TXYJ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

TXYJ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4308 (16 August 2022)
Division:GENERAL DIVISION
File Number: 2022/4897
Re:TXYJ
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member R Bellamy
Member D Cosgrave

Date of Decision: 16 August 2022
Date of Written Reasons 19 September 2022
Place:Brisbane

The decision under review is set aside and substituted such that this Tribunal does not exercise the power conferred by s 501(2) of the Migration Act 1958 (Cth) to cancel the Applicant’s visa.
………………[SGD]……………………. …………………[SGD]………………….
Senior Member R Bellamy Member D Cosgrave
CATCHWORDS
MIGRATION – Cancellation of Applicant’s visa under s501(2) of the Migration Act 1958 - where Applicant does not pass the character test – whether discretion not to exercise the power to cancel the subject visa – consideration of Ministerial Direction No. 90 – uncharacteristic serious offending – subsequent good behaviour in prison and the community – significant contribution to Australian community – decision under review set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Jagroop and Minister for Immigration and Border Protection (2016) 241 FCR 461
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member R Bellamy
Member D Cosgrave
19 September 2022
Contents
CATCHWORDS
Legislation
Cases
REASONS FOR DECISION
Introduction
BACKGROUND AND OFFENDING
PROTECTION OF THE AUSTRALIAN COMMUNITY
The Nature and Seriousness of the Applicant’s Conduct to Date
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
FAMILY VIOLENCE
THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
OTHER CONSIDERATIONS
International non-refoulement obligations
Extent of Impediments if Removed
Impact on victims
Links to the Australian Community
Impact on Australian business interests
CONCLUSION
Decision
Introduction

The Applicant is a 53 year old citizen of New Zealand who moved to Australia on a permanent basis in 2004 when he was 35 years old. The most recent visa held by him was a Class TY Subclass 444 Special Category (Temporary) visa (“visa”).
On 20 February 2020, the Respondent issued the Applicant with a Notice of Intention to Consider Cancellation of his visa on the basis that the Respondent reasonably suspected he did not pass the character test.[1] The Applicant provided a submission dated 2 June 2020 giving reasons why his visa should not be cancelled. On 27 April 2022, the Respondent cancelled the Applicant’s visa under s501(2) of the Migration Act 1958 (Cth) (“the Act”) .[2] The Applicant was notified of the Respondent’s decision on 8 June 2022.[3] The Applicant applied to the Tribunal for review of that decision on 14 June 2022. The Tribunal has jurisdiction to review the decision pursuant to s 500(1)(b) of the Act. The hearing of this matter took place on 15 and 16 August 2022. The Applicant, his mother, his sister and his partner gave evidence in person. Their testimony was candid, did not seem to be tailored to assist the Applicant, and they gave consistent evidence. We had no difficult accepting their evidence. Professor James Freeman, forensic psychologist, Dr Bernadette Moore, clinical psychologist, and two of the Applicant’s friends gave evidence by telephone. We also found their evidence generally reliable.
[1]     Exhibit G1, G10 page 83 to 87.
[2]     Exhibit G1, G3 page 17.
[3]     Exhibit G1, G3 pages 13 to 16.
Section 501(2) of the Act provides that:
The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
In September 2018 the Applicant was sentenced to a term of five years imprisonment. Accordingly, the Applicant does not pass the character test and the discretion in section 501(2) of the Act to cancel the Applicant’s visa is enlivened. The question for the Tribunal is whether that discretion should be exercised. In making that decision, the Tribunal is bound to follow Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”).[4] Paragraph 5.2 of the Direction contains several principles that must guide a decision maker’s application of Part 2 of the Direction which deals with exercising the discretion to refuse or cancel a visa or to revoke the mandatory cancellation of a visa.
[4] See s 499(2A) of the Act.
Those principles may be briefly stated 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 measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must consider the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must consider. They are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be considered. They are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
BACKGROUND and offending
Some matters of import in the Applicant’s background follow. He was born in New Zealand. When he was very young his mother became a single mother and could not cope so she temporarily placed him in foster care. Upon discovering that he was being physically abused in foster care, she took him back into her care. He was thereafter raised by his mother and her new partner, whom he regards as his father. In his childhood he was put on Ritalin (a prescribed amphetamine) and he thinks this led to him using amphetamine later in life. Due to his realisation of his homosexuality at around the age of 13 and his parents’ religious beliefs there was a period of estrangement. The Applicant exhibited some emotional instability in New Zealand, for example he attempted suicide following the breakdown of a relationship.
The Applicant permanently relocated to Australia from New Zealand in 2004 when he was aged 35. He does not have a criminal history in New Zealand. Until 2015, he did not have a criminal history in Australia. However, he had some contact with the police from 2012 onwards due to his domestic situation.
The Applicant applied for and was granted a Protection Order on 23 June 2012.[5] The application indicates that the police were called to a domestic situation on 23 June 2012 where they spoke with the Applicant. The application states that the Applicant and another person, whom we will refer to as “Mr M”, were involved in a same-sex relationship and they had lived together for approximately 10 years.
[5] Exhibit G1, G37 pages 203 to 205.
In completing the application, the Applicant indicated that he and Mr M were in a spousal relationship and resided together as a couple.
The Applicant told the police that Mr M:
·was currently on anti-psychotic drugs;
·was agitated and threatening the Applicant;
·had picked up their pet cat by the neck and held a knife in the other hand, threatening to kill their cat;
·had threatened to self-harm and that he was going to take 100 Panadol;
·had threatened to kill himself by driving his vehicle into a truck;
·had threatened to smash the Applicant’s car; and
·had smashed glass in the garage, suffering cuts as a result, while the Applicant was speaking with the Triple 0 operator.[6]
[6] Exhibit G1, G37 page 203.
The police arrived and found Mr M in the garage. He was very agitated and tried to flee. The Applicant told the police that Mr M had episodes approximately once per week for most of their 10 year relationship, that he was on antipsychotic medication but he did not take it as prescribed, and that he regularly threatened to damage property or self-harm. The Applicant said the threats of self-harm and damage to property were increasing. Police noted that the incidence of domestic violence was likely to continue as it has been happening for some years but that the Applicant had not contacted the police previously. The police also noted that the Applicant wanted to continue in the relationship.
The application stated that all the threats and intimidation in this episode were witnessed and confirmed by a flatmate (“Mr D’) who lived with them both. Mr D said Mr M got very agitated from time to time and overreacted with threats of violence or self-harm. Mr D had known Mr M for over 10 years.
A Temporary Protection Order[7] (“TPO”) was made for the Applicant’s protection on 4 September 2012. It was to continue until 6 November 2012. Another TPO was made on 6 November 2012 which was to continue until further order.[8] A Protection Order was made on 22 January 2013 and to continue until 22 January 2015.[9]
[7]     Exhibit G1, G38.
[8]     Exhibit G1, G39.
[9]     Exhibit G1, G40.
On 19 December 2014, Mr M was remanded in custody in relation to multiple offences against the police, mainly assaults. On 6 May 2015, he was sentenced to terms of imprisonment, the longest being 12 months, and immediately released on parole.[10]
[10] Exhibit R2, pages 1 to 2.
On 29 September 2015, the police were called to the Applicant’s home because the Applicant was threatening to self-harm. The police report describes him and Mr M as “ex partners” who still lived together. While the police were there, the Applicant held a knife to his own throat and threatened to pour petrol on himself. He threw various items such as a pot plant, skateboards, and glass vases over his fence, while the police were on the other side. The police managed to get him to drop the knife and were ultimately able to restrain him and take him to hospital. The police observed a great deal of damage to property. Mr M told the police that the Applicant had not threatened him. The Applicant’s parents were there and reported that the Applicant was suffering from depression and was under severe financial stress.
When the police later spoke with the Applicant, he was apologetic, he talked about his financial stress, and he said he snapped.[11] A Protection Order was subsequently made on 24 November 2015 prohibiting the Applicant from committing domestic violence against Mr M to remain in effect until 24 November 2017.[12]
[11] Exhibit G1, G8 pages 58 to 65.
[12] Exhibit G1, G7 pages 55 to 56.
On 24 February 2016, the police executed a search warrant at the Applicant’s home in relation to unlawful possession of a firearm. During the search, the police found cannabis plants and seedlings. The Applicant admitted to producing and possessing cannabis. He said he was growing the marijuana plants to give them to a friend with Cerebral Palsy for her therapeutic use, and that he had not yet given any to her.[13] The learned Magistrate who sentenced the Applicant on 27 April 2016 for producing dangerous drugs and possessing dangerous drugs appears to have accepted the Applicant’s explanation, describing his offending as “somewhat of a misguided assist or of alternative or self-medication”. The Applicant was given a two year good behaviour bond and no conviction was recorded.[14]
[13] Exhibit R2, R1, pages 9 and 12.
[14] Exhibit G1, G6, pages 53 to 54.
On 6 November 2016, while subject to the good behaviour bond and the Protection Order, the Applicant committed the offences that resulted in his visa being cancelled.
A Schedule of Facts that was provided to the court for the purpose of sentencing the Applicant sets out the details of the offending. It indicates that the Applicant and Mr M had had been in a volatile relationship since about 2005, that Mr M was a heavy drinker which caused issues in their relationship, and that Mr M suffered from borderline personality disorder, depression, posttraumatic stress disorder and obsessive-compulsive disorder. Further Mr M was involved in a serious pushbike accident, damaging his skull, in 2010 and he was subsequently diagnosed with a brain injury. Additionally, they were in a lot of debt and the relationship between them had broken down.
In the hearing, the Applicant said Mr M’s accident increased the severity of his mental health conditions, and led to him increasing his alcohol and substance abuse and becoming “a lot more volatile and a lot more violent”.[15] He said the romantic relationship with Mr M came to an end sometime after the accident although they continued to live together.[16]
[15] Transcript, page 7, lines 36 to 43.
[16] Transcript, page 6, lines 29 to 35.
According to the Schedule of Facts, Mr M and the Applicant argued about their financial situation and the financial pressure they were enduring. Mr M said he was leaving the Applicant. The Applicant began smashing things around the house and they both threw household items at each other. The Applicant went outside and returned with a 20kg bag of cow compost which he emptied on the hallway floor. He went outside again, returning with a fuel container which he put in the kitchen. He said “I'm going to set the house on fire. You'd better go”. He then swallowed a large amount of Valium tablets and said, “In 20 minutes I'II be dead. This is my last day. My Super will pay out the house and you'll be fine”. The Applicant went into the bedroom and locked the door.
Mr M called Mr D who came home and tried to speak to the Applicant from outside the house, through the window. Mr D could see the Applicant lying on the bed looking groggy. The Applicant told him to leave him alone and pointed a homemade gun at him. Mr D returned inside, told Mr M that the Applicant had pointed a gun at him and that he was leaving. Mr D packed some things and left the house.
Later that day the Applicant came out of the bedroom and told Mr M he wanted him out of the house. Mr M said he would be gone in two weeks, and they again argued. The Applicant went into the bedroom and came out with the homemade handgun which he pointed at Mr M. Mr M recalled the Applicant telling him previously that it was a very old gun that he purchased from another country, that it was real and that he had bullets for it. The Applicant fired the gun and the bullet hit the wall beside Mr M.
Mr M went into the laundry and called the police. He returned to the kitchen where the Applicant pushed a cupboard to the ground causing all the contents to fall out and smash on the ground. The Applicant threw a drill and a drill box at Mr M, but it missed. The police arrived and located Mr M in the lounge room, visibly upset.
A police officer shouted at the Applicant to drop whatever he had. The Applicant said:
“No. This is my last day of living. I have a gun and I'm going to shoot you. I have three guns. I have a handgun, I have a rifle and I have a shotgun. I want you to shoot me and if you don't shoot me, I will”.
Another officer shouted at the Applicant to drop the gun and took cover behind a wall. He drew his firearm, pointed it at the Applicant and told him to drop the gun. The Applicant replied, “No I want you to shoot me”. Police escorted Mr M out of the house to safety. Other police officers arrived and cordoned off the street. A short time later the Applicant appeared at the front window and said “I have a gun here and I'm going to shoot you” as he pointed the gun at officers. Pointing their firearms at the Applicant, the police told him to throw the gun out of the window. The Applicant replied “No, I'll f-cking shoot you” and “I don't f-cking care. If you don't shoot me, I will” and “You don't f-cking care. This is all that [Officer Munro’s] fault.… They're taking my house. I've lost everything. I'm going to kill myself”.
The Applicant moved away from the window and a few minutes later his gun went off. The Applicant then set fire to the house. He jumped out of the window at the side of the house. Officer Munro attempted to restrain the Applicant but the Applicant resisted. Another officer assisted Officer Munro to restrain the Applicant in handcuffs, ascertaining that he was not carrying a weapon.[17] The house became engulfed in flames.
[17] Exhibit R2, R3, pages 25 to 29.

