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

Wadeley and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3013 (18 August 2020)
Division:GENERAL DIVISION
File Number(s): 2020/3229
Re:Mr John Christopher Wadeley
APPLICANT

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

Tribunal:Senior Member B. Pola
Date:18 August 2020
Place:Brisbane

DECISION
The decision under review is affirmed.
...............................[SGD].........................................
Senior Member B.Pola
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class BB Subclass 155 Resident Return 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. 79 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
CFVG and Minister for Immigration and Border Protection [2017] AATA 1395
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs[2019] FCA 500
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
HWYY v Minister for Home Affairs [2018] AATA 4602
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member B. Pola
18 August 2020
INTRODUCTION AND BACKGROUND

Mr John Christopher Wadeley (the ‘Applicant’) is a 35 year old citizen of the United Kingdom. Movement records indicate the Applicant was first granted a Class BB Subclass 155 Resident Return visa (referred to as ‘Visa’ hereon in these reasons) on arrival into Australia on 12 June 1997, at the age of 11 years[1].
[1] Exhibit G1, G11, page 69.
The Applicant has a criminal history in Australia commencing in April 2002 (as a minor), with 5 separate appearances before a Children’s Court for 15 offences through to June 2004 (when the Applicant was 18 years and 11 months of age)[2].
[2] Exhibit G1, G5, pages 33 and 34.
As an adult the Applicant continued his offending, appearing before Local and District Courts on a further 20 separate occasions, for 81 offences, 51 of which came with a custodial sentence, 28 had non-custodial sentences, and two offences were dismissed.
Significantly, the offences of the Applicant as an adult included serious domestic violence offences, stalking and intimidation, possession of a knife in a public place, affray, assault, assault occasioning bodily harm, assault of police officers, resisting and hindering police in execution of duty, break and enters, robbery, detaining of individuals with intent to take an advantage, supply of prohibited drugs, traffic offences, and stealing.
While serving a term of imprisonment, a delegate of the Minister (or ‘Respondent’), pursuant to s501(3A) of the Migration Act 1959 (Cth) (hereon referred to as the ‘Migration Act’), decided on 8 January 2016 to mandatorily cancel the Applicant’s Visa (or the ‘Visa Cancellation Decision’) on the basis that he did not pass the character test pursuant to s501(6) of the Migration Act [3].
[3] Exhibit G1, G21, pages 120 to 125; and G23, pages 159 to 161.
Following the Visa Cancellation Decision, the Applicant made submissions to the Respondent[4].
[4] Exhibit G1, G14 to G20, pages 76 to 119.
On 26 February 2020, the Respondent decided not to revoke the cancellation of the Applicant’s Visa pursuant to s501CA(4) of the Migration Act[5]. The Applicant was notified of the Respondent’s decision, on 26 May 2020[6].
[5] Exhibit G1, G3, page 9.
[6] Exhibit G1, G2, pages 6 to 8.
The Applicant lodged an application with the Administrative Appeals Tribunal (or the ‘Tribunal’) on 26 May 2020 seeking a review of the abovementioned decision not to revoke the cancellation of his Visa, within the required time frame[7].
[7] Exhibit G1, G1, pages 1 to 5. For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision, refer to s500(6B) of the Migration Act.
The Tribunal has jurisdiction to review this application pursuant to s500(1)(ba) of the Migration Act.
The application was heard in Brisbane on 3 August 2020, with the Applicant who was self‑represented appearing via video link. The Respondent was represented by Mr Arran Gerard from the Australian Government Solicitor. The Tribunal heard oral submissions on behalf of the Applicant and the Respondent, in addition to submitted evidence as outlined in the Exhibit Register in Annexure 1 of these reasons.
ISSUES
Legislation regarding the revocation of the mandatory cancellation of visas is found in s501CA(4) of the Migration Act, which provides:
“(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.”
As previously outlined in these reasons, the Applicant made representations to the Respondent as required by s501CA(4)(a) of the Migration Act[8]. The issue before the Tribunal is whether the discretion to revoke the mandatory cancellation of the Applicant’s Visa may be exercised.
[8] Exhibit G1, G14 to G20, pages 76 to 119.
The Tribunal refers to the Full Court of the Federal Court of Australia’s observations in the Minister for Home Affairs v Buadromo[9], where the following was stated:
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[10].
[9] [2018] FCAFC 151.
[10] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
Therefore, there are two issues for consideration before the Tribunal which must be decided:
(i)whether the Applicant passes the character test; and
(ii)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant were to succeed on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked[11].
[11] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As previously outlined in these reasons, the character test is defined in s501(6) of the Migration Act. A person will not pass the character test if they have a “substantial criminal record” as per s501(6)(a) of the Migration Act. Relevantly, s501(7)(c) of the Migration Act provides that a person is considered to have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant in their submissions of 1 July 2020 stated:
“The Applicant accepts that the character test is made out in accordance with s501(6)(a) Migration Act 1958 (hereinafter referred to as MA1958) as a result of him serving a term of imprisonment for 12 months or more and on a full-time basis in accordance with (s501(7)(c) MA1958), evidenced by the undisputed national criminal history check dated 14^th July 2017…”[12]. [sic]
[12] Exhibit A1, page 1. The Tribunal notes the National Police Certificate outlining the Applicant’s disclosable court outcomes were submitted at Exhibit G1, G5, pages 24 to 34.
The Tribunal is satisfied that the Applicant does not pass the character test as a result of having been sentenced to a term of imprisonment of 12 months or more. The last time the Applicant appeared before lawful authorities was on 15 June 2017, he was convicted of:
(i)robbery in company, where he was sentenced to a term of imprisonment for three years and nine months[13]; and
(ii)take/detain person in company with intent to obtain advantage, where he was sentenced to a term of imprisonment for four years and six months[14].
[13] Exhibit G1, G5, page 24; and G10, page 63.
[14] Ibid.
The Tribunal is of the view that the Applicant is therefore unable to rely on s501CA(4)(b)(i) of the Migration Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in accordance with s501CA(4)(b)(ii) of the Migration Act, the Tribunal is bound by s499 of the Migration Act, to comply with any directions made under the Migration Act.
Given this, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (hereon referred to as the “Direction”) must be applied[15]. The Direction provides guidance for decision-makers on how to exercise discretion in accordance with s501CA of the Migration Act. Relevantly, it states that:
“(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked”[16].
[15] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[16] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides that the three Primary Considerations the Tribunal must consider are:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia; and
c)    Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 14 of the Direction. These considerations are:
a)    International non-refoulement obligations;
b)    Strength, nature and duration of ties;
c)    Impact on Australian business interests;
d)    Impact on victims;
e)    Extent of impediments if removed.
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
The Tribunal will now turn to addressing the three Primary Considerations.
Primary Consideration A – Protection of the Australian Community
In considering Primary Consideration A, paragraph 13.1(1) of the Direction, compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.
This paragraph stipulates that remaining in Australia is a privilege on non-citizens. This paragraph stipulates an expectation that those non-citizens 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 whether the mandatory cancellation of an Applicant’s Visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that:
(i)it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and
(ii)that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending can be gleaned from the following documents:
(a)The Applicant’s criminal history which appears in a document entitled, “National Police Certificate”, which contains all disclosable court outcomes of the Applicant[17].
[17]    Exhibit G1, G5, pages 24 to 34.
(b)The s501 G-Documents and the Respondent’s Tender Bundle of material containing sentencing remarks from[18]:
[18]    Exhibit G1; and Exhibit R1.
(i)Judge Norman SC in the District Court of New South Wales (or “NSW”), 15 June 2017[19];
[19]    Exhibit G1, G6, pages 35 to 46.
(ii)Acting Judge Madgwick in the District Court of NSW, 28 October 2015[20];
[20]    Exhibit G1, G7, pages 47 to 49.
(iii)Magistrate Toose in the Local Court of Katoomba, 28 September 2015[21]; and
[21]    Exhibit G1, G8, pages 50 to 55.
(iv)The Local Court of Katoomba, 21 December 2010[22].
[22]    Exhibit G1, G9, pages 56 to 61.
(c)NSW Department of Corrective Services, Conviction, Sentences and Appeals, report of 26 September 2019[23].
[23]    Exhibit G1, G10, pages 62 to 68.
(d)Documents produced under summons by the Commissioner of Police (NSW), including:
(i)Penrith District Court Appeal of 15 June 2017, including Court Attendance Notice, Facts Sheets, Witness Details, Certified Transcripts, Interview Transcripts, and CCTV Stills of Persons of Interest[24];
[24]    Exhibit R1, SG1, pages 183 to 234.
(ii)Penrith District Court Appeal of 28 October 2015, including Court Attendance Notice, and Facts Sheets[25];
[25]    Exhibit R1, SG1, pages 235 to 245.
(iii)Katoomba Local Court of 22 April 2014, including Justice Link Web Application, Provisional Order (ex parte), and Event Report[26];
[26]    Exhibit R1, SG1, pages 255 to 272.
(iv)Katoomba Local Court of 21 December 2010, including Court Attendance Notice, Facts Sheet, Bail information, Interim Orders relating to an Apprehended Domestic Violence Order, Facebook messages of the Applicant, Handwritten notes, Memo from NSW Police to Prosecutors, Police Statements, Photographs, Letter from Women’s’ Domestic Violence Court Advocacy Service, Witness Statements, Witness Details Cover Page, Custody Management Records, and Subpoenas to Give Evidence[27];
[27]    Exhibit R1, SG1, pages 273 to 333.
(v)Katoomba Local Court of 27 October 2010, including Court Attendance Notice, Facts Sheet, Bail information, Indictable Briefs of evidence, Police Statements, Handwritten notes, Witness Statements, Subpoenas to Give Evidence, Provisional Order (ex parte) Apprehended Domestic Violence Order, AVO Application, Interim AVO, and Final Orders[28];
[28]    Exhibit R1, SG1, pages 334 to 377.
(vi)Katoomba Local Court of 6 October 2010, including Court Attendance Notice, Facts Sheet, Bail information, Probation, and Parole Pre‑Sentence Report[29];
[29]    Exhibit R1, SG1, pages 378 to 401.
(vii)Katoomba Local Court of 19 November 2009, including Court Attendance Notice, and Facts Sheet[30];
(viii)Katoomba Local Court of 28 July 2019, including Court Attendance Notice, and Facts Sheet[31].
(ix)Penrith District Court of 19 March 2008, including Court Attendance Notice, Facts Sheet, and Justice Link Web Application[32];
(x)Katoomba Local Court of 24 September 2007, including Court Attendance Notice, Facts Sheet, and Event Report[33];
(xi)Criminal History Bail Report of 15 June 2020[34];
(xii)Criminal Infringement Notice History[35];
(xiii)Breach of Bail Alternatives Report[36];
(xiv)List of Breach of Bail Charges[37]; and
(xv)Traffic Record Report[38].
[30]    Exhibit R1, SG1, pages 402 to 406.
[31]    Exhibit R1, SG1, pages 407 to 414.
[32]    Exhibit R1, SG1, pages 415 to 421.
[33]    Exhibit R1, SG1, pages 422 to 436.
[34]    Exhibit R1, SG1, pages 437 to 466.
[35]    Exhibit R1, SG1, page 467.
[36]    Exhibit R1, SG1, page 468.
[37]    Exhibit R1, SG1, page 469.
[38]    Exhibit R1, SG1, pages 470 and 471.
The Nature and Seriousness of the Applicant’s Conduct to Date
At the hearing, the Applicant was cross-examined by the Respondent about their criminal offending history. The Applicant’s evidence can largely be summarised as either conceding the commission of the offences put to him, and in certain circumstances either denying the offences occurred, or not being able to recall the circumstances surrounding the offences when they were committed.
There were instances during the hearing where the Applicant did concede that their criminal history was serious, as evidenced in the following exchange[39]:
“Respondent: …Well, speaking of co-offenders, your most serious offence probably took place on 19 January 2015, although you were not - you just did not receive the convictions until 2017. This is in relation to the robbery in company and detain person?
Applicant:Yes.
Respondent: You remember those offences, don't you?
Applicant:Yes. The biggest mistake of my life.”
[39] Transcript, 3 August 2020, page 36, lines 39 to 45.

