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

VRYP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 624 (21 February 2024)
Division:GENERAL DIVISION
File Number: 2023/9134
Re:VRYP
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Wayne Pennell
Date of decision: 21 February 2024
Date of written reasons: 8 April 2024
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision dated 29 November 2023 made by the Respondent’s delegate and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
...................[SGD].......................
Senior Member Wayne Pennell
Catchwords
MIGRATION – non-revocation of mandatory cancellation of a visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – where the criminal history contains a single offence – where Tribunal is satisfied that the Applicant’s risk of reoffending is low – Tribunal finding Applicant has strong familial and social ties in Australia - factors in favour of revocation outweigh factors against revocation- Tribunal finding there is another reason to revoke the mandatory cancellation decision- decision under review set aside and substituted.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Re TAA [2006] QCST 11
Walker v Minister of Home Affairs [2020] FCA 909
Secondary Materials
Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Senior Member Wayne Pennell
8 April 2024
INTRODUCTION

The Applicant is a 44 year old citizen of New Zealand who first arrived in Australia in 2007 when he was aged 28. Over the next seven years he travelled between New Zealand and Australia a further six times, arriving in Australia for the final time in August 2014. Since then he has remained onshore.
The most recent visa held by the Applicant was a Class TY Subclass 444 – Special Category (Temporary) ('the Visa’) granted to him on 19 August 2014. The Respondent cancelled the Visa on 16 June 2020 pursuant to section 501(3A) of the Migration Act 1958 (Cth) ('the Act’).[1] At the time of the Visa cancellation decision, the Applicant had a substantial criminal history[2] consisting of a single entry from February 2018 when he was convicted of unlawful striking causing death for which he received an imprisonment term of six years and six months.
[1]G2, page 181.
[2] Pursuant to sections 501(7)(c) of the Act.
As a result of the above Visa cancellation decision, the Applicant was invited to make representations to the Respondent’s Department to get his Visa cancellation decision revoked. The Respondent’s Department received the relevant representations from the Applicant on 4 January 2021.[3]
[3] G2, pp 42-67.
On 29 November 2023, a delegate of the Respondent refused to revoke the earlier mandatory Visa cancellation decision pursuant to section 501CA(4) of the Act. For the purposes of these reasons, the decision made on 29 November 2023b by the delegate of the Respondent is the ‘Decision Under Review’.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4 The Minister may revoke the original decision if:
a)the person makes representations in accordance with the invitation; and
b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act.[4] There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; and if not
(b)whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.
[4] See generally R1, G10 - G13.
Does the Applicant pass the character test?
I am satisfied that the Applicant’s incapacity to pass the character test arises as a matter of law.[5] This is because this Applicant has a ‘substantial criminal record’ due to him being sentenced to a term of imprisonment of 12 months or more on 23 February 2018.[6] Accordingly, it can be safely found that he does not pass the character test and, as a consequence, cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his Visa to be revoked.
[5] Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].
[6] Pursuant to ss 501(6)(a) and 501(7)(c) of the Act.
Is there another reason why the decision to cancel the Applicant’s Visa should be revoked?
Section 499(2A) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about either the performance of those functions or the exercise of those powers. For present purposes in reviewing a non-revocation decision pursuant to section 501CA(4) of the Act, the Tribunal must have regard to the ‘Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (‘the Direction’).
For the purposes of deciding whether or not to revoke the mandatory cancellation of a
non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:
1Australia 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.
2Non-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.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia 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.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the
non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia:
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by
non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
I will consider each in turn.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that 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, 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).
h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Summary of the Applicant’s offending
The Applicant has a single entry on his criminal history relating to a conviction for the offence of unlawful striking causing death. A summary of the events detailing the Applicant’s offending are captured in the sentencing remarks when he was sentenced in the Supreme Court of Queensland.[7] The facts as described in the sentencing remarks are that for the Applicant to get to and from work, he had to travel on the Gateway Motorway and the Pacific Motorway (‘M1’). On 1 December 2015, he finished work at 3:00pm and headed off in his vehicle back towards his home.
[7]G2, pages 31 to 38.
At some point on the Gateway Motorway the Applicant and another motorist encountered each other. Both the Applicant and the other motorist were vying to get ahead of each other, and at one point, the other motorist overtook the Applicant on an inside lane. The sentencing remarks reflect that there was some tailgating by the Applicant of the other motorist and of the other motorist of the Applicant. There were hand gestures by both the Applicant and the other motorist towards each other, including the ‘finger’.
As they both approached the exit of the Gateway Motorway onto the M1, the other motorist was ahead of the Applicant and he gestured for the Applicant to pull over. They stopped their vehicles close to each other and they both got out and walked to an area between where their cars were parked. This area was close to the southbound lane of the Gateway Motorway. There was both verbal and physical interaction between them, and the Applicant punched the other motorist who then fell backwards into the path of the passing truck which struck him and he died instantly from his injuries.
After a jury trial in the Supreme Court of Queensland, the Applicant was acquitted of manslaughter but found guilty of the alternative charge of unlawful striking causing death. He was sentenced to six and half years imprisonment and was ordered to serve 80 per cent of that sentence before being eligible for parole.
The nature and the seriousness of the Applicant’s conduct
Paragraph 8.1.1(1)(a)
Paragraph 8.1.1(1)(a) of the Direction contains three categories of offending which, if committed by a non-citizen seeking restoration of a visa, are said to compel a merits-based decision-maker to find such offending to be ‘very serious’. The three categories are (1) violent and/or sexual crimes;[8] (2) violent offending against women or children;[9] and (3) domestically violent conduct regardless of whether or not a sentence was imposed.[10]
[8] Paragraph 8.1.1(1)(a)(i) of the Direction.
[9] Paragraph 8.1.1(1)(a)(ii) of the Direction.
[10] Paragraph 8.1.1(1)(a)(iii) of the Direction.
First, I observe that the Applicant’s offending does not involve crimes of a sexual nature as outlined in paragraph 8.1.1(1)(a)(i) or offences of a violent nature against women or children; or any act or acts of family violence as provided for in paragraph 8.1.1(1)(a)(ii) and 8.1.1(1)(a)(iii).
Regarding paragraph 8.1.1(1)(a)(i) and any consideration in respect to whether the Applicant’s index offending contained an element of violence, the material clearly provides that he was convicted of the offence of unlawful striking cause death, which contained an element of violence. It was the Applicant striking the deceased which caused him to fall backwards into the path of a passing truck. As noted in the remarks made by the sentencing Judge, the incident subject to the Applicant’s offending was very brief, and the actions of the deceased victim did not involve any kind of threat of violence which justified the Applicant delivering a single punch, which in turn was enough in the circumstances to kill him. His Honour further remarked that what the Applicant did was a stupid frustrated action, and he had overreacted when he punched the deceased victim.[11]
[11] Sentencing remarks, G2, pages 32 – 33.
The Applicant conceded, and I so find, that the nature of his offending was violent and it was very serious, partly because of the violence involved but more largely because of the catastrophic fatality resulting from his conduct.[12]
[12]A1, page 7, paragraph 28; Transcript of Proceedings, 9 February 2024 (Day 2), page 18, lines 30 – 32.
To my mind, I am satisfied the nature and seriousness of the Applicant’s conviction for unlawful striking causing death must be found to be very serious offending pursuant to paragraph 8.1.1(1)(a)(i) of the Direction.
Paragraph 8.1.1(1)(b)
Without any particular limitation, the phraseology of this paragraph categorises certain unlawful conduct that the Australian Government and the Australian community consider as being serious.
When applying the Applicant’s circumstances against this paragraph, what is known is that the Applicant has never been convicted for any offence arising out of causing a person to enter into or otherwise being party to a forced marriage,[13] and nor has he been convicted of a crime 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.[14]
[13] Paragraph 8.1.1(1)(b)(i) of the Direction.
[14] Paragraph 8.1.1(1)(b)(ii) of the Direction.
As a matter of law, the Applicant has failed the character test, and therefore, I am not required to make any finding about whether his conduct forms the basis that he does not pass an element of the character test that is dependent upon my opinion.[15] Furthermore, the material contains no reference to any crime committed by the Applicant during his time in immigration detention.[16] For the present purposes, this paragraph should be put to one side and rendered neutral.
[15] Paragraph 8.1.1(1)(b)(iii) of the Direction; Migration Act 1958 (Cth), s 501(6)(c).
[16] Paragraph 8.1.1(1)(b)(iv) of the Direction.
Paragraph 8.1.1(1)(c)
In applying this particular paragraph, I am precluded from taking into account sentences imposed on this Applicant for:
(i)any violent offending he may have committed against women and children;[17]
(ii)acts of family violence;[18] and
(iii)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[19]
[17] Paragraph 8.1.1(1)(a)(ii) of the Direction.
[18] Paragraph 8.1.1(1)(a)(iii) of the Direction.
[19] Paragraph 8.1.1(1)(b)(i) of the Direction.
The Applicant has a single conviction of a violent offence. However, the facts of his offending do not involve conduct towards women and/or children. Nor does his conviction involve him causing or forcing anyone to be involved in a forced marriage. In respect to a question of what status should be assigned to his conduct involving family violence, he has no convictions for, or sentences imposed for acts of family violence. This paragraph should be put to one side and rendered neutral.
Paragraph 8.1.1(1)(d)

