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

TXZQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 5084 (24 December 2021)
Division:GENERAL DIVISION
File Number(s): 2021/7324
Re:TXZQ
APPLICANT

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

DECISION
Tribunal:Mr S Evans, Member
Date:24 December 2021
Date of written reasons: 25 January 2022
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the decision under review dated 7 October 2021 is affirmed.
...............................[SGD].........................................
Mr S Evans, Member
CATCHWORDS
MIGRATION – cancellation of visa pursuant to section 501 of the Migration Act 1958 (Cth) (‘the Act’) – revocation of cancellation under section 501CA of the Act – mandatory cancellation – acquittal for primary offence – whether applicant passes the character test – whether there is another reason why applicant’s visa cancellation should be revoked – relevant law and policy considered – relevant material considered – decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS
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
Mr S Evans, Member
25 January 2022

The Applicant, TXZQ, seeks review of a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Respondent’) not to revoke the mandatory cancellation of his visa. For the reasons which follow, the reviewable decision dated 7 October 2021 was affirmed on 24 December 2021.
BACKGROUND TO THE APPLICATION
On 18 December 2019 the Applicant was convicted in the Downing Centre District Court of two counts of wound person with intent to cause grievous bodily harm – SI and sentenced to an aggregate term of eight years imprisonment with a non-parole period of five years and six months.
On 24 June 2020 the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (‘the visa’) was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’). A delegate of the Respondent wrote to the Applicant informing him that his visa had been cancelled. The delegate wrote in part:
Failure to pass the character test
Based on the information before the Department, the decision maker (who is a delegate of the Minister) was satisfied that you do not pass the character test on the following ground:
You have a substantial criminal record within the meaning of s501(6)(a) on the basis of s501(7)(a), (b) or (c) of the Act. Under s501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
On 18 December 2019 you were convicted of two counts of Wound person with intent to cause grievous bodily harm – SI and sentenced to an aggregate term of eight years imprisonment.
The information based on which the decision maker was satisfied that you do not pass the character test is the Advice of Court Result from the District Court of New South Wales at Downing Centre of 18 December 2019 and issued on 23 April 2020 and the National Criminal History Check released on 04 May 2020.
Imprisonment on a full-time basis
Based on the information available, the decision maker was also satisfied that, at the time of the decision, you were serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.
In particular, regard was had to the Conviction, Sentences and Appeals report from the New South Wales Department of Corrective Services dated 18 June 2020.
The same day the Applicant made representations to the Respondent seeking the revocation of the mandatory cancellation of his visa.
On 21 July 2021 the Applicant’s appeal from his convictions for two counts of wound person with intent to cause grievous bodily harm – SI to the Court of Criminal Appeal was allowed and he was acquitted.
The reviewable decision
On 7 October 2021 a delegate of the Respondent decided under subsection 501CA(4) not to revoke the mandatory cancellation of the Applicant’s visa. The delegate acknowledged that the Applicant had been acquitted of the offending which resulted in him failing to pass the character test by operation of paragraph 501(7)(c) and having a ‘substantial criminal record’.
Paragraph 501CA(4)(b) provides that the Minister may revoke a decision if, amongst other things, the Minister is satisfied that the person passes the character test (as defined by section 501). The delegate considered that subparagraph 501CA(4)(b)(i) required they be ‘satisfied that the person passes the character test, that is, the whole of the character test embodied in s 501(6); it is not limited to the limb that formed the basis of the decision to cancel his visa under s501(3A)’. The delegate then noted that paragraph 501(6)(d) provides that a person does not pass the character test if:
(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or …
The delegate determined that owing to the Applicant’s criminal offending, which included instances of actual violence and serious criminal offending, the Applicant is capable of repeated violent and serious criminal offending. The delegate concluded that should he be allowed to remain in Australia, there is a risk that the Applicant ‘would engage in criminal conduct and represent a danger to the Australian community by way of being liable to become involved in violence threatening harm to the community’.
As such, the delegate was not satisfied that the Applicant passed the character test by operation of subparagraph 501(6)(d)(i) of the Act. The Applicant sought review of the delegate’s decision on 8 October 2021.
Both parties were provided an opportunity to make submissions regarding the reviewable decision of the delegate. Specifically, they were asked to address any issues arising from the fact that the original grounds for the cancellation of the Applicant’s visa no longer applied, and the decision of the delegate to consider whether the Applicant passed the whole of the character test, not just paragraph 501(6)(a).
In relation to the Applicant’s successful appeal against his conviction of wound person with intent to cause grievous bodily harm – SI, the Respondent submits that as the appeal judgment set aside, rather than quashed the conviction, it did not affect the validity of the Applicant’s incarceration whilst the order was in effect. As such, both the mandatory cancellation decision and the non-revocation decision were based on a state of affairs that were factually accurate at the time the decisions were made.
There was no dispute that the delegate, in deciding whether to revoke the cancellation decision, was required to consider if the Applicant met the whole of the character test as set out in subsection 501(6), not only paragraph 501(6)(a) which was the basis on which the visa was originally cancelled.
In reviewing the delegate’s decision, the Tribunal is required to consider whether the Applicant passes the character test under the same provision as was considered by the delegate, subparagraph 501(6)(d)(i). .
ISSUES TO BE DETERMINED
The issues to be determined by the Tribunal are:
(a)whether the Applicant passes the character test within the meaning of subsection 501(6) of the Act; and
(b)if not, whether, there is another reason why the cancellation decision should be revoked under subsection 501CA(4) of the Act, having regard to the considerations prescribed by Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction 90’ or ‘the Direction’).
LEGISLATION AND POLICY
The applicable legislation is contained in the Migration Act 1958 (Cth).
Subsection 501(3A) of the Act provides:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Subsection 501(6) of the Act provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
…
(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or …
Paragraph 501(7)(c) of the Act provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more
…
Subsection 501CA(3) of the Act provides:
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
Subsection 501CA(4) of the Act provides:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The power of the Tribunal to review the decision to refuse to revoke the cancellation of the Applicant’s visa is provided by section 500 of the Act.
FACTS AND EVIDENCE
The Applicant
The Applicant is a 21-year-old citizen of New Zealand. He first arrived in Australia when he was 11 years old. He has three brothers and two sisters and is the second youngest child. One of his brothers resides in New Zealand and the remainder are in Australia.