The Tribunal agrees with the Respondent’s contention that “The applicant has a lengthy criminal record consisting of a series of violent offences, property offences and drug offences. The applicant’s criminal history is serious in and of itself”[40].
[40] Exhibit R2, page 5, paragraph 22.
The Tribunal views the Applicant’s offending as very serious. The Tribunal is of the view that this finding is consistent with the application of the following relevant sub-paragraphs in paragraph 13.1.1(1) of the Direction:
“a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c) The principle that 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, are serious;
d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f) The cumulative effect of repeated offending;
…
h) 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);
…”
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction further provides that crimes of a violent nature against women or children are viewed very seriously, “regardless of the sentence imposed”.
There are a number of what the Tribunal will refer to as ‘offending episodes’ in the Applicant’s criminal history where sentences have been imposed as a result of the Applicant’s behaviour and conduct in his inter-personal relationships, particularly towards that of his former partner, Ms X, with whom he shares a child.
The Applicant was in a relationship with Ms X from May 2006 through to June 2010[41], the Tribunal notes Ms X was 14 years old at the time they had met, with the Applicant (who was 20 at the time) submitting to the Tribunal that Ms X had initially lied to him about her age, stating she was 16[42].
[41] Transcript, 3 August 2020, page 15, lines 40 to 47; and Exhibit R1, SG1, page 316.
[42] Transcript, 3 August 2020, page 16, lines 15 to 35.
The Tribunal will summarise key offending episodes by the Applicant against his former partner in the reasons which follow. These summaries serve to highlight the violent conduct of the Applicant towards women and children.
Katoomba Local Court – 28 July 2009
NSW Police Facts Sheet describe an offending episode which occurred on 27 August 2007, where the Applicant had been violent and aggressive toward his former partner, Ms X. Subsequent to a verbal disagreement, the Police Facts Sheet records the following as having taken place[43]:
“…the YP was at this stage standing near the kitchen table when the [Applicant] approached her still screaming at her and started to spit in the YP’S face hitting her on several occasions. The [Applicant] also spat on the kitchen table before he picked up the YP’S pink and white LG mobile phone which was sitting on the table and thew it into the lounge room breaking it in half. The [Applicant] has then picked up the kitchen chair and thew it into the lounge room. The [Applicant] has also tipped over the kitchen table. ..The [Applicant] then walked into the lounge room and tipped over the ironing board and knocking numerous items off a set of draws also in the lounge room. .. The YP feeling scared for her safety has pick up her hand bag and started to walk west on westbourne avenue away from the [Applicant]. The [Applicant] has followed and yelled out to the YP “If you keep walking I’ll stomp on your head and follow you”. .. The YP feeling that the [Applicant] would do it turned around and walked back to the premises. When both YP and [Applicant] were back in the premises the [Applicant]’s phone was ringing, he answered it and gave his phone to the YP. The YP’S mother said to the YP “[Redacted] must have rang mum she will be home in two minutes. The [Applicant] picked up a few and left yelling abuse to the YP’S neighbour as he walked down the drive way…”
[Tribunal insertions for clarity. The Tribunal notes ‘YP’ refers to Ms X]
[43] Exhibit R1, SG1, pages 409 and 410.
At the time this incident took place the Applicant’s former partner was about 15 years and 9 months old. Following this incident, the Applicant was served a Temporary Intervention Order at Katoomba Police Station on 28 August 2007. A NSW Police Facts Sheet also states that the Applicant then continued with their offending behaviour and on 31 August 2007 attended the workplace of his former partner and left after his former partner asked him to leave. Later on that evening, the Applicant sent threatening text messages to Ms X’s mother, about her mother’s boyfriend, and threatened his former partner that they would pay if the Applicant was to get locked up[44].
[44] Exhibit R1, SG1, pages 412 to 414.
The Applicant appeared before the Katoomba Local Court on 28 July 2009, and was convicted of[45]:
(i)Common assault, with a term of imprisonment of six months;
(ii)Destroy or damage property, with a term of imprisonment of six months;
(iii)Contravene prohibition/restriction in order (domestic), with a term of imprisonment of six months;
(iv)Recklessly cause grievous bodily harm in company, with a term of imprisonment of 12 months;
(v)Assault occasioning actual bodily harm, with a term of imprisonment of six months.
[45] Exhibit G1, G5, page 30.
Katoomba Local Court – 27 October 2010
The Applicant and his former partner ended their relationship on 29 June 2010, following an incident where the Applicant was later charged with common assault, stealing, and stalking or intimidating with intent to cause fear of physical or mental harm. NSW Police Facts Sheet relating to the incident stated the following as having taken place[46]:
“The [Applicant] and the victim [Ms X] in this matter have been in a domestic relationship for about four years and have one child together. They lived together until December, 2008, when the [Applicant] was required to live elsewhere for a period of sixteen months. He returned to the area in March 2010 and they resumed their relationship but mostly lived apart. On 29 June, 2010, the [Applicant] and the victim met at the Katoomba Hospital about 11.30am and walked together to the Katoomba CBD. They were seperated for a short time and then met again in Katoomba Street. They then walked down Katoomba Street and became in a verbal arguement and the victim began to cry. In the vicinity of Centrelink the [Applicant] is alleged to become angry because the victim was crying. He is then alleged to have said, “Your just sitting here so everyone can see you cry. If you don’t move over there, I’m going to get angry and break your jaw.” They moved a short distance away and the verbal argument continued to the vicinity of Coles Supermarket. In the vicinity of the supermarket, the [Applicant] is alleged to have said, “Slut if you don’t stop I’m going to break your jaw.” The victim was frightened by the threats and walked back to Katoomba Street, where the [Applicant] is alleged to have said, “Stop the pram so I can talk to you, if you don’t stop I will spit on you.” The victim said, “Just do it then.” The [Applicant] then assaulted the victim by spitting on her back. He is alleged to have then said, “Everyone look at the trollop, she has spit all over her back, she must be a dirty slut.” The victim continued walking and the [Applicant] followed her, wiping the spit from her back. They made their way to the Katoomba Rail Station where the [Applicant] has continued to argue with the victim and said, “Well I’m going to take all your money and smokes.” He has then taken fifty dollars from the purse of the victim, the purse at the time being located in the pram being wheeled by the victim. The money belonged to the victim only. The victim grabbed the hand of the [Applicant] but was unable to recover the money with the [Applicant] saying, “If you don’t stop trying to take the money off me, I’ll break the babies pram.”…The victim was not injured but stated that she was frightened and intimidate by the actions of the [Applicant].” [sic]
[Tribunal insertions for clarity]
[46] Exhibit R1, SG1, pages 348 and 349.
A witness statement from the Applicant’s former partner of 29 June 2010, reports the Applicant as further threatening them, reporting that the Applicant had told them, “I’m going to get Lannel to bash you”[47].
[47] Exhibit R1, SG1, page 357.
Following this incident, a Provisional Apprehended Domestic Violence Order was issued to protect the Applicant’s former partner and their child from the Applicant[48]. At the time, the Applicant’s child was only 10 months old. Between 2010 and 2016, the Applicant has had continual Apprehended Domestic Violence Orders in place over them, in order to protect the Applicant’s former partner and child.
[48] Exhibit R1, SG1, pages 358 to 364.
The Tribunal heard evidence from the Applicant that a Child Protection Order was currently in place preventing him from accessing their child[49].
[49] Transcript, 3 August 2020, page 31, lines 16 to 22.
The Applicant appeared before the Katoomba Local Court on 27 October 2010, and was convicted of[50]:
(i)Common assault, with a term of imprisonment of six months;
(ii)Stalk/intimidate intend fear of physical/mental harm, with a term of imprisonment of six months; and
(iii)Stealing from a person, with a term of imprisonment of eight months.
[50] Exhibit G1, G5, page 30.
Katoomba Local Court – 21 December 2010
The Applicant had another altercation with his former partner on 15 August 2010, after he saw his former partner with a new partner (referred to as ‘Victim X’) in public. The NSW Police Facts Sheet describing the offending episode is transposed below[51]:
[51] Exhibit R1, SG1, pages 275 to 276.
“The Victims, [Ms X, and Ms X’s new partner, Victim X] are in a domestic relationship. The [Applicant]…is the ex partner of [Ms X]. [Ms X] and [the Applicant] have a one year old daughter together...
