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

Titoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2329 (21 July 2022)
Division:GENERAL DIVISION
File Number: 2022/2615
Re:Isikeli Titoa
APPLICANT

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

Decision
Tribunal:Senior Member Theodore Tavoularis

Member Lee Benjamin
Date:21 July 2022
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent, dated 30 March 2022, to not revoke the mandatory cancellation of the Applicant’s visa.
. .........................[SGD]............................. ..........................[SGD].............................
Senior Member Theodore Tavoularis Member Lee Benjamin
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – serious violent offence against law enforcement officer in performance of their duties – multitude of property and traffic-related offending – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PGDX and Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
Tara Euna and Minister for Immigration and Border Protection [2016] AATA 301
Secondary Materials
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Contents
Decision
Short Form Decision……………………………………………………………………………….7
REASONS FOR DECISION8
Introduction and Background
Legislative Framework
Does the Applicant pass the Character Test?
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
The principles in paragraph 5.2
The Primary and Other Considerations

Primary Consideration 1 – Protection of the Australian Community
The nature and seriousness of the non-citizen’s conduct to date
Paragraph 8.1.1(1)(a)(i)
Paragraph 8.1.1(1)(a)(ii)
Paragraph 8.1.1(1)(a)(iii)
Paragraph 8.1.1(1)(b)(i)
Paragraph 8.1.1(1)(b)(ii)
Paragraph 8.1.1(1)(b)(iii)
Paragraph 8.1.1(1)(b)(iv)
Paragraph 8.1.1(1)(c)
Paragraph 8.1.1(1)(d)
Paragraph 8.1.1(1)(e)
Paragraph 8.1.1(1)(f)
Paragraph 8.1.1(1)(g)
Conclusion about the nature and seriousness of the Applicant’s conduct

The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct (Sub-paragraph 8.1.2(2)(b) of the Direction)
(i) Information and evidence on the risk of the Applicant reoffending
(ii) Evidence of rehabilitation achieved by the Applicant by the time of this decision
(iii) Conclusions about risk

Is the risk of harm affected by any of the factors referred to in sub-paragraph 8.1.2(2)(c) of the Direction?
Conclusion: Primary Consideration 1
Primary Consideration 2: Family Violence
Primary Consideration 3: the Best Interests of Minor Children in Australia
Identification of the relevant minor children
The parties’ respective contentions
The Applicant’s oral evidence
The evidence of other witnesses
(i) Mrs Mapuni Pedebone
(ii) Mr Laauli Palupe
(iii) Miss Safune Celestella Titoa
(iv) Ms Fetuao Angela Ati
(v) Master Magic Palupe
(vi) Miss Tammy Palupe

Application of factors in paragraph 8.3(4) of the Direction to the relevant children
Findings about the relevant minor children
Conclusion: Primary Consideration 3
Primary Consideration 4: Expectations of the Australian Community
Conclusion: Primary Consideration 4
Other Considerations
Other Consideration (a): International non-refoulement obligations
Other Consideration (b): Extent of impediments if removed
The Applicant’s written submissions
The Applicant’s oral evidence
The Respondent’s written submissions

Other Consideration (c): Impact on victims
Other Consideration (d): Links to the Australian Community
(1)   Strength, nature and duration of ties
1     Impact of non-revocation on the Applicant’s immediate family
2 Strength, nature, and duration of “other ties” – length of residence
3 Strength, nature, and duration of “other ties” – family and other social links
(2)   Impact on Australian business interests
Weight allocable to Other Consideration (d): links to the Australian community

Findings: Other Considerations
Conclusion
Is there another reason to revoke the cancellation of the Applicant’s visa
DECISION
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL

)

)

No: 2022/2615

General Division

)

Re: Isikeli Titoa

Applicant
And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent
DECISION
TRIBUNAL: Senior Member Theodore Tavoularis
Member Lee Benjamin

DATE: 22 June 2022
PLACE: Brisbane
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 30 March 2022 to not revoke the cancellation of the Applicant’s visa.
The Tribunal will give written reasons for this decision within a reasonable time of the decision.

…………………[SGD]………………….. ….…………[SGD]…………….
Senior Member Theodore Tavoularis Member Lee Benjamin
REASONS FOR DECISION
Senior Member Theodore Tavoularis and Member Lee Benjamin
21 July 2022
introduction and background

Isikeli Titoa (“the Applicant”) is a 29-year-old male, born in New Zealand, on 12 April 1993. He moved to Australia on a permanent basis on 9 February 2004. The totality of his movements in and out of Australia appears thus in his Movement History:[1]
[1] R1, G2, page 60.

Arrival Departure Time in Australia

18 September 1994 16 May 1995 8 months

9 February 2004 26 August 2008 4 years 6 months

1 February 2009 26 August 2016 7 years 6 months

1 January 2017 8 August 2017 7 months

27 October 2017 Not since departed Australia 4 years 8 months

Total time spent in Australia: 215 months
= approx. 18 years

The Applicant’s offending in this country has been extensive. His criminal history[2] discloses the commission of some 66 separate offences that were dealt with at 12 separate sentencing episodes. The first sentencing episode was on 14 October 2010 and the last one was on 27 July 2021. We are talking about an offending history that runs for approximately eleven years, or put another way, for a period representing over 60 percent of his time in this country.
[2] Ibid, pages 35-39.
At all material times, the Applicant has been the holder of a Class TY Subclass 444 Special Category visa (“the visa”). On 7 September 2021,[3] a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) mandatorily cancelled the Applicant’s visa, pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and was serving a full-time custodial sentence. On 4 October 2021,[4] the Applicant made written representations to the Respondent requesting revocation of the mandatory cancellation decision. On 30 March 2022,[5] a delegate of the Respondent decided that the discretion subsisting in s 501CA(4) of the Act to revoke the cancellation of the Applicant’s visa was not enlivened. On 31 March 2022,[6] the Applicant sought review of this decision (i.e., made on 30 March 2022) in this Tribunal.
[3]     R1, G2, pages 67-74; R2, page 3.
[4]     Ibid, pages 46-57; R2, page 3.
[5]     Ibid, pages 15-34; R2, page 3.
[6]     Ibid, G1, pages 3-8; R2, page 3.
The hearing of this application proceeded before us on 6 and 7 June 2022, respectively. The hearing received oral evidence from:
·The Applicant;
·His sister, Ms Janice Palupe;
·His mother, Ms Mapuni Pedebone;
·His brother-in-law, Mr Laauli Palupe;
·His sister, Ms Safune Celesteaa Titoa; and
·His sister, Ms Fetuao Angela Ati.
The hearing also received written evidence which was reduced to an agreed[7] Exhibit List, a true and correct copy of which is attached to these Reasons and marked “Annexure A”.
[7] Transcript (6 June 2022), page 4, lines 7-18.
legislative framework
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4 The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
We are satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act within the requisite statutory time frame. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[8]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[9]
[8] [2018] FCAFC 151.
[9] Ibid, at para [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, at para [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, at para [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have a, “substantial criminal record”. This phrase, in turn, is defined in s 501(7), which relevantly provides that a person will have a substantial criminal record if:
“…
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
…”
There is a ready concession made on behalf of the Applicant that he does not pass the character test.[10] This concession dovetails into a contention put in parallel terms by the Respondent.[11] We are therefore satisfied (and we find) that the Applicant has a, “substantial criminal record” and, accordingly, he does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[10] A1, pages 7-8, paras [52]-[54].
[11] R2, page 4, para [3(a)].
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“Direction” or “Direction 90”) has application.[12] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
“Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[13]
[12] Direction No 90 commenced on 15 April 2021. It replaces Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
[13] Direction No 90, at para [6]. See also para [4(1)] which provides that a “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to, “provide a framework within which decision-makers should approach their task” under s 501 or 501CA (as the case may be). Summarised where appropriate, the principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or 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 have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four “Primary Considerations”, and four “Other Considerations” by which we must be guided in making my decision.
The Primary Considerations we must take into account are:
“(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.”[14]
[14] Ibid, para [8].
The Other Considerations which, where relevant, we must take into account, “include but are not limited to”:
“a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests”[15]
[15] Ibid, para [9(1)].
Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs decision-makers that:
(1)Information from independent and authoritative sources should be given appropriate weight;
(2)Primary Considerations should “generally” be given greater weight than Other Considerations; and
(3)one or more Primary Considerations may outweigh other Primary Considerations.
We will now turn to addressing the abovementioned Primary and Other Considerations.
primary consideration 1 – protection of the australian community
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non- citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
We will consider each in turn.
The nature and seriousness of the non-citizen’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the factors set out in paragraph 8.1.1(1) of the Direction. As referred to earlier, this Applicant has an extensive offending history in Australia. The offending history runs for almost three full pages of single-spaced text.[16] This Applicant’s offending has consumed considerable Australian law enforcement resources and court time.
[16] R1, G2, pages 36-38.
We will now apply the relevant sub-paragraphs appearing in Paragraph 8.1.1(1) of the Direction to ascertain the nature and seriousness of the Applicant’s unlawful conduct in this country.
Paragraph 8.1.1(1)(a)(i)
This subparagraph looks for the commission of violent and/or sexual crimes. If an Applicant has committed such offences, this sub-paragraph deems that they are to be viewed, “very seriously” by the Australian Government and the Australian community. On 15 October 2014, the Applicant was convicted of ‘Serious assault – assault/resist/obstruct police officer/person acting in aid of police officer’.[17]
[17] Ibid, page 37.
The Applicant's relevant offending, which took place on 24 July 2013, is described in a Queensland Police Service Court Brief (noting that the Applicant was previously known as Junior PEDEBONE):[18]
[18] R3, TB1, pages 184-185.
“Serious Assault and obstruct on [Officer D] by Junior PEDEBONE
Victim [Officer M] approached the driver of the vehicle and identified himself and provided the driver with a lawful direction to produce his drivers licence. Defendant 1 [redacted] refused to produce his driver licence and become abusive. At this time Defendant 2 (Junior PEDEBONE) in the front passenger seat has opened the front passenger car door forcefully, intentionally pushing it into victim [Officer D]. Victim [Officer D] was hit by the door forcing her backwards.
Victim [Officer D] then provided a verbal direction for Defendant 2 (Junior PEDEBONE) to remain in the vehicle, as she did this victim [Officer D] closed the car door. Defendant 2 (Junior PEDEBONE) refused and again forcefully opened the door into victim 1[Officer D] again forcing her backwards.
At this point defendant 2 (Junior PEDEBONE) exited the vehicle grabbing victim [Officer D] by the throat and commenced throwing closed hand punches in the direction of her head. Victim [Officer D] has been forced backwards and pushed into the back of a civilian vehicle whilst being assaulted by defendant 1 (Junior PEDEBONE).
[...]
AOBH in company by all defendants/serious obstruct EVANS
Defendant 1 [redacted] has then joined defendant 2 (Junior PEDEBONE) in assaulting victim [Officer D] by grabbing her left wrist and ripping it up behind her back causing significant and severe pain. Both defendants continued to use closed handed fists to punch in the direction of Victim [Officer D] head causing her considerable pain and stress.
Whilst Victim [Officer M] was attempting to go to the aid of victim [Officer D] he was grabbed on the arms and held back by defendant 3 [redacted]. This in effect stopped victim [Officer M] from offering immediate assistance. A short struggle ensured whilst victim [Officer M] was attempting to break free. Once able to break free victim [Officer M] was attempting to restrain defendant 1 [redacted] when he has again be held back by defendant 3 [redacted).
At this stage victim [Officer D] has managed to break free of defendant 2 (Junior PEDEBONE) and has presented a Taser in the direction of the defendant. The defendant 2 (Junior PEDEBONE) has momentarily complied with this request.
At this point in time a civilian witness has become involved in an attempt to intervene in the assaults of the two officers and has assisted in restraining defendant three [redacted].
At this point in time further police resources arrived on scene and all three defendants were taken into custody, all three defendants were abusive and resisted attempts to be placed under restraints by handcuffs.”
[Our emphasis and redactions; errors in original]

