Wihongi-Lim and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Wihongi-Lim and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4182 (16 October 2023)
Division:GENERAL DIVISION
File Number: 2023/5505
Re:Pera Henare Wihongi-Lim
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member McLean Williams
Date of decision: 16 October 2023
Date of written reasons: 18 December 2023
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside and substitutes the decision made by the Delegate of the Respondent dated 26 July 2023 to not revoke the cancellation of the Applicant's visa with a decision that this Tribunal exercised the discretion conferred by section 501CA(4) of the Migration Act 1958 (Cth).
.................[SGD].................
Member McLean Williams
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of visa – where the Applicant fails the character test- whether there is another reason to revoke the mandatory cancellation decision- application of Ministerial Direction No. 99 – Tribunal finding there is another reason to revoke the mandatory cancellation decision – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Khalil v Minister for Home Affairs [2019] FCAFC 151
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Secondary Materials
Ministerial Direction No. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member McLean Williams
18 December 2023

On 16 October 2023, the Tribunal set aside and substituted the decision not to revoke the mandatory cancellation of the Applicant’s visa, pursuant to section 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’).
In accordance with the Full Federal Court decision in Khalil v Minister for Home Affairs [2019] FCAFC 151 (‘Khalil’), the Tribunal now publishes the Written Reasons for that decision. In Khalil, the Full Federal Court said:
[41]The AAT Act thus draws a clear distinction between the decision of the Tribunal under s 43 which is, relevantly, what causes the 84 day period to stop running, and the reasons for decision. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 the Tribunal had handed down a decision on a review of a decision of the Australian Securities Commission that was before it, confirming an exemption that the Commission had granted on certain conditions, but substituting different conditions. At the time of announcing the decision the Tribunal did not give any reasons. It delivered written reasons some 14 days later. Beaumont J held (at 271 273, Lockhart and Hill JJ agreeing at 253) that the Tribunal's omission to provide reasons at the time of announcing its decision was not an error, as on the proper construction of s 43(2) of the AAT Act, the Tribunal was only required to give its reasons, oral or in writing, within a reasonable time of the decision.
…
[48]What the Tribunal had to do here within the 84 days was to deliver a decision, not necessarily express reasons…
[Emphasis added]
On 1 September 2022, a Delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) mandatorily cancelled the Applicant’s Class TY Subclass 444 Special Category Visa (‘the visa’) pursuant to section 501(3A) of the Act on the basis that the Applicant did not pass the character test.[1]
[1] G10.
On 16 September 2022, the Applicant requested revocation of the cancellation decision (‘the revocation request’).[2]
[2] G3, p. 13.
On 26 July 2023, the Minister’s Delegate decided that the power in s.501CA(4) of the Act was not enlivened, and accordingly the Applicant’s visa remained cancelled.[3]
[3] G3, p.11.
On 1 August 2023 the Applicant applied for a review of that decision in the General Division of the Administrative Appeals Tribunal, which was within the statutory review period.[4] The Tribunal has jurisdiction to review that decision, pursuant to section 500(1)(ba) of the Act.
[4] G2.
The Hearing of this application for review took place on 3 and 4 October 2023. At the Hearing, the Respondent was represented by Ms Elle Tattersall of Sparke Helmore Lawyers. The Applicant was self-represented.
At the Hearing, the Tribunal received oral evidence from the Applicant, as well as from the following persons:
(a)Forensic psychologist, Dr Gavan Palk;
(b)the Applicant’s mother, Ms Ruiha Wihongi-Lim; and
(c)the Applicant’s partner, Ms Esther Davidsson.
The Tribunal also had the benefit of written character references from:
(a)The Applicant’s former employer, Mr Ian Turketo; and
(b)The Applicant’s former partner, Ms Rebekah Marurai.
The Tribunal also considered the documentary evidence submitted by each of the Applicant and the Respondent, as now detailed in the attached Exhibit Register, now marked as ‘Annexure A’ to these reasons.
BACKGROUND
The Applicant is a 32-year old citizen of New Zealand who was born in February, 1991.
The Applicant first arrived in. Australia on 7 November 2014. He has since departed and returned to Australia on five occasions, for trip periods ranging between one week and up to four months.[5]
[5] G32, p 152.
The Applicant’s Criminal Offending History:
The Applicant first offended in New Zealand, having been convicted of wilful damage in New Zealand on 12 January 2011, at the age of 20.[6]
[6] G5, p 35.
The Applicant’s criminal history in Australia commences on 26 September 2019, when the Applicant’s car was stopped and searched by police. Located in the Applicant’s jacket pocket at that time were three small clip seal bags containing methylamphetamine (7.41 grams). Also located in the car at that time were a set of electric digital scales; a set of numberplates that had been stolen from a shopping centre carpark the day prior; and a phone used in connection with the sale of drugs.[7] On the same day the Applicant entered into a bail undertaking at the Southport Magistrates Court, which required that he report to the Coomera Police station every Wednesday.[8]
[7] Respondent’s Tender Bundle (‘RTB’), p 57.
[8] RTB, pp 8-9.
On 23 October 2019, the Applicant failed to attend the Coomera Police station in compliance with his specified bail conditions.[9] He was first convicted in relation to breach of that bail condition on 8 August 2022.