About 4:00pm on Sunday 15th August 2010 the victim, [Victim X], has left a friends house…in the company of the victim [Ms X] her daughter…and the witness, [redacted - witness name].
Across the road from the house the [Applicant]…has been standing shouting at [Victim X] "You are a fucking dog, you're gonna die cunt, keep away from my daughter, come on have a go!" [Victim X] has said, "Fuck off, don't bother us'! The victim [Ms X] has also been at the front of the house, the [Applicant] has shouted, "[Ms X] you're a slut!"
The [Applicant] has then crossed the road and approached [Victim X] who has stepped out onto the pavement. [Victim X] has said, "Are you sure you want to do this?" The [Applicant] swung his right fist making contact with [Victim X]’s left cheek causing a bruise under his eye. The [Applicant] grabbed hold of [Victim X] with his left hand and continued to punch with his right, at least one other punch has connected with [Victim X’]s mouth causing bruising to his inside upper lip and cutting his inside lower lip.
The witness, [redacted - witness name], has approached the [Applicant] from his left side and taken hold of him around the shoulders then dragged him away from [Victim X] then let go of him. The [Applicant] has not made any acknowledgement of [redacted - witness name] and has continued to shout toward [Victim X] and [Ms X] "Come on, have a go!" and "I'm gonna put a blade in ya while ya sleep! I'm gonna put a blade ya cunt. You're gonna get shot, I'm gonna shoot ya! I'll get all the boys, you're fucking dead cunt."
As the [Applicant] has been shouting, the two victims, daughter and witness have got into their car and driven away. As they were driving the [Applicant] has continued to shout threats and abuse toward both victims.
The [Applicant] has an enforceable AVO with [Ms X] as the PINOP.
This Interim AVO was applied for and granted on the 29th of June, 2010 and extended on 27th July at Katoomba Court until 18th October 2010. The [Applicant] also has matching bail conditions which state,
1a. The [Applicant] must not assault, molest, harass, threaten or otherwise interfere with the protected person [Ms X] or a person with whom the protected person has a domestic relationship.
1b. The [Applicant] must not engage in any other conduct that intimidates the protected person or a person with whom the protected person has a a domestic relationship.
1c. The [Applicant] must not stalk the protected person or a person with whom the protected person has a domestic relationship.
In addition, 7. The [Applicant] must not approach or contact the protected person by any means whatsoever, except through the [Applicants] legal representative.” [sic]
[Tribunal insertions for clarity]
Prior to the offending on 15 August 2010, the Applicant had sent his former partner a series of threatening messages via Facebook, some of which the Tribunal has transposed below:
(i)Message of 8 August 2010 at 1.05pm: “Hope you now wats goin happen to you now dog” [sic][52].
(ii)Message of 8 August 2010 at 2.23pm: “Tel that dog im gona kill him ur a bad slut fuck u i never cald u a junkie u have no heart and u aRE ugly and u stink like shit ur loose and al u do is lay there u didnt even ask me u just asumed it ur fucked when i get out u beta leave this country and be a pro like ur mum”[53]. [sic]
(iii)Message of 9 August 2010 at 2.30am: “I knw were he lives in gosford so if he doesnt cme and fight me and tell him not to run away this time u must think he can protect u aye not while im alive u wnt be happy with cos i dnt wnt him around my doughter”[54]. [sic]
[52]    Exhibit R1, SG1, page 282.
[53]    Exhibit R1, SG1, page 281.
[54]    Exhibit R1, SG1, page 283.
Photographic evidence was tendered which showed swelling and bruising around the left cheek, and a swollen upper and lower lip of Victim X[55].
[55] Exhibit R1, SG1, pages 295 to 298.
The Applicant appeared before the Katoomba Local Court on 21 December 2010, and was convicted of[56]:
(i)Assault occasioning actual bodily harm, with a term of imprisonment of eight months; and
(ii)Contravene prohibition/restriction in order (domestic), with a term of imprisonment of four months.
[56] Exhibit G1, G5, page 30.
The Tribunal refers to the sentencing remarks of the Magistrate in the Katoomba Local Court on 21 December 2010, which highlights the Applicant’s propensity towards violent behaviour[57]:
“HER HONOUR: Mr Wadeley you are a still a young man, but you have got a very poor record for violence in particular. So I mean at some point you do have to realise that you cannot resolve your issues with violence. I mean if you continue to, you will just find yourself getting longer and longer periods in gaol. It does not solve anything and I do not know - I mean maybe it gets rid of some of your anger, which is obviously what motivates you to do it, but it does not resolve the issue and in fact for you it actually makes things worse because here you are, you are in gaol for doing this now. So I mean if you thought about it at the time and not behaved in the way that you have, okay well perhaps you felt better after hitting [Victim X], but in the end was it worth it? No. I mean you have got to work that out for yourself, you have got to learn ways of dealing with your anger. I mean this is not helping you with your relationship with your daughter, committing crimes, so that you now look to be a violent person. I mean that will be difficult for you in future proceedings to try and get contact, if it looks like you are violent, you are violent towards the mother, it is not going to help you to get contact with your daughter.
So what you need to start to think of is, what are things that I want out of life, and what are the things I need to do so that I can get those things. And one of the things you need to do is learn how to control your temper and learn how to resolve problems without behaving like this…
Well having said all of that, there is no alternative but imprisonment in view of your record.”
[Tribunal insertions for clarity]
[57] Exhibit G1, G9, pages 56 to 61.
Penrith District Court – 28 October 2015
The Applicant appeared before the Penrith District Court on 28 October 2015 for an array of offences relating to a number of incidents involving the Applicant’s violent behaviour. The offending incidents relate to the Applicant’s former partner, and centre around the following dates:
(i)6 to 9 November 2012;
(ii)28 February 2013; and
(iii)15 March 2015.
6 – 9 November 2012
NSW Police Facts Sheet describe the following offending episode committed by the Applicant which had taken place against the Applicant’s former partner[58]:
[58] Exhibit R1, SG1, pages 243 to 245.
“[T]he victim, [Ms X], and the accused, John WADELEY, were in a de facto relationship from 2006 until 2010. They have one child together, [redacted – Applicant’s daughter], who is three years of age.
There is a parenting plan in place that would allow WADELEY to have some contact with [redacted – Applicant’s daughter]. This plan states that WADELEY is to pass multiple drug tests and enrol in a parenting course before the plan takes effect. The victim is to be notified by her solicitor when WADELEY completes these actions. She is yet to receive this notification.
At 4:55pm on Tuesday the 6th of November 2012 [Ms X] received a text message to her mobile phone from a phone number she recognised as WADELEY’s. This message read, "U owe me a new phone."
At 8:42pm on Tuesday the 6th of November 2012 [Ms X] received another text message from WADELEY’s phone number. This message read, "Think about wat ur doin [Ms X]. do u want me to come to ur work??? Cos if I do it wont be nice. Its about time u got flogged. U dirty slut."
At 10:28am on Wednesday the 7th of November 2012 [Ms X] received another text message from WADELEY’s phone. This message read, "Ull be suprized how many ppl are watchin u right now lol. U live in my area and a lot of ppl dont like u. Ur scared but u keep fukin breakin my heart we'll keep goin and ill give u something to be scared of."
At 11:49am on Wednesday the 7th of November 2012
[Ms X] received another text message from WADELEY’s phone. This message read, "If u just stoped playin games u wuld have no reason to be scared but I think u just play on it. I just wanna talk ur the one been abusive."
At 2:41pm on Friday the 9th of November 2012 the victim received another text message from WADELEY. This message read, "Ur gone slut wanna go to cops say goodbye dog u fuked up slut."
At 6:04pm on Friday the 9th of November 2012, the victim received another text message from WADELEY. This message read, "Why u doin this [Ms X] theres no need for it. Ur makinthings hard for no reason."
At 10:30am on Wednesday the 7th of November 2012 the victim received a voicemail message from a blocked number. The victim listened to this message immediately after she received it. She recognised the voice as being that of WADELEY. The message said, "You can keep playing the innocent little I'm scared blah blah blah. You can keep playing your games [Ms X] and we'll see how scared you'll be when I smash your fucking face in you dumb dog."
[Ms X] also received phone calls to her place of work from WADELEY on the 6th and 7th of November 2012. [Ms X] works at [redacted - name of business]. She has worked at this location for 7 years, meaning that WADELEY knows that she is going to be there. The phone calls received form WADELEY included the victim answering the phone and hanging up upon hearing WADELEY’s voice. No threats were made during these calls. The issue is that [Ms X] had to keep the phone off the hook after three of these calls on Tuesday. This has an effect on business as the phone can not be answered.” [sic]
[Tribunal insertions for clarity]
28 February 2013