The Applicant had five 0.22 calibre bullets in his pants pocket. The police located the firearm on the ground at the side of the house. As the Applicant had facial injuries, he was transported to hospital by ambulance. He told the treating ambulance officer he had tried to kill himself by ingesting a large amount of medication and by shooting himself, but he had jumped out of the window at the same time as pulling the trigger and had missed. He also stated that he set the house on fire and was trying to kill himself in the process.
Queensland Fire and Rescue Officers arrived and extinguished the fire. Most of the house was consumed by the fire including two cars that were parked underneath. When the ambulance arrived at the hospital the defendant pointed at Officer Munro and said:
“There's the c-nt there. You piece of shit. That's right you smirk all you like. You're a dead man. I'm coming for you. There's a bullet coming for you c-nt. I've made one gun, I'II make another. I'm going to find you, I'll find where you live. You're dead. You cost me $30,000 in legal bills you c-nt. I've lost my house because of you. You'll regret this. You wait. I'm going to find you. I'm going to kill you”.
On entering the hospital, the Applicant “hocked back” saliva in his mouth and positioned himself as if he was going to spit at Officer Munro who said, “Don't you f-cking do it.”
The Applicant laid back on the stretcher and was taken into the hospital. The facts recorded that Officer Munro had been involved in a previous prosecution of the Applicant that had resulted in him being acquitted at trial. There was no information about this other matter before the Tribunal and neither party mentioned it in the hearing.
The weapon the Applicant used was a homemade “zip” gun around 20cm long. Later that day the Applicant was medically cleared by hospital staff, and police arrested him. He protested and resisted being handcuffed. He was eventually wrestled to the ground by two police officers and handcuffed.[18] The police did not conduct an interview as the Applicant was in an emotional and agitated state.
[18] Exhibit R2, R3, pages 25 to 29.
The Applicant was remanded in custody and spent 691 days in pre-sentence custody.
The Applicant ultimately pleaded guilty to:
·     Arson (and was sentenced to five years’ imprisonment);
·     Serious assault on a police officer whilst pretending/is armed with a weapon (and was sentenced to three years’ imprisonment);
·     Without reasonable excuse by use of a weapon engage in conduct alone or with another likely to cause alarm to another – a domestic violence offence, and dangerous conduct with a weapon, threats and unlawful possession of weapons (and was sentenced to two years imprisonment for these); and
·     Contravention of domestic violence order (aggravated offence), and lacking authority required to possess explosives (and was convicted and not further punished).
All sentences were to be ordered to be served concurrently with the time the Applicant spent in remand counted as time served under the sentences. The Applicant was released immediately on parole in relation to one of prison sentences, and the balance of the other prison sentence was immediately suspended. Consequently, he was on parole and subject to a good behaviour period.
In passing sentence, the learned Judge accepted that the Applicant did not mean to fire the homemade gun but noted that it was possible because of the gun’s rudimentary nature.
His Honour accepted that during the Applicant’s lengthy time in pre-sentence custody, he had participated in many courses, including courses addressing substance abuse, and he had assisted others in the prison. His Honour said the evidence before him spoke volumes about the Applicant’s attempts at rehabilitation while on remand and that:
“it seems clear that [the Applicant is] a very, very much different person standing here in court today from the person who committed these serious offences in November of 2016.”
The leaned Judge acknowledged that the Applicant had some difficulties in his upbringing, including having spent some time in foster care, and that he had experienced difficulties with Attention Deficit Hyperactivity Disorder (“ADHD”), depression and anxiety. Further, the Applicant had some difficulty coming to terms with his sexuality in the context of what was a fairly strict religious household.
His Honour noted that both the Applicant and Mr M struggled with mental health issues which made for a fractious relationship, and he noted the financial pressure the Applicant was under. He accepted that the emotional and financial pressure the Applicant was experiencing in late 2016 contributed to his behaviour. However, His Honour stated that this did not excuse his behaviour, and while it explained to an extent why it happened, it did not render the Applicant any less blameless or less deserving of punishment, particularly having regard to the very serious nature of the offending.
His Honour found that, having regard to the Applicant’s rehabilitation, he was probably unlikely to commit similar offences again, but that regard had to be had to how seriously such conduct is viewed by the community.[19]
[19] Exhibit G1, G5, page 50 lines 15 to19.
The learned Judge pointed out that arson is an offence punishable by life imprisonment, and that the Applicant had destroyed a house and two cars, those things generally being the most significant assets people will ever own in their lives. His Honour also pointed out that the Applicant had put Mr M and himself at risk, and he put the police officers who came to try and protect the community at risk as well, and that those were all factors that meant the offending had to be regarded with extreme seriousness.
It is relevant to note His Honour’s findings regarding the Applicant’s relationship with Mr M, where he stated it:
“was a relationship which was adversely affected, regrettably, by the mental health issues under which both you and your then partner struggled.”[20]
[20] Exhibit G1, G5, page 47, lines 23 to 24.
His Honour observed that it was unlikely that the Applicant would commit offences like that again. He said:
“it seems to me that you don’t present a substantial risk of re-offending down the track”.[21]
[21] Exhibit G1, G5 page 50 lines 25 to 26.
In the hearing the Applicant explained that the gun had been made by a friend of his in New Zealand. They used it on a “possum run” that they used to do, where they would kill possums that had been trapped on people’s farms. It was put up to the possum’s head as it did not have a barrel. The Applicant bought the gun from his friend.[22] It was stored in a toolbox and that toolbox was packed up with the Applicant’s other belongings when he moved to Australia. He had never used it in Australia before the 6 November 2016 incident.[23]
[22] Transcript, page 5, lines 17 to 29.
[23] Transcript, page 6, lines 38 to 44.
The Applicant, his sister, and Mr D gave evidence about Mr M’s dysfunctional and anti-social behaviour in the years preceding that incident. His behaviour included threatening to kill himself, damaging and destroying property, and threatening to hurt and kill the Applicant’s pet cat, all on a regular basis. This sort of behaviour was not confined to their home, for example, Mr M had on one occasion caused a physical fight at a family gathering. Because of Mr M’s behaviour, he and the Applicant were not invited to social functions.
The Applicant gave evidence that the police had attended their home on so many occasions because of Mr M’s behaviour that he was well known to them and they knew about his situation. He thought he was on good terms with the police and that was why they did not shoot him during the stand-off.
The Applicant suffers from sleep apnoea. A sleep study showed that the Applicant was waking up three or four times every minute. He underwent surgery in 2016 (so he was not working leading up to the index offending) but despite that surgery he was not sleeping well immediately prior to 6 November 2016. He had also started using amphetamine partly because of drowsiness. According to Professor Freeman, that kind of sleep disturbance would be devastating with respect to chronic fatigue and inability to absorb random eye movement (“REM”) sleep (which is the phase in which the brain rests). He said it would impair a person’s ability to function properly.
Since being released from prison in September 2018, some four years ago, the Applicant has not re-offended.
For completeness we mention that the Applicant has an unremarkable history of traffic infringements,[24] which we do not regard as significant for present purposes.
[24] Exhibit R2, R3 page 17 to 18.
PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm because of criminal activity or other serious conduct by non-citizens. We should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to this Primary Consideration, paragraph 8.1(2) of the Direction requires the Tribunal to consider:
a)The nature and seriousness of the Applicant’s conduct to date; and
b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, we must have regard to the following relevant matters in paragraph 8.1.1 of Ministerial Direction 90:
(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)…;