In a statement dated 18 November 2021 the Applicant writes it was hard to adapt to living in Australia and he was required to repeat his year six schooling. Initially he had few friends and found it difficult to connect with people. He found it difficult to perform well at school. In 2015, at the suggestion of his parents, he decided to leave school and enter the workforce.
The following year his father was diagnosed with cancer. After his diagnosis, his father became unable to work and needed care at home.
The Applicant intermittently took up a variety of skilled and unskilled labouring roles after leaving school. When his father passed away in September 2019, the Applicant was in prison and unable to attend his father’s funeral.
Evidence of KM, the Applicant’s mother
The Applicant’s mother KM filed a statement dated 19 November 2021 and gave evidence before the Tribunal. KM recalled that the Applicant ‘got into the wrong crowd’ at school and started getting into trouble. She describes the challenges of looking after her husband following his cancer diagnosis.
Should the Applicant be released into the community KM plans to support him. She wishes to help him gain employment and keep him busy and active so that he will stay out of trouble.
KM observed that the Applicant has learnt a valuable lesson as a result of being imprisoned. She believes the Applicant has matured substantially with age and has come to realise his past mistakes. She observed that he has mellowed, though she conceded she has had limited contact with him owing to his imprisonment and detention.
KM acknowledged that the Applicant had anger management issues when he was younger and considered that he might benefit from drug and alcohol programs.
Evidence of AL, the Applicant’s brother
The Applicant’s older brother AL currently lives with his and the Applicant’s sister CL. Should the Applicant return to the community AL has agreed to allow him to live with them both.
AL was close to all the siblings growing up and speaks regularly to the Applicant. In a reference to what I take to further offending conduct, AL understands that the Applicant is aware he has no tolerance for ‘stupid things’.
Should the Applicant live with AL, he would be expected to obtain employment and contribute to the household. He hopes that he can assist the Applicant in his endeavours to keep himself on track.
The Applicant’s criminal and other serious conduct
The Applicant’s criminal offending is set out in an Australian Criminal Intelligence Commission report dated 17 September 2021 and summarised in the Respondent’s Statement of Facts, Issues and Contentions. Further detail is provided in summonsed material which includes NSW Police facts sheets.
Affray and common assault
On 16 January 2015 the Applicant appeared in the Parramatta Children’s Court where he was found guilty of steal from the person, affray-T1 and common assault T2. The NSW Police fact sheet relating to these offences details that in the early hours of 28 December 2013 the Applicant was with another young person when they approached the victim who was a railway worker. When the victim tried to walk away from the Applicant and his co-offender, the co-offender threw a glass bottle at the victim’s head. The co-offender then began to throw punches at the victim. The facts sheet describes the Applicant running at the victim and attempting to punch him to the side of the head. The co-offender stole the victim’s backpack and the two of them ran off. The backpack was later found with some of the victim’s possessions missing. The victim sustained a concussion as a result of the incident.
Destroy / damage property in company
On 16 January 2015, the Applicant was also found guilty of possess graffiti implement with intent to contravene s 4(2), three counts of destroy/damage property in company >$2K <=$5K-T2 and one count of destroy/damage property >$2000 & <=$5000-T2. The NSW Police facts sheet records that the Applicant was seen with a group of individuals who had graffitied a footbridge and public transport on multiple instances across the period of August to October 2014. Police estimated the cost to remove the remove the graffiti and replace or repair etched graffiti to Sydney Trains’ property would be in excess of $10,000.
Enter prescribed premises and possess prohibited drug
On 8 August 2017 the Applicant was issued cautions in the Parramatta Children’s Court for two charges of enter prescribed premises of any person w/o lawful excuse and possess prohibited drug.
Affray and common assault
On 8 August 2017 and 7 September 2017, the Applicant was again charged with affray-T1 and common assault-T2 for which he received a 12-month probation period and a 12-month supervised bond as a juvenile. The Statement of Agreed Facts between Police and the Applicant detail that the Applicant was invited to a party held on 6 August 2016 at a residence where the Applicant was invited into an individual’s bedroom.
The individual became upset when the crowd in his bedroom increased to about 20 persons, with some of the crowd going through his personal possessions and causing damage to his personal property.
An argument broke out when the Applicant said to the individual whose bedroom they were in ‘do you want to fight or something’? In response, the individual armed himself with a knife which he had removed from his desk drawer and said ‘do you really want to do this’? Upon presenting the knife, 10 to 15 persons began assaulting the individual. Some of the persons who began assaulting the individual were armed with scissors, a brick and empty bottles.
The Applicant punched the individual twice in the face. The individual then stabbed one of those present in his bedroom. The person who had been stabbed was carried out of the room by the Applicant and declared deceased the next day.
The Applicant was seen and heard by witnesses to be the main instigator of the fight and the NSW Police facts sheet describes this incident to be ‘at the highest end of Affray given the severity of injuries suffered by those involved, and the death of [a] 16 year old male…’
The Statement of Agreed Facts between Police and the Applicant includes substantially less detail regarding the circumstances of the offending than an earlier NSW Police facts sheet dated 20 October 2016. Notably, the agreed facts do not include that the Applicant was the main instigator of the fight which led to the person being stabbed.
The Applicant’s representative submits the Tribunal should place greater weight on the agreed position between the prosecution and defence as opposed to the Police facts sheet. It was argued that the agreed facts reflect the findings following more thorough investigation by police and it should be inferred that some of what is contained in the Police facts sheet was found to be factually inaccurate during subsequent investigations.
In cross examination by the Respondent’s representative the Applicant was provided an opportunity to address any inaccuracies which may be in the information before the Tribunal. Asked to describe what happened in his own words, the Applicant told the Tribunal:
I'm not going to speak as to exactly because we were all intoxicated, pretty much everyone at the party was intoxicated so I don't want to give you an intoxicated recount of the memory, you know. But, from exactly what I remember, it just started, like, it was a good night, everyone was having fun. I actually knew [the young person who stabbed the victim] before that and, yes, when we were all in his room I could tell that he was just getting really frustrated people were then and, you know, angry, speaking to himself kind of thing and that's obviously when I asked him, like, "Do you want to fight?" or something. I wasn't asking him if he wanted to fight me, like, I asked him because I knew him and obviously just took it the wrong way and, yes, then everything happened from there.
The Tribunal does not have the benefit of any sentencing remarks in relation to this offending. In considering these offences, I have taken into account the concerns raised by the Applicant, and the Applicant’s explanation as to what occurred, but I accept the conviction as it appears on the Applicant’s criminal record.

