, concluding 16 October 2009)

Parramatta Local Court

9 October 2009

Assault occasioning actual bodily harm

Four months’ imprisonment (commencing 17 July 2009, concluding 16 November 2009)

Burwood Local Court

4 March 2009

Driver/rider state false name/address

$350 fine

Burwood Local Court

4 March 2009

Fraudulently alters, uses or lends driver’s licence

Conviction with no other penalty

Burwood Local Court

4 March 2009

Not give particulars to other driver

Conviction with no other penalty

Burwood Local Court

4 March 2009

Drive with middle range prescribed concentration of alcohol

18 months’ supervision by NSW probation service; to accept probation service as supervision for as long as considered necessary, unless excused on presentation of evidence of enrolment in university in Tasmania; accept supervision including drug and alcohol rehabilitation and report to the Bankstown office within seven days; disqualification for three years commencing 4 March 2009

Burwood Local Court

4 March 2009

Negligent driving (not occasioning death/grievous bodily harm)

$450 fine; $73 in court costs

Burwood Local Court

4 March 2009

Drive while disqualified from holding a licence

Six months’ imprisonment suspended on entering of bond for six months; disqualification for two years (cumulative)

Downing Centre Local Court

2 March 2009

Armed with intent to commit indictable offence

Bond for three years; $73 in court costs

Burwood Local Court

27 January 2009

Fail to hold valid ticket for train travel

Conviction with no other penalty

Parramatta Local Court

4 June 2008

Assault officer in execution of duty

$500 fine; $70 in court costs

Parramatta Local Court

4 June 2008

Resist officer in execution of duty

$200 fine

Parramatta Local Court

4 June 2008

Enter restricted area without offering ticket for processing

$150 fine

Parramatta Local Court

5 May 2008

Drive with high range prescribed concentration level

$1,000 fine; $70 in court costs; disqualification for three years commencing 26 December 2007

Parramatta Local Court

5 May 2008

Drive on road etc while licence suspended

$500 fine; disqualification for 12 months commencing 5 May 2008

Burwood Local Court

10 January 2008

Assault occasioning actual bodily harm

Bond for 12 months

Dates of hearing:	13–14 September 2022
Counsel for the Applicant:	Mr B Overend
Solicitors for the Applicant:	Asylum Seeker Resource Centre
Counsel for the Respondent:	Mr J Papalia
Solicitors for the Respondent:	Australian Government Solicitor

