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

Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875 (16 August 2021)
Division:GENERAL DIVISION
File Number(s): 2021/3359
Re:Tyson Tewhare
APPLICANT

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

DECISION
Tribunal:Senior Member C. J. Furnell
Date:16 August 2021
Place:Melbourne

The Tribunal sets aside the decision under review and, in substitution for that decision, the Tribunal decides to revoke the decision to cancel the Applicant’s visa.
...........................[SGD].............................................
Senior Member
Catchwords
MIGRATION – mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa – Migration Act 1958 (Cth) s 501(3A) – Applicant does not pass character test – substantial criminal record – whether there is another reason why mandatory cancellation should be revoked – Direction 90 – primary and other considerations – decision under review set aside and substituted
Legislation
Acts Interpretation Act 1901 (Cth)
Legislation Act 2003 (Cth)
Migration Act 1958 (Cth)
Cases
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Briginshaw v Briginshaw (1938) 60 CLR 336
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
HSCK v Minister for Home Affairs [2019] AATA 4392
Hughes v R [2017] HCA 20
Kayo Rerekura and Minister for Home Affairs [2019] AATA 153
Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
LLSY and Minister for Immigration and Citizenship [2011] AATA 334
Mahamud and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1635
Minister for Home Affairs v Buadromo (2018) 267 FCR 320
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
NADB of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 326
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
PQSM v Minister for Home Affairs [2019] FCA 1540
Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303
Sullivan v Civil Aviation Safety Authority [2013] FCA 1362
Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409
Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545
Secondary Materials
Direction No 90 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member C. J. Furnell
16 August 2021

In this proceeding, the issue before the Tribunal is whether it is satisfied of either of two things. If it is, in the circumstances of this matter, it would be required under the Migration Act 1958 (the Act) to revoke the Respondent’s decision to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
I am satisfied of one of those two things. Hence, the Tribunal sets aside the decision the subject of review and, in substitution, decides to revoke the visa cancellation decision.
I have arrived at that state of satisfaction for the reasons which follow.
BACKGROUND
On 8 December 2017, the Applicant was convicted of a number of charges and sentenced to an aggregate term of imprisonment of four years and three months.[1]
[1] G2, pp. 26-7. References to “G” are references to documents provided by the Respondent under s 501G of the Act, known as “G”-Documents.
On 11 December 2018, the Applicant’s visa was subject to mandatory cancellation.[2] The cancellation was mandatory because, under s 501(3A) of the Act:
(a)a delegate of the Minister was satisfied that the Applicant did not pass the character test set out in s 501 of the Act because he had a substantial criminal record,[3] having been sentenced to a term of imprisonment of 12 months or more;[4] and;
(b)the applicant was then serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of an Australian State.
[2] G2, p.118.
[3] As defined in the Act, s 501(7).
[4] Act s 501(7)(c).
The Applicant sought to have the visa cancellation decision revoked, making representations about revocation in response to, and in accordance with, the requisite invitation to do so.[5]
[5] Act, s 501CA(3). See G2, pp.38-54.
As a result, the Respondent became obliged to revoke that decision if satisfied that the Applicant passed the character test or that there was another reason why the visa cancellation decision should be revoked.[6] On 24 May 2021, however, a decision was made not to revoke the visa cancellation decision.[7]
[6] Act, s 501CA(4).
[7] G2, pp.10-25.
The Applicant applied to the Tribunal for review of that non-revocation decision on 25 May 2021.[8]
[8] G1, p.3.
In conducting that review, the Tribunal performs the same function and exercises the same power as the primary decision-maker.[9] As such, in this proceeding, the task for the Tribunal is to decide whether it is satisfied that the Applicant passes the relevant character test or that there is another reason why the visa cancellation decision should be revoked.[10]
[9] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [14], [15] and [51].
[10] I note that, if I were to be so satisfied, the decision would have to be revoked. I would not have any residual discretion to nevertheless refuse revocation: Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 at [38]; Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [21].
The Applicant accepts that he does not pass the character test[11] but submits that there is another reason why the visa cancellation decision should be revoked.
[11] Applicant’s Statement of Facts, Issues and Contentions of 2 July 2021 (A SFIC) at [2(b)].
As is apparent from my decision in this matter, I have accepted that submission.
Material before the Tribunal
In endeavouring to undertake the task entrusted to the Tribunal in this proceeding, I have had regard to the submissions made at and before, and evidence adduced at, the hearing,[12] and to certain documentary material lodged with the Tribunal prior to the hearing.
[12] In terms of submissions made before the hearing, reference is made to the Respondent’s Statement of Facts, Issues and Contentions of 15 July 2021 (R SFIC) and the A SFIC. As for evidence adduced at the hearing, the Tribunal heard from the Applicant, his mother and Dr Yoxall, psychologist.
That documentary material comprised:
(a)Two volumes of documents provided by the Respondent under s 501G of the Act (which I refer to as the “G” documents and being Exhibit R1);[13]
(b)Compiled bundle of summons material (Exhibit R2);
(c)Annexure A to the Respondent’s Statement of Facts, Issues and Contentions (Exhibit R3);
(d)Statement of the Applicant (found at G2, pp.71-2 and being Exhibit A1);
(e)Statutory declaration of the Applicant (found at G2 pp.73-7 and being Exhibit A2);
(f)Undated, unexecuted, form of Statutory Declaration of Mary Te Whare (Exhibit A3).
[13] With the exception of those pages of the G documents as comprise Exhibit A1 or A2.
Aspects of the Factual Context
The Applicant is aged 32, having been born in New Zealand in March 1989. He has four siblings, an older brother and an older sister, and a younger brother and a younger sister. Currently, all his siblings, bar one, reside in Australia. He described his family as “pretty close”.[14]
[14] Applicant’s oral evidence.
The Applicant’s parents relocated from New Zealand to a regional town in Victoria in September 2008.[15]
[15] G2, p.73.
The Applicant relocated to that Victorian town from New Zealand in February 2010, aged 20. He was accompanied by his newborn daughter (now aged 11) and his then partner, who I will refer to as June.
Since arriving in Australia, the Applicant and June had three more children, now aged nine, eight and five.[16]
[16] G2, pp.73-4.
In or around August or September 2015, the Applicant’s niece (who I will refer to as AN and who was then around 15 or 16 years old), began to reside with the Applicant and his family.[17]
[17] G2, p.74.
In or around November 2016, the Applicant and June separated. The Applicant nevertheless continued to see his children every weekend. One year later, in November 2017, June, along with her and the Applicant’s children, relocated to New Zealand.[18] The Applicant contends that she did so because her social security benefits in New Zealand were significantly better than those she would have in Australia.[19] June has since re-partnered and has a child by her new partner.[20]
[18] G2, p.75.
[19] G2, p.75; Applicant’s oral evidence.
[20] G2, p.100; Applicant’s oral evidence.
In October 2017, the Applicant pleaded guilty to charges of common law assault (two charges), criminal damage and aggravated burglary.[21] He was then remanded into custody.
[21] G2, p.29.
The events that led to these charges are described in the sentencing remarks of His Honour Judge Ryan of 8 December 2017.[22] I note that the Applicant does not cavil with His Honour’s description of those events.[23]
[22] G2, pp.28-37.
[23] G2, p.63.
One early Sunday morning on 28 August 2016, the Applicant (then aged 27), in the company of as many as five others, attended at the residential premises of the 23-year-old former boyfriend of AN (who I will call Ken) and Ken’s 56-year-old mother. The Applicant stated that he was going to kill both of them. The Applicant punched Ken several times and encouraged one of his co-offenders to stab Ken (albeit that Ken ultimately only suffered relatively minor injuries, including a minor laceration).