Following the incident the Applicant was held in a police dock. The Police facts sheet records that the Applicant was threatening and intimidating another young person. The Applicant’s behaviour whilst in police custody is described as ‘appalling and obnoxious’ with a ‘complete disrespect for all police officers whom he had interaction with’. It is recorded that the Applicant did ‘not appear to understand the severity of the charge against him’ or ‘show any remorse for his actions on the night of 6 August 2016’. The investigating officers noted that the Applicant was a member of a Pennant Hills street gang who identified themselves as the ‘212 gang’ and requested strict bail conditions for the Applicant.
Asked during the hearing if he recalled being arrested after the incident and if he was a member of a gang. The Applicant told the Tribunal:
Respondent’s representative: Do you recall being arrested after the incident?
Applicant: Yes, I do.
Respondent’s representative: There's material in the tender bundle which includes an allegation by the police that you were not very forthcoming with the police about your personal information when they were speaking to you; would you agree with that?
Applicant: Yes, I was just exercising my right.
Respondent’s representative: Okay. The material also suggests that - well, the police allege that when you were in custody your behaviour was appalling; would you agree with that?
Applicant: I agree that they said that, yes.
Respondent’s representative: I'm not asking whether you agree with what they said. But, would you agree that your behaviour was appalling at the time?
Applicant: I wouldn't say appalling. I'd say it wasn't the best of behaviours, yes.
Respondent’s representative: And what were you doing? What wasn't it the best, what's an example of that?
Applicant: So, there was just one of our friends that got charged with us. He was going through a very psychotic mental illness at the time and even before then it was just hard to try and get something through to him. Yes, I was just trying to explain to him, like, you know what I mean, because after we got arrested he was just, like, different just like that, like, doing weird things and I did get a bit angry and I did swear at him a couple of times. But, yes, I seen him, I think, the day after that and, yes, we were friends, so.
Respondent’s representative: In the material … the police said that you were a member of Pennant Hills street gang who identify themselves as the "212 gang". So, just at the bottom of the first paragraph?
Applicant: Yes.
Respondent’s representative: The document says:
[The Applicant] is a member of Pennant Hills street gang who identify themselves as the 212 gang.
Respondent’s representative: Is that statement by the police correct?
Applicant: No.
Respondent’s representative: Okay. So, do you know what the 212 gang is?
Applicant: Like, I know why they think it's a 212 gang but it's not a gang.
Respondent’s representative: Sorry, can you repeat your answer then?
Applicant: I said I know why they think it's a gang but, like, I know why they think that but it's not a gang.
Respondent’s representative: Okay. And why do they think it's a gang?
Applicant: I guess just labelling.
Respondent’s representative: So, you accept that the police think that you're a part of it or at least were a part of it?
Applicant: Yes, I accept that.
Carried in conveyance taken w/o consent of owner
On 14 November 2018, the Applicant was convicted in the Mt Druitt Local Court for the offence of be carried in conveyance taken w/o consent of owner-T2, and was sentenced to three months imprisonment. The NSW Police facts record that the Applicant was one of three accused individuals who were involved in the offence. The offending occurred on 1 February 2017. The Police Facts record that one of the co-accused was driving a black Lexus that was observed by police to be accelerating harshly, failing to indicate, braking and turning harshly and speeding. When the car became jammed in heavy traffic, the three accused fled on foot and were later found by police in a garage. When police searched the vehicle they located a bag containing 11.9 grams of cannabis. The Applicant was not charged with any drug offences.
In relation to this offending the Applicant notes that he was a passenger in the vehicle and his role in the offending was significantly less serious than that of his co-offender.
The set aside conviction
On 18 December 2019 the Applicant was convicted in the Downing Centre District Court of two counts of wound person with intent to cause grievous bodily harm – SI and sentenced to an aggregate term of eight years imprisonment with a non-parole period of five years and six months.
Whilst the Applicant’s defence counsel agreed in court that he was part of the group which went to the place where the offences occurred, the NSW Court of Criminal Appeal found that he could have been one of several people that could possibly have left the group before it carried out the offences. On 21 July 2021 the court set aside the convictions and acquitted the Applicant.
I have not considered the set aside conviction in in determining whether the Applicant passes the character test or whether there is another reason for the cancellation of the visa to be revoked. However, this conviction it is relevant in so far as the sentencing remarks indicate the Applicant was in custody from 27 October 2017. With the exception of a period of conditional liberty between 19 March 2018 and 27 September 2018, it appears that the Applicant has been in custody, prison, or immigration detention since October 2017. The Applicant’s carceral circumstances are relied upon by the Applicant in relation to his sentencing for the offence carried in conveyance taken w/o consent of owner and as a relevant consideration in determining the expectations of the Australian community.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The first question to be determined is whether the Applicant passes the character test in subsection 501(6) of the Act. As outlined, subsequent to the mandatory cancellation of his visa, the Applicant was acquitted by the Court of Criminal Appeal from his convictions for two counts of wound with intent to cause grievous bodily harm – SI. Consequently, the Applicant no longer fails the character test in paragraph 501(6)(a) by way of having a substantial criminal record. However, the Respondent contends that the Applicant does not pass the character test under subparagraph 501(6)(d)(i) which provides that a person does not pass the character test if, in the event the person were allowed to remain in Australia, there is a risk that the person would engage in criminal conduct.
Paragraph 6 of section 2 of the Direction sets out considerations for decision makers when applying the provisions in paragraph 501(6)(d) of the Act. It relevantly states:
6 Risk in regards to future conduct (section 501(6)(d))
(1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act. The types of conduct specified are discussed below.
(2) The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
(3) It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