(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…government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)…;
(iv)…;
(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)…;
(g)….
Paragraph 8.1.1(1)(a)(i)
This specific subparagraph looks for the commission of violent and/or sexual crimes. If an applicant has committed such offences, this sub-paragraph deems that they are to be viewed, “very seriously” by the Australian Government and the Australian community.
The Applicant was convicted on 28 September 2018 of, relevantly, “dangerous conduct with a weapon - domestic violence offence”, “Serious assault, while armed”, “serious assault” and “dangerous conduct with a weapon”. These all arise from the 6 November 2016 incident.
We note that arson and the subsequent destruction of property – in this matter, a house, two cars and personal items of the Applicant, Mr M and Mr D – is a serious matter punishable by life imprisonment.
We further note that on 29 September 2015 the Applicant made threats to harm himself and threw items over a fence while police were on the other side of the fence. It is not apparent whether the Applicant was aiming to hit police officers or merely trying to make them leave. He was not charged with any violent offences or any offences at all. We are not satisfied, on the evidence, that his act of throwing objects was an act of violence. The Applicant’s conduct did not cause Mr M to fear harm.
The 24 February 2016 dangerous drug production and possession incident, despite the Applicant’s altruistic and therapeutic motives, is serious when considered objectively. However, we will not place too great a significance on this incident given the Applicant’s treatment by the learned Magistrate dealing with the matter.
Paragraph 8.1.1(1)(a)(iii)
This particular sub-paragraph looks for acts of family violence, whether or not there was a conviction or sentence. Such acts are viewed, “very seriously” by the Australian Government and the Australian community.
The definition of “family violence” at paragraph 4(1) of the Direction refers to specific conduct perpetrated upon “a member of the person’s family”. Whether Mr M was a member of the Applicant’s family on 6 November 2016 was the subject of some contention, with some conflicting evidence and the Applicant having difficulty characterising and describing the nature of his relationship with Mr M after Mr M’s accident.
Neither “family” or “family member” are defined in the Direction. Section 46 of the Acts Interpretation Act 1901 (Cth) (“AIA”) provides, in substance, that unless a contrary intention appears, expressions in an instrument have the same meaning as in the Act or instrument which enables or authorises them.[25]
[25] See also Jagroop and Minister for Immigration and Border Protection (2016) 241 FCR 461, at para [22].
Section 5G of the Act Migration Act 1958 relevantly provides that the members of a person’s family are, “…taken to include […] (a) a de facto partner of the person; …”.
The definition does not specifically include a former de facto partner, however s 5G also states “This does not limit who is a member of a person’s family or relative of a person”, so a former de facto partner is not necessarily excluded. The Act itself does not address family violence. The provisions in the Act relating to family units are concerned with establishing who is a member of a person’s family at a particular point in time for migration purposes, for example for the purpose of an application for a protection visa on the basis of being a member of the “same family unit” of the primary applicant.
This is quite different to what the family violence provisions in the Direction are aimed at. It is well known that abuse within a spousal or de facto relationship does not necessarily stop once the relationship comes to an end, and that it sometimes escalates or occurs for the first time after the relationship ends. Accordingly, excluding violence that occurs in the context of a previous spousal or de facto relationship because there was no existing relationship at the time the violence occurred, would partially defeat the purpose of the family violence provisions in the Direction. We do not accept that this could be the intention of the Direction.
We note that the definition of “family violence” in the Family Law Act 1975 (Cth) (“FLA”) is identical to the definition of “family violence” in paragraph 4(1) of the Direction. This cannot be a coincidence. The FLA defines what a family member is for the purpose of family violence as defined in the FLA Act. Section 4(1AB) of the FLA provides as follows:
“For the purposes of:
…
(aa) section 4AB;
…
a person (the first person) is a member of the family of another person (the second person) if:
…
(d) the first person is or has been married to, or in a de facto relationship with, the second person;”
[Emphasis added].
Section 4AA of the FLA defines the criteria that describe a de facto relationship. Relevantly the criteria include that:
·     having regard to all the circumstances of their relationship, the persons have a relationship as a couple living together on a genuine domestic basis;
·     a de facto relationship can exist between two persons of different sexes and between two persons of the same sex; and
·     a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
The FLA definitions of family member and de facto partner are expressed to apply for the purposes of the FLA Act. We have no mandate to apply them in our application of the Direction. However, given they work together with the definition of “family violence” that is found in the FLA and that is the definition is the one used in the Direction, we think it is reasonable to have regard to these definitions.
We consider that the following facts are relevant:
· the Applicant and Mr M began a relationship in 2005,[26] and commenced living together in around 2008/2009 Mr D also lived with them from this time.[27] They each had their own bedroom and that arrangement never changed.
[26] Exhibit G1, G11, page 95, para [51].
[27]    Transcript page 35.
·     the Applicant, when applying for a Protection Order on 23 June 2012, stated that he and Mr M were in a spousal relationship and that they resided together as a couple.
·     at the time of that application, the police noted that the Applicant wanted to continue in the relationship with Mr M.
·     in 2012, Mr M suffered significant brain injuries as a result of a bicycle accident, leading to worse substance abuse, an increase in violent behaviour, and the end of the “romantic” relationship between him and the Applicant.
·     according to the Applicant, “for all intents and purposes, we were still in a relationship” and they continued to live together.[28]
·     the Applicant commenced an intimate relationship with Mr D in 2013, and Mr M did not take exception to that, his relationship with Mr M being “non-existent” at that time.[29]
·     however, the Applicant said he and Mr M ended their relationship around September 2014 when Mr M “left and moved in with another woman” before he was incarcerated. Mr M subsequently moved back in May 2015 after he was released.[30]
·     the police report describing the 29 September 2015 incident described the Applicant and Mr M as “ex-partners and have known each other for 10 years. These parties still reside together ...”.
·     the sentencing Judge observed on 28 September 2018 that at the time of the 6 November 2016 incident the Applicant was in a relationship with Mr M, albeit one that “had, in effect, irretrievably broken down, though perhaps you did not both realise it.[31]”
·     as referred to earlier, one of the offences the Applicant was convicted of, arising from the events of 6 November 2016, was “Dangerous conduct with a weapon - domestic violence offence”
[Emphasis added]
[28]    Exhibit G1, G11, page 97, para [58] and Transcript, page 7, line 31.
[29]    Transcript page 12 lines 9 to 19.
[30]    Transcript, page 36, lines 40 to 46.
[31]    Exhibit G1, G5, page 47, lines 23 to 26.
This is not clear cut, but the weight of the evidence indicates that the Applicant and Mr M were no longer in a de facto relationship as at 6 November 2016, particularly having regard to the fact that the romantic relationship ended after Mr M’s behaviour changed in 2012, the Applicant and Mr D commenced an intimate relationship in 2013 without any objection from Mr M, and Mr M left the home to pursue a relationship with someone else in 2014. We are of the view that even though the de facto relationship was over at that time, Mr M was nevertheless a member of the Applicant’s family, taking into account the following matters:
·     they were living together;
·     there was some ambiguity about the nature of their relationship, for example the Applicant’s sister referred to the Applicant feeling as though he had to look after Mr M and that he could not leave “him or their relationship”; and
·     following from the previous point, the Applicant felt a sense of obligation towards Mr M, it appears that Mr M expected to be looked after and felt entitled to live with the Applicant, and this appears to have been based on their history together which included a longstanding de facto relationship.

