VNPC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 4628

VNPC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4628 (15 December 2021)
Division:GENERAL DIVISION
File Number: 2020/0201
Re:VNPC
APPLICANT

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

DECISION
Tribunal:Deputy President Boyle
Date:15 December 2021
Place:Perth

The decision of the delegate of the Minister dated 3 January 2020 to refuse to grant the Applicant a Protection (Class XA) visa under s 501(1) of the Migration Act 1958 (Cth) is affirmed.
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – delegate refused to grant Applicant a visa (Migration Act s 501(1)) – delegate not satisfied that Applicant passes the character test – whether Tribunal should exercise discretion to refuse to grant the visa in the circumstances – Direction 90 applies – Australia owes the Applicant protection obligations – legal and practical consequences of a decision not to grant the visa (Migration Act ss 197C and 198) – considerations against granting visa outweigh considerations in favour of granting visa – reviewable decision affirmed
LEGISLATION
Migration Act 1958 (Cth) s 36A, 36(2)(a), 36(2)(aa), 48A, 197C, 189, 189(1), 196, 198, 198(1), 499, 499(1), 499(2A), 500(1)(b), 501, 501(1), 501(3), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501(7)(d), 501CA(4)
CASES
Applicant inWAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
BAL19 v Minister for Home Affairs [2019] FCA 2189; (2019) 168 ALD 276
CZCV and Minister for Home Affairs [2019] AATA 91
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; (2017) 253 FCR 576
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 66
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108; (2020) 279 FCR 1
LQZW and Minister for Home Affairs [2019] AATA 93
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591

NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1
Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359
NKWF v Minister for Immigration and Border Protection [2018] FCA 409
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
RJFB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1284
RQRP v Minister for Immigration, Citizenship and Multicultural Affairs [2021] FCA 266
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424
Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146
Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 144; (2020) 278 FCR 386
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
SECONDARY MATERIALS
Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth) pp 19, 20
Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) p 14
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018) para 12.1(2)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021) paras 5.1, 5.1(1), 5.1(2), 5.2, 5.2(1), 6, 7, 8, 8.1, 8.1.1, 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2,8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.2(2)(b), 8.3, 8.3(4), 8.4, 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 9, 9.1, 9.1(2), 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3, 9.4, 9.4.1, 9.4.1(2)(a), 9.4.1(2)(a)(i), 9.4.1(2)(a)(ii), 9.4.2
REASONS FOR DECISION
Deputy President Boyle
15 December 2021
THE APPLICATION

The Applicant seeks review of a decision of a delegate of the Respondent (Minister) dated 3 January 2020[1] to refuse to grant him a Protection (Class XA) visa under s 501(1) of the Migration Act 1958 (Cth) (Act).
[1] R1, G8.
The delegate was not satisfied that the Applicant passed the character test within the meaning of s 501(6) of the Act and decided to exercise their discretion under s 501(1) of the Act to refuse to grant a visa to the Applicant.
The application is made pursuant to s 500(1)(b) of the Act which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister made under s 501 of the Act.
THE ISSUES
The issues before the Tribunal are whether the Applicant passes the character test as defined in s 501(6) of the Act, and if he does not, whether the Tribunal should exercise the discretion in s 501(1) to refuse to grant the visa.
BACKGROUND
The applicant is a 38-year-old citizen of Turkey. He was granted a Class BC (Subclass 100) Partner Permanent visa on 26 May 2001 and first arrived in Australia on 30 June 2001.[2]
[2] R1, G14.
The Applicant has an extensive criminal record. He has been convicted of 92 offences (including breaches of various court orders) since September 2004[3] and has been sentenced to terms of imprisonment for the following offences (dates reflect date of sentencing):[4]
[3] R1, G9.
[4] Dates reflect the date of sentencing.
(a)27 May 2006 – aggravated burglary - person present, theft, and recklessly cause injury – aggregate four months;
(b)5 June 2006 – breach of intensive correction order (ICO) – 95 days;
(c)16 November 2006 – unlawful assault – four months;
(d)16 November 2006 – recklessly cause serious injury – six months;
(e)1 June 2007 - criminal damage, and unlawful assault – aggregate one month;
(f)21 June 2007 – criminal damage – 14 days;
(g)18 July 2008 – dishonestly receive stolen goods – one month;
(h)18 July 2008 – burglary, and theft – aggregate six months;
(i)7 October 2008 – theft – seven days;
(j)13 November 2009 – aggravated burglary - person present (three counts), and theft – aggregate nine months;
(k)25 August 2010 – recklessly cause serious injury – 30 months;
(l)20 April 2012 – dishonestly assist in disposal of stolen goods, fail to answer bail, and dishonestly undertake in realisation of stolen goods – aggregate 33 days;
(m)8 March 2016 – robbery – two years;
(n)5 July 2016 – breach of intensive supervision order – six months;
(o)5 July 2016 – gains benefit by fraud – two months; and
(p)5 July 2016 – Assault occasioning bodily harm – nine months.
Some of the above terms of imprisonment were to be served concurrently, were suspended or were to be served by ICO. The Applicant’s full criminal record is set out in the Annexure to these reasons for decision.
On 18 April 2016 the Applicant’s partner visa was mandatorily cancelled pursuant to s 501(3A) of the Act on the basis that the Applicant did not pass the character test.[5]
[5] R1, G12.
The Applicant made representations seeking revocation of the mandatory cancellation decision and on 4 November 2016 a delegate of the Minister decided not to revoke the cancellation of the partner visa under s 501CA(4) of the Act.[6]
[6] R1, G13.
On 21 April 2018 the Applicant lodged an application for a protection visa.[7]
[7] R1, G16.
On 17 August 2018 a delegate of the Minister decided that the Applicant is not a person in respect of whom Australia has protection obligations as outlined in ss 36(2)(a) or 36(2)(aa) of the Act. The Applicant sought review of that decision in the Migration and Refugee Division of the Tribunal and, on 18 March 2019, the Tribunal set aside the delegate’s decision and remitted the matter with a direction that Australia has protection obligations in respect of the Applicant pursuant to s 36(2)(aa) of the Act.[8]
[8] R1, G19.
On 24 December 2019, the Federal Court handed down the decision in BAL19 v Minister for Home Affairs.[9]
[9] [2019] FCA 2189; (2019) 168 ALD 276.
On 3 January 2020, a delegate of the Minister refused to grant the protection visa pursuant to s 501(1) of the Act.[10]
[10] R1, G8.
By decision dated 6 February 2020, the Tribunal set aside and remitted for reconsideration the delegate’s decision on the basis that the delegate could not refuse a protection visa pursuant to s 501(1) in accordance with the judgment in BAL19. The Tribunal did not otherwise make any findings in relation to the merits of the decision.[11]
[11] R1, 206–11.
The Minister appealed the Tribunal’s decision to the Federal Court of Australia on the basis that BAL19 was wrongly decided.
On 23 June 2020 the Full Court judgment in KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[12] was handed down. In that judgment, the Full Court found that BAL19 was wrongly decided.
[12] [2020] FCAFC 108; (2020) 279 FCR 1.
On 20 October 2020 the Federal Court, by consent, quashed the Tribunal’s decision and remitted the application to the Tribunal for redetermination according to law. The decision the subject of this review is therefore the decision made by the delegate of the Minister dated 3 January 2020 (see [13] above).
THE HEARING
The application was heard on 15 and 16 June 2021. The Applicant was represented by Mr F Faris of Rebus Legal, and the Minister was represented by Mr A Burgess of Sparke Helmore Lawyers. The Applicant and witnesses were assisted by an interpreter as required.
The following witnesses gave evidence at the hearing:
(a)the Applicant;
(b)the Applicant’s father;
(c)the Applicant’s mother;
(d)the Applicant’s family friend OI; and
(e)the Applicant’s brother.
The following documents were admitted into evidence:
(a)Applicant’s statement dated 4 March 2021 (A1);
(b)Mental health assessment report for the Applicant’s father dated 5 April 2021 (A2);
(c)Statutory declaration of the Applicant’s parents affirmed 27 April 2021 (A3);
(d)Statutory declaration of the Applicant’s brother and one other person, affirmed 24 April 2021 (A4);
(e)Statutory declaration of Applicant’s sister and brother-in-law, affirmed 25 April 2021 (A5);
(f)Statutory declaration of the Applicant’s friend, OI, affirmed 28 April 2021 (A6);
(g)Statutory declaration of a family friend of the Applicant, HY, affirmed 28 April 2021 (A7);
(h)Clinical certificate relating to the Applicant’s father, signed by Adam Ates, registered clinical psychologist, dated 15 April 2021 (A8);
(i)Letter from Jason Standing, clinical coordinator at Palmerston dated 30 April 2021 (A9);
(j)Letter from the Applicant’s father addressed to the Department of Home Affairs dated 19 February 2021 (A10);
(k)Letter from the Applicant’s mother addressed to the Department of Home Affairs dated 19 February 2021 (A11);
(l)Letter from the Applicant’s grandfather addressed to the Department of Home Affairs dated 19 February 2021 (A12);
(m)Letter from the Applicant’s brother addressed to the Department of Home Affairs dated 19 February 2021 (A13);
(n)Letter from the Applicant’s brother-in-law addressed to the Department of Home Affairs dated 19 February 2021 (A14);
(o)Letter from the Applicant’s niece addressed to the Department of Home Affairs dated 19 February 2021 (A15);
(p)Letter from the Applicant’s brother-in-law, MY, addressed to the Department of Home Affairs dated 19 February 2021 (A16);
(q)Letter from the Applicant’s sister-in-law addressed to the Department of Home Affairs dated 19 February 2021 (A17);
(r)Letter from the Applicant’s younger brother addressed to the Department of Home Affairs dated 19 February 2021 (A18);
(s)Letter from the Applicant’s sister addressed to the Department of Home Affairs dated 19 February 2021 (A19);
(t)Letter from the Applicant’s brother T addressed to the Department of Home Affairs, dated 19 February 2021 (A20);
(u)Respondent’s bundle of G documents (R1); and
(v)Respondent’s supplementary G documents (R2).
LEGISLATIVE FRAMEWORK
Section 501(1) of the Act is as follows:
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
(Original emphasis.)
Section 501(3) of the Act provides:
(3) The Minister may:
(a)refuse to grant a visa to a person; or
(b)cancel a visa that has been granted to a person;
if:
(c)the Minister reasonably suspects that the person does not pass the character test;
and
(d)the Minister is satisfied that the refusal or cancellation is in the national interest.
Section 501(6) of the Act relevantly 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));
Section 501(7) of the Act relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a)…; or
(b)…; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
(Original emphasis.)
Ministerial Direction 90
Section 499(1) of the Act provides that:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Section 499(2A) of the Act provides:
(1)A person or body must comply with a direction under subsection (1).
On 8 March 2021 the Minister, being the relevant Minister for the purposes of s 499 of the Act, made a direction titled “Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA”[13] (Direction 90). The commencement date for the operation of Direction 90 was 15 April 2021. Upon its commencement, Direction 90 revoked the operation of “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA”[14] (Direction 79).
[13] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021).
[14] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018).
Paragraph 5.1 sets out the objectives of Direction 90. Sub-paragraphs 5.1(1) and (2) provide:
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.
(2) Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
Paragraph 5.2 of Direction 90 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to refuse a visa under s 501. These principles are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 90 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 90 (where such considerations are relevant) in order to determine whether the visa should be refused.
Guidance in relation to how the relevant considerations are to be taken into account can be found in para 7 of Direction 90 which provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.