The Applicant’s offending involved the commission of a violent crime. The Applicant’s violent conduct attracts the operative effect of this sub-paragraph 8.1.1(1)(a)(i) in favour of a finding that the nature of the Applicant’s conduct is, “very serious”.
For completeness, we note that the Applicant’s criminal history does not disclose a conviction for sexual crime.
Paragraph 8.1.1(1)(a)(ii)
This subparagraph refers to crimes of a violent nature against women or children and, if such offences have been committed by an Applicant, those offences are deemed to be views, “very seriously” by the Australian Government and the Australian community. Notably, this conduct can be taken into account regardless of whether or not a sentence was imposed. The Applicant’s conviction on 15 October 2014 for ‘Serious assault – assault/resist/obstruct police officer/person acting in aid of police officer’, as outlined above, was directed against a woman – namely, a female constable – as the primary victim.
The Applicant's relevant violent offending against the female police constable, referred to as “Victim Officer D”, resulted in her hospitalisation.[19] According to the Queensland Police Service Court Brief:[20]
“Victim [Officer D] suffered soft tissue damage from her shoulder to her fingers including her wrist. Victim [Officer D] also suffered numerous open cuts to her hands and fingers and generally swelling and soreness around her facial area from punches.”
[19]    Ibid, page 185.
[20]    Ibid.
We find that the Applicant’s violent offending against the female victim compulsorily attracts the adverse application of this sub-paragraph 8.1.1(1)(a)(ii). Accordingly, the Applicant’s offence in this domain should be viewed as, “very serious”.
For completeness, we note that the Applicant’s criminal history does not disclose a conviction for crimes of a violent nature against a child.
Paragraph 8.1.1(1)(a)(iii)
This particular sub-paragraph looks for acts of family violence in an Applicant’s offending history and, if there has been such offending, provides that it is viewed, “very seriously” by the Australian Government and the Australian community.
The Applicant’s criminal history does involve family violence and there is nothing in the evidence referable to the Applicant’s commission of acts of family violence, whether a conviction was recorded or not. Paragraph 8.1.1(1)(a)(iii) is therefore not relevant in the assessment of the nature and seriousness of the Applicant’s conduct.
Paragraph 8.1.1(1)(b)(i)
The next component of paragraph 8.1.1(1) of the direction refers to the range of conduct referable to an Applicant that may be regarded as, “serious". There is no evidence in either the oral or written material to the effect that this Applicant has committed any offences in the realm of causing a person to enter into or being a party to a forced marriage. We are not able to find any formally recorded conviction for such offending, nor is there any reference to it in any police narrative (or equivalent) that did or did not result in any conviction. This particular sub-paragraph is therefore not relevant to the assessment of the nature and seriousness of the Applicant’s unlawful conduct.
Paragraph 8.1.1(1)(b)(ii)
This sub-paragraph looks for the commission of any offence against what is described as, “vulnerable members of the community such as the elderly and the disabled, or government representatives or officials…in the performance of their duties”. The Applicant has one conviction for offending against a government representative or official in the course of their duties – the Applicant was convicted on 15 October 2014 for ‘Serious assault – assault/resist/obstruct police officer/person acting in aid of police officer’.[21] The substance of the Applicant’s violent offending in this regard has already been fully explained herein. There can be no cavilling with the finding that the auspices of this sub-paragraph 8.1.1(1)(b)(ii) are duly engaged because the Applicant’s conduct did result in his conviction for crimes committed against, “government representatives or officials” (i.e., a police officer), “in the performance of their duties” (i.e., effecting a lawful traffic stop). This sub-paragraph 8.1.1(1)(b)(ii) can therefore be applied towards a finding that the nature of the Applicant’s conduct has been of a very serious nature.
[21] R1, G2, page 37.
Paragraph 8.1.1(1)(b)(iii)
This sub-paragraph refers to serious conduct involving, “any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion”. Whilst the Respondent refers to this sub-paragraph in its Statement of Facts, Issues and Contentions (“SFIC”),[22] it does not otherwise propound this component of the Direction in either its written or oral submissions. Likewise, we cannot find any reference to this specific sub-paragraph in the Applicant’s SFIC.[23] The transcript also demonstrates that neither party said anything about this particular sub-paragraph during the hearing. We therefore find that this sub-paragraph of the Direction is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
[22] R2, page 8, para [15(b)(iii)].
[23] A1.
Paragraph 8.1.1(1)(b)(iv)
This sub-paragraph refers to (and renders, “serious”) any crime committed by a non-citizen while in immigration detention. None of the offences appearing in the Applicant’s criminal history are referable to conduct that occurred during his time in immigration detention, during an escape from immigration detention, or any of the other componentry appearing in the language of this sub-paragraph. This sub-paragraph is therefore not relevant to the present application.
Paragraph 8.1.1(1)(c)
In applying this particular sub-paragraph, we are precluded from taking into account sentences imposed on this Applicant for: (1) any violent offending he may have committed against women;[24] (2) acts of family violence;[25] and (3) any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[26]
[24]    Paragraph 8.1.1(1)(a)(ii).
[25]    Paragraph 8.1.1(1)(a)(iii).
[26]    Paragraph 8.1.1(1)(b)(i).
We are therefore precluded from taking into account the specific sentence imposed on the Applicant on 15 October 2014 for ‘Serious assault – assault/resist/obstruct police officer/person acting in aid of police officer’. To the best of our understanding of the materials, the Applicant has not been sentenced for conduct involving him causing a person to become involved in a forced marriage. That is, of course, not the end of the Applicant’s sentencing history. He has received numerous sentences for non-precluded offending, each of which do attract the operative effect of this particular sub-paragraph 8.1.1(1)(c).
The Applicant has received an array of sentences ranging from fines, restitution orders, good behaviour bonds, probation, community service orders, to terms of imprisonment (where he spent time in actual custody). These offences were helpfully summarised by the Respondent in their Statement of Facts, Issues and Contentions (SFIC):[27]
[27] R2, pages 1-3.

Date

Event

Reference

14 October 2010

The Applicant was found guilty (no conviction recorded) of stealing and was fined $300.00.

G2, 46.

7 April 2011

The Applicant was found guilty of entering dwelling with intent to damage property; burglary (x5); and enter premises with intent. No conviction was recorded however the Applicant was given a good behaviour bond of 18 months on recognisance of $1,000.00.

On this day, the Applicant was also found guilty of 20 counts of burglary, enter premises by breaking, attempting to enter dwelling with intent to damage property, and wilful damage in respect of which, again, no conviction was recorded, and he was given probation for 18 months with 120 hours of community service.

G2, 45.

27 July 2011

The Applicant was found guilty (no conviction recorded) of burglary. He was given a good behaviour bond on recognisance of $200.00.

G2, 45.

8 August 2012

The Applicant was convicted of entering a dwelling with intent by breaking. He was ordered to complete 80 hours of community service.

G2, 45.

7 February 2013

The Applicant was convicted of attempted enter premises by breaking, burglary (x2), entering premises by breaking (x2), stealing, and breaching bail. He was given 15 months' probation and ordered to complete 100 hours of community service.

G2, 44 – 45.

26 June 2013

The Applicant was convicted of committing public nuisance and failing to appear in accordance with an undertaking. He was ordered to complete 40 hours of community service.

G2, 44.

1 April 2014

The Applicant was convicted of breaching his community service order without further punishment.

G2, 44.

8 March 2017

The Applicant was convicted of stealing and possessing dangerous drugs. He was fined $750.00 and ordered to pay

$295.00 in restitution.

G2, 44.