This paragraph compels an inquiry into the frequency of the Applicant’s offending and/or whether there was an increasing trend to the seriousness of his offending. The Applicant’s criminal history describes a single entry relevant to his index offending and this demonstrates that his criminal offending is neither frequent nor consistent with displaying an increasing trend of seriousness.[20]
[20] G2, Attachment A, page 28.
The Applicant’s past criminal offending involving a single incident and although his offending does not consist of the elements of frequency or is consistent with an increasing trend of seriousness, his index offending was in its very nature, very serious offending.
Paragraph 8.1.1(1)(e)
This paragraph refers to the cumulative effect of the Applicant’s repeated offending. The material shows that the Applicant’s index offending is the only offence recorded on his criminal history. I am mindful that there is no evidence of the Applicant repeatedly offending and therefore this paragraph should be put to one side and rendered neutral.
Paragraph 8.1.1(1)(f)
This paragraph refers to whether the Applicant has provided false or misleading information to the Department, including by not disclosing any prior criminal offending. The Applicant first arrived in Australia in 2007 and over the next seven years he made six return trips to New Zealand. His last entry into Australia was in 2014.[21] He has no recorded criminal offending in New Zealand,[22] and the material does not otherwise demonstrate that the Applicant has failed to disclose his criminal offending in any incoming passenger card or any other document. This paragraph should be put to one side and rendered neutral.
[21] G2, Attachment O, page 180.
[22] G2, Attachment B, page 30.
Paragraph 8.1.1(1)(g)
This paragraph requires the decision-maker to have regard to whether the Applicant has
re-offended since being formally warned in writing about the consequences of further offending in terms of his migration status to remain in Australia; noting that the absence of a warning should not be considered to be in his favour. However, there is no evidence in the material to demonstrate any examples as to why a formal warning could have been provided to him in writing, and nor is there any evidence of a warning contemplated within this paragraph. This paragraph should be put to one side and rendered neutral.
Paragraph 8.1.1(1)(h)
This paragraph requires a decision-maker to have regard to the Applicant’s offending in another country and whether that offence or conduct is classified as an offence in Australia. There is no evidence of any overseas offending by this Applicant. This consideration should be put to one side and rendered neutral for present purposes.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction and the relevant paragraphs applicable to the instant facts safely lead me to the conclusion (and finding) that the totality of this Applicant’s unlawful conduct in this country can be readily characterised as ‘very serious’.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that acceptance of the Australian community’s to any risk of future harm becomes lower as the seriousness of the potential harm increases. There is some conduct and the harm that would be caused from that conduct, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Any assessment of the nature of harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct is drawn from the knowledge of the nature of his offending to date. This assessment is derived from the Direction which provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.[23]
[23]Paragraph 8.1.2(1) of the Direction.
When giving regard to the nature of the Applicant’s index offending conduct I have found that his offending was ‘very serious’ and if he was to re-commit his past index offence, such conduct could result in very serious physical, psychological and possibly catastrophic harm to a victim(s). Therefore, in my mind, any re-commission of the ‘very serious’ index offending and the harm that it would cause would be so serious that any risk of its re-commission would be unacceptable to the Australian community.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Sentencing remarks
When sentencing the Applicant, His Honour Justice Applegarth referenced the circumstances of the index offending and recognised that immediately upon [redacted] being killed, significant remorse was shown by the Applicant. Reference was also made to the Applicant’s co-operation with the police during their investigation, and that ultimately he exercised his right to a trial. His Honour also commented about the Applicant developing symptoms of depression and anxiety, along with suicide ideation. This will be discussed later in these Reasons when exploring the evidence of Dr Yoxall regarding her assessment of the Applicant and the contents of her psychological report. In sentencing the Applicant, His Honour said:
‘It is possible that [redacted] pushed you slightly, but no one saw him do that, and the CCTV pictures do not show any particularly forceful push or other violent action by him. What is beyond dispute, and which was admitted by you to police that night, is that you punched him. You admitted in your trials that you punched him, but you did not admit punching him in the head. However, there was abundant evidence of that from a number of eyewitnesses. [the victim] fell backwards onto the roadway and, within a second or two, was hit by a truck. He died instantly from multiple injuries.
You immediately realised the enormity of your actions and walked out onto the roadway. You were physically ill and shocked. Passers-by comforted you. You told one such Good Samaritan, “What have I done? What have I done? This person probably has a family”. You were right about that. That adds to the consequences of your actions. But your crime would be a serious one even if your victim had no friends or family.
The simple, tragic fact in any case like this is that there has been a life lost and for no good reason.
You have heard of the terrible consequences for the family of your immediate victim. I say "immediate victim" because there are many victims of your stupid, frustrated action in punching [the victim].
You cooperated with police at the scene and participated in a formal interview when you could have exercised your right to silence. Some of the things you said in that interview were not true, but you admitted the punch and said a number of things that were against your interest. The matter proceeded to a trial last year at which the jury was unable to agree and was tried efficiently this week with appropriate admissions. I take that cooperation into account. Had you pleaded guilty to either count, you would have had that taken into account in mitigation, but you choose, as is your right, to contest both counts and so you do not get that benefit.
I take into account the remorse which you immediately expressed at the scene for what you had done to your victim's family. But you will understand the difficulty which [the victim] family will have in ever forgiving you.
The consequences of your actions are also inflicted on your family responsibility You have to take for the personal and financial consequences on your family of your actions. Your family is going to be deprived of a partner and a father for years to come. However, the [the victim]’s family lost a loved one forever.
You were born in 1979, so you were 36 at the time of the offence and you are now aged 38. You were educated to year 11 in New Zealand and later did factory and other work. At the time of this tragic event, in December 2015, you were a hardworking father who laboured for a living. You moved to Australia about 10 years ago. You have a close relationship with your family. You have a work history in the construction industry and other industries and, when you were not working, you would care for your young children while your partner went out to work.
You have no criminal history. Your traffic history consists of some demerit points for speeding. Before this tragic episode, you had no problems with the law, no history of anger problems and no mental health concern. As a result of this episode, you developed symptoms of depression and anxiety and reported suicide ideation on two occasions. You have needed treatment.
So you are not a person with a history of violence, who for that reasons, poses a high risk of reoffending. On the contrary, until this episode, you lived a law abiding life with your long-term partner, who is the mother of your three children, who are aged less than 10.
There were many causes of [the victim’s] death. None of us would be here today, and [the victim] would still be alive, if he and you had not engaged in bad behaviour on the road that afternoon. It does not matter who started it. The anger and aggression which you showed to each other whilst driving should have not occurred. Many of us have been upset by other drivers on the roads, but we all have to try to not display our frustration.