Some days prior to the Applicant’s offending, his mother had attended at those premises and verbally abused Ken. The Applicant’s mother is said to have then stated that she would return “with my boys.” As a result, an interim intervention order was obtained against the Applicant’s mother on 22 August 2016.[24]
[24] Exhibit R2, p.62.
All this occurred in a context where, on the material before me (to which Ken has had no opportunity to respond), it would appear that AN had been the subject of severe physical abuse as well as mental abuse by Ken, and had been introduced to illicit drugs such as crystal methamphetamine (ice) by Ken.[25] AN was seventeen years of age at the time.
[25] See AN’s statement taken at a police station on 17 November 2017 at Exhibit R2, pp.41-5 and her handwritten statement of 4 November 2016 at G2, pp.78-80
The Applicant said he was told of Ken’s abuse of AN by several people, including June and his mother, roughly four days before becoming involved (that is, around 24 August 2016). AN had, by then, flown back to New Zealand to be with her mother.
The Applicant’s offending was not connected to substance abuse. While on the night before the incident the Applicant had been drinking, at the hearing of this proceeding it was submitted on his behalf that, at the time of the offending, his decision-making was not materially affected by alcohol.[26] His Honour Judge Ryan noted that the Applicant had “no difficulties with alcohol or drug abuse.”
[26] I note that this is to some extent inconsistent with what the Applicant is said to have told a psychologist on assessment in September 2020: G2, p.91.
At the hearing of this proceeding, the Applicant attributed his offending to a feeling that he had let AN and AN’s mother (the Applicant’s sister) down. As he saw it, he had failed to live up to his responsibility to care for and protect AN. That attribution was corroborated by Dr Yoxall, psychologist, in a report of April 2021[27] and in oral evidence at the hearing of this proceeding. Her opinion was that the Applicant considered he had failed his niece, parents and sister because he had not protected AN from being abused by an older male.[28]
[27] G2, pp.81-114.
[28] G2, p.88.
In terms of the impact on Ken and his mother, in the sentencing remarks of December 2017 it is said that they were forced to leave their home and that they continue to suffer from anxiety and sleep disturbance.[29]
[29] G2, p.31.
Since his arrival in Australia and up to the time of his being placed in remand in 2017, the Applicant had found consistent employment. At his sentencing hearing, references were provided by his then two most recent employers attesting to the Applicant’s commitment to hard work.[30] Indeed, oral evidence in support of the Applicant was then given by the principal of his most recent employer, who described the Applicant as an excellent employee who had worked on average some 65 to 70 hours per week.[31]
[30] Exhibit R2, pp.50 and 52.
[31] G2, p.33.
A report of a psychologist was also tendered at the Applicant’s sentencing hearing. In it the Applicant was assessed as not suffering from any ‘psychological diagnosable abnormality’.[32]
[32] Quoted at G2, p.34.
In the course of his sentencing hearing, the Applicant provided a handwritten apology to the victims of his offending dated 17 November 2017.[33] Judge Ryan accepted evidence of the Applicant’s remorse, noting that he had pleaded guilty at the earliest opportunity.[34]
[33] Exhibit R2, p.47.
[34] G2, p.35.
Overall, His Honour concluded that the Applicant’s offending constituted “a serious example of a confrontational aggravated burglary.”[35] Nevertheless, His Honour considered that the Applicant’s “prospects for rehabilitation are excellent”.[36]
[35] G2, p.36.
[36] G2, p.35.
On 8 December 2017, the Applicant was sentenced to, in aggregate, a term of imprisonment of four years and three months.[37]
[37] G2, p.26.
The Respondent contends that, quite apart from the offending in respect of which the applicant was so sentenced, the applicant “has had multiple interactions with the justice system”.[38]
[38] R SFIC [30].
I do not attribute significant weight to these “interactions.” Details of three of them are contained in Victoria Police incident reports found in Exhibit R2. None resulted in convictions. All occurred when the Applicant was in his early twenties. Two related to the Applicant allegedly being drunk in a public place.[39] The third involved members of a group of men threatening and harassing a third person. While the Applicant was a member of that group, what he did, if anything, as part of that group is unclear. [40]
[39] Exhibit R2, pp.10-11.
[40] Exhibit R2, p.9.
Moreover, I generally attribute little probative value to material such as police incident reports. While such reports may be contemporaneous records, they usually comprise representations that are prejudicial hearsay made by persons not called to give evidence. Even if principles relating to how the rules of evidence apply have no role to play in the evaluative task now before me,[41] I am nevertheless conscious of the significance of the context in which that task is being undertaken. In that context, I am reluctant to attribute significant weight to material such as the police incident reports here in question, which, as I see it, may properly be characterised as being or giving rise to “inexact proofs, indefinite testimony or indirect inferences.”[42]
[41] See BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [66] where it was said to be correct to conclude that the principle derived from Briginshaw v Briginshaw (1938) 60 CLR 336 (a principle to the effect that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved) did not apply in the context of a Tribunal determination as to whether it was satisfied of a particular matter. See also Mahamud and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1635 at [52] where it is said that the “…process of a decision-maker being satisfied of identity is an evaluative one, and is not ‘amenable to the application of an evidentiary burden of proof, such as the balance of probabilities’. Compare, however, Sullivan v Civil Aviation Safety Authority [2013] FCA 1362 at [37] which was permissive of the application of the principle derived from Briginshaw in Tribunal proceedings. See also LLSY and Minister for Immigration and Citizenship [2011] AATA 334 at [50], citing Briginshaw. See the discussion of these cases in HSCK v Minister for Home Affairs [2019] AATA 4392 at [141]-[147]. See also NADB of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 326 at [41].
[42] Briginshaw v Briginshaw (1938) 60 CLR 336,
DOES APPLICANT PASS THE CHARACTER TEST?
The Applicant concedes that the Tribunal cannot be satisfied that he passes the character test.[43] Having regard to the factual context just outlined, he was right to do so.
[43] A SFIC 2(b).
The character test is set out in s 501(6) of the Act. Under that section, a person is considered not to pass the test if any of a number of circumstances applies in relation to the person. One such circumstance is when the person has a substantial criminal record.[44] The Applicant has such a record as he has been sentenced to a term of imprisonment of 12 months or more.[45]
[44] Act, s 501(6)(a).
[45] Act, s 501(7)(c).
As I am not satisfied that the Applicant passes the character test, the decision to cancel the Applicant’s visa can only be revoked if I am satisfied that there is another reason why the decision should be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
As is clear from my decision in this proceeding, I am satisfied that there is such a reason.
In arriving at that state of satisfaction, I have endeavoured to comply with (and am bound by s 499 of the Act to comply with) Direction 90. It is an instrument entitled “Direction No 90 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90).[46]
[46] Direction 90 imposes requirements that are a precondition for the making of a valid decision: PQSM v Minister for Home Affairs [2019] FCA 1540 at [22] per Colvin J.
Compliance with Direction 90 requires that I consider whether to revoke the decision to cancel the Applicant’s visa “given the specific circumstances of the case.”[47]
[47] Direction 90, cls 5.1(3) and 13(1).
That consideration is to be undertaken informed by,[48] and in the context of, a framework comprised of, [49] certain principles.
[48] Direction 90, cl 6.
[49] Direction 90, cl 5.2.
Those principles are set out in cl 5.2 of Direction 90, as follows:
“5.2      Principles
(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 risk of causing physical to the Australian community.
(4)       Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age
(5)       Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.”

