Watkins and Minister for Immigration and Citizenship (Migration)

[2025] ARTA 801

Watkins and Minister for Immigration and Citizenship (Migration) [2025] ARTA 801 (23 June 2025)

Applicant/s:  Joe Watkins    

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:                2025/3087

Tribunal:Senior Member M Sripathy

Place:Sydney

Date:23 June 2025

Decision:The decision not to revoke the cancellation of the Subclass 444 Special Category (Temporary) visa, is affirmed.

Statement made on 23 June 2025 at 12:28pm

Catchwords

MIGRATION – Cancellation of a Class TY, Subclass 444 Special Category (Temporary) visa under s 501CA(4) of the Migration Act 1958 (Cth) – where the applicant does not pass the character test – whether there is another reason to revoke the cancellation – Direction No 110 - protection of the Australian Community – expectations of the Australian Community – strength, nature and duration of ties to Australia - interests of minor – legal consequences of decision under review - impediments

Legislation

Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act1999 (NSW)
Migration Act1958 (Cth)
Migration Regulations1994 (Cth)

Cases

Tanielu v Minister for Immigration and Border Protection (2014) FCA 673
Suleiman v MIBP  [2018] FCA 594
FHHM v MICMSMA [2022] FCAFC 19
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCAFC 14

Secondary Materials

Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

Statement of Reasons

BACKGROUND

1. This is an application for review of a decision of a delegate of the Minister dated 31 March 2025 under s 501CA(4) of the Migration Act 1958 (Cth) (Act) not to revoke the mandatory cancellation of the applicant’s Special Category (Temporary) (Class TY) (subclass 444) visa (visa).

2. The applicant is a New Zealand citizen, born in 1993, and is now 31 years old. He first arrived in Australia on 7 July 2006 and has departed only on one occasion for approximately one week since that time. He was granted the visa subject of the cancellation on his return on 13 June 2019. On 15 December 2015 the applicant was issued a formal counselling letter warning of potential visa cancellation under s501 of the Act in the event he were to receive any further criminal convictions. On 20 September 2022 the applicant was convicted of offences relating to aggravated robbery and attempted robbery and sentenced to terms of imprisonment of 2 years and 2 months, and 10 months respectively.

3. On 10 November 2022 the applicant’s visa was mandatorily cancelled. On 7 December 2022 the Applicant made representations to revoke the cancellation. On 24 January 2023 the applicant was invited to comment on information that he did not declare his criminal convictions in an incoming passenger card dated 13 June 2019. The applicant responded to this invitation in an undated letter. On 31 March 2025 a decision was made under s 501CA(4) not to revoke the mandatory cancellation of the visa.

4. On 9 April 2025 the applicant sought review of that decision.

5. The applicant attended a hearing on 12 June 2025 by video conference.

6. In deciding the application, the Tribunal has taken into consideration the applicant’s oral evidence at hearing and evidence and material contained in the Hearing Book prepared by the Respondent. The Applicant did not file any further material with the Tribunal in support of his application.

7. The Hearing Book, admitted and marked as Exhibit “HB” included the following documents:

   (a)The “G documents” which included the Applicant’s evidence and material provided to the Department, including his Request for Revocation, Personal Circumstances form and letters in support.[1]

   (b)Respondent’s statement of facts, issues and contentions (‘SOFIC’).

   (c)Respondent’s Supplementary documents – Documents produced under summons by Western Australia Police and documents produced by Department of Home Affairs.

   (d)Respondent’s Supplementary Submissions.  

   (e)Respondent’s Further Supplementary documents –Documents produced under summons by Western Australia Corrections.

   [1] HB G12- G17, G20-G21.

8. For the following reasons, the Tribunal has decided to affirm the decision under review.               .

   RELEVANT LAW

9. Section 501 of the Act deals with decisions to cancel a visa on character grounds.

10. Relevantly to this case, under s 501(3A) the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record having been sentenced to a term of imprisonment of 12 months or more and is servicing a sentence of imprisonment on a full-time basis in a custodial institution.

11. The ‘character test’ is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) provides in part that a person does not pass the character test if the person has a substantial criminal record. Section 501(7)(c) relevantly provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.

12. Subsection 501CA(3) provides that as soon as practicable after making a decision under subsection 501(3A) the Minister must give the person whose visa was cancelled written notice setting out the decision together with particulars of specified information that were the reason or part of the reason for making the decision. The Minister must also invite the person whose visa was cancelled to make representations to the Minister about revocation of the decision.

13. Subsection 501CA(4) allows for a revocation of a decision under s 501(3A) if representations are made in accordance with the invitation and the Minister is satisfied that the person passes the character test (s 501CA4)(b)(i)); or that there is another reason why the original decision should be revoked (s 501CA(4)(ii)).

14. An application to review a decision made under s 501CA(4) not to revoke the cancellation of a visa may be made to the Tribunal under s 500(1)(ba).

15. The Minister may give written directions under s 499(1) of the Act to a person or body having functions or powers under Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) requires the Tribunal to comply with any directions made under s 499(1).

16. Direction No. 110 Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA (the ‘Direction’)[2] is the current direction and is binding on the Tribunal in performing its functions or exercising powers under section 501 of the Act.

    [2] Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, 7 June 2024 (commencing  21 June 2024).

17. The Direction sets out, in paragraph 5.2, the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. These principles are:

    (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2) The safety of the Australian Community is the highest priority of the Australian Government.

    (3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    (6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

    (7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

    (8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measurable risk of causing physical harm to the Australian community.

18. Informed by these principles, in making a decision the Tribunal must take into account the relevant primary and other considerations set out in the Direction.

19. Paragraph 7.1 of the Direction states that appropriate weight should be given to information and evidence from independent and authoritative sources. Paragraph 7.2 states that the primary consideration of protection of the Australian community is generally to be given greater weight than other primary considerations. It also states that otherwise, primary considerations should generally be given greater weight than ‘other’ considerations. Paragraph 7.3 states that one or more primary considerations may outweigh other primary considerations.

20. The primary considerations set out in paragraph 8 of Direction 110 are:

    (1)protection of the Australian community from criminal or other serious conduct;

    (2)whether the conduct engaged in constituted family violence;

    (3)the strength, nature and duration of ties to Australia;

    (4)the best interests of minor children in Australia; and

    (5)expectations of the Australian community.

21. The other considerations, which are not exhaustive, are set out of paragraph 9 of Direction 110:

    a)legal consequences of the decision;

    b)extent of impediments if removed;

    c)impact on Australian business interests.

22. In this case, it is not in dispute that the Applicant had made representations about the revocation of the cancellation of his visa. The requirements of paragraph 501CA(4)(a) are met. The issues before the Tribunal are:

    (a) does the Applicant pass the character test, as defined by section 501 and, if not;

    (b)    is there another reason why the original decision should be revoked.

    DOES THE APPLICANT PASS THE CHARACTER TEST?

23. As stated above, the character test is defined in subsection 501(6) of the Act. Relevantly, s 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record, as defined in s 501(7). Subection 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

24. On the evidence before it, including the National Criminal Checks Report[3] and the sentencing remarks of Judge Wallace of the District Court of Western Australia[4], the Tribunal finds on 20 September 2022 the applicant was convicted on charges of aggravated robbery and attempted robbery and sentenced to a term of imprisonment of two years and two months, and 10 months to be served concurrently.

    [3] HB G6 p 46.