Irrespective of how frustrated you felt by what happened on the motorway and however upset you were by [the victim] words, including his swearing, by his waving his arms and by any minor physical assault in the nature of a push, you should not have allowed your anger to get the better of you.
Your response in punching [the victim] in the head was completely excessive. Any minor assault by him on you, if any such assault in fact occurred, did not involve the kind of threat of violence which would justify a punch to the head in response.[24]
[24] G2, Attachment C, pages 32 – 34, sentencing remarks.
Applicant’s statement made on 2 July 2021
In his statement provided for these proceedings,[25] the Applicant discussed his index offending and displayed what I consider to be insight into the impact his actions had on others, in particular on the victim and his family. In doing that. he said:
‘I should not have pulled over or engaged with [the victim], I should have walked away, and I learned that lesson in the worst possible way. My actions hurt [the victim], the truck driver, the ambulance and police officers, [the victim] family, my own family, and the community.’
[25]G2, Attachment H2, pages 71 – 76.
The Applicant described that when he and the victim got out of their vehicles, everything happened very quickly after that. He said that they immediately argued, and the victim pushed him before the Applicant swore at the victim and then hit the victim in the face. This caused the victim to fall into the path of a rubbish truck, which knocked the victim down killing him instantly. The Applicant further explained that he was in immediate shock and filled with regret about what had happened. He can recall the graphic injuries suffered by the victim [redacted] and he described that those few moments will never leave him.
Once he realised the victim had been hit by the truck, he ran onto the road to try and stop the cars. The truck driver pulled him to the side of the road, and he was physically ill and crying. He said that he could not believe what he had done. The shock was immediate, and he accepted that he was completely responsible for his actions that he took on that fateful day. In what I view as a display of insight, the Applicant recognised that he let his anger get the better of him to an unreasonable level and this caused another person to die.
He went on to disclose that in the aftermath of that incident, he has felt great distress, including developing depression and experiencing suicide ideation. He did not commit suicide because he did not want to cause more pain than he had already caused for his wife and children. That concession in my view shows at the very least that his family mean a great deal to him.
He went on to discuss that in the aftermath of what happened, he has experienced what he described as nightmares and constant, random flashes of mental images of the victim being hit by the truck and the sound it made. He said that he had struggled to concentrate, do small tasks, and he swapped between feeling like crying or just feeling numb.
He disclosed that he sought help from a psychologist who helped him with his post traumatic stress, as well as his depression, and his anger management issues. Regardless of seeking the help that he did, he found that he still could not work to provide for his family, which he said had a greater impact upon his depression.
When discussing what steps he had taken in respect to address any risk of reoffending, during the time he spent in custody, he said that attending appropriate rehabilitative courses were important steps towards his rehabilitation. He tried to enlist into as may rehabilitative course as he could and he completed some of those courses. However, his ability to attend a rehabilitative course when he was in custody was limited because he was told that his offender profile did not make him a priority for those rehabilitation courses.
He concluded his statement by saying that he was absolutely haunted, and will be for the remainder of his life, by what he said was a snap decision that day and he wished that he could take back the few seconds that it took for him to lash out and commit his index offending. He has worked and will continue to work on his behaviour and he now has acquired the necessary techniques to walk away from conflict instead of letting himself get drawn in by his anger as he did on that day. He again acknowledged the hurt he caused to the victim and his family, as well as his own family and the community.
Completion of programs in custody/detention
Good insight into the harm caused by the Applicant is a protective factor. A person who is aware of the consequences of their actions on others is less likely to re-offend than a person who has no insights into the effect of their actions on others.[26] Possession of insight into one’s offending is a critical point, particularly when having regard to the seriousness of the index offending undertaken by the Applicant.
[26] Re TAA [2006] QCST 11, [97].
The Applicant told the Tribunal that during his time in custody, he undertook courses called Circuit Breaker[27] and Positive Parenting.[28] He tried to enrol in drug and alcohol courses, but he was told that those types of courses were not relevant for him to undertake because there were other people who were in front of him on the waiting list that needed those courses more than he did. He added that there was not much in the way for rehabilitation courses for him to do and when the COVID pandemic started, everything was shut down, there was nothing in the way of rehabilitative courses available.
[27] G2, Attachment G, page 59; G2, Attachment L1, page 153.
[28] G2, Attachment G, page 60; G2, Attachment L2, page 154.
When discussing the Circuit Breaker course, he said that the course:
‘…helped me heaps. That helped me realise what I had done. That brought the grief right to the top. It made me acknowledge the impact that I had on everybody that was touched by my offending. How many people it hurt. And it made me take ownership of what I did. It brought to the surface all of that sort of stuff’.[29]
[29] Transcript, p 15, lines 13-17.
Within the psychological report compiled by Dr Jacqui Yoxall (‘Dr Yoxall’), it is reported that whilst he was on bail, the Applicant completed a number of programs, including completing:
‘…. the 'Man-Up' men's group program which he found to be of really good support and he described it as, 'awesome'. The Man-Up Program is essentially a self-development program that is supported by the Life Source Church. It is essentially a program for personal development for men and strengthening of self-identity as a man. The program is a 6-week program with one to one and half hour weekly sessions. The sessions deal with a range of issues, commonly facing men. The weekly sessions involve topics such as 'Building of Character' and understanding what good character is, goal setting and establishing and working towards dreams, financial planning, budgeting. Another week deals with personal identity, purpose in life, satisfaction in life and another week deals with relationships and how to build positive relationships and the last session deals with addictions and the six-week program is then followed by a weekend which deals with more in-depth issues around the identification of a man.’[30]
[30] G2, Attachment K, page 128.
Dr Yoxall’s report expresses that the Applicant used the opportunities available to him to complete relevant personal development and rehabilitation programs that he has been able to access, and he has demonstrated significant insight into the factors that contributed to his offending. It was explained that he has experienced substantial remorse, a degree of maturation in thinking since the offending, and what appears to be genuine remorse, deep guilt, and significant empathy towards the victim and his family.
NNS – statement[31] and evidence[32]
[31] A3, ATB-2.
[32] Hearing transcript, 8 February 2024 (Day 1), page 39 – 40.
NNS is the Applicant’s partner. Like the Applicant, she was born in New Zealand and later moved to Australia at the age of 22. She has lived here ever since and has established a career in Australia and her immediate family, friends and social network are all in Australia.
Since 2008, she and the Applicant have been in a relationship, and they are the parents of three girls, HNMA aged 14, HNHC aged 11 and HNHL aged 10. All three girls were born in Australia and are Australian citizens. They are enrolled in school and are actively engaged in extra-curricular sporting activities within the community such as netball, softball, touch-football and golf.
NNS said that the Applicant is very much an active participant in the parenting of their children, and he is described as an interactive, engaged, supporting and loving father. He was heavily invested in helping out at his childrens’ netball training and games, as well as undertaking many voluntary tasks in helping those community sporting events to take place. She reported that he handed down his own skills to his children, such as how to fish and gather seafood.