Paragraph 8 of Direction 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.
Paragraph 9 of Direction 90 provides:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)    international non-refoulement obligations;
b)    extent of impediments if removed;
c)    impact on victims;
d)    links to the Australian community, including:
i)strength, nature and duration of ties to Australia;
ii)impact on Australian business interests.
CONSIDERATION
Does the Applicant pass the character test?
Paragraph 1 of the Applicant’s Supplementary SFIC[15] makes the assertion that, “[t]he Minister must comply with Direction No. 90 which sets out an amended character test.”
[15] Supplementary – Applicant’s Statement of Facts, Issues and Contentions filed 3 May 2021.
That assertion is incorrect. The relevant character test is set out in ss 501(6) and 501(7) of the Act (see [23] and [24] above). The purpose of Direction 90 is set out in para 5.1 of that direction which, at para 5.1(4), describes the purpose of Direction 90 as being “to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act”.
Failure of the character test arises as a matter of law: Harrison and Minister for Immigration and Citizenship.[16] As noted above, the character test is defined in s 501(6) of the Act. Under s 501(6)(a) of the Act, a person will not pass the character test if the person has “a substantial criminal record”. Section 501(7)(c) 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...”, and s 501(7)(d) provides that a person will have a substantial criminal record if they have “been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more”. Both sub-sections apply in the Applicant’s case.
[16] [2009] AATA 47; (2009) 106 ALD 66.
The Applicant denies that he does not meet the character test.[17] The basis upon which the Applicant makes that claim, in light of his clearly having a substantial criminal record as that term is defined in s 501(7) of the Act, is not stated. The Applicant’s counsel provided no explanation at the hearing as to how the Applicant passed the character test given the Applicant’s extensive criminal record and multiple terms of imprisonment. I find that the Applicant does not pass the character test. Accordingly, the only issue for determination is whether the discretion not to grant the visa under s 501(1) of the Act should be exercised.
[17] Applicant’s Statement of Facts, Issues and Contentions date 21 January 2021 (Applicant’s SFIC) para 30.
PRIMARY CONSIDERATIONS
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1 of Direction 90 provides that when decision-makers are considering the protection of the Australian community, they:
(1) ... should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
(a) the nature and seriousness of the non-citizen’s conduct to date; and
(b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (para 8.1.1)
Paragraph 8.1.1 of Direction 90 provides:
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e) the cumulative effect of repeated offending;
(f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
The Applicant has an extensive criminal record (see [6] and [7] above). The offences of most concern are the those for robbery for which he was sentenced to two years imprisonment in March 2016, and the assault occasioning bodily harm for which he was sentenced to nine months imprisonment July 2016. The facts of the robbery were outlined by Martino J in sentencing the Applicant as follows:
The facts of the offence are that at approximately 9.30 pm on Thursday 9 April 2015 the victim and a friend were waiting for a bus at a bus stop in Rivervale. You did not know the victim or his friend. You approached them and a conversation commenced.
The victim removed his mobile phone from his pocket to check the time. You took the mobile phone from the victim’s hand without warning. The victim asked you to give it back. You then punched him to the chin with a closed fist. You attempted to strike the victim several more times.
You demanded money from the victim to enable him to get his phone back. He gave you a $50 note which you took. You then demanded $150 for the return of the phone. The victim handed you a further $50 note. You handed the phone back.
…
It is a serious offence, reflected by the maximum penalty of 14 years’ imprisonment. People such as the victim are entitled to go about their business in public places, such as bus stops, without being subjected to violence and stealing from them.
The statement of material facts produced under summons by the Western Australian Police[18] describes the facts of the assault occasioning bodily harm for which the Applicant was convicted in July 2016. It records the victim of this offence as being a mobile coffee vendor who was putting away stock in a nearby unit. The Applicant approached the victim, adopted a fighting stance, struck the victim in the face and bit the victim’s forearm.
[18] R2, 333.
There are a number of earlier incidents of violent offending. In March 2014, the Applicant was fined in the Perth Magistrates Court for assault occasioning bodily harm which occurred in November 2013. The statement of material facts produced under summons by the Western Australian Police stated that the Applicant and the victim got into a heated argument after the victim accused the Applicant of stealing a bread stick from a bakery.[19] The Applicant struck the victim twice in the face and bit the victim on his neck. The victim sustained cuts to his forehead and eye and a bite mark on his neck.
[19] R2, 343.
On 25 August 2010, the Applicant was sentenced to 30 months’ imprisonment (suspended for three years) in the Mildura County Court for recklessly causing serious injury. It appears that the incident that resulted in this conviction involved the applicant stabbing the victim with a kitchen knife in the back and biting off a section of his ear.[20]
[20] R2, 523.
On 16 November 2006 the Applicant was sentenced in the Mildura Magistrates Court for three offences including one count of recklessly causing serious injury for which he was sentenced to six months’ imprisonment and one count of unlawful assault for which he was sentenced to four months’ imprisonment to be served by way of ICO. The incident that resulted in the conviction for recklessly causing serious injury involved the Applicant chasing and then punching the victim several times to the head after the Applicant saw the victim talking to his girlfriend.[21] The Applicant breached the ICO and was resentenced on 1 June 2007.[22]
[21] R2, 535.
[22] R1, G9/96.
In May 2005, that Applicant was sentenced to an aggregate term of four months’ imprisonment to be served by way of ICO in the Mildura Magistrates Court on a conviction for aggravated burglary with a person present and recklessly causing injury.[23]
[23] R1, G6/96.
In addition to the above crimes of violence, the Applicant has multiple convictions for burglary, theft, property and drug related offences (cannabis) for which the penalties have included the payment of compensation, fines, ICOs, intensive supervision orders and sentences of terms of imprisonment ranging from seven days to nine months. He was convicted of three counts of aggravated burglary and sentenced to nine months imprisonment in the Mildura Magistrates Court on 13 November 2009. These offences involved the Applicant stealing property from houses, leaving the victim in one case extremely shaken and scared.[24]
[24] R2, 521.
The Applicant has also been convicted of numerous driving offences, including three counts of no authority to drive, two counts of drive when licence cancelled, two counts of driving under the influence, two counts of state false name/address, two counts of use unregistered motor vehicle, two counts of drive in breach of permit conditions, and one count each of drive motorcycle without wearing protective helmet, drive or use motor vehicle without consent, and exceed speed limit. The penalties included fines, licence cancellation, licence disqualification and a good behaviour bond.
The Applicant’s criminal record is very serious. In the period of 12 years from 2004 to 2016 the Applicant has been convicted of 92 offences.
In assessing the seriousness of the Applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction 90, I find that:
(a)(Paragraph 8.1.1(1)(a)) – the Applicant’s offending and conduct has been violent and has involved family violence. Although he has not been convicted of an offence that would constitute family violence, I am satisfied that the Applicant had committed family violence, as that term is defined in para 4(1) of Direction 90, against his wife. I deal with the family violence issue in more detail under that primary consideration (see [89]–[91] below). Accordingly, this offending and conduct must be viewed as very serious.
(b)(Paragraph 8.1.1(1)(b)) – the Applicant’s conduct was not of the type described in this consideration.
(c)(Paragraph 8.1.1(1)(c)) – the most significant sentence of imprisonment was that imposed by Martino J on the robbery charge. As his Honour noted,[25] the maximum penalty for that offence is 14 years’ imprisonment. While at the lower end of the scale, the term of imprisonment imposed is not insignificant and is indicative of the Court’s view of the seriousness of the Applicant’s offending.
(d)(Paragraph 8.1.1(1)(d)) – the Applicant’s offending is very frequent (92 offences over 12 years) with a trend of increasing seriousness.
(e)(Paragraph 8.1.1(1)(e)) – the cumulative effect of the Applicant’s offending is significant. It indicates that the Applicant is prone to violence and in particular to violence against innocent members of the public going about their lawful business. In addition to the significant number of offences involving violence, the repeated convictions for drug related, driving, property, and honestly offences demonstrate that the Applicant has no regard for the law.
(f)(Paragraphs 8.1.1(1)(f) and 8.1.1(1)(g)) – not relevant.
[25] R1, G10/100.
I am satisfied that the Applicant’s offending is to be viewed as very serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
Paragraph 8.1.2 of Direction 90 relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or serious conduct; and
b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the non-citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c)    where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
I am required to assess whether the Applicant poses an unacceptable risk of harm to the Australian community. This requires, in part, an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[26] The consideration also requires an assessment of the likelihood of re-offending.[27] There is no statutory constraint on the way risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[28]
[26] Direction 90 para 8.1.2(2)(a).
[27] Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, 389 [111] cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424, 444 [95], as well as Gilmour J in Applicant inWAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117, 124 [42]–[43]. See also Senior Member Dr Evans-Bonner in CZCV and Minister for Home Affairs [2019] AATA 91, [56].
[28] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J who referred to the basis for the assessment of the risk of re-offending as requiring a ‘rational and probative basis’.
Nature of harm to individuals or the Australian community (8.1.2(2)(a))
The Minister submits that the nature of the harm if the Applicant were to reoffend is very serious and could involve physical, psychological and financial harm to members of the Australian community, including road users, and their property. If that harm eventuates then, according to the Minister, there will be adverse consequences, not just to the victims of the offending, but also the health system and the justice system.
The Applicant acknowledges the gravity of his offending and that it involved violence such as assault occasioning bodily harm and robbery. He says that he has expressed remorse for his offending. The Applicant does not, however, make any specific acknowledgement of the harm that his offending has caused or the harm that would be caused in he were to reoffend.[29] Rather, the Applicant says that he was the “victim” of substance abuse and it was that which caused him to commit the offences.[30] He claims that he was unable to make rational decisions due to his unstable mind. The Applicant’s offending, according to him, should be considered in the context of both his personal background and the particular circumstances of the offending itself.
[29] Applicant’s SFIC para 38.
[30] Applicant’s SFIC para 39.
The harm caused to the community and to individual members of the community by the Applicant’s offending and the nature of the harm that would be caused if he were to reoffend is self-evident and serious. Of particular concern is the Applicant’s long history of violence. The impact of violence on the victims both physically and mentally is obvious. In addition, there are the knock-on effects of violence such as trauma to the family and friends of victims as well as the impact on the broader community through additional health and policing costs as well as, potentially, lost economic productivity.
The Applicant also has a history of drink-driving. The potential harm caused by drink-driving was discussed by McKerracher J in RQRP v Minister for Immigration, Citizenship and Multicultural Affairs[31] wherein at [48] his Honour observed:
In the case of drink-driving, the act poses an unacceptable risk to the life and wellbeing of other road users.
[31] [2021] FCA 266.
I find that the nature of the harm that would be caused to individuals or to the Australian community if the Applicant were to engage in the criminal offending behaviour that he has in the past to be serious and unacceptable.
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (8.1.2(2)(b))
The Applicant concedes that he has “an extensive criminal history”[32] but says that the majority of his offences are “petty crimes” and, as noted above, that he was the “victim” of substance abuse which caused him to commit the offences. He claims that he was unable to make rational decisions due to his unstable mind. His offending, according to the Applicant, should be considered in the context of both his personal background and the particular circumstances of the offending itself, in particular that the majority of the offences were committed when he was under the influence for drugs and/or alcohol.
[32] Applicant’s SFIC para 45.

