Tushingham and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 94

Tushingham and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 94 (31 January 2024)
Division:GENERAL DIVISION
File Number: 2023/1197
Re:William Darren Tushingham
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:31 January 2024
Place:Perth

The decision of the delegate of the Minister dated 16 February 2023 under s 501CA(4) of the Act not to revoke the cancellation of the Applicant’s Class BB Subclass 155 Return Resident visa is affirmed.
...................[Sgd]................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – s 501CA(4) of Migration Act - decision not to revoke mandatory cancellation of visa - Applicant is a citizen of United Kingdom - Direction 99 considered - Applicant had lived in Australia for 25 years - extensive criminal record - starting offending shortly after arrival – repeated violent offences - serious driving record - high risk of re-offending – Applicant already returned to the United Kingdom - primary considerations of protection of the Australian community and expectations of the Australian community outweigh considerations in favour of revoking cancellation of visa - there is not another reason to revoke the decision to cancel the Applicant’s visa – reviewable decision affirmed.
LEGISLATION
MIGRATION ACT 1958 (CTH) SS 189, 197C(1), 198, 499, 499(1), 499(2A), 501, 501(1), 501(2), 501(3A), 501(6), 501(6)(A), 501(6)(E), 501(7), 501(7)(A), 501(7)(B), 501(7)(C), 501CA, 501CA(4), 501CA(4)(B), 501CA(4)(B)(I), 501CA(4)(B)(II).CASES
BGW22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1569
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762
Minister for Home Affairs v HSKJ [2018] FCAFC 217; [2018] FCAFC 217; 266 FCR 591
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 255 FCR 81
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Price v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 171
PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 14
Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6
XRGY and Minister for Immigration, Citizenship, and Multicultural Affairs [2023] AATA 755
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA(4) paras 5.1, 5.2, 6, 7, 7(2), 8, 8.1, 8.1.1, 8.1.1(1)(a), 8.1.1(1)(c)-(e), 8.1.1(1)(g), 8.1.2, 8.1.2(a), 8.1.2(2)(a)-(b), 8.2, 8.3, 8.4, 8.4(4), 8.4(4)(a)-(b), 8.5, 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(4), 9, 9.2.
REASONS FOR DECISION
Deputy President Boyle
THE APPLICATION

The Applicant seeks review of the decision of a delegate of the Respondent (Minister) dated 16 February 2023,[1] under s 501CA(4) of the Migration Act 1958 (Cth) (Act) not to revoke the cancellation of the Applicant’s Class BB Subclass 155 Return Resident visa.
[1] R1/18.
The Applicant’s visa was cancelled on 24 March 2020,[2] under s 501(3A) of the Act because the Applicant did not pass the character test by reason of having a “substantial criminal record” because he had been sentenced to a term of imprisonment of 12 months or more (four years for armed robbery) and he was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the State of Western Australia.[3]
[2] R1/89.
[3] R1/33.
The Applicant made representations for the revocation of the cancellation of his visa, and on 16 February 2023, a delegate of the Minister made the decision not to revoke the cancellation of the visa (see [1] above). The Applicant was advised of that decision on 20 February 2023,[4] and lodged the present application with the Tribunal on 25 February 2023.[5]
[4] R1/15.
[5] R1/4.
BACKGROUND
The Applicant is a 47-year-old citizen of the United Kingdom (born in March 1976) who arrived in Australia on 7 May 1997 (aged 21 years old) as the holder of a Class AT Subclass 126 Independent (Migrant) visa.
The Applicant has an extensive criminal and traffic history commencing in 1999. The Applicant’s criminal record, taken from the Australian Criminal Intelligence Commission’s Check Results Report,[6] is set out in the Annexure to these reasons for decision. The offences include numerous unlicenced and drink driving offences, assaults, thefts (including stealing motor vehicles), breach of protective bail conditions, burglary and armed robbery.
[6] R1/32-34.
On 24 November 2004, the Applicant was sentenced to a term of imprisonment of 12 months for driving under the influence of alcohol and disqualified from driving for life. He was also sentenced to 12 months imprisonment (concurrent) for driving whilst suspended.
On 22 September 2006, the Applicant was sentenced to two years and eight months imprisonment for aggravated burglary and commit offence in dwelling.
On 4 October 2006, the Applicant was convicted of assault occasioning bodily harm for which he was sentenced to eight months’ imprisonment, unlicenced driving for which he was sentenced to eighteen months’ imprisonment (concurrent) and driving with excess 0.08% blood alcohol for which he was fined $1200.
By letter dated 11 July 2007, while the Applicant was serving a sentence of imprisonment in Acacia Prison, he was notified by the Department of Home Affairs that his visa was being considered for cancellation under s 501 of the Act.
On 13 August 2007, the Applicant was sentenced to a term of imprisonment of 16 months and ten days for assault occasioning bodily harm.
By letter dated 7 November 2007,[7] the Department notified the Applicant that his visa was not cancelled. That letter contained a formal warning (in bold) to the effect that any further offending may cause the decision not to revoke the visa to be reconsidered and that disregard of the warning “will weigh heavily against you if your case is reconsidered”.
[7] R1/72.
On 25 October 2019, the Applicant was sentenced in the Supreme Court of Western Australia for aggravated armed robbery, for which he was sentenced to four years’ imprisonment (cumulative) and deprivation of liberty for which he was sentenced to four months’ imprisonment (cumulative).
On 24 March 2020, the Applicant was given notice that his visa had been cancelled under s 501(3A) of the Act (see [2] above).
On 17 April 2020, the Department received from the Applicant a request for revocation of the cancellation of his visa.
On 10 July 2020, the Applicant was sentenced to six months’ imprisonment (partly concurrent) for assault occasioning bodily harm for an offence committed in 2015.
On 1 November 2022, following the cancellation of his visa but before the non-revocation decision was made, the Applicant was voluntarily removed to the United Kingdom.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act relevantly provides that:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) …
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Act relevantly provides:
For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); ...
(Original emphasis.)
A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
...
(Original emphasis.)
Section 501CA of the Act relevantly provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
...
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(Original emphasis.)
Section 499(1) of the Act provides that:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Direction 99
On 23 January 2023, the relevant Minister for the purposes of s 499 of the Act made a direction titled “Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 99). The commencement date for operation of Direction 99 was 3 March 2023. Upon its commencement, Direction 99 revoked the operation of “Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 90).
Paragraph 5.1 sets out the objectives of Direction 99. Relevantly, para 5.1 provides:
1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.
...
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
(4) The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of Direction 99 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke the cancellation of a visa under s 501CA of the Act. These principles are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable (sic) risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) 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 8.55(2) (sic) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable (sic) risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 99 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 99 (where such considerations are relevant) to determine whether the decision to cancel the visa under s 501(3A) of the Act should be revoked.
Guidance in relation to how the relevant considerations are to be taken into account is found in para 7 of Direction 99 which provides that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of Direction 99 is as follows:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
Paragraph 9 of Direction 99 is as follows:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) Legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
THE ISSUE FOR DETERMINATION
The issue for determination is whether I should exercise the power in s 501CA(4)(b) of the Act to revoke the cancellation of the Applicant’s visa under s 501(3A). This will require determination of:
(a)whether the Applicant passes the character test (as defined by s 501 of the Act); and
(b)if he does not pass the character test, whether there is “another reason” why the decision to cancel the Applicant’s visa should be revoked.
THE HEARING AND THE EVIDENCE
The application was heard on 26 and 31July 2023. On 26 July 2023, the Applicant’s parents, Catherine Elaine Tushingham and William (Bill) Tushingham, attended the Tribunal in person. At that time, they advised that it was not the Applicant’s intention to attend the hearing. I advised them that, while it was the Applicant’s prerogative to attend or not to attend, it would be beneficial to his case if he were to attend and give evidence. Accordingly, on 26 July, having admitted documents into evidence, I adjourned the hearing to 31 July 2023 to allow the Applicant to attend (by Microsoft Teams) and to give evidence.
The Applicant and his parents gave evidence at the hearing on 31 July 2023. The following documents were admitted into evidence:
a)Statement of William (Bill) Tushingham (undated) received on 7 June 2023 (A1).
b)Support Letter from Catherine Tushingham received 29 June 2023 (A2).
c)Applicant’s Statement received 5 June 2023 (A3).
d)Character Reference from S Bayly dated 27 June 2023, received 29 June 2023 (A4).
e)Letter from UK NHS dated 30 May 2023, received 1 June 2023 (A5).
f)Letter from William and Catherine Tushingham dated 24 February 2023, received 25 February 2023 (A6).
g)Letter from Megan Tushingham (undated) received 3 April 2023 (A7).
h)Letter from Fr B Newing dated 1 June 2022, received 25 February 2023 (A8).
i)Letter from Megan Tushingham (undated) received 25 February 2023 (A9).
j)Enduring Power of Attorney dated 22 November 2021, received 25 February 2023 (A10).
k)Letter from Whitehaven Clinic dated 8 July 2022, received 25 February 2023 (A11).
l)Parole Order dated 4 October 2022, received 3 April 2023 (A12).
m)Individual Management Plan dated 8 April 2022, handed up 23 July 2023 (A13).
n)Section 37 T Docs received 2 May 2023 (R1).
o)Supplementary T Documents received 16 May 2023 (R2).
p)Summons Bundle received 2 May 2023 (R3).
q)Aide Memoire prepared by Respondent handed up 26 July 2023 (R4).
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law.[8] The character test is defined in s 501(6) of the Act (see [18] above). Under s 501(6)(a) of the Act, a person does not pass the character test if the person has “a substantial criminal record”. Section 501(7)(c) of the Act (see [19] above) provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more...”. The Applicant has been sentenced to a term of imprisonment of 12 months or more and, therefore, he has a substantial criminal record and, as a result, does not pass the character test.
[8] Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 66.
The Applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution at the time of the cancelation of his visa on 24 March 2020. I am satisfied that the elements of s 501(3A) of the Act were satisfied and that the cancellation of the Applicant’s visa under that section was valid.[9]
[9] A valid cancellation decision is a pre-condition to the valid exercise of the revocation power under s 501CA(4) of the Act – see PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 14 and XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6