6.1 Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))
(1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will engage in criminal conduct in Australia.
(2) The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.
Applying subparagraph 501(6)(d)(i) of the Act requires an evaluative judgement as to whether I consider there is a risk the Applicant will engage in criminal conduct should he be allowed to remain in Australia. In assessing risk the Hight Court observed in Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22 that the probability an event will occur may be assessable but is to be determined on a rational basis. The Court observed:
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability —high or low — of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events...
Consideration
Consistent with the Direction, a history of offending is not, of itself, sufficient to support a finding as to risk of future conduct. There must be more than a minimal or remote risk which, based on probative evidence, demonstrates that there is a risk of it being engaged in again.
The Applicant’s offending commenced in December 2013 and he has continued to offend regularly. He was initially afforded the benefit of non-custodial sentences including bonds and probation before being sentenced to a term of imprisonment in November 2018.
The Respondent contends that the Applicant’s offences were not isolated incidents but a pattern of offending which has increased in severity. Based on the regularity of the Applicant’s offending and the escalation in the severity of sentences handed to him I accept the Respondent’s submission in this regard.
The affray and common assault charges for which he was convicted in January 2015 occurred on 28 December 2013 when the Applicant was 13 years of age. I note the Applicant’s submission that at age 13 some jurisdictions operate on the presumption of doli incapax and I take into account his youth when considering his culpability.
I also take into consideration that the further affray and common assault convictions relate to a fight which occurred on 6 August 2016 when the Applicant was 16 years of age. During that incident one of the Applicant’s friends was stabbed in the abdomen and died, but the Applicant continued to offend.
Indeed, much of the Applicant’s offending was recorded to have occurred whilst the Applicant was a young person. The offending which resulted in a conviction for be carried in conveyance taken w/o consent of owner-T2 was his only offence as an adult.
The Applicant has identified protective factors which would lessen the risk of him reoffending should he be permitted to remain in Australia. These include the support of his family, severing relationships with negative peers, the salutary experience of being in prison, his commitment to rehabilitation, his increased maturity and remorse for his offending. He is also now aware that further offending would lead to deportation and he is of sufficient intelligence to learn from his mistakes. These protective factors have been considered by consultant psychologist Tim Watson-Munro who concluded that the Applicant is a medium risk of reoffending but that the risk would trend towards low should he maintain the protective factors currently in place.
Whilst the risk of the Applicant engaging in criminal conduct is mitigated by the factors which have been identified, I consider that they are largely untested as the Applicant has been in prison or immigration detention since he was 18. However, he has not offended during this time and this weighs in favour of him passing the character test.
I accept the Respondent’s submission that the Applicant’s criminal history demonstrates that he is capable of and has repeatedly engaged in violent, criminal and antisocial conduct such that on the evidence provided it is not possible to establish that there is no ongoing risk of his engaging in further criminal conduct in the future.
In considering the evidence, I am satisfied the risk the Applicant would engage in criminal conduct in Australia is more than minimal or remote such that the Applicant does not pass the character test by operation of subparagraph 501(6)(d)(i).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
Direction 90
Having found that the Applicant does not pass the character test, I must consider whether there is another reason to revoke the cancellation of the Applicant’s visa given the Applicant’s specific circumstances.
The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA. The purpose of the Direction is to guide decision-makers in exercising powers under sections 501 and 501CA of the Act.
Paragraph 5.2 of Direction 90 provides principles which I have considered when reviewing the Applicant’s application. It relevantly provides:
(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 noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of the Direction identifies considerations the Tribunal must take into account in making a decision under subsection 501CA(4).
The primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be considered secondary considerations as in certain circumstances other considerations may outweigh primary considerations.
The primary considerations set out in the Direction are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) family violence committed by the non-citizen;
(3) best interests of minor children in Australia affected by the decision; and
(4) expectations of the Australian Community.
The other considerations set out in the Direction which must be taken into account where relevant include but are not limited to:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community.
With reference to the Direction, I now turn to considering if there is another reason why the cancellation decision should be revoked.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. When considering the protection of the Australian community, Direction 90 requires decision-makers to have regard to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
I have set out the Applicant’s offending in paragraphs 33 to 52 of these reasons.
The Applicant has offended with notable frequency since his first recorded conviction relating to offending which occurred on 28 December 2013. The Applicant was initially provided the benefit of non-custodial sentences, including bonds and probation. Despite the leniency of the Courts, the Applicant continued to offend. The seriousness of his offending increased over time and this is reflected in his being sentenced to a term of imprisonment on 14 November 2018. Custodial sentences are the last resort in the sentencing hierarchy and reflect the seriousness of the Applicant’s offending.
With reference to the Direction, the Applicant’s offending must be regarded as very serious as it includes two separate counts of common assault-T2 in which he punched individuals.
By way of mitigation, it is submitted on behalf of the Applicant that his record of offending has only a single offence – that of being carried in conveyance – committed whilst he was an adult. His earliest recorded offending occurred when the Applicant was just 13 years of age.