The Applicant’s partner continued on to describe that prior to him being incarcerated, he was heavily invested in doing more than his fair share as a parent with their daughters. After the birth of their youngest child, he stopped working and became a stay-at-home-dad which allowed her to return to the workforce and her career.
NNS described that because of the obvious close bond between the Applicant and their three daughters, the children missed his presence within the family unit and their home. Effectively, she has been left with the burden of raising their daughters, maintaining her employment and managing the family finances to maintain their mortgage.
Prior to the COVID pandemic, on a weekly basis NNS and the children visited the Applicant when he was in custody and spoke to him on the telephone every day. With restrictions being put in place once COVID hit, they resorted to video calls each week.
In regard to the Applicant’s involvement in the community, NNS described him as an active participant in the community. He heavily engages with the [redacted] church and volunteers in packing and distributing food to those that need it though the charity associated with the church.
When discussing the prospect of a cancellation of the Applicant’s visa, and their return to New Zealand, NNS said in her statement that ‘our family would have to relocate to New Zealand with him. I would make plans to tidy up our affairs in Australia, however this is not an ideal situation for our daughters who are Australian citizens and have significant ties to Australia.’[33]
[33] A3, ATB-4 [30].
She went on to explain that it would be a difficult decision to relocate herself and the children to New Zealand, and she was worried about uprooting the children from a place they call home and they (the children) would be forced to leave behind their family, friends and their life style in the extra-curricular activities they are involved in.
In her evidence at the hearing, NNS responded to a question about whether the Applicant had any propensity to reoffend. She said that he would definitely not reoffend, he learnt a hard and valuable lesson from that incident.
In my assessment of NNS, although she was undoubtably upset and anxious about giving evidence at the hearing, there was nothing in the manner or the delivery of her evidence that raised any concern with me and I found her to be an impressive witness.
Dr Yoxall’s report and evidence
Dr Yoxall provided a comprehensive psychological report and made herself available to appear at the hearing. For the purpose of the report, on 12 May 2021 Dr Yoxall interviewed the Applicant and clinically assessed him via teleconference with a review undertaken on 12 April 2021. In the almost three years since, Dr Yoxall had not been required to undertake any additional assessment of the Applicant or have cause to review any material relating to him.
In undertaking a risk assessment of the Applicant, Dr Yoxall applied the Historical Clinical Risk Management-20 (‘HCR-20’) assessment protocol which provides a structured professional judgment tool designed to provide a guided clinical approach to risk assessment. Dr Yoxall’s report explained that violence is defined as actual, attempted or threatened physical harm that is deliberate and nonconsenting and includes violence against victims who cannot give full, informed consent and includes fear-inducing behaviour, whereas threats may be implicit or directed at third parties'. Items on the measure fall into three categories — Historical Items (past), Clinical Items (present) and Risk Management Items (future).[34]
[34] Dr Yoxall’s psychological report, G2, Attachment K, page 133.
Dr Yoxall observed the Applicant’s lack of any history of violent behaviour as a child or as an adult, and there was no information to suggest anti-social behaviour during his development years,[35] and the information available indicated that his index offending was uncharacteristic.[36]
[35] Dr Yoxall’s psychological report, G2, Attachment K, page 134.
[36] Dr Yoxall’s psychological report, G2, Attachment K, page 133.
When considering risk factors as they applied to the Applicant, Dr Yoxall reported that he has a low loading on the historical scale risk items, no loading on the clinical scale risk items and a moderate loading on the risk management scale items. This indicated that whilst he has few historical risk factors and no current clinical risk factors, he does present with some factors that should be the focus of planning for adjustment to community. She went on to report that he would specifically benefit from working on skills and strategies to equip himself to cope with the likely stressors he will encounter as he attempts to re-establish himself in his family, social networks, employment and community.
Overall, Dr Yoxall’s assessment was that the Applicant’s risk score was within a range that was considered to be low risk, noting that ’low risk’ is the lowest possible assessment provided under the HCR-20 protocol. To provide a broader consideration of the overall likelihood of the Applicant re-offending, he was evaluated under The Level of Service Inventory – Revised (LSI-R). Dr Yoxall’s report indicates that the LSI-R is the most empirically evidenced and widely used risk assessment protocol[37] and he does not present with any antisocial ideas or beliefs and his assessment score under the LSI-R indicated that he had a low risk of reoffending and a low risk of rehabilitation needs.[38]
[37] Dr Yoxall’s psychological report, G2, Attachment K, page 138.
[38] Dr Yoxall’s psychological report, G2, Attachment K, page 140.
In her evidence, Dr Yoxall commented that the Applicant’s entire life and every aspect of his life has been changed and always will be because of the behaviour he engaged in on that day of the index offending. She went on to say that of course, that’s not minimising or disregarding the horrific loss to the family of the victim, so life will not be the same at all.
In discussing whether the Applicant had any insight into what had happened on the day of his index offending, Dr Yoxall said insight was particularly important and it follows that by a person having insight, that tempers the risk of antisocial or violent behaviour. She said the Applicant had spent a lot of time examining what contributed to his circumstances in its miniscule detail, and as far as she could determine, he seems very insightful.[39]
[39] Hearing transcript, 8 February 2024 (Day 1), page 60.
Letters of support
HJ is the Applicant’s mother. She resides in New Zealand and she did not appear at the hearing. Although her letter is undated,[40] I accept that it is a recent letter and its purpose was to provide information to the Tribunal. She described the Applicant’s childhood as being unremarkable. Like most children, he was playful, happy and got on well with other children. He excelled in sports at school and at home, he was a caring and respectful child who she described as helpful, considerate, kind and well-mannered towards his parents, friends and relatives. She spoke of his development into a young adult, buying his first motor car and getting his first job. She referenced the Applicant relocating to Australia where he met his partner, and that they are now the parents of their three children (her grandchildren). The Applicant’s mother spoke to the events which unfolded on that fateful day on the side of the M1. She described his actions on that day as being out of character, and that he would always be supported by others, which I accept that she means his family.
[40] G2, Attachment N1, pages 160 – 162.
HTKG is one of the Applicant’s younger brothers. Like their mother’s letter, his was also undated and I accept that it was recently drafted for the purposes of supporting the Applicant in the hearing.[41] He described the Applicant as having solid attributes such as being independent, sporty, kind, funny and a very hard worker. He said that in comparison between the young man the Applicant was in New Zealand to now, his character has not really changed, except that he is now a proud father of his children and that has brought about a positive change in him. When commenting on the Applicant’s index offending, he considered the Applicant would never put himself in that sort of situation of he had foreseen the outcome. He went onto speak about the Applicant first finding incarceration being difficult, but he soon adapted and focused on painting artwork and his later charitable gesture was to donate his painting to the [redacted] Church.
[41] G2, Attachment N2, pages 163 – 164.
GS provided a short single page undated letter to the Tribunal.[42] Again, I accept that it is a recent document and its purpose is to attest to the Applicant’s character. GS did not give evidence at the hearing and her letter described that she has known the Applicant for about 10 years, having met him through the [redacted] Foundation. He is described as a volunteer contributor to the community at the [redacted] Food Bank as well as volunteering and coaching within the local netball community.
[42] G2, Attachment N3, page 165.
Further letters from TA were provided.[43] Those were dated 21 April 2021 and 23 August 2023 and explained that TA had known the Applicant for the past 12 years. The Applicant was described as a family man, a caring father and a devoted husband and a strong contributor to the community through his volunteer work through his engagement with various sporting bodies, including a local netball club where his daughters participated.
[43] G2, Attachment N4, pages 166 – 167.
AN provided a letter[44] of support for the Applicant in which significant reference was made to the Applicant’s volunteer contributions and involvement in the netball club where his three daughters were members. He is described as being very personable, approachable, kind and caring and his offending which led to his incarceration was out of character for him.