The Direction defines “family violence” as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful”. In the November 2016 incident, the Applicant did engage in threatening and other conduct that caused Mr M to be fearful. Accordingly, he committed acts of family violence on that occasion. Mr M was not fearful as a result of the September 2015 incident and the Applicant did not engage in any behaviour that otherwise meets the definition of family violence. This incident did not involve family violence.
Paragraph 8.1.1(1)(b)(ii)
This sub-paragraph looks for the commission of any offence against what is described as, “vulnerable members of the community such as the elderly and the disabled, or government representatives or officials…in the performance of their duties”.
The Applicant committed offences against police officers in the performance of their duties. Those included a serious assault whilst armed, an act of dangerous conduct with a weapon, and threats to shoot and spit at police. Assaulting and threatening to assault and kill police officers in the performance of their duty strikes at the heart of the criminal justice system. An attack against police in the proper performance of their duties is an indirect attack on the community that they protect. Consequently, the nature and seriousness of the Applicant’s unlawful conduct here must be treated as serious and given weight as such.
Paragraph 8.1.1(1)(c)
In considering this sub-paragraph, we note that the sentences imposed for the Applicant for the index offending were substantial and the learned sentencing Judge made it plain that those sentences were warranted given the “extreme seriousness” of the offending.
Paragraph 8.1.1(1)(d)
This sub-paragraph addresses two specific aspects of a person’s offending: its frequency and/or whether there is any trend of increasing seriousness.
The Applicant committed some 10 offences between 24 February 2016 and 6 November 2016 in two separate offending episodes. Apart from minor traffic offences before 24 February 2016, there were no prior offences, nor have there been any since. In that context, we do not consider two offending episodes to constitute frequent offending. The November 2016 offending was more serious than the cannabis offences but given we are only dealing with two offending episodes it is not apt to describe the difference in seriousness as a trend.
Paragraph 8.1.1(1)(e)
We have not identified any cumulative effects of the Applicant’s repeated offending.
Given the matters considered above, the Applicant’s offending is very serious.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) of the Direction provides that, in considering the risk to the Australian community, the Tribunal should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm declines as the seriousness of the potential harm increases. Some conduct and its consequential harm, if repeated, is so serious that any risk that it may be repeated may be unacceptable.
Sub-paragraph 8.1.2(2)(a) requires an assessment of the nature of harm to an individual or the Australian community were the Applicant to engage in further criminal or other serious conduct.
The Applicant’s offending history has an unusual and aberrant pattern, being largely restricted to two specific dates.
It can be characterised as consisting of the production and possession of cannabis in February 2016, followed by seven serious offences arising out of an incident that occurred on 6 November 2016. The Applicant produced cannabis for a specific, isolated purpose and we do not consider there to be any risk of him doing that again.
On 6 November 2016, the Applicant:
·he took possession of a homemade firearm and threatened Mr M with it, subsequently discharging the firearm into a wall of the house;
·while attempting to order Mr M out of the house, the Applicant also threatened police officers and Mr D;
·the Applicant then set a fire which subsequently destroyed the property and two cars as well as personal property belonging to himself, Mr M and Mr D; and
·at the hospital following the incident, the Applicant again threatened a police officer.
If the Applicant engaged in further criminal or other serious conduct similar to what occurred on 6 November 2016, it is reasonable to infer that the nature of harm would include psychological harm, potentially very serious physical harm, as well as serious destruction of property and financial loss. The nature of the potential harm to an individual or the Australian community is very serious.
Sub-paragraph 8.1.2(2)(a) requires an assessment of the likelihood of the Applicant engaging in further criminal or other serious conduct.
It is useful to first consider the context of the 6 November 2016 incident in making an assessment of this likelihood or risk. The following matters are relevant:
(a)the Applicant was not earning income and was not eligible for government income support. Mr M was in receipt of government income support. The Applicant’s financial stress was aggravated by his longstanding dyslexic issues with comprehending numbers. His family had previously assisted him to budget, but they had temporarily withdrawn their assistance while they dealt with their own struggles.[32] The Applicant was also distressed that Mr M continually spent money on alcohol rather than addressing household debts;[33]
(b)Mr M’s anti-social behaviour had resulted in diminished social interaction between the Applicant and his family and friends, creating a situation of increasing isolation for the Applicant;[34]
(c)Mr M’s behaviour led to repeated police visits to the property, but the Applicant felt that he was unsuccessful in getting the police to fully engage with Mr M’s conduct or to support and protect him.[35] Mr D’s evidence[36] indicated that Mr M’s conduct was a source of ongoing stress for the Applicant; and
(d)the Applicant stated that, despite having received surgery for his sleep apnoea, he was not sleeping well immediately prior to the 6 November 2016 incident as he had not yet acquired a CPAP machine.[37]
[32]    Transcript, page 13, lines 13 to 23; Exhibit G1, G11, page 97, para 60.
[33]    Exhibit G1, G26 page 16; Exhibit G1, G19, page 150.
[34]    Transcript, page 14, lines 29 to 37, page 34, lines 26 to 37.
[35]    Transcript, page 28, line 42; page 78, lines 46 to page 79, line 23; page 79, lines 34 to page 80, line 9.
[36]    Transcript, page 78, lines 18 to 23.
[37]    Transcript, page 43, lines 40 to 45.
The Applicant commenced therapy with a psychologist, Dr Moore, in October 2018 and at the date of the hearing she estimated that he had attended around 70 sessions with her. She provided two reports and gave evidence in the hearing.
In Dr Moore’s professional opinion, the applicant exhibited what are known as “Cluster B” personality traits. These are associated with borderline personality disorder and antisocial personality disorder. The traits she identified in the applicant were profound fear of abandonment, patterns of intense and unstable interpersonal relationships, impaired self‑image, difficulties with impulsivity, current suicidality, chronic feelings of emptiness, affective or mood instability and difficulties with regulation of anger. We note that there was unchallenged evidence that the applicant had tried to commit suicide 17 times. Dr Moore said that around 65 to 70 percent of people with borderline personality disorder attempt suicide.
We found Dr Moore’s diagnosis of antisocial personality disorder - which was based on perceived failure to conform to social norms and respect lawful behaviours, a propensity to impulsivity, irritability, aggressiveness, and reckless disregard for the safety of self and others - hard to reconcile with the rest of the evidence. When queried about this, Dr Moore referred to the Applicant’s volatile relationship with Mr M and his limited ability to get out of it without things escalating as they did. The Tribunal had the benefit of hearing from Mr D and the Applicant’s sister, who were perhaps more prepared to give candid evidence about Mr M’s behaviour than the Applicant was. We were also able to probe the Applicant about Mr M which resulted in a fuller picture of Mr M’s aggressive, coercive behaviour than the Applicant had previously disclosed. We are satisfied that the volatility in that relationship was overwhelmingly due to Mr M’s behaviour. On the information before us, the applicant has not had volatile relationships with anyone else in his life, and he managed to survive gaol without becoming involved in volatility or breaking custodial rules.
We consider Dr Moore’s diagnosis of borderline personality disorder, which accords with the balance of the evidence, reliable but we are cautious about her diagnosis of antisocial personality disorder which seems to be based on an understanding of the relationship between the Applicant and Mr M that is not accurate.
In Dr Moore’s opinion, the factors that contributed to the index offending were the Applicant’s foundational instability due to Cluster B personality traits (specifically reactivity, impulsivity, disregard to safety) along with the psychosocial stressors of the relationship with Mr M - which had moved from partners to a carer relationship and was quite volatile - and their financial problems, along with the Applicant’s use of amphetamine at the time.
Dr Moore indicated that Cluster B traits can be managed. She referred to a longitudinal study that showed remission rates of around 91 per cent over a 10‑year period with treatment. She indicated that the prognosis is good with patients who are properly diagnosed, properly treated, and who engage meaningfully and honestly and commit to the long‑term nature of that process. She considered that the Applicant was a person who properly and meaningfully engaged with treatment.