The imposition of a custodial term upon an offender is seen as the last resort in the sentencing hierarchy. It logically follows that the imposition of a custodial term must be viewed as a reflection of the objective seriousness of the offending sought to be punished.[28] The important point to be taken from the non-precluded sentences imposed on the Applicant is that he has received nearly the full range of sentencing options available to a judicial officer in Australia. In our view, the Applicant’s lengthy sentencing history indicates both the nature and extent of his unlawful conduct in this country.
[28] See PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at para [20].
At the hearing, the Applicant conceded, several times, that his unlawful conduct in Australia has been, at least, of a serious nature. For example:
“MR MORRIS: All right. What I’d like to do is look at page 330 which is just one over. The third paragraph there says:
Those are the ones where you went inside somebody’s house in night-time while those people were asleep in their beds. That’s very nasty stuff, Mr Pedebone. If you were a bit older and had convictions recorded against you, break and enter, you’d be looking at quite a long time in gaol for those sorts of offences. Breaking into someone’s house is bad enough, it’s worse than breaking into a shop. But breaking into someone’s house when that person is asleep in their own bed in the house, is really as bad as it gets with breaking and entering. It invades someone’s privacy. It’s invading a place where a person is entitled to feel safe and the law views that very seriously.
Magistrate McLaughlin was very clear with you about how serious that offending was?
APPLICANT: Yes.
MR MORRIS: You’d agree with that, wouldn’t you?‑‑‑Yes.”[29]
…
“MR MWILAMBWE: The applicants case, in respect to the primary consideration, I’ll just articulate in summary what our submissions are in reference to primary consideration one. We continue to submit that primary consideration one favours the revocation of the visa cancellation on the basis that we’ve articulated that the risk of recidivism for the applicant due to the change of circumstances in regard to his medical condition and another life changing situation, visa cancellation which he hasn’t achieved, has put the applicants risk of recidivism lower then expected because of, after evidence I intend to provide today that would suggest that the applicants personal circumstances, specifically his health has put him on a better direction in respect of that. With the support of his family. So we do continue to submit that primary consideration favours the revocation of visa cancellation. We do consider the fact the primary - seriousness of the offence, they are serious offences on the basis of the applicants extensive criminal history in the last - since 2011. In the last ten years.”[30]
…
“SENIOR MEMBER: Just before you move the primary consideration one. So, the concession is there that the nature and seriousness of the offending of the applicant is such as to militate against him for the purposes of primary consideration one. That’s your contention there.
MR MWILAMBWE: Yes, that’s it.”[31]
…
“SENIOR MEMBER: All right. So, there’s a concession shortly that the nature and seriousness of his offending must be assessed to be at least that, very serious or serious?
MR MWILAMBWE: Correct. Correct. I have to concede that. Yes.”[32]
[29]    Transcript (6 June 2022), page 8, lines 8-26.
[30]    Ibid, page 4, lines 41-47; page 5, lines 1-8.
[31]    Ibid, page 5, lines 11-16.
[32]    Transcript (7 June 2022), page 120, lines 20-25.
We therefore have no trouble finding therefore that the sentences imposed by various courts on the Applicant as a result of his extensive and varied criminal conduct over the course of his decade of offending, are militative of a finding that his offending has been of a serious nature. Indeed, as cited above, the Applicant readily concedes the serious nature of this offending.
Paragraph 8.1.1(1)(d)
This sub-paragraph refers a decision-maker to the frequency of the Applicant’s offending and whether there is any trend of increasing seriousness. First, one need travel little distance to safely arrive at a conclusion that his offending has been of a frequent nature. He has committed some 66 offences that have been dealt with at some 12 separate sentencing episodes – a rate of over six criminal convictions annually. Across the ten-year period of this Applicant’s offending, despite periods of lawful behaviour, he has committed repeated crime sprees each of which had to be dealt with by judicial sentencing officers. We accordingly find that there is an obvious and undeniable frequency to the Applicant’s offending.
The second enquiry involves an assessment of whether the criminal history demonstrates a trend of increasing seriousness. In relative terms, this Applicant’s offending history has involved him being convicted and sentenced for arguably serious offending across the entirety of his ten-year criminal history, with a notable uptick in seriousness as his criminality evolved.
During oral submissions put to the Tribunal by the Respondent, it was virtually common ground between the parties that his offending was, from its inception, consistently serious, and trending toward an increasing seriousness:
“MR MORRIS: So if we begin then with the 2012 burglaries, this was a string of burglaries. The applicant accepted in evidence that it resembled something of a crime spree. And that offending was very serious. It involved, as Senior Member identified, taking a bracelet off the wrist of a sleeping person. Someone sleeping in their own home, where they are entitled to feel safe. In my submission that’s disturbing offending, and it is very serious as my friend has rightfully conceded.”[33]
…
“MR MORRIS: …[having] regard to the offending on 24 July 2013, which is the offending involving Constable [Officer D]…[the Applicant] opened his door, his car door, into Constable Dickens. She shut the door and directed him to remain in the car. He decided to (indistinct words), no, well I’m not going to do that. He opened the door again into her, got out, grabbed her by the throat and punched her in the head.[34]… So in 2014 the applicant went to prison.”[35]
…
“MR MORRIS: … in 2018, we see another spree of burglaries. And again, I won’t go through them chapter and verse, but they’re serious. Serious burglaries. Invading people’s homes, their sanctuaries…And so in 2018 he went to prison again.”[36]
…
“MR MORRIS: The applicant came out of prison again in 2018, and shortly thereafter we had the 2021 offending, the most recent offending; what might be referred to as an index offending for the purposes of these proceedings.[37] …[W]e know from the applicant’s own evidence that… He committed these offences for fun. In my submission, that is not only serious, but it reflects a disturbing attitude towards the rights and interests of other members of the Australian community.”[38]
[Our redactions, insertions, and emphasis]
[33]    Ibid, page 136, line 5.
[34]    Ibid, page 137, lines 20-35.
[35]    Ibid, page 138, line 5.
[36]    Ibid, line 15.
[37]    Ibid, line 25.
[38]    Ibid, lines 25-30.
In relation to the Applicant’s most recent offending (i.e., over the 2020 – 2021 period), the evidence before the Tribunal strongly supports the proposition that the offending has increasingly grown in seriousness:
“MR MORRIS: …Next one
On the evening of the 15th day of February 2021, following a break in at Annerley, investigators responded to another break in involving the same vehicle at the IGA Westlake. Upon attendance, the suspects were sighted leaving the store and entering their vehicle. The male wearing the red hoodie, later identified as the defendant redacted, can be seen carrying a safe out of the IGA and into the Kia Cerato.
MR MORRIS: You were involved with this one as well weren’t you?
APPLICANT: Yes.
MR MORRIS: Yes.
At about 2.30 pm on the 10th day of February, 2021, the victim’s dwelling was entered by the offenders, gaining entry through the rear door and locating spare keys by searching through cupboards. The victim believes they disturbed the offenders as she returned home in her vehicle and hopped in the driveway. The victim was not home long before she then noticed her vehicle gone. The vehicle was a dark silver Kia Cerato station wagon.
MR MORRIS: And that’s the same car that’s been referred to in the other ones, isn’t it?
APPLICANT: Yes.
MR MORRIS: And you were involved in stealing that?
APPLICANT: Yes.
…
MR MORRIS: All right.
On the 28th day of October 2020, the offenders have reversed the Kia Cerato through the glass shop doors next to the Prouds Jewellery store. When inside, the offenders have then used a sledgehammer to smash the display windows on the front of the shop. The offenders have taken possession of a large amount of jewellery and placed them in jumbo bags before leaving.
One of the offenders was seen wearing a New Zealand boxing fight club ATH jumper. During their theft of the jewellery from Prouds at this location, they were disturbed by a cleaner. This is the last time the Kia Cerato was ever sighted in an offence.
MR MORRIS: You were involved in this one?
APPLICANT: Yes.
MR MORRIS: Who had the sledgehammer?
APPLICANT: My friend.
MR MORRIS: Your friend. And then:
On the 28th day of October 2020, the offenders have attended the Free Choice store at Underwood Shopping Centre and began breaking through the glass doors into the shopping centre. The offenders have then existed the vehicle and used the same previously mentioned tools to pry open a metal sliding door.
Upon entering the shop, the offenders have taken possession of a large quantity of Bic lighters and placed them in jumbo op shop bags before leaving.
MR MORRIS: You were involved in this one as well?
APPLICANT: Yes.
MR MORRIS: Of all of the ones that I’ve referred to, is there anything in there that is inaccurate or wrong?
APPLICANT: It’s all correct.
MR MORRIS: That’s all correct. All right. So I’m going to work backwards, starting at the last one (indistinct). So this is what’s commonly referred to as a ram raid, right?
APPLICANT: Yes.
MR MORRIS: And it seems though, what you went to steal was a large quantity of Bic lighters?
APPLICANT: Yes.
MR MORRIS: Why?
APPLICANT: I don’t know. We were just - I actually don’t (indistinct).
MR MORRIS: I mean, they’re not high value items, are they?
APPLICANT: Yes. I - - -
MR MORRIS: Let me ask you this then. Were you under the influence of any illicit drugs at the time you did this?
APPLICANT: Yes, we were.
MR MORRIS: You were. What drug?
APPLICANT: Cocaine.
MR MORRIS: Cocaine at that time?
APPLICANT: Yes.
MR MORRIS: All right. So what I’d suggest to you is it’s really - that last one with the Bic lighters, you were just doing that for fun, weren’t you?
APPLICANT: Yes.
MR MORRIS: It wasn’t about supporting your family or anything like that?
APPLICANT: No.
MR MORRIS: No. And the one above is another ram raid, this time of a Prouds Jewellery store. Was this also for fun?
APPLICANT: Yes.
MR MORRIS: And were you also under the influence of cocaine at this time?
APPLICANT: Yes.
MR MORRIS: The one above says:
At about 2.30 on the 10th day of February 2021 -
MR MORRIS: I’ve already [read] it, I won’t read it again. This is the one where you stole the car?
APPLICANT: Yes.
MR MORRIS: Were you under the influence of something at that time?
APPLICANT: Yes.
MR MORRIS: Cocaine? No, meth.
MR MORRIS: Meth at that time. All right. And it’s - is it fair to say that the reason that you stole that car was so that you could use it in the future offences?
APPLICANT: Yes.
MR MORRIS: So it’s part of a plan?
APPLICANT: Yes.
MR MORRIS: And the one above - this is the IGA Westlake where as a group you stole that safe. Again, that was just for fun?
APPLICANT: Yes.
MR MORRIS: Were you under the influence on that occasion?
APPLICANT: Yes, marijuana and drinking.
MR MORRIS: Marijuana and drinking, not coke or meth this time?
APPLICANT: No.
MR MORRIS: And then the one above (indistinct) at the (indistinct) service station that was just for fun as well?
APPLICANT: Yes.”[39]
[39]    Transcript (6 June 2022), page 35, lines 5-30.
…
MR MORRIS: … in relation to the offending that took place on the evening of 15 February 2021… it says:
At approximately 1.50 am on 15 February 2021 the defendants arrived at the offence location in a stolen Kia Cerato bearing the Queensland registration number - - -
- - - which I won’t say:
There is a third offender present at the offence location. The defendant (indistinct) can be seen on CCTV footage wearing a red jumper. The defendant (indistinct) can be seen wearing a grey hoodie with the word ‘Tiger’ printed on the front. Both defendants approached the front sliding security door to the Chapel Hill Convenience Store. The defendant attempted to use force to open the door before using a crowbar to gain entry. Both defendants enter the store and conduct a messy search. Defendant (indistinct) can be seen on CCTV footage smashing the monitor displaying the CCTV footage. Both defendants then exit the store and use a crowbar to gain entry to the Poolwerx store. The defendants have caused extensive damage to the door frame. the defendants have entered the store and conducted a search shortly after the defendants have decamped the stolen vehicle. On the evening of 15 February 2021 both offenders have been responsible for multiple offences in the Brisbane region including offences in (indistinct). Investigations coordinated crews with multiple sightings around Indooroopilly and Centenary area. Eventually stingers were successfully deployed (indistinct) back street in Pinkenba. The vehicle then dangerously entered the motorway by crossing an oncoming lane to enter the gateway southbound. The vehicle travelled to the south side of Brisbane and then used the Wynnum Road exit to turn back under the bridge and travel back northbound on the gateway all at high speed at approximately 150 kilometres an hour. High speeds in a motor vehicle on three wheels pose a huge risk to members of the public using the road in this area either on foot or in a vehicle.
MR MORRIS: Okay. So there’s really three elements, isn’t there? There’s the incident at Chapel Hill Convenience Store, incident at Poolwerx and then the driving. Would you agree with that?
APPLICANT: Yes.
MR MORRIS: And at the Chapel Hill Convenience Store, again what I would suggest to you is you were doing this just for fun?
APPLICANT: Yes.
MR MORRIS: Yes. And you were with another person at the time?
APPLICANT: Yes.
MR MORRIS: And then Poolwerx, same thing, just for fun?
APPLICANT: Yes.
…
MR MORRIS: You would agree, wouldn’t you, that it is exceptionally dangerous to drive at speeds of 150 kilometres an hour on public roads?
APPLICANT: Yes.
MR MORRIS: And all the more so if one of your four wheels no longer has a working tyre?-
APPLICANT: Yes.
MR MORRIS: And all the more so if you’re travelling against the flow of traffic?
APPLICANT: Yes.
MR MORRIS: And do you accept that your conduct put innocent people in serious harm’s way?
APPLICANT: Yes.
MR MORRIS: You under the influence of anything at this time?
APPLICANT: We were drinking.
MR MORRIS: Just drinking?
APPLICANT: Yes.”[40]
[40]    Transcript (6 June 2022), page 38, lines 15-35.