As the Applicant does not pass the character test, he cannot rely on s 501CA(4)(b)(i) of the Act for the decision to cancel his visa to be revoked. The issue for determination, therefore, is whether the power under s 501CA(4)(b)(ii) should be exercised on the basis that there is another reason why the decision under s 501(3A) should be revoked.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1 of Direction 99 provides that, when decision-makers are considering the protection of the Australian community, they:
(1)... should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen's conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (para 8.1.1)
Paragraph 8.1.1 of Direction 99 relevantly provides:
1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed.
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)...
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
...
c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e) the cumulative effect of repeated offending;
(f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
...
The Applicant did not provide a statement of facts, issues and contentions. He did file statements, letters of support and other documents which were admitted into evidence and upon which he relies (see [31] above). While some of the content of those statements and other documents may be relevant to some of the considerations in Direction 99, none of the material directly addresses this consideration. In any event, the nature and seriousness of the Applicant’s conduct is to be judged on objective criteria as identified in para 8.1.1.
The Minister’s Statement of Facts, Issues and Contentions dated 2 May 2023 (Minister’s SFIC) made submissions on this consideration to the following effect:
(a)The Applicant’s offending should be viewed as very serious.
(b)Violent crimes are viewed very seriously by the Australian Government and the Australian community (para 8.1.1(1)(a)(i) of Direction 99). The Applicant has been convicted of the following violent crimes in Australia:
(i)On 4 July 2000, the Applicant was convicted of unlawful assault following entering a plea of guilty. The police records indicate that on 19 June 2000 the Applicant (who was at a bar with his brother) punched a hotel security guard in the mouth after first swinging a punch at him (and missing) with a glass in his hand.[10]
[10] R3/183-184 & 135.
(ii)On 22 September 2006, the Applicant was sentenced to two years and eight months imprisonment for aggravated burglary and commit offence in dwelling. That offending occurred on 21 July 2005 and involved the Applicant “smashing” his way into the house of the victim with his youngest brother to “fix the complainant up” because he had been giving the Applicant’s other brother a hard time. The Applicant armed himself with a baseball bat, which was then used against the victim. The sentencing remarks reveal that:[11]
[11] R1/86.
The complainant was assaulted by punching and kicking and kneeing
and he was also hit with the bat. It appears that you, Darren, were
the person who was physically responsible for that although both of
you are legally responsible. The plaintiff suffered bruising and
concussion.
(iii)On 4 October 2006, the Applicant was convicted of assault occasioning bodily harm and sentenced to nine months’ imprisonment. The police records and sentencing remarks indicate that the offence was committed on 1 December 2005 and involved the Applicant assaulting the victim as part of a group attack at a pub in Dampier. The victim was hit with a glass to the face by a co-accused and the Applicant punched the man to the face causing him to fall to the ground where he was hit over the back of the head twice by an unknown offender.[12]
(iv)On 13 August 2007, the Applicant was sentenced to a term of imprisonment of 16 months and ten days for assault occasioning bodily harm (see Annexure) which resulted from an offence committed on 3 August 2006. The police records indicate that the Applicant had been drinking at his residence with the victim when the victim attempted to leave.[13] The Applicant and co-offenders hog-tied the victim with duct tape and rope, including taping his mouth and eyes. The victim was tied up for approximately five hours during which time he was kicked, punched and urinated on by the Applicant, before being placed in the boot of the car and dumped beside the road whilst still tied up.
(v)On 25 October 2019, the Applicant was convicted in the Supreme Court of Western Australia of aggravated armed robbery, for which he was sentenced to four years’ imprisonment (cumulative) and deprivation of liberty, for which he was sentenced to four months’ imprisonment (cumulative). Those offences were committed on 16 June 2017 and involved the Applicant holding an innocent victim at knife point and attempting to extract money from him (via an ATM) in order to pay a debt to a mutual friend of the victim..[14]
(vi)On 10 July 2020, the Applicant was sentenced to six months’ imprisonment (partly concurrent) for assault occasioning bodily harm (offence committed in 2015). That offence involved the Applicant discharging a gun inside a garage whilst drinking. The bullet ricocheted into the face of a girl in the room causing a need for facial and dental surgery.[15]
(c)Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy. Where a Court has sentenced an offender to a term of custodial imprisonment, this should be viewed as a reflection of the objective seriousness of the offences involved. In total the Applicant has been sentenced to more than 13 years in prison (some sentences were served concurrently) (para 8.1.1(1)I of Direction 99).
(d)The Applicant’s offending has been frequent. He has committed approximately 35 offences since 1999, notwithstanding several lengthy periods of incarceration. There is also a trend of increasing seriousness, with the Applicant’s most recent convictions attracting lengthy terms of imprisonment due to both the seriousness and the repeated nature of the same type of offending (para 8.1.1(1)(d) of Direction 99).
(e)The Applicant’s criminal history reflects a pattern of recurring criminal conduct involving violence, threats of violence, weapons, robbery, driving and drug offences. This behaviour must be seen as cumulatively having had a negative impact on the Australian community (para 8.1.1(1)(e) of Direction 99).
(f)Significantly, the Applicant has re-offended (often in the same manner) frequently after being formally warned in 2007, in writing, about the consequences of further offending in terms of his migration status (para 8.1.1(1)(g) of Direction 99).
[12] R1/82 & R3/15.
[13] R3/7.
[14] R3/33.
[15] R3/38.
By any measure, the Applicant’s criminal and driving record is very serious. As the Minister points out, the Applicant has been convicted of around 35 offences since 1999. It includes numerous unlicenced and drink driving offences, serious assaults, thefts (including stealing motor vehicles), breach of protective bail conditions, burglary and armed robbery. The Applicant was repeatedly warned by the courts and the Department of the consequences of re-offending. He was repeatedly given the opportunity to mend his ways. He repeatedly ignored those warnings and further chances.
In his written statements and at the hearing, the Applicant tried to downplay the seriousness of his offending and, in some cases, sought to blame others even for the offences to which he pleaded guilty. In his undated, handwritten statement filed with the Tribunal on 25 February 2023, the Applicant said that his criminal history “doesn’t make for good reading”. I would have to agree with that. He then stated that he has not always “done the right thing” but he has learnt from his “mistakes” and has “moved on with [his] life”. That, in my view, evidences a lack of understanding of the seriousness of the Applicant’s very serious criminal record.
In that handwritten statement, the Applicant describes the circumstances of some of his more serious offences. In relation to the conviction on 22 September 2006 for aggravated burglary and commit offence in dwelling (see [38(b)(ii)] above) for which the Applicant was sentenced to imprisonment for two years and eight months, the Applicant’s description was that he and his brother, Kevin, had been drinking, that they did not go to the victim’s house to harm him, but rather to have a “conversation to tell him to lay off my brother’s girlfriend”. That is inconsistent with the particulars as read to the Court at the time of sentencing and to the Applicant’s evidence at the hearing that he and his brother went to the house looking for “Nathan” as he had damaged his brother’s car. The person that the Applicant and his brother assaulted was not Nathan. The evidence read to the Court was that while the Applicant and his brother were assaulting the victim, they were asking the victim where Nathan was. Kevin did not give a statement. The Applicant claimed that behaviour was “out of character”. He claimed that it was the victim that came at him and his brother with a baseball bat. In sentencing the Applicant, Fenbury DCJ, having stated that he had viewed video footage of the attack, which he described as “instructive”, addressed the Applicant and his brother as follows:[16]