    [4] HB G8 pp 51-60.

25. At the hearing the applicant acknowledged that he was sentenced to a term of imprisonment of more than 12 months and did not dispute that he did not meet the character test on this basis.

26. The Tribunal finds that the Applicant has a substantial criminal record, and he does not pass the character test. The requirements of s 501CA(4)(b)(i) are therefore not met.

    IS THERE ANOTHER REASON WHY THE CANCELLATION SHOULD BE REVOKED?

27. The remaining issue before the Tribunal is whether there is another reason why the cancellation should be revoked. The Tribunal will consider each of the primary and other considerations in accordance with matters referred to in Direction 110 as relevant to the facts of the applicant’s case.

    Primary Consideration 1: Protection of the Australian Community

28. In considering protection of the Australian community, paragraph 8.1(1) of the Direction requires decision makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.

29. The Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.

30. Paragraph 8.1(2) states that decision makers should also give consideration to:

    (a)  the nature and seriousness of the non-citizen’s conduct to date; and

    (b)  the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    The nature and seriousness of the applicant’s conduct to date

    The applicant’s criminal offending history

    Criminal convictions

31. The offending which led to the cancellation of the applicant’s visa relates to an incident which occurred on 27 March 2022 that led to one count of attempted robbery and one count of aggravated robbery to which the applicant pleaded guilty, and for which he was convicted as set out above in paragraph 24 (‘index offending’).

32. The circumstances of the offending are set out in the sentencing remarks of her Honour Judge Wallace of the District Court, adopting the statement of material facts submitted to the court and admitted by the applicant through his counsel during the sentencing process. In summary:

    ·At approximately 3 pm on 27 March 2022, the applicant was drinking alcohol with an uninvolved associate at a bus stop.  They observed the two victims, cousins aged 15 and 16 years old, on the opposite side of the road at a bus stop. The applicant approached the first victim, told him he had nice shoes and told him to take them off. The victim attempted to walk away and the applicant grabbed him by the left arm and forced him to sit back down on the seat. The victim pretended to untie his shoes, before pushing past him and running away.

    ·The applicant then demanded the other victim to give him his shoes and then punched the victim in the face with a closed fist, grabbed the front of his hoodie with his hand, and elbowed him to the nose. The victim fell to the ground and lost consciousness for several seconds. He woke up to the applicant forcefully removing his shoes from his feet. The applicant demanded that a witness hand over his shoes, but the witness was able to run away.

    ·The applicant was located a short time later in a neighbouring suburb wearing the victim’s stolen shoes. The applicant was arrested and charged with attempted robbery (Count 1) in respect of the first victim and aggravated robbery (Count 2)  in respect of the second victim, and bail refused.[5]

    [5] HB G8 p 54.

33. Judge Wallace observed in her sentencing remarks that the applicant had breached a 12-month community-based order by committing the offences, which was a factor aggravating the offending. She also noted, in respect of both counts, that the victims of the offences were children, reflecting on their particular vulnerability, and that there was a level of persistence and level of physical coercion, given that the applicant prevented the victims from being able to stand up and leave and these factors reflect on the seriousness of the offending. Her Honour stated the applicant was ‘unnecessarily violent to the victim by attacking him, in my view, in a completely unprovoked, unwarranted, senseless and cowardly manner.’[6]

    [6] HB G8, p 55.

34. In addition to the index offending, the Respondent’s SOFIC[7] refers to the following other convictions recorded against the applicant in the Criminal Checks Report:[8]

    ·     Common assault and assault occasioning bodily harm (13 November 2012 and 1 June 2021) – for which he was sentenced respectively to a 12 intensive supervision order; an 8-month suspended imprisonment order; a 12-month community-based order.

    ·     being armed or presenting to be armed in a way that may cause fear (28 January 2014); for which he was fined.

    ·     various breaches of bail, convictions of disorderly behaviour in public and failure to comply with request to give police personal details and obstructing public officers; for which he was fined.

    ·     assault public officer (28 July 2020); – for which he was sentenced to a 12-month community-based order.

    [7] HB p 143.

    [8] HB G6 p 46.

35. The applicant was first sentenced to a term of imprisonment on 18 March 2015 at a re-hearing of a 6 January 2015 sentence.[9] He was sentenced on this date to a term of imprisonment of 6 months, plus 1 day. A mandatory minimum term of 6 months applied because offence involved assault occasioning bodily harm and the victim was a police officer acting in the course of his duty. The sentencing remarks of Deputy Chief Magistrate Woods in that matter observed the injury was not insignificant and the consequences for the officer were significant, being that he was no longer working operationally. The Tribunal notes the magistrate in her sentencing remarks also made the observation (as at that time) the applicant had limited offending in his record but given that the assault occasioning bodily harm was quite a significant matter the mandatory minimum term should be imposed. It was also noted that he had already received a suspended term and an Intensive Supervision Order which to the most extent he had complied with.[10]

    [9] HB G11 p 66.

    [10] Ibid.

36. In supplementary submission submitted by the Minister,[11] further details relating to the above convictions obtained under summons from WA Police were outlined:

    ·     Details relating to the 12 November 2012 common assault and assault occasioning bodily harm offending refer to the incident involving a 16-year-old victim.  On 12 May 2012 the applicant is recorded as shouting in an aggressive manner to the victim to get in his car. The victim refused and sought help from the public and contacted his parents. The applicant drove off. A short time later the applicant pulled up at a car park where the victim and his parents were and got into a physical altercation with the victim's father. It is reported that when the father asked the applicant why he wanted the victim to get into the car, the applicant replied "your son is a pretty boy. I was going to take him to Hillary's to party and was going to fuck him". It is reported that in the break-up of the physical altercation, the applicant punched the victim in the head.[12]

    ·     Details relating to the 1 June 2021 common assault and assault occasioning bodily harm offending describe conduct of the applicant striking the staff member of the bottle shop with his elbow to the left side of his face and jabbing him in the throat several times with his fingers. The police record indicates he was drunk.[13]

    ·     Regarding the 28 July 2020 assault public officer conviction, on 14 February 2020 the applicant was reported to be intoxicated and in an interaction with police, kicked a police officer in the back of his leg.[14]

    [11] HB, p270-272.

    [12] HB, S1, p181.

    [13] HB, S1, p206.

    [14] HB, S1 p 204.

1. The Tribunal finds, on this evidence, that the applicant’s 12 November 2012 conviction related to a violent crime involving a child. It also finds on this evidence that intoxication is a feature of the applicant’s violent offending.

   Conduct in prison and immigration detention

2. The Minister’s Supplementary Submissions also draw the Tribunal’s attention to evidence from Western Australian Department of Justice produced under summons, revealing two prison charges during his incarceration for which he was sanctioned by loss of gratuities.  One relates to fighting with a fellow prisoner on 12 December 2022 and a second of attempting to steal from stores on 11 January 2023.[15] Specific details of the incident are not specified in the material provided to the Tribunal. The Tribunal finds on this evidence that the applicant was charged and sanctioned for engaging in a physical fight with a prisoner and attempting to steal while in prison. 

   [15] HB, FS1, p279.