The Applicant’s representative also posited that on 14 November 2018 the Applicant was being held in custody for the unrelated offence for which he was later acquitted. It is submitted that this limited the non-custodial sentencing options available to the court when sentencing the Applicant for the be carried on conveyance taken w/o consent of owner-T2 offence for which he received a three month term of imprisonment.
Whilst the Applicant has not been charged or convicted criminally since he was 18 years of age, I note he has been in custody, prison or detention since 27 October 2017, except for the period between 19 March 2018 and 27 September 2018 when he had conditional liberty.
In light of the nature and frequency of the Applicant’s offending, with reference to the Direction, I am satisfied that the nature of the Applicant’s offending and other serious conduct should be considered 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 Direction 90 provides that in considering the protection of the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases.
In assessing the risk posed by the non-citizen to the Australian community, the Tribunal should consider, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending and evidence of rehabilitation achieved by the time of decision, with weight to be given to the time spent in the community since the non-citizen’s most recent offending.
I accept the Respondent’s submission that should the Applicant commit further violent crimes or otherwise engage in violent conduct it may result in physical and psychological harm to members of the Australian community. Further offending involving property crimes such as destroy/damage property would likely involve financial harm to members of the community. Any re-offending on the part of the Applicant would also result in the further expenditure of public resources to deal with his conduct.
Risk of reoffending
Whilst the Applicant submits that his risk of reoffending is not significant, the Respondent contends that despite evidence of protective factors, there remains a significant risk that the Applicant will reoffend.
The Applicant’s evidence
The Applicant filed statements dated 18 November 2021 and 8 December 2021 in which he details his rehabilitation efforts. Whilst in prison he completed the EQUIPS foundation course. He writes that through the EQUIPS foundation course he was taught about the right way to react to situations including resisting peer pressure and how to manage his anger in conflict situations. He was hoping to complete the second part of the course but was unable to do so as he was transferred to remand.
The Applicant states that he regularly attended chapel and Bible studies whilst in prison. He enjoyed doing so and he takes strength from the Bible and he found the chaplains supportive when he was in a ‘dark place’. He claims to have learnt about forgiveness and ‘good morals’. He now realises that his offending was the same as sinning and he is determined that he will not ‘sin’ again.
The Applicant has come to realise that he cannot take drugs or alcohol as doing so puts others in danger. He has consequently been considering other options to learn about drug and alcohol abuse. Should he be released into the community it is his intention to attend an anger management course.
The Applicant has also taken the first steps towards attending a residential drug and alcohol rehabilitation program as he understands the negative impact of substance use, particularly having completed online learning in regards to drugs and alcohol. He told the Tribunal that he last used drugs in late 2020 and has not found it difficult to abstain from using drugs or alcohol.
The Applicant writes that he does not know if he has been addicted to drugs and alcohol. However, he concedes that alcohol and drugs have been a problem for him in the past and that his offending would suggest this is the case. He never enjoyed consuming alcohol and he did so because others were. In his written statement he states he has not taken alcohol for ‘a few years now’ and acknowledges it has had an overall negative impact on his life.
Asked about his reasons for wanting to attend residential rehabilitation the Applicant told the Tribunal that it was to address his mental health and to enable him to be better equipped to deal with situations.
The Applicant is remorseful for his offending and the impact it has had on his family and the community. He ‘feels bad’ for the victims of his offending. His time in prison has changed him and shown him that this is not the life that he wants to lead. He says he wants to focus on his family and be able to support them. He regrets that he was not able to be present when his father died and that he did not get to say goodbye to him.
In acknowledging his offending the Applicant says that one of the reasons he became involved in crime was some of the friends he made. He does not to blame others for his actions and accepts that he must take responsibility for his own actions, but indicates external influences were a contributing factor to his offending. Since his imprisonment he has not been in contact with those who are a negative influence on his life and behaviour.
If he is able to remain in Australia the Applicant intends to address his anger management problems and focus on what he enjoys doing which includes singing, song writing and playing rugby in order to stay away from crime. He intends to work in construction or with his brother AL at a timber company.
Consultant psychologist Tim Watson-Munro
Mr Watson-Munro provided a written report dated 19 November 2021 regarding the Applicant and gave oral evidence at the hearing. Mr Watson-Munro consulted with the Applicant on two occasions in preparing the report.
Mr Watson-Munro reports that the Applicant does not suffer any mental health or disability, nor does he report any substance abuse issues, though he acknowledges that the Applicant has used drugs and alcohol in the past. He opines that the Applicant has expressed appropriate remorse for his behaviour and is motivated to live a more prosocial life if given the opportunity to remain in Australia.