[44] G2, Attachment N5, page 168.
GAN is a sports coordinator from the [redacted] and wider Brisbane area.[45] Similar to the character reference provided by AN, GAN spoke to the significant involvement the Applicant has a parent and a volunteer with sports that his children played; and his role as a parent of three young children.
[45] G2, Attachment N6, pages 169 - 170.
FB is a business owner and met the Applicant, his wife and his family at the [redacted] Church five years earlier.[46] FB described that the Applicant’s index offending was not in line with his past behaviours and was extremely out of character. In regard to his community involvement, FB said that the Applicant was heavily invested in his community and gave his time to charity and the church.
[46] G2, Attachment N7, page 171.
HJD wrote four separate letters in support for the Applicant.[47] She also gave evidence at the hearing. In her letters she described that she and her husband are the pastors of the [redacted] Church and founders of the charity, [redacted]. About five years ago, the Applicant discussed with her the events involving his index offending. She and her husband have always supported the Applicant during his process through the legal system and she and her husband visited him when he was serving his sentence. She described him as a wonderful asset to [redacted] and as a volunteer, he put in many hours of service to the community.
[47] G2, Attachments N8 and N9, pages 172 to 178.
In her evidence, she told the Tribunal that the Applicant was a very soft-hearted man, and in her view, that is what made him stand out to her. In cross-examination, the Respondent’s representative drew her attention to comment she made in her letters regarding the Applicant defending himself in the incident with [redacted]. It was then brought to her attention that when the Applicant had given evidence to the Tribunal earlier in the day, that he accepted he did not act reasonably in self-defence. She was asked whether that concession by the Applicant changed her view about him, and she said ‘no, he’s such a gentle person, I was totally shocked. When he actually told me what had happened, I was absolutely shocked because of the calibre of man that I know him to be. So I was 100 per cent shocked that he’d even, you know, been involved in something like that.
PS is a grazier and breeds both cattle and sheep in rural Queensland.[48] I accept that although PS’s character reference was only what appears to be a brief email, he considers the Applicant to be of a strong character in that should the Applicant require employment in the future, he was willingly employ him on the rural property.
[48] G2, Attachment N10, page 179.
The letters referenced the Applicant’s volunteer work within the community and his involvement with the sporting organisation that his daughters are associated with, along with a church and associated charity organisations.
Submissions
The Applicant submitted that since the index offending occurred, he has undertaken rehabilitation courses and sought psychological counselling which included support for dealing with anger management. He went to submit that there have been no issues relating to any repeat behaviour during the period that he has spent in custody and in immigration detention; and he had previous been tested in the community between when he was released on bail to when he was sentenced. Like the period in detention and custody, there were no issues of concern in respect to him reoffending.
His submissions went onto describe that during his term of imprisonment, he also attempted to participate in drug and alcohol courses. He pointed out that this was not because he had a problem with those substances, but because those courses would have been a benefit to him so far as him learning positive coping mechanisms. He submitted, which I accept, is a demonstration of his willingness to undertake the positive factor of rehabilitative action against future offending.[49]
[49] Applicant’s Statement of Facts, Issues and Contentions, pages 8 – 10, paragraphs 38 – 45.
The Respondent quite correctly pointed out the seriousness of the Applicant’s index offending which resulted in the death of the victim, as well as psychological and other harm to the witnesses who were present at the scene of the incident, including the truck driver who was otherwise driving along the M1 and was innocently caught up in this tragic event. The Respondent pointed out that should the Applicant engage in further criminal or serious conduct, that in its very nature would be extremely serious.
The Respondent’s submissions noted Dr Yoxall’s findings that the Applicant scored 8 out of 40 on the HCR-20 scale, which was pointed out by the Respondent that such a score is generally considered to accord with a low risk and that Dr Yoxall noted that the management of noted future risks is vital to ensure that reoffending is a low probability.
The Respondent also pointed out Dr Yoxall’s scoring of the Applicant on the LSI-R scale, and her assessment was that he had a score of seven which indicates a low risk of reoffending and a low level of rehabilitations needs. It was also pointed out by the Respondent that Dr Yoxall noted that 11.7% of those people in this range reoffended and were incarcerated within 12 months.[50] In further submissions, the Respondent said that in regard to the results of the LSI-R in circumstances where people who had the same scores as the Applicant, but the outcome is a risk that unacceptable and is one that the community should not be required to bear.[51]
[50] Respondent’s Statement of Facts, Issues and Contentions, paragraphs 25 – 28.
[51] Hearing transcript, 9 February 2024 (Day 2), page 10.
Findings about risk of engaging in further criminal or other serious conduct
Prior to his index offending, the Applicant had lived a life unblemished by any criminal conduct. Although both he and NNS arrived separately, they had known each other from when they both lived in New Zealand. They met up in Australia, started a relationship and they are now the parents of three daughters aged 14, 11 and 10. The evidence in this matter shows that he not only has a close and loving relationship with NNS, but also with their three daughters.
There have been quite a number of letters provided from members of the Applicant’s family, along with other people he had associated with through his church and the charity, as well as others who have a vested interest in the sporting groups which the Applicant’s children are involved with. The overall consensus of those people is that his index offending was completely out of character and did not accord with the nature of the person they all knew the Applicant to be.
Dr Yoxall’s assessment of the Applicant was that there was an absence of any history of violent behaviour as a child or as an adult, and there was no information to suggest anti-social behaviour during his development years,[52] and the information available indicated that his index offending was uncharacteristic.[53]
[52] Dr Yoxall’s psychological report, G2, Attachment K, page 134.
[53] Dr Yoxall’s psychological report, G2, Attachment K, page 133.
He was assessed by Dr Yoxall to risk score which was within a range considered to be low risk, a ’low risk’ is the lowest possible assessment provided under the HCR-20 protocol. When opining on the overall likelihood of the Applicant re-offending, he was evaluated as not presenting with any antisocial ideas or beliefs and he was considered by Dr Yoxall as having a low risk of reoffending and a low risk of rehabilitation needs.[54]
[54] Dr Yoxall’s psychological report, G2, Attachment K, page 140.
Paragraph 8.1.2(2)(c)
The Direction also contains a reference to sub-paragraph 8.1.2(2)(c). With reference to this specific sub-paragraph, this matter does not involve a ‘refusal to grant a visa to a non-citizen’. It involves an application for the ‘revocation’ of a decision refusing to revoke the earlier mandatory cancellation of the Applicant’s Visa. This specific paragraph is not relevant to the determination of this application.
Conclusion of Primary Consideration 1:
With regard to the weight to be applied to Primary Consideration 1, I have found that the nature and the seriousness of the Applicant’s offending has been very serious. I also find that if he were to re-commit an offence similar in nature to what he was imprisoned for, that conduct would in reality result in very serious physical, psychological and catastrophic harm to a victim(s); and if he were to re-commit his very serious index offending, the harm caused would be so serious that if repeated it would be unacceptable to the Australia community.
However, on analysis of the evidence of Dr Yoxall which discussed risk factors, the expert opinion was that the Applicant displayed a significant level of insight into his behaviour during his index offending and the catastrophic circumstances which flowed from that incident lead to a conclusion that there is a very low risk of the Applicant repeating his past conduct. Therefore, that leads me to find that a very heavy level of weight should weigh in favour of affirming the decision under review.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
The material before the Tribunal is not indicative of the Applicant’s conduct involving acts of family violence. During the hearing, the parties agreed that this Primary Consideration was not relevant for present purposes.[55] Accordingly, I view this Primary Consideration irrelevant and allocate neutral weight for present purposes.
[55] R1 [30]; A1 [50], Hearing transcript 9 February 2024 (Day 2), page 3, lines 45 – 47.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Paragraph 8.3(1) of the Direction states:
(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.