NSW Police Facts Sheet describe the following offending episode committed by the Applicant which had taken place on 28 February 2013 against the Applicant’s former partner[59]:
[59] Exhibit R1, SG1, pages 237 to 239.
“Around 10.28am on the 28th of February 2013 the Accused John WADELEY has attempted to contact the Victim [Ms X] by phone. The [Applicant] has rung the victim's phone three times. Around 10.54am the [Applicant] has then sent the victim an SMS message, via mobile phone number [redacted - mobile number], the Victim knows this number to belong to the Accused John WADELEY, this message stated.
"Oh we'll u gona breach^,me for wat i didn't do nothin if u wanna start playin them cards if I get breached ill make sure I come see u before they grab me cos I'm not going to jail for nothin I'm gonna come see u later so there's no excuse ok [Ms X]".
After sending the SMS the [Applicant] has then attempted to ring the victim. The victim did not answer her phone so the [Applicant] has sent the victim another SMS message, this message stated
"Ok I'm commin to ur house ok u fukin dog I didn't abuse u wait till I see your junkie boyfriend then wanna be like that".
After sending the SMS the [Applicant] has again rang the victim, this time he has left a voice message and he stated.
"Answer your phone I come to your ass(?) and smash it up. Ok. Fuck you dog"
After leaving this message the [Applicant] has again contacted the Victim's number and left the following messages.
"Ur heaps mature hey answer ur phone and talk or promise ill come to ur front door and if u font answer ill kick it in ?? ur choice ur makin this something it's not wake up to itself."
"I didn't do nothin wrong [Ms X] u say I look like a mess yeah well who cares at least I still got morals unlike u. u was the biggest mistake in my life."
"Pump your ass [redacted]. I come out at 6:00 with your boyfriend there. If you don't wanna talk I'll bash your boyfriend. Ok".
The [Applicant] has made several other calls and left other messages. In total the [Applicant] has rang the victim's phone 17 times between 10.28 am and 11.14 am.
By contacting the victim by phone and leaving messages the [Applicant has breached the conditions of a current enforceable Apprehended Violence Order between himself and the victim...”
[Tribunal insertions for clarity]
17 February 2015
NSW Police Facts Sheet describe the following offending episode committed by the Applicant which had taken place on 17 February 2015 against the Applicant’s former partner[60]:
“About 10:45am on Tuesday the 17th of February, 2015, The victim was in the health food section of Woolworths, Leura, with her daughter... The [Applicant] walked up to the victim stating, "What are you doing?", the victim replied saying, "I'm shopping, please leave me alone". The [Applicant] said, "whose baby is this?", the victim said, "Mine".
The [Applicant] begun swearing at the victim calling her a slut. The victim begun shaking and crying. Feeling scared and frightened the victim walked around to the fruit section of Woolworths. An employee walked up to the victim asking if she was ok. At this point in time the [Applicant] walked away. The victim asked the employee if someone could walk her to her car because she was concerned the [Applicant] may still be outside of Woolworths.
Whilst the victim was paying for her groceries at the check out, the [Applicant] approached the victim once again. The victim said, "Just leave me alone, I am going to call the cops". The [Applicant] replied saying, "I am going to call fucking docs on you, you're a fucking slut, your boyfriend is a junkie". The victim said, "Fuck off, leave me alone, I'm going to call the cops".
The [Applicant] was seen leaving the shop. Two employees escorted the victim to her vehicle which was parked in the car park adjacent to Woolworths. As a result of the [Applicant] behaviour and actions, the victim felt intimidated and decided to attend Katoomba Police Station a short time later where she provided police with a statement.”
[Tribunal insertions for clarity]
[60] Exhibit R1, SG1, page 252.
The Applicant appeared before the Penrith District Court on 28 October 2015, and was convicted of the following offences[61]:
(i)Six counts of stalk/intimidate with intent of fear of physical/mental harm, each with sentence of imprisonment of 12 months; and
(ii)Two counts of contravening a prohibition/restriction in relation to an AVO(Domestic), one with a sentence of imprisonment of nine months, and the other with a sentence of imprisonment of 12 months.
[61] Exhibit G1, G5, pages 25 and 26.
Katoomba Local Court – 24 September 2007
Not only was the Applicant’s offending committed against that of his former partner and child, but the Applicant was also convicted of threatening to rape a female police officer when taken into custody regarding an incident on 24 June 2006.
The Applicant was later convicted for four counts of an assault on an officer in execution of duty, in the Katoomba Local Court on 24 September 2007. This came with four sentences of imprisonment of eight months each. A NSW Police Facts Sheet provides the following summary of the Applicant’s offending[62]:
“From the moment of his attempted intervention in the arrest of his brother the [Applicant] repeatedly swore at and threatened police, including a threat to 'rape' a female police officer. This officer was unaware of the threat but it was clearly heard by Superintendent [redacted] and, added to his demeanour and swearing, constiuted offensive conduct. If the [Applicant] had not tried to intervene with the police talking to his brother, this incident, with considerable potential for injury to the attending police, would not have occurred. During the arrest the [Applicant] and his brother were assisted on repeated occasions by unknown persons to try and get free from arresting police.” [sic]
[Tribunal insertions for clarity]
[62] Exhibit R1, SG1, pages 424 and 425.
The Applicant’s repeated use of violence, threats of sexual violence, repeated offending in contravention of protections orders (against that of his former partner and child) is viewed very seriously by this Tribunal.
The Applicant’s repeated violent offending behaviour committed against women and his own child, and for the purposes of sub-paragraph (a) and (b) of paragraph 13.1.1(1) of the Direction, the Tribunal finds that the nature of the Applicant’s offending and conduct is viewed very seriously.
The Applicant has demonstrated no restraint, with the pattern of violent offending recurring throughout their adulthood when not in criminal custody. The provisions of sub-paragraph (a) and (b) of the Direction are clearly enlivened given the repeated violent offending behaviour of the Applicant in the evidence outlined in the above reasons.
The Tribunal has had regard to the provisions of sub-paragraph (c) of paragraph 13.1.1(1) of the Direction and is of the view that the factual circumstances of the Applicant’s offending attracts the application of this sub-paragraph, as determinative of the nature or seriousness of the Applicant’s offending.
There are a number of offending episodes in the material before the Tribunal where the Applicant has been convicted of committing crimes against police officers. Sub-paragraph (c) states that the “The principle that 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, are serious”.
The Tribunal will list the recorded convictions of the Applicant in relation to his repeated attacks against police officers:
(i)Katoomba Local Court, 16 June 2004, committed for resisting an officer in execution of their duty, and sentenced to a term of imprisonment of 15 days[63].
(ii)Katoomba Local Court, 5 July 2006, committed for two counts of resisting or hinder a police officer in execution of their duty and sentenced to community service; and six counts of assault on an officer in execution of their duty, and sentenced to community service[64].
(iii)Katoomba Local Court, 22 November 2006, committed for six counts of assault on an officer in execution of their duty, and sentenced to four terms of imprisonment for eight months, a $1,000 fine and a three-year good behaviour bond; and two counts of resisting or hinder a police officer in execution of their duty, and given two good behaviour bonds for a period of two years[65].
(iv)Katoomba Local Court, 24 September 2007, committed for four counts of assault on an officer in execution of their duty, and sentenced to four terms of imprisonment for eight months[66].
(v)Katoomba Local Court, 28 September 2015, committed for one count of assault on an officer in execution of their duty, and sentenced to a term of imprisonment of nine months[67].
(vi)Penrith District Court, 28 October 2015, committed for one count of assault on an officer in execution of their duty, and sentenced to a term of imprisonment of nine months[68].
[63]    Exhibit G1, G5, page 33.
[64]    Exhibit G1, G5, page 32.
[65]    Exhibit G1, G5, pages 31 and 32.
[66]    Exhibit G1, G5, page 31.
[67]    Exhibit G1, G5, page 26.
[68]    Exhibit G1, G5, page 25.
There are numerous examples of offending behaviour by the Applicant throughout their offending history in relation to offences against officials performing their duties. The Tribunal refers to the NSW Police Facts Sheet which outlines an offending episode by the Applicant on 15 March 2015, which serves to highlight the attitude of the Applicant towards officers performing their duties[69]:
“Sergeant [redacted] and Constable [redacted] entered the unit through the rear door and immediately went over to the curtain near the rear glass sliding door where they noticed human toes down the bottom of the curtain. Both Sergeant [redacted] and Constable [redacted] have moved rearwards to create a reactionary gap and opened the curtain up to which the [Applicant] was hiding behind wearing only his underwear.
The [Applicant] immediately became extremely violent and aggressive towards both Sergeant [redacted] and Constable [redacted] whereby he began to yell "Fuck off you dog cunts". Sergeant [redacted] said "John show us your hands and get on the bed". The [Applicant] replied "No fuck off you maggots". The [Applicant] was restrained on the bed by and given the opportunity by Sergeant [redacted] to put some clothes on before being placed in handcuffs. The [Applicant] was then placed under arrest and cautioned by Sergeant [redacted].
The [Applicant] was removed from the unit through the front door and placed up against the rear of Blue Mountains 21 were he was searched by Constable [redacted] before being placed cage section of the police vehicle. As Constable [redacted] was helping the [Applicant] into the rear of the police vehicle, he suddenly kicked out with his right foot making contact with Constable [redacted]’s the right forearm. Constable [redacted] felt slight pain and discomfort as a result of the kick to his right arm.
While the [Applicant] was in the rear of Blue Mountains 21 awaiting to be conveyed to Katoomba Police Station, he continued his violent and aggressive behaviour towards police stating "Why don't you take off your uniform and we can have a go. I'll fucking drop you dog cunt and smash your skull".
The [Applicant] was conveyed to Katoomba Police Station were he was introduced to the custody manager. The [Applicant] agreed to participate in an electronically recorded interview whereby he denied kicking Constable [redacted] in the right forearm stating "If I kicked you there would be a mark. Where's the mark, where's your proof'. The [Applicant] further stated in the interview that "I didn't kick him, I didn't connect. This is what I did, I went to be a smart arse, I wanted him to think that I was going to kick him so they would jump in the car and bash me so I could get compo. I didn't care. I thought I was going to goal. What did I have to lose”.” [sic]
[Tribunal insertions for clarity]
[69] Exhibit R1, SG1, pages 253 and 254.
The Applicant was convicted on 28 October 2015 at the Penrith District Court for the above offence. The Tribunal notes that at the hearing, the Applicant confirmed their actions in trying to obtain compensation[70]:
[70] Transcript, 3 August 2020, page 39, lines 18 to 33.
“Respondent: So what about the comment where you say - well, so, when you were interviewed you said, “I didn't kick him. I didn't connect. This is what I did, I went to be a smartarse, I wanted him to think that I was going to kick him, so they would jump in the car and bash me so I could get compo”?
Applicant:Yes, yes, yes, that's right. I lifted my leg up but I never kicked.
Respondent: Yes. And you were hoping that - - -?
Applicant:To kick.
Respondent: - - - something would happen so you could try and get some compensation; is that correct?
Applicant:Yes. Yes, because he - - -
Respondent: All right. So having regard to your history, do you accept that you have a significant problem with violent behaviour?
Applicant:Yes, but due to alcohol.”
Perhaps the most disturbing episode of offending against police officers by the Applicant, occurred on 24 June 2006, which the Tribunal has outlined in its earlier reasons. The Applicant was convicted for the events of 24 June 2006 in the Katoomba Local Court on 24 September 2007. A full extract from the NSW Police Facts Sheet provides the following summary of the Applicant’s offending[71]:
“About 6.55pm Saturday 24 June 2006 the accused, Mr John Wadeley, approached Police in…Katoomba, as police were speaking with his brother. The [Applicant] was warned to stop his efforts to intervene as he was 'hindering' the police in execution of their duty. He grabbed hold of his brother in an embrance and refused to let him go. Police removed his grasp from his brother and again warned the [Applicant] that he faced being arrested for 'hinder police' if he continued. The [Applicant] then kicked Superintendent [redacted] in the right knee with his own right leg. He was immediately arrested for 'Assault Police'. A violent struggle then followed where the [Applicant] strongly resisted the efforts of Constables [redacted] and [redacted] to escort him to the police vehicle. During this time the [Applicant] punched Constable [redacted] in the chest and resisted every effort to place him into the rear of the police vehicle. A number of unknown persons then assisted the [Applicant] and his brother and the [Applicant] broke free of the grasp of Constables [redacted] and [redacted]. The [Applicant] was then taken hold of by Superintendent [redacted] and again told to stop resisting as he was under arrest. Superintendent [redacted] secured the [Applicant] with his arms pinned behind his back, and during this time the [Applicant] swung his head repeatedly backwards, striking Superintendent [redacted] in the chest area. Whilst being held by Superintendent [redacted] the [Applicant] also spat on Constable [redacted], striking him on the chest. Other police arrived and assisted with the arrest. The [Applicant] was escorted to the rear of police vehicle Nepean 702 and as he was placed into the rear caged area of the vehicle he spat several times at police, directly striking Constables [redacted], [redacted] and [redacted] in the face and on the clothes with his spittle. He was then secured into the rear of the vehicle and taken to Katoomba Police Station. From the moment of his attempted intervention in the arrest of his brother the [Applicant] repeatedly swore at and threatened police, including a threat to 'rape' a female police officer. This officer was unaware of the threat but it was clearly heard by Superintendent [redacted] and, added to his demeanour and swearing, constiuted offensive conduct. If the [Applicant] had not tried to intervene with the police talking to his brother, this incident, with considerable potential for injury to the attending police, would not have occurred. During the arrest the [Applicant] and his brother were assisted on repeated occasions by unknown persons to try and get free from arresting police.” [sic]
[Tribunal insertions for clarity]
[71] Exhibit R1, SG1, pages 424 and 425.
The Applicant’s use of repeated vulgar language and violence towards police officers performing their duties is viewed very seriously by the Tribunal. The Applicant’s threat to rape a female police officer only serves to demonstrate the Applicant’s propensity towards violence.
There is no doubt in the Tribunal’s mind that the Applicant has enlivened sub-paragraph (c) of paragraph 13.1.1(1) of the Direction. The Tribunal finds the nature of the Applicant’s violent repeated offending towards vulnerable members of the community (namely police officers due to the position they hold, and when performing their duties) to be viewed as very serious.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of the same paragraph of the Direction), to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen (or the Applicant). The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of a given offence committed by the Applicant.
As mentioned at the beginning of these reasons, the Applicant arrived in Australia on 12 June 1997, at the age of 11 years[72]. Passenger movement records indicate that the Applicant has remained in Australia since his arrival in 1997, thus spending the balance of his life residing in Australia (24 years). The Applicant has been part of the mainstream Australian community for the majority of his life.
[72] Exhibit G1, G11, page 69.
The Applicant has been in and out of criminal custody for a number of years. According to NSW Department of Corrective Services Conviction, Sentences and Appeals Records, the Applicant was last taken into criminal custody on 28 September 2015[73], after completion of their criminal custody ending on 26 March 2020, the Applicant (in oral submissions to the Tribunal) stated that he was then taken into immigration detention on 26 March 2020[74].
[73] Exhibit G1, G10, page 67.
[74] Transcript, 3 August 2020, page, 31, lines 1 to 3.
The Applicant is currently 35 years old, and evidence before the Tribunal indicates they were convicted of offences from 16 years of age. From the ages of 16 to 35, the Applicant’s offending history involves 25 separate sentencing episodes, dealing with 96 individual offences[75].
[75] Exhibit G1, G5, pages 24 to 34.
The Applicant’s offending history has culminated in the sentencing of custodial terms totalling more than 45 years, the Tribunal is mindful that parole release dates did come into operation reducing the total time the Applicant spent in criminal custody[76].
[76] Ibid.
The Applicant’s prolific offending has seen him appear before lawful authority on 25 occasions over a 15 year period, from the age of 16 to 31 [77].
[77] Ibid.
The Tribunal is of the view, that having regard to the relatively intensive nature of the Applicant’s offending from 2002 to 2017, sub-paragraph (d) of paragraph 13.1.1(1) of the Direction, means that there is no other finding by this Tribunal other than this Applicant’s offending is indeed of a very serious nature.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the investigatory exercise required by this sub-paragraph (e) largely mirrors that required by the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.