We are satisfied that the Applicant’s offending has been of a frequent nature. We are further satisfied that upon review of the nature of the offences, the variety of increasingly punitive sentences imposed, and the abovementioned exchange between the Applicant and the Respondent’s representative, that a finding of a trend of increasing seriousness in the offending can be readily made. We therefore conclude that both elements of this particular sub-paragraph 8.1.1(1)(d) strongly support a finding that the totality of the Applicant’s offending in this country has been of a serious nature.
Paragraph 8.1.1(1)(e)
This sub-paragraph compels an enquiry into the cumulative effect of the Applicant’s repeated offending. We are of the view that the Applicant’s sequence of offences is demonstrative of a number of cumulative effects.
First, the Applicant’s offending is demonstrative of a failure to comply with, or otherwise meet the requirements of lawful authority. This is evidenced by:
·his conviction for a breach of bail (on 7 February 2013);
·his conviction for public nuisance (on 26 June 2013) – arising from the Applicant’s yelling, “…you fucking dogs” at police officers and apparently wanting to fight police while yelling, “Fuck off dogs. Fuck off”;[41]
·his conviction for failure to appear in accordance with an undertaking (on 26 June 2013);
·his conviction for breaching of both a probation and community service order (on 1 April 2014);
·his conviction for serious assault - assault/resist/obstruct police officer/person acting in aid of police officer - against a female police officer (on 15 October 2014); and
·his conviction for commit public nuisance and obstruction of a police officer – arising from the Applicant yelling words to the effect of, “fuck off cunt, you go home, I’ll bash you nigger etc…”[42] (on 19 July 2019).
[41] Ibid, page 24, lines 20-35.
[42] R3, TB1, page 224.
Second, the progressive evolution of the sentencing regime imposed upon the Applicant demonstrates that the Applicant failed to experience any deterrent or dissuading effect of the progressively more severe sentences (including imprisonment) that have been imposed on him. At the risk of repeating ourselves, he has received virtually the full ambit of sentences. He took nothing from the non-custodial and custodial nature of the sentences imposed during the abovementioned offending. And in as much as the Applicant was not deterred by previous prison sentences, that enhances the seriousness of his index offending. Interwoven with this, the Applicant also ignored, by his own admission, the warnings given to him by judicial sentencing officers:
“MR MORRIS: And then we see over the page what I would submit is the more instructive part of the sentencing remarks for the purposes of these proceedings, which is the warning that Magistrate McLaughlin gave. And that warning, as Magistrate McLaughlin made clear, came about in circumstances where the applicant had already breached orders. So this wasn’t coming at this from a clean slate perspective. There were already breaches which had occurred, which to some extent supports the reluctance that His Honour exhibited in making his orders. But we see very clearly:
Before I ask you if you agree, I have to remind you of the rules. I imagine you’ve heard the rules before, but I will remind you of them. The first rule, the most important rule, is that you don’t break the law while you’re on these orders, which is exactly what you did on the last community service order. You broke the rules.
It’s a very clear warning in my submission. And that warning attached to a 15 month corrections order from the date of sentencing, which was 7 February 2013.”[43]
…
“MR MORRIS: You’d agree, wouldn’t you, that you…disregarded the warning from Magistrate McLaughlin?
APPLICANT: Yes.”[44]
[43]    Transcript (7 June 2022), page 136, lines 20-40.
[44]    Transcript (6 June 2022), page 24, line 45.
Third, the Applicant’s regular use of, and predilection for, illicit substances (including cocaine,[45] marijuana[46] and methamphetamine[47]) have, without question, severely distorted his moral compass, occasioning his violent offending. This includes: a serious assault of a female police constable, his participation in the dangerous operation of a motor vehicle putting the lives of road users at risk, his flagrant disrespect for the personal and property rights of others, as well as his callous disregard for business proprietors (evidenced by, among other things, his participation in so-called, “ram raids” for, “fun”[48]).
[45]    Ibid, page 36, line 35.
[46]    Ibid, page 37, line 25.
[47]    Ibid, page 30, lines 20.
[48]    Ibid, page 36, lines 25 - 45.
Fourth, the Applicant does not seem to have formed any definitive understanding of the necessary level of responsibility and lawful compliance in the ownership and operation of a motor vehicle on Australian carriageways. He has a conviction for unlawful use of a motor vehicle (though he denies driving the car at the time of the offence[49]). The Applicant has also admitted to driving while unlicensed.[50] The Applicant’s history is suggestive of attendant recklessness and indifference to the laws and regulations governing the operation of a motor vehicle.
[49] See generally, Ibid, pages 33-34.
[50] Ibid.
Fifth, the Applicant’s offending must, on any reasonable analysis, be found to have caused financial suffering, with corollary emotional distress and inconvenience for many individuals and families in the Applicant’s local community and beyond. The Applicant’s periodic sprees of breaking and entering, burglary, stealing and theft has permanently deprived households of cars, cash, and other valuables (including jewellery), household items and appliances (including computers) and mobile devices. In a similar vein, the Applicant has caused substantial economic loss, physical damage, and disruption to numerous small and medium-sized businesses though his participation in, “ram raids”.
Overall, we find that although the Applicant's offending is serious when viewed in isolation, it should be viewed as very serious when viewed cumulatively.
Paragraph 8.1.1(1)(f)
This sub-paragraph looks at whether a non-citizen has provided false or misleading information to the Minister’s department, including by not disclosing criminal offending. We have earlier outlined the Applicant’s movement history in and out of Australia. To the best of our understanding of the material, there is no contention before the Tribunal that the Applicant has provided false or misleading information to the Respondent department, including by not disclosing prior offending. This sub-paragraph is not propounded in the Respondent’s SFIC.[51] In the Applicant’s SFIC, it is said that, “…the Applicant has never previously provided any false or misleading information to any Government Department…”.[52] We are of the view that this sub-paragraph is therefore not relevant to determination of this application.
[51] R2.
[52] A1, page 10, para [68].
Paragraph 8.1.1(1)(g)
The enquiry compelled by this sub-paragraph involves the issue of whether or not an Applicant has re-offended since being formally warned about the consequences of further offending in terms of his visa status to remain here. We are not aware of any previously threatened cancellation, or revocation of a cancellation decision, or any other formal warning to the Applicant about adverse consequences for his visa status arising from his offending history in Australia. This sub-paragraph is not propounded in the Respondent’s SFIC. In the Applicant’s SFIC, it is said that the, “…Applicant has not had any warnings, previous cancellations or refusals of any visas”.[53] We are of the view that this sub-paragraph is therefore not relevant to determination of this application.
[53] Ibid, para [69].
Conclusion about the nature and seriousness of the Applicant’s conduct
We have sought to apply each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction. With particular reference to the relevant and applicable sub-paragraphs to which we have referred, we conclude that the totality of this Applicant’s unlawful conduct in Australia can be readily characterised as, “very serious”.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that, in considering the risk to the Australian community, we should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that, in considering the risk to the Australian community, we must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Sub-paragraph 8.1.2(2)(a) requires an assessment of the nature of harm to an individual or the Australian community were the Applicant to engage in further criminal or other serious conduct. There is a ready concession from the Applicant which is put thus: “The Applicant accepts that the nature of harm if the Applicant were to reoffend is very serios [sic] and likely to result in significant psychological, financial and physical harm to members of the Australian community”.[54]
[54] Ibid, page 11, para [75].
Were this Applicant to re-commit any of the offences apparent from his criminal history thus far, individual victims and/or the Australian community at large could quite conceivably suffer physical, psychological, and other material damage (i.e., financial). In particular, the impact of the Applicant’s offending against the property of others is significant. It is offending that has disrespected the rights of other people to enjoy the use of the property for which they have worked hard to acquire. His property offending has deprived those victims of their property and no doubt caused emotional distress to them in the process.
Were he to again offend in such a physically serious and dangerous way against a victim, as he did against the unfortunate police officer that sought to apprehend him, there is no question that a victim of such future offending would suffer physical harm, quite likely psychological harm, but also harm of a permanent nature, including to a catastrophic level.
We have no difficulty in concluding that if the Applicant were to resume his previously unlawful conduct involving a direct and dangerous challenge to the lawful authority governing this country, such conduct would again place those law-enforcement officers directly in harms way and would consume an undue level of the community’s law enforcement and judicial sentencing apparatus. We consider the Respondent’s comments apposite when it refers to possible outcomes from further offending by this Applicant:
“…The Applicant's offending has placed members of the Australian community at risk of serious harm. That those risks have not, so far, manifested in more serious physical, mental or economic harm to the Applicant's victims is fortunate but it is no guarantee (or even an indicator) that those same acts would not cause serious harm in the future.”[55]
[55] R2, page 16, para [35].
To be clear, we express our finding thus: were the Applicant to re-offend, the nature of the harm to individuals or the Australian community would be serious and would involve physical, psychological, and material harm to individual victims and/or the community at large, including, quite conceivably, harm to a catastrophic level.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (Sub-paragraph 8.1.2(2)(b) of the Direction)
(i) Information and evidence on the risk of the Applicant reoffending
In his Personal Circumstances Form (“PCF”), the Applicant provided the following explanation as to his belief about the recidivist risk he represents in Australia:
“…because All my Family are All here and I Don’t have no one There to go. I Don’t want to go back to New Zealand because I Might Join a gang. I lived in Australia most of my life and I love living here and had my first Job as a Kitchen hand A KFC and had All my Friends That I met here. I went to college here and love it. I hope to have the opportunity to get back in the community, so I can get a job get my life back together. So I can support my family. That I can stop doing crime.”[56]
[Errors in original]
[56] R1, G2, page 53.
In his first Statutory Declaration, dated 1 June 2022 (“First Statement”), the Applicant stated:
“14. I am extremely embarrassed of my past actions and have had ample opportunity to reflect on those previous poor decisions. I am extremely remorseful and ashamed of my criminal behaviour.
15. I am fully aware of the severe impacts my actions have had on myself, my family and the community, for which I am very regretful of.
16. I have no intention of intention of reoffending and I am determined to live a life devoid of crime, and focus on my family, friends and employment.
17. I take full responsibility of my actions and realise where I went wrong.
18. Whilst I do take full responsibility of my behaviour and realise that there is nothing to excuse it, I must note that I was greatly influenced and affected by my associations with negative people. I was associated with these people during my offending, and I was influenced by them.
19. One of the negative impacts of these associations was the pressure that led me to abuse illegal substances, particularly methamphetamine when I was about 20 years old.
20. I have come to the realisation of the extreme negative impacts my drug use and negative associations had on myself and my family. As such, I took active steps to personally deter myself from such behaviour and negative associations. It was very important for me to get sober so that I could remain an active supporter of my nieces and nephews. I have not done any drugs in approximately five (5) years. I intend to maintain this mindset for the rest of my life and never touch drugs again.
21. As a result of all my family living in Australia, I do not have any real connections in NZ to support me should I be forced to relocate there. The transition would be extremely difficult for me as I have no networks in NZ to support me emotionally, physically, financially and professionally.
22. I have also suffered from health issues for the majority of my life; predominately with difficulties breathing when exerting myself. As a result, I have had trouble with maintaining steady employment, have been admitted to hospital on several separate occasions, and have to frequently take large amounts of medication.
29. I am motivated to lead a life devoid of crime and criminal behaviour to ensure that I have every opportunity to spend quality time with my family, who have provided me with their unconditional love and support. My family will be organising some rehabilitation programs and assistance. They are currently waiting for me to be released into the community in order to facilitate these programs. I am fortunate to have this kind of support.”[57]
[Our emphasis]
[57] A2, pages 3-4.
In his second, unsigned Statutory Declaration, dated 2 June 2022 (“Second Statement”), the Applicant stated that:
“1. I note that I have had adult offences dated back to 2011.
2. Further to my previous Statutory declaration, I note that I am extremely concerned about my health. In March 2022 I underwent emergency open heart surgery at the Princess Alexandra Hospital to replace one of my heart valves. I feel a lot better, however I still continue to experience fatigue, general malaise, and headaches at times.
3. I will be medicated daily for the rest of my life, I am afraid without the support of my family, it will be extremely difficult to manage my medical condition. I do not have the best short term memory.
4. This life changing experience has given me a wake up call. Two significant events (heart surgery and visa cancellation) in my life have shaped my views and made me realise and understand my many bad decisions. I am willing to do what is required to remain in Australia with my family, in order to continue to recover from my heart surgery and grow as a person.”[58]
[Errors in original]
[58] R5.
In the Applicant’s Statement of Facts, Issues and Contentions (“SFIC”), he contends that his recidivist risk is, “low” for the following reasons:
“81. The Applicant has taken substantive steps of personal deterrence. This is supported by the absence of any issues arising from his term of imprisonment. It is important for the decision-maker to take into account that the Applicant’s behaviour is positive evidence directly relevant to the issue of the risk of reoffending. It is, therefore, submitted that the Applicant is of a low risk of reoffending on the basis that he has demonstrated that he is able to conduct himself lawfully with his newly acquired knowledge in dealing with his issues.
82. The apparent precondition to the Applicant’s low risk of reoffending is that he successfully abstains from all forms of negative associations and illegal/illicit substances. The Applicant is otherwise of minimal risk for future offending. The Applicant is demonstrably motivated to improve his overall wellbeing to avoid any possibility, however slim, of being placed in a similar situation. Importantly, the Applicant is sufficiently motivated to practice personal deterrence.
83. It is submitted that, whilst the nature of the offending was serious, the evidence before the Respondent provides them the basis to come to the correct finding of fact that the risk of reoffending is ‘low’. The Applicant has expressed remorse for the harm that had been done to the community. The Applicant is extremely shameful of his conduct that led to his offending. The Applicant has proceeded with personal deterrence, to which has resulted in progress in improving his overall wellbeing.
84. Through the Applicant’s involvement in the community, he has gained many valuable friends who provide positive assistance and support in his life. The Applicant wishes to prioritise his further employment and his relationships with his friends and immediate family. The Applicant has every intention of being an integral member of the community, having the ability to support his family, and continue living in Australia, devoid of crime.
85. It is ultimately submitted that the offences are not indicative of further offending in Australia and that the Applicant is not an unacceptable risk, given the surrounding factors outlined above.
86. This is especially the case as the Applicant has taken active steps in personal deterrence from drug use and negative influences. It must be noted that the Applicant has had no dealings with drugs of any nature in approximately five (5) years and intends to maintain this for the rest of his life.
87. The Applicant is remorseful of his offending and wishes to continue to have the opportunity to spend quality time with his family and friends.
88. The Applicant is aware of the consequences of committing further offences (which is an evident protective factor against recidivism).
89.In reference to the Applicant’s risk of re-offending, we draw attention to the case of LZGG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. In that case, the AAT took into account the following in concluding that the Applicant in the abovementioned case is of a low risk of re-offending:
(a) The Applicant’s remorse;
(b) The Applicant’s understanding of the grave mistakes he has made in his life; and
(c) The Applicant has taken steps to rehabilitate himself and to further reduce the likelihood of reoffending.
90. Accordingly, it is argued that the Applicant displayed significant remorse regarding his offending, understands the seriousness of his offences, and has taken steps of personal deterrence to reduce his risk of reoffending, similar to the abovementioned case. As such, the decision maker should take into account the abovementioned factors and follow precedent to come to the conclusion that the Applicant is of a low risk of re-offending.
91. In reference to the Applicant’s risk of re-offending, we further highlight the matter of Williams v Minister for Immigration and Citizenship, in this case Mr Williams had a lengthy criminal history that demonstrated a risk of re-offending, which also included charges when he was a minor and zero demonstration of rehabilitation of his offending. In the Applicant’s case, he proceeded with personal deterrence to address his issues. The Applicant’s family and children will face severe emotional and financial hardship, if the Applicant is not allowed to remain in Australia.
92. In YNQY v Minister for Immigration and Border Protection,3 the visa applicant was from South Sudan and who was granted a Global Special Humanitarian Visa Class XB Subclass 202 when he was 14 years of age. When the visa applicant was 25 years old his visa was cancelled on character grounds. The visa applicant was convicted of offences in or around 2011 (crime spree), which resulted in the visa applicant’s visa being cancelled by the Minister under s 501(3A) of the Act, where he was sentenced to nearly 6 years in jail (variety of assaults and robberies).
93.The contention in this matter, it was argued that the Tribunal failed to consider what was in the best interests of children (in this case the visa applicant had two brothers, a niece and two nephews who were all minors), even though he was not however, the primary carer.
94. The court concluded in this matter, that the Tribunal erred on certain grounds and materially depriving the visa applicant, YNQY of the possibility of a successful outcome. There were two grounds that the court did not hear and therefore did not remit it to the Tribunal for another hearing until the other two grounds could be concluded in a separate matter. Regardless, the court emphasised the need of the following matters to be properly assessed and considered according:
(a) The importance of minors; and
(b) Mental health considerations.
95. The decision maker should consider the importance that is attached to the mental health factor, as the visa applicant’s circumstances are strong indicators in favour of a revocation request because of the following:
(a) The visa applicant has successfully proceeded in personal deterrence; and
(b) The Applicant’s nieces and nephews, particularly the children of Janice Palupe, see the Applicant as a parental figure due to the amount of support he provides.”[59]
[Internal footnotes omitted; our emphasis]
[59] See generally, A1.