The subsequent sub-paragraphs 8.3(2) and 8.3(3) of the Direction provide guidance to a decision-maker in how to determine the weight allocable to a person’s ties to his child/ren and social links wherein the child/ren and the social links of the person are Australian citizens or permanent Australian residents and/or who have a right to remain in Australia indefinitely.
In the assessment of any other ties a person may have in Australia, paragraph 8.3(4) of the Direction requires a decision-maker to have regard to:
a) the length of time the non-citizen has resided in the Australian community, noting that:
i.     considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.    more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.    less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
Paragraph 8.3(1): Consideration of the impact of this decision on the Applicant’s immediate family members
For purposes of this Primary Consideration, his immediate family which would be impacted by the Tribunal’s decision consist of his partner, NNS and their three daughters, HNMA aged 14, HNHC aged 11 and HNHL aged 10. All three children were born in Australia and are Australian citizens. They are enrolled in school and actively engage in extra-curricular sporting activities within the community.
A statement was provided by NNS and she appeared before the Tribunal at the hearing. There is no statement or letters provided by the Applicant’s daughters.
Other close family members, including immediate family, in-laws and cousins who are in Australia which form part of a consideration of the impact of a decision about the Applicant’s visa cancellation are:
·HQ, the Applicant’s younger brother;
·RH (cousin);
·KE (cousin);
·TT (cousin);
·ML (cousin);
·KS (cousin);
·WW (cousin);
·CA (brother-in-law); and
·CD (sister-in-law).
None of those family members provided a statement or appeared at the Tribunal hearing to give evidence.
In his statement, the Applicant said that he had various other uncles and aunties in Australia, although he stopped short in identifying them and they did not provide a statement to the Tribunal.
In addition to those family members, in his personal circumstances form, the Applicant also nominated that he had two nieces, although he did not identify them or their ages, or provide any other information about them.
NNS is the Applicant’s partner. It was her evidence that she has full time employment and has been fully engaged with the same employer for the past 15 years. She also said that the family home was under a mortgage. When discussing their children and their relationship with the Applicant, she disclosed that he played a very important and active roles in the lives of their children, including socially and emotionally. NNS described that because of the obvious close bond between the Applicant and their three daughters, the children all missed his presence within the family unit and their home.
Although I recognise and accept that the Applicant has a large extended group of family members in Australia, I have more specifically taken in account the written and oral evidence of his partner, NNS. I am satisfied that NNS and their children HNMA, HNHC and HNHL would be adversely impacted in the event that the Applicant was removed to New Zealand.
Therefore, so far as this paragraph relates to Primary Consideration 3, I am of the view that the Applicant’s ties with his partner and children are very strong and I allocate a heavy weight in favour of the Applicant.
Paragraph 8.3(2): Consideration of the Applicant’s ties to Australia having regard to the Applicant’s child/ren who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely
This element of Primary Consideration 3 requires me to give consideration as to whether more weight should be allocated to the Applicant’s connections to Australia where his children are Australian citizens. He has three daughters, HNMA aged 14, HNHC aged 11 and HNHL aged 10 who fall within this category. His three young children were all born in Australia, and although they have extended family ties to New Zealand, Australia is where they are attending school, they have a social network and they enjoy the interaction with extracurricular activities.
In her statement, NNS discussed relocating with the three children to New Zealand.[56] She said it would be a difficult situation to relocate but it was important that the Applicant maintain a strong father-daughter relationship with the children. The children would be devastated if they had to relocate. She acknowledged the choices and consequences of this pivotal time in her family’s life and it would be absolutely devastating for her and the three children to leave everyone and everything the children had grown fond of and attached to.
[56] ATB-4, Statement of NNS, paragraphs 30 – 34.
NNS was worried about the prospects of uprooting the children from the place they call home, and forcing them to leave behind their friends, family and the social groups they have formed through their extra-curricular activities. She went on to state that the children are aware of the prospect of having to relocate to New Zealand and they have expressed to her that they do not want to move to New Zealand.
The Applicant’s close relationship with his three children, who are all Australian citizens, does in my view, satisfies me that a significant heavy weight should be weighed in favour of the Applicant in regard to this paragraph.
Paragraph 8.3(3) Strength, nature, and duration of ties with any family or social links generally
The evidence shows that the Applicant has strong and significant ties with his immediate family, and significant ties to his extended family members in Australia. The evidence also supports that he has substantial links to the community through his voluntary work in connection to his church and the associated charity. He also is heavily invested in his involvement with local sporting organisations which his daughters are associated with.
I will return later in these Reasons to discuss the evidence relating to the Applicant’s ties to his children and for the purposes of Primary Consideration 4. I am satisfied, and so find, that the Applicant’s ties to his children weighs heavily in his favour so far as the strength, nature and duration of ties to Australia.
In respect to his social links generally, the Applicant arrived in Australia in 2007 as a 28 year old adult. The evidence in this matter shows that over the past 17 years, he has established significant social links within the Australian community. Earlier in these Reasons at paragraphs [73] to [82], I discussed the number of letters of support for the Applicant, which were contained within the evidence presented at hearing. Some of those letters were from family members, however there was a significant sample of positive letters from members of the Applicant’s social network. Those people expressed in those support letters that they each had known the Applicant for a considerable number of years, and they each reference that they knew of the Applicant’s index offending. Outside that offending, which they said was out of character, there was evidence that the Applicant’s social links within the community are well established through his church, the charity associated with that church and the sporting organisations he is involved with. I am of the view that this weighs strongly in favour of the Applicant.
Paragraph 8.3(4): Consideration of the nature of the Applicant’s ties to the Australian community having regard to the length of time he has resided here
In relation to Primary Consideration 3, the Applicant has been in Australia since 2007. He was 28 years of age when he arrived. He and his partner have been in a long term relationship (since 2008) and they have purchased a home on which there is a mortgage. Throughout much of the time he had been in Australia he has maintained purposeful and meaningful employment. I accept that the only period that he was not employed was when he and his partner decided that he would be the primary stay-at-home-parent and this allowed his partner to re-enter the workforce.
The Applicant did not arrive in Australia until he was a 28 year old adult, and although he has spent the past 17 years in the country, I am satisfied that he did not spend his formative years in Australia. Therefore, for current purposes this paragraph of the Direction is rendered neutral.
The Applicant has extended family and friends in Australia, and I accept that there have been some notable contributions which he has made to the community. Those contributions have been through his engagement in a variety of organisations including his children’s extracurricular activities including sports, charity and volunteering work and his involvement with his church.