I just ask you two blokes to think about how you would like it if two larger louts full of piss smashed their way into your old man’s house and beat him up when he was in bed, it’s that sort of offence.
…
…you two got a skin full at the local pub and you took it upon yourselves to go and fix the complainant up. You are the main instigator, Darren, apparently.
…
Neither of you was armed when you burst or smashed your way into the house but afterwards one or other of you disarmed the complainant who had armed himself with a bat as in fact the law would entitle him to do – a baseball bat because he is defending himself and his house from violent invaders. The complainant was assaulted by punching and kicking and kneeing and he was also hit with the bat. It appears you, Darren, were (sic) the person responsible for that although both of you are legally responsible.
[16] R1/86.
The Applicant’s assertion that his attack was “out of character” is simply wrong. His extensive, violent criminal record speaks to his character. That attack was merely one instance in a long history of that type of offending (four counts of assault or assault occasioning bodily harm, aggravated burglary and commit, aggravated armed robbery, stealing and damage). I also note that at the hearing the Applicant claimed that it was his brother, not him, who hit the victim with a baseball bat. His evidence was that his brother had “just slapped [the victim] a couple of times”. He then conceded (under questioning from me) that his brother had punched the victim. His evidence was that that is what “slap” means. His evidence also was that he knew that he was going to prison on drink driving offences anyway so he “put his hand up” to lessen the seriousness of his brother’s charges. I do not accept that, but in any event, unless there is overwhelming reason to displace the facts as read to the court, as accepted by the Applicant’s counsel and upon which Judge Fenbury sentenced the Applicant, I accept, as I must, those facts.[17] This is, however, one of the many examples of the Applicant attempting to minimise the seriousness of his offending or attempting to blame others.
[17] Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234 at [40] and [45].
The most serious of the Applicant’s offences were the aggravated armed robbery, for which he was sentenced to four years’ imprisonment (cumulative), and deprivation of liberty, for which he was sentenced to four months’ imprisonment (cumulative). In sentencing the Applicant on 26 November 2019, Justice Derrick noted that the Applicant had been convicted of the offences only after a five-day trial. He then described the facts of the offences as follows:[18]
[18] R1/43.
You Mr [C] had at the time of your offences known Mr [E] for approximately 20 years. You went to [omitted] High School together. You had remained acquaintances ever since.
You Mr Tushingham had at the time of your offences known Mr [E] for approximately two to three months. You met Mr [E] through Mr [C].
On the morning of 16 June 2017 Mr [E] was at home when you Mr Tushingham either called or sent a text to Mr [E] telling him to come to your unit because you needed to speak to him.
Mr Tushingham, Mr [E] had not been to your unit before. You gave him your address. Mr [E] then drove to your unit situated at [omitted] in a Holden Commodore registration number… (the Commodore). The Commodore belonged to Mr [E’’s' partner, Ms [T].
…
Mr Tushingham, once Mr [E] was inside your unit you started talking to him about money that Mr [C] owed to you. You told Mr [E] that Mr [C] owed you money, that you could not get hold of Mr [C], that Mr [E] was the closest person that you knew that knew Mr [C], and that if Mr [C] was not going to pay the money then Mr [E] would have to pay it. Mr [E] said to you, in substance, that the debt owed by Mr [C] had nothing to do with him and that he was not going to pay the money.
…
Mr Tushingham, before Mr [E] left the unit you told Mr [D] to go with Mr [E]. You told Mr [D] to go with Mr [E] because you wanted to ensure that Mr [E] did collect Mr [C]. In short, you sent Mr [D] as‘a 'min’er'.
…
Mr [E]started driving towards the [omitted] Shopping Centre which was on route to Mr Tushing’am's unit. When Mr [E] reachedthe BP service station which was just around the corner from Mr Tushing’am's unit, you Mr [C] worked out that Mr [E] was driving you to Mr Tushing’am's unit. Having come to this realisation you pulled out of the bag that you had with you a .22 calibre modified rifle (the gun) and pushed the barrel of the gun into the back of Mr [E]’s head near his ear. You then said to Mr [E‘, 'I should pull the fucking trig’er'.
…
In any event, not more than a couple of minutes after you Mr [C] and Mr [D] had entered Mr Tushing’am's unit, you Mr Tushingham stuck your head out of the front door of your unit and said to Mr [E] in an aggressive mann‘r 'get the fuck ins’de'. In response Mr [E] got out of the Commodore with his keys including the car key, locked the car and walked into the unit.
When Mr [E] walked into the unit you Mr Tushingham were wearing latex gloves. You were also holding a knife similar to a carving knife. The knife was about 30-cm long. You waved the knife at Mr [E] and told him ‘o 'sit the fuck d’wn'. You snatched Mr [E]’s keys off him. You also made Mr [E] turn out the pocket of his jeans and took from him a silver Zippo lighter that was in one of his pockets. You were still holding the knife at the time that you took the lighter.
…
After you Mr Tushingham had come back into the unit with the items from the car you told Mr [E] to sit down in the corner of the room and not to move. Mr [E] then sat on part of a modular couch that was next to the sliding door. Mr [E] was in fear for his safety at this time.
…
After Mr [E] returned from the bank with Mr [D] you Mr Tushingham told Mr [E] to sit in the corner or you would kill him. Mr [E] again sat on the portion of the modular sofa couch near the rear glass sliding door. Mr [D] remained in the unit in close proximity to Mr [E].
You Mr Tushingham also said to Mr [C] to go and get some plastic sheeting and cleaning products and some bleach or spray and wipe. I am satisfied beyond reasonable doubt that you made this statement in order to further intimidate Mr [E] and to cause him to become even more fearful for his safety. Your statement had the desired effect because Mr [E] took your statement to indicate that you we‘e 'going to off ’im' for the Commodore.
…
At one point Mr [E] got up to get a drink of water. You told him t‘, 'Sit the fuck down o’ I'll fucking kill ’ou'.
Mr [E] tried to edge towards the back sliding door because it was open. However, you spotted him doing this, walked over to the door and slammed the door closed so that the exit was blocked.
During the period that Mr [E] was sitting on the couch you were in his immediate vicinity. You were throughout this time, to use the words used by Mr [E] when he gave his evidenc‘, 'carrying’on'.
…
Mr Tushingham, your conduct in committing your offences was quite obviously serious. You behaved in a threatening and aggressive fashion towards Mr [E] over a reasonably extended period of time for the purpose of enabling Mr [C] to make use of Mr ’E]'s car for his own purposes for a period of time and without Mr [E]’s consent. Your threatening and aggressive behaviour involved the use by you of a knife, albeit for a relatively brief period. In addition, you deliberately prevented Mr [E] from leaving your unit for a period of time until he managed to make his escape. In short, you subjected Mr [E] to a very frightening experience.
A factor that in my view aggravates the inherent seriousness of your conduct is that you engaged in your conduct, including your conduct in enabling Mr [C] to take Mr [E]’s car, as part of an overall plan to compel Mr [E] to pay to you a debt that was not even owed by him to you, namely the debt owed to you by Mr [C]. Your aim in engaging in your conduct was, I find, to frighten Mr [E] into paying the debt owed by Mr [C].
A further factor that in my view aggravates the inherent seriousness of your conduct in committing the robbery is that you secured the presence of Mr [D] to ensure that Mr [E] did feel intimidated and frightened by your conduct towards him.