3. Department records before the Tribunal refer to an incident on 20 January 2025, since applicant has been in immigration detention, of the applicant being involved in an altercation between four detainees, all of whom showed signs of intoxication. At hearing in the present matter the applicant disputed the record of this incident which stated that all involved were intoxicated. On further questioning he acknowledged that he was intoxicated but would not describe it as ‘abusing alcohol’, rather that he was ‘just having a drink with a friend’ who was leaving the detention centre to go back to jail. The records in respect of this incident indicate no police involvement was pursued, and the incident was recorded as resolved. On the limited evidence of the records before it, which has been partially disputed by the applicant, the Tribunal is reluctant to make a determinative finding about the specific incident it refers to. However, it is satisfied for the purposes of this assessment, on those aspects which have been acknowledged by the applicant in his oral evidence that the applicant was involved in a physical altercation incident with (an)other detainee at the detention centre while under the influence of alcohol.

4. A further incident is described in updated records provided by the Department of an incident on 23 March 2025 where the applicant is identified as an alleged offender in a physical assault of another detainee, who sustained a deep cut across his cheekbone resulting in his transfer to hospital. The applicant is recorded as stating that it was a ‘play fight that “turned sour”. The records indicate that the matter was referred and is under investigation by the Australian Border Force.[16] No other information about this matter is before the Tribunal. The matter was not specifically raised under cross examination. In the absence of further information, the Tribunal is reluctant to make findings about this matter.

   [16] HB  S2, pp 104-105.

5. At hearing the applicant acknowledged and agreed with the record of his criminal offending set out in the Checks Result Report. In cross examination by the Respondent he was taken through his criminal offending commencing with the conviction for no authority to drive in 2012, and conceded that he had never held a drivers licence and yet chose to drive without a licence. He offered no explanation for his actions and agreed his conduct demonstrated a disregard for the law. Regarding the index offending the applicant had no comment on Judge Wallace’s sentencing remarks describing his actions as ‘unnecessarily violent’, ‘completely unprovoked, unwarranted, senseless and cowardly’ and reference to the significant level of force he used against the victim requiring surgery. The applicant expressed remorse for his actions, stating that it was wrong and he felt sad. When asked if his feelings about it had changed now since when he was sentenced in 2022 he stated that if anything he felt more resentment for what he had done now because it was just wrong and it should never have happened. The applicant told the Tribunal he feels remorse not just because of the impact of his actions on his life, but for everyone around him, and the victims who have to live with it and may be impacted on their future including their fear of catching a bus. It has also had an impact on his family because he cannot be with them, as well as the impact on himself and his loss of freedom and now possibly the loss of opportunity to live in Australia.

6. When asked to comment on what effect his consumption of alcohol had on his actions, the applicant acknowledged that he had been drinking heavily all day but takes responsibility for his actions.

7. The Minister contends in this case that the nature and seriousness of the applicant’s offending in this case is very serious and, being predominantly violent offending, is so serious that even strong countervailing considerations are insufficient to justify the revocation of the mandatory cancellation of the applicant’s visa: paragraphs 5.2(7) and (8) of the Direction.

8. In BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the majority of the Full Court, observed, inter alia,  Paragraph 8.1 as a whole was concerned with the primary consideration of, “protection of the Australian community from criminal or other serious conduct”. In that context, the requirement for the decision-maker to consider the factors enumerated in paragraphs 8.1(2), 8.1.1(1) and 8.1.2 was directed towards assessment of the impact of those factors on the protection of the Australian community from criminal or other serious conduct by the non-citizen . Second, the phrase “nature and seriousness” should be understood as a composite phrase. That is because the nature of criminal offending may affect its seriousness, and the seriousness of such offending may affect its nature. Third, the “risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct”, described in paragraphs 8.1(2) and 8.1.1(2) must be considered in light of the decision-maker’s assessment of, “the nature and seriousness of the non-citizen’s conduct to date”, under paragraph 8.1.1(1).[17]  

   [17] [2025] FCAFC 14.

9. In considering the nature and seriousness of the applicant’s criminal offending or other conduct for the purposes of considering the primary consideration in 8.1 of protection of the Australian community, paragraph 8.1.1(1) of the Direction sets out factors to which decision-makers must have regard to.

10. Relevantly for the present matter, subparagraph (a) provides that violent crimes and crimes of a violent nature against children (regardless of the sentence imposed) and acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian government and Australian community. Subparagraph (b) provides that crimes committed against vulnerable members of the community or government representatives or officials due to the position they hold, or in the performance of their duties are considered by the Australian Government and Australian community to be serious.  Subparagraph (c) requires decision makers (with the exception of certain crimes or conduct) to have regard to the sentence(s) imposed by the Courts for a crime or crimes. Subparagraph (d) requires consideration of the impact of the offending on any victims and their family where this information is available. Regard is to be had to the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness (subparagraph (e)) and to the cumulative effect of repeated offending (subparagraph (f)). Subparagraph (g) refers to whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending and subparagraph (h) requires consideration of 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.

11. Considering the above factors in assessing the nature and seriousness of the applicant’s conduct in the present matter, the Tribunal notes the characterisation of the index offending in the sentencing remarks of Judge Wallace, referred to above at paragraph 33, as particularly serious. This characterisation of the offending was not disputed by the applicant at the hearing.

12. In addition to the index offending, the applicant has other convictions relating to violent offences, referred to above, including common assault, assault occasioning bodily harm and assault public officer. His 2012 conviction relating to violent offending involved a child victim.  In 2015 he was sentenced to a mandatory six-month imprisonment term because of an assault occasioning bodily harm against a police officer, and he was again convicted for assaulting a public officer in July 2020.

13. The Tribunal finds that the applicant’s history of violent crimes and particularly the circumstances that they involved convictions for offences involving children and police officers in the performance of duties, having regard to the factors (a) and (b) above in paragraph 8.1.1(1), warrant characterisation of the nature of his criminal offending and other conduct as serious, and very serious in respect of the index offending.

14. The sentence imposed on the applicant for his index offending in September 2022 of two years and two months also reflects the seriousness of the offence, noting that imprisonment is always a sentence of last resort. His sentence of imprisonment was found to be justified and appropriate to protect the community, and suspension was not considered appropriate in his case for reasons relating to the seriousness of the offences, among other reasons. He was also subject to the minimum mandatory custodial sentence for an assault occasioning bodily harm to a police offer. Having regard to factor (c) in paragraph 8.1.1(1), the Tribunal finds that the custodial sentences imposed on the applicant are indicative of the seriousness of those offences.

15. The Tribunal has considered the frequency of the applicant’s offending.  He has had 23 convictions recorded against him from 2012 to 2022.[18] In considering this history, the Tribunal notes some relate to relatively less serious offending, such as ‘causing a nuisance or annoyance to persons’, ‘failing to comply with request to give details, ‘obstructing public officers’ and ‘disorderly behaviour in public’, reflected in the non-custodial sentences imposed by way of fines. There are other offences in his record which are of more significance, including multiple ‘no authority to drive’ convictions ‘being armed or pretending to be armed in a way that may cause fear’ that were also dealt with by non-custodial sentences. In respect of his first convictions for violent offending (common assault and assault occasioning bodily harm in 2012), he was given intensive supervision and suspended imprisonment sentences. The applicant’s first term of imprisonment arose from a mandatory sentence imposed in 2015 for a violent crime (assault occasioning bodily harm) against a police officer, but following this the applicant was given non-custodial, community-based orders again in 2020 and 2021 for subsequent violent offences.  These appeared to have no effect by way of deterrence however as he went on to commit the index offending in breach of one such community order, and this was a factor taken into account in the custodial sentence imposed for the index offences. 