The Applicant says that while in prison serving the sentence imposed in 2016, he took steps to ensure that he improved his behaviour by undertaking and completing a Violence Treatment Program, as he wanted to ensure that he received the required treatment to manage his aggressive behaviour. The Applicant says that he also received training and became certified in food safety and hygiene and completed the Pathways Program to assist him in gaining the coping skills to prevent a return to criminal thinking or offending behaviour.
Significantly, according to the Applicant, he served his sentence without incident, and did not use any drugs or substances that were available to him. The Applicant says that disavowal of drugs and alcohol during his time in prison resulted in his serving his sentence without incident. This, according to the Applicant, showed his self-control and restraint, and commitment to reforming his character.
The Applicant refers to the letter from the Department dated 18 September 2019 which outlined incidents that the Applicant has been involved in during his time in immigration detention. This document noted that at that time, the Applicant had been involved in one major incident and twenty minor incidents. The Applicant disputed the accuracy of the claims made in that letter. In his SFIC the Applicant says that the author of the report, Serco, is a private company who assists in the management of the immigration detention centre and as such is not impartial in recording the facts. According to the Applicant, the report is not independent evidence of the Applicant’s alleged misconduct.
The Applicant further submits that the report does not give context to the circumstances in which the claimed incidents occurred. As a result, the reports cannot be considered authoritative. This is confirmed, according to the Applicant, by his written statement[33] which outlines that he had been physically attacked because he refused to assist in obtaining drugs for other detainees.
[33] Applicant’s SFIC, Annexure F.
In response, the Minister contends that the Applicant remains an unacceptable risk because:
(a)He has a lengthy history of committing crimes in this country over an extended period. The most recent judicial officer sentencing the Applicant, Justice Martino on 5 July 2016, identified that the Applicant had a ‘bad record’ and a record that was extensive.[34]
(b)Sentences imposed in the past, including terms of imprisonment requiring time to be served, have not been a deterrent from reoffending. The Applicant’s criminal history demonstrates that he does not respect and comply with orders made by courts, having breached such orders a number of times in the past.
(c)While the Applicant asserts that he has undertaken rehabilitation whilst incarcerated and in immigration detention, no independent evidence has been provided of any treatment undertaken specifically targeted towards drug and alcohol abuse. The Applicant has also not identified how he proposes to refrain from abusing drugs and alcohol if he is returned to the community. Whilst it is contended on behalf of the Applicant that he has not used drugs during his time in prison, abstaining from these substances whilst in lawful custody is a different proposition to abstaining whilst in the community where access to drugs and alcohol is more freely available. This is particularly so in a case such as this where the Applicant reported heavy consumption of alcohol in 2015, drinking a six pack every day.
(d)The Applicant’s behaviour whilst in immigration detention does not support his claim that he will not reoffend.[35] Immigration detention incident reports identify that the Applicant’s behaviour has included verbally abusing detention centre staff on 22 May 2019 by stating to an officer “get a job you cunt”, repeatedly punching a detainee in the face for not participating in a hunger strike on 6 February 2019, becoming verbally abusive towards gardeners by stating that he would “smash them” on 9 October 2018, striking another detainee on 27 September 2018, becoming verbally abusive towards detention centre staff on 6 August 2018 stating “fuck you fucking dog cunt” and “game on cunt, game on” and fighting with another detainee on 24 June 2018.
(e)The Applicant has provided multiple character references from his family. Any support that the Applicant’s family may be willing to provide upon release should be given limited weight in circumstances where their support was not a protective factor in the past. Limited weight also should be placed on the Applicant’s other character references as the support network did not prevent him from offending in the past and there is no compelling evidence to suggest that the same support would be any more effective in the future.[36]
(f)Given that the Applicant has been in custody or immigration detention since March 2016, the Minister contends that sufficient time has not elapsed where the Applicant has been in an unsupervised environment within the community and the “likelihood of his reoffending remains a real possibility.”
[34] Citing R1, G10.
[35] R1, G11/103–13.
[36] Citing LQZW and Minister for Home Affairs [2019] AATA 93.
The Applicant was cross-examined about the accuracy of the reports relating to his time in immigration detention. He was taken to a report about an incident on 24 June 2019[37] which recorded an incident in which the Applicant and another detainee had been involved in a physical altercation. The report indicated that the other detainee had struck the Applicant first. The Applicant agreed that the report accurately reflected what had occurred on that day.[38]
[37] R1, G11/113.
[38] transcript at 34.
The Applicant was then taken to a report of an incident on 15 October 2018[39] which reported the Applicant as having sworn at detention centre officers and said, “words to the effect of ‘Fuck off you fucking dog cunt’” and “Game on, cunt, game on”. This was recorded on a search camera. The Applicant again conceded the accuracy of that report.[40]
[39] R1, G11/112.
[40] transcript at 35.
The Applicant was next taken to a report of an incident on 27 September 2018[41] which recorded the Applicant striking another detainee with a closed right hand. The Applicant accepted that that was an accurate report of what occurred on that day.[42]
[41] R1, G11/110.
[42] transcript at 35.
A report dated 8 October 2018[43] was put to the Applicant. This report recorded that the Applicant and another detainee had approached gardeners who were mowing a lawn and started verbally abusing them stating that they would “smash them if they came back”. Again, the Applicant accepted that the report was accurate.
[43] R1, G11/109.
The Applicant was cross-examined about a report of an incident on 22 May 2019,[44] which reported the Applicant as becoming abusive towards staff because he was late and could not attend a music class. He told the staff member to “get a job you cunt”. The Applicant agreed that that had occurred as reported.
[44] R1, G11/103.
The Applicant was also asked about a report of an incident on 6 February 2019 which recorded that the Applicant and another detainee had attended a third detainee’s room and assaulted him for not participating in a hunger strike. The Applicant strongly denied that he had been involved in that incident. His evidence was that that matter had gone to court and he had been found not guilty.[45] It is the case that there is no conviction recorded against the Applicant in relation to that incident and I accept the Applicant’s evidence in relation to that incident.
[45] transcript at 37.
The Applicant was not re-examined in relation to any of these reports, which he admitted included reports from his time in detention and earlier reports by police relating to incidents of domestic violence involving the Applicant. With one exception, (noted at [69] above) the Applicant accepted the reports as being accurate.
At the commencement of the second day of the hearing on 16 June 2021, Mr Faris made an oral application to “re-open in relation to a couple of matters”. The matters were the Applicant’s conduct in immigration detention and the violence against his wife. Mr Faris explained the basis of the application as being that:
… when the questions were posed to him, by the respondent, they were read in big segments and he was too nervous, too stressed, and he just agreed with the facts, as they have been read.[46]
[46] transcript at 71.
The Minister objected to the Applicant reopening his case. As the Minister pointed out, the Applicant had subsequently sat through the evidence of the other witnesses. Mr Burgess pointed out, correctly, that contrary to Mr Faris’ submission, the Applicant had not simply accepted everything that was put to him. He strongly denied the accuracy of the incident report dated 6 February 2019 (see [69] above) as well as some of the details of the police detected incident reports. Mr Burgess also pointed out that, independently of any report, the Applicant accepted that he had been violent towards his wife during their marriage.
Mr Burgess described the application to reopen the Applicant’s evidence as follows:
He’s then gone away, had an opportunity to rethink how that might effect the application he makes to the [T]ribunal. He’s had an opportunity to speak to his solicitor, I’m not casting any aspersions on my friend about what that might have meant, but he’s had the opportunity to seek advice about what the consequences of certain answers he has given might be. If he is now to change those answers, after, as well, hearing other witnesses evidence, it’s…[47]
[47] transcript at 72.
Mr Burgess pointed out that the Applicant was represented by competent counsel throughout, who did not re-examine the Applicant on the matters in relation to which he sought to reopen.
The questions put to the Applicant were put in clear, simple terms. Contrary to Mr Faris’ submission, the sections of the reports that were read to the Applicant were not particularly long and their content was not complex or multifaceted. No objection was taken by the Applicant’s counsel to the way in which the questions were put and there was no suggestion that the Applicant did not understand what was being read to him.[48] I am satisfied that the questions were put fairly, that the Applicant understood what was read to him and asked of him, that the answers given by the Applicant were given with a clear understanding of the question. I am satisfied that the Applicant was afforded procedural fairness.
[48] transcript at 73.
I agree with Mr Burgess’ assessment that what happened was that overnight the Applicant thought about the consequences of the answers that he had given and was seeking the opportunity to resile from those answers. To reopen the evidence, in my view, would have been an inappropriate course.
The Applicant did provide letters of support from family and community members, some of whom stated that the Applicant was a changed person and that they would support him. In most cases the statements did not say what form that support would take and were vague as to how the Applicant had changed, or what plans or strategies he had to avoid returning to offending.
One statement of support that was a little more fulsome as to the support that the Applicant would have if he were allowed to stay in Australia, was that of OI.[49] OI’s statement advised that he had established a Turkish school in Western Australia and founded the Turkish Education and Cultural Association. He has, according to his statement, known the Applicant’s family since about 2010 when they first came to Perth and advised that he and the Turkish community will support the Applicant, and that he is sure that the Applicant will become involved in the association’s activities.
[49] A6.
OI’s evidence at the hearing was that he has been involved in the local Turkish community for forty-one years, during which time he and the association have provided educational and other support to members of the Turkish community. Unfortunately for the Applicant, OI’s pledge of support for the Applicant was given without knowledge of the sorts of offences of which the Applicant has been convicted. OI was asked in cross-examination whether he was aware that the Applicant had multiple drug possession charges and a cultivation charge and that he was a drug user. OI advised that he would not support the Applicant because he had used drugs.
OI was re-examined on that issue as follows:
MR FARIS:     [OI], just to follow up on the same line of questioning, if VNPC    is a drug user, he’s not a drug supplier, would you support   him?
WITNESS:     No.
MR FARIS:     So you’re not going to support him as a user as well?
WITNESS:     No, not even as a user.[50]
[50] transcript at 80–1.
The Applicant provided a document titled Statement of Remorse and Apology.[51] In that document the Applicant talked about the pain that his offending had caused to him and his family. He says that his offending has caused him to go “through immense psychological and emotional trauma which has exposed [him] to significant mental health challenges”. He said that the sentence in 2016 was a “wakeup call to help [him] have a much better reflection into [his] offending behaviour”. He lists training and courses that he has completed as being:
[51] A1.
(a)Peaceful Pathways – Acacia;
(b)Life Skills (Communication and Change) – Outcare;
(c)Critical Reasoning;
(d)Cognitive Skills;
(e)Narcotics Anonymous;
(f)Drug and Alcohol Brief Intervention Program;
(g)Alcoholics Anonymous;
(h)Interpersonal Perspective Taking and Relapse Prevention;
(i)Violent Offender Treatment Program – Acacia; and
(j)Addiction Recovery Process – Whitehaven.
In that statement, the Applicant says that the aggression and abuse that he has shown to immigration detention centre staff and other detainees was a consequence of bad judgment and precipitated by long years of mental health challenges that he has endured. He says the treatment that he is now receiving is addressing that and that he has discussed with IHMS continuing treatment through mental health pathway programs with another medical centre in Perth if he were to be released. He says that he knows his offending is related to his drug and alcohol use and he will continue with his drug and alcohol treatment.
He also refers to his several nephews, nieces and his elderly parents whom he says he wants to support.
While the Applicant has undertaken a number of courses during his time in prison and immigration detention, I am not satisfied that he is not a significant risk of returning to his long-standing use of drugs and alcohol and reoffending. The Applicant has had numerous opportunities to address his substance and alcohol abuse. He has been imprisoned on at least two previous occasions and has, through various ICO’s and community-based supervision orders, had the opportunity address his addictions. He has not done so in the past and I am not satisfied that there has been a sufficient change in the Applicant to be satisfied that this time will be different.
I am also conscious that the environment into which the Applicant would be returning if he were allowed to stay in Australia would be materially the same as that which saw the Applicant offending in the past. I agree with the Minister’s assessment of the factors as set out in [63] above. I asses the Applicant as a high risk of reoffending.
I find that the first primary consideration, the protection of the Australian community, weighs heavily against the Applicant being granted a visa.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
Paragraph 8.2 of Direction 90 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.
The Minister’s Amended Statement of Facts, Issues and Contentions dated 24 May 2021 states that there is no evidence before the Tribunal that the Applicant has committed family violence. That, however, changed at, or shortly prior to the hearing, with the production of police reports under summons and admissions made by the Applicant in evidence.
The Applicant’s counsel in closing submitted that while there is a report of an incident that occurred in 2006/2007 in relation to allegations of domestic violence, the Tribunal should give little weight or be neutral in relation to this allegation because the Applicant was not charged in relation to that matter.
The Minster, however, in closing pointed out that the report[52] noted that there had been violence throughout the marriage which had not been reported to police and further noted that the Applicant had struck his wife a number of times around the face and head. It further noted that the following day, the Applicant had grabbed his wife by the throat and struck her. The Applicant accepted that those events were correctly described by his former wife and that he had, in fact, struck his then wife and grabbed her around the throat.[53]
[52] R2, 543.
[53] transcript at 33.
The Minister noted a further report[54] which also referred to the Applicant engaging in family violence in December 2008. Again, that report was put to the Applicant in cross-examination and the Applicant accepted it as correct.[55] In fact the Applicant accepted, when it was put to him, that “throughout that relationship with [omitted] … [he] physically abused her…”[56]
[54] R2, 541.
[55] transcript at 33.
[56] transcript at 34.
The Applicant’s submission that I should give little weight to this allegation (or the consideration should be treated as neutral) because the Applicant was not charged in relation to that matter overlooks two points. Firstly, para 8.2(2)(b) of Direction 90 specifically provides for “information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence” to be taken into account. The reports produced by Victoria Police under summons fall into that category. Secondly, the Applicant conceded in cross-examination that he had engaged in family violence against his former wife “throughout their relationship”.[57]
[57] transcript at 32–3.