In assessing the seriousness of the Applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction 99 relevant in this case, I find that:
(a)Paragraph 8.1.1(1) - the Applicant has been convicted on multiple occasions for crimes of violence. I am obliged to take into account that the Australian Government and the Australian community consider these crimes to be very serious. In taking those views into account, I am mindful of the obligation under para 8.1(2)(a) of Direction 99 to assess for myself the seriousness of the Applicant’s offending, informed by the statement of executive policy in Direction 99;[19] I find that, independently of the directive in para 8.1.1(1)(a) of Direction 99, the Applicant’s violent offending, particularly the offences referred to in [38(b)] above, has been very serious.
(b)Paragraph 8.1.1(1)(c) – the Applicant has received numerous sentences of imprisonment. The Applicant has been sentenced to terms of imprisonment totalling over 13 years (some to be served concurrently). This, coupled with the comments made by the sentencing Court, indicates the seriousness of the offences committed by the Applicant.
(c)Paragraph 8.1.1(1)(d) – as noted above, the Applicant has committed 35 offences since 1999, interrupted only, it would seem, by lengthy periods of incarceration. The Applicant’s offending is, accordingly, frequent. There is also a trend of increasing seriousness with the Applicant’s most recent convictions attracting lengthy terms of imprisonment due to both the seriousness of the offences and the repeated nature of the same type of offence.
(d)Paragraph 8.1.1(1)e – the cumulative effect of the inherent seriousness of the offences committed by the Applicant, the frequency of the offending and the repetition of the same type of violent offences, is to demonstrate that the Applicant has little or no regard for the law or the safety of the community. The same comment applies to the Applicant’s repeated disregard for driving laws, particularly laws relating to drink driving.
(e)Paragraph 8.1.1(1)(g) – the Applicant has offended repeatedly and seriously following warnings from the Courts and from the Department (see [11] above).
[19] Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582 at [73] per Snaden J. See also Price v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 171 at [71].
Because of the nature of the Applicant’s offending, the frequency of the offending, the repeated nature of the offences committed, the fact that the Applicant reoffended (repeatedly) having been warned of the consequences and in light of the other factors identified in para 8.1.1(1) of Direction 99, the Applicant’s criminal behaviour is to be viewed as very serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
Paragraph 8.1.2 of Direction 99 relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Governm’nt's view that the Australian commun’ty's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the non citizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of harm to individuals or the Australian community (8.1.2(2)(a))
The Applicant made no specific submission on this consideration. The Minister’s SFIC contended that the nature of the harm that would be caused to the Australian community if the Applicant were to re-offend is very serious and may have wide reaching effects on the community, including physical harm, financial harm, ongoing psychological consequences and broader financial and other consequences for the Australian justice and health systems.
The harm to individuals or the Australian community, should the Applicant engage in the violent behaviour that he has in the past, is obviously serious. Apart from the obvious physical injury caused by the sort of violent behaviour that the Applicant has engaged in in the past, there would also be psychological harm suffered by the victims. The fear caused (deliberately) to the victim of the Applicant’s armed robbery offence was alluded to by Justice Derrick in sentencing the Applicant (see [43] above). The same sort of fear and psychological harm would undoubtedly have been suffered by the victim of the Applicant’s August 2006 assault occasioning bodily harm for which the Applicant was sentenced on 13 August 2007 (see [38(b)(iv)] above).
I also take into account the sort of harm caused to individuals and the broader community by driving offences, particularly drink driving offences. I adopt the observations of Colvin J in JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [43]-[45] wherein,[20] with apparent approval, his Honour referred to the Tribunal as having found that “driving offences could result in ‘injury, death, and possibly psychological trauma’”.
[20] [2021] FCA 762.
I find that the harm to individuals or the Australian community should the Applicant engage in the behaviour that he has in the past, in particular, the violent offending and the drink driving, is serious.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (8.1.2(2)(b))
The Minister’s SFIC made submissions to the following effect:
(a)The only available risk assessment was undertaken by the parole board as part of a parole review on 4 April 2022. On that occasion the Applicant’s parole was denied, with the parole board noting the reasons for refusal:[21]
Your extensive criminal history including violence and repeat offending (including assaults and steal motor vehicle) which suggests a high risk of reoffending. Your unmet treatment needs (substance abuse, violence and consequential thinking) as evidenced by the nature of your current offences and your criminal history. The Board notes that you have not participated in any voluntary program to reduce your risk to the safety of the community. Your release plan does not include any way to adequately address your unmet intensive treatment needs.[22]
(b)The Applicant continues to deny any involvement in the most recent and serious crime of aggravated armed robbery and deprivation of liberty.[23] The Minister contended that his failure to acknowledge his guilt demonstrates that he has no remorse or insight into his offending and is therefore likely to reoffend.
(c)Despite the warning issued by the Department in November 2007, the Applicant continued to commit further offences, showing a clear disregard for the laws of Australia and a failure to engage in a suitable level of rehabilitative reform.
(d)Repeated periods of imprisonment were not sufficient to curb the Applicant’s offending behaviour.
(e)The Applicant has a history of committing violent offences, as outlined above. The Tribunal is “entitled to speculate as to what might happen in the future by reference to evidence of what had occurred in the past”: Muggeridge v Minister for Immigration and Border Protection.[24]
[21] R3/83.
[22] Note: the Applicant was granted parole by order made on 4 October 2022 (A12), the Board finding that the Applicant’s release in Western Australia “does not pose an unacceptable risk to the safety of the community”.
[23] Noted by Derrick J in sentencing the Applicant: R1/59.
[24] [2017] FCAFC 200 at [36].
The Applicant’s evidence relevant to this issue is very limited. As previously noted, notwithstanding the order made by me on 9 March 2023 (time extended by orders made on 4 April 2023), the Applicant did not provide a statement of facts issues and contentions or any similar document which specifically addressed the considerations in Direction 99. The closest to such a document was the Personal Circumstances Form signed by the Applicant on 29 March 2020.[25] On page 11 of that form,[26] in response to the direction “Provide information on what you believe to be the risk of you offending in the future, and your supporting reasons”, the Applicant stated:
Sorry - but I will say it again I did not do anything wrong.
I consider myself to be a good permanent resident of Australia, and of no risk to the community I am in remission for cancer, this has made me realise “more” how important life is. My aim is to get out of prison and to get back into the work industry with a positive attitude. I have never breached a court order (e g. Parole, bail, bonds, or other promises to the court). When I am released from prison I will be going back to mum and dads house, I have lived with my mum and dad for 4 years.
[25] R1/104-117.
[26] R1/114.
In response to the request in that form for details of the “courses or programs that will help you to avoid further offending”, the Applicant advised:
Awaiting availability to start courses and programs. Suspect the coronavirus has interrupted these programs.
In his statement dated 5 June 2023,[27] the Applicant advised that he had had time to address his “offending behaviour and consequential thinking, through attending weekly sessions with Whitehaven Clinic and Alcoholics Anonymous meetings with Father Brian whilst incarcerated in Bunbury Regional Prison”. His statement went on to say that he had completed 12 counselling sessions with Whitehaven Clinic in Western Australia which he had found to be of immense value as he had discovered the triggers that led him to “make the wrong choices”. He referred to a favourite booklet that he had read, “The Four Agreements”, which “encompasses Toltec Wisdom”.
[27] A3.
He went on to say in that statement that his counselling sessions with Hannah, in which he had gone through a process of determining his personality type using “Enneagram Profile Summaries”, had helped him immensely with his confidence in being able to open up and talk to people more easily about the triggers for his behaviour. He said that he now has a more positive outlook on life and has learnt not to turn to alcohol when things get bad.
The Applicant provided a letter from the Whitehaven Clinic dated 8 July 2022.[28] The Whitehaven Clinic describes itself as an “Addiction Treatment and Recovery Centre”. The letter advised that the Applicant had completed ten one-on-one counselling sessions each of approximately 90 minutes. At the time that the letter was written the Applicant was scheduled to complete two further sessions. Some sessions had to be postponed due to COVID-19. The letter details the history given by the Applicant of his schooling, family background, relationships, relationship breakdowns and his being diagnosed with “Hodgkinson aggressive lymphoma” in 2017 and being told that he had three months to live.
[28] A11.
The Whitehaven letter also set out the Applicant’s history with illicit drugs and alcohol which the Applicant reportedly described as his “poison”. The letter advised that the Applicant has engaged positively with counsellors and shared various insights with those counsellors. The letter described the relapse prevention strategies that the Applicant had identified. Under the heading “Summary” the author, Hannah Roberts-Hill, stated that the Applicant had shown that he was “extremely capable of changing his future direction should he choose” and that he had gained insight and understanding into how his supressed anger and emotion contributes to his drinking and offending behaviour. The author concluded that:
This self-awareness, combined with an ongoing focus on maintaining emotional and mental healthiness, will continue to provide a solid platform from which to make the necessary changes to improve his quality of life in a sustainable way.
Ms Roberts-Hill did not give evidence. The signature block on the letter described her as “Program Facilitator”. Unfortunately, the letter does not identify what, if any, professional qualification or other relevant experience Ms Roberts-Hill has to make an assessment of the Applicant. Significantly, the Whitehaven letter does not purport to make any assessment of the risk of the Applicant re-offending, but rather seems to be describing, in very general terms, matters going to the Applicant’s wellbeing. It is of little use in assessing the risk of the Applicant offending as he has in the past. Further, it provides no assessment of whether the Applicant has addressed his long-standing and significant alcohol abuse. In the language of para 8.1.2(2)(b)(ii), the Whitehaven letter provides little “evidence of rehabilitation achieved by the time of the decision”.
While a person is not destined to repeat history, a person’s past conduct is a guide to future conduct in similar circumstances unless there has been a change in the psyche or the personal circumstances of the person. Justice Hespe observed in BGW22 v Minister for Immigration, Citizenship and Multicultural Affairs[29] that:
In undertaking the statutory task, the Tribunal must necessarily have regard to the facts and circumstances which it considers bear on the prospects of future behaviour. The assessment of future conduct requires a consideration of the Applicant’s character. Past conduct may provide a guide as to likely future conduct. As has been recognised in the context of a fear of persecution (by the High Court in Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 at 575 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ)), determining what is likely to happen in the future will invariably require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future (see also Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 255 FCR 81 at 91 [36] (Charlesworth J, Flick J concurring at 83 [1], Perry J concurring at 83 [2]).
[29] [2022] FCA 1569.
In her further statement filed on 29 June 2023,[30] the Applicant’s mother stated:
And then yesterday (02/06/2023) we receive a medical report from his G.P in London. We know our son has been struggling with his rehabilitation back into the community we had no idea that it was at this level…
[30] A2.
Somewhat disconcertingly, Dr Nadia Ahmed of Central and North West London NHS in her letter dated 30 May 2023,[31] stated that:
William also reported to returning to smoking and drinking more alcohol to cope with his feeling.
[31] A5.
In the present case, I am not satisfied that there has been any substantial degree of rehabilitation undertaken by the Applicant. There is no evidence that the courses to which the Applicant refers have been of value or of any great effect. There is no independent, relevantly qualified assessment of the efficacy of the Whitehaven Clinic course or what, if any, rehabilitative effect it has had on the Applicant. A letter provided by Father Brian Newing recorded the Applicant as having attended Alcoholics Anonymous (AA) meetings in prison from 2 February 2022.[32] In that letter, Fr Newing stated that the Applicant accepted that he was going to be deported and had made enquiries about AA groups in the town where he would live. The outcome of those enquiries is unknown.
[32] A8.
It is also of concern to me that the Applicant has very little insight into his offending behaviour. He minimises the seriousness of his very substantial criminal record and, in some cases, outright denies that he committed the offences of which he has been convicted and seeks to blame others. As noted in [52] above, extraordinarily in his Personal Circumstances Form, the Applicant asserted that he “did not do anything wrong”. He was convicted of aggravated armed robbery, for which he was sentenced to four years’ imprisonment (cumulative) and deprivation of liberty, for which he was sentenced to four months’ imprisonment (cumulative). The facts as found by the sentencing judge (and by which I am bound) are set out in [43] above. Notwithstanding those facts and notwithstanding that the Applicant has been convicted of 35 offences, a significant number of which are serious offences of violence, for which the Applicant has been sentenced to terms of imprisonment totalling over 13 years, the Applicant still considers himself to be “a good permanent resident of Australia” and “an honest, hardworking…reliable person” (see [74] below). That shows a lack of insight and a total denial of responsibility for his very serious criminal behaviour. That does not augur well for the Applicant’s rehabilitation.
The Applicant has a very serious criminal record and a long-standing issue with alcohol which, judging by Dr Ahmed’s letter of 30 May 2023, remains unaddressed. He has had numerous warnings and “second chances” from the Department and the Courts. Notwithstanding these, the Applicant continued to offend multiple times and seriously.
I assess the Applicant as a high risk of re-offending.
The harm that would be caused should the Applicant engage in the offending behaviour that he has in the past is serious (see [50] above). This, coupled with my assessment of the risk of the Applicant re-offending being high causes me to consider that this first primary consideration, the protection of the Australian community, weighs heavily against revocation of the cancellation of the Applicant’s visa.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
There is no evidence that the Applicant has committed family violence. This consideration is not relevant in this case.
Third primary consideration: The strength nature and duration of ties to Australia (para 8.3)
Paragraph 8.3 of Direction 99 provides:
(1) Decision-makers must consider any impact of the decision on the non- citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) The length of time the non-citizen has resided in the Australian community, noting that:
(i) Considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
(ii) more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii) less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.