Dr Moore opined that the cancellation of the Applicant’s visa had been an enormously stressful event for him and the fact that he had controlled the impulses to react in maladaptive ways showed he had progressed. She indicated that it was also positive that despite Mr D’s relatively recent HIV diagnosis (he had contracted it when the Applicant was in prison) causing the Applicant to experience initial fear, anxiety, and a feeling of being overwhelmed, he had tried to process those feelings in an adaptive way and move forward. We observe that the Applicant in fact did behave in an adaptive way and move forward, taking some time away from the relationship and later reconciling.
The catalysts for the decline in the Applicant’s mental health in the past have been breakdowns in his relationships and financial stress, which are unfortunately part of life. On the basis of Dr Moore’s evidence, the Applicant appears much better placed now to deal with stressors and emotional hardship.
The Applicant has been living in the wider Australian community since September 2018. He has not committed any further offences, and he has created a strong, layered and supportive risk management and risk mitigation framework around himself to address the risk of recidivist behaviour on his part.
Those risk management factors are:[38]
·The Applicant’s insight: The Applicant has accepted responsibility for all his criminal conduct and other serious conduct,[39] and the impact on others. He apologised to the police involved in the 6 November 2016 incident that night.[40]
·His acceptance of responsibility: his evidence demonstrates an understanding of the gravity of the events of 6 November 2016. He did not seek to minimise the seriousness of his offending or blame anyone else. Prior to that date, he had already demonstrated a preparedness to admit mistakes and hold himself accountable: after falling asleep at the wheel of a car with child passengers due to sleep apnoea, he reported the incident to his then employer and took himself off all his shifts.[41]
·His management of his mental health issues: since his release from custody, the Applicant has been diagnosed with some mental health issues. He was asked how the Tribunal could be confident that if his current relationship were to deteriorate or if he were to be in a relationship involving dysfunctional behaviour, he would not again allow himself to be abused and end up wanting to kill himself or setting fire to the house. He said he now has an understanding of what his mental health issues are and how they affect him. He knows his triggers and the signs when they are starting to occur, and he has plans in place to deal with that. He understands now why he has previously responded the way he has to situations. He understands why he has suicidal ideation, and he suffered from that a lot when he was released from prison, but therapy has helped him and that has lessened.[42] He said he would now handle the situation leading to the incident in November 2016 differently, including that he would seek professional help and reach out to his family.[43] Following a psychiatric diagnosis upon arrival at the Arthur Gorrie correctional facility, the Applicant was placed on a regime of Effexor, sodium valproate and Antenex intended to stabilise his moods and reduce anxiety. His treating general practitioner stated that the Applicant complies with this medication regime.[44]
·The Applicant’s sleep apnoea: the Applicant now has a CPAP machine[45] to improve his sleep.
·Income: the Applicant is in paid employment, albeit presently on workers’ compensation. His partner, Mr D, monitors the payment of their bills.[46]
·Stress management: the Applicant has devised and implemented a series of strategies involving a breathing technique, tapping, walking his emotional support dogs, gardening, calling Mr D and the Applicant’s family and visiting a gym.[47]
[38]    Transcript, page 95, lines 1 to 18.
[39]    Transcript, page 15, lines 21 to 22.
[40]    Exhibit G1, G28, page 180. He also apologized in writing much later although this seems like too little too late to be of any benefit to the police involved.
[41]    Transcript, page 12, lines 24 to 28.
[42]    Transcript, page 44, lines 34-39; page 46, lines 34 to43.
[43]    Transcript, page 15, lines 25 to32.
[44]    Exhibit G1, G32, page 192.
[45]    Transcript, page 44, line 2.
[46]    Transcript, page 85, lines 6 to 10.
[47]    Transcript, page 17, lines 26 to 47.
The risk mitigation factors include:
·Fortnightly appointments with a psychologist since 2018.[48]
·An effective relationship with his general practitioner.[49]
·The Applicant has not been in contact with Mr M since the offending.[50]
·His relationship with Mr D appears balanced, respectful, aligned and positive.
·His relationships with his parents and sister are now close and supportive.[51]
·His relationship with his adoptive sister, “Child A”, appears mutually supportive.[52]
·From the evidence of “Ms A”, formerly a Pastor of a local church, and “Mr O”, manager of “Community Centre A”, the Applicant has created a strong social network within his community.
[48]    Exhibit G1, G27, page 177, G29, page 186; Transcript, page 18, line 4 to page 19, line 24.
[49]    Transcript, page 19, lines 34 to 45; Transcript, page 85, lines 43 to 45.
[50]   Exhibit G1, G11, page 98.
[51]    Transcript, pages 32 to 40.
[52]    Transcript, page 22, line 38 to page 23, line 15; Exhibit G1, G11, page 103 to 104.
A historic risk management factor comes from the formal rehabilitative work the Applicant undertook while in custody. The Applicant spent 691 days on remand before being released to court ordered parole. During his custodial episode, he:
·supported other prisoners as an unpaid carer;[53]
·completed a range of interventions e.g., Buddy Mentoring Program, Community Passport Program, CHOICES – Recovery from Substance Abuse, Lives Lived Well, Goal Setting Program, Foster Dog Carer Program etc;
·did not record any breaches or incidents; and
·successfully completed the parole order while residing at [location redacted].
[53] Exhibit G1, G9, page 70.
Further for a period after his release, he attended counselling and group therapy sessions regarding his mental health.[54]
[54] Exhibit G1, G33, page 193.
The effectiveness of the Applicant’s risk management and risk mitigation framework is evidenced by comparing his maladaptive reactions and actions in September 2015 (when, conspicuously, he failed to take any subsequent remedial action) and on 6 November 2016 to his more adaptive and positive approach to dealing both with the discovery by him and Mr D that Mr D was HIV positive,[55] and his visa cancellation,[56] and the stress resulting from both of these situations.
[55] Transcript, page 20, line 42 to page 21, line 9; page 55, line 31 to page 56, line 8; page 86, line 38; page 87, line 35.
[56] Transcript, page 19, line 37 to line 40; page 95, lines 30 to 37.
The Applicant’s conduct while in custody is also useful in assessing the likelihood of the Applicant engaging in further criminal or other serious conduct. Notably:
·Prison staff consistently described him as polite, respectful and compliant.
·He consistently did more than asked, such as cooking desserts for the other prisoners,[57] and assisting in meal preparation during lockdown.[58]
·On 22 May 2017 he prevented another prisoner from causing further self-harm.[59] and
·On 9 August 2017, he assisted prison officers to clean up after another prisoner destroyed a large amount of property, including glass windows. He did so voluntarily and without being requested to do so and without any prospect of individual gain.[60]
[57]    Exhibit G1, G9, page 71.
[58]    Exhibit G1, G9, page 73.
[59]    Exhibit G1, G9, page 74.
[60]    Exhibit G1, G9, page 77.
Professor Freeman administered a series of actuarial risk assessment tools and assessed the Applicant as a low risk of recidivism in his 5 May 2020 report, affirming this assessment in his 11 April 2022 report.
The sum of the evidence – which includes significant expert evidence from Dr Moore and Professor Freeman – regarding the Applicant’s recidivist risk suggests that the Applicant’s approach to rehabilitation was and remains substantive, sustained, focused, formal and successful and that his recidivist risk is low.
We are cognisant that the Applicant had engaged in some drug use in New Zealand and that he was using amphetamine for a few weeks prior to the November 2016 offending. While Dr Moore said the Applicant described a history of “long term” amphetamine use to her, the Applicant’s evidence indicated that his drug use in New Zealand was limited and stemmed from him having been on prescribed Ritalin in his teens. There is no history of drug related offending in New Zealand, the Applicant was not dependent on drugs prior to the offences, there were other strong contributing factors to the offending, and he has not taken any drugs since November 2016. We are not concerned that the Applicant would engage in drug related crime in future.
We find the risk of the Applicant engaging in further conduct of the kind he previously engaged in to be very low.
Overall, due to the nature and seriousness of the Applicant’s offending, Primary Consideration 1 must carry significant weight in favour of cancelling the Applicant’s visa, although our assessment of paragraph 8.1.2(2) - that the Applicant is of very low risk of recidivism - does not increase that weight.
FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.      the extent to which the person accepts responsibility for their family violence related conduct;
ii.     the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.    efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.