I am satisfied that the Applicant has perpetrated family violence. The Minster contends that in looking at the seriousness of the family violence, while the Applicant conceded that he had regularly engaged in family violence against his wife, they had not been in a relationship since 2010 so there had been some time since the last known incidence of family violence. The Minster submitted that this consideration weighs heavily against the Applicant being granted a visa.[58]
[58] transcript at 98.
I find that this consideration weighs against the grant of a visa to the Applicant, however, because of the time that has passed since the last known incident of the family violence, I consider that moderate weight should be given to this consideration.
Third primary consideration: The best interests of minor children in Australia (para 8.3)
Paragraph 8.3 of Direction 90 provides:
(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse … the visa, is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant’s SFIC did not identify this consideration as being relevant. Paragraph 29 of the Applicant’s SFIC identified four considerations under Direction 79[59] as being relevant, which were:
(a)Protection of the Australian community;
(b)Expectations of the Australian community;
(c)International non-refoulement; and
(d)Impact on family members.
[59] Which was at that time the applicable Ministerial Direction.
The Applicant’s Supplementary SFIC did make submissions on this consideration under Direction 90.[60] The Applicant’s Supplementary SFIC identified the Applicant’s nieces and nephews as being relevant. Paragraph 7 of the Applicant’s Supplementary SFIC referred to the two children of the Applicant’s brother, T, who “call[s] the Applicant up to three or four times a week” and that the “[t]he Applicant is involved in their lives by calling on special days such as birthdays and whenever the children are sick.”
[60] Applicant’s Supplementary SFIC paras 4–13.
Paragraph 8 of the Applicant’s supplementary SFIC stated that the Applicant’s sister, E, has three children and that “[t]he Applicant regularly video calls his sister’s family in order to talk to the children and assure them he will see them soon”.
In opening, Mr Faris referred to the Applicant having 11 nephews and nieces ranging in age from six months to 16 years and submitted that the Applicant “wants to play a positive role in their life and reflect on his past experiences, including his criminality”.[61] When Mr Faris referred to the Applicant having 11 nieces and nephews, I pointed out that the Applicant’s Amended SFIC referred to only five nieces and nephews, to which Mr Faris responded that:
… he has a total of 11 but five that he is on a daily contact with or a weekly contact with, Mr Deputy President. Some of those they are still under the age of two or three, so he can’t speak with them only their parents. The applicant has indicated he wants to play a positive role in their life and his brothers and siblings they want his positive roles in their life.[62]
[61] transcript at 3.
[62] transcript at 3.
The Applicant’s evidence in examination-in-chief was:
MR FARIS:     … You mentioned you have 11 nieces and nephews. How often are    you in contact with these nieces and nephews?
APPLICANT:   (Indistinct) big one, my older brother’s daughter every day, my    younger brother’s daughter every day, because they can talk to me,   but the other ones, they’re young still. They’re 2 years old, 6 months   old and 3 years old. I talk to them, but they don’t understand what’s   going on, they think that I’m in the army. They think their uncle go   somewhere, is going to come home soon.
MR FARIS:     You mentioned earlier different family members have visited you    while you were in [Yongah Hill Immigration Detention Centre], and   they used to visit you on a weekly basis. Were any of them your   nieces and nephews?
APPLICANT:   Yeah, the older ones came, because they don’t want to send the kids                    – my brother and sister and all that, they don’t want to send their kids   into a detention centre. They don’t want them to see me that way,   you know? Yeah, that’s why I talk to them on the Facebook all the   time, on the FaceTime,…
MR FARIS:     Okay. And you’re saying the older ones, how many are we talking?    Old ones?
APPLICANT:   The older ones – there’s two. My older brother – she’s like 14 years    old now, and my younger, younger one is maybe 8 years old, 6 years   old.
MR FARIS:     Okay, and what’s the difference going to be between them seeing    you by FaceTime, and seeing you in person?
APPLICANT:   It’ll be the world for me. I want to be there, I want to support them, I    want to be a role model, because our family, very close family, you   really touch each other. I just want to be there, I want to take them to   the park, I want to take them to school, I want to be there for them.   And be male role for them.[63]
[63] transcript at 17.
When I sought clarification from the Applicant about his nephews and nieces, he identified his brother as having four children, not three. These children were, according to the Applicant, one child aged 14, twins aged six and one child aged two.[64] His evidence was that “[w]hen I ring my brother, or my sister in law I talk to them. But the oldest one rings me all the time, saying, ‘What are you doing Uncle? How you been Uncle?’” His evidence was that, other than via FaceTime, he has had no contact with the six-year old twins or the youngest child.[65]
[64] transcript at 38.
[65] transcript at 39.
Under cross-examination, however, the Applicant’s evidence (asked twice) was that his twin nieces were four years old and that they were born after he went to gaol the last time.[66]
[66] transcript at 43.
The fifth child to whom the Applicant claims to be close is his sister’s child who is about six years old. The Applicant’s evidence was that he speaks to this child when he talks to his sister on FaceTime.[67] The child was born a matter of months before the Applicant was imprisoned. His evidence was that his siter has three children, two of whom were born after he went to prison.[68]
[67] transcript at 43.
[68] transcript at 44.
In closing in relation to the best interests of children, Mr Faris submitted:
His nieces and nephews, they are very attached to him and they will be devastated if he would be removed from Australia or detained for an indefinite period of time. His nieces and nephews, they need his positive support in their life, and his siblings, they need him and they need his support in their life and in their children’s life.[69]
[69] transcript at 89.
I then asked Mr Faris what the evidence was which showed that the best interests of the Applicant’s nephews and nieces would be served by the Applicant being granted a visa:
TRIBUNAL:     Sorry, just before you move off that one, you made the statement that                    his siblings and his nephews and nieces need his support. What’s   the evidence of them needing support? I think, would it be fair to say,   the sum total of all the evidence was that they would want him to stay,   not that they need him to stay? He hasn’t provided any financial   support.
MR FARIS:     Yes.
TRIBUNAL:     He has had no contact, effectively meaningful contact prior to his    being incarcerated in April 2015. I just want to give you the chance   to point me to what evidence there is of a need, as distinct from just   simply, as any family member would, they would rather the brother   stayed or the uncle stayed.
MR FARIS:     The evidence arises, Deputy President, through the testimony of the    applicant’s father and his testimony where he has developed that   close net of connection with the family since he has been detained.   They have been visiting him, including the young ones.
TRIBUNAL:     Yes, okay, but that really doesn’t establish a need, does it? No one    is dependent on the applicant? They would rather he stayed here,   and there will obviously be psychiatric or psychological impacts on all   of the family, in particular his mother and his father, if he’s removed.
MR FARIS:      Yes.
TRIBUNAL:     But is there anything above that or beyond that or outside that which    would indicate that anybody is dependent on the applicant, or that   they need the applicant to stay as distinct from just that being their   preference or their wish?
MR FARIS:     Well, it’s a wish for the family members per se, but that wish is    exacerbated by the close net of the family ties and due to his cultural   background. They live in a one family unit, and that’s going to include   the parents, and including their siblings and including their children,   which are his nieces and nephews.[70]
[70] transcript at 89–90.
The Minister contended that the Applicant’s contact with his nieces and nephews was limited to phone and video calls, including calling them on “special days such as birthdays and whenever the children are sick.”[71] The Minister’s SFIC submitted that the identified children’s best interests:
… should be given very little weight for these reasons:
a.    The children’s parents presently fulfil the day to day parental role (paragraph 8.3(4)(e) of Direction 90).
b.    The applicant’s relationship with the children has been marked with lengthy absences given his most recently period of incarceration (paragraph 8.3(4)(a) of Direction 90).
c.     The extent to which the applicant is likely to play a positive parental role to the children in the future is doubtful given his lengthy criminal history including for offences of a violent nature (paragraph 8.3(4)(b) of Direction 90).
d.    There is no obvious impediment to the applicant communicating with the child via electronic means (as he does now) if he returned to Turkey (paragraph 8.3(4)(d) of Direction 90).
[71] Minister’s SFIC para 41.
I agree with the Minister’s assessment. The Applicant appears to be fond of his nieces and nephews and, based on the statements provided by their parents and grandparents,[72] it appears that the children may miss the uncle.[73] However, there is little evidence upon which I can draw the conclusion that these children’s material or psychological best interests would be served by the Applicant being granted a visa. This is particularly the case when I consider the matters identified in para 8.3(4) of Direction 90.
[72] In particular A3, A4, A5, A10, A11, A13, A14 and statements contained in R1.
[73] See the statement of the Applicant’s nephew at A15.
I find that the best interests of the Applicant’s nephews and nieces may be served by the Applicant being granted a visa but that, for the reasons set out above, only minimal weight is to be given to this consideration.
Fourth primary consideration: Expectations of the Australian community (para 8.4)
Paragraph 8.4 of Direction 90 relevantly provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal … may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/ material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
(3) 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.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
I also refer to the principles set out in para 5.2 of Direction 90 as set out in [29] above.
As noted at [27] above, Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[74] at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65,[75] the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs.[76]
[74] [2021] AATA 1143.
[75] Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014).
[76] [2019] FCAFC 185; (2019) 272 FCR 454.
Senior Member Morris at [195]–[196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
195.It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196.It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...
I respectfully agree with Senior Member Morris. In Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[77] I summarised the effect of the Full Court’s judgment in FYBR and the current state of the law as follows (at [156]):
156.... The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’ – expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Rehman). See also decisions of the Hon. John Pascoe AC CVO, Deputy President in Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [77]-[78].
157.Special leave was sought to appeal the decision in FYBR (FC). On 24 April 2020 the High Court (Kiefel CJ and Keane J) refused special leave.
(Footnotes and emphasis omitted.)
[77] [2020] AATA 3953.
Justice Stewart in FYBR found:
89.It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
90.However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420-422; 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans (1981) 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
91.The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case — they are to be understood and applied normatively.
(Emphasis omitted.)