    [18] Check Results Report, HB G6, p47.

16. Considering the history and frequency of the applicant’s offending over the period from 2012 to 2022, the Tribunal acknowledges that there are gaps in his criminal history in terms of offences involving violence, but there is also a pattern of frequency of offending and violent offending, including against public officers, and a trend of increasing seriousness in his offending, culminating in the index offending in 2022.  It accepts the Minister’s submissions that the cumulative effect of his repeat offending is serious and has resulted in a significant use of police and court resources, and that the frequency and nature of his offending demonstrates a continuing disregard for the laws of Australia and safety of the Australian community.

17. In respect of the impact of the offending on any victims and their family (factor (d) of paragraph 8.1.1), while there is no direct evidence before the Tribunal about the impact of the offending on the victims in the index offending, the Tribunal has considered Judge Wallace’s remarks that this incident would have been traumatic for the victims, particularly the victim of count 2, which would no doubt have resulted in ongoing adverse impacts for them and their ability to feel safe when they are moving around their local community.[19]  

    [19] HB G8,  p55

18. The applicant in his own evidence to the Tribunal expressing his remorse, acknowledged that the victims would have to live with what he did, and that it would impact them in future, including their fear of catching a bus.

19. The impact on the police officer victim in relation to the 2015 conviction was also referred to in the Magistrate’s sentencing remarks, which referred to his victim impact statement indicating that the consequences for him were ‘not insignificant’ and he was no longer working operationally.[20]  

    [20] HB G11, p66

20. With regard to subparagraph (g) of 8.1.1 the Tribunal has considered the evidence that the applicant failed to disclose his criminal convictions on his incoming passenger card upon return to Australia on 13 June 2019.[21] The Tribunal is unpersuaded by the applicant’s explanation in his written response when this was put to him for comment in January 2023, that this was a misunderstanding. He explained that he was questioned about this on arrival in Bali and subsequently disclosed his convictions, after which he was permitted to enter and continue his holiday.[22] The movement records before the Tribunal indicate that he departed Australia on 7 June 2019 and returned on 13 June 2019[23] and his explanation does not any address why he answered this question in the negative upon re-entry to Australia on 13 June 2019. On the evidence before it, the Tribunal finds that he provided false and misleading information when he failed to disclose prior criminal offending on his passenger card on 13 June 2019.

    [21] HB G18, p89

    [22] HB G19, p94.

    [23] HB, G26, p 110.

21. The applicant was warned in a letter dated 11 December 2015 that any further criminal convictions or conduct could result in consideration of the cancellation of his visa.[24] Despite his oral evidence at hearing that he could not recall this warning letter, evidence is before the Tribunal that he acknowledged receipt of it on 16 December 2015.[25]

    [24] HB G23, p102-103.

    [25] HB G24 p104.

22. There is no evidence before the Tribunal of offences and conduct committed in other countries. 

23. Having regard to the factors in subparagraph 8.1.1 holistically and cumulatively, and mindful of the requirement to assess the nature and seriousness of the applicant’s conduct for itself (per BNY23), the Tribunal concludes that the nature and seriousness of the applicant’s conduct to date is significant and of increasing seriousness.  The applicant has engaged in violent crimes and conduct against children and police officers, his criminal history spans a decade from 2012 to 2022 and culminated in commission of a very serious violent crime. Despite a specific warning about the consequences of further criminal convictions on his visa status in 2015, he continued to reoffend. He was given numerous community based non-custodial orders in 2020 and 2021 and committed the index offending in 2022 in breach of one such order. Having considered all of the required factors, the Tribunal finds the nature and seriousness of the applicant’s offending and conduct weighs heavily against revocation of the cancellation of the visa.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

24. The Tribunal must consider the risk to the community, should the Applicant reoffend. Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.  Some of the conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

25. In assessing the risk that may be posed by the non-citizen to the Australian community, paragraph 8.1.2 requires the Tribunal to, cumulatively, have regard to the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct and the likelihood of the non-citizen engaging in further criminal or other serious conduct.  In considering the likelihood of further criminal or serious conduct, the Tribunal must take into account information and evidence on the risk of the non-citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence.

    The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct

26. Above, the Tribunal found the nature and seriousness of the applicant’s conduct to be significant and accepts that the seriousness of the applicant’s offending and the harm to the community were it to be repeated is such that any risk that they may be repeated is unacceptable: Tanielu v Minister for Immigration and Border Protection (2014) FCA 673 at [95] per Mortimer J. It accepts that unprovoked, violent crimes of the nature committed by the applicant has the potential to cause significant physical and psychological harm to members of the Australian community.

    The likelihood of the non-citizen engaging in further criminal or other serious conduct

27. The Tribunal has considered the information and evidence before it on the risk of the applicant reoffending. 

28. The sentencing remarks of 22 September 2022 refer to the applicant admitting issues with alcoholism and that he regularly engaged in binge drinking on the weekends. The applicant in his Personal Circumstances Form[26] and in his evidence to the Tribunal, has acknowledged that alcohol was a big factor in his offending.  He also referred to associating with a cousin who is known to get into trouble.  Elsewhere the applicant repeated his claim to have been drinking excessively over three days with his cousin prior to the index offence (see Pathways Completion Report). The Tribunal has noted the Minister’s submission that the Tribunal should give limited weight to this explanation in circumstances that the index offending did not appear to have been committed in company, citing the sentencing remarks which referred to an ‘uninvolved associate.’[27]

    [26] HB, G 13, p84

    [27] HN, G8, p54

29. The Tribunal accepts that the applicant expressed remorse for his actions (with regard to the index offending). This was noted by the sentencing judge and is reflected in his plea of guilty. There is reference that he indicated to the author of the pre-sentence report that he was saddened by his actions and acknowledged the victims were young and small.  Before the Tribunal the applicant repeated that he knew it was wrong and feels sad, and that if anything he has even stronger resentment about what he has done now and that it just should not have happened. He expressed that his remorse was not just for the impact on his life, but on the victims and the impact it will have on them in future. The Tribunal accepts that the applicant has expressed remorse and does not deny responsibility for what he did, even though he maintained he had been drinking all day and was affected by alcohol. 

1. In considering the risk and likelihood of further offending the Tribunal has considered information contained in Judge Wallace’s sentencing remarks, as well as the Parole Review Report dated 9 March 2023 and the Pathways Completion Report dated 2 February 2024. The Tribunal has also considered the applicant’s oral evidence at hearing. No other reports or evidence in support of the applicant’s rehabilitation since the offending has been provided to the Tribunal by the applicant. 

2. Judge Wallace referred in her sentencing remarks to the pre-sentence report that stated the applicant presents with treatment needs that relate to his pro-criminal attitude, irrational thinking, violent tendencies and lack of awareness regarding acceptable behaviours and boundaries. The author of that report expressed the view that a community-based sanction was not recommended given that he had been offered that opportunity on four previous occasions and reoffended during three of those orders with convictions pertaining to violence.[28]

   [28] HB, G8, p57

3. While Judge Wallace accepted the applicant was genuinely remorseful, she also noted his comments seeking to justify his behaviour, including that he was heavily intoxicated and under the influence of drugs at the time. She found that he had prior criminal history with relevant convictions which underscored the need for personal deterrence and noted ‘this kind of offending’s not out of character for you’.   