In his statement dated 5 June 2023, the Applicant said:
…I am currently in London but finding it extremely hard to cope, I miss my family. My daughter who was born in Australia my brothers and all my nieces and nephews and especially the caring environment that my parents have provided for me tremendously.
The Minister’s SFIC made submissions to the following effect:
(a)The Applicant has lived in Australia for 25 years from 1997 until 2022. He arrived on 7 May 1997 as a 21 year old.
(b)The Applicant has declared immediate family members in Australia, including his mother, father, three brothers and 25-year old daughter. It is not disputed by the Minister that those family members may be upset if the Applicant was not allowed to return to Australia.
(c)The Applicant has declared a work history, mainly in the mines on a fly-in-fly-out basis until 2016. The Minister contends that the Applicant’s contributions to Australia are outweighed by his offending which began occurring in 1999 only two years after his arrival in Australia.
It is clear from the statements and evidence at the hearing, particularly that of his parents, that the Applicant is close to his parents. I accept that the impact of the decision on the Applicant’s immediate family will be significant. In their joint statement dated 24 February 2023,[33] the Applicant’s parents stated that the Applicant was “…finding it very hard and struggling with coming to terms with being deported and being away from all his family and friends, we are a very strong family and this whole process has been devastating”. That statement went on to describe the impact that their son’s deportation has had on them as follows:
As parents we wish you to look at the holistic side to this matter, it’s not about the wrong doings of our son but what it is actually doing to the whole Family and the bond we all have, this matter has eaten away at us and pulled our heart string to a place that I can’t describe for over three years, we have a strong marriage of 47 years, four sons and eleven grandchildren, our wish is to be complete again.
[33] A6.
The Applicant’s adult daughter’s undated statement stated that:[34]
My father has a very strong connection to Australia and considers it his home. He has family and friends here and has always felt a strong sense of belonging. After returning to England recently he’s struggled with loneliness and his mental health. He deeply misses his family in Australia, where he had established a strong support network and a sense of belonging. Being away from his loved ones and the place he called home for many years has been incredibly difficult for him.
…
As his only child, I am hoping to start a family of my own soon, and I do not want him to miss these giant milestones in my life. I’m also unsure if I’ll ever be in a place financially that would allow me to travel halfway across the world to visit him.
[34] A9.
In his Personal Circumstances Form the Applicant identified his parents, his daughter and his three brothers, Stuart, Richard and Shaun, as living in Australia. That form also identified eight nephews and nieces (born between 2007 and 2015). At the hearing the Applicant identified a further nephew who is two years old. None of his brothers provided a statement. A letter dated 6 November 2019 was provided by Steve Bayley of Caledonia Group Pty Ltd stating that he had known the Applicant for 15 years and had worked with him for “several years”.[35] He had found the Applicant to be “honest and trustworthy”. He said that he was “in discussions with senior management…to offer Darren employment”
[35] A4.
In a handwritten statement, which appears to have been attached to the Personal Circumstances Form,[36] the Applicant made the following statements:
My family are my life and I can’t even think what my life would become without having them around on a daily basis…to be taken away from them would break me.
…
I am very close to my mum, she is very distressed at the thought of me having to leave Australia and my dad whom (sic) has overcome cancer twice (cancer in remission) is devastated by the prospect of his eldest son leave permanently.
I consider myself to be an honest, hardworking confident, reliable person…
[36] R1/118-120.
There is little evidence of ties to the Australian community other than through the Applicant’s immediate family, in particular his parents and daughter. I accept that the impact on the Applicant’s parents, and to a lesser extent his daughter, of a decision not to revoke the cancellation of the Applicant’s visa would be significant. I give weight to that impact. There is no evidence, however, as to what impact such a decision would have on the Applicant’s three brothers or any of their children, noting again that no statements were provided by the Applicant’s brothers.
I also give weight to the fact that the Applicant has lived in Australia for 25 years. He did, however, arrive as an adult and did start offending relatively shortly after he arrived (see Annexure). I also accept that the Applicant has positively contributed to the community through his reasonably regular work and the payment of taxes, however, that contribution is diminished by the seriousness and frequency of the Applicant’s offending and that fact that it started shortly after his arrival in Australia.
While this consideration, strength, nature and duration of ties to Australia, primarily through his parents, weighs in favour of revocation of the cancellation of the Applicant’s visa, for the above reasons only minor weight can be given to it.
Fourth Primary Consideration: Best interests of minor children in Australia affected by the decision (para 8.4)
Paragraph 8.4 of Direction 99 provides:
(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Minister’s SFIC made submissions to the following effect:
(a)The Applicant submitted that he has an ‘exceptional bond’ with his eldest nephew, James, and that before his imprisonment he often interacted with the other children too, so they would be saddened by his absence.
(b)Only James is aware of the Applicant’s offending and incarceration.
(c)There is no evidence that the Applicant had any substantial relationship or has kept in contact with any child other than James since he was incarcerated.
(d)The Minister accepts that it is likely in the best interests of James, and perhaps the other nieces and nephews for the visa cancellation to be revoked, but contends that less weight should be placed on this consideration in circumstances where there is only a relatively short period of time until James turns 18 in the context of his full childhood (para 8.4(4)(b)), the relationship with all of the declared children is non-parental (para 8.4(4)(a) of Direction 99) and there has been a lengthy period of the Applicant being absent since he has been in custody since on or about 17 August 2019.
The Applicant has no minor children. As noted above, in his Personal Circumstances Form and at the hearing, the Applicant identified nine nephews and nieces as being relevant to this consideration. We do not have a statement from any of those children or their parents. In the Personal Circumstances Form the Applicant stated that his nephew James “will be very upset if I have to leave”.[37] He advised in the form that his brothers were “reluctant” to tell the Applicant’s nephews and nieces where he was as it would upset them.
[37] R1/112.
At the hearing, the Applicant confirmed that he was especially close to James who is now 16 years old. He did confirm that all of his nephews and nieces live with their parents, or in the case of James, with his father Stuart and Stuart’s partner, and that all of his nephews and nieces were well looked after. His evidence also was that he stays in regular contact with these children, up to once a week, through WhatsApp.
In relation to the factors identified in para 8.4(4) of Direction 99, the relationship with the children is non-parental, the parental roles are being fulfilled by the children’s parents, there have obviously been periods of separation (at least physically) due to the Applicant’s imprisonments and the Applicant does maintain contact with the children through WhatsApp. There was nothing to suggest that that WhatsApp contact could not be maintained.
While there is no evidence that the Applicant’s prior criminal behaviour has had any impact on these children, there is no evidence to show how it would be in these children’s best interests for the Applicant’s visa to be reinstated. This consideration is about the best interests of the children, not what the Applicant desires.
While it is difficult to see how or why it would be in the best interests of any of the Applicant’s nephews or nieces, I accept, based on the Applicant’s claims, that he is close to his nephew James and, in light of the Minister’s acceptance “that it is likely to be in the best interests of James, and perhaps the other nieces and nephews for the visa cancellation to be revoked” this consideration weighs in favour of revocation of the cancellation of the Applicant’s visa. However, for the reasons set out above I only give minor weight to this consideration.
Fifth primary consideration: Expectations of the Australian community (para 8.5)
Paragraph 8.5 of Direction 99 relevantly provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) …
...
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable (sic) risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The Minister’s SFIC contended that the Australian community would expect that the Applicant should not hold a visa on account of the serious and violent crimes he has committed, notwithstanding the length of time he has resided in Australia and that, overall, this primary consideration weighs heavily against revocation, even if the Tribunal concludes that the Applicant does not pose a “measurable risk in causing physical harm to the Australian community.”
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated in para 8.5 of Direction 99, without independently assessing the community’s expectations in the particular case (para 8.5(4)). The principles set out in para 5.2 of Direction 99, as set out in [24] above, are also relevant to this consideration.
In FYBR v Minister for Home Affairs,[38] the Full Court of the Federal Court of Australia considered the operation of the corresponding provisions in Ministerial Direction No 65 (Direction 65), a predecessor to Direction 90 and Direction 99: see [22] above. The relevant provisions of Direction 99 contain generally similar wording to the corresponding provisions in Direction 65. Some provisions, in particular those dealing with the expectations of the Australian community (para 8.5(1)), were expanded by Direction 90 and subsequently incorporated into Direction 99.
[38] [2019] FCAFC 185.
In Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs I summarised the effect of the Full Court’s judgment in FYBR,[39] as follows:
The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’ – expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]).
[39] [2020] AATA 3953.
Justice Stewart in FYBR found at [89]-[91]:
norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.
(Emphasis omitted.)
In FYBR Justice Charlesworth observed at [75] and [79]:
Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
...
...The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
(Emphasis omitted.)
That “narrow view” found by Perry J at first instance in FYBR v Minister for Home Affairs,[40] approved by the Full Court in FYBR, is reflected in the amendments to the Ministerial Direction which resulted in the additions in para 8.4(1) of Direction 90 subsequently carried over into para 8.5(1) of Direction 99. Due to the application of the “norm”, as it is now referred to in para 8.5(1), and the deeming operation of the corresponding Direction as found by the Full Court in FYBR, the starting point is that this primary consideration will weigh against the revocation of the cancellation of the person’s visa.
[40] [2019] FCA 500.
The operation of this provision was considered by the Full Court in Minister for Immigration, Citizenship and Multicultural Affairs v HSRN.[41] While the Full Court in HSRN was considering Direction 90, the wording of the corresponding provisions in Direction 99 is the same. Relevantly, the Full Court found at [40] and [44]:
It is to be observed that s 499(2A) of the Act, as mentioned, provides that a person or body “must” comply with a direction given under s 499(1) – reference is expressly made to that requirement in para 5.1(4) of Direction No. 90. Also, the Direction provides that the decision-maker “must”, amongst other things, consider the expectations of the Australian Government as expressed in the Direction (para 5.2(4), 5.2(5) and 6 read with 8.4(4)), and that expression of the expectations applies as a “norm” (para 8.4(1)). In that context, “should” in para 8.4(4) is indicative of a requirement that must be followed; it is mandatory. That is because it would be inconsistent to read, for example, para 6 as being mandatory because of its use of the word “must”, with the result that the relevant consideration must be taken into account, but reading para 8.4(4) as merely offering guidance thereby permitting the decision-maker to arrive at its own view or assessment of what the expectations of the Australian community are. It is to be noted that one of the meanings of “should” is to convey duty or obligation rather than merely guidance: Oxford English Dictionary online version, “shall” (meaning no. 18.a). Reading “should” as indicating only guidance would also be inconsistent with what was held in FYBR, and the acceptance by the Court in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] that a failure to comply with the relevant Direction’s express requirements as to the conditions to be brought into account and the manner in which those considerations were to be weighed in deciding whether to revoke a visa cancellation would be jurisdictional.
...
Leaving aside whether the Tribunal can permissibly have independent regard to community expectations as assessed by it, which must be considered at least doubtful given the Direction’s express provisions with regard to that subject which can be expected to cover the field, the submission fails on the facts. That is because the Tribunal did not take account of its own assessment of community expectations “outside the prism of para 8.4(4)”. On the contrary, it made its own assessment of community expectations expressly within the context of its consideration of para 8.4. That is a clear error.
[41] [2023] FCAFC 68.