What then should I assume will be the legal and practical consequences of a refusal to grant the Applicant the visa that he seeks? Based on the above authorities, statements of executive policy, Direction 90 and legislative provisions including the amendment to s197C of the Act, I find that Australia will not, as a consequence of a refusal of his visa, remove the Applicant to the country in respect of which the non-refoulement obligation exists. I find, as the Minister concedes, that the administrative steps and inquiries to be undertaken in effecting the executive’s policy may take a long time and not have any clear outcome, despite the provisions of s 197C. This may result in prolonged detention with no fixed chronological end point.
As I am required to do by para 9.1(2) of Direction 90, I weigh the consequence described in [138] above against the seriousness of the Applicant’s criminal offending and other serious conduct. As noted above, the Applicant has, and concedes that he has, a serious criminal record, and has engaged in other serious conduct, being family violence. I find that in weighing the non-refoulement obligation (or more accurately, the practical and legal consequences of not granting the Applicant the visa) against the seriousness of the Applicant’s offending and other conduct, this consideration weighs marginally in favour of the grant of the visa.
Extent of impediments if removed (para 9.2)
Paragraph 9.2 of Direction 90 provides:
(1) Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) the non-citizen’s age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
The relevant consideration is whether, taking into account the considerations identified in sub-paras 9.2(1)(a), (b) and (c), the Applicant would face an impediment or impediments in establishing and maintaining basic living standards in the context of the basic living standards that other citizens of Turkey enjoy.
Neither the Applicant’s SFIC nor the Applicant’s Supplementary SFIC identified this as being a relevant consideration. At the conclusion of the hearing I asked Mr Faris whether the Applicant was arguing that there would be any impediments to him establishing himself to a basic living standard if he were to be removed to Turkey. The following exchange took place:
MR FARIS:     Yes. His position, he will not be able to establish himself back in    Turkey, and that’s due to the correct limitations of his ethnicity, his   religion, and his non willingness to participate in the Turkish army,   and the lack of family supports and any kind of support in Turkey.
TRIBUNAL:     But his unwillingness to - I don’t know whether he is subject to    compulsory serving in the Turkish Army, given his age. But if that   were in fact that case, his - it is his choice not too, isn’t it?
MR FARIS:     Why he is not exercising this choice, Mr Deputy President? Because                     from an ethnicity point of view, he is Kurd and he doesn’t want to join   the army to kill his own people. It’s on a moral ground, rather than on   a choice ground.
TRIBUNAL:     And do we have any evidence that that in fact would be the case?
…
TRIBUNAL:     Other than - well outside the considerations of the tribunal in finding    that protections obligations were owed, is there any evidence that the   applicant’s age or health would prevent him establishing himself?
MR FARIS:     From my instructions, age wise, he doesn’t have any education so    he is close to 40 years, he is not going to be in the position of getting   even base job because of his last - because of his education and the   lasting effect of what he has been going through. But from a health   point of view, my instructions, he has mental health issues and he   has seen some counselling however, there is no evidence before   myself to provide the tribunal.
TRIBUNAL:     And we’ve addressed potential - what I am looking at in particular are                    the considerations under paragraph [9.21 (a), (b) and (c)] of direction   90 which direct the tribunal to consider the non-citizen’s age and   health, whether there are substantial language or cultural barriers, I   think we may have touched on the cultural barriers, given his Kurdish   ethnicity. Are there any language barriers?
MR FARIS:     So the language barriers are from our instructions because he is    Kurd, he speaks Turkish and his Kurdish is not that well, if he would   be returned, he would need to go to his home town which is   (indistinct) and (indistinct) is a Kurdish town and the Kurdish   language is the prominent language. If he goes anywhere around   Turkey, he will be subject to prosecution because of his ethnicity,   because of his father’s name, because of all of the other matters   which deals with religious practices.
…
MR FARIS:     It will be significantly difficult because his Kurdish language is not that                    great and the second limitation, within the Kurdish community as well,   there is discrimination on a second scale against Alawites because   of their branch of Islam and it’s not deemed to be within the scope of   the normality of Islam. So on a religious front, he will be   discriminated, on top of his hometown is being monitored - run by the   Turkish government.[95]
[95] transcript at 90–2.
The Minister’s SFIC submits that the Applicant has not disclosed any significant medical or psychological conditions and is relatively young. The Minister acknowledges that the Applicant may face some difficulty in establishing himself in Turkey due to his period of residence in Australia, but stresses that this factor would only present as a short-term hardship and would not preclude resettlement. There would be no substantial language or cultural barriers for the Applicant to overcome.[96]
[96] Citing Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 144 at [44].
The Minister contends that this consideration does not weigh in the Applicant’s favour and is neutral. If the Tribunal finds that this consideration does weigh in favour of revocation, the Minister contends that it should be given limited weight and that the basis of the claim is not sufficiently compelling to outweigh the primary considerations weighing heavily against the grant of the visa.
The Minister is correct when he submits that the Applicant has not identified any significant medical or psychological conditions and is relatively young. I do accept, however, that based on the Applicant’s own evidence including his statement[97] and the statements provided by others, that the Applicant does suffer mental health issues and that a return to Turkey would be extremely stressful, particularly given the apparent lack of family or other support that there would be for him in that country. I am also conscious of the fact that the Applicant has had, and in my view is likely to still have, issues with drug and alcohol abuse which are likely to be exacerbated by the stress of a return to Turkey. This is, in my view, likely to be an issue with him obtaining and holding onto employment which would be an impediment to his establishing and maintaining basic living standards. I do not accept, as the Minister contends, that impediments faced by the Applicant in resettling and establishing himself in Turkey would necessarily be short-term only.
[97] A1.
I find that this consideration weighs in favour of the grant of the visa and that moderate weight should be given to it.
Impact on victims (para 9.3)
Paragraph 9.3 of Direction 90 is as follows:
(1) Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The Applicant made no submissions on this consideration. The Minister submitted that there is no suggestion on the evidence that this consideration is relevant to the review and that, as a result, it should be given neutral weight.
Insofar as a consideration broader than the impact on victims is required, then aspects of the possible impact of the Applicant being granted a visa are dealt with elsewhere. One aspect has been dealt with under the first primary consideration, the protection of the Australian community. The impact of the Applicant’s removal (i.e. not being granted a visa) is also considered below in the consideration of the Applicant’s links to the Australian community under para 9.4 of Direction 90. Insofar as the impact on those members of the Australian community is to be considered, I have done so under those considerations.
I find that no weight either way should be given to this consideration.
Links to the Australian community (para 9.4)
Paragraph 9.4 of Direction 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 and 9.4.2 below.
Strength, nature and duration of ties to Australia (para 9.4.1)
Paragraph 9.4.1 of Direction 90 is as follows:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has lived in Australia since 2001 and says he arrived in Australia as an 18-year-old,[98] however, Department records indicate that the Applicant arrived two months short of his 18^th birthday. Either way, he was not a “young child” when he arrived in Australia.[99]
[98] A1.
[99] Direction 90 para 9.4.1(2)(a).
The Applicant’s first conviction was in September 2004. It could therefore fairly be said that he began offending “soon after arriving in Australia”.[100] Less weight should therefore be given to his length of residence in Australia.
[100] Direction 90 para 9.4.1(2)(a)(i).
It is not clear on the evidence what employment the Applicant has held. His evidence was that when he returned from Melbourne to Perth after his marriage break-down in 2010, he had some employment (truck driver – six months, grape picking for three months in each of 2013 and 2014, plasterer four to five months).[101] There appear to have been significant periods when the Applicant was not employed. The Applicant’s evidence was that he was unable to keep jobs because of his alcohol and drug use.[102] Accordingly, no additional weight can be given to the fact that he has been in Australia for over 20 years by reason of positive contribution to the community.[103]
[101] transcript at 40–1.
[102] transcript at 42.
[103] Direction 90 para 9.4.1(2)(a)(ii).
The main pieces of evidence of social links with Australian citizens and/or Australian permanent residents, are the statements and letters of support provided to the Applicant, and in some cases, oral evidence of those who gave such letters or statements. The statements of support must be read, in some cases at least, in light of the fact that those giving them may not have been fully aware of the nature and extent of the Applicant’s offending (e.g. OI).
It is clearly the case that the Applicant has many family members in Australia who would be impacted, emotionally at least, if the Applicant were to be refused the visa. The Applicant and his parents’ evidence was, in their statements and at the hearing, that the Applicant being forced to leave Australia would have a significant emotional impact on the Applicant and his family members. His parents in particular would be severely emotionally impacted. The Applicant filed a report from Healius Health Medical Centre attesting to the Applicant’s father suffering from an unspecified mental health condition.[104] The Applicant’s father’s evidence at the hearing was that he (and his wife) were not in good health, had trouble sleeping at night, were under a lot of stress, had depression, experienced nightmares and that his wife has sleep apnoea and anxiety.[105]
[104] A8.
[105] transcript at 50.
The witness statements provided by other members of the Applicant’s family also referred to the emotional impact that the Applicant being forced to leave Australia and return to Turkey would have on them. It is fair to say, however, that there was no evidence that any members of the Applicant’s family are financially dependent on the Applicant remaining in Australia, although the Applicant did express a desire to remain to look after his elderly parents and to make up for the grief that he had caused them.
The Minister acknowledged that the Applicant has family members in Australia who support him, including his parents, siblings and their partners and his grandfather. However, there is no evidence that any of them would suffer any hardship (other than emotional) if the Applicant’s visa were refused or any evidence that these family members are reliant on the Applicant in any way. The Minister submitted that the Tribunal may accept that this consideration weighs in favour of the Applicant, however, the Minister contended that it is not outweighed by the combined weight of the primary considerations weighing against the Applicant.
I find that a refusal to grant the visa would have an emotional impact on the Applicant’s immediate family members in Australia. This would especially be the case with his parents. I find that there are no members of the Applicant’s family or the broader community who would be financially impacted by the Applicant not being granted a visa. On that basis I find that this consideration does weigh in favour of granting the Applicant a visa, but that only moderate weight should be given to it.
Impact on Australian business interests (para 9.4.2)
Paragraph 9.4.2 provides:
(3) Decision-makers must consider any impact on Australian business interests if the non-citizen is allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Neither party made any submissions on this consideration and I find that it is not relevant to the present case.
THE WEIGHING EXERCISE
Direction 90 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account. It provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[106] and the Full Court of the Federal Court judgment in Minister for Home Affairs v HSKJ.[107]
[106] [2018] FCA 594; (2018) 74 AAR 545.
[107] [2018] FCAFC 217; (2018) 266 FCR 591.
Colvin J’s judgment in Suleiman was considered by Wigney J in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[108] At [21] Wigney J cited [23] of Colvin J’s judgment which was as follows:
The use by the Tribunal of the term “secondary” indicates that the “other considerations” are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the “other considerations” (including non‑refoulement obligations). It requires both primary and other considerations to be given “appropriate weight”. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains “generally” they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are “normally” given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both “primary” and “other considerations”. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
(Emphasis omitted.)
[108] [2021] FCA 775.
Wigney J then observed at [22]:
It is the last sentence of this paragraph of Suleiman which has given rise to the issue in this case. That issue will be discussed in more detail later. It suffices at this point to note that, with the greatest respect to Colvin J, this analysis of paragraph 8 of the relevant direction tends to overcomplicate or over intellectualise the issue. More significantly, it may lead decision-makers into error. Paragraph 8 of Direction no. 79 is expressed in simple terms. Relevantly, decision-makers must take into account the primary and other considerations that are relevant to the individual case and, when it comes to weighing up the relevant considerations, have regard to three relevant principles: first, both primary and other considerations may weigh in favour of, or against, whether or not to revoke a cancellation of a visa; second, primary conditions should generally be given greater weight than other considerations; and third, one or more primary considerations may outweigh other considerations. It is difficult to see why any further elaboration of those simple principles or propositions is necessary or warranted.
(Emphasis omitted.)
The Tribunal in CZCV at [164] summarised the legal position as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so...