4. On 13 March 2023 the applicant was not recommended for release on parole as he posed an unsatisfactory risk of interpersonal violence to the community. The risk assessment in this report stated, [the applicant] presents with criminogenic needs relating to substance misuse; inclusive of alcohol, pro criminal attitude, poor impulse control, use of violence, a lack of awareness, a lack of prosocial routine, poor consequential thinking skills and adverse peer associations. Given Mr Watkins’ continued offending of a violent nature against random victims, he presents as a risk of harm to the community.[29]

   [29] HB, FS1, p285

5. The parole assessment referred to the minimal gap in the applicant’s offending history, to which he has incurred monetary penalties, supervision orders and imprisonment which appear to have offered little deterrence on his offending behaviour. Although he had complied with all supervision orders at a satisfactory level, the report noted he had demonstrated poor prison conduct, incurring two prison charges relating to fighting and stealing, and a further incident of dismissal from employment by his supervisors on 18 January 2023 due to a stealing incident, which suggested his inability to comply with rules and regulations within a prison environment. The report assessed that the applicant’s criminogenic needs remained outstanding and his engagement with voluntary intervention was limited. As at that time he was yet to be assessed for participation in Department treatment intervention. The report noted his advice that he engaged in four voluntary sessions of Alcoholics Anonymous which had assisted him in developing a better understanding of his relationship with alcohol and its impact on his offending behaviour.

6. The Tribunal notes that at the time of the Parole Assessment and date of the Review Report the applicant had been referred for formulation of an initial IMP and Treatment assessment, which had yet to be completed and therefore his treatment needs, at that time, were unknown.

7. The applicant was subsequently referred to the Pathways program. A Pathways Completion Report, dated 2 February 2024, recorded that he completed the program with 49 out of 50 sessions registered and was found to have demonstrated insight into the correlation between his substance use and offending behaviour, and that his tendency towards violence was exacerbated by alcohol consumption.

8. It is indicated that the applicant disclosed witnessing his father consume alcohol in large quantities, and a routine of consuming alcohol with his father after work regularly. The report noted “it is likely that [he] developed normalised beliefs pertaining to alcohol use as a reward through his father’s modelled behaviour” and ‘likely that witnessing public acts of violence and receiving physical punishment formed normalised views pertaining to violence”. After he relocated to Australia in 2006, his desire for acceptance and belonging was fulfilled by associating with anti-social peers with whom he started consuming alcohol and cannabis from the age of 15.   

9. The report indicated that factors likely to perpetuate the applicant’s risk of relapse and recidivism include normalised beliefs supportive of alcohol consumption and offending behaviours that are reinforced through anti-social peers. The report noted that he presented with limited protective factors that would reduce his risk of relapse and recidivism, given his parents and immediate family were his reported prosocial supports, but that his father likely influenced the normalisation of his substance abuse and engagement in violence through modelling antisocial behaviour.  

10. The report identified that the applicant would likely require additional support to reduce his risk of relapse and recidivism in the community and he was recommended to engage in the Violence Prevention Program (VPP) to address outstanding risk regarding substance use and subsequent engagement in violence and that participating in this program would assist in challenging minimisations around previous engagement with violence and justification about the use of violence.

11. There is no evidence before the Tribunal that the applicant commenced or completed this treatment program. In his evidence to the Tribunal he stated that there was insufficient time before his release from criminal custody to undertake that program, which ran for 9 months.

12. He confirmed he has not undertaken any further courses or programs since completing the Pathways program and the 4 sessions of Alcoholics Anonymous while in criminal custody. He has not been offered, nor made any enquiries about relevant courses or treatment programs since being in immigration detention.    

13. The applicant’s evidence to the Tribunal when asked how he would manage the risk of reoffending demonstrated the limited critical reflection and overconfidence in his ability to engage in unproblematic alcohol consumption indicated in the Pathways report. When asked how the Tribunal can be satisfied, he would not reoffend if released to the community he responded, “there is only one way to find out.” In response to whether he would want to consume alcohol if released, he responded in the affirmative, saying he would want to do so, more with his family than community.  

14. The Tribunal has considered the evidence from the applicant’s mother and sister provided to the Department in their support letters in December 2022,[30] in which they each indicated that the applicant would have the support of his family, including financially, mentally and emotionally. At hearing the applicant reiterated that he had the full support of his family if he is released to the community. 

    [30] HB, G20 & 21, pp 97-98.

15. The Tribunal accepts that the applicant has previously had the support of his family, evidenced by the fact that he was living with them prior to his incarceration in 2022 and the support letters provided to the Department. However, it also notes the absence of any more recent evidence of their ongoing support. Neither his mother or sister were called by him to give evidence in support of his review or provided a current letter indicating their support.  When invited at the hearing to reconsider whether he would like to call either or both of them to provide evidence in support, he declined. 

16. The applicant was asked at the hearing how his family support would be different if released now, given that he was previously living with them when he reoffended in 2022.  In response he said they would talk to him and ask him what he is doing with his life. He referred to the learnings he has had from the last three years and would put that into play to lead a crime free life. When asked if anything needed to change for him to do that, he said he would change a few things.  These were his attitude, less confrontational arguments and doing more talking and less physical. He did not mention anything about changing his consumption of, or abstaining from, alcohol. 

17. The Tribunal finds the applicant’s evidence, particularly relating to consuming alcohol and his indication that he would like to continue to do so if released, demonstrates insufficient insight into his offending such that the Tribunal can be satisfied there would be a lesser risk of further offending. The evidence indicates he has taken minimal steps to address issues that contribute to his risk of offending. There is no evidence the applicant has engaged in specialised treatment programs such as those recommended in the Pathways report or any others, and given the evidence of incidents involving consumption of alcohol and adverse behaviour while in detention described above, the Tribunal accepts the Minister’s submissions that the applicant has outstanding treatment needs and is not rehabilitated.  The Tribunal is also not satisfied, on the evidence before it that the applicant’s family would be a protective factor to reduce his risk of reoffending on release.

18. Therefore, having regard to the evidence before it, the Tribunal finds the risk to the Australian community of the applicant committing further violent offences or other serious conduct is high.

19. Having considered the relevant factors and evidence and findings above, the Tribunal finds that the consideration of the protection of the Australia community weighs heavily against revocation of the cancellation of the applicant’s visa. 

    Primary Consideration 2: Whether the conduct engaged in constituted family violence

20. Paragraph 8.2(1) states that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate top the seriousness of the family violence engaged in by the non -citizen.

21. Paragraph 8.2(2) states that this consideration is relevant in circumstances where:

    (a)  A non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

    (b) There is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been involved in the perpetration of family violence, and the non-citizen being considered under s501 or s501CA has been afforded procedural fairness.

22. Paragraph 8.2(3) sets out factors to be considered where relevant in considering the seriousness of the family violence engaged in by the non-citizen.  These include: the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness; the cumulative effect if repeated acts of family violence; and rehabilitation achieved at time of decision since the person’s last known acts of family violence.  Rehabilitation includes the extent to which the person accepts responsibility for their family violence related conduct; understands the impact of their behaviour on the abused and witness of that abuse (particularly children) and efforts to address factors which contributed to their conduct. The paragraph also addresses the whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence.

23. Family violence is defined for the purposes of the Direction in paragraph 4(1) to mean violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Specific examples of the kinds of behaviour are provided.