Apart from the Applicant’s children, another key factor in considering Primary Consideration 3 is the Applicant’s partner. She has the right to reside in Australia indefinitely and any cancellation of his Visa will impact greatly upon her. The Applicant submitted, to which I agree, that this would otherwise added to the circumstances surrounding the already tragic which was the catalyst for this matter.
Conclusion: Primary Consideration 3
Upon careful consideration of the factors relating to Primary Consideration 3, and particularly noting that his three daughters were born and raised in Australia, I am satisfied, and so find, that removal of the Applicant from Australia , this will greatly impact upon his immediate family and they would be devastated if he was removed to New Zealand. Therefore, I allocated a heavy weight in favour of the Applicant.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
This primary consideration requires a decision-maker to consider what impact a decision to refuse or not revoke cancellation of a visa will have on children who are and will continue to be under the age of 18 years of age at the time of the decision.[57] The Direction further requires that the best interests of each child must be considered individually if there are more than one minor child/ren identified.
[57] Paragraphs 8.4(1) and 8.4(2) of the Direction.
In assessing the best interests of each child/ren, a decision-maker is required to take into account:[58]
[58] Paragraph 8.4(4) of the Direction.
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.
Identification of relevant minor child/ren
For the purposes of Primary Consideration 4, the Applicant confirmed at the hearing that the following three minor children are the only minor children that are to be taken into account. Those minor children are:
·HNMA, born in May 2009 and currently aged 14;
·HNHC, born July 2012 and currently aged 11; and
·HNHL, born August 2013 and currently aged 10.
In his evidence at the hearing, he described his relationship in relatively simplistic terms as a father-daughter bond. He went on to describe that until he spent time in custody and detention, he was always involved in every aspect of his children’s lives. He was there at their birth, and he held each of them as they were a newborn baby. He recalled some of the milestones achieved during the development of the children, such as being there with each of the children for their first steps and their first days at school. He recalled teaching all of his daughters how to ride a bicycle, he spent leisure time with them and taught them how to fish. He described playing with them and engaging with each of the children and taking them to netball training and he coached their netball team. The Applicant went on to describe the following about his relationship with his daughters.
‘Okay, my eldest daughter, yes. I was there for her birth. I taught – I taught her to walk. I had the privilege of naming her. So I’ve named her, her first name and her – and she’s taken my last name. I’m very proud of that. I taught her to walk. I’ve taken her to school. I’ve been to a lot of her school assemblies, and (indistinct) – school assemblies and I’ve been taking her to sports. I’ve trained with her, I’ve always played with her. I’m always interacting with her. We do house chores together. I just do everything with her. I’ve taught her everything that she knows. Well, most of the stuff that she knows before being incarcerated. And I speak to her every day and she breaks down when I – when I talk to her about it, so I try to avoid it. And then there’s (redacted). Sorry, my middle child. Yes, it was the same deal there. I was at her birth. I taught her to walk. I was there for her first words, which I missed A’s first words, but I was there for C’s first words. Jeez, (indistinct). I took her to school, taught everything she knows. She loves netball. I’ve always taken her to netball. We’ve made that a family thing, to support – support our girls in their netball. So I’ve done that. I’ve taught her to fish. She – she just loves school. She loves her school. And my youngest daughter, she’s – yes, she’s got a personality of her own. She’s totally different from my two younger ones – my two older ones, sorry. She’s – she’s the rebel of the family and she just wants to play – play with cars and kick rugby balls and kick soccer balls and play golf and tennis. She doesn’t want to play netball, but she still plays netball just to fill the time in, but she – she wants to play golf when I get out and she wants me to join her, when we – when I do get released, if I do get released. Well, those are my girls, my daughters, they’re my world.’ [59]
[59] Hearing transcript, 8 February 2024 (Day 1), page 13, lines 36 – 47, page 14, lines 1 – 14.
NNS in her evidence validated the solid father – daughter relationship the Applicant has with each of the three children, she described it as the children being ‘very tight with their dad’[60] and ‘they’re quite close to their father’.[61]
[60] Hearing transcript, 8 February 2024 (Day 1), page 40, line 1.
[61] Hearing transcript, 8 February 2024 (Day 1), page 39, lines 12 – 13.
I found that his evidence about his relationship with his three children demonstrated a very close relationship between him and all of his three children, and before he was separated from the family unit and placed into custody, and then immigration detention, he was heavily invested in his parental responsibilities. Although those responsibilities have now fallen upon his partner, there is evidence that he has continued to have a strong bond and relationship with all his daughters during the period that he has been separated from them.
Although the Applicant has references within his personal circumstances form that he had two nieces living in Australia. His evidence at the hearing, and my reading of the material suggests that there was nothing before the Tribunal about the nature or the scope of his relationship with those two nieces.
Application of factors at 8.4(4) of the Direction to the relevant minor children
Paragraph (a): Prior to his separation from the family unit when he was sentenced, and then ultimately placed into immigration detention, the Applicant’s relationship with all of his children can be characterised by his ongoing involvement as a responsible parent. The extent of his involvement in the development of his children makes it clear that the best interests of all three minor children weigh strongly in favour of the Applicant with regard to the restoration of his Visa status to remain in Australia.
Paragraph (b): The past history and examples given by the Applicant and his partner, NNS, revealed the extent of the Applicant’s significant involvement with the development of all three minor children. All three children are relatively young, with only the eldest child being a teenager, albeit a young teenager. Taking into account the length of time before the children turn 18, those examples already given of the Applicant’s involvement with his children satisfies me that there is every likelihood that upon his release back into the community, his significant involvement with the children will continue.
Paragraph (c): There is no report, information or evidence available to me that addresses what impact the Applicant’s past offending had on his children, or indeed about how any future conduct or offending will impact upon them. This paragraph is put to one side and rendered neutral for the present purposes.
Paragraph (d): There are no statements from the children for them to express how their views, concerns or feelings about being separated from their father, although I take into account the views expressed by NNS that the children would be distraught because they are all quite close to the Applicant. I am satisfied, and so find, that the close relationship between the children and the Applicant weigh heavily in his favour so far as restoring his Visa status to remain in Australia.
Paragraph (e): Since the Applicant was taken into custody in 2018, the childrens’ mother, NNS, has placed a pivotal parental role with the children and while she may be playing that parental role at present, there is evidence that for a significant period of time prior to that, the Applicant was a stay-at-home-parent for the children. I am satisfied that this paragraph should not weigh against the Applicant and I place it to one side for the present purposes.
Paragraph (f): I again refer to there being no statement from either of the Applicant’s three children. As such their expressed views are not known, save for what their mother, NNS, said at the hearing. When explaining how the children would be affected, she said that Australia is their home, and they do not know New Zealand as their home. She also explained that they were going through their schooling in Australia and although they are aware of the prospect of their father’s deportation, they told her that they did not want to move to New Zealand.[62] I am of the view that the information within this paragraph weight very strongly in favour of the Applicant.
[62] ATB-5, NNS’s statement, paragraph 34.