I turn now to the considerations which (to the extent that they are relevant), I am required by Direction 90 to take into account in considering whether to revoke the decision to cancel the Applicant’s visa.[50]
[50] Direction 90, cls 5.2, 5.2(5) and 6.
CONSIDERATIONS – OVERVIEW
The relevant considerations are those set out in clauses 8 and 9 of Direction 90. They are divided into primary considerations and other considerations.
The primary considerations are protection of the Australian community from criminal or other serious conduct; whether the conduct engaged in constituted family violence; the best interests of minor children in Australia; and expectations of the Australian community.[51]
[51] Direction 90, cl 8.
The other considerations include (but are not limited to) international non-refoulement obligations; extent of impediments if removed; impact on victims; and links to the Australian community, including strength, nature and duration of ties to Australia and impact on Australian business interests.[52]
[52] Direction 90, cl 9(1).
The primary considerations are generally to be given greater weight than the other considerations[53] and one or more primary considerations may outweigh other primary considerations.[54]
[53] Direction 90, cl 7(2).
[54] Direction 90, cl 7(3).
While affording to primary considerations more weight than the other considerations is generally the case, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations.[55]
[55] Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303 at [32].
In taking considerations into account, “appropriate weight” is to be given to information and evidence from independent and authoritative sources.[56]
PROTECTION OF THE AUSTRALIAN COMMUNITY[57]
[56] Direction 90, cl 7(1)
[57] Direction 90, cl 8.1.
I turn now to the first of the primary considerations, the protection of the Australian community from criminal or other serious conduct consideration.
This consideration is one that requires that the Australian Government’s commitment to the protection of the Australian community from harm as a result of such conduct by non-citizens be kept in mind, with particular regard being required to be had to the first of the framework principles previously identified (ie, the principle about how there is a particular expectation engendered when conferring on non-citizens the privilege of entering and remaining in Australia).[58]
[58] Direction 90, cl 8.1(1).
Taking this primary consideration into account requires that regard be had to two subsidiary considerations. They are, in the circumstances, the nature and seriousness of the Applicant’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious conduct.[59]
Nature and seriousness of conduct[60]
[59] Direction 90, cl 8.1(2).
[60] Direction 90, cl 8.1.1.
Before addressing the specific factors to which I am required by Direction 90 to have regard in considering the nature and seriousness of the Applicant’s offending and conduct, I make some general observations.
First, to some extent, consideration has been given to the nature of the Applicant’s conduct to date in discussing aspects of the factual context.
As for the seriousness of the Applicant’s conduct, it is conceded by him that Direction 90 requires that I regard it as serious.[61] That concession understates, however, what Direction 90 requires in this regard. Consistently with the views of the Australian Government and the Australian community as identified in Direction 90, I regard the Applicant’s conduct as not only serious but very serious.
[61] Conceded at the hearing of this proceeding as well as in material lodged with the Tribunal: see G3, p.211.
Nevertheless, I accept the Applicant’s submission to the effect that his conduct has not been so serious as to admit only of a non-revocation decision.[62] The Applicant did not, for instance, personally employ a weapon and (while not down playing the psychological impact of his offending) no one was seriously physically injured as a result of his actions. Moreover, his offending has neither been frequent nor repeated.
[62] A SFIC at [39] where it is said that the Applicant’s conduct “is not so serious as to mean that anything other than a non-revocation decision would be appropriate”.
I turn now to the specific factors to which Direction 90 requires that I have regard in considering the nature and seriousness of the Applicant’s offending and conduct.[63]
Without limiting the range of conduct that may be considered very serious, the Australian Government and the Australian community view as very serious certain crimes and conduct, including violent crimes and crimes of a violent nature against women[64]
[63] Direction 90, cl 8.1.1(1).
[64] Direction 90, cl 8.1.1(1)(a).
As just mentioned, I consider the Applicant’s conduct as reflected in his offending to have been very serious. It entailed crimes of violence, including a crime (being assault) of a violent nature against a woman, the 56-year-old mother of AN’s former boyfriend, Ken.
On behalf of the Applicant, it is contended that the harm suffered by the mother was simply an incident of the Applicant’s attempts to assault her son and that she was not targeted by the Applicant.
It is true that the mother was not the object of the Applicant’s ire. It is also true, however, that the Applicant was nevertheless prepared to assault the mother (and did assault her) in his pursuit of her son.
Without limiting the range of conduct that may be considered serious, the Australian government and the Australian community consider to be serious certain crimes and conduct, including crimes committed against vulnerable members of the community[65]
[65] Direction 90, cl 8.1.1(1)(b).
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
With the exception of [certain crimes and conduct], the sentence imposed by the courts for a crime or crimes (in this case, the sentence imposed in respect of the applicant’s violent crimes)[66]
[66] Direction 90, cl 8.1.1(1)(c).
The Applicant accepts that the term of imprisonment imposed on him by His Honour Judge Ryan was significant (noting that it included a sentence of a four-year term of imprisonment with respect to the aggravated burglary charge).[67]
[67] G2, p.64.
In this regard, the imposition of any term of imprisonment, let alone one in excess of four years, reflects a view that the offence concerned was serious; “…[c]ustodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence(s)….”,[68] noting that sentences “…involving terms of imprisonment are the last resort in the sentencing hierarchy…”[69]
The frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness[70]
[68] Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409 at [34].
[69] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
[70] Direction 90, cl 8.1.1(1)(d).
The Applicant committed four crimes in the context of a single incident. As such, his offending has not been frequent and no trend of increasing seriousness is revealed by it.
The cumulative effect of repeated offending[71]
[71] Direction 90, cl 8.1.1(1)(e).
The Respondent contends that there has been a cumulative effect of the Applicant’s repeated offending, being ongoing psychological harm to Ken and his mother.
I accept that the Applicant’s offending may have had an ongoing effect but, if so, it is not a “cumulative” effect of repeated offending. As submitted by the Applicant, in the absence of repeat offending, there has been no relevant cumulative effect of his offending.
Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending[72]
[72] Direction 90, cl 8.1.1(1)(f).
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
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)[73]
[73] Direction 90, cl 8.1.1(1)(g).
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
Risk to the Australian community should Applicant commit further offences or engage in other serious conduct[74]
[74] Direction 90, cl 8.1.2.
I turn now to the second matter to which consideration must be given in the context of the protection of the Australian community primary consideration; the risk to the community should the Applicant commit further offences or engage in other serious conduct.
In considering that risk, I am required by Direction 90 to have regard, cumulatively, to the nature of harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct and to the likelihood of him doing so (taking into account available information and evidence on the risk of the non-citizen re-offending and evidence of rehabilitation achieved).[75]
[75] Direction 90, cl 8.1.2(2).
As to harm to individuals, based on his history of offending, if the Applicant were to again engage in criminal or other serious conduct, individuals (especially those who the Applicant believed had hurt or were a threat to members of his family) would be likely to suffer financial harm (by way of damage to property), physical harm (possibly both serious and permanent[76]) and psychological harm.[77]
[76] I note that in the course of his offending in August 2016, the Applicant had encouraged another to stab “Ken”: G2, p.30.
[77] As acknowledged by the Applicant: A SFIC [28].