Court	Result Date	Offence	Result
Perth Magistrates Court	6 August 2020	Exceed 0.08g of alcohol per 100ml of blood	$1,600 fine; Motor driver’s licence disqualified for 30 months (concurrent)
Perth Magistrates Court	6 August 2020	No authority to drive (disqualified)	Four months’ imprisonment (from 6 August 2020); motor driver’s licence disqualified for nine months (cumulative)
Perth Magistrates Court	6 August 2020	No authority to drive – suspended	Motor driver’s licence disqualified for nine months (cumulative); six months’ imprisonment from 6 August 2020 (concurrent)
Perth Magistrates Court	6 August 2020	Fail to provide sample of breath for breath analysis test	Motor driver’s licence disqualified for life; imprisonment for 10 months from 6 August 2020 (concurrent)
Perth Magistrates Court	6 August 2020	Wilfully mislead a person	$500 fine
Perth Magistrates Court	6 August 2020	Wilfully mislead a person	$700 fine
Perth Magistrates Court	7 December 2018	Unlawfully assault and thereby did bodily harm with circumstances of aggravation	$1,500 fine
Perth Magistrates Court	7 December 2018	Criminal damage or destruction of property	$500 fine
Perth Magistrates Court	5 April 2018	Wilfully mislead a person	$200 fine
Perth Magistrates Court	5 April 2018	Exceed 0.05g of alcohol per 100ml of blood	Motor driver’s licence disqualified for eight months; $500 fine (concurrent)
Perth Magistrates Court	5 April 2018	No authority to drive – suspended	Suspended imprisonment order to continue; motor driver’s licence disqualified for nine months (cumulative)
Perth Magistrates Court	5 April 2018	Give false personal details to police	$200 fine
Perth Magistrates Court	18 December 2017	Driver failed to give name and address (property damage)	$200 fine
Perth Magistrates Court	18 December 2017	No authority to drive – never held an Australian licence and is disqualified	$1,800 fine; motor driver’s licence disqualified for nine months (cumulative)
Perth Magistrates Court	15 September 2017	No authority to drive – never held an Australian licence and is disqualified	$1,800 fine; motor driver’s licence disqualified for 12 months (cumulative)
Perth Magistrates Court	15 September 2017	Drove under the influence of alcohol	$2,000 fine; motor driver’s licence disqualified for 30 months (concurrent)
Perth Magistrates Court	27 April 2017	Provided false or misleading personal details	$400 fine
Perth Magistrates Court	27 April 2017	No authority to drive – suspended	$1,500 fine; motor driver’s licence disqualified for one year (cumulative)
Perth Magistrates Court	19 April 2016	No authority to drive – suspended	$1,000 fine; motor driver’s licence disqualified for nine months (cumulative)
Perth Magistrates Court	19 April 2016	Exceed 0.08g of alcohol per 100ml of blood	$1,600 fine; motor driver’s licence disqualified for 18 months (cumulative)
Perth Magistrates Court	17 December 2015	No authority to drive – suspended	$400 fine; motor driver’s licence disqualified for nine months (cumulative)
Perth Magistrates Court	17 December 2015	Fail to provide sample of breath analysis test	$900 fine; motor driver’s licence disqualified for 10 months (concurrent)
Perth Magistrates Court	17 December 2015	Exceed 0.08g of alcohol per 100ml of blood	$1,000 fine; motor driver’s licence disqualified for six months (concurrent)
Perth Magistrates Court	17 December 2015	No authority to drive – suspended by disqualification notice	$600 fine; motor driver’s licence disqualified for nine months (cumulative)
Brisbane Magistrates Court	14 December 2013	Commit public nuisance (on 14 December 2013)	$200 fine; in default imprisonment for three days; time to pay of six months
Brisbane Magistrates Court	14 December 2013	Assault or obstruct police officer (on 25 June 2011)	On all charges: conviction recorded, $200 recognisance; good behaviour period of 12 months
Brisbane Magistrates Court	14 December 2013	Assault or obstruct police officer (on 25 June 2011)
Brisbane Magistrates Court	14 December 2013	Failure to appear in accordance with undertaking (on 18 July 2011)	No conviction recorded; not further punished
Lismore Local Court	16 January 2012	Destroy or damage property of lesser or equal value to $2,000	Conviction with no other penalty
Lismore Local Court	18 April 2011	Drive with middle range prescribed concentration of alcohol	12 months’ imprisonment (suspended on entering bond); 12 months’ supervision by NSW probation service; motor driver’s licence disqualified for 12 months (concluding on 25 December 2013); disqualification (habitual offender): quashed
Lismore Local Court	18 April 2011	Drive while disqualified from holding a licence	12 months’ imprisonment (suspended on entering bond); 12 months’ supervision by NSW probation service; disqualified for two years (concluding 25 December 2014); disqualification (habitual offender): quashed
Lismore Local Court	18 April 2011	Driver/rider state false name/address	Conviction with no other penalty
Parramatta District Court	10 November 2009	Drive while disqualified from holding a licence	(Call up) conviction confirmed: (appeal lodged prior to revocation of bond dated 9 October 2009
Parramatta Local Court	9 October 2009	Drive while disqualified from holding a licence	(Call up) six months’ imprisonment (commencing 17 July 2009, concluding 16 January 2010); severity appeal without stay lodged
Parramatta Local Court	9 October 2009	Drive with middle range prescribed concentration of alcohol	(Call up) four months’ imprisonment (commencing 17 July 2009, concluding 16 November 2009); disqualification of three months commencing 4 March 2009, concluding 3 June 2009
Parramatta Local Court	9 October 2009	Armed with intent to commit indictable offence	(Call up) imprisonment for two months (commencing 10 August 2009, concluding 9 October 2009
Parramatta Local Court	9 October 2009	Resist or hinder police officer in the execution of duty	Two months’ imprisonment (commencing 10 August 2009)
Paramatta Local Court	9 October 2009	Common assault	Three months’ imprisonment (commencing 17 July 2009, concluding 16 October 2009)
Parramatta Local Court	9 October 2009	Assault occasioning actual bodily harm	Four months’ imprisonment (commencing 17 July 2009, concluding 16 November 2009)
Burwood Local Court	4 March 2009	Driver/rider state false name/address	$350 fine
Burwood Local Court	4 March 2009	Fraudulently alters, uses or lends driver’s licence	Conviction with no other penalty
Burwood Local Court	4 March 2009	Not give particulars to other driver	Conviction with no other penalty
Burwood Local Court	4 March 2009	Drive with middle range prescribed concentration of alcohol	18 months’ supervision by NSW probation service; to accept probation service as supervision for as long as considered necessary, unless excused on presentation of evidence of enrolment in university in Tasmania; accept supervision including drug and alcohol rehabilitation and report to the Bankstown office within seven days; disqualification for three years commencing 4 March 2009
Burwood Local Court	4 March 2009	Negligent driving (not occasioning death/grievous bodily harm)	$450 fine; $73 in court costs
Burwood Local Court	4 March 2009	Drive while disqualified from holding a licence	Six months’ imprisonment suspended on entering of bond for six months; disqualification for two years (cumulative)
Downing Centre Local Court	2 March 2009	Armed with intent to commit indictable offence	Bond for three years; $73 in court costs
Burwood Local Court	27 January 2009	Fail to hold valid ticket for train travel	Conviction with no other penalty
Parramatta Local Court	4 June 2008	Assault officer in execution of duty	$500 fine; $70 in court costs
Parramatta Local Court	4 June 2008	Resist officer in execution of duty	$200 fine
Parramatta Local Court	4 June 2008	Enter restricted area without offering ticket for processing	$150 fine
Parramatta Local Court	5 May 2008	Drive with high range prescribed concentration level	$1,000 fine; $70 in court costs; disqualification for three years commencing 26 December 2007
Parramatta Local Court	5 May 2008	Drive on road etc while licence suspended	$500 fine; disqualification for 12 months commencing 5 May 2008
Burwood Local Court	10 January 2008	Assault occasioning actual bodily harm	Bond for 12 months