24. The Respondent’s Supplementary submissions filed on 5 June 2025, contends that the applicant has been involved in perpetration of family violence as reported in records of the Western Australian Police Force produced under summons, and that this weighs heavily against revocation in this case. The submissions acknowledge that the incidents referred to did not result in convictions against the applicant, but nonetheless indicate his propensity to engage in violent or aggressive behaviour, including towards women and in the presence of a minor, which resulted in two intervention orders being made against him.

25. The reported incidents referred to are as follows:

    ·On 15 April 2016 the applicant had become verbally abusive towards persons at his home address. He had gone to his bedroom and kicked/bashed the bedroom door of hinges. He was held down by his father to calm him down. Police attended the address and complainants (his parents) wanted him locked up for the night due to his alcohol consumption and aggressive nature. Police spoke with applicant and Police Order issued.  Applicant agreed to stay at a friend’s house that night.[31]

    [31] HB S1, p224.

26. The Tribunal notes further details in the police records indicate the complainants (the applicant’s parents) did not want to proceed with any charges relating to the property damage and that the applicant apologised to his mother before leaving. The record indicates the victim (being the applicant’s mother) was not frightened by the incident. The notes also indicate that the applicant’s younger sister, Shardaye, who was aged 15 years and was present, said she saw the state her brother was in when he came home drunk and aggressive, and it made her scared.  

    ·On 13 October 2019 notes in police records indicate Police responded to a call by neighbours believing that people were trying to break into the incident location. It was reported that the applicant and victim (identified as applicant’s stepfather) had been drinking heavily at a family celebration and returned home around 1am. A physical altercation occurred and the suspect walked away from the address. It is recorded that the victim had a small amount of blood on his jeans from an injury to his chest but did not want to show police and denied any injury. Victim and wife told police applicant was not welcome at address and they would call if he returned. Suspect was located at a park a short distance away but declined to tell police what had occurred other than he got in a fight with his [step dad] and was not going back.  A 24-hour police order was issued.[32]

    [32] HB, S1, p235.

27. The police records in respect of this incident indicate the victim (the applicant’s father) was not frightened and that the incident involved the victim and suspect both being under the influence of alcohol.

28. These incidents were put to the applicant for comment at the hearing. He stated that he neither accepts nor disputes the first incident and made no further comment on it. In relation to the second, he disputed the account presented in the police record declined to say why. He told the Tribunal his father later apologised to him about this incident.  He acknowledged he was under the influence of alcohol at the time.

29. Having regard to all the evidence before it including the further details contained in the records, the Tribunal accepts the first incident, involving the applicant engaging in violent behaviour (intentionally damaging property) occurred in the family home, in the presence of his mother and younger, minor sister who it is indicated was fearful, comes within the definition of family violence in paragraph 4(1). He was removed from the home and had a 24-hour restraining order applied. The Tribunal accepts that the evidence of this incident is the police record, which is an authoritative source, and was not specifically disputed or denied by the applicant when put to him for comment.

30. With regard to the second described incident on 13 October 2019, the Tribunal is not prepared to find on the applicable definition of family violence and limited evidence of the record before it, which was disputed by the applicant, that this was family violence committed by the applicant against his father. There is insufficient evidence in the police record whether the applicant caused injury to his father and the record indicates his father was not frightened. 

31. Having regard to factors to be considered in paragraph 8.2(3) in assessing the seriousness of the family violence committed by the applicant, the Tribunal finds that there is evidence of only one incident that occurred 9 years ago. The applicant was intoxicated at the time and, as has been discussed above, there is little evidence that he has taken steps to address his significant issues relating to alcohol consumption and abuse.  While there is no evidence of further family violence offending since this incident, the Tribunal takes into consideration his history of violent offending more generally, and especially while intoxicated. It accepts that the past incident of family violence, committed while intoxicated, is an indicator of his propensity to engage in violent or aggressive behaviour, including towards women and children. However, having regard to the circumstances of that incident (in particular, his cooperation in leaving the scene, and apology to his mother), his mother’s subsequently provided support letter,  and in the absence of any other recorded incidents, the Tribunal gives minimal weight against revocation of the cancellation of visa to this consideration.

    Primary Consideration 3: The strength, nature, and duration of ties to Australia

32. Paragraph 8.3 of the Direction provides:

    (1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

    (2)Where consideration is being given to whether to cancel a non-citizen’s visa or revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to

    a.How long the non-citizen has resided in Australia including whether the non-citizen arrived as a young child, noting that

    i.Less weight should be given where the non-citizen began offending soon after arriving in Australia; and

    ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.

    b.The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and / or people who have an indefinite right to remain in Australia.

    The Applicant’s family in Australia

33. In his Personal Circumstances Form and oral evidence to the Tribunal the applicant has identified the following immediate family members in Australia: his mother, his father, two sisters, one niece and a brother-in-law. He also names three uncles and three cousins as other close family members, and states that he has more than 10 and more than 30 other uncles/aunts and cousins.[33] There is no evidence he has a partner or children. He states that if he were to be deported it would ‘shatter’ his family, especially his immediate family as he is the only boy.

    [33] HB, G13, p83.

34. The applicant’s mother and sister provided letters in support of his request for revocation of the cancellation decision to the Department in December 2022.[34] The Tribunal has considered the content of these letters. His mother refers to him as loving and caring when it comes to his family. His sister states that his past wrongs do not define him as a person and that despite his mistakes, he is caring, loving, funny and protective towards the people he loves and cares for. His sister refers to the applicant’s role in her three-year-old daughter’s life and her wish to see the bond between the applicant and her daughter grow.  Both his mother and sister state that their willingness to support the applicant financially, mentally and emotionally and urge that his visa be reinstated so he can continue to live in Australia.

    [34] HB, G20 and G21, pp97-98.

1. No updated or further evidence from these family members or anyone else was provided by the applicant to the Tribunal during the review. Neither his mother or sister were called by the applicant to give evidence in support of his application at the hearing. When questioned about this, the applicant told the Tribunal that his family was aware of the hearing but he did not ask them to give evidence on his behalf because he did not want to ‘inconvenience’ them. The Tribunal gave the applicant a further opportunity before the end of the hearing to call them as witnesses, noting their statements were made in December 2022 and there was time to adjourn the hearing to allow for this, but he declined. 

2. The applicant told the Tribunal that since his incarceration in March 2022, his family visited him initially once every fortnight when he was in prison, but later less frequently, once a month.  Since he has been in immigration detention, due to the distance for them to travel, he has asked them to not visit him as much and prefers to speak by phone. They visit him once every month or two. He stated that they speak by phone daily. 

3. He told the Tribunal he was living with his parents and sister for about a year before he went into custody in 2022. Prior to that he lived in various share houses after leaving school.

4. The Tribunal has considered the evidence before it regarding the relationship between the applicant and his immediate family. It accepts that he migrated to Australia with his immediate family and mostly lived with them, other than a period in share houses, and that he was living with his parents and younger sister prior to his incarceration in 2022.  It accepts he has no partner or children and that his family comprises his parents and siblings.

5. While there is no updated or current evidence before the Tribunal of the ongoing support and relationship between the applicant and his parents and siblings, on the basis of the support letters provided previously, it accepts that his mother and sister would be impacted by the decision to not revoke the cancellation of his visa. As to the extent of this impact, the Tribunal is unable to make any further finding on the limited material before it.