With continuing support, treatment and supervision, in addition to other protective factors, Mr Watson-Munro considers that the Applicant’s risk of reoffending would reduce from moderate to ‘trending towards low’.
The protective factors to which Mr Watson-Munro refers include the Applicant’s remorse for his offending, the strong bonds he enjoys with his family and a desire for employment and treatment to deal with long-standing issues of depression, anxiety and substance abuse.
Mr Watson-Munro observed that the Applicant reported not having used drugs for some time having previously used cannabis and MDMA. He understands that alcohol has been the Applicant’s primary drug of abuse and Mr Watson-Munro writes that the Applicant started drinking alcohol at around 16 years of age and his habit escalated to the point where he would experience alcoholic blackouts.
Mr Watson-Munro told the Tribunal the fact that the Applicant had detoxified was positive. He was further encouraged by the Applicant’s abstinence from drugs and alcohol for 12 months. Mr Watson-Munro noted that whilst two years of abstinence is considered full remission, 12 months was very encouraging in terms of his risk of relapse. He opines that the Applicant is thinking more clearly having ‘detoxified’ and that he has also matured.
In relation to the Applicant’s mental health, Mr Watson-Munro reports that the Applicant conceded his depression, anxiety and alcohol use impacted upon his judgement and impulse control ‘which further fuelled his vulnerability to peer group dynamics’. He indicated that the Applicant remained significantly depressed and anxious as a consequence of uncertainty regarding his future in Australia. He notes that the Applicant has had no psychological treatment but has endeavoured to see a psychologist whilst in detention.
Mr Watson-Munro concludes that the Applicant is a cooperative but psychologically troubled individual. In his opinion the Applicant’s consumption of alcohol and cannabis needs to be considered in the setting of his youth, immaturity and still developing brain. He considers that the Applicant’s depression and anxiety has further impacted upon his judgement. In his report he observed that the Applicant expressed appropriate remorse for his actions during their discussions.
In Mr Watson-Munro’s opinion the Applicant would benefit from dialectical behaviour therapy which is demonstrated to be an effective in dealing with mood and substance use disorders. Treatment should also focus on developing relapse prevention strategies, social skills training to improve upon self-esteem, systemic desensitisation for anxiety and supportive motivational psychotherapy.
Consideration
With reference to Mr Watson-Munro’s opinion, the Applicant submits that the Tribunal can have confidence that the risk of him reoffending is medium, trending towards low.
I accept that the support of his family and particularly his mother KM and brother AL will be significant aids to the Applicant, but I note he previously had access to the support of his family and continued to offend. I acknowledge, however, that residing with AL and having his support and guidance would be expected to be of significant benefit to the Applicant, particularly in maintaining the protective factors which would reduce the risk of reoffending.
That his offending is linked to substance abuse is acknowledged by the Applicant. The Applicant claims to have used his time in custody and immigration detention to detoxify from drugs and alcohol. Mr Watson-Munro reported that the Applicant ‘acknowledged longstanding symptoms of depression, anxiety and low self-esteem’ which he ‘managed to work through … until the time of his father’s diagnosis with cancer’, a development which caused significant destabilisation. Mr Watson-Munro considers that the Applicant would benefit from ongoing treatment related to his mental health.
The Applicant has indicated a desire to work on managing addiction, aggression and his mental health. He has completed some initial work in this regard, and a NSW Corrective Services case note report dated 6 November 2020 confirms that the Applicant had completed the EQUIPS Foundation program. The Corrective Services officer noted that the Applicant did not attend two of the sessions and that further programs, including EQUIPS module on aggression would be of benefit to the Applicant. During the hearing the Applicant conceded that he had missed two of the course sessions and provided an explanation for doing so.
The Applicant also claims to have completed an online drug and alcohol course whilst in immigration detention and has expressed a desire to enter residential rehabilitation should he be released back into the community. He writes that working on his anger management would be his first preference but he would also ‘be willing’ to attend a drug and alcohol program.
Based on his evidence in late November 2021 the Applicant was told about Odyssey House and completed a phone assessment for potential admission should he be released back into the community.
It is of some concern that the Applicant was unclear about the desired outcome of treating his mental health and drug and alcohol related issues. He submits that he does not believe he has a problem with addiction to drugs and alcohol, though he acknowledges the contribution of both to his past offending. He gave evidence indicating he wishes to improve his mental health, and it is apparent, based on the offending and the evidence, notably that of the Applicant’s mother, that the Applicant has anger management issues. His stated attempts to enrol in Odyssey House are admirable but they are also very recent and appear to have been made at the suggestion of others. Similarly, the Applicant claims a desire to see a psychiatrist, but has yet to do so.
I take some confidence in the Applicant’s desire to treat both his use of drugs and alcohol and his mental health. However, the Applicant’s commitment to his rehabilitation is untested and with the exception of the EQUIPS foundation program, there is a dearth of evidence to indicate he has sought treatment for either issue until very recently.