As to harm to the Australian community should the Applicant again engage in criminal or other serious conduct, it would reflect the nature of the harm suffered by members of the community harmed by the Applicant’s conduct. Moreover, unlawful violence towards members of the community of the type engaged in by the Applicant in the past engenders concerns about safety, concerns which encourage suspicion and limit social cohesion, thereby harming the community as a whole.
As to the likelihood of the Applicant engaging in further criminal or other serious conduct, on the material before me I am satisfied that it is unlikely and that the risk of him doing so is low.
While the past may, in some circumstances, constitute a reliable guide to the future[78] the mere fact that the Applicant has engaged in certain conduct is not probative of there being a material risk of him doing so again.[79] According to Mortimer J in Splendido[80] a “bare recitation of what a person has done in the past” is an insufficient basis for a finding as to the person’s likely future conduct. More needs to be shown if over-valuing personality-based explanations and under-valuing situational based explanations for conduct is to be avoided.[81]
[78] See, for example, Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545 at [26] where the Court was dealing with an applicant who “had an extraordinarily lengthy criminal history which was characterised by relapses into drug use, crime and periods of imprisonment. Although there were some periods of abstinence, Mr Zyambo was prepared to engage in further criminal offending even after warnings that his visa might be revoked were he to do so.”
[79] See Kayo Rerekura and Minister for Home Affairs [2019] AATA 153 at [65]: “the mere commission of offences or offending conduct in the past is not, of itself, sufficient.”
[80] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [77] per Mortimer J, Moshinsky J agreeing.
[81] See Hughes v R [2017] HCA 20 at [70]-[72] per Gageler J (in dissent).
What that “more” includes is revealed by decisions in cases such as Guo.[82] There it was said that:
“The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.”
[82] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 574.
In Splendido,[83] Mortimer J stated that:
“The nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending.”
[83] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [78].
In Hughes,[84] the High Court grappled with the application of tendency evidence in the context of an individual charged with sexual offences against minors. In that context, Nettle J (albeit in dissent) stated at [154] that:
… “Evidence that an accused has committed an offence is not, of itself, significantly probative of the accused having committed another offence …To make evidence of previous offending or misconduct significantly probative of a subsequent offence there needs to be something more about the nature of the offences or the circumstances of the offending in each case, or about the victim of each offence, which rationally affects to some significant degree the assessment of the probability that the accused committed the offence.”
[84] Hughes v R [2017] HCA 20 at [154].
Hence, facts need to be identified about the Applicant’s circumstances, or about the nature and circumstances of his past conduct, that rationally support the assessment of the risk of the Applicant engaging in the relevant conduct. I now endeavour to do so.
First, the Applicant’s history of offending is limited. While he has four convictions, they all arose in the context of one incident. It is not the case that there is a sustained pattern of offending reflective of an ingrained habit.
Second, the Applicant’s offending arose in circumstances that one would expect are unlikely to be repeated. On the material before me, that offending was triggered by a perception that the intended object of the offending had subjected a young relative of the applicant, AN, to severe physical abuse as well as mental abuse, and had introduced that relative to illicit drug use. That triggering circumstance is not an everyday event, unlike the position that would apply were the Applicant’s offending driven by, say, a need to support financially an illicit drug habit.
Third, and related to the second circumstance, the Applicant has a history of being fully employed while in Australia. That and the references obtained from previous employers (which were mentioned earlier) suggest that the Applicant has a willingness and capacity to obtain employment once released into the community. A fully employed person is less likely to offend, given that, quite apart from its psychological benefits, employment reduces both financial pressures and the time available to transgress.
Fourth, I am satisfied that the Applicant has insight into his offending and is remorseful for it. In this regard, a person who understands where he or she went wrong in engaging in certain conduct and is remorseful for having done so is less likely to repeat that conduct. In this regard:
(a)His Honour Judge Ryan accepted evidence of the Applicant’s remorse, noting that he had pleaded guilty at the earliest opportunity.[85]
(b)At the hearing of this proceeding, the Applicant repeatedly and, I accept, earnestly, acknowledged that he had done the wrong thing on that Sunday morning in August 2016, and stated that, should similar circumstances arise, his approach now would simply be to involve the police rather than take direct action himself.
(c)In her report of April 2021, Dr Yoxall, psychologist, opined that the applicant had demonstrated what appeared to be genuine remorse for the offending[86] as well as a high degree of personal insight.[87]
[85] G2, p.35.
[86] G2, p.91.
[87] G2, p.96.
Fifth, in terms of rehabilitation, I note that the Applicant has completed a number of programs while incarcerated. His, albeit uncorroborated, evidence was to the effect that he had completed a men’s behavioural change program, a drug and alcohol program, a mapping the way forward program, a functional relationships course and various vocational programs concerning such things as warehousing and civil construction. Given the description in the psychologist’s report apparently before His Honour Judge Ryan (but not before the Tribunal) of the Applicant’s offending as a crime of passion,[88] the Respondent rightly contended that certain of these programs fail to address the underlying causes of that offending. Nevertheless, I consider that at least some of the programs undertaken and completed by the Applicant were facilitative of his rehabilitation.
[88] Quoted at G2, p.35.
As for rehabilitation generally, the Tribunal is not in this matter dealing with a situation where the person concerned is entrenched in a pattern of offending that has continued to subsist despite multiple opportunities to reform. Here, as His Honour Judge Ryan concluded,[89] the Applicant’s prospects of successfully rehabilitating would appear to be excellent.
[89] G2, p.35.
A finding that the risk of the Applicant engaging in further criminal or other serious conduct is low finds support in the opinions of Dr Yoxall, psychologist. In a report of April 2021,[90]
[90] G2, pp.81-114.
[91] G2, p.104.
Dr Yoxall stated that her overall assessment of the Applicant was that his risk of violent re-offending is low.[91]
I attribute weight to Dr Yoxall’s assessment despite being unable to ascertain how she derived a particular score from application of a certain risk assessment tool. In this regard, in arriving at her assessment, Dr Yoxall relied not only on that particular score but also on the results derived from application of another risk assessment tool, as well as her clinical judgement, a judgement made after what she characterised as a lengthy assessment interview with the Applicant.
Dr Yoxall’s assessment of the Applicant’s risk of re-offending was expressed to be contingent “…on him successfully navigating what are likely to be serious and significant stressors upon his release into community.” In this regard, I accept the proposition put on behalf of the Applicant that any assessment of risk is (or is at least likely to be) subject to contingencies or conditional. As I see it, this simply means that in considering the weight to be given to such an assessment, regard must be had to the chances of any relevant contingency or condition being met or satisfied.
In the case of her assessment with respect to the Applicant, the principal contingency apparent from Dr Yoxall’s report concerned the capacity of the Applicant to deal with the stressor about access to his children in New Zealand. On the material before me, there is no reason to believe that the Applicant does not have that capacity. The relationship he has with his former partner, June (the person who now has custody of his children) would appear to be amicable.[92] There is no suggestion that there were any difficulties in the Applicant obtaining weekend access to his children in the roughly 11-month period after the Applicant and June separated and prior to her departure from Australia. That and June’s preparedness in the short term to allow the children to visit the Applicant during their school holidays (something I will address shortly) bodes well for the prospects of being able to arrive at a mutually acceptable access arrangement.
[92] At G2, p.75, the Applicant states that he remained on good terms with June despite their separation.
Conclusion