The Tribunal has had regard to the frequency of the Applicant’s offending, noting the Applicant arrived in Australia at 11 years of age. The Applicant has been an adult in Australia since 2003. During the Applicant’s adulthood, he has appeared before lawful authority on 20 separate occasions for 81 offences, of which he received 51 custodial sentences, 28 non-custodial sentences, with two offences dismissed[78].
[78] Ibid.
The impression to be taken from the frequency of the Applicant’s offending in this country as a proportion of the time he has spent here as an adult, shows that the Applicant has averaged nine offences per year when he was not serving time in criminal custody. The Tribunal notes that the offences the Applicant has committed are considered very serious. As an adult, the Applicant has been offending for most of their time in this country. The Tribunal is of the view that the Applicant’s offending is very frequent in nature.
The Tribunal has had regard to the increasing and sustained level of seriousness of the Applicant’s offending history as a whole. It is clear that his offending is serious, indeed very serious, from its outset.
The Applicant’s offending began as a minor from the age of 16 years, with records indicating five separate appearances before a Children’s Court for 15 separate offences through to June 2004 (when the Applicant was 18 years and 11 months of age)[79]. The convicted offences included assault, assault occasioning actual bodily harm, resisting arrest, break and enters, larceny, drug offences and failure to appear in accordance with bail granted undertaking.
[79] Exhibit G1, G5, pages 33 and 34.
The Applicant’s conduct as a minor and young adult is a precursor to their violent conduct against victims throughout their offending history as an adult. In the Tribunal’s mind, the Applicant’s offending does not begin with low-level misdemeanours. Rather, it continues with a theme of violence, and the extreme imposition of his will upon someone else to resolve a difficult situation. It is present throughout the Applicant’s offending history.
As an adult the Applicant continued to be convicted of very serious offences. The Tribunal has already outlined the violent repeated offending in relation to police officers performing their duties and the threat of rape made against a female police officer; and the violent offending repeatedly committed against that of his former partner and child in contravention of protection orders.
The Applicant’s offending record is littered with further offending episodes, the last of which is particularly disturbing, which the Tribunal will outline.
Penrith District Court – 15 June 2017
On 15 June 2017, the Applicant was convicted in the Penrith District Court for:
(i)Robbery in company, and sentenced to three years and nine months imprisonment;
(ii)Take/detain person in company with intent to obtain advantage, and sentenced to four years and six months imprisonment; and
(iii)Aggravated enter dwelling, with intent, offender in company, which was taken into account when issuing the above two sentences.
The sentencing remarks of Her Honour, Judge Noman SC make for particularly sober reading[80]:
[80] Exhibit G1, G6, pages 35 to 46.
“At midnight on Monday 19 January 2015 the victim, [redacted - victim’s name], who was then aged 19, finished his shift at Katoomba Woolworths and he started to walk home. As he walked past the taxi stand near the railway station he saw two men on the corner of the main street in Katoomba. These were the two offenders. As he walked past the taxi stand, the offender Bennett-Hayes asked him for a lighter, which he gave them, and they began to walk with him under the railroad underpass.
The offender Wadeley was described as taller than the victim, who was five foot and four inches. The victim knew who Mr Wadeley was as he knew his brothers from school. He described Mr Wadeley as wearing jeans and Nike shoes, as being "pretty skinny" and he had an English accent. The offender Bennett-Hayes was not a person that was previously known to the victim. He described the offender Bennet-Hayes as tall, maybe six foot, he had an Australian accent and he was very muscly. The victim said he looked about 19.
There was a conversation between the three as they walked regarding where the victim lived and he described the two offenders being really nice about it and they kept walking together. The offenders then demanded money from the victim for them to catch a taxi to Sydney. The victim said "No" and he then tried to extricate himself.
The victim said that the offender Bennett-Hayes put his hand into his backpack that was on his back and "stole his wallet out of his bag". This wallet contained his bank card and identification with his address on it, his TAFE card, student cards and passport. Once this had occurred they then had his address, which they used to threaten him. They also threatened harming his mother if he reported the matter to the police. The victim believed that the offenders were serious about the threats.
The victim asked for his wallet back and the offenders then started to taunt him, provoking him to "punch on" with them. They said that the victim had falsely accused them of being thieves. Both offenders then searched through the contents of the victim's bag and said "Give us your phone." The victim handed his phone over but because it was cracked it was rejected. They also searched his pockets, touched his clothes and put their hands into pockets looking for anything that he might have been carrying. They took his wallet and the offenders wanted him then to give the PIN code for his EFTPOS card. The offender Wadeley produced a knife. It was a yellow-handled knife with a silver blade about the same length as a pen. The offender Wadeley held the knife to the victim's face with his hand pressed on the victim's throat. He demanded the code for the EFTPOS card and the victim gave it to him. The offender Wadeley then went to the ATM, leaving the offender Bennett-Hayes to stay with the victim. The offender Wadeley gave the knife that he had to the offender Bennett-Hayes. Bennett-Hayes remained at the location armed with the knife.
The victim says that the offender Wadeley was absent for about 15 to 20 minutes, during which time the offender Bennett-Hayes maintained possession of the knife The victim said that a number of threats were made to him during the course of his detention, including "If you go to the police it's not just your life, it's probably your mum's as well." Threats were also made to burn down the victim's house. The victim said the majority of the threats that were issued were issued by the offender Wadeley. When the offender Wadeley returned he had in his possession $600 that had been taken from the victim's bank account.
The victim was directed by both offenders to walk to his home and to take them with him. On the way the victim was made to duck down in the shadows with the offenders to keep out of sight when cars drove past and to avoid being seen in general. The victim said that he was then having trouble breathing due to his situation and the belief that if he did not comply with the demands or, if he reported the matter to the police, the two offenders would return and harm either himself or his mother. Throughout the journey the offenders were swapping possession of the knife between them.
When they reached the victim's home he was made to open the front door and to let the offenders into his home. The offender said he did so because he feared that, if he did not, they would have got angry with him and that he could have been stabbed. Whilst they were in the home the offender Wadeley ate a tin of tuna, saying that he was hungry. Both offenders were in the home for about ten minutes before they again threatened the victim not to alert the police and then left.
The police approached the offender Wadeley when he was in the Bathurst correctional facility. He was then interviewed by the police. He stated during the interview that he knew of the incident, he had taken the keycard of the victim and had taken money out of his ATM. He initially denied going to the victim's home but conceded that he walked with him to his home address, although he denied actually entering the home. He denied producing the knife but conceded he was with another person and that a knife was produced. He then acknowledged that he had produced the knife and had possession of it at various times during the victim's detention. The offender Wadeley signed two separate CCTV images depicting him with the offender Bennett-Hayes and one with the victim whilst walking through the railway underpass.
The offender told police that he felt extremely guilty the following day upon taking stock of his actions and considered giving the money back, albeit he did not do so. The offender stated he felt his intake of alcohol and marijuana were major contributors to his actions on the night and he asked if it was appropriate to send a letter of apology to the victim for his actions.
A considerable time later on 26 February 2016 the police spoke with the offender Bennett-Hayes. The offender Bennett-Hayes took part in an interview. He denied having any knowledge or being present at the incident but he did admit to knowing the offender Wadeley.
On 30 March 2016 the victim participated in an identification procedure where he identified the offender Bennett-Hayes from an array of photographs. The offender Bennett-Hayes subsequently admitted his involvement in the offences.
In assessing the seriousness of the offences I am mindful that only two offenders were involved in each offence in satisfying the in company element. These offences were committed by the offenders operating as part of a joint criminal enterprise and each is liable for the acts of the other. The facts disclose what each said and did. Although each sought to describe events to the authors of reports, these versions are not tested and are not on oath. I propose to sentence each for what is disclosed in the facts and consistent with their joint participation. There are three discrete offences identified which are somewhat fluid but are segmented as identified by the Crown.
The impact upon the victim was significant. A psychologist's report authored by Dr Pullman was tendered. She met with the victim and reviewed material. She considered that, although of limited functioning across key areas, the victim did not meet the criteria for an intellectual disability.
However, based on the reported symptoms she did consider that he met the criteria for post-traumatic stress disorder resultant from the offending. I consider this outcome to be greater than would be expected to a victim of these type of offences either in isolation or in combination. The outcome is attributable to the overall conduct and not solely to one offence.
There is no suggestion of planning for any offence. The circumstances reflect an opportunistic determination to approach the victim to obtain money or items of monetary value.
Each offender relied upon intoxication at the time of offending. This provides an explanation but does not serve to ameliorate the moral culpability.
The robbery in company was the first offence.
The victim was approached late at night whilst he was alone. He is also of small stature at five foot four inches. I note that the offender Wadeley is also similarly of small stature. Although this made the victim a ready target, it does not render him as falling within the classification of vulnerable. Similarly, the fact that the victim was of limited intelligence would not have been known to the offenders at the time he was approached. I do not find that he was targeted because of this factor.
The victim was threatened and manhandled whilst the offenders sought to obtain his property. The offenders obtained the victim's wallet and contents. The taking of the bank card was not for its value but for the use that could made from it.
I am mindful of the assistance provided in the guideline judgment of R v Henry (1999) 46 NSWLR 346.
The offender Wadeley was aged 29 and the offender Bennett-Hayes was aged 20.
Each has a criminal history but the offender Wadeley has a far greater involvement in various types of offences and sentencing outcomes.
No weapon was used.
There was a threat of violence and ramifications to the victim but no actual violence during the robbery.
The victim was not vulnerable as contemplated by the guideline.
Only a limited amount of property was stolen.
There was a late plea but one slightly earlier and warranting slightly higher discount than in Henry.
The robbery offence falls below that envisaged in the guideline, even allowing for the offender Wadeley’s age.
The detain offence was next in time, although there was no real demarcation temporally.
Although the victim was apparently cooperative, no doubt because he was threatened by two men, the offender Wadeley produced a knife and held it to the victim’s face. Having obtained the victim’s bank card, he demanded the PIN code. The offender Bennett-Hayes remained with the victim and had possession of the knife. The knife was swapped thereafter between the two offenders as they walked to the victim's home. I take into account that this offence was committed with a weapon and that it was a knife. This would have increased the terror.
During the detention $600 was stolen. The circumstances of and the taking of the money indicate that this was an offence to obtain, as per the indictment, a financial advantage.
The precise period of the detention is not specified but it was at least half an hour. The victim was detained whilst the offender Wadeley went to the ATM and then as he was walked home.
He was threatened by both during the detention, but mostly by the offender Wadeley. He was threatened that, if he went to the police, he and his mother would suffer. This threat continued to operate over all three offences.
This is a serious offence but one that falls below the mid-range.
Once at home the offence on the Form 1 was committed.
At the time of offending each offender was subject to conditional liberty. The offender Wadeley was subject to two section 12 bonds for offences of intimidation.
The offender Bennett-Hayes was on bail for offences of assault occasioning actual bodily harm, damaging property and goods in custody when he committed the subject offences.
A breach of conditional liberty is a matter of aggravation. It reflects an abuse of the freedom granted by taking the opportunity to further offend.
Each offender has a number of entries on his criminal history. The offender Wadeley has had long-term involvement with the criminal justice system. Each offender's antecedents operate to disentitle him to leniency.
It was accepted by the Crown that each offender was entitled to a finding of remorse. The expression of regret and remorse presents as occurring earlier and in a more fulsome manner by the offender Wadeley. However, somewhat belatedly, the offender Bennett-Hayes expressed remorse. Each is entitled to a positive finding.
The offender Bennett-Hayes is entitled to the benefit that flows from his relative youth. Rehabilitation assumes greater importance when considering sentence.
Each offender was assisted by a pre-sentence report and a report of a psychologist. Although the offenders did not give evidence, each relied upon the report by the psychologist. No issue was taken with the matters raised and no submission advanced that the details contained in either report should be approached with caution. Accordingly, I accept the history outlined in each.
The offender Wadeley was exposed to physical abuse as a child and witnessed domestic violence on his mother. It is opined at the time of the offending he would have met the criteria for cannabis and alcohol use disorder. He has low intellectual functioning and it is suggested malleable and easily influenced. I do not find that he was influenced by the co-offender.”
The Tribunal is of the view that the frequency of the Applicant’s offending, and its consistent level of seriousness, is such that sub-paragraph (e) attracts a finding that in the Tribunal’s mind is of a very serious nature.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending
The Tribunal refers to the sentencing remarks of Her Honour Magistrate Toose in the Local Court of Katoomba on 28 September 2015 where the Applicant was convicted of six counts of stalk/intimidate intend fear of physical/mental harm (each with sentences of 12 months imprisonment); two counts of contravene prohibition / restriction in avo (domestic) (one with a sentence of nine months imprisonment and the other 12 months imprisonment); one count of affray with a good behaviour bond of two years; and one count of assault police officer in execution of duty (with a sentence of nine months imprisonment)[81]:
“Clearly there’s re-offending, clearly it’s not trivial, clearly there is no grounds for excusing the breach.
Firstly, people in and about the area and people working such as those poor souls in the service station do not need to be seeing this degree of violence, they don’t need to be experiencing it. As for the contravening the AVO, Mr Wadeley, you have little or no regard for any orders of the Court, your history is littered with breaches of Court orders in the past. Obviously it was designed to intimidate the mother of the child, and when it comes to the police, firstly you were hiding from them and then you lash-out against them. You’d be well aware about the offence of assaulting police officers in the execution of duty because you’ve got about nine convictions for those, so you’ve got a lengthy criminal history, violence is a fundamental part of it…” [sic]
[81] Exhibit G1, G8, page 54.
The Applicant has a 13 year criminal history (spanning 2004 to 2017), where he appeared before lawful authority on 20 occasions as an adult; prior to this the Applicant appeared before a Children’s Court. In the course of the Applicant’s offending history, he has received the benefit of numerous community service sentences; good behaviour bonds; and the imposition of fines.
The Applicant has been given numerous sentencing opportunities to moderate his conduct and to address the issues predisposing him to offend. Despite this, the Applicant seems to have taken nothing from these opportunities.
The Tribunal refers to the sentencing remarks of Her Honour in the Local Court of Katoomba on 21 December 2010[82]:
“HER HONOUR: [The Applicant] you are a still a young man, but you have got a very poor record for violence in particular. So I mean at some point you do have to realise that you cannot resolve your issues with violence. I mean if you continue to, you will just find yourself getting longer and longer periods in gaol. It does not solve anything and I do not know - I mean maybe it gets rid of some of your anger, which is obviously what motivates you to do it, but it does not resolve the issue and in fact for you it actually makes things worse because here you are, you are in gaol for doing this now. So I mean if you thought about it at the time and not behaved in the way that you have, okay well perhaps you felt better after hitting [Victim X], but in the end was it worth it? No. I mean you have got to work that out for yourself, you have got
to learn ways of dealing with your anger. I mean this is not helping you with your relationship with your daughter, committing crimes, so that you now look to be a violent person. I mean that will be difficult for you in future proceedings to try and get contact, if it looks like you are violent, you are violent towards the mother, it is not going to help you to get contact with your daughter.
So what you need to start to think of is, what are things that I want out of life, and what are the things I need to do so that I can get those things. And one of the things you need to do is learn how to control your temper and learn how to resolve problems without behaving like this. I mean if you need to act out I mean join a gym and do boxing, where you know you use one of those boxing bags, you know. I mean but you cannot do it towards people and until you work that out you know I am afraid you are going to find yourself spending - and you have already spent a fair bit of time in gaol and it is a shame for someone as young as you, that that is really your future is not looking great because of that.”
[82] Exhibit G1, G9, pages 60 and 61.