In his Supplementary SFIC, the Applicant further contended that his recidivist risk is, “low”:
“20. …the Applicant has taken active personal steps to deter himself from [Applicant’s association with negative peers and drug abuse issues]; the Applicant has had no dealings with drugs of any nature in approximately five (5) years and intends to maintain this for the rest of his life.
…
23. …the Applicant submits that his risk of recidivism is low due to life changing circumstances (emergency heart surgery and visa cancellation), his personal deterrence from such negative influences, and his continuing support and positive contributions from his family.
…
27. …It is submitted that the Applicant does not pose an unacceptable risk to the Australian community due to the personal deterrence he has taken with regards to his negative influences and drug issues. Further, the Applicant will continue to be heavily supported and assisted by his family.
28. …the Applicant has demonstrated sufficient personal deterrence from the negative peers previously in his life, and the subsequent drug issues. The Applicant has had no dealings with drugs of any nature in approximately five (5) years and intends to maintain this for the rest of his life.
29. …the Applicant has a large supportive family network in Australia who will provide significant support. In addition, it is submitted that the Applicant’s family will assist him with his reconnection with the Church and his faith.”[60]
[Our insertions]
[60] R4, pages 4-5.
In the Applicant’s evidence-in-chief, he was asked what steps he would take to address his recidivist risk. This is what he said:
“MR MWILAMBWE: Now, you’ve articulated in your evidence that if you are allowed back into the Australian community, you are going to seek some help. Could you explain a bit more about that initiative?
APPLICANT: If I get out?
MR MWILAMBWE: Yes, if you are allowed back into the community?
APPLICANT: Yes, I’m trying to find help. I’m very ashamed of asking for help. I try to do things on my own but I don’t think it’s working because I actually really do need help.
MR MWILAMBWE: Have you - can you explain a bit more about the articulated plan that you’ve suggested you might do if I are (sic) allowed back into the community?
APPLICANT: Try and find a job. Spend time with family.
MR MWILAMBWE: And what - now you’ve, in your evidence you also say that you had some involvement in the church and you might be involved again in the church. Can you explain to us a bit more about that?
APPLICANT: If I get out, I’ll be staying with my older sister. She, her and her partner, Laauli, Janice and Laauli.
MR MWILAMBWE: Oh so Janice your sister, you’ll be staying with Janice?
APPLICANT: Yes I’ll be staying with Janice and Laauli. So, I’ll be going to church with them, get back into church. Try and change my ways. Keep out of trouble.”[61]
[Error in original; our emphasis]
[61]    Transcript (6 June 2022), page 13, lines 40-45; page 14, lines 1 - 10.
Further in the Applicant’s evidence-in-chief, he was asked what steps he would take to help himself with his predilection for illicit drugs. He responded thus:
“MR MWILAMBWE: Could you explain, previously - I mean, you did articulate that some of - that you’re going to be joining the Church, and, you know, which will assist you. Could you explain what kind of assistance the Church can give you?
APPLICANT: Just, like, help me through life.
MR MWILAMBWE: And explain to us what you mean it will help you through life?
APPLICANT: Go to Church and, like, go and - like, what’s a name, being in activities more.
MR MWILAMBWE: You said that you’re going to be going to Church with your sister?
APPLICANT: Yes.
MR MWILAMBWE: Could you explain how she’s going to help you when you’re going to Church with her?
APPLICANT: They’re going to take me to Church. They’ve got activities goes on at Church on Sundays and during the week as well.
MR MWILAMBWE: What kind of activities are you looking at?
APPLICANT: I don’t know. I’ll just have to wait and see when I get there what I do.
MR MWILAMBWE: I mean, could you explain a bit more about your motivations behind going to those activities you said during the week as well?
APPLICANT: Yes, motivation, like, my motivation is to change. I don’t want to get back into the crimes, the drugs, especially seeing my nephews and nieces, I don’t want them to look up to me, see that I’m changing the way, you know.”[62]
[Errors in original; our emphasis]
[62] Ibid, page 56, lines 10-30.
During the Applicant’s cross-examination, the Respondent sought to impugn the Applicant’s evidence as to recidivist risk. First: central to this challenge was the credibility of the Applicant’s evidence about his recent drug abuse:
“MR MORRIS: All right. So, Mr Titoa, you have signed this statutory declaration on 1 June 2022?
APPLICANT: Yes.
MR MORRIS: And I take it you didn’t prepare this, but was it read back to you before you signed it?
APPLICANT: Yes.
MR MORRIS: And you appreciate, don’t you, how serious a statutory declaration is?
APPLICANT: Yes.
MR MORRIS: And how important it is to make sure that everything in the statutory declaration is correct?
APPLICANT: Yes.
MR MORRIS: Right. Before I ask you this, is there anything in there that you know of that you’d like to correct?
APPLICANT: No.
APPLICANT: No.
MR MORRIS: All right. Well, can I go to paragraph 20, please?
APPLICANT: Yes.
MR MORRIS: It says:
“I have come to the realisation of the extreme negative impact my drug use and negative associations have on myself and my family. As such, I took active steps to personally deter myself from such behaviour and negative associations. It was very important for me to get sober so that I could remain an active supporter of my niece and nephews. I have not done any drugs in approximately five years. I intend to maintain this mindset for the rest of my life and never touch drugs again.”
MR MORRIS: That’s wrong, isn’t it, Mr Titoa?
APPLICANT: Yes.
MR MORRIS: Why did you provide a false statement in the statutory declaration?
APPLICANT: I’m trying to change. I’m trying to get off drugs.
MR MORRIS: That’s not what the question is?
APPLICANT: Yes, I’m…
MR MORRIS: It says here that you haven’t touched drugs in approximately five years?
APPLICANT: Yes.
MR MORRIS: But you told the tribunal just a moment ago that you were using drugs right up until your most recent incarceration?
APPLICANT: Yes.
MR MORRIS: So my question is why do you include a false statement in your statutory declaration?
APPLICANT: Got no excuse on that.” [63]
[Our emphasis]
[63] Ibid, page 40, lines 30-45; page 41, lines 1-25.
Second: the Respondent tested the Applicant’s evidence proffered on the issue of his, “personal deterrence” and the steps he has taken to rehabilitate from his abuse of illicit drugs:
“MR MORRIS: It says here:
As such I took active steps to personally deter myself from such behaviour and negative associations.
- - What active steps?
APPLICANT: What does that mean?
MR MORRIS: Well, it’s your statutory declaration, Mr Titoa?
SENIOR MEMBER: Do you understand what the phrase means, Mr Titoa?
APPLICANT: No, sir.
SENIOR MEMBER: Would you like it explained?
APPLICANT: Yes.
SENIOR MEMBER: All right. The statement says - have a look at the second line:
As such I took active steps to personally deter myself from such behaviour and negative associations.
SENIOR MEMBER: I’ll explain what that means. What it means is that you are saying in that statement that you took steps to get off the drugs, stop abusing and using drugs, stop abusing alcohol and to stop offending because a lot of your offending, probably all of your offending has happened while you’ve been under the influence of something. Would you agree with that?
APPLICANT: Yes.
SENIOR MEMBER: So that says, ‘I took steps to get off the gear’?
APPLICANT: M’mm.
SENIOR MEMBER: I took steps to stop using it so that I would stop offending. So that’s what that says. Now listen to the question.
MR MORRIS: Thank you for that, Senior Member, I’m very grateful. So my question is what are those active steps that you’ve taken?
APPLICANT: Talking to family and trying to take classes, like
SENIOR MEMBER: What classes are you talking about?
APPLICANT: Trying to be in activities in the centre and after the surgery to open my eyes, like can’t keep on doing what I was doing.
MR MORRIS: Have you attended any formal drug rehabilitation courses?
APPLICANT: No.
MR MORRIS: Well alcohol rehabilitation courses?
APPLICANT: No, Sir.
Mr MORRIS: Have you sought any counselling or psychology?
APPLICANT: No, Sir.
MR MORRIS: But you say that you’ve taken steps because you’ve spoken to your family about it?
APPLICANT: Yes.”[64]
[Our emphasis]
[64] Ibid, page 41, lines 30-45; page 42, lines 1-30.
Third: the Respondent probed the Applicant’s evidence on the impact of his heart condition and his past approach to managing it:
“MR MORRIS: What I’d like to do now is ask you a little bit about this heart condition and I acknowledge that you had surgery earlier this year in February/March. When was the condition first diagnosed?
APPLICANT: 2011.
MR MORRIS: 2011. All right. Then since then?
SENIOR MEMBER: Sorry, Mr Morris, could you repeat that question? I didn’t quite catch what it was.
MR MORRIS: I’m so sorry. When was the condition first diagnosed?
APPLICANT: When it first started, hey, 2011.
SENIOR MEMBER: 2011, so that’s when you were first diagnosed with a heart condition, Mr Titoa?
APPLICANT: Yes.
SENIOR MEMBER: Okay, thank you.
MR MORRIS: And up until the time when you had your operation this year, what treatment had you been taking?
APPLICANT: Penicillin every month.
MR MORRIS: Were you under regular medical review, were you regularly seeing a doctor?
APPLICANT: No, I wasn’t.
SENIOR MEMBER: Sorry, can I clarify, please, Mr Titoa. You said that it was diagnosed in 2011 and you started taking medication from that point?
APPLICANT: Yes.
SENIOR MEMBER: You were taking Penicillin?
APPLICANT: Penicillin.
SENIOR MEMBER: But you were not regularly seeing a doctor in relation to the condition, is that correct?
APPLICANT: I’ll go to the doctors for maybe a year, then I stopped getting it.
SENIOR MEMBER: Right, so you stopped taking the medication as well?
APPLICANT: Yes.
SENIOR MEMBER: Thank you.
MR MORRIS: Thank you, Member, I appreciate that.
MR MORRIS: Can I ask this, did you not hold any concerns when you were using drugs like methamphetamine and cocaine, that that might have an impact on your heart?
APPLICANT: Yes.
MR MORRIS: It would be fair to say you just didn’t care?
APPLICANT: I was concerned but it just didn’t bother me.
MR MORRIS: It didn’t bother you?
APPLICANT: Yes.
SENIOR MEMBER: Sorry, I didn’t hear your answer, Mr Titoa?
APPLICANT: It would be, like, basically I didn’t care.”[65]
[Our emphasis]
[65] Ibid, page 50, lines 30-45; page 51, lines 1-30.
Fourth: the Respondent delved into the Applicant’s evidence on the issue of his present attitude towards committing any more crimes in light of his recent heart surgery and in the context of his broader rehabilitation goals:
“MR MORRIS: You have no intention to commit any more crimes?
APPLICANT: Yes.
MR MORRIS: And would it be fair to suggest that as a result of that you are able to keep your temper under a control a little bitter now?
APPLICANT: Yes, Sir.
MR MORRIS: So you’re not worried that that’s going to lead you into trouble every again?
APPLICANT: A hundred per cent.
MR MORRIS: So I can go to the IHMS records, please?
MR MORRIS: This is a record for IHMS that’s the International Health and Medical Services. This record relates to last [Thursday] 2 June [2022]. I’ll read you what it says:
“Client came into the window for his regular medications at 1900 hours. Client asked to send his medical records to his personal emails as he needed to send that to his lawyer by tonight. IHMS nurses, Shan Holsting and (indistinct) advised client to put the medical record request form in and attempted to explain the process involved to access the medical records. Advised the client that it could not be done tonight at which time client became very verbally abusive and aggressive, yelling, ‘Fuck you, dogs. Give me my fucking records. It’s on your fucking system.’ Client continued yelling stating, ‘Fuck you, cunts. Give me my fucking records, dogs’. (Indistinct) officers tried to control the situation by asking the client to calm down but client became more verbally and physically aggressive with officers.”
MR MORRIS: Is that what happened last [Thursday]?
APPLICANT: Yes.
MR MORRIS: It sounds like you still got a bit of a temper? That’s fair to say, isn’t it?
APPLICANT: Yes.
MR MORRIS: You would agree wouldn’t you, that that’s not exactly a respectful way to talk to the staff?
APPLICANT: Yes, I know, yes.
MR MORRIS: And you would agree, wouldn’t you, that it reflects a disregard for Australian authority?
APPLICANT: Yes.
MR MORRIS: This was last [Thursday] (indistinct)?
APPLICANT: I’ve got no excuses what I done that day.
MR MORRIS: So it’s fair to say that actually you haven’t rehabilitated much at all?
APPLICANT: I reckon I have. It was just that day that I was going through some stuff that had to get done.”[66]
[66] Ibid, page 42, lines 30-40; page 43, lines 5-30.
…
“MR MORRIS: But now you would have the tribunal believe that telling them that you’re going to change your ways now, they should accept that?
APPLICANT: Yes.
MR MORRIS: Do you see how that might be quite difficult?
APPLICANT: It’s changed because after my surgery, I’m not that person that I was before. I can’t - like, I won’t commit the crimes that I did.
MR MORRIS: When you said to the staff at the (indistinct) the staff, ‘Fuck you, cunts’, that was after your surgery, wasn’t it?
APPLICANT: Yes.
MR MORRIS: So it seems like you haven’t changed all that much, have you?
APPLICANT: I’ve changed. I reckon I’ve changed.”[67]
[Our emphasis and insertions]
[67] Ibid, page 45, lines 15-25.
Fifth: the Respondent pressed the Applicant on his past contrition in relation to his past offending and its similarity to evidence given to the Tribunal in the present case:
“MR MORRIS: …I am not going to ask you about any of the offences that relate to this letter. I’m just going to ask you about what you wrote in that letter okay? And I want to look at the bottom paragraph there. This is something you wrote in 2010/2011:
My thoughts on my offences are remorseful and I am in deep regret. To those who were affected by my actions I give you my sincere apologies. I made a mistake and I know there’s no turning back. However, I know my actions were sinful I wish to request for forgiveness and a second chance to prove that I have changed over time. I chose the wrong path which I’m immensely apologetic for, a path that I would never want to take again, a path that I would never want my brothers or anyone else to take.
MR MORRIS: It sounds a lot like the evidence that you’re providing to the tribunal today, - - - it?
APPLICANT: Yes.
MR MORRIS: But after you wrote this were 10 more years of offending, including assaults, burglaries and those ram raids. So I suppose my question is how sincere was that statement in this letter?
APPLICANT: It was pretty sincere.
MR MORRIS: It was pretty sincere?
APPLICANT: Yes.
MR MORRIS: Yes, so you really meant that?
APPLICANT: Yes.
MR MORRIS: You were committed to changing your ways?
APPLICANT: Yes.
MR MORRIS: That’s what you’re telling us today as well, you’re committed to changing your ways?
APPLICANT: Yes.
MR MORRIS: But it wasn’t a very good indicator back then, was it, because you went on to offend for two more years?
APPLICANT: Yes.”[68]
[Our emphasis]
[68] Ibid, page 44, lines 30-45; page 45, lines 1-15.
The Tribunal also received and heard some limited evidence from members of the Applicant’s family about his recidivist risk. In particular, some members of the Applicant’s family have pledged future support to the Applicant to help him rehabilitate.
(ii) Evidence of rehabilitation achieved by the Applicant by the time of this decision
The Applicant offered no independent expert clinical evidence about his recidivist risk. Most concerningly, the Applicant adduced no expert evidence regarding his rehabilitation from his prior substance abuse[69] which, as the Applicant readily conceded, has been a central predispositive factor to his offending. The Applicant offered no evidence from a suitably qualified clinician telling us about the extent of his addiction to illicit substances, how those addictions predisposed him to offend in the past, to what extent those symptoms are now under some kind of remedial management / control and, finally, what the prognosis is for this Applicant with reference to his past substance abuse.
[69] Transcript (7 June 2022), page 120, lines 25-45; page 121, lines 1-5.
The only evidence before the Tribunal speaking to any positive steps taken by the Applicant to rehabilitate from his drug abuse is, “talking to [his] family” about getting help. Whilst we accept this evidence, we also heard evidence from the family members to whom the Applicant’s primary request for help was made that they are largely ignorant of the serious nature and pervasive extent of the Applicant’s drug use.[70] In our view, the extent to which the Applicant’s family can assist him in the rehabilitative process is greatly limited given their lack of knowledge regarding his illicit drug use in the past and (to no fault of their own) their lack of professional qualifications or experience in the field of psychology, or alcohol / drug counselling.
[70] Transcript (6 June 2022), page 74, line 5; page 40, lines 40-45.
On the Applicant’s evidence, and that of his family members who gave evidence, the Applicant is at the very beginning of a treatment journey[71] at best. There is also nothing before us which records the Applicant as having undertaken any formal therapeutic programs, courses, or counselling whilst in prison, or immigration detention. The evidence therefore leads us to a finding that although the Applicant has a genuine intention to rehabilitate himself, the predispositive factors which caused him to offend in the past (i.e., his abuse of illicit substances) have not been subject to any practical, meaningful rehabilitation.
[71] Transcript (7 June 2022), page 117, line 45; page 118, line 5.
(iii) Conclusions about risk
Before addressing our conclusions about the risk that the Applicant presently poses to the Australian community, we need to say something about this Applicant’s credibility. Under cross-examination, the Applicant admitted to lying in his First Statement about the nature and extent of his drug-use (i.e., being, “sober” over the last five years).[72] Unfortunately, these same lies found their way into the Applicant’s SFIC, dated 20 May 2022,[73] and his Supplementary SFIC,[74] dated 2 June 2022. The Applicant also admitted to lying in his First Statement about the location of some of his family members.[75] Further, the Applicant admitted to lying to police.[76] Together, these matters do not paint the Applicant’s capacity for honesty in a particularly favourable light.
[72]    Transcript (6 June 2022), page 41, line 25.
[73] R4, page 6, para [40]; page 12, para [86].
[74] A1, page 3, para [20].
[75]    Transcript (6 June 2022), page 48, lines 20-45; page 49, lines 1-15.
[76]    Ibid, page 41, line 25.
On top of the lack of candour in his evidence given at the hearing, the Applicant did not seem to comprehend key aspects of his own First Statement. In particular, the Applicant did not appear to understand the phrase, “I took active steps deter myself from such behaviour and negative associations”.[77] This is significant for the reasons we set out below.
[77] Ibid, lines 30-35.
The totality of the evidence leads us to make several conclusions about the Applicant’s recidivist risk:
·the Applicant’s claims of being “embarrassed”, and of feeling, “shame” and, “remorse” for his offending do not appear to us to be particularly credible – his recent claims follow a similar pattern of past claims, which the evidence indicates were insincere, as the Applicant kept offending;
·the Applicant does not appear to have accepted responsibility or demonstrated insight for his offending. Instead, he has repeatedly blamed the influence of other, “negative” people and associations. Yet, other than the Applicant’s father and brother (the latter of whom the Applicant offended with), we were told little about who these other people are, or how they apparently negatively influenced the Applicant to offend;
·we accept that the cancellation of the Applicant’s visa is a, “significant event” and a, “wake up call” in the Applicant’s life, however, we do not accept that it materially lowers his risk of reoffending. We make this finding on the strength of the Applicant’s history of repeatedly ignoring warnings from judicial officers and other so-called, “wake up calls”, such as the variety of non-custodial sentences and sentences of actual imprisonment. If spending years behind bars on multiple stints for serious offending has failed to deter the Applicant from re-offending in the past, we do not accept that a visa cancellation in and of itself reduces the Applicant’s risk of reoffending in the future to an acceptable level;
·the Applicant’s serious heart issues were diagnosed more than a decade ago, and despite that and his understanding of the need to be medicated, the Applicant largely ignored his health issues and did not take medication because he, “did not care”. We accept that the Applicant’s recent emergency heart surgery is a big, “wake up call” to the extent that the Applicant now observably cares about his heart condition and general health, and the need for disciplined management of the same (such as regular doctor visits and medication);
·the Applicant’s claim that the heart surgery represents a material, “change of circumstance” is also accepted, but only in the sense that it now motivates the Applicant to want to commence his substance abuse rehabilitation journey (given that he concedes that substance abuse was likely a factor negatively impacting his heart health);
·we cannot accept that the Applicant’s heart surgery represents a “change of circumstance” beyond those explained above. The Applicant’s very recent behaviour in crudely abusing female nurse employees of International Health and Medical Services, while they were trying to assist the Applicant in gathering material for this present matter, is unfortunately, completely consistent with his past behaviour – specifically, the vile abuse he has directed at members of the police force. The Applicant’s behaviour indicates a continued pattern of contempt for lawful authority, rather than a pattern that has been broken by the heart surgery. Accordingly, we do not accept that the Applicant’s recent heart issues and subsequent surgery act as a protective factor which materially reduces his risk of reoffending in the future;
·the Applicant readily accepts that he has a long-term problem with abusing hard drugs. Despite the inherent unreliability of his evidence about his drug use over the last five years, he accepts that he was using drugs right up until his most recent stint in immigration detention. He also accepts, as we do, that this drug problem was a (if not the) primary factor for his serious non-violent offending (e.g., break and enter, burglary, stealing etc. to get money for drugs; ram raids for fun etc.) and a not insubstantial factor in his serious violent offending (e.g., serious assault of a female police officer whilst he was coming down off drugs). The Applicant told us, and we accept, that he wants and needs help. Having made this finding, we now turn our attention to what we have been told about the Applicant’s rehabilitation;
·the Applicant’s evidence was peppered with references to taking, “active steps” to deter himself from again resuming his use of drugs. When the Applicant was asked about what, “active steps” he was referring to, he said that he did not understand what, “active steps” meant. After having the term explained to him, the Applicant claimed that he was, “talking to family and trying to take classes.” When pressed about what specific classes he was talking about, he could not name them and then admitted that he has not taken any. He also told us that he had not sought any counselling or psychology or other independent support. We therefore find that the only real step towards rehabilitation the Applicant has made to-date is, “talking to [his] family” about getting help. The Applicant conceded, and we further find, that he is at the very beginning of his rehabilitation journey;
·the Applicant was not specific about the nature and scope of his discussion(s) with his family about getting help, or which family member (if any) beyond his sister Janice he had sought help from. We heard from the Applicant’s family, including his mother, his sisters – Safune, Angela, Janice – and Janice’s husband (and brother-in-law to the Applicant), Laauli. They were generally unaware of the extent of the Applicant’s substance abuse issues. Other than Janice, the Applicant’s family members were completely ignorant of his use of methamphetamine – a noted predispositive factor to his offending conduct. While Janice was aware of the Applicant’s use of methamphetamine, she did not know that the Applicant had been using it, “every day”, and she admitted that she doesn’t really know much about his past drug use;
·Janice indicated that her church – the Church of Jesus Christ of Latter-Day Saints – offers rehabilitations programs and that she was able to reach out to other church members to assist the Applicant. Whilst we accept Janice’s evidence, the fact that she does not know about the extent and persistent nature of the Applicant’s hard drug use means that she is not yet in a position to chart a comprehensive, or credible plan for the Applicant’s rehabilitation, including via her church, such as to meaningfully reduce his risk of resuming illicit drug use and re-offending;
·the Applicant told us that he planned to be, “involved again” in, and that he would start going to church. As against this, the Applicant also admitted that he had only attended church, “a few times” in total. The Applicant indicated that he thought the church would, “help [him] through life”. He also suggested that he could participate in activities at church but did not know what kind of activities. The Applicant (and his family) seemed to be inviting us to infer that the Applicant’s future participation in church would be some kind of rehabilitation panacea. Even if we were to accept this invitation (and we do not), we are deeply sceptical of the Applicant’s claims about prospective active participation in church and church activities, given the virtually total absence of any measurable positive impact on his recidivist risk that his religious affiliation has had on his past propensity to offend;
·we readily accept that the Applicant has a large family in Australia, and we further accept that some members of the Applicant’s family (in particular, Safune, Janice and Laauli), are all willing to offer practical support to the Applicant. However, we do not accept that these offers of support, nor the presence of a large, local family network, materially reduces the Applicant’s risk of re-offending. We make this finding because the Applicant’s large, loving family has failed to deter the Applicant from serious offending and serious re-offending in the past. We are also concerned that members of the Applicant’s family (specifically his father and one of his brothers) have participated in his serious criminal offending. Those family members have been willing to turn a blind eye and / or to excuse the Applicant’s offending. Specifically, they denied that his serious assault of a female police officer actually occurred. Indeed, both the Applicant’s mother and sister, Janice, explicitly sought to excuse the Applicant’s verbally abusive conduct toward female nurses on the basis that the Applicant, “could be frustrated” and that he has, “just gone through so much”, respectively;
·the Applicant offered no independent expert clinical evidence about his recidivist risk. The distinct lack of this evidence is troubling because there seems to be no acknowledgement on the Applicant’s part that he more likely than not needs independent expert assistance for his drug rehabilitation journey;
·overall, we therefore find that the Applicant’s rehabilitation is largely aspirational and has not practically realised in any material way at this present time. The lack of other demonstrated protective factors means that we must find that the Applicant has a presently serious, and unacceptably high recidivist risk.
Is the risk of harm affected by any of the factors referred to in sub-paragraph 8.1.2(2)(c) of the Direction?