I adopt the approach directed by the above cases.
Looking at the first primary consideration, the protection of the Australian community, for the reasons set out above, I find that this consideration weighs heavily against the Applicant being granted a visa.
The second primary consideration, family violence, for the reasons set out above weighs against the grant of a visa to the Applicant, however, because of the time that has passed since the last known incident of family violence, I consider that moderate weight should be given to this consideration.
In relation to the third primary consideration, I find that the best interests of minor children, may be served by the Applicant being allowed to stay in Australia. Only minimal weight is to be given to this consideration.
The fourth primary consideration, the expectations of the Australian community, as it must, weighs against the grant of the Applicant’s visa. For the reasons set above, I find that moderate weigh should be given to this consideration.
In relation to the relevant “other considerations” identified in Direction 90, the consideration of international non-refoulement obligations weighs marginally in favour of the grant of the visa.
The consideration of the extent of impediments weighs in favour of the grant of the visa and moderate weight should be given to it.
The consideration of impact on victims is not relevant.
The consideration of links of the Australian community weighs in favour of granting the Applicant a visa but only moderate weight should be given to it.
Having weighed the considerations in favour of granting the Applicant the visa and the considerations that weigh against the Applicant being granted a visa, I find that the considerations against granting the visa outweigh those in favour of granting the visa.
DECISION
The decision of the delegate of the Minister dated 3 January 2020 to refuse to grant the Applicant a Protection (Class XA) visa under s 501(1) of the Act is affirmed.