We refer to our finding in our discussion in relation to Primary Consideration 1 above that the offending on 6 November 2016 did involve family violence. All but one of the matters that this Primary Consideration requires us to address have been addressed in our application of Primary Consideration 1. As to the remaining matter, the Applicant was not formally warned, or otherwise made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence before he committed any of the acts of family violence.
Family violence is particularly harmful to individuals, family units and the community. It damages the emotional bonds in partners and families that should be supportive and protective. It causes long term damage and dysfunction in victims and those who witness it. Family violence occurs in what should be the safety of a familial relationship, and often in what should be the sanctuary of the family home. There is a betrayal of trust involved. The victim’s sense of security in the places and situations where they should feel most secure is compromised. By devoting a separate mandatory consideration to family violence, in circumstances where violent conduct and acts of family violence must also be taken into account under Primary Consideration 1, the government has indicated that further weight should be allocated where the violence was family violence.
Conclusion: Primary Consideration 2
Primary Consideration 2 adds to the weight that we apply in favour of cancelling of the Applicant’s visa.
THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8(3) of the Direction compels a decision-maker to consider the best interests of a minor child in Australia. Under paragraph 8.3(1), we must determine whether non-revocation under section 501CA is or is not in the best interests of a child affected by the decision.
The Direction sets out several factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     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);
·     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;
·     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;
·     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;
·     whether there are other persons who already fulfil a parental role in relation to the child; and
·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
The Applicant claims that the best interests of a child (“Child A”) who is under the guardianship of the Applicant’s parents will be affected by the decision. He further claims that another child (“Child B”) who is under the guardianship of his sister will be also affected by the decision.
Child A is now 15. She was fostered by the Applicant's parents when she was 4 days old and the Applicant's parents became her legal guardians when she was 4 years old.
Child A has special needs involving autism spectrum disorder, mild intellectual impairment and high anxiety. She has undergone corrective surgery to her legs and feet that restricted her to a wheelchair for some time. She will undergo a further operation in future to remove the corrective metal pins and bolts from her legs.
The material before the Tribunal indicates that the Applicant's relationship with Child A is a close and highly supportive one.
Prior to the Applicant’s incarceration in late 2016, the Applicant’s involvement in her care and upbringing simply involved regular social visits.[61] Since the Applicant’s release from custody, this has changed with Child A now spending more time with the Applicant and Mr D. This is characterised at present as ‘pizza night’ on Sunday nights,[62] and providing some respite for the Applicant’s parents.
[61] Transcript, page 38, lines 5 to 14.
[62] Transcript, page 38, lines 25 to 35; page 23, lines 21 to 30.
In a Statutory Declaration dated April 2020, the Applicant’s parents stated that:
“[The Applicant] has already demonstrated his commitment to [Child A] by taking her to the movies and live shows and caring for her during our brief absence if required. If [the Applicant] was unable to remain living in Australia this would severely impact [Child A]’s ongoing wellbeing and greatly increase her anxiety. She would not be able to visit New Zealand alone due to her disability and high needs. Part of her disability is being unable to reason from “cause to effect” – “Stranger Danger”. [Child A] understands Stranger Danger, but is unable to apply her understanding to herself and actual situations but would instead proceed to talk to a stranger because she wants to. [Child A]’s biological mother suffers from mental health problems and has in the last couple of years chosen regularly to live homeless. She has also chosen in recent years to disassociate herself from [Child A] and from having visits with her. This is had a huge negative impact on [Child A] and we would not like to see this happen again if [the Applicant] was not able to be a vital part of [Child A]’s life.”[63]
[63] Exhibit G1, G14, pages 133 to134; Transcript page 61, lines 15 to 31.
In a letter dated October 2021 the Applicant’s parents state that:
“[Child A] has always enjoyed spending time with [the Applicant], and since she was a little girl she has considered him to be her big brother, and likewise [the Applicant] treats her and calls her his little sister. This relationship is very important to [Child A], as children with ASD find it very hard to form close relationships.”[64]
[64] Exhibit G1, G20, page 153 to 154.
The Applicant’s parents further state that:
“Only a few weeks ago we had a situation with [Child A]’s NDIS funding which meant that some of her supports needed to be put on hold - this included her twice weekly gym visits. [the Applicant] set this up for [Child A] several months ago due to her slow recovery and ongoing difficulties with walking, and [Child A] loves going there on Tuesday and Thursday mornings before school. As soon as [the Applicant] heard that [Child A] could not continue there until the NDIS funding was sorted out [the Applicant] went straight to the gym and arranged to pay for [Child A] to continue.
As a result of the time that [the Applicant] spends with [Child A] going for walks and bike rides, spending time going to dinner and the movies, we also benefit as an older couple with a young woman who has a disability. It can be hard and tiring work at times and we value the respite we get while [Child A] is out with [the Applicant].
Although [Child A] still requires further surgery early next year to remove the rods and pins from her legs we know that [the Applicant] will be will again be there to support her.
It is our goal once [Child A] has full mobility again and can climb stairs that she can start having sleepovers at [the Applicant’s]. This is something that she has been looking forward to for a long time and also that [the Applicant] has been planning for an equally long time.
As we get older [the Applicant’s] involvement in [Child A]’s life is going to be increasingly important to us and our abilities as older carers. There will be more things that [Child A] will want to try and do that would be too difficult for us….
As [the Applicant] is a chef we are particularly excited that he will be able to teach [Child A] basic cooking skills, as it is always on our minds how important it will be for [Child A] as she gets older and more independent that she has these skills to take with her into her life. She will also know that she has an older brother to turn to for future support.”
One consequence of Child A’s operation was that the Applicant was required to help lift Child A in and out of vehicles and assist with her mobility as Child A is too heavy for his parents to manage this.[65]
[65] Transcript, page 23, lines 32 to 35.
Evidence from the Applicant's mother is that Child A is significantly dependent on the practical and emotional support that the Applicant provides to her.
Based on the Applicant’s mother’s evidence, Child A and the Applicant enjoy a close, mutually supportive relationship.[66] The Applicant’s mother stated that:
“… [Child A] sees [the Applicant], not as a support person that gets paid. He - and he will invest time on her because he chooses to and she knows that. She wouldn’t have always known that but she does not - now at her age because her support people she’d say “Yes, but they get paid to do it”, you know. She may like them but that’s what’s she’ll say, “Yes, but that’s their job. They get paid to do it.” [67]
[66] Transcript, page 57, line 46 to page 62, line 13.
[67] Transcript, page 62, lines 20 to 24.
Specific evidence was given of how the Applicant has helped Child A, including accommodating her on an overnight basis, taking her on day outings, assisting with her NDIS-funded social activities, talking with the Applicant's parents about managing Child A’s challenging behaviours, as well as transporting her to and from hospital and medical treatments.[68]
[68] Transcript, page 57, lines 1 to 23.
There was no evidence before the Tribunal that Child A has been, or is at risk of being, subject to or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way or that Child A has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.
The Applicant’s parents are in their late seventies. There is a strong likelihood that the Applicant and his current partner will be required to take on more of the care that Child A requires.
Child B is fostered by the Applicant’s sister. She is 14 years old.
The Applicant’s sister stated that the Applicant has a positive and supportive relationship with Child B, spends time with Child B at regular family gatherings and that she considers the Applicant to be Child B’s uncle.[69] However, that appears to be the extent of the relationship and there is no suggestion that this would change. The Applicant’s sister already fulfils a parental role in respect of Child B.
[69] Transcript, page 102, lines 12 to 14.
There was no evidence before the Tribunal that Child B has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way or that Child B has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.
Considering the best interests of Child A and Child B cumulatively, this Primary Consideration weighs very substantially against cancelling the Applicant’s visa.
THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
Paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. It further stipulates that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.
Paragraph 8.4(2) of the Direction directs that a 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 are 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 certain conduct, in Australia or elsewhere, that includes:
·acts of family violence
·commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
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.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185.
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
·The Applicant permanently relocated to Australia when he was 35. He is now 53.
·The Applicant committed his first offence in Australia in February 2016, 12 years after moving to Australia and he engaged in his second, and only other, offending episode in November 2016, nine months later.
·The offences he committed include serious offences, especially the ones that involved family violence and offences against police officers in the performance of their duties.
·In relation to the drug offence in February 2016 the Applicant was motivated by a genuine concern to assist and help alleviate a friend’s pain and discomfort.
·The background to the offences on 6 November 2016 involved significant financial stress in the context of the Applicant having been the victim of threatening, volatile and coercive behaviour from Mr M over a lengthy period. The Applicant also suffered from sleep apnoea at the time which would have impaired his ability to cope with those stressors.
· Whilst there is a risk that the Applicant will re-offend, the Tribunal is of the view that this risk is low and well-managed and mitigated.
Given the seriousness of the offending this Primary Consideration must weigh against the Applicant. However, the Applicant’s offending was aberrant in the context of a mostly law-abiding, productive life. It occurred under extreme stress in circumstances where he was a victim of long-term domestic abuse which was not treated as such by the police on many occasions when they attended due to Mr M’s behaviour and which he himself did not recognise as abuse.[70]
[70] Transcript, page 28, line 42; page 78, lines 46 to page 79, line 23; page 79, lines 34 to page 80, line 9; Exhibit G1, G53, page 261, para [7] and page 262, para [8].
In these circumstances his offending is indicative of an individual who is normally law-abiding reaching his breaking point and acting in a way that was as much of a risk to himself as it was to others, rather than an individual who lacks respect for the law or holds anti-social attitudes.
Conclusion: Primary Consideration 4
Primary Consideration 4 carries only limited weight in favour of cancelling the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. We will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant.
Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to 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, considering:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The focus of this consideration is upon the transitional challenges that may be faced by a non-citizen in establishing themselves and maintaining basic living standards in the context of what is generally available to other citizens of that country.
The Applicant lived in New Zealand until he was 35 years of age. He will not experience significant language or cultural barriers in New Zealand.
The Applicant is 53 years old. He has distant cousins in New Zealand and an aunt who lives in a aged care home. We doubt they could be of much support, however he would not be returning to a place where he knows no-one. Mr D indicated that he would move to New Zealand with the Applicant when financially and practically possible. As such, he would have the promise of Mr D’s support and companionship until Mr D is able to join him and provide those things.
In terms of physical health, he is currently suffering from a work-related shoulder injury with remedial surgery having been scheduled for later this year. He suffers from chronic sleep apnoea, mediated by his prior surgery and controlled through the use of a CPAP machine. None of these would constitute an impediment once the remedial surgery and subsequent rehabilitation has taken place.
The most significant transitional challenge for the Applicant is the extent to which his mental health would be compromised because of his removal. He would, if removed, lack some of the protective factors and relationships he currently benefits from in Australia. Dr Freeman’s evidence indicates that that he tends to react excessively to emotional stressors when untreated. Dr Moore’s and his GP’s evidence indicates that this tendency is moderated and managed through the Applicant’s framework of his relationship with Mr D, his parents and biological sister and the relationship he has grown with his adoptive sister Child A, as well as his connections into his community exemplified in the evidence of Ms A and Mr O.
It is relevant to note that the Applicant’s regular sessions with Dr Moore and his patient relationship with his GP also form part of his support structure.
Removing the Applicant from Australia would, at a minimum, disrupt this framework of support. At worst, the Applicant would be exposed to increased stressors during resettlement without the benefit of his support network except via remote communications. Based on the evidence before the Tribunal, this would adversely impact the Applicant’s ability to establish himself, although we do not accept it would be to the extent that he could not re-settle or maintain basic living standards in the context of what is generally available to other New Zealand citizens.
The Applicant has extensive experience working in Australia across different careers as a disability support worker, real estate agent, security supervisor and chef.[71] He also has several formal qualifications.[72] His age suggests that he can work into the medium-term future to support himself in New Zealand. His prospects of employment in New Zealand are therefore reasonable.
[71] Exhibit G1, G11, pages 93 to 94.
[72] Exhibit G1, G50, pages 247 to 250.