In its SFIC,[136] the Respondent acknowledges the Applicant may experience some difficulty establishing himself in New Zealand and that he would lack the same degree of family support that he has come to know and rely on in Australia. As against that, the further submission put by the Respondent is that New Zealand is a country which is linguistically and culturally very similar to Australia, with comparable standards of employment, healthcare, and social support. Be that as it may, we are mindful that the consequences arising from whatever difficulties the Applicant may face upon a return to New Zealand are matters which should be acknowledged by the Tribunal.[137]
[136] See R2, pages 22-23, para [61].
[137] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225, at para [3].
Ultimately, the Respondent:
“…accepts that the Applicant is likely to face emotional and practical difficulties in establishing himself in New Zealand, and further accepts that these difficulties ought to weigh in favour of revocation, [but that] there is no evidence to suggest that the Applicant would suffer any particular hardship as a result of his age, health or linguistic or cultural factors.”[138]
[Our insertions]
[138] R2, page 23, para [62].
On the basis of these countervailing factors, the Respondent submits that the weight attributable to this consideration should be limited.[139]
[139] Ibid.
Sub-paragraph 9.2(1)(a): the Applicant is 29 years of age and will turn 30 in April of next year. We have recounted the issue in relation to his physical health referable to his heart. It can safely be found that his heart condition is satisfactorily under ongoing remedial management and control. There is little or nothing before the Tribunal of an informative nature about any psychological or psychiatric symptomatology that has either been the subject of any examination or diagnosis. There is also nothing before the Tribunal about any identified psychological difficulties affecting the Applicant. On the proviso that his heart condition can be adequately managed in New Zealand (noting the comparable levels of healthcare available to the Applicant), there is little to cavil with the proposition (and our finding) that the Applicant’s age and overall state of health do not present themselves as unresolvable impediments to him re-establishing himself in that country.
Sub-paragraph 9.2(1)(b): the Applicant was born in New Zealand and arrived in Australia on a permanent basis on 9 February 2004, aged ten. He therefore spent his early and pre-teen years in New Zealand. It is thus difficult to accept that the Applicant will be confronted with any insurmountable or significant language or cultural barriers were he returned to that country. As has been found by this Tribunal (differently constituted) in a previous case: “New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand. […]”.[140] We are therefore not of the view that the Applicant will face any significant or substantial language or cultural barriers impeding his return and re-settlement in New Zealand.
[140] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 (“Tera Euna”), at para [101].
Sub-paragraph 9.2(1)(c): we have earlier found that the Applicant’s age and state of health do not present any insurmountable or insignificant impediment(s) upon a return and resettlement in New Zealand. During the hearing, little or nothing was raised by or on behalf of the Applicant to rebut a presumption that New Zealand is a country that would be able to provide a comparable level of publicly available healthcare for the Applicant’s heart condition to that which he has experienced in Australia. In terms of both his heart condition and any other physical and/or mental health issue/s, it is safe to find that he will have available to him in New Zealand the same level of healthcare as would be available to other citizens of that country. A similar finding can be made with reference to social and economic supports available to the Applicant in New Zealand. Once again, the authority of Tera Euna and Minister for Immigration and Border Protection[141] becomes relevant:
“New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The applicant will have access to those services as a New Zealand citizen.”[142]
[141] [2016] AATA 301.
[142] Ibid, at para [101].
There was an aspect of the evidence that, to an extent, may be referable to this specific sub-paragraph and it related to the evidence around his brother who resides there. By way of background, the Applicant’s brother was previously removed from Australia consequent upon an adverse outcome arising from an application very similar or identical to this application involving the Applicant. The evidence around the Applicant’s brother was contradictory. Caution should be exercised in reaching any automatic finding that the Applicant would reside with his brother in New Zealand. Be that as it may, the evidence of at least one of his sisters at the hearing was that in the event of his removal to New Zealand, she would provide some measure of support to him.[143]
[143] See generally, Transcript (6 June 2022), pages 78-79.
It would therefore be unsafe to find that the Applicant does not know anybody in New Zealand. He obviously knows his brother who resides there, and the hearing did receive evidence that his brother in New Zealand maintains a level of at least infrequent contact with the Applicant’s family in Australia.
Having regard to our findings referable to each of the three sub-paragraph components of this Other Consideration (b), we are of the view that it confers a moderate, but not determinative, amount of weight in favour of revocation of the delegate’s decision under review.
Other Consideration (c): Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of a s 501 or 501CA decision on members of the Australian community, including victims of the non- citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
During closing submissions, the Applicant’s representative acknowledged that this Other Consideration (c) is not relevant.[144] The Respondent’s representative adopted a similar position during closing submissions.[145] We therefore find that this Primary Consideration (c), to the extent that the Applicant’s continued presence in Australia may adversely affect one of his victims, is not relevant.
[144] Transcript (7 June 2022), page 130, line 47; page 131, lines 1-25.
[145] Ibid, page 131, lines 27-29; page 144, lines 23-25.
The further point is this: the Respondent has not called evidence about any impact the Applicant’s continued presence in Australia would have on his victims. Without such evidence, it would be irresponsible of us to enter the realm of conjecture and speculate about the extent of any impact this Applicant’s offending has had, or would have, on any of its victims.
We are mindful of the authority of PGDX and Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs,[146] which allows a decision maker to have regard to a statement from a victim speaking favourably about the Applicant remaining in Australia. However, in the absence of such a statement or similar document in the material, no such discussion is warranted.
[146] [2021] FCA 1235.
Having regard to the respective positions of the parties expressed during closing submissions, we are of the view that this Other Consideration (c) is of no application and no weight is assigned to it.
Other Consideration (d): Links to the Australian Community
Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community.
There are two factors which we must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature, and duration of ties to Australia; and (2) the impact on Australian business interests if he cannot remain here. We will consider each in turn.
(1) Strength, nature and duration of ties
With reference to the first part of this Other Consideration, we will consider three elements. First, we will assess the impact of a refusal decision on the Applicant’s, “immediate family members” where those people have a right to remain in Australia indefinitely. Second, we will assess the impact of a refusal decision by taking into account the strength, nature and duration of any other ties the Applicant has to the Australian community. Third, we will assess the strength, nature and duration of any other family or social links the Applicant may have with people who have an indefinite right to remain in Australia. We will address each component in turn.
1 Impact of non-revocation on the Applicant’s immediate family
This initial exercise requires us to identify the Applicant’s immediate family in Australia. Rather helpfully, the Applicant has provided a Statutory Declaration, dated 1 June 2022, in which he identifies those immediate family members:
“All of my family reside in Australia. I am extremely close with all of my family. My family are as follows:
(a) Eric Pedebone - Father; and
(b) Debbie Titoa - Mother.
(c) Fetuao Angela Ati - Sister;
(d) Janice Palupe - Sister;
(e) Rosanna Sionc- Sister;
(t) Safune Celestella Titoa - Sister;
(g) Pala Titoa- Female;
(h) Eric Titoa - Brother;
(i) Edward Pedebone - Brother;
(j) Mack Pedebone - Brother;
(k) Nelson Pedebone - Brother;
(I) Debbie Pedebone - Sister;
(m) Henrystar Pedebone - Brother;
(n) Alec Pedebone - Brother; and
(o) Alex Pedebone- Brother.
…”[147]
[147] A2, page 1, para [3]. Note: the reference to “Mack Pedebone – Brother” at item (j) is a reference to the Applicant’s brother who was removed to New Zealand. That brother obviously does not reside in Australia.
In this Statutory Declaration, the Applicant goes on to say:
“My family is the most important thing in my life and it would be very detrimental to myself if I had to live my life without them around. I would be distraught if I could not be with my family on a permanent basis.
Not only will I be greatly affected should I be forced to leave Australia, but as will my family…”.[148]
[148] Ibid, page 2, paras [4]-[5].
There can be no doubting the proximity and currency of the Applicant’s relationship with his immediate family. Theirs is a large family with obviously close bonds rooted in both emotional and cultural factors. The hearing received impassioned and emotional evidence from the Applicant’s mother, three of his sisters and his brother-in-law. On any reasonable view, their evidence can only be construed in one way: that is, that they are a closely knit family. As was sought to be pointed out to the Applicant’s representative at the hearing, the evidence does, to our minds, point to alternate findings that can be made about the nature of the Applicant’s ties to his immediate family here in Australia.
On the one hand, the Applicant’s level of connectivity to his immediate family in Australia has been very close. Yet on the other hand, despite that closeness, it has done next to nothing to cause him to establish and maintain any kind of law-abiding existence in this country, or to otherwise find and retain a lawful means of deriving a livelihood. This conundrum was put to the Applicant’s representative at the hearing, and he seemed to default to a position of the family members providing ongoing support to the Applicant but little more than that:
“SENIOR MEMBER: Of course and that’s to be (indistinct) and thank you for that. But let’s develop that; ties to Australia. Immediate family members, 13 siblings, two parents, extended family, a large plethora of nieces and nephews. The big thing about his connectivity to Australia is that it started close and has stayed close. That’s the good thing.
MR MWILAMBWE: Correct.
SENIOR MEMBER: The bad thing is, that it started close, and it stayed close, but he was always out there committing offences. Question is, to what extent do those ties help him for the purposes of, not just recidivist risk, but help him in establishing a life in Australia that’s been completely different to what he’s known before. The evidence does support him in that regard. (Indistinct) question about that?
MR MWILAMBWE: I mean, I could only add further that if the evidence provided by his siblings, notably, Janice, suggested that you can only want help if you want help. He wants help that’s the difference there and as she said, the family were ignorant about his substance abuse as well, in that sense. Initially, everybody thought that he was just on marijuana and et cetera. I would suggest that because of what’s happened between the two brothers and what’s happened to him with heart condition, there’s a bit more involvement. I’m not saying the family was not involved, but I’m saying that he wants help and everybody is there to help him.”[149]
[149] Transcript (7 June 2022), page 132, lines 1-25.
Having regard to the state of the evidence referable to the extent of the Applicant’s immediate family in Australia, we are safely led to the view (and finding) that the strength, nature, and duration of his ties to those particular immediate family members in Australia carries a strong, but not determinative, level of weight in favour of revocation. We make this finding on the presumption that each of the people listed in the Applicant’s abovementioned Statutory Declaration are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
2 Strength, nature, and duration of “other ties” – length of residence
There are two necessary enquiries referable to the extent of the Applicant’s, “other ties” to Australia. The first of those involves the question of how long he has resided in Australia, including whether he came here as a young child. As mentioned earlier, the Applicant migrated to Australia (on a permanent basis) with his family in 2004. We have earlier detailed his movements in and out of Australia since 2004. Since that time, he has spent the overwhelming period of his life in Australia.
We will now refer to the two tempering sub-elements in paragraph 9.2(a) of the Direction. The first of those compels us to allocate less weight if the Applicant began offending soon after arriving here. He arrived and settled in Australia (on a permanent basis), with his family, in February 2004. His first conviction in an Australian court occurred in October 2010 – well over six years after his first arrival. He arrived here as a ten-year-old and began his offending as a sixteen-year-old. A period of six years post-arrival should not be construed as being, “soon after arriving in Australia”. The first of these two tempering sub-elements should be put to one side and rendered neutral.
The second of the two tempering sub-elements compels an assessment of the extent of the Applicant’s positive contributions to the Australian community. We have already found the Applicant has a very unimpressive history of remunerative employment in Australia. He has spent virtually two thirds of his life in this country – something like 20 years – yet has only been remuneratively employed for only three months of the total time he has been here. He has not contributed to the financial fabric of this country by, for example, paying taxation on any lawful income which he may have derived.
The material says nothing about any voluntary contributions made to the community by this Applicant. While he did participate in community sport as a younger person, there is little to suggest he maintained an ongoing involvement in such community sport since reaching adulthood. He spoke about attending his church, but that evidence should be tempered against his further evidence that he had only attended those church services on a few occasions. The evidence is not supportive of any safe finding that this Applicant has made any meaningful contributions to the Australian community during his time in this country.
This second tempering sub-element can not be applied in favour of the Applicant because of his unimpressive remunerative work history in Australia and the virtual absence of any voluntary involvement in the fabric of its community. Therefore, similar to our finding for the first tempering sub-element, we are of the view that this second tempering sub-element must be put to one side and rendered neutral. Neither of the two tempering sub-elements assist the Applicant and, consequently, his other ties to Australia do not facilitate the allocation of any weight to this Other Consideration (d).
3 Strength, nature, and duration of “other ties” – family and other social links
It is difficult to locate any reliable reference in the material to whatever level of connection of the Applicant’s, “other ties” with either family or social contacts in Australia. To our minds, the Respondent’s representative made a significant submission during closing submissions to this effect:
“MR MORRIS: And then the final element of the applicant’s ties is in respect to his family. And those ties are real, and they are strong. The applicant’s family has an indefinite (indistinct) from him in Australia, which triggers the operation of that (indistinct words). And it is very clear that he is close with his family. Very clear. But an observation that the Senior Member made in my friend’s submissions is (indistinct) here, which is that the applicant’s relationship with his family started close and has remained close; but it has also, in my submission, remained closely held. There’s been no expansion outside the family to other social ties. In as much as the applicant has made friends, his own evidence was that they’re bad influences. So yes, the applicant has strong ties to his family in Australia, and that ought to be acknowledged. But when regard was had to the remainder of the applicant’s ties to Australia, in my submission they’re actually quite limited.”[150]
[Our emphasis]
[150] Ibid, page 145, lines 17-29.
At a more practical level, this can be seen from the nature of the material before the Tribunal. The s 501G documents[151] only contain letters of support from family members. Similarly, other exhibits are from the Applicant’s sisters,[152] his brother-in-law,[153] a minor nephew,[154] a minor niece,[155] his brother[156] and his mother.[157] The very limited, if any, extent of the Applicant’s other ties to extended family and/or social links thus do not facilitate the allocation of any notable level of weight to this Other Consideration (d).
[151] R1.
[152] R6; R10; and R14.
[153] R7.
[154] R8.
[155] R9.
[156] R12.
[157] R11; R13.
(2) Impact on Australian business interests
We are mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on, “Australian business interests”. We are of the view (and we find) that this component of Other Consideration (d) is not relevant.
Weight allocable to Other Consideration (d): links to the Australian community
With reference to the first part of this Other Consideration (the strength, nature, and duration of the Applicant’s ties to Australia), we are of the view that, after having analysed its three constituent elements, the totality of the evidence points to the allocation of moderate, but not determinative, level of weight in favour of the Applicant. The second part of this Other Consideration (impact on Australian business interests) is not relevant. Overall, the Applicant’s links to the Australian community carry a moderate, but not determinative level of weight in favour of a finding that his visa status to remain here should be restored to him.
Findings: Other Considerations