6. The Tribunal accepts on the applicant’s written information and his oral evidence, that in addition to his immediate family, he has numerous uncles, aunts and cousins in Australia, some of whom he has a close relationship with. He referred in his oral evidence to his uncle Steve who supported the family to migrate to Australia from New Zealand who would be especially disappointed if he had to return there, although no evidence from this person is before the Tribunal.

7. The information provided by the applicant in his Personal Circumstances Form is that his immediate and extended family members in Australia have a right to reside here. 

   Strength, nature and duration of other ties

8. The Tribunal accepts the applicant has been residing in Australia since 2006 arriving at the age of 12 years.[35] He has therefore been living in Australia for 19 years, more than half his life. 

   [35] HB,G26, p106.

9. The evidence before the Tribunal is that he attended school until year 11 and commenced working from that time. He told the Tribunal he worked consistently in various jobs and started working in civil construction from about 2013 until 2022 when he was taken into custody.

10. Paragraph 8.3(2)(a) requires the Tribunal to have regard to the length of time the non-citizen has resided in Australia and give less weight where the offending began soon after arrival; and more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

11. In this case the applicant was 12 years of age when he arrived. His adult offending commenced from 2012 when he was 19, and the Tribunal will not afford this consideration lesser weight on that basis. Regarding his positive contributions, the Tribunal accepts on the evidence that the applicant has had a consistent work history from the time he left school in year 11 until his incarceration and that this can be considered a positive contribution, and accordingly gives weight to the length of time the applicant has resided in Australia.

12. Given the applicant has resided in Australia over half his life, the Tribunal accepts that he would have social links to friends and associates who have a right to reside in Australia and who may be impacted by the decision not to revoke the cancellation of his visa, although he has not provided any evidence from any specific persons in support of this.

13. On the material before it, albeit limited, the Tribunal accepts that as a long-term resident who arrived during childhood, and whose entire immediate family resides here, the strength, nature and duration of ties to Australia is a factor which weighs strongly in favour of revocation of the cancellation of the visa.

    Primary Consideration 4: Best Interests of Minor Children in Australia

14. Paragraph 8.4 of the Direction requires a decision-maker to consider whether a decision to refuse or not revoke cancellation of a visa is in the best interests of a child (under 18) affected by the decision. The Direction requires that the best interests of each child must be considered individually if there are more than one minor child/ren identified.

15. The only relevant child identified by the applicant is his niece, Kymahni, the daughter of his elder sister.[36]  In his Personal Circumstances Form, the applicant describes his relationship with his niece, whom he had been seeing every weekend while he was living with his parents prior to his incarceration. He described cooking breakfast for her and spending time while her mother and his mother were at work on weekends.[37] At hearing the applicant told the Tribunal he returned to live with his parents around one year prior to going into custody.  He has not since then returned home. His evidence was that his niece visited him with his parents while he was in prison. He told the Tribunal visits from his family have reduced to once every one or two months since he has been in immigration detention.  He was aware that his niece is now 5 years old and had started school. He stated that he kept up with her in phone communications with his family. The applicant’s sister’s supporting statement referred to her daughter’s love for the applicant and how much she misses him.  His sister hopes to be able to see their bond grow over the years.[38] 

    [36] HB, G13, p81.

    [37] Ibid, p82.

    [38] HB, G21, p98.

16. Having regard to the factors set out in paragraph 8.4(4) that must be considered in assessing the best interests of the child, the Tribunal makes the following findings on the evidence before it relating to the child:  

    (a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

17. The child, born in 2019, was three years old when the applicant went into custody. She is now 6 years old. While the Tribunal accepts the applicant had regular contact with his niece in the first three years of her life, his contact with her since then, on the basis of his oral evidence, has been limited to monthly or less visits with his parents. Other than the supporting statement from his sister provided in 2022, there is no other evidence relating to the nature of the relationship with his niece since 2022. 

18. The Tribunal finds that the relationship between the applicant and his niece is non parental. He told the Tribunal at hearing that her father is involved in her life in a parental role.

    (b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

19. The Tribunal accepts that given the child is only 6 years now, there is a significant amount of time before she turns 18 years for the applicant to potentially play a positive role in her life.

    (c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

20. At hearing the applicant was asked in cross examination whether he would like to be able to drink alcohol if released and answered that he would like to do that with his family. When questioned whether he has in the past consumed alcohol in the presence of his niece he answered no. However when asked whether he had any concerns doing so, he stated he did not. Given his history of violent offending, particularly when intoxicated and the previous incident of family violence in the presence of his younger sister while she was a minor, the Tribunal has concerns about likely future conduct of the applicant being intoxicated in the presence of his niece and the potential for her to witness or be harmed.

    (d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

21. The applicant has not been able to have a face-to-face relationship with his niece since he has been in criminal and immigration custody from March 2022 until now. There is no evidence before the Tribunal of the effect that has had on the child. The applicant told the Tribunal he maintains contact with his family by phone and social media chat services and keeps abreast of his niece’s life though this communication. He will be able to continue to do this even if he is required to return to New Zealand. Furthermore, the evidence before the Tribunal is that the child’s mother is a New Zealand national, and it may be possible in future for the child to visit the applicant in New Zealand with her mother. 

    (e)whether there are other persons who already fulfil a parental role in relation to the child;

22. The evidence before the Tribunal is that the child lives with her mother and father.

    (f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

23. There is no evidence of the views of the child before the Tribunal.

    (g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

24. There is no evidence of this before the Tribunal.

    (h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

25. There is no evidence of this before the Tribunal.

26. Having regard to the evidence and considerations above, the Tribunal accepts the applicant has had a role in the life of his niece in her early years, and her mother was supportive of her continuing her bond with the applicant as her uncle. It accepts that he is her only uncle on the maternal side of the family. It accepts that continuing a bond with her uncle is in her best interests. Given that maintaining an ongoing relationship is possible by other means, including phone and video communication, the possibility of physical visits to New Zealand with her mother in future, and the fact that the applicant’s role in her life is non-parental, the Tribunal gives the best interests of the child some, but only limited, weight in favour of revocation of the visa.

    Primary Consideration 5: Expectations of the Australian Community

27. This consideration makes clear that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.  Subparagraph 8.5 (4) goes on to state that this consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

28. The consideration lists particular character concerns which, if raised by the applicant’s conduct, the Australian community would expect the Australian Government to refuse entry or cancel their visas. Relevantly in the present case, these include acts of family violence; commission of violent crimes against women, children or other vulnerable members of the community; crimes against government officials due to the positions they hold or in the performance of their duties. The Direction states that above expectations of the Australian community apply regardless of whether the non- citizen poses a measurable risk of causing physical harm to the Australian community.[39]

    [39] 8.5.(2) and (3)

29. In light of the findings above regarding the nature and seriousness of the applicant’s conduct and likelihood of his engaging in further criminal or serious conduct, and his past offending which includes violent crimes and crimes against government officials including police, the Tribunal finds that the nature of the applicant’s offending is such that the Australian community would expect his visa to be cancelled.

30. The Tribunal weighs the factor of expectations of the Australian community strongly against revocation of the cancellation of the visa.

    Other considerations

31. Paragraph 9 of the Direction requires the Tribunal to take into account, where relevant, other considerations including, but not limited to: legal consequences of the decision; extent of impediments if removed; impact on Australian business interests. 

    9.1  Legal consequences of the decision

32. The applicant has not made any claims, and there is nothing in the material to suggest that Australia’s non refoulement obligations would be enlivened in respect of the applicant.  