The evidence put to the Tribunal strongly supports a conclusion that the Applicant’s peers contributed to his offending. NSW Police referred to him as being a member of a gang, which he denies, but he did concede that his peer influences had contributed to his offending. It was submitted on his behalf that his developing maturity coincided with a strong desire to separate from his friends and associates who have been a negative influence in the past. Being in prison followed by immigration detention has enabled him to sever ties with these individuals, a state of affairs he is motivated to maintain.
Relevant to the Applicant’s submissions regarding peer influences is a NSW Corrective Services report dated 6 November 2020. It records that during the EQUIPS foundation course the Applicant indicated a willingness to change but ‘couldn’t guarantee he would stay away from the negative influences’. This is of significant concern when considered in the context of NSW Police reports that he is a gang member. Whilst acknowledging the Applicant denies that specific allegation, his avoidance of negative peer influences remains untested in the community.
Mitigating this concern, the Applicant reportedly found the custodial environment difficult, and he is determined to turn his life around to avoid returning to prison. This is put forward as a significant protective factor, and one which may help him to avoid associating with people with whom he offended. The Applicant is also now aware that his visa may be cancelled should he reoffend. Mr Watson-Munro considered he is of at least average intelligence. It is submitted that the Applicant has the capacity to learn from his experiences and to maintain the protective factors which may prevent future offending. Further, his awareness of the consequences will provide significant motivation to do so.
The Applicant’s desire to gain employment is also relied upon as a significant protective factor. It is submitted that the Applicant has a ‘proven track record in being able to maintain employment’ and has worked in a number of different skilled and semi-skilled labouring jobs. In order to support his family after his father became ill, the Applicant ‘would do whatever job [he] could get [his] hands on’. He has also provided a copy of his work health and safety general construction induction card which he says he obtained so that he may work in concreting.
The evidence regarding the Applicant’s employment is incomplete. It appears that since leaving school the Applicant has held a number of different jobs, which were either short term engagements or longer-term roles offering intermittent work.
From 27 December 2019 the Applicant was employed at CSI Main Textiles factory whilst in prison. A NSW Corrections Case Note Report dated 11 November 2020 records that the Applicant ‘has a poor work ethic and overseers advised he spends his time playing cards/training. When discussed with him, he appeared unmotivated and said [he’d] never really worked much in [the] community and [wasn’t] used to having to do as [he’s] told’.
In considering the sum of the evidence I have reservations about the protective factors cited by the Applicant reducing the risk of him reoffending to a significant degree.
To conclude that the Applicant’s risk of reoffending is trending towards low is to accept that the Applicant is committed to making – and sustaining – significant changes to support the protective factors which he has identified.
The reassurance provided by Applicant’s increased maturity and the chastening effect of being imprisoned and having his visa cancelled is limited by the paucity of probative evidence to support these contentions. Owing to the extended period over which he has been offending and the nature of his criminal history, I have significant reservations as to Applicant’s resolve and the longevity of his stated desire to change.
Overall, based on the Applicant’s history of offending, the limited evidence of meaningful reform and making allowances for his youth and increasing maturity, I consider there to be at least a medium risk that the Applicant will reoffend.
When both aspects of this Primacy Consideration are taken into account, the evidence weighs heavily in favour of non-revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2 - FAMILY VIOLENCE
As there is no evidence that the Applicant has engaged in conduct that constitutes family violence, this primary consideration carries no weight.
PRIMARY CONSIDERATION 3 - THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
The Tribunal is required to consider the impact of non-revocation of the cancellation decision on any minor children in Australia who would be affected by the decision. The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia.
The Applicant does not have any children of his own but his brother AL has three children – aged 8, 3 and 6 years old - who the Applicant met when they were young. The Applicant was also visited by the children whilst he was in prison. Both the Applicant and AL intend that he is a part of the children’s lives. Whilst AL and the children’s mother have separated, AL has shared custody of the children who he visits approximately one week each month.
I accept that it would be in the best interests of the children that they have the ongoing familial support that the Applicant is able and willing to provide. It is also relevant that family is extremely important in Maori culture. Overall, it would be in each child’s best interest that the cancellation decision be revoked.
Having taken into consideration the limited evidence of an existing relationship between the Applicant and the minor children and that his role is not parental, this primary consideration weighs in favour of revoking the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4 - EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.4 of the Direction requires me to consider the expectations of the Australian community. Subparagraph 8.4(1) relevantly states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In FYBR v Minister for Home Affairs [2019] FCAFC 185 the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration. That is, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to paragraph 8.4 of Direction 90.