The Applicant’s offending has been both violent and very serious. Further, financial, physical and psychological harm (including potentially serious harm) to individuals, as well as harm to the Australian community, is likely to ensue should he re-offend.
As to the risk of him re-offending, while I accept the Respondent’s submission that it is a “real” risk,[93] I also accept the Applicant’s submission that it is a low one (as, I note, did the delegate whose decision is the subject of review[94]).
[93] R SFIC [40] citing Mathews J, sitting as a Deputy President of the Tribunal, in Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51] where it is said that "Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending." In her oral evidence, Dr Yoxall expressed the view that no one has a zero risk of offending.
[94] G2, p.21
That there is a real risk of the Applicant re-offending (albeit a low one) does not preclude a decision to revoke cancellation of the Applicant’s visa. This is not a matter where the Applicant’s offending “…and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated” is unacceptable.[95] While I have no wish to delineate now what type of offending and consequent harm would render any risk of it unacceptable, I note, for instance, that the Applicant was not convicted of charges reflecting an intention to inflict serious injury and his offending, in fact, did not result in either death or serious injury.
[95] Direction 90, cl 8.1.2(1)
A real but low risk of violent, very serious, offending does, however, weigh against revocation of the visa cancellation decision. As a non-citizen who has been allowed to enter and remain in Australia, the Applicant’s offending reflects a failure to have met the expectation of him that he be law-abiding and not cause or threaten harm to individuals or the Australian community.
While accepting that the protection of the Australian community consideration does weigh against revocation of the visa cancellation decision, the Applicant submits that it does not do so “heavily.”[96] The Respondent submits, however, that the weight to be applied ought to be significant.[97]
[96] The Applicant contends that this primary consideration does not weigh heavily against revocation: A SFIC [31].
[97] The Respondent contends that this primary consideration “strongly favours” non-revocation: R SFIC [43].
I find that the protection of the Australian community consideration weighs against revocation of the visa cancellation decision to a moderate extent. That weight reflects a balance between the very serious nature of the Applicant’s offending and the harm that would flow from its repetition, on the one hand, and the risk of the Applicant’s recidivism being low, on the other hand.
FAMILY VIOLENCE[98]
[98] Direction 90, cl 8.2.
It has not been contended, and nor does the material before me suggest, that the primary consideration concerning family violence is of relevance in this proceeding.
THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA[99]
[99] Direction 90, cl 8.3.
The third primary consideration which I am required by Direction 90 to take into account is the best interests of minor children in Australia. Indeed, I am required to determine in relation to each relevant child whether revocation of the visa cancellation decision is in his or her best interests.
On behalf of the Applicant, it was submitted prior to the hearing of this proceeding that this third primary consideration is one that requires regard to be had to minor children wherever located and, hence, in this proceeding, encompasses the interests of each of the Applicant’s children residing in New Zealand.[100]
[100] A SFIC [35]-[36].
Insofar as that submission is maintained, I reject it. It is clear from cl 8 of Direction 90 that the primary consideration concerning the interests of children is directed only to minor children in Australia.[101] For this reason, in addressing that consideration, the interests of the Applicant’s children in New Zealand are not taken into account. Nevertheless, Direction 90 does not confine the considerations to which I must have regard in deciding whether I am satisfied that there is another reason why the decision to cancel the Applicant’s visa should be revoked. Hence, I propose to take the interests of the Applicant’s children into account later, as one of the “other considerations,” a concept defined inclusively, not exhaustively, in Direction 90[102] (as the Applicant’s counsel appeared to submit that I should).
[101] It is also clear from the heading to cl 8.3 of Direction 90. That heading may be relied upon in construing Direction 90. The Acts Interpretation Act 1901 s 13(1) characterises all material in an Act from the first section of an Act to its end as part of the Act The Acts Interpretation Act 1901 applies to Direction 90 as if it were an Act: see Legislation Act2003 s 13(1) (applicable if Direction 90 is a legislative or notifiable instrument) and Acts Interpretation Act 1901 s 46 (applicable if Direction 90 is not such an instrument).
[102] Direction 90, cl 9(1).
This leaves as the children whose best interests the Tribunal was being asked by the Applicant to take into account in the context of the third primary consideration as being seven nieces and nephews of the Applicant (comprising one two-year-old, two three-year-old, one five-year-old, one eight-year-old, one nine-year-old and a fourteen-year-old).[103]
[103] A SFIC [36].
While the Applicant acknowledged that he did not provide parental care to any of his nephews and nieces, he nevertheless submitted that the best interests of minor children in Australia consideration weighed reasonably strongly in favour of revocation of the visa cancellation decision. This was because the alternative would deprive the Applicant’s nieces and nephews of:
(a)a closer relationship with not just the applicant but also with their cousins, the Applicant’s children.[104]
(b)the opportunity to visit him personally and benefit from the support he has previously provided to his now adult nieces and nephews.[105]
[104] G2, p.66.
[105] A SFIC [37].
The reference to the loss of a “closer” relationship suggests that what is being said would be lost is not a relationship that currently subsists but, rather, an opportunity, being the opportunity to build a close relationship with the Applicant and his children. That opportunity is, presumably, being said to be lost because non-revocation of the visa cancellation decision would result in a loss of physical contact.
For four of the Applicant’s nephews and nieces, any material loss of opportunity to build a closer relationship because of an absence of physical contact would not flow from the Applicant being removed to New Zealand. They live in New South Wales, in a place which I infer is geographically remote from where the Applicant lived prior to his incarceration and where he intends to reside should he be released into the community (noting that, in his oral evidence, the Applicant stated that he had not met half of, or a couple of, the relevant nieces and nephews).
For the other three of the Applicant’s nephews and nieces, they live in a regional Victorian town where not only they and their parents live but also a range of extended family members live, noting that three of the Applicant’s siblings and his parents live in that town.
The loss of an opportunity for those three relatives to build a relationship with their uncle is prejudicial to their interests. In a context where there is already an extended familial base available to them, however, I am not satisfied that that the extent of that prejudice is or would be significant. In this regard (and subject to what I will soon say about a particular nephew of the applicant), it is not submitted (and on the material before me I do not find) that the benefit to the Applicant’s nieces and nephews of his physical proximity would differ materially in nature or extent from that available to them from other family members.
I mention, however, one of the nephews living in the Victorian regional town who I will call “Leon”. He and the Applicant have, according to the Applicant’s mother, developed a strong bond, apparently as a result of Leon having accompanied the Applicant’s mother on her visits to the Applicant in prison and having spoken to the Applicant on the telephone on a number of occasions. As Leon’s father is said not to be “super involved” in his life it is, in effect, submitted that there is an opportunity for the Applicant to undertake a “father figure” role in relation to Leon, an opportunity that would be lost were the Applicant to be removed to New Zealand.[106]
[106] See Exhibit A3.
On the material before me, I am not satisfied that this lost opportunity is of any significance. Evidence that Leon’s father is not “super involved” says little about the extent to which Leon lacks paternal support. Even if there is a lack of such support, it is unclear why it is that the Applicant is needed to make up for it (as opposed, say, to his brother and father).
As for there being a strong bond between Leon and the Applicant, I note that it would have largely arisen through the use of telecommunications, something that could be maintained were the Applicant removed to New Zealand. While Leon has visited the Applicant in prison, those visits could only have been sporadic since early 2020, given the restrictions imposed on prison visits due to efforts to limit the spread of COVID-19. In this regard, I note the Applicant’s evidence that, at the time of the hearing, it had been about five months since the last visit. Further, I suspect that Leon’s visits to the Applicant in prison would not have left much of an impression on Leon. He is now only around 2.5 years old and, hence, it seems likely that he was in infant at the time of many of those visits.
While the Applicant has provided support by way of accommodation to at least one of his now adult nieces and nephews (AN), on the material before me, there is no reason to believe that similar support would be unavailable from other family members resident in Australia or, indeed, from the Applicant were he to be removed to New Zealand.
As for the loss of opportunity to build a closer relationship with the Applicant’s children, the premise underlying that submission is that, on the Applicant’s release into the community, his children would return to Australia and live with or near to his nephews and nieces. I am not satisfied of the validity of that premise.
First, as already mentioned, four of the nephews and nieces live in an area geographically remote from the Applicant’s intended place of residence.
Second and in any event, there is no material before me on which I could be satisfied that the Applicant’s children would, indeed, return to live in Australia should he be released into the community. They currently live in New Zealand with their mother (June) and their mother’s child with a new partner. They have lived there for nearly four years which is much of their young lives. While, as asserted by the Applicant’s mother, two of the Applicant’s children may wish to “come back to Australia to live with their dad”, being in the custody of their mother and being aged 11 and eight, respectively,[107] they are not in a position to do so unilaterally. In any event, it is unclear whether their desire is to live in Australia or to live with their father. If the latter, then his removal to New Zealand would, if anything, be facilitative from their perspective.
[107] A3.
At the hearing, the Applicant’s evidence was to the effect that, while June would be open to having the children visit the Applicant in Australia during their school holidays in the short term, no long-term arrangement was in place that would have the children moving to Australia to live.
I turn now to the specific factors which I am required by Direction 90 to take into account in considering the best interests of each of the Applicant’s nieces and nephews in Australia (albeit that I have, to an extent, addressed some of these factors in my earlier comments).
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)[108]
[108] Direction 90, cl 8.3(4)(a).
The Applicant does not have a parental relationship with any of the relevant nieces and nephews. Some are very young. He has not met several of them in person. The Applicant might have a closer relationship with Leon, but he is very young and their relationship would not be subject to material change were the Applicant to be removed to New Zealand. While the Applicant’s removal to New Zealand might foreclose the opportunity to build a closer relationship, on the material before me, I am not satisfied that the interests of any of the relevant children would be materially adversely affected as a result of that removal.
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[109]
[109] Direction 90, cl 8.3(4)(b).
I am not satisfied that, if the Applicant is allowed to remain in Australia, it is likely that he will play a parental role in relation to any of his nieces or nephews (albeit that the extent of paternal care provided to Leon by his father is unclear).
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[110]
[110] Direction 90, cl 8.3(4)(c).
It would seem likely that the Applicant’s past conduct and consequent imprisonment deprived several of the Applicant’s minor nieces and nephews of the opportunity to visit him personally and benefit from the support he has previously provided to his now adult nieces and nephews. On the material before me, however, there is no reason to believe that this will have any material, enduring negative impact on any of his nephews or nieces.
As for future conduct, if the Applicant re-offends, that might have a negative impact but the risk of that is low.
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[111]
[111] Direction 90, cl 8.3(4)(d).
On behalf of the Applicant, it is submitted that the Applicant’s removal from Australia will operate to deprive each of his nieces and nephews of the “opportunity to visit him personally and benefit from the support he has previously provided to his now adult nieces and nephews.”[112] That submission is addressed in my earlier comments.
[112] A SFIC [37].
The Applicant’s removal to New Zealand ought to have no material effect on the status quo, in terms of his capacity to maintain contact with his nieces and nephews. Any contact that a nephew or niece will have had with the Applicant over the last four years (representing a large part of, if not all of, their respective lives to date) will have been primarily through the use of telecommunications. In this regard, I note that four of the Applicant’s seven nephews and nieces resident in Australia live in New South Wales, geographically remote from where the Applicant lived prior to his incarceration and from where he intends to reside should he be released into the community. Of the remaining three nieces and nephews (aged nine, three and two), two were not born before the Applicant was imprisoned in 2017 and, as for the nine-year-old, there is no material before me suggestive of her having regularly visited the Applicant in prison.
Whether there are other persons who already fulfil a parental role in relation to the child[113]
[113] Direction 90, cl 8.3(4)(e).
Others fulfil the parental role in relation to each of the Applicant’s nieces and nephews, albeit that the extent of paternal care provided to Leon is unclear.
Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child)[114]
[114] Direction 90, cl 8.3(4)(f).
None known.
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[115]
[115] Direction 90, cl 8.3(4)(g).
There is no evidence of this before me.
Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct[116]
[116] Direction 90, cl 8.3(4)(h).
There is no evidence of this before me.
Conclusion on children in Australia consideration
In relation to each relevant niece and nephew resident in New South Wales, my determination is that this consideration weighs neutrally. Removal of the Applicant to New Zealand would neither advance nor be prejudicial to their respective interests.
As for each nephew and niece who lives in the Victorian regional town in which the Applicant resided prior to his incarceration and to which he intends to return on his release into the community, my determination is that revocation of the visa cancellation decision made in relation to the Applicant is in her and his best interests. Nevertheless, for the reasons already outlined, the effect on their respective interests (including those of Leon) of removal of the Applicant to New Zealand would not be materially adverse.
Accordingly, the consideration concerning the best interests of minor children in Australia weighs in favour of me being satisfied that there is another reason to revoke the decision to cancel the Applicant’s visa. The weight I attribute to this consideration, however, is minimal.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY[117]
[117] Direction 90, cl 8.4.
The expectations of the Australian community consideration constitutes the fourth of the primary considerations.
The Australian Government’s views as to the nature of those expectations are outlined in