Nothing that the Applicant has raised in relation to this consideration indicates that the “norm” as stated in para 8.5(1) of Direction 99, should not apply. I must, however, determine the weight that should be given to this consideration. Some guidance in this regard is provided by para 8.5(2) of Direction 99 (see [85] above) which provides that the Australian community expects that the Australian Government can, and should, cancel a non-citizen’s visa if they raise serious character concerns through conduct, in Australia or elsewhere, of the kind listed is sub-paras 8.5(2)(a)–(f) of Direction 99. While the Applicant’s multiple convictions do not include offences of the types described in the subparagraphs of 8.5(2), the statement of the community’s expectations that the non-citizen should not hold a visa is not predicated on the non-citizen having committed offences of the type described. I do accept, however, that given that the Applicant’s offending has not included offences of the types particularised in para 8.5(2), the community’s expectation would be less than it would be if the offending did include such offences.
However, the Applicant’s criminal record is very serious and includes multiple convictions for crimes of violence. This consideration weighs against the revocation of the cancellation of the Applicant’s visa and I give moderate weight to it.
OTHER CONSIDERATIONS
Paragraph 9 of Direction 99 sets out the “other considerations” to be taken into account as follows:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) Legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
Legal consequences of the decision (para 9.1)
Paragraph 9.1 of Direction 99 provides:
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
The Minister’s SFIC contended that s 198 of the Act requires unlawful non-citizens to be removed from Australia as soon as reasonably practicable in the circumstances specified in s 198 of the Act and that this consideration was neutral in the present case.
As noted above, on 1 November 2022, following the cancellation of his visa, but before the non-revocation decision was made, the Applicant was voluntarily removed to the United Kingdom. No non-refoulement or protection considerations arise in the present matter. This consideration is not relevant.
Extent of impediments if removed (para 9.2)
Paragraph 9.2 of Direction 99 provides:
(1) Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
The Minister’s SFIC contended as follows:
(a)The Applicant is 47 years old and lived in Australia for around 26 years, since 1997. The evidence suggests that he lives with HIV that is well controlled with medication and is in remission from Lymphoma. The Applicant declares that he suffered from depression on and off for three years in 2013, but there is no evidence that he presently suffers from any mental illness.
(b)As a citizen of the United Kingdom, the Applicant has the same access to social, medical, mental health support and economic support as other citizens. The United Kingdom is culturally, linguistically and politically similar to Australia. As a broad proposition, in the absence of any contrary evidence, the Tribunal is entitled to take into account that the Applicant would have access to government benefits similar to those available to him in Australia.[42][43]
(c)The Applicant has declared one grandparent, 6 uncles, 8 aunts and 26 cousins live in the United Kingdom.
(d)The records produced under summons by the Department of Justice indicated that “Mr Tushingham has accommodation and employment organised with supportive family members in England, and has been pro-active in ensuring a seamless return to that country”
(e)Given the above contentions and the fact the Applicant has now returned to the United Kingdom, the Minister contends there are minimal impediments if removed and the consideration weighs neutrally
[42] Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296.
In the Personal Circumstances Form, the Applicant identified a number of medical conditions from which he suffers.[44] He said that in 2013 he was diagnosed with “obsessive depression” but that with the help of his family he pulled through. He further identified suffering a hernia for which he waited nine months for an operation and three operations for ingrown hairs on his bottom. He was then diagnosed with B-cell Lymphoma which required aggressive chemotherapy and has needed an operation on his eye resulting from a cancer-related infection. The Applicant also advised that he had lived in Australia for 23 years and had not kept in touch with his family in the United Kingdom.[45]
[44] R1/116.
[45] R1/117.
The letter from Fiona Stanley Hospital dated 8 November 2019 filed in the Tribunal on 25 February 2023 advised that the Applicant had been diagnosed in 2016 with a blood borne viral infection which is lifelong but can be treated and managed but never cured. He was at the same time diagnosed with aggressive B-cell Lymphoma. The letter advised that that the Applicant’s treatment had been successful.
Dr Nadia Ahmed letter dated 30 May 2023,[46] provided a summary of the Applicant’s medical conditions for which he was, at that time, receiving treatment. The letter advised that the Applicant was under care for HIV, which was being treated and was under control, and that he also suffered from acid reflux and bladder inflammation. The letter further advised that the Applicant was “physically well”, but that he has “some psychological and social concerns”. Dr Ahmed reported that the Applicant has described low mood, lack of motivation, poor sleep, as well as nightmares and being triggered by certain noises. The latter two symptoms have made her concerned about post-traumatic stress disorder. He also has suicidal thoughts and, as noted at [61] above, reported that the Applicant had returned to smoking and drinking to cope with his feelings.
[46] A5.
Dr Ahmed also noted that the Applicant had been struggling with getting back to work due his licence not being valid in the UK, and him not have the finances to be able to support re-doing this. She reported that he has been referred to a foodbank to support him further.
At the hearing the Applicant advised that he was receiving social services from the United Kingdom Government including rent subsidy and health care.
The fact that the Applicant has already relocated to the United Kingdom causes this consideration to have less significance. The consideration requires consideration of the theoretical impediments that would be faced by the non-citizen “if” the non-citizen were to be “removed from Australia”. The Applicant has already been removed from Australia and has now been living in the United Kingdom for over 12 months. He has faced impediments since his return, however, he has received medical care and other social benefits as a citizen of the United Kingdom. The only material impediment in the Applicant in establishing and maintaining a basic living standard specifically identified was the fact that his Australian licence was not valid in the United Kingdom. If that is a reference to his driver’s licence, the reason that the Australian licence would not be valid is because it was cancelled and he was disqualified for life in November 2004 for repeat drink driving offences.
While it is the case that the Applicant suffers form a range of medical conditions, these are largely under control or treatable (and he is receiving treatment). These conditions would be faced by the Applicant irrespective of where whether he resided in Australia or the United Kingdom. I agree with her Minister’s contention that this consideration should be given neutral weight.
The Minister contended that there was no evidence which would indicate that either of the considerations of impact on victims or impact on Australian business interests was relevant in this case. I agree that that is the case.
Insofar as the consideration of impact on victims requires a consideration broader than just the impact of the decision on victims,[47] the possible impact of a decision on certain members of the community has been dealt with in the first primary consideration, the protection of the Australian community under para 8.1, in the third primary consideration of the strength, the third primary consideration, the nature and duration of the Applicant’s ties to the Australian community under para 8.3, and in the third primary consideration, best interests of minor children under para 8.4. Insofar as the impact on those members of the Australian community is to be considered, I do so under those considerations.
[47] Direction 99, para 9.3.
THE WEIGHING EXERCISE
Direction 99 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 99 sets out the way in which the relevant considerations are to be taken into account (see [26] above).
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under earlier Ministerial Directions issued under s 499 of the Act (see [22] above), the same considerations apply to the exercise required by Direction 99 which is materially in the same terms to those earlier Ministerial Directions. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection,[48] and the Full Court judgment in Minister for Home Affairs v HSKJ .[49] See also XRGY and Minister for Immigration, Citizenship, and Multicultural Affairs for analysis of those cases.[50]
[48] [2018] FCA 594.
[49] [2018] FCAFC 217; 266 FCR 591.
[50] [2023] AATA 755 at [182]-[183].
More recently the Full Court of the Federal Court considered the operation of Direction 90 (relevantly materially the same as Direction 99) in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[51] At [35] the Full Court described the process as follows:
The balancing process is directed to determining whether there is “another reason” why the visa cancellation should be revoked. It requires an identification of the matters that may constitute “another reason” and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.
[51] [2023] FCAFC 138.
In criticising the Tribunal’s reasons, the Full Court at [38] found:
...They do not disclose that there was any process by which the Tribunal grappled with the competing considerations, each of which had been ascribed a different descriptor of weight and some of which had the status of being “primary” considerations and others not, in order to bring them to bear in forming a state of satisfaction as to whether there was “another reason” to revoke the cancellation. The statutory task is not fulfilled by ascribing a descriptor of weight, such as “strong”, “significant”, “considerable” or “moderate” (in favour of or against revocation) to the different considerations, primary and other, and then stating a conclusion as if that conclusion was made inevitable by the application of a mathematical formula.
And at [43]:
... the Tribunal recognised in paragraph [113] that it was required to weigh “all the Considerations” (emphasis added), and because it had expressly gone through the process of considering each of the “other considerations in turn”, as explained above, it cannot be concluded that the Tribunal failed to consider the “other considerations”. However, there is nothing in the concluding section of the Tribunal’s reasons, or indeed anywhere, which reveals any process of balancing and evaluation... Nor is there anything which demonstrates that in reaching its ultimate conclusion, the Tribunal brought to bear its assessment of the weight of the various “other considerations”. After summarising, and rephrasing, its earlier ascription of descriptors of weight to each of the primary considerations, the Tribunal then simply concluded in paragraphs [114] and [115] by use of the words “therefore” and “consequently” that the visa cancellation should not be revoked. Such a conclusion does not inevitably or necessarily follow from those unexplained, un-balanced and un-weighed descriptors of weight; it may be that such a conclusion is justified by what preceded it but it is not apparent that the Tribunal undertook the required process of evaluation in order to reach its decision. It is not even apparent that the Tribunal considered that the weight of all the primary considerations were compelling against revocation of the cancellation of the visa, since it placed “significant weight” on one of those considerations, the interests of minor children, as favouring revocation.
And at [44]:
...What it did, on the face of its reasons, is ascribe weight to the various considerations having considered each in isolation and then express a conclusion without demonstrating that it actually weighed the various considerations against each other and undertook a proper evaluation of whether there was indeed “another reason” why the cancellation should be revoked.
What I understand the Full Court to be saying is that giving a weight to each consideration by ascribing a particular quantitative or qualitative adjective and then stating a conclusion without explaining how the conclusion flows from or arises out of a described process of assessing the weight of each consideration against each other consideration, is not discharging the statutory function. Applying those principles to the case of the exercise of being “satisfied ... that there is another reason why the original decision should be revoked” (s 501CA(4)(b)(ii)), I take the Full Court to be directing the decision-maker to give appropriate weight to each relevant consideration, explain why such weight is given to the consideration and then, through a described, logical process, compare and balance all of the applicable considerations to determine whether there is another reason why the original decision should be revoked.
Following the above-described process, I have ascribed a weight to each of the relevant considerations under Direction 99 and explained the basis upon which I have assessed the weight to be given to each consideration. What remains is to compare and balance the considerations to determine whether I am satisfied that there is another reason why the original decision should be revoked.
The first primary consideration, the protection of the Australian community, weighs heavily against revocation of the cancellation of the Applicant’s visa (see [66] above).
The third primary consideration, the strength, nature and duration of the Applicant’s ties to Australia, weighs in favour of revocation of the cancellation of the Applicant’s visa but only minor weight can be given to it (see [77] above).
The fourth primary consideration, the best interests of minor children in Australia affected by the decision, weighs in favour of revocation of the cancellation of the Applicant’s visa, however, only minor weight is to be given to this consideration (see [84] above).
The fifth primary consideration, the expectations of the Australian community, weighs against the revocation of the cancellation of the Applicant’s visa and I give moderate weight to it.
In relation to the other considerations under para 9 of Direction 99, for the reasons set out above, I found that the only potentially relevant other consideration was that of impediments if removed, but that neutral weight should be given to it (see [108] above).
I am mindful that para 7(2) of Direction 99 states that primary considerations should generally be given greater weight than the other considerations (see [26] above). Nothing has been presented which would indicate that that general principle should not apply in the present case. Having weighed the considerations in favour of revoking the decision to cancel that Applicant’s visa and those against revoking the decision to cancel the Applicant’s visa, I find that the considerations against revoking the decision to cancel the Applicant’s visa, being the first primary consideration, the protection of the Australian community and the fifth primary consideration, the expectations of the Australian community, substantially outweigh the primary considerations of ties to the Australian community, the best interests of minor children which weighed in favour of the revocation of the cancellation of the Applicant’s visa. Accordingly, I find that there is not another reason why the original decision should be revoked.
DECISION
The decision of the delegate of the Minister dated 16 February 2023 under s 501CA(4) of the Act not to revoke the cancellation of the Applicant’s Class BB Subclass 155 Return Resident visa is affirmed.