Weighing all the above matters, this Other Consideration (b) carries limited weight against cancelling the Applicant’s visa.
Impact on victims
There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration is therefore not relevant.
Links to the Australian Community
In consideration of this Other Consideration, paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant came to Australia as an adult, and he has lived in Australia for 18 years. He commenced offending 12 years after moving to Australia.
The Applicant has a long history of contributing to the Australian community through his employment, volunteer work and other community engagement.
In terms of paid work:
·Prior to his imprisonment, the Applicant was consistently employed until his sleep apnoea worsened and he ceased working while waiting for an operation.
·From 2012 to late 2015, he was employed as a specialist disability carer, providing support and care to children, teenagers and young adults with disabilities. Prior to his imprisonment, the Applicant volunteered as a carer for children with disabilities.[73] In that role, he did more than was required of him, including taking these children to public events that he was not obliged to.
·After volunteering with [location redacted] Meals on Wheels during the COVID-19 pandemic, the Applicant was subsequently employed by that organisation. He received significant positive feedback on his skills, expertise, reliability and assistance from management, while the organisation itself received unsolicited positive feedback from its clients regarding the improvement in the quality of meals cooked or supervised by the Applicant.[74]
·The Applicant is now employed at a local supermarket but has suffered a work injury and is on workers’ compensation pending an operation. He is still able to do some work for Meals on Wheels.
[73] Exhibit G1, G11, page 94.
[74] Exhibit G1, G16, pages 142 to 143.
In terms of volunteering and community engagement:
·Whilst incarcerated, the Applicant acted as a mentor and carer for other prisoners, voluntarily assisted officers on several occasions without thought of personal gain, and was responsible for positive changes being made to the prison meal service - methods which were formally recognised by the prison authorities.[75] He served as an official ‘Buddy’ to new prisoners.
[75]    Exhibit G1, G41, page 210; G42, page 212.
·After the Applicant’s release from prison, he was a volunteer with [location redacted] Animal Refuge.
·The Applicant has volunteered with Community Centre A in [location redacted], which assists and provides meals to marginalised and drug-dependent individuals, since 2019. Relevantly, Mr O gave the following evidence:[76]
What sorts of things has he done with [Community Centre A]? What has his volunteer work involved?
Yes, a lot of that’s been around his cooking, which is absolutely terrific. We’ve put on functions. We often ‑ everyday we feed our marginalised communities and [the Applicant] has assisted in that in, not only, producing meals for that, but also assisting us to get some meals cooked rapidly, which is terrific. And some of the advice around some healthy alternatives, and that’s how that sort of started, and from there, it just increased into very much hands‑on help.
I understand this might be a difficult question, but could you put a, sort of, estimation on how many hours you think he’s volunteered with [Community Centre A]?
Yes, I was giving it some thought. It’s always difficult, because ‑ but I reckon it’s well over 200 without a doubt. And of course, he’s also, with his incredible help that he’s done in other organisations, brought a connection, too, as well through the SCARS program, which is working in welfare with animals. So we also connected with [the Applicant] on that. I actually forgot about that. It was probably our first initial meeting, which was absolutely terrific.
You also say that he has a heart for those who are marginalised and broken. How has he shown that to you? Aside from just the hours he’s put in, how has he demonstrated those attributes?
The wonderful thing about [Community Centre A] is, the [Community Centre A], being a drop‑in centre, you’re certainly confronted by the, you know, society in general, and I found [the Applicant] was able to connect extremely well with people that he’d never met before. He just had a certain persona and a certain personality that the guys could relate to. When I say guys, I generalise there, of course. And I think just the way that he could chat, and obviously, his empathy to where they were at in their lives, it made an incredible impact on them. And often we’d have the ‑ some of the people there sort of saying, you know, “The big guy from Meals on Wheels, you know, we haven’t caught up with him for a little while.” So he had a great impact on them.
·The Applicant also collaborated with Dr Robin Fitzgerald of The University of Queensland by sharing his criminal justice system experiences with criminology students.
·The Applicant consistently supports the local [location redacted] community by identifying vulnerable families in need and then helping arranging support for them through the community.[77] He and his family provide some financial support the families of two fellow prisoners he befriended in prison.[78]
[76]    Transcript, page 142, line 36 to page 143, line 20.
[77]    Transcript, page 117, lines 14 to 34.
[78]    Exhibit G1, G Documents, G15, pages 137 to138.
The Applicant’s family in Australia includes his de factor partner, Mr D, his parents, his biological sister and his adult niece and nephew. It is clear from the evidence before the Tribunal that despite a historical period of estrangement and a period of limited contact prior to the offending, the Applicant’s family enjoy warm, mutually supportive and close relationships of a longstanding nature.
Mr D gave evidence that the Applicant’s removal would impose a significant level of cost and complexity on their relationship in terms of ongoing communication between them, the cost of Mr D visiting New Zealand given some debt that he is repaying under a payment plan, the health of Mr D’s parents and the quoted expense ($10,000) of shipping the Applicant’s two pet British bulldogs to New Zealand.
Despite acknowledging these factors, Mr D maintained his willingness to be with the Applicant in New Zealand eventually once the abovementioned cost and complexity had been overcome.
The Applicant’s parents stated in their statutory declaration:
“[The Applicant’s] deportation from Australia would have a devastating effect on us as he is our only son and we love him dearly. Social media and phone communication would in no way be a viable option in our case. I would cause us huge anxiety and worry as to how he would survive there without our support, setting his mental health back to concerning levels - not forgetting the support that he gives to us. We are aged 76 and 70 years respectively - not an age to be thinking of relocating to another country. Our wonderful daughter and grandchildren are also major considerations - to leave them could not even enter our minds as they are also loved dearly, and we are in regular contact with them weekly. We are also have responsibility for [Child A] and this is a huge consideration in this matter. We are fortunate that at this time to be in good health and look forward to caring for this beautiful young girl that we love for many more years with the help and support that [the Applicant] gives to us. [79]
[79] Exhibit G1, G14, page 134.
The Applicant’s mother gave evidence that the Applicant’s deportation would be traumatic for her:
“We have travelled many difficult roads over the years, been through many difficult situations and we’ve survived them all and I don’t want to survive another difficult situation and I can’t even imagine - I just don’t want to even go there actually, it’s too hard.”[80]
[80] Transcript, page 61.
The Applicant’s parents currently rely on his support and assistance in caring for Child A. This reliance will likely only increase in time. In the Applicant’s 1 June 2020 statement, he states that:
“My parents and I have always had the plan that I would become [Child A]’s carer once they were too old to manage her conditions. Unfortunately my sister…cannot perform this role as she has her hands full with [Child B]. Their biggest fear is that [Child A] will not have anyone in her life to help her make decisions and to support her.”[81]
[81] Exhibit G1, G11, page 103, para [100].
The Applicant also has an adult nephew and adult niece. His nephew wrote a letter of support. We accept that they would be impacted emotionally to some extent by a decision to cancel the Applicant’s visa.
The Applicant has some social ties to the Australian community through employment and community engagement.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
Conclusion: Other Consideration (d)
Overall, we are satisfied that the Applicant’s links to the Australian community weigh very heavily against cancelling his visa. In particular we note that some of his links to the Australian community, notably his voluntary work and the help he gives Child A, are links that yield significant benefits to individuals in the community and to the community in general.
CONCLUSION
We are now required to weigh all the Considerations in accordance with the Direction. This is a case where that weighing exercise favours the Applicant, chiefly because of his strong history of voluntary service to the wider community and in the prison community, the likelihood that he will continue to make significant positive contributions to the community including with respect to Child A, the fact that his offending was aberrant and the very low risk that he will re-offend. Application of the Direction therefore results in the Tribunal not exercising the discretion in s 501(2) to cancel the Applicant’s visa.
Decision
The decision under review is set aside and substituted such that this Tribunal does not exercise the power conferred by s 501(2) of the Migration Act 1958 (Cth) to cancel the Applicant’s visa.