It was submitted on behalf of the Applicant that the expectations of the Australian community might be given less weight in circumstances where the Applicant’s visa was cancelled by virtue of an offence for which he was later acquitted, and the formative years lost being held in remand. The Respondent argues that the Australian community would consider that the Applicant has been afforded opportunities for reform in the past such that the Australian community would not consider extending favorable treatment to the Applicant.
In considering these submissions I am mindful that the intention of this primary consideration is such that it inevitably weighs against revocation because that is what it is intended to do. In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 Justice Mortimer stated in relation to the last two sentences of paragraph 13.3 of the Direction, which is the equivalent of paragraph 8.4 in Direction 90:
…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure or this part of the Direction.
I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…
Paragraph 8.4 of the Direction sets out the expectations of the community that I am required to consider. I am satisfied that in offending the Applicant breached the trust of the Australian community. However, the Australian community may afford a higher level of tolerance given the Applicant’s circumstances, notably that he has lived in Australian from a relatively young age. Observing the norm and the principles outlined in paragraph 5.2 of Direction 90, I am satisfied that the expectations of the Australian community would normally weigh against revoking the visa cancellation on account of his criminal conduct, history of recidivism and the risk of his reoffending.
In light of the above, this primary consideration weighs against revocation.
OTHER RELEVANT CONSIDERATIONS
I now turn to the other relevant considerations set out in the Direction.
Extent of impediments if removed
I am required to consider the extent of any impediments the Applicant may face if removed from Australia to New Zealand, in establishing himself and maintaining basic living standards in the context of what is available to other citizens of New Zealand.
The Applicant is concerned he would have limited support in New Zealand, limited social networks and difficulty securing employment in New Zealand. He fears these circumstances may lead to him becoming homeless.
It is submitted on behalf of the Applicant that in New Zealand he would be removed from many of the protective factors which may prevent him from offending.
The Applicant lived in New Zealand until he was 11 years of age, providing a degree of familiarity. New Zealand would not present any substantial language or cultural barriers.
That said, there is a strong possibility that he would face some initial difficulty re-establishing himself in New Zealand. Further, I am mindful that establishing himself would be potentially more difficult than it would be in Australia where he would have the support of AL who has offered housing and assistance with securing employment. However, I consider that these difficulties should be surmountable for the Applicant.
The Applicant has one brother who is currently residing in New Zealand. He contends that he has not spoken to his brother in some time. Posts from the Applicant’s Facebook page were presented to the Tribunal by the Respondent. The entries before the Tribunal indicate that he has some online interaction with his brother in New Zealand.
The Applicant’s mother KM gave evidence that she has extended family in New Zealand. She confirmed that they would offer support to the Applicant, although they would do so out of deference to her rather than on account of having an existing relationship with the Applicant. Asked if she thought that her family members would support the Applicant should he return to New Zealand she told the Tribunal that she did not know if they would support him. She said that whilst her family do not know the Applicant, they know he is her son and ‘will be there for him’.
The Applicant gave evidence that when released from detention he wishes to work on addiction, anger management and his mental health. Should he seek treatment for these conditions in New Zealand it is expected that the care he would receive for these disorders would be of an equivalent standard to that which is available in Australia.
I accept that the Applicant would face some obstacles in establishing himself in New Zealand, but he is young and physically healthy. There are no substantial language or cultural barriers. Though the Applicant would be deprived of his Australian support network, he would have access to family including his brother and relatives.
Having regard to the considerations set out in the Direction, I am satisfied that this consideration weighs in favour of revoking the mandatory cancellation, though I afford it less weight for the reasons outlined above.
Links to the Australian community
I am required to consider the strength, nature and duration of the Applicant’s ties to Australia. The Applicant arrived in Australia age 11 in 2011 and spent his formative years in Australia. He is now 21 years of age. He claims strong family and social ties to Australia.
Should the Applicant return to New Zealand it would have a detrimental impact on his family members. Notably his mother KM who has health issues. She has a heart condition which has been treated and a lower back injury. She also suffers from anxiety and depression. Her mental health benefits from the interaction she has with the Applicant and gave evidence that speaking to him over the phone helps to calm her. Should the Applicant be released in the community he could also assist her in managing her other health conditions. I accept that having the Applicant remain in Australia would be in her best interest.
The Applicant has siblings in Australia also, including AL and his sister CL who the Applicant is intending to live with should he be released from detention. It was apparent from AL’s evidence that he cares for the Applicant and wants the best for him. The Applicant’s absence will be difficult for AL. Should the Applicant be removed it would also have an impact on AL’s children and the Applicant’s extended family in Australia.
The Applicant also has sporting ties to the community owing to his previous involvement in rugby league.
Overall, this consideration weighs in favour of revoking the cancellation decision.
CONCLUSION
In weighing the considerations, I find that the protection of the Australian community and the expectations of the Australian community weigh heavily against revoking the cancellation of the Applicant’s visa. The factors which have been identified as reducing the risk of his reoffending are largely untested. The Applicant’s offending is of sufficient seriousness and frequency that even after allowance is made for the Applicant’s age at the time of his offending, the protection of the Australian community in particular weighs heavily against revoking the visa cancellation.
The primary consideration in relation to the best interests of AL’s children weighs in favour of revocation of the cancellation decision, as do the Applicant’s ties to the Australian community and the impediments he would be expected to face in New Zealand.
Weighing all the relevant primary considerations and other considerations, I find that there is not another reason why the cancellation decision should be revoked and that the correct and preferable decision is that the decision of the delegate be affirmed.
DECISION
The decision of the delegate of the Respondent dated 7 October 2021 not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is affirmed.

I certify that the preceding 153 (one hundred and fifty-three) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

.....................................[SGD]...................................
Associate
Dated: 25 January 2022

Date(s) of hearing: 13, 14 & 20 December 2021

Counsel for the Applicant: Mr D Mulligan

Solicitor for the Applicant: Ms H Gray, Legal Aid

Solicitor for the Respondent: Mr A Cunynghame, Sparke Helmore

[2021] AATA 5084

24 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Appeal

Date(s) of hearing:	13, 14 & 20 December 2021
Counsel for the Applicant:	Mr D Mulligan
Solicitor for the Applicant:	Ms H Gray, Legal Aid
Solicitor for the Respondent:	Mr A Cunynghame, Sparke Helmore