The Applicant made the following submissions to the Tribunal regarding community expectations[120]:
“The Australian community may expect or consider it appropriate, where a young man has chosen to meaningfully rehabilitate himself, has been a model detainee, has taken on board advice from a Judge has not committed an offence for over 5.5 years, has not cause actual violence for a significant passage of time, nor did he in 2015 which triggered his revocation and has a child and family in Australia, identifies as Australia and has lived here for over 23 years, most of his life that he be given an opportunity in his new circumstances to remain in the country.”
[120] Exhibit A1, page 5.
There is no evidence before the Tribunal that the Applicant has addressed or undertaken rehabilitation for their substance abuse issues and triggers for their violent behaviour. As previously stated the level and extent of that treatment is not sufficient for the purposes of this Tribunal being able to properly ground a positive finding about the Applicant’s level of rehabilitation.
The Tribunal notes that the Applicant’s reference to their lack of offending refers to the past five and a half years, during which time they have been in in criminal custody and immigration detention.
The Applicant gave evidence to the Tribunal that they had mainly subsisted on social security benefits, apart from odd manual labour jobs, and they have no qualifications with a limited education[121].
[121] Transcript, 3 August 2020, page 14, lines 33 to 47.
It is the Tribunal’s view that the Applicant’s very serious offending and unlawful conduct resulting in an extensive criminal history across the past 15 years, has surely breached the expectations of the Australian community.
The Applicant’s offending has been consistent and often very serious. It is clearly demonstrative of his failure to abide by the laws of Australia. In ascertaining the weight attributable to Primary Consideration C, the Tribunal takes into account the following factors and findings:
(i)The Applicant has made minimal positive contributions to the Australian community[122].
(ii)The Applicant has lived in the mainstream Australian community for a majority of his life[123].
(iii)The removal of the Applicant may have an adverse impact on his biological child[124].
(iv)The very serious and violent nature of the Applicant’s offending to date and its impact on other people in the community.
(v)The nature of the Applicant’s offending history, involving a lack of respect for lawful authority, the personal rights of others, and a refusal to follow the laws governing Australia.
(vi)The lack of current, independent and expert evidence addressing the factors giving rise to his propensity to offend, and measuring the level of the Applicant’s insight into the nature and severity of his offending.
(vii)The Tribunal’s finding of a strong and convincing likelihood that he will engage in further and, most likely, very serious conduct if returned to the Australian community.
(viii)The Tribunal’s assessments of the quite significant risk of substantial and even catastrophic harm to the Australian community were he to re-offend.
[122] The Direction, paragraph 6.3(7).
[123] The Direction, paragraph 6.3(5).
[124] The Direction, paragraph 6.3(7).