Paragraphs (g) and (h): I am satisfied that the material contains no evidence relating to either of these two paragraphs and they should be both placed to one side and rendered neutral for the present purposes.
Conclusion: Primary Consideration 4
The Applicant’s three young children were all born in Australia, therefore it is understandable that they only know this country as home. I am satisfied, and so find, that removal of the Applicant from Australia, would have a tremendous impact upon all three children. Although the children have extended family ties in New Zealand, they have never resided there and they would be forced leave behind the support they have from their extended family in Australia, as well as leaving the only life known to them.
I am satisfied, and so find, that when taking into account the best interests of the Applicant’s three children, those factors weigh strongly in favour of the Applicant with regard to the restoration of his Visa status to remain in Australia and I apportion a heavy weight in favour of the revocation of the mandatory cancellation of the Applicant’s Visa.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[63] The Direction further explains:
‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[64]
[63] Paragraph 8.5(3) of the Direction.
[64] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:
(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.
This Applicant has breached the Australian community’s expectations by his criminal offending in this country which is evidenced by his criminal history record check appearing in the material. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
The Direction also states that visa cancellation or refusal, or non-revocation of a mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:[65]
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.
[65] Paragraph 8.5(2) of the Direction.
Explained earlier in these reasons is the evidence and the concession by both parties that there is no relevance to domestic violence in the Applicant’s history. Nor was there any evidence he had engaged in any of the conducted referenced in subparagraphs (b) – (f) above.
The question is whether there are any other factors which modify the imputed expectation of the Australian community, and this question is informed by the principles in paragraph 5.2(4) – (6) of the Direction.
(a)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;
(b)the Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;
(c)Australia will generally 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;
(d)The community’s level of tolerance will rise based on the length of time a non-citizen has spent in Australia and, in particular, whether their formative years were spent here;
(e)the nature of a 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 a visa outcome that is not adverse to the non-citizen;
(f) if a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
In relation to question of the Visa held by the Applicant as mentioned in sub-paragraph (a) of the preceding paragraph [142] of these Reasons, the term ‘limited stay visa’ is not defined in the Act. The Applicant in this case held a Class TY Subclass 444 Special Category (Temporary) visa until it was mandatorily cancelled on 16 June 2020.[66] This Visa permits a citizen of New Zealand to remain in Australia indefinitely.[67] As the Visa permitted the Applicant to remain in Australia without any limit on the duration of his stay, the Visa held by the Applicant cannot be classified as a limited stay visa.[68] Therefore this sub-paragraph is not applicable to the Applicant.
[66] G2, pp 181-186.
[67] Regulation 444.511 of the Migration Regulations 1994 (Cth).
[68] Walker v Minister of Home Affairs [2020] FCA 909 at [29].
Regarding sub-paragraph (b) of paragraph [142] of these Reasons, when carefully considering the factors of this matter, the Applicant has lived in Australia since 2007 (a period of almost 17 years). He was aged 28 at the time he arrived in Australia and he is now aged 44. During much of the time that he has been in the country, he has been purposefully employed and positively contributed to the Australian community through his employment from 2007 to 2013, and again in 2015. I consider that he has had a solid work history in Australia. He met his partner and through their relationship he is now the father of three children aged 14, 11 and 10. His participation in and contribution to the Australian community during his time in the country cannot be considered to have been ‘short’, and therefore the Australian community’s tolerance is not lowered by this part of the principles prescribed in 5.2(4) of the Direction.
In relation to sub-paragraph (c) of paragraph [142] of these Reasons, I have already identified that the Applicant was aged 28 when he arrived in the country, and he is now aged 44. About a third of his life has been spent in Australia, meaning that the Australian community has higher than usual tolerance of criminal or other serious conduct by the Applicant.
In regard to sub-paragraph (d) of paragraph [142] of these Reasons, although the Applicant has not spent his formative years in Australia, I am satisfied, and am of the view that the length of time that the Applicant has spent in Australia (from 2007) enables a minor raising of the community’s level of tolerance for his criminal offending.
Regarding sub-paragraph (e) of paragraph [142] of these Reasons, I am not of the view, that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant recommitting his criminal offending of the same type and magnitude already committed and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the nature and extent of the Applicant’s offending of causing the death of the deceased victim and the harm resulting from this offending thus far has been of such a particularly serious magnitude as to potentially dispel any applicable strong countervailing considerations may be insufficient to justify an outcome which is not adverse to the applicant.
In respect to sub-paragraph (f) of paragraph [142] of these Reasons, the Applicant’s offending does not fall within any of the sub-paragraphs of paragraph 8.5(2)(a)-(f). Therefore, this sub-paragraph should be put to one side and rendered neutral for present purposes.
Considering the above discussion, I am of the view that the Australian community’s expectations are not modified such that the Australian community does have a higher than usual tolerance of criminal conduct by the Applicant. Given the very serious nature of the Applicant’s offending, the Australian community expects the Australian Government to cancel the Applicant’s Visa.
Conclusion: Primary Consideration 5
Primary Consideration 5: carries a heavy weight in favour of affirming the Decision Under Review
OTHER CONSIDERATIONS
Other Considerations (a): Legal consequences of the decision; (c): Impact on victims and (d): Impact on Australian business interests
The parties in their written and oral submissions confirmed that Other Consideration (a), (c) and (d) of the Direction are not relevant for present purposes.[69] Accordingly, I deem these Other Considerations irrelevant and allocate neutral weight for present purposes.
Other Consideration (b): Extent of impediments if removed
[69] Applicant’s Statement of Facts, Issues and Contentions, pages 16 – 17; Respondent’s Statement of Facts, Facts, Issues and Contentions, paragraphs 51 – 59.
Factors to be taken into account
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are any substantial language or cultural barriers; and
c)any social, medical and/or economic support available to that non-citizen in that country.
Paragraph 9.2(1)(a): In regard to the Applicant’s age and health, he is 44 years of age and has a medical history which includes gout, asthma and hay fever. He has medication for those conditions. He is a non-smoker in terms of tobacco use, but was however, prior to serving his term of imprisonment and being in immigration detention, a ‘social user’ of cannabis, approximately once a month. In terms of his alcohol consumption, he is described as a social drinker who in his 20’s would consume six to eight standard drinks in a session, but as he grew older and took on a role as a responsible parent, his consumption of alcohol had reduced a social session of about once a month. There is nothing within the material to suggest that he experiences any health issues resulting from the consumption of alcohol or cannabis, and nor is there any significant history of his use of prescription or non-prescription medication beyond the medication for gout, asthmas and hay fever.
In her psychological report, Dr Yoxall’s assessment was that the Applicant’s risk of violent reoffending was very low, and his risk of offending in general was very low. She went on to opine that his adaption back into the community is likely to be challenging for him and given his history of depression and PTSD, he may be at risk of a relapse, however she noted that his mental illness is not a general risk factor for him as his offending pathway did not involve mental illness. When asked about that point during her evidence, she said that it was difficult to come to the point to see someone who had offended experience something like PTSD as a direct result of his own actions, and it would be very few occasions that that would be the case. Clinically it was not impossible because what the Applicant saw, irrespective of whether he created it, was extremely traumatic in and of itself. However, she was of the view that he did suffer depression.
Paragraph 9.2(1)(b): In regard to whether there are any substantial language or cultural barriers, there is little or nothing before me about any substantial language or cultural barriers impeding the Applicant’s resettlement in New Zealand. Up until the age of 28, he lived there before coming to Australia. I am satisfied, and so find, that there would be no substantial language or cultural barriers for the Applicant should he return to New Zealand.
Paragraph 9.2(1)(c): This paragraph looks at any social, medial and/or economic support available to the Applicant in New Zealand. Firstly, there is a benefit in regard to the social support which the Applicant would have from members of his immediate family in New Zealand such as his father, mother and two of his brothers. He had lived in New Zealand up until the age of 28, and he has made a number of return trips since he first arrived in Australian. His evidence at the hearing was that the particularly difficult thing for him to return to New Zealand was “Just not having my family and kids around”.[70] I take it that he was referring to his partner NNS and his three children. I accept that if the Applicant was removed to New Zealand, he will not have the social support of his partner and their three children , and I also accept that he would experience emotional difficulties and hardship from being separated from them, although I am satisfied that he will be able to communicate with them.
[70] Hearing transcript, 8 February 2024 (Day 1), page 26, lines 19 – 22.
The Applicant suffers from gout, asthma and hay fever. He has medication for those conditions and there is no suggestion that he would not be able to have access to similar or the same medication in New Zealand to treat those conditions, and similar to his depression and PTSD, sufficient and appropriate treatment is available in New Zealand for those conditions.
Findings about impediments
In consideration to my findings in relation to paragraph 9.2(1)(a) – (c) of the Direction, I am of the view (and so find) that this Other Consideration (b) weights strongly in favour of the Applicant.
Findings: Other Considerations
The allocation of weight to the Other Considerations in the present matter can be summarised as follows:
(a)legal consequences of the decision: is of neutral weight;
(b)extent of impediments if removed: is of strong weight in favour of revocation;
(c)impact on victims: is of neutral weight;
(d)impact on Australian business interests: is of neutral weight.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted (and found) previously in these Reasons, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the power afforded by s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s Visa, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: carries a very heavy weight in favour of affirming the Decision Under Review;
·Primary Consideration 2: is of neutral weight;
·Primary Consideration 3: is of a heavy weight in favour of setting aside the Decision Under Review;
·Primary Consideration 4: is of heavy strong weight in favour of setting aside the Decision Under Review;
·Primary Consideration 5: carries a heavy weight in favour of affirming the Decision Under Review;
I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to Primary Considerations 3, 4 and Other Consideration (b) are sufficient to outweigh the combined weights I have allocated to Primary Considerations 1 and 5.
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding that there is another reason to revoke the mandatory cancellation of the Applicant’s Visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal sets aside the decision made on 29 November 2023 by a delegate of the Respondent and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

I certify that the preceding 164 (one hundred and sixty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Wayne Pennell

..............[SGD]................
Associate
Dated: 8 April 2024

Dates of hearing: 8 and 9 February 2024

Solicitor for the Applicant: Ms Jennifer Samuta (Principal)

Samuta McComber Lawyers

Solicitor for the Respondent: Mr Oliver Morris (Senior Associate)

Clayton Utz Lawyers

[2024] AATA 624

21 February 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Remedies

Dates of hearing:	8 and 9 February 2024
Solicitor for the Applicant:	Ms Jennifer Samuta (Principal)
Samuta McComber Lawyers
Solicitor for the Respondent:	Mr Oliver Morris (Senior Associate)
Clayton Utz Lawyers