cl 8.4 of Direction 90. Decision makers, including the Tribunal, are required to proceed on the basis of those views, without independently assessing community expectations.[118]
[118] Direction 90, cl 8.4(4).
Hence, as was the case in relation to the analogous consideration outlined in the instrument replaced by Direction 90, the enquiry which the expectations of the Australian community consideration engenders does not concern what the Australian community expects in fact but, rather, concerns what the Government deems the community’s expectations to be. The content of any such deemed expectation is to be discerned by construing the relevant provisions of Direction 90.[119]
[119] FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR) at [68].
A construction of cl 8.4 of Direction 90 gives rise to at least two potentially relevant community expectations.
The first is derived from cl 8.4(2) of Direction 90. It provides that:
“In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind: …

(c) commission of serious crimes against women children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent …nature…”

The first part of cl 8.4(2) clearly addresses three situations: visa cancellation, visa refusal and non-revocation of the mandatory cancellation of a visa. The latter part of the clause outlining a community expectation where certain kinds of conduct have been engaged in is expressed to apply only in two situations: refusal of entry to Australia and visa cancellation. Given this apparent dichotomy, an issue arises as to whether that latter part applies also in the context currently before the Tribunal, one concerned with the question of whether mandatory cancellation of a visa ought to be revoked. As I see it, it does.
The latter part of cl 8.4(2) seeks only to particularise the circumstances in which the Australian community expectation identified in the first part of the clause arises. Hence and for instance, mandatory cancellation of a visa so that a person would not continue to hold a visa would be expected where the offences are of a such a nature as to raise serious character concerns through, say, the commission of crimes of a violent nature against women.
This approach to particularising the expectation that arises by reason of the inherent nature of certain offending is reflected in the principles found in Direction 90 which both inform and comprise the framework within which considerations (such as the expectations of the Australian community consideration) are to be taken into account. As identified earlier, one such principle provides that:
“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 risk of causing physical harm to the Australian community.”[120]
[120] Direction 90, cl 5.2(5).
As expressed, the words of that principle reflect a clear intention that conduct mentioned in cl 8.4(2) be considered to be of such a nature that even strong countervailing factors “may be” insufficient to justify, amongst other things, revocation of a mandatory cancellation decision. That intention is expressed in the principle and given effect in cl 8.4(2). A construction of cl 8.4(2) which had the effect that the expectation provided for in it would not apply when considering whether to revoke a mandatory cancellation decision would be inconsistent with that intention and, as such, would be a construction that failed to achieve a purpose or object of Direction 90.[121]
[121] See Acts Interpretation Act 1901 s 15AA.
Given this conclusion, an expectation which the Australian community has (or is at least deemed to have) is, as mentioned and applied in the current context, that a person’s visa would be mandatorily cancelled so that the person would not continue to hold a visa where the person’s offences are of a such a nature as to raise serious character concerns through the commission of crimes of a violent nature against women.
The Applicant contends that the cl 8.4(2) expectation does not apply to him as he has not been convicted any of the kinds of conduct specified in the clause.[122] As the Respondent points out, however, this is clearly not the case. Here, the Applicant has engaged in such conduct, having been convicted of a crime of a violent nature against a woman.[123] (I note that, in Direction 90, the plural should be taken to include the singular so that the reference in cl 8.4(2) to “crimes” against “women” should be taken to include a crime against a woman.[124])
[122] According to the applicant, he has not been convicted any of the kinds of conduct specified at cl 8.4(2) of Direction 90: A SFIC [43]
[123] See G2, eg, at pp.29 and 36.
[124] The Acts Interpretation Act 1901 s 23 provides that, in any “Act”, words in the plural include the singular. That Act applies to Direction 90 as if it were an Act: see Legislation Act 2003 s 13(1) (applicable if Direction 90 is a legislative or notifiable instrument) and Acts Interpretation Act 1901 s 46 (applicable if Direction 90 is not such an instrument).
Nevertheless, I find that the cl 8.4(2) expectation does not apply in relation to the Applicant. While he has been convicted of a crime of the type specified in the clause and, hence, engaged in conduct of a kind to which the clause applies, the expectation provided for in the clause only arises if serious character concerns are raised “through” conduct of that kind. It is not enough to engage in conduct of the relevant kind. If it were, there would be no need for the requirement that serious character concerns be raised.
As I see it, serious character concerns are not raised thorough the Applicant’s conduct that resulted in him being convicted of assaulting Ken’s mother. There is no definition in Direction 90 of what constitutes a “serious character concern”. Given this, it would appear to be a concept tied to the character test found in s 501 of the Act. As stated earlier, the Applicant’s visa was subject to mandatory cancellation because he did not pass that character test. He did not pass that test because he was considered to have a substantial criminal record. He had such a record not because of any conduct of the kind provided for in cl 8.4(2) of Direction 90. In particular, he was not considered to have not passed the character test because of his commission of serious crimes against women. His sentence for assaulting Ken’s mother was imprisonment for a term of six months,[125] a sentence which, of itself, was insufficient to result in a failure to pass the character test. Hence, as the Applicant’s failure to pass the Act’s character test was not because of conduct of a kind described in cl 8.4(2), serious character concerns did not arise through conduct of a kind provided for in that clause.
[125] G2, p.36.
The second potentially relevant Australian community expectation to which a construction of cl 8.4 of Direction 90 gives rise is derived from cl 8.4(1). In that clause, it is said that the Australian community expects non-citizens to obey Australian laws while in Australia and that, where a non-citizen has engaged in serious conduct in breach of this expectation or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow them to enter or remain in Australia.[126]
[126] Direction 90 cl 8.4(1).
As I see it, that expectation applies in the circumstances. As such, the Australian community expects the Government to not allow the Applicant to remain in Australia.
The Applicant has engaged in serious conduct in breach of the expectation that he, as a non-citizen, obey Australian laws. The offending of the Applicant involved him engaging in what constitutes serious conduct for the purposes of Direction 90.[127] Indeed, the Australian community is taken to view conduct of the type in which the Applicant engaged as not only serious but very serious.[128] Hence, the question of whether the Australian community is to be taken to expect that the Applicant not be allowed to remain in Australia depends on whether the “norm” is displaced. I do not consider that it is.
[127] Noting that the concept of “serious conduct” is simply defined in Direction 90 inclusively so as to include certain non-criminal conduct: cl 4(2).
[128] Noting that crimes of violence are said to be regarded as very serious by the Australian Government and the Australian community: Direction 90 cl 8.1.1(a).
As I have said, the Australian community is taken to view conduct of the type engaged in by the Applicant as not only serious but very serious. In order to displace from application in his case the standard expectation of the community, much would be required to distinguish the Applicant’s circumstances from those which might reasonably be expected to be encompassed within the “norm”. While everyone’s circumstances are to an extent unique, I am not satisfied that the Applicant’s circumstances are such as to warrant a conclusion that the community’s normal expectation is inapplicable to him.
Those circumstances may, however, affect the weight to be given to the Australian community expectation consideration.[129] Indeed, that is what is submitted on behalf of the Applicant.
[129] As was said in FYBR at [101-102] in relation to the instrument which Direction 90 replaced, the weight to be attached to this consideration may vary, depending on what is appropriate in “the particular circumstances”.
On his behalf it is said that “…Direction 90 deems that the Australian community would expect the Applicant to forego the privilege of residing in Australia…”.[130] Nevertheless, in support of a submission that the consideration weighs only slightly against revocation, it is stated that certain matters ought be taken into account, being that:
[130] A SFIC [42].
(a)“the Applicant has not been convicted of, or accused of, any of the kinds of conducted specified at paragraph 8.4(2) of Direction 90;
(b)the applicant resided in Australia for over six years before offending on 26 August 2016;
(c)three of the Applicant’s children were born in Australia;
(d)the Applicant is not a repeat or frequent criminal offender, having only committed criminal offences during one discrete incident;
(e)the Applicant’s parents and three of his four siblings live in Australia;
(f)between his arrival in Australia and his imprisonment, the Applicant had worked full time in Australia;
(g)a non-revocation decision would have significant adverse impacts on:
(i)the Applicant’s children; and
(ii)the Applicant’s parents and siblings in Australia, each of whom enjoys a right to reside in Australia indefinitely.”[131]
[131] A SFIC [43].
I accept the essence of the Applicant’s submission without accepting the precise terms in which it is expressed or all aspects of the rationale put forward by the Applicant for it.