Conclusion: Primary Consideration C
The Tribunal is of the view that the above factors, read as a whole in the context of this case, weigh heavily in favour of not revoking the cancellation of the Applicant’s visa. The Tribunal accordingly finds that Primary Consideration C is of a heavy weight in favour of affirming the non-revocation decision under review.
OTHER CONSIDERATIONS
It is necessary for the Tribunal to look at the Other Considerations listed at paragraph 14 of the Direction. The Tribunal will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
Paragraph 14.1 of the Direction directs decision-makers to consider international non-refoulement obligations. The decision-maker must consider whether the Applicant is at risk of harm of the nature that raises Australia’s non-refoulement obligations under the:
(i)1951 Convention on the Status of Refugees as amended by the 1967 Protocol (together these are referred to as the Refugees Convention);
(ii)Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and
(iii)International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).
The Tribunal notes the Applicant did not make submissions in relation to this consideration[125], nor the Respondent[126].
[125] Exhibit A1; and Exhibit A2.
[126] Exhibit R2, pages 12 to 14.
This Tribunal has had regard to the directions outlined in Paragraph 14.1 of the Direction and is satisfied that Australia’s non-refoulement obligations are not engaged in relation to the Applicant.
(b) Strength, nature and duration of ties
Paragraph 14.2 of the Direction directs decision-makers to consider the strength, nature and duration of ties to Australia, whilst reflecting the principles at 6.3. Decision-makers must have regard to how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
Decision-makers are also required to have given consideration to the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
As previously outlined in these reasons, the Applicant arrived in Australia on 12 June 1997, at the age of 11 years, spending the balance of his life in Australia (which is the past 24 years, as the Applicant is 35 years of age). The Applicant began his offending as a minor, at 16 years of age, continuing through to the age of 31, where he went into criminal custody on 28 September 2015, and was released on 26 March 2020, where he has since been held in immigration detention. The Applicant has been out of the community for almost five years.
The Tribunal has already outlined in its reasons that the Applicant has mainly subsisted on social security benefits, apart from odd manual labour jobs, and they have no qualifications with a limited education. The Tribunal was not presented with any evidence on behalf of the Applicant regarding any positive involvement in the community.
The Tribunal agrees with the Respondent’s submissions that, “To a certain degree though his time in the community should be viewed through the prism of long-term substance abuse, anti-social behaviour, and criminal offending… His tenure in the community since 2008 has to be seen as limited as well given he appears to have spent the majority of that period in prison or in immigration detention”[127].
[127] Transcript, 3 August 2020, page 54, lines 43 to 47; and page 55, lines 1 to 2.
It is the Tribunal’s view that, at best, 14.2(1)(a) would overall be of neutral weight.
In applying Paragraph 14.2(1)(b) of the Direction, the Tribunal notes that the Applicant has a biological child in Australia, and it is clear the Applicant’s biological child would be impacted by the Applicant’s removal from Australia. The Applicant made submissions to the Tribunal that[128]:
“The Applicant identifies as Australian, his immediate and extended family reside in Australia, including his mother, father, 3 brothers, nieces, nephews, cousins, aunt’s and uncles and most importantly his child.
The Applicant lived with his mother and brothers prior to his detention, he has a strong attachment to them, his youngest brother and his mother would be significantly impacted if the Applicant were to leave Australia without ever being allowed to return.
The family live on the breadline and have no funds to travel to maintain a meaningful relationship with the Applicant.” [sic]
[128] Exhibit A1, page 6.
The Tribunal accepts that the Applicant has a close relationship with his family and that most of the Applicant’s family live in Australia, as per his submissions to the Tribunal outlined above. It is not clear from the evidence presented to the Tribunal that the Applicant’s family are Australian citizens or Australian permanent residents, with an indefinite right to remain in Australia.
The Tribunal notes that no statements were submitted from family members or friends in support of the Applicant remaining in Australia, although the Tribunal acknowledges that this does not necessarily mean they do not wish for the Applicant to remain.
Given the young age at which the Applicant entered Australia, the length of time that he has resided here, and the extent of his family ties in Australia and the impact of his removal on some of those family members, the Tribunal finds a slight measure of weight is attributable to this Other Consideration (b) pursuant to paragraph 14.2(1)(b) of the Direction.
Accordingly, while this Other Consideration (b) may weigh in favour of revocation, it is of limited weight only and is outweighed by Primary Considerations A and C, which favour non-revocation.
(c) Impact on Australian business interests
Paragraph 14.3 of the Direction directs decision-makers to consider the impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Tribunal notes the Applicant did not make submissions in relation to this consideration[129], nor the Respondent[130].
[129] Exhibit A1; and Exhibit A2.
[130] Exhibit R2, pages 12 to 14.
This Tribunal has had regard to the directions outlined in paragraph 14.3 of the Direction and is satisfied that an impact on Australian business interests is not relevant to the factual circumstances of the Applicant.
(d) Impact on victims
Paragraph 14.4 of the Direction directs decision-makers to take into account the impact that a decision not to revoke the Applicant’s Visa would have on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
Whilst the Tribunal has previously transposed sentencing remarks in the reasons of this decision which outline prior offences of the Applicant and refer to the impact the Applicant’s offending has had on his victims; the Tribunal does not have sufficient information before it to assess the impact of a decision not to revoke the cancellation of the Applicant’s visa on the victims of his criminal behaviour or the family members of the victims pursuant to paragraph 14.4 of the Direction.
There is no evidence as to how other victims of the Applicant’s offending would be impacted. Accordingly, the Tribunal places no weight on this factor.
(e) Extent of impediments if removed
Paragraph 14.5 of the Direction directs decision-makers 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 substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
The Applicant submitted to the Tribunal[131]:
“In the absence of evidence, the Applicant’s family have tried to assist the Applicant and themselves to understand the process if removed.
It is understood the Applicant would need to obtain a national insurance number before he could access any finances, work or access benefits, if eligible. This process can only start once in the UK.
To obtain a national insurance number he would need to have a fixed address. He nor his family have sufficient funds to rent a property for him, they are not in a position to financially support him to this extent. It would seem that without a fixed address he couldn’t open a bank account to receive funds either.
If there were organisations skilled enough to help vulnerable adults in these same circumstances, the process itself for anyone is 12 weeks and monies would not be backdated for the first 6 weeks.
The Delegate cannot guarantee support, this is beyond the Delegates scope.
It remains the Applicant’s contentions that he would be destitute, placed at significant hardship and risk of physical, psychological and emotional harm.”
[131] Exhibit A1, page 7.
The Applicant is still relatively young at only 35 years of age, and the Tribunal has not been presented with any verifiable independent medical evidence that he is not in good health.
The Tribunal accepts that the Applicant may be faced with some short term hardships upon resettlement in the United Kingdom, however, the Tribunal notes the Applicant does have some family still based over there. The Tribunal refers to the following exchange at the hearing[132]:
[132] Transcript, 3 August 2020, page 48, lines 1 to 14.
“Respondent: Do you think your - - -?
Applicant:     - - - Honestly, like - - -
Respondent: - - - parents would approach your grandparents or your aunts and cousins and see if they could provide assistance for you?
Applicant:     I don't know. Maybe, who knows?
Respondent: Have you asked them?
Applicant:     No, I don't talk to them.
Respondent: You don't talk to your family?
Applicant:     No.
Respondent: You don't - - -?
Applicant:     I only talk to mum, that's it.
Respondent: You talk to your mum?
Applicant:     That's it, yes.”
The Respondent provided the following submission to the Tribunal[133]:
“There are also organisations such as Prisoners Abroad who can provide limited assistance and support with resettlement in the UK. The Tribunal has found, in respect of similar organisations in New Zealand, that such organisations constitute a “significant social undertaking and their benefits…should not be underestimated””[134].
[133] Exhibit R2, page 14, paragraph 52.
[134] See CFVG and Minister for Immigration and Border Protection [2017] AATA 1395 at [90]; and HWYY v Minister for Home Affairs [2018] AATA 4602 at [167]
The Applicant confirmed during cross-examination they were not aware that Prisoners Abroad existed, but indicated they were reluctant to access such services[135]. Whilst the Tribunal accepts there would be some period of transitional adjustment for the Applicant should they be returned to the United Kingdom, the Applicant is of a relatively young age and they have their health, with some of their family still residing there. With the assistance of programmes such as Prisoners Abroad, as referred to by the Respondent, this should assist the Applicant in resettlement.
[135] Transcript, 3 August 2020, page 48, lines 33 to 39.
The Tribunal agrees with the Respondent’s submission that the United Kingdom is a country which is broadly comparable to Australia, in terms of language, culture and access to employment, health services, education and social security[136]. The Applicant accepted that the United Kingdom had a similar culture and language, as captured by the following exchange at the hearing[137]:
“Respondent: Well, you'd have to accept - would you accept that it's broadly the same kind of country that you, yes, you do speak English, it's a similar culture?
Applicant:It is a similar culture, yes.”
[136] Exhibit R2, page 13 and 14, paragraph 52.
[137] Transcript, 3 August 2020, page 47, lines 33 to 35.
The Tribunal does not consider any of the factors appearing in Paragraph 14.5 of the Direction to assist the Applicant. He would suffer no language or other cultural barriers if compelled to return there. The Tribunal is of the view that Other Consideration (e) pursuant to paragraph 14.5 of the Direction does not weigh in favour of revocation and is of a neutral weight.
Summary: Other Considerations
The Tribunal is of the view that, to the extent that any of these Other Considerations, as outlined in paragraphs 14.1 to 14.5 of the Direction, weigh in favour of revoking the mandatory Visa Cancellation Decision, they are by far outweighed by Primary Considerations A and C, which weigh heavily in favour of non-revocation.
The application of the Other Considerations in matter before the Tribunal can be summarised as follows:
(i)International non-refoulement obligations, are not engaged in relation to the Applicant.
(ii)Strength nature and duration of ties, overall a slight measure of weight is attributable.
(iii)Impact on Australian business interests, is not relevant to the factual circumstances of the Applicant.
(iv)Impact on victims, the Tribunal places no weight on this factor (as there is no evidence as outlined in these reasons).
(v)Extent of impediments if removed, is of a neutral weight.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
As previously outlined in these reasons, pursuant to s501CA(4)(b) of the Migration Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s Visa:
(i)either the Applicant must be found to pass the character test; or
(ii)the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
As the Tribunal has already outlined in these reasons, the Applicant does not pass the character test.
Having reference to the Direction and to the totality of the evidence before the Tribunal, there is not another reason for the Tribunal to revoke the cancellation of the Applicant’s Visa.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Migration Act to revoke the mandatory Visa Cancellation Decision, the Tribunal has had regard to the Primary Considerations referred to in the Direction, and the Tribunal finds as follows:
(i)Primary Consideration A weighs very heavily in favour of non-revocation;
(ii)Primary Consideration C weighs heavily in favour of non-revocation; and
(iii)Primary Consideration B weighs slightly in favour of revocation.
The Tribunal has outlined the weight attributable to the Other Considerations. The Tribunal does not consider that any of them, even when combined with each other and/or with Primary Consideration B, outweigh the very significant and determinative weight the Tribunal has attributed to Primary Considerations A and C.
The Tribunal is of the opinion that a holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, The Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s Visa.
DECISION
232.
The decision under review is affirmed.