I certify that the preceding 178 (one hundred and seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...[SGD].....................................................................
Associate
Dated: 15 December 2021

Dates of hearing: 15–16 June 2021

Counsel for the Applicant: Mr F Faris

Solicitors for the Applicant: Rebus Legal

Counsel for the Respondent: Mr A Burgess

Solicitors for the Respondent: Sparke Helmore Lawyers
ANNEXURE

Court

Result date

Offence

Result

Perth Magistrates Court

5 July 2016

Assault occasioning bodily harm

Nine months’ imprisonment (cumulative) from 5 July 2016

Perth Magistrates Court

5 July 2016

Disorderly behaviour in public

$1,000 fine (global)

Perth Magistrates Court

5 July 2016

Possess a prohibited drug (cannabis)

$1,000 fine (global)

Perth Magistrates Court

5 July 2016

Breach of bail undertaking

$1,000 fine (global)

Perth Magistrates Court

5 July 2016

Gains benefit by fraud

Two months’ imprisonment (concurrent) from 5 July 2016

Perth Magistrates Court

5 July 2016

Stealing

$1,000 fine (global)

Perth Magistrates Court

5 July 2016

Receiving stolen property

$1,000 fine (global)

Perth Magistrates Court

5 July 2016

Breach of intensive supervision order (order of 31 March 2014)

Six months’ imprisonment (concurrent) from 5 July 2016

Perth Magistrates Court

5 July 2016

Stealing

$1,000 fine (global)

Supreme Court of Western Australia

8 March 2016

Robbery

Two years’ imprisonment (concurrent)

Perth Magistrates Court

18 July 2014

Possess a prohibited drug (cannabis)

$200 fine

Perth Magistrates Court

31 March 2014

Burglary with intent in dwelling

Intensive supervision order for 12 months (concurrent) from 31 March 2014

Perth Magistrates Court

31 March 2014

Assault occasioning bodily harm

$1,000 fine (payable to victim)

Perth Magistrates Court

8 October 2013

No authority to drive (fines suspended)

$600 fine

Perth Magistrates Court

10 April 2013

Drive motorcycle without wearing protective helmet

$100 fine

Perth Magistrates Court

10 April 2013

No authority to drive (fines suspended)

$500 fine

Perth Magistrates Court

22 August 2012

No authority to drive (fines suspended)

$200 fine

Mildura Magistrates Court

20 April 2012

Dishonestly assist in disposal of stolen goods

Aggregate 33 days’ imprisonment (concurrent)

Mildura Magistrates Court

20 April 2012

Fail to answer bail

Mildura Magistrates Court

20 April 2012

Dishonestly undertake in realisation of stolen goods

Mildura Magistrates Court

20 April 2012

“Act prejud sec/good order/management gaol”

Convicted and discharged

Elizabeth Magistrates Court

19 January 2012

Basic offence: dishonestly receive property without consent

Convicted; good behaviour bond of $2,000 (18 months)

Elizabeth Magistrates Court

19 January 2012

Drive or use motor vehicle without consent

Driver’s licence disqualified for 12 months; compensation: 441.08

Perth Magistrates Court

28 June 2011

Exceed 0.08g alcohol per 100ml of blood; >=0.14g/100ml but < 0.15g/100ml

$700 fine

Mildura Magistrates Court

3 March 2011

Theft

With conviction, fined an aggregate of $500; $68.10 in statutory costs

Mildura Magistrates Court

3 March 2011

Cultivate narcotic plant – cannabis

With conviction, fined an aggregate of $500; $68.10 in statutory costs

Mildura Magistrates Court

25 August 2010

Recklessly cause serious injury

30 months’ imprisonment; sentence suspended for three years

Mildura Magistrates Court

24 March 2010

Failure to comply with community-based order

Proven

Mildura Magistrates Court

24 March 2010

“Breach Re 13/11/2009”

Conviction; fined an aggregate of $350

Mildura Magistrates Court

24 March 2010

Possess cannabis

Mildura Magistrates Court

24 March 2010

Use cannabis

Mildura Magistrates Court

13 November 2009

Aggravated burglary – person present

Aggregate nine months imprisonment (concurrent)

Mildura Magistrates Court

13 November 2009

Aggravated burglary – person present

Mildura Magistrates Court

13 November 2009

Aggravated burglary – person present

Mildura Magistrates Court

13 November 2009

Theft

Mildura Magistrates Court

13 November 2009

“breach re 18/07/2008”

Suspended sentence wholly restored; restored term to be served is three months

Mildura Magistrates Court

13 November 2009

Burglary

Mildura Magistrates Court

13 November 2009

Theft

Mildura Magistrates Court

13 November 2009

“Breach re 18/07/2008”

Suspended sentence wholly restored; restored term to be served is one month

Mildura Magistrates Court

13 November 2009

Dishonestly receive stolen goods

Mildura Magistrates Court

22 June 2009

“Variation re 30/03/2009”

“AS [VNPC] CBD HAS BEEN CANCELLED. IN DEFAULT OF PAYMENT OF $900, TO BE IMPRISONED FOR 8 DAYS.”

Mildura Magistrates Court

22 June 2009

Use unregistered motor vehicle – highway

Mildura Magistrates Court

22 June 2009

Drive in breach of permit condition

Mildura Magistrates Court

22 June 2009

Fail report to police owner not present

Mildura Magistrates Court

22 June 2009

Fail to give name and address to injured

Melbourne Magistrates Court

30 March 2009

“Variation re 18/07/2008”

In default of payment of $900, to perform 40 hours unpaid community work

Melbourne Magistrates Court

30 March 2009

Use unregistered motor vehicle – highway

Melbourne Magistrates Court

30 March 2009

Drive in breach of permit condition

Melbourne Magistrates Court

30 March 2009

Fail report to police owner not present

Melbourne Magistrates Court

30 March 2009

Fail to give name and address to injured

Sale Magistrates Court

7 October 2008

Theft

Seven days’ imprisonment (concurrent)

Mildura Magistrates Court

18 July 2008

Burglary

Aggregate six months’ imprisonment (concurrent); sentence partially suspended; term to be served three months; operational period is 12 months

Mildura Magistrates Court

18 July 2008

Theft

Mildura Magistrates Court

18 July 2008

Dishonestly receive stolen goods

One month imprisonment (concurrent); sentence wholly suspended; operational period is 12 months

Mildura Magistrates Court

18 July 2008

Possess cannabis

Convicted; community-based order for nine months

Mildura Magistrates Court

18 July 2008

Use cannabis

Convicted; community-based order for nine months

Mildura Magistrates Court

12 June 2007

Criminal damage (intent to damage/ destroy)

14 days’ imprisonment (concurrent). Sentence wholly suspended; operational period is six months; $200 compensation

Mildura Magistrates Court

1 June 2007

Failure to comply with intensive correction order

Proven

Mildura Magistrates Court

1 June 2007

“Breach re 16/11/2006”

Breach of intensive correction order; order cancelled, to serve unexpired portion of 131 days

Mildura Magistrates Court

1 June 2007

Recklessly cause serious injury

Mildura Magistrates Court

1 June 2007

Unlawful assault

Mildura Magistrates Court

1 June 2007

Fail to answer bail

Mildura Magistrates Court

1 June 2007

Unlawful assault

Aggregate one month imprisonment (concurrent)

Mildura Magistrates Court

1 June 2007

Criminal damage (intent damage/ destroy)

Aggregate one month imprisonment (concurrent)

Mildura Magistrates Court

16 November 2006

Recklessly cause serious injury

Six months’ imprisonment (concurrent) to be served by way of an intensive correction order; pay $253 compensation

Mildura Magistrates Court

16 November 2006

Unlawful assault

Four months’ imprisonment (concurrent) to be served by way of intensive correction order; pay $246.25 compensation; pay $165.60 costs

Mildura Magistrates Court

16 November 2006

Fail to answer bail

With conviction; $500 fine

Melbourne County Court

5 June 2006

“Breach re 27/05/2005”

Proven

Failure to comply with intensive correction order

Melbourne County Court

5 June 2006

“Breach re 27/05/2005”

$200 fine; intensive correction order of 27/05/2005 varied; 95 days’ imprisonment to be served by way of intensive correction order

Melbourne County Court

5 June 2006

Aggravated burglary – person present

Melbourne County Court

5 June 2006

“Breach re 27/05/2005”

Intensive correction order of 27/05/2005 varied; 95 days’ imprisonment to be served by way of intensive correction order

Melbourne County Court

5 June 2006

Theft

Melbourne County Court

5 June 2006

Recklessly cause injury

Wentworth Local Court

8 September 2005

Drive with low range PCA

12 months’ disqualification commencing 8 September 2005; costs: $65

Wentworth Local Court

8 September 2005

Drive on road etc when licence cancelled

12 months disqualification commencing 8 September 2005

Wentworth Local Court

8 September 2005

Driver/rider state false name or address

$300 fine

Mildura Magistrates Court

27 May 2005

Aggravated burglary – person present

Aggregate four months’ imprisonment (concurrent) to be served by way of an intensive correction order

Mildura Magistrates Court

27 May 2005

Theft

Mildura Magistrates Court

27 May 2005

Recklessly cause injury

Mildura Magistrates Court

27 May 2005

Fail to answer bail

$200 fine with conviction

Mildura Magistrates Court

27 May 2005

Failure to comply with community-based order

Proven; $100 fine with conviction

Mildura Magistrates Court

27 May 2005

“Breach Re 10/09/2004”

Fined aggregate of $400 with conviction; $58 statutory costs

Mildura Magistrates Court

27 May 2005

Theft

Mildura Magistrates Court

27 May 2005

Theft

Balranald Local Court

4 April 2005

Drive on road etc when licence cancelled

$400 fine; driver’s licence disqualified for 12 months; $63 costs

Balranald Local Court

8 March 2005

Obtain money etc by deception <= $2,000

$400 fine; $63 costs

Wagga Wagga Local Court

1 March 2005

Driver/rider state false name or address

$600 fine; $63 costs

Wagga Wagga Local Court

1 March 2005

Class A motor vehicle exceed speed limit by > 15km/h and <= 30km/h

$400 fine; $63 costs

Wagga Wagga Local Court

1 March 2005

Obtain money etc by deception <= $2,000

$2,000 fine; $63 costs

Mildura Magistrates Court

10 September 2004

Theft

Without conviction; community-based order for nine months; 75 hours of community work over nine months

Mildura Magistrates Court

10 September 2004

Theft

Without conviction; community-based order for nine months; 75 hours of unpaid community work over nine months

Dates of hearing:	15–16 June 2021
Counsel for the Applicant:	Mr F Faris
Solicitors for the Applicant:	Rebus Legal
Counsel for the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers

Court	Result date	Offence	Result
Perth Magistrates Court	5 July 2016	Assault occasioning bodily harm	Nine months’ imprisonment (cumulative) from 5 July 2016
Perth Magistrates Court	5 July 2016	Disorderly behaviour in public	$1,000 fine (global)
Perth Magistrates Court	5 July 2016	Possess a prohibited drug (cannabis)	$1,000 fine (global)
Perth Magistrates Court	5 July 2016	Breach of bail undertaking	$1,000 fine (global)
Perth Magistrates Court	5 July 2016	Gains benefit by fraud	Two months’ imprisonment (concurrent) from 5 July 2016
Perth Magistrates Court	5 July 2016	Stealing	$1,000 fine (global)
Perth Magistrates Court	5 July 2016	Receiving stolen property	$1,000 fine (global)
Perth Magistrates Court	5 July 2016	Breach of intensive supervision order (order of 31 March 2014)	Six months’ imprisonment (concurrent) from 5 July 2016
Perth Magistrates Court	5 July 2016	Stealing	$1,000 fine (global)
Supreme Court of Western Australia	8 March 2016	Robbery	Two years’ imprisonment (concurrent)
Perth Magistrates Court	18 July 2014	Possess a prohibited drug (cannabis)	$200 fine
Perth Magistrates Court	31 March 2014	Burglary with intent in dwelling	Intensive supervision order for 12 months (concurrent) from 31 March 2014
Perth Magistrates Court	31 March 2014	Assault occasioning bodily harm	$1,000 fine (payable to victim)
Perth Magistrates Court	8 October 2013	No authority to drive (fines suspended)	$600 fine
Perth Magistrates Court	10 April 2013	Drive motorcycle without wearing protective helmet	$100 fine
Perth Magistrates Court	10 April 2013	No authority to drive (fines suspended)	$500 fine
Perth Magistrates Court	22 August 2012	No authority to drive (fines suspended)	$200 fine
Mildura Magistrates Court	20 April 2012	Dishonestly assist in disposal of stolen goods	Aggregate 33 days’ imprisonment (concurrent)
Mildura Magistrates Court	20 April 2012	Fail to answer bail
Mildura Magistrates Court	20 April 2012	Dishonestly undertake in realisation of stolen goods
Mildura Magistrates Court	20 April 2012	“Act prejud sec/good order/management gaol”	Convicted and discharged
Elizabeth Magistrates Court	19 January 2012	Basic offence: dishonestly receive property without consent	Convicted; good behaviour bond of $2,000 (18 months)
Elizabeth Magistrates Court	19 January 2012	Drive or use motor vehicle without consent	Driver’s licence disqualified for 12 months; compensation: 441.08
Perth Magistrates Court	28 June 2011	Exceed 0.08g alcohol per 100ml of blood; >=0.14g/100ml but < 0.15g/100ml	$700 fine
Mildura Magistrates Court	3 March 2011	Theft	With conviction, fined an aggregate of $500; $68.10 in statutory costs
Mildura Magistrates Court	3 March 2011	Cultivate narcotic plant – cannabis	With conviction, fined an aggregate of $500; $68.10 in statutory costs
Mildura Magistrates Court	25 August 2010	Recklessly cause serious injury	30 months’ imprisonment; sentence suspended for three years
Mildura Magistrates Court	24 March 2010	Failure to comply with community-based order	Proven
Mildura Magistrates Court	24 March 2010	“Breach Re 13/11/2009”	Conviction; fined an aggregate of $350
Mildura Magistrates Court	24 March 2010	Possess cannabis
Mildura Magistrates Court	24 March 2010	Use cannabis
Mildura Magistrates Court	13 November 2009	Aggravated burglary – person present	Aggregate nine months imprisonment (concurrent)
Mildura Magistrates Court	13 November 2009	Aggravated burglary – person present
Mildura Magistrates Court	13 November 2009	Aggravated burglary – person present
Mildura Magistrates Court	13 November 2009	Theft
Mildura Magistrates Court	13 November 2009	“breach re 18/07/2008”	Suspended sentence wholly restored; restored term to be served is three months
Mildura Magistrates Court	13 November 2009	Burglary
Mildura Magistrates Court	13 November 2009	Theft
Mildura Magistrates Court	13 November 2009	“Breach re 18/07/2008”	Suspended sentence wholly restored; restored term to be served is one month
Mildura Magistrates Court	13 November 2009	Dishonestly receive stolen goods
Mildura Magistrates Court	22 June 2009	“Variation re 30/03/2009”	“AS [VNPC] CBD HAS BEEN CANCELLED. IN DEFAULT OF PAYMENT OF $900, TO BE IMPRISONED FOR 8 DAYS.”
Mildura Magistrates Court	22 June 2009	Use unregistered motor vehicle – highway
Mildura Magistrates Court	22 June 2009	Drive in breach of permit condition
Mildura Magistrates Court	22 June 2009	Fail report to police owner not present
Mildura Magistrates Court	22 June 2009	Fail to give name and address to injured
Melbourne Magistrates Court	30 March 2009	“Variation re 18/07/2008”	In default of payment of $900, to perform 40 hours unpaid community work
Melbourne Magistrates Court	30 March 2009	Use unregistered motor vehicle – highway
Melbourne Magistrates Court	30 March 2009	Drive in breach of permit condition
Melbourne Magistrates Court	30 March 2009	Fail report to police owner not present
Melbourne Magistrates Court	30 March 2009	Fail to give name and address to injured
Sale Magistrates Court	7 October 2008	Theft	Seven days’ imprisonment (concurrent)
Mildura Magistrates Court	18 July 2008	Burglary	Aggregate six months’ imprisonment (concurrent); sentence partially suspended; term to be served three months; operational period is 12 months
Mildura Magistrates Court	18 July 2008	Theft
Mildura Magistrates Court	18 July 2008	Dishonestly receive stolen goods	One month imprisonment (concurrent); sentence wholly suspended; operational period is 12 months
Mildura Magistrates Court	18 July 2008	Possess cannabis	Convicted; community-based order for nine months
Mildura Magistrates Court	18 July 2008	Use cannabis	Convicted; community-based order for nine months
Mildura Magistrates Court	12 June 2007	Criminal damage (intent to damage/ destroy)	14 days’ imprisonment (concurrent). Sentence wholly suspended; operational period is six months; $200 compensation
Mildura Magistrates Court	1 June 2007	Failure to comply with intensive correction order	Proven
Mildura Magistrates Court	1 June 2007	“Breach re 16/11/2006”	Breach of intensive correction order; order cancelled, to serve unexpired portion of 131 days
Mildura Magistrates Court	1 June 2007	Recklessly cause serious injury
Mildura Magistrates Court	1 June 2007	Unlawful assault
Mildura Magistrates Court	1 June 2007	Fail to answer bail
Mildura Magistrates Court	1 June 2007	Unlawful assault	Aggregate one month imprisonment (concurrent)
Mildura Magistrates Court	1 June 2007	Criminal damage (intent damage/ destroy)	Aggregate one month imprisonment (concurrent)
Mildura Magistrates Court	16 November 2006	Recklessly cause serious injury	Six months’ imprisonment (concurrent) to be served by way of an intensive correction order; pay $253 compensation
Mildura Magistrates Court	16 November 2006	Unlawful assault	Four months’ imprisonment (concurrent) to be served by way of intensive correction order; pay $246.25 compensation; pay $165.60 costs
Mildura Magistrates Court	16 November 2006	Fail to answer bail	With conviction; $500 fine
Melbourne County Court	5 June 2006	“Breach re 27/05/2005”	Proven
Failure to comply with intensive correction order			Proven
Melbourne County Court	5 June 2006	“Breach re 27/05/2005”	$200 fine; intensive correction order of 27/05/2005 varied; 95 days’ imprisonment to be served by way of intensive correction order
Melbourne County Court	5 June 2006	Aggravated burglary – person present
Melbourne County Court	5 June 2006	“Breach re 27/05/2005”	Intensive correction order of 27/05/2005 varied; 95 days’ imprisonment to be served by way of intensive correction order
Melbourne County Court	5 June 2006	Theft
Melbourne County Court	5 June 2006	Recklessly cause injury
Wentworth Local Court	8 September 2005	Drive with low range PCA	12 months’ disqualification commencing 8 September 2005; costs: $65
Wentworth Local Court	8 September 2005	Drive on road etc when licence cancelled	12 months disqualification commencing 8 September 2005
Wentworth Local Court	8 September 2005	Driver/rider state false name or address	$300 fine
Mildura Magistrates Court	27 May 2005	Aggravated burglary – person present	Aggregate four months’ imprisonment (concurrent) to be served by way of an intensive correction order
Mildura Magistrates Court	27 May 2005	Theft
Mildura Magistrates Court	27 May 2005	Recklessly cause injury
Mildura Magistrates Court	27 May 2005	Fail to answer bail	$200 fine with conviction
Mildura Magistrates Court	27 May 2005	Failure to comply with community-based order	Proven; $100 fine with conviction
Mildura Magistrates Court	27 May 2005	“Breach Re 10/09/2004”	Fined aggregate of $400 with conviction; $58 statutory costs
Mildura Magistrates Court	27 May 2005	Theft
Mildura Magistrates Court	27 May 2005	Theft
Balranald Local Court	4 April 2005	Drive on road etc when licence cancelled	$400 fine; driver’s licence disqualified for 12 months; $63 costs
Balranald Local Court	8 March 2005	Obtain money etc by deception <= $2,000	$400 fine; $63 costs
Wagga Wagga Local Court	1 March 2005	Driver/rider state false name or address	$600 fine; $63 costs
Wagga Wagga Local Court	1 March 2005	Class A motor vehicle exceed speed limit by > 15km/h and <= 30km/h	$400 fine; $63 costs
Wagga Wagga Local Court	1 March 2005	Obtain money etc by deception <= $2,000	$2,000 fine; $63 costs
Mildura Magistrates Court	10 September 2004	Theft	Without conviction; community-based order for nine months; 75 hours of community work over nine months
Mildura Magistrates Court	10 September 2004	Theft	Without conviction; community-based order for nine months; 75 hours of unpaid community work over nine months