In particular, I accept that the weight to be attributed to the Australian community expectation consideration is less than might otherwise be the case given the particular circumstances of the Applicant’s case. Those circumstances are such as, in my view, to warrant an attribution of minimal weight to this consideration.
In terms of matters identified by the Applicant, the weight otherwise to be attributed to the Australian community expectation that the Government not allow the Applicant to remain in Australia is reduced by reason of:
(a)The Applicant’s offending having essentially involved one incident in the context of a reasonably lengthy period of residence in Australia during which he contributed to the community generally by remaining fully employed and, on his evidence, by participating in various sporting activities such as football and pennant bowls.
(b)The adverse effect his removal would have not only on him but also his parents and three siblings in Australia (a matter discussed further, later).
In terms of other matters that operate to reduce the weight otherwise attributable to the Australian community expectation consideration as it applies to the Applicant, I mention three matters:
(a)First, while all violent crime and all crime of a violent nature against women is, in terms of Direction 90, regarded by the Australian community as very serious, there is nevertheless a spectrum of very serious offending in which a common law assault occasioning relatively insignificant physical harm would fall at the lower end.
(b)Second, while this does not make the Applicant’s conduct excusable, the intended victim of the Applicant’s unlawful violence (Ken) was targeted because he was believed to have subjected a young relative of the Applicant, AN, to severe physical abuse as well as mental abuse, and to have introduced that relative to illicit drug use. Conduct driven by a desire to punish those who have engaged in wrongdoing to a member of one’s family is, as I see it, less morally reprehensible than conduct driven by, say, a simple desire for violence or by greed.
(c)Third, while the Australian community’s expectation that the Government not allow the Applicant to remain in Australia is one that applies regardless of whether the Applicant poses a measurable risk of causing physical harm to the community,[132] the weight to be attributed to that expectation is affected by the extent of the risk that he will re-offend. Here, that weight is reduced given that the Applicant’s risk of re-offending is low.
[132] Direction 90, cl 8.4(3).
Conclusion
The consideration concerning the expectations of the Australian community weighs against a finding that there is another reason to revoke the decision to cancel the Applicant’s visa. It does so to a minimal extent given the particular circumstances of his case.
OTHER CONSIDERATIONS[133]
[133] Direction 90, cl 9.
The considerations which I am required by Direction 90 to take into account are, as mentioned earlier, divided into primary and other considerations.
The other considerations are defined so as to include but not be limited to a consideration of international non-refoulement obligations; extent of impediments if removed; impact on victims; and links to the Australian community, including strength, nature and duration of the Applicant’s ties to Australia and the impact on Australian business interests.[134]
[134] Direction 90, cl 9(1).
As mentioned earlier and given the non-exhaustive nature of the “other considerations” concept as employed in Direction 90, I propose now to consider the interests of the Applicant’s children in New Zealand.
Interests of Children in New Zealand
In material lodged on behalf of the Applicant prior to the hearing, the thrust of submissions about the Applicant’s children appeared to be that, if he was released into the community, they would return to Australia to live and that their interests would be served by doing so.
In that context, it was submitted that:
“First, all the children’s grandparents (maternal and paternal) and most of their extended family members live in Australia, and it would be in their interests to maintain close physical proximity with their grandparents. Second, the Applicant and [June] both consider that their children will have better prospects in Australia. Third, if the Applicant’s three youngest children are residing in Australia, it appears that they will be automatically conferred with Australian citizenship, providing them with the benefits of dual citizenship…”[135]
[135] A SFIC [40].
For the reasons stated earlier, I am not satisfied that the premise underlying that submission is valid. In particular, I am not satisfied that the Applicant’s children would, indeed, return to live in Australia should he be released into the community.
As I am not satisfied of that matter, I do not accept the submission that it would be in the interests of the Applicant’s children that he be released into the community and, accordingly, do not accept the submission that a consideration of their interests weighs in favour of revocation of the visa cancellation decision. As I see it, a consideration of their interests weighs neutrally.
I note that, contrary to the Applicant’s submissions, it is at least arguable that a consideration of the Applicant’s children’s interests weighs in favour of non-revocation of the visa cancellation decision. The Applicant’s evidence is to the effect that, if released into the community, he would live in the Victorian regional town in which his parents and some of his siblings reside.[136] As Dr Yoxall stated in her April 2021 report: “it would appear that remaining in Australia will result in [the Applicant’s] long-term separation from his children, whereas a return to New Zealand will increase the probability of co-parenting of his children…”.[137] As a general proposition, co-parenting is beneficial for children, noting oral evidence adduced from Dr Yoxall to that effect. Hence, insofar as this general proposition applies in the circumstances, the Applicant’s children’s interests would not be served by a decision in this proceeding that would likely see him remaining in Australia.
[136] I note that this appears to be inconsistent with what was said in the A SFIC at [39], where it is suggested that the Applicant would share custody of the children with June, whether in New Zealand or Australia.
[137] G2, p.104.
The Applicant’s counsel’s response to this argument was that a decision which operated, in effect, to coerce the Applicant to co-parent (or, at least, live where co-parenting was possible) was one which was unlikely to be in the children’s interests.
The issue raised by this argument is not one addressed in any detail in the material before me or one that either party had had an opportunity to fully consider. Moreover, other than that they live with their mother, June, I have no information concerning the extent and nature of the parental care currently afforded to the Applicant’s children in New Zealand. Accordingly, even accepting the proposition that co-parenting is generally beneficial from the perspective of a child’s interests, I am not satisfied that, in the circumstances, a decision which might facilitate the Applicant taking on a co-parenting role would be in the interests of his children.
International non-refoulement obligations[138]
[138] Direction 90, cl 9.1.
It has not been contended, and nor does the material before me suggest, that the consideration concerning international non-refoulement obligations is of relevance in this proceeding.
Extent of impediments if removed[139]
[139] Direction 90, cl. 9.2.
In the circumstances, Direction 90 requires that consideration be given to the extent of any impediments that the Applicant may face if removed from Australia to New Zealand, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of New Zealand), taking into account his age and health, whether there are substantial language or cultural barriers and any social, medical and/or economic support available to him in New Zealand.
Having not been to New Zealand in around 11 years, the Applicant would suffer some hardship and emotional distress in establishing himself and maintaining basic living standards in New Zealand. Business and social contacts are likely to have been lost, at least to some extent, such that, in a COVID-19 context, it may be difficult for the Applicant to find employment in New Zealand in a timely fashion. The Applicant would be and remain physically separated from his parents and most of his siblings,[140] noting the Applicant’s statement that he would struggle to cope without his family.[141]
[140] It was submitted that the Applicant would suffer from removal to New Zealand because June’s parents live in Australia: A SFIC [47]. This submission was not developed at the hearing and it is presumed that it is connected to the proposition, which I am not satisfied is correct, that the Applicant’s children will return to Australia to live if the Applicant is released into the community.
[141] G2, p.72.
There are, however, a number of factors that would ameliorate the extent of that hardship and distress. In particular:
(a)The Applicant has spent most of his life in New Zealand. He is likely to have retained some business and social contacts in New Zealand and there would be no language barrier inhibiting his capacity to re-engage with those contacts.
(b)Some familial support should be available to the Applicant in New Zealand given that his older sister and a number of his other relatives live there.
(c)The Applicant’s children live in New Zealand.
(d)Having left New Zealand as an adult, the Applicant would not be unfamiliar with the cultural and social aspects of life in New Zealand.
(e)In terms of governmental and non-governmental organisation economic and social support available to the Applicant, there is no material before me suggestive of any lack in New Zealand, either in an absolute sense or relative to that available in Australia. In particular, there is no material before me suggestive of the Applicant being unable to access support in terms of accommodation and benefits generally available to other citizens of New Zealand.
(f)On the material before me there is no reason to believe that the Applicant suffers from any debilitating health condition[142] that would militate against his prospects of employment.
(g)The Applicant is a young man who has, for a long period, been able to obtain stable employment in Australia and is said to have a strong work ethic. Moreover, given the variety of jobs he has had in Australia, he has a range of employable skills, which there is no reason to believe are not transposable to New Zealand.
[142] In the material before me, there is a reference to a removal from Australia resulting in an interruption to the Applicant’s medical care. When asked about this submission at the hearing no details were forthcoming.
Conclusion