We now summarise the respective weights we have allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
(a)international non-refoulement obligations: not relevant;
(b)extent of impediments if removed: carries a moderate, but not determinative, measure of weight in favour of revocation;
(c)impact on victims: not relevant; and
(d)links to the Australian community: carries a moderate, but not determinative, measure of weight in favour of revocation.
conclusion
Is there another reason to revoke the cancellation of the Applicant’s visa
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or we must be satisfied that there is “another reason”, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, we have had regard to the considerations referred to in the Direction. We find as follows:
·Primary Consideration 1: carries a very heavy level of weight against revocation;
·Primary Consideration 2: is of neutral weight;
·Primary Consideration 3: weighs, at best, moderately, but not determinatively, in favour of revocation;
·Primary Consideration 4: carries a very heavy level of weight, against revocation;
·We have outlined the weight attributable to the Other Considerations. We are of the view (and we find) that the combined weights we have allocated to each of Primary Considerations 1 and 4 are sufficient to determinatively outweigh the combined weight we have allocated to Primary Consideration 3 and Other Considerations (b) and (d), respectively;
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel the Applicant’s visa.
Consequently, we cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent, dated 30 March 2022, to not revoke the mandatory cancellation of the Applicant’s visa.

I certify that the preceding 190 (one-hundred-and-ninety) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis and Member Lee Benjamin

.....................[SGD]...........................
Associate
Dated: 21 July 2022

ANNEXURE A – EXHIBIT REGISTER

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

R1

G Documents (G1-G7, pages 1-150)

R

Various

13 April 2022

R2

Respondent’s SFIC (pages 1-25)

R

23 May 2022

23 May 2022

R3

Summonsed Documents – Tender Bundle (TB1-TB4, pages 1-27)

R

Various

23 May 2022

R4

Applicant’s Supplementary SFIC (pages 1-9)

R

2 June 2022

2 June 2022

R5

Applicant’s Supplementary Statutory Declaration (pages 1-2)

R

2 June 2022

2 June 2022

R6

Character Reference - Safune Celestella Titoa (1 page)

R

Undated

2 June 2022

R7

Character Reference - Laauli Palupe (1 page)

R

Undated

2 June 2022

R8

Character Reference - Magic Palupe (1 page)

R

Undated

2 June 2022

R9

Character Reference - Tammy Palupe (1 page)

R

Undated

2 June 2022

R10

Character Reference - Janice Palupe (1 page)

R

Undated

2 June 2022

R11

Character Reference - Mapuni Pedebone (1 page)

R

Undated

2 June 2022

R12

Character Reference - Fetuao Angela Ati (1 page)

R

6 April 2022

2 June 2022

R13

Letter of Support - Mapuni Pedebone (1 page)

R

Undated

2 June 2022

R14

Letter of Support - Janice Palpupe (2 pages)

R

Undated

2 June 2022

R15

Applicant IHMS Records (pages 1-158)

R

Various dates

3 June 2022

A1

Applicant’s SFIC (pages 1-27)

A

24 May 2022

24 May 2022

A2

Applicant’s Statutory Declaration (pages 1-5)

A

1 June 2022

1 June 2022

[2022] AATA 2329

21 July 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Jurisdiction

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2022/2615
General Division	)

Arrival	Departure	Time in Australia
18 September 1994	16 May 1995	8 months
9 February 2004	26 August 2008	4 years 6 months
1 February 2009	26 August 2016	7 years 6 months
1 January 2017	8 August 2017	7 months
27 October 2017	Not since departed Australia	4 years 8 months
Total time spent in Australia:	215 months = approx. 18 years

Date	Event	Reference
14 October 2010	The Applicant was found guilty (no conviction recorded) of stealing and was fined $300.00.	G2, 46.
7 April 2011	The Applicant was found guilty of entering dwelling with intent to damage property; burglary (x5); and enter premises with intent. No conviction was recorded however the Applicant was given a good behaviour bond of 18 months on recognisance of $1,000.00. On this day, the Applicant was also found guilty of 20 counts of burglary, enter premises by breaking, attempting to enter dwelling with intent to damage property, and wilful damage in respect of which, again, no conviction was recorded, and he was given probation for 18 months with 120 hours of community service.	G2, 45.
27 July 2011	The Applicant was found guilty (no conviction recorded) of burglary. He was given a good behaviour bond on recognisance of $200.00.	G2, 45.
8 August 2012	The Applicant was convicted of entering a dwelling with intent by breaking. He was ordered to complete 80 hours of community service.	G2, 45.
7 February 2013	The Applicant was convicted of attempted enter premises by breaking, burglary (x2), entering premises by breaking (x2), stealing, and breaching bail. He was given 15 months' probation and ordered to complete 100 hours of community service.	G2, 44 – 45.
26 June 2013	The Applicant was convicted of committing public nuisance and failing to appear in accordance with an undertaking. He was ordered to complete 40 hours of community service.	G2, 44.
1 April 2014	The Applicant was convicted of breaching his community service order without further punishment.	G2, 44.
8 March 2017	The Applicant was convicted of stealing and possessing dangerous drugs. He was fined $750.00 and ordered to pay $295.00 in restitution.	G2, 44.

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
R1	G Documents (G1-G7, pages 1-150)	R	Various	13 April 2022
R2	Respondent’s SFIC (pages 1-25)	R	23 May 2022	23 May 2022
R3	Summonsed Documents – Tender Bundle (TB1-TB4, pages 1-27)	R	Various	23 May 2022
R4	Applicant’s Supplementary SFIC (pages 1-9)	R	2 June 2022	2 June 2022
R5	Applicant’s Supplementary Statutory Declaration (pages 1-2)	R	2 June 2022	2 June 2022
R6	Character Reference - Safune Celestella Titoa (1 page)	R	Undated	2 June 2022
R7	Character Reference - Laauli Palupe (1 page)	R	Undated	2 June 2022
R8	Character Reference - Magic Palupe (1 page)	R	Undated	2 June 2022
R9	Character Reference - Tammy Palupe (1 page)	R	Undated	2 June 2022
R10	Character Reference - Janice Palupe (1 page)	R	Undated	2 June 2022
R11	Character Reference - Mapuni Pedebone (1 page)	R	Undated	2 June 2022
R12	Character Reference - Fetuao Angela Ati (1 page)	R	6 April 2022	2 June 2022
R13	Letter of Support - Mapuni Pedebone (1 page)	R	Undated	2 June 2022
R14	Letter of Support - Janice Palpupe (2 pages)	R	Undated	2 June 2022
R15	Applicant IHMS Records (pages 1-158)	R	Various dates	3 June 2022
A1	Applicant’s SFIC (pages 1-27)	A	24 May 2022	24 May 2022
A2	Applicant’s Statutory Declaration (pages 1-5)	A	1 June 2022	1 June 2022