33. The Tribunal accepts that a legal consequence of the decision not to revoke the cancellation of the visa is that the applicant will remain in immigration detention as an unlawful citizen, and will be liable for removal from Australia as soon as reasonably practicable: s198 of the Act.

34. It also finds that if the mandatory cancellation is not revoked the applicant will be unable to satisfy the Special Return Criteria in cl 5001(c) of Schedule 5 of the Migration Regulations 1994 (Cth) and will accordingly be ineligible for most classes of visa that would enable his return to Australia: Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003 per Feutrill J at [12]–[14].

35. The applicant will also be affected by s 501E of the Act which precludes him from making an application for another visa, other than a protection visa, while in Australia.

36. The Tribunal considers that the above legal consequences of the decision, particularly in circumstances where his immediate family are all residing in Australia, weigh in favour of revocation of the cancellation of the visa.

    9.2 Extent of impediments if removed

37. This consideration requires the Tribunal to consider the extent of impediments the applicant may face in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: his age and health; whether there are substantial language or cultural barriers; and any social, medical and/or economic support available to him in that country.

38. The applicant is 31 years old. There is no evidence before the Tribunal to indicate he has any health issues. He was born and lived in New Zealand up to the age of 12 years and has extended family in that country. The Tribunal finds there are no cultural or language barriers he faces in New Zealand. 

39. In his Personal Circumstances Form the applicant states that the biggest fear he has in returning to New Zealand is having to live without his family and the potential for him to go down a path of affiliating with or committing crime, as this affects many young people from South Auckland. He repeated this concern in his oral evidence. He stated that he has one cousin he has kept in contact with, who lives in South Auckland. He acknowledged that he could avoid the negative influences that he may face in South Auckland by moving to another part of the country, but he would face difficulties because he does not have family outside of this area.

40. The Tribunal accepts that the applicant will face impediments if he is removed to New Zealand. He will be separated from his immediate family and will have to find accommodation and employment for himself. He may face emotional and psychological hardship from being separated from his immediate family and social ties in Australia. It accepts that he has extended family in New Zealand, but they are in the South Auckland area which is where he has concerns about negative influences that may draw him back into criminal conduct. The applicant has gained some skills through the Pathways program that may assist him to make choices about who he will associate with and what he will do. He acknowledged in his oral evidence at hearing that he would need to move away from negative influences in South Auckland, but this will be difficult because he has no family outside this area.

41. The applicant has had a steady work history in Australia and skills in civil construction field. There is no evidence before the Tribunal to indicate he would not be able to find similar employment opportunities there. There is no evidence to suggest he is otherwise than young and healthy. The Tribunal accepts the Minister’s submissions that the extent of any impediments faced by the applicant will be limited in the long term. Acknowledging the extent of impediments in the shorter term, the Tribunal gives this consideration some weight in favour of revocation of the cancellation.

    9.3 Impact on Australian Business interests

42. There is no evidence in this matter of any impact on Australian business interests if the applicant is not allowed to remain in Australia. Specifically, there is no evidence the decision on revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

43. The Tribunal gives this consideration weight neither for nor against revocation of the cancellation.

    Findings on Considerations

44. The Tribunal has made the following findings as to the weight it gives to the relevant primary considerations in the Direction:

    ·The nature and seriousness of the applicant’s conduct to date weighs heavily against revocation of the cancellation of the visa. The Tribunal found that the risk to the Australian community of the applicant committing further violent offences or other serious conduct is high. Protection of the Australian community against criminal and other serious conduct weighs strongly against revoking the cancellation of the visa;

    ·The applicant’s conduct of family violence in this case weighs minimally against revoking the cancellation of the visa;

    ·The strength, nature and duration of ties to Australia weighs in favour of revocation of the cancellation of the visa;

    ·The best interests of the child is given some, but only limited, weight in favour of revocation of the cancellation of the visa; and

    ·The expectations of the Australian community weighs strongly against revocation of the cancellation of the visa.

45. In respect of other considerations, the Tribunal finds:

    ·The legal consequences of the decision weigh in favour of revocation of the cancellation of the visa;

    ·The extent of impediments if the applicant is removed to New Zealand weighs slightly in favour of revocation of the cancellation; and

    ·Australian business interests weigh neither for nor against revocation.

    CONCLUSION

1. The applicant does not pass the character test under s501 of the Act and the Tribunal has considered whether there is another reason why the cancellation should be revoked, having regard to the primary and other considerations set out in Direction 110.

2. Paragraph 7 of the Direction gives guidance on how the relevant considerations should be weighed and applied. Judicial authorities have considered the exercise of balancing and weighing considerations in the relevant Ministerial Directions. In Suleiman v MIBP  the Court referred to the appropriate weight to be given to primary and other considerations, stating that what is required is an inquiry as to whether one or more considerations should be treated as being a primary consideration, or the consideration to be afforded greatest weight in the particular circumstances of the case because it is  outside the circumstances that generally apply.[40] In FHHM v MICMSMA  the Ful Court endorsed the approach in Sulieman, framing the question as whether there was some reason why the general circumstance where the primary considerations should be given greater weight than the other considerations should not apply when it came to weighing the various considerations that were relevant to the particular case.[41]

   [40] [2018] FCA 594 at [23] considering para 8(4) of Direction No 79.

   [41] [2022] FCAFC at [34].

3. In CRNL v Minister for Immigration, Citizenship and Multicultural Affairs[42]the Full Court stated that compliance with the Direction is not achieved by focussing upon individual considerations attributing some form of weight to that consideration in isolation. The task of the Tribunal is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together.[43] The Court went on to state:

   The balancing process is directed to determining whether there is “another reason” why the visa cancellation should be revoked. It requires an identification of the matters that may constitute “another reason” and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing.

   [42] [2023] FCAFC 138.

   [43] Ibid at [28].

4. In bringing together the considerations as part of a single evaluation as required in CRNL the Tribunal has found the nature and seriousness of the applicant’s conduct to date weighs heavily against revocation of the cancellation of the visa and the risk to the Australian community of the applicant committing further violent offences or other serious conduct is high. On this basis the Tribunal gives protection of the Australian community against criminal and other serious conduct stronger weight than other primary considerations against revoking the cancellation of the visa. The applicant’s family violence conduct also weighs against revoking the cancellation of the visa but to a lesser degree. Also on this side of the scale, the Tribunal weighs the expectations of the Australian community strongly against revocation in this matter. On the other side of the scale, the Tribunal finds that the applicant’s strength, nature and duration of ties to Australia weighs in favour of revocation of the cancellation as does the best interests of the child, his niece, but the Tribunal gives this factor only light weight. With regard to other considerations, the legal consequences of the decision and extent of impediments each weigh in favour of revocation, but again the Tribunal places lesser weight on these factors.  

5. Balancing all of these findings and weighing them together in a single evaluation, on the totality of the evidence before it, the Tribunal is not satisfied that there is another reason why the cancellation decision should be revoked under s501CA(4), having regard to the Direction 110.

   DECISION

6. The decision not to revoke the cancellation of the Subclass 444 Special Category (Temporary) visa, is affirmed.

Date of hearing:	12 June 2025
Date final submissions received:	6 June 2025
Solicitors for the Applicant:	Unrepresented
Solicitors for the Respondent:	Ms M Williams, Minter Ellison