I certify that the preceding 123 (one hundred and twenty -three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...............[Sgd]...................................................

Associate
Dated: 31 January 2024

Date(s) of hearing:

26 and 31 July 2023

Advocate for the Applicant:

Mr Bill Tushingham

Solicitors for the Respondent:

Mr Ashley Burgess

ANNEXURE
Table of offences

Date of offence

Date of conviction

Court

Offence

Result

29.08.1999

02.09.1999

Albany Court of Petty Sessions

Drive contrary to Learner’s Permit

Fine - $100.00

29.08.1999

02.09.1999

Albany Court of Petty Sessions

Driving Under the Influence

Fine - $800.00

Disqualified from Holding/Obtaining Drivers’ Licence for 6 months.

29.08.1999

02.09.1999

Albany Court of Petty Sessions

Unlicensed Vehicle

Fine - $100.00

17.12.1999

23.12.1999

Albany Court of Petty Sessions

No Motor Drivers’ Licence – Under Suspension

Fine $400.00

Disqualified from Holding/Obtaining Drivers’ Licence for 9 months, Cumulative.

16.06.2000

20.07.2000

Albany Court of Petty Sessions

No Motor Drivers Licence – Under Suspensio

Fine $1000.00

Disqualified from Holding/Obtaining Drivers’ Licence for 12 months, Cumulative.

29.06.2000

04.07.2000

Rockingham Court of Petty Sessions

Assault Common

Fine $500.00

13.05.2000

14.12.2000

Albany Court of Petty Sessions

Stealing

Fine $200.00

28.11.2002

02.12.2002

Rockingham Court of Petty Sessions

Driving Under the Influence

Fine $1500.00

Drivers’ Licence Cancelled and Disqualified for 2 Years.

23.04.2003

25.06.2003

Katoomba Local Court (NSW)

Wilful and Obscene exposure in/near public place/school

Fine $200.00

26.01.2004

09.08.2004

Rockingham Court of Petty Sessions

Damage

Fine $300.00

$260.00 Compensation to victim.

05.08.2004

10.08.2004

Mandurah Court of Petty Sessions

No Motor Drivers Licence – Under Suspension

Fine $1200.00

Drivers’ Licence Cancelled and Disqualified for 12 months, Cumulative.

05.08.2004

10.08.2004

Mandurah Court of Petty Sessions

Refuse To Supply or Provide False Name And Address

Fine $300.00

Drivers’ Licence Cancelled and Disqualified for 3 months, Mandatory.