On behalf of the Applicant, it is submitted that this consideration as to impediments to be faced by the Applicant in establishing himself and maintaining basic living standards on removal to New Zealand weighs “somewhat in favour of” revocation of the visa cancellation decision.[143]
[143] A SFIC [48].
Having regard to the matters just discussed, I agree that it does weigh in favour of revocation of that decision but does so only to a minimal extent.
Impact on victims[144]
[144] Direction 90, cl 9.3.
In the circumstances, Direction 90 requires that consideration be given to the impact of a decision to revoke the decision to cancel the Applicant’s visa, or a decision to not revoke it,[145] on members of the Australian community, including victims of his criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the Applicant has been afforded procedural fairness.
[145] In Direction 90, the concept employed in cl 9.3 is of a s 501CA decision. That section in fact only provides for one decision, a decision to revoke a visa cancellation decision. In its terms, it does not encompass a decision to not revoke a visa cancellation decision. Nevertheless, that would seem to be the intent underlying use of the concept, especially in the context of cl 9.4.2 of Direction 90 where reference is made to a decision under s 501CA.
Insofar as this consideration is directed to the impact of a decision to revoke or not revoke the decision to cancel the Applicant’s visa on victims of the Applicant’s offending and their families, it has not been contended, and nor does the material before me suggest, that the consideration is of relevance in this proceeding.
Insofar as this consideration might be said to concern the impact of such a decision on others in the Australian community, that impact is addressed in the context of the next consideration.
Links to the Australian community, including strength, nature and duration of the Applicant’s ties to Australia and the impact on Australian business interests[146]
[146] Direction 90, cls 9.4, 9.4.1 and 9.4.2.
In the circumstances, Direction 90 requires that this “other consideration” be addressed by reference to two subsidiary considerations.
The first concerns the strength, nature and duration of ties to Australia. The second concerns the impact on Australian business interests.
Strength, nature and duration of ties[147]
[147] Direction 90, cl 9.4.1.
As to that first subsidiary consideration, in the circumstances, it requires that consideration be given to:
(a)any impact of the decision to revoke or not revoke the visa cancellation decision on those of the Applicant’s immediate family members in Australia who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.[148]
(b)The strength, nature and duration of any ties that the Applicant has to the Australian community, having regard how long he has resided in Australia and 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.[149]
[148] Direction 90, cl 9.4.1(1).
[149] Direction 90, cl 9.4.1(2).
The Applicant has five immediate family members living in Australia; his parents and three siblings. On his behalf it was submitted that they each “enjoy an indefinite right to reside in Australia”[150] (by which I infer that they each have a right to remain in Australia indefinitely[151]). In the Respondent’s pre-hearing submissions, it appears to have been accepted that the Applicant’s immediate family members living in Australia have such a right.[152] I proceed on that commonly accepted basis but note that a temporary visa (such as that which had been held by the Applicant) is not one which confers a right to remain indefinitely in Australia.[153]
[150] A SFIC [50].
[151] As asserted at G2, p.68.
[152] R SFIC [68(b)].
[153] Act, s 30.
Non-revocation of the visa revocation decision will mean that the Applicant will be precluded from physically interacting with these five family members for so long as they remain in Australia. This will have an adverse impact on each of them, given evidence to the effect that the family is a relatively close one. That impact is likely to be particularly adverse in relation to the Applicant’s parents, given the Applicant’s expressed intention to look after them should he be released into the community (albeit acknowledging that the Applicant’s parents are not especially old and that they have three other children in Australia who are, presumably, capable of providing some care for them as they age).
Of his immediate family, only the Applicant’s mother provided evidence. She suggested that, should it be decided to not revoke the visa cancellation decision, she and her husband would need to consider moving back to New Zealand because two of their children and half their grandchildren would be living there.[154] In her oral evidence, however, she considered it unlikely that they would make such a move.
[154] Exhibit A3 [8].
According to the mother “it would mean so much to […the Applicant’s father] and I if […the Applicant] could remain in Australia.”[155] While she did not elaborate on this, at least part of the mother’s concern seems to be that she would rarely see not only the Applicant but also four of her grandchildren, should the Applicant be removed to New Zealand whereas, were he to remain in Australia, her (and her husband’s) prospects of seeing her grandchildren would improve markedly (on the premise that the Applicant would be able to arrange access which would facilitate his children visiting him in Australia).
[155] Exhibit A3 [15].
It is clear from what has just been said that the Applicant has enduring, strong, family links with persons living in Australia. In addition, the Applicant was free in the community in Australia for over six years and had been in Australia for over 11 years. In that time I find that he has developed enduring, strong links with others in Australia, noting his statement (which I accept) that he has met in Australia a number of people who he considers to be life-long friends, one of whom is a godfather to one of his children.[156] In this regard, while free in the community, the Applicant made a positive non-economic contribution by participating as a player in an AFL country league and as a pennant bowler in the football off-season, and by participating in various events organised though his employer’s social club.[157]
[156] G2, p.71. I also note a Mr Bailey provided a character reference for the Applicant dated 1 September 2017, in which he characterised the Applicant as a close and reliable friend: Exhibit R2, p.51.
[157] Exhibit R2, p.50.
I note that the Applicant would appear to be in a relationship with another resident of Australia who has two children,[158] albeit on the material before me little can be said about the strength of that relationship.
[158] G2, p.100.
Lastly, since arriving in Australia and for basically the entire time he was free in the community, the Applicant was gainfully employed, thereby positively contributing to the Australian community. His conduct while so employed was such as to establish ties with at least two employers, ties of sufficient strength as to motivate the employers to provide favourable, if not glowing, references about the Applicant.[159]
Impact on Australian business interests[160]
[159] Exhibit R2, pp.50 and 52.
[160] Direction 90, cl 9.4.2.
As to the second subsidiary consideration, in the circumstances it requires that consideration be given to the impact of not allowing the Applicant to remain in Australia on Australian business interests.
It has not been contended, and nor does the material before me suggest, that this subsidiary consideration is of relevance in this proceeding.
The Applicant has clearly impressed at least two of his employers in Australia (noting the references provided in the context of his sentencing hearing in December 2017). However, there is nothing to displace the general position found in Direction 90 to the effect than an employment link only be given weight where the decision to revoke or to not revoke the visa cancelation decision would significantly compromise the delivery of a major project or delivery of an important service in Australia (which is not the case here).
Conclusion
I find that the links to the Australian community consideration weighs in favour of revocation of the visa cancellation decision to a significant extent. It does so because of the strength, nature and duration of his ties to Australia.
CONCLUSION AS TO OTHER REASON FOR REVOCATION
In considering whether there is another reason for revocation of the decision to cancel the Applicant’s visa, my conclusions in relation to the various considerations to which I have had regard (including those to which Direction 90 requires that I have regard) do not point in a uniform direction.
In particular, in the circumstances of this matter and ignoring those considerations which I have found either not to be relevant or to weigh neutrally:
(a)Weighing in favour of a conclusion that there is not another reason for revocation of the visa cancellation decision are the primary considerations as to protection of the Australian community from criminal or other serious conduct (to a moderate extent) and as to expectations of the Australian community (to a minimal extent).
(b)Weighing in favour of a conclusion that there is another reason for revocation of the visa cancellation decision are the primary consideration as to the best interests of minor children in Australia (to a minimal extent) and the other considerations concerning the extent of impediments to be faced by the Applicant should he be removed from Australia (to a minimal extent) and the Applicant’s links to the Australian community (to a significant extent).
The overall balance of these considerations is such that I am satisfied that there is another reason to revoke the visa cancellation decision. While two of the three primary considerations favour a contrary conclusion neither of them do so strongly and, in the circumstances, they are overborne by a combination of the significant weight I have attributed to the Applicant’s links to the Australian community consideration and the weight (albeit minimal weight) I have attributed to two other considerations.
DECISION
As I stated at the beginning of these reasons, in this proceeding, the task for the Tribunal is to decide whether it is satisfied that the Applicant passes the relevant character test or that there is another reason why the decision to cancel his visa should be revoked.
I am not satisfied that the Applicant passes the character test.
I am, however, satisfied that that there is another reason why the decision to cancel his visa should be revoked.
Accordingly, the Tribunal sets aside the decision under review and, in substitution for that decision, the Tribunal decides to revoke the decision to cancel the Applicant’s visa.

I certify that the preceding 192 (one hundred and ninety-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member C.J. Furnell

............................[SGD]............................................
Associate
Dated: 16 August 2021

Date of hearing: 28 and 30 July 2021

Advocate for the Applicant: Mr Joel McComber

Solicitors for the Applicant: Sentry Law

Advocate for the Respondent: Ms Lauren Hargrave

Solicitors for the Respondent: CLAYTON UTZ

[2021] AATA 2875

16 August 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Jurisdiction

Date of hearing:	28 and 30 July 2021
Advocate for the Applicant:	Mr Joel McComber
Solicitors for the Applicant:	Sentry Law
Advocate for the Respondent:	Ms Lauren Hargrave
Solicitors for the Respondent:	CLAYTON UTZ