I certify that the preceding 172 (one hundred and seventy-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy and Member D Cosgrave

............................[SGD]............................................
Associate
Dated: 19 September 2022

Date of hearing: 15 and 16 August 2022

Solicitor for the Applicant:

Ms Caitlin White

Fisher Dore Lawyers

Solicitor for the Respondent
Ms Cody Allen

Sparke Helmore

ANNXURE A – EXHIBIT LIST

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (G1 to G56 paged 1 to 291)

R

-

24 June 2022

A1

Applicant's Statement of Facts, Issues and Contentions (17 pages)

A

18 July 2022

19 July 2022

A2

Applicant’s Additional Evidence (7 pages)

A

-

19 July 2022

A3

Applicant’s Reply (5 pages) including attachment: ASMS report, “What price mental health? The crisis and the cure” (2021).

A

9 August 2022

9 August 2022

A4

Applicant’s Supplementary Evidence (19 pages)

A

-

9 August 2022

R1

Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 16)

R

1 August 2022

1 August 2022

R2

Respondent’s Tender Bundle (R1 to R3, paged 1 to 56)

R

-

1 August 2022

[2022] AATA 4308

16 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G56 paged 1 to 291)	R	-	24 June 2022
A1	Applicant's Statement of Facts, Issues and Contentions (17 pages)	A	18 July 2022	19 July 2022
A2	Applicant’s Additional Evidence (7 pages)	A	-	19 July 2022
A3	Applicant’s Reply (5 pages) including attachment: ASMS report, “What price mental health? The crisis and the cure” (2021).	A	9 August 2022	9 August 2022
A4	Applicant’s Supplementary Evidence (19 pages)	A	-	9 August 2022
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 16)	R	1 August 2022	1 August 2022
R2	Respondent’s Tender Bundle (R1 to R3, paged 1 to 56)	R	-	1 August 2022