05.08.2004

10.08.2004

Mandurah Court of Petty Sessions

Excess 0.05%

Fine $200.00

Drivers’ Licence Cancelled and Disqualified for 3 months, Mandatory.

29.08.2004

01.11.2004

Rockingham Court of Petty Sessions

Give False Personal Details to Police

$100.00

29.08.2004

01.11.2004

Rockingham Court of Petty Sessions

Unlawfully on Premises

$150.00

04.11.2004

24.11.2004

Mandurah Court of Petty Sessions

Driving Under The Influence

Imprisonment 12 months.

Drivers’ Licence Cancelled for Life.

04.11.2004

24.11.2006

Mandurah Court of Petty Sessions

No Motor Drivers Licence – Under Suspension

Imprisonment 12 months.

Drivers’ Licence cancelled and disqualified for 9 months Cumulative.

21.07.2005

22.09.2006

Perth District Court of Western Australia

Aggravated Burglary and Commit Offence in Dwelling

Imprisonment 2 years 8 months.

21.07.2005

22.09.2006

Perth District Court of Western Australia

Assault Occasioning Bodily Harm

Plea of Guilty, as above.

01.12.2005

04.10.2006

Perth Magistrates Court

Assault Occasioning Bodily Harm

Imprisonment 8 months - concurrent

08.07.2006

04.10.2006

Perth Magistrates Court

Excess 0.08%

Fine $1200.00

Drivers’ Licence Cancelled and Disqualified for 12 months - concurrent.

08.07.2006

04.10.2006

Perth Magistrates Court

No Motor Drivers Licence – Under Suspension

Imprisonment 8 months – Cumulative.

29.07.2006

04.12.2006

Fremantle Magistrates Court

Steal Motor Vehicle

Fine $600.00

29.07.2006

04.12.2006

Fremantle Magistrates Court

Steal Motor Vehicle

Fine $600.00

Drivers’ Licence Cancelled and Disqualified for 3 months - concurrent.

29.07.2006

04.12.2006

Fremantle Magistrates Court

Steal Motor Vehicle

Fine $600.00

Drivers’ Licence Cancelled and Disqualified for 3 months - concurrent.

03.08.2006

13.08.2007

Perth District Court of Western Australia

Assault Occasioning Bodily Harm

Imprisonment 17 months

01.05.2012

07.12.2012

Perth Magistrates Court

Breach of Protective Bail Conditions

Fine $100.00

22.06.2013

17.07.2013

Rockingham Magistrates Court

Disorderly behaviour in a police station

Fine $1200.00

22.06.2013

17.07.2013

Rockingham Magistrates Court

Disorderly behaviour in public

Fine $800.00

28.05.2015

09.10.2015

Mandurah Magistrates Court

Possess a Prohibited Drug (Cannabis)

Fine $500.00

22.01.2016

04.03.2016

Rockingham Magistrates Court

Possess a Prohibited Drug (Cannabis)

Fine $750.00

16.06.2017

21.10.2019

Perth Supreme Court of Western Australia

Steal Motor Vehicle

No Order Made.

16.06.2017

25.10.2019

Perth Supreme Court of Western Australia

Aggravated Armed Robbery

Imprisonment 4 years, Cumulative. From 08.10.2019

16.06.2017

25.10.2019

Perth Supreme Court of Western Australia

Deprivation of Liberty

Imprisonment 4 months, Cumulative. From 08.10.2019

14.04.2015

10.07.2020

Rockingham Magistrates Court

Assault Occasioning Bodily Harm

Imprisonment 6 months.

[43] Webb v Minister for Home Affairs [2020] FCA 831.

Date(s) of hearing:	26 and 31 July 2023
Advocate for the Applicant:	Mr Bill Tushingham
Solicitors for the Respondent:	Mr Ashley Burgess

Date of offence	Date of conviction	Court	Offence	Result
29.08.1999	02.09.1999	Albany Court of Petty Sessions	Drive contrary to Learner’s Permit	Fine - $100.00
29.08.1999	02.09.1999	Albany Court of Petty Sessions	Driving Under the Influence	Fine - $800.00 Disqualified from Holding/Obtaining Drivers’ Licence for 6 months.
29.08.1999	02.09.1999	Albany Court of Petty Sessions	Unlicensed Vehicle	Fine - $100.00
17.12.1999	23.12.1999	Albany Court of Petty Sessions	No Motor Drivers’ Licence – Under Suspension	Fine $400.00 Disqualified from Holding/Obtaining Drivers’ Licence for 9 months, Cumulative.
16.06.2000	20.07.2000	Albany Court of Petty Sessions	No Motor Drivers Licence – Under Suspensio	Fine $1000.00 Disqualified from Holding/Obtaining Drivers’ Licence for 12 months, Cumulative.
29.06.2000	04.07.2000	Rockingham Court of Petty Sessions	Assault Common	Fine $500.00
13.05.2000	14.12.2000	Albany Court of Petty Sessions	Stealing	Fine $200.00
28.11.2002	02.12.2002	Rockingham Court of Petty Sessions	Driving Under the Influence	Fine $1500.00 Drivers’ Licence Cancelled and Disqualified for 2 Years.
23.04.2003	25.06.2003	Katoomba Local Court (NSW)	Wilful and Obscene exposure in/near public place/school	Fine $200.00
26.01.2004	09.08.2004	Rockingham Court of Petty Sessions	Damage	Fine $300.00 $260.00 Compensation to victim.
05.08.2004	10.08.2004	Mandurah Court of Petty Sessions	No Motor Drivers Licence – Under Suspension	Fine $1200.00 Drivers’ Licence Cancelled and Disqualified for 12 months, Cumulative.
05.08.2004	10.08.2004	Mandurah Court of Petty Sessions	Refuse To Supply or Provide False Name And Address	Fine $300.00 Drivers’ Licence Cancelled and Disqualified for 3 months, Mandatory.
05.08.2004	10.08.2004	Mandurah Court of Petty Sessions	Excess 0.05%	Fine $200.00 Drivers’ Licence Cancelled and Disqualified for 3 months, Mandatory.
29.08.2004	01.11.2004	Rockingham Court of Petty Sessions	Give False Personal Details to Police	$100.00
29.08.2004	01.11.2004	Rockingham Court of Petty Sessions	Unlawfully on Premises	$150.00
04.11.2004	24.11.2004	Mandurah Court of Petty Sessions	Driving Under The Influence	Imprisonment 12 months. Drivers’ Licence Cancelled for Life.
04.11.2004	24.11.2006	Mandurah Court of Petty Sessions	No Motor Drivers Licence – Under Suspension	Imprisonment 12 months. Drivers’ Licence cancelled and disqualified for 9 months Cumulative.
21.07.2005	22.09.2006	Perth District Court of Western Australia	Aggravated Burglary and Commit Offence in Dwelling	Imprisonment 2 years 8 months.
21.07.2005	22.09.2006	Perth District Court of Western Australia	Assault Occasioning Bodily Harm	Plea of Guilty, as above.
01.12.2005	04.10.2006	Perth Magistrates Court	Assault Occasioning Bodily Harm	Imprisonment 8 months - concurrent
08.07.2006	04.10.2006	Perth Magistrates Court	Excess 0.08%	Fine $1200.00 Drivers’ Licence Cancelled and Disqualified for 12 months - concurrent.
08.07.2006	04.10.2006	Perth Magistrates Court	No Motor Drivers Licence – Under Suspension	Imprisonment 8 months – Cumulative.
29.07.2006	04.12.2006	Fremantle Magistrates Court	Steal Motor Vehicle	Fine $600.00
29.07.2006	04.12.2006	Fremantle Magistrates Court	Steal Motor Vehicle	Fine $600.00 Drivers’ Licence Cancelled and Disqualified for 3 months - concurrent.
29.07.2006	04.12.2006	Fremantle Magistrates Court	Steal Motor Vehicle	Fine $600.00 Drivers’ Licence Cancelled and Disqualified for 3 months - concurrent.
03.08.2006	13.08.2007	Perth District Court of Western Australia	Assault Occasioning Bodily Harm	Imprisonment 17 months
01.05.2012	07.12.2012	Perth Magistrates Court	Breach of Protective Bail Conditions	Fine $100.00
22.06.2013	17.07.2013	Rockingham Magistrates Court	Disorderly behaviour in a police station	Fine $1200.00
22.06.2013	17.07.2013	Rockingham Magistrates Court	Disorderly behaviour in public	Fine $800.00
28.05.2015	09.10.2015	Mandurah Magistrates Court	Possess a Prohibited Drug (Cannabis)	Fine $500.00
22.01.2016	04.03.2016	Rockingham Magistrates Court	Possess a Prohibited Drug (Cannabis)	Fine $750.00
16.06.2017	21.10.2019	Perth Supreme Court of Western Australia	Steal Motor Vehicle	No Order Made.
16.06.2017	25.10.2019	Perth Supreme Court of Western Australia	Aggravated Armed Robbery	Imprisonment 4 years, Cumulative. From 08.10.2019
16.06.2017	25.10.2019	Perth Supreme Court of Western Australia	Deprivation of Liberty	Imprisonment 4 months, Cumulative. From 08.10.2019
14.04.2015	10.07.2020	Rockingham Magistrates Court	Assault Occasioning Bodily Harm	Imprisonment 6 months.