I certify that the preceding 232 (two hundred and thirty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member B.Pola

................................[SGD]........................................
Associate
Dated: 18 August 2020

Date of hearing:

3 August 2020

Applicant:

Mr John Christopher Wadeley

Appeared via videolink, self-represented

Solicitors for the Respondent:

Mr Arran Gerard (Solicitor)

Australian Government Solicitors

Appeared via videolink

“ANNEXURE 1 – EXHIBIT REGISTER”

Exhibit No.

Description

G1

Section 501 G-Documents (pages 1 to 180), received 26 June 2020.

R1

Supplementary Relevant Documents (pages 1 to 471), received 21 July 2020.

R2

Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 14), received 22 July 2020.

A1

Applicant’s Statement of Facts, Issues and Contentions, including attachments (15 pages), received 1 July 2020, including Exhibit JW1 and Exhibit JW2.

A2

Applicant’s Submissions in Reply (2 pages), received 31 July 2020.

[2020] AATA 3013

18 August 2020

Key Legal Topics

Areas of Law

Immigration

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Date of hearing:	3 August 2020
Applicant:	Mr John Christopher Wadeley Appeared via videolink, self-represented
Solicitors for the Respondent:	Mr Arran Gerard (Solicitor)
Australian Government Solicitors Appeared via videolink

Exhibit No.	Description
G1	Section 501 G-Documents (pages 1 to 180), received 26 June 2020.
R1	Supplementary Relevant Documents (pages 1 to 471), received 21 July 2020.
R2	Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 14), received 22 July 2020.
A1	Applicant’s Statement of Facts, Issues and Contentions, including attachments (15 pages), received 1 July 2020, including Exhibit JW1 and Exhibit JW2.
A2	Applicant’s Submissions in Reply (2 pages), received 31 July 2020.