[9] RTB, p 67.
On 6 November 2019, the Applicant again failed to attend the Coomera Police station in conformity with his bail conditions.[10] He was convicted in relation to that further breach on 8 August 2022.
[10] RTB, p 71.
On 18 December 2019, the Applicant again failed to attend the Coomera Police station in accordance with his bail conditions.[11] He was further convicted in relation to that breach on 8 August 2022.
[11] RTB, p 9.
On 24 December 2019, the Applicant committed the offences of ‘stealing’, ‘possessing dangerous drugs’ (3 counts), ‘contravene direction or requirement’, ‘possess tainted property’, ‘possess utensils or pipes etc for use’, and ‘possession of a knife in a public place or a school’. The Applicant was sentenced in relation to those offences on 8 August 2019.[12] Police had been contacted by loss prevention officers when the Applicant had gone to Target and had proceeded to fill a shopping trolley with toys and other items totalling $775.60, before then attempting to leave the store without making any attempt to pay for the items in his trolley, setting off security alarms in the process. When questioned by police the Applicant provided a false name. He was then arrested and searched, and was found to be in possession of a driver license and Medicare card in the name of another person; a zip bag containing digital scales with a crystal residue; a multitool with numerous knife blades;[13] and methylamphetamine, diazepam and oxycodone.[14]
[12] G4, p 33.
[13] RTB, pp 5-6; pp 18-19.
[14] RTB, p 13.
On 8 January 2020, the Applicant again failed to attend the Coomera Police station as required by his prior bail conditions.[15] He was convicted in relation to that breach of bail condition on 8 August 2022.[16]
[15] RTB, p 23.
[16] G4, p 33.
On 15 January 2020, the Applicant again failed to attend the Coomera Police station in compliance with his bail conditions.[17] He was further convicted in relation to breach of bail condition on 8 August 2022.[18] On the same day, the Applicant was located by police in the Oaks Hotel, after staff had called the police in relation to a television being stolen from a hotel room. The Applicant was located in the hotel room in question, together with another male.[19]
[17] RTB, p 23.
[18] G4, p 33.
[19] RTB, p 27.
On 23 January 2020, the Applicant failed to appear at the Southport Magistrates Court following release on bail on 12 December 2019.[20] A warrant for his arrest was issued and he was convicted of this offence on 18 February 2020.
[20] RTB, p 37.
On 4 February 2020, the Applicant committed the following offences:
·wilful damage, for which he was sentenced to three months imprisonment;
·enter premises and commit indictable offence by break, and assaults occasioning bodily harm whilst armed/in company, for which he was sentenced to 12 months imprisonment;
·stealing, for which he was sentenced to 18 months imprisonment; and
·enter dwelling with intent by break and enter at night whilst armed in company damages property, for which he was sentenced to three years and six months imprisonment suspended after having served 14 months imprisonment.[21]
[21] G7, p 38.
The Applicant was convicted of those offences in the Southport District Court on

20 July 2021 and sentenced as indicated in the preceding paragraph. The Applicant and two co-offenders had approached the victim’s home in the early hours of the morning disguised with hooded jumpers over their heads. A nail gun was first stolen from the victim’s car before a co-offender then kicked open the front door of the residence. Upon entry, the other co-offender stole various items. One of the occupants of the house woke up and discovered the Applicant halfway up the stairs and pointing the stolen nail gun at him and one of the Applicant’s co-offenders at the top of the stairs, armed with a pole. The co-offender then attacked the occupant with the pole and the Applicant struck at him with the nail gun. The victim was assaulted by both the Applicant and the co-accused, being kicked and punched whilst on the ground. Whilst outside the house either the Applicant or one of the co-accused smashed the windows of the house as well as the windows and panels of the complainant’s car.[22]
[22] G8, p 42; RTB pp 30-35; pp 85-88.
The Applicant was in pre-sentence custody between 17 February 2020 and 8 April 2020.[23]
[23] RTB, p 82.
On 19 June 2020, the Applicant committed the offence of stealing. He attended a store and left with two pairs of sunglasses, yet without making any attempt to pay for these. The sunglasses were valued at $670.90.[24] The Applicant was convicted of that offence on 8 August 2022.
[24] RTB, p 53.
On 5 August 2020, the Applicant failed to appear at the Brisbane Magistrates Court following his release on bail on 11 March 2020.[25] A warrant for his arrest was issued and he was convicted on 8 August 2022.
[25] RTB, p 45.
On 6 August 2020, the Applicant was in the passenger seat of his car which was being driven by a person wanted for questioning in relation to other matters. The Applicant consented to a search of the vehicle and drug paraphernalia was located by the police including syringes, and clip-seal bags containing white crystals. Also found in the Applicant’s jacket at that time was a small clip seal bag containing green leafy material which the Applicant confirmed to police to be ‘weed’.[26] The Applicant was convicted of possessing dangerous drugs on 8 August 2022.
[26] RTB, p 41.
On 19 May 2021, the Applicant was found to be in breach of his bail conditions which required him to reside at a Holmview address.[27] When police attended the relevant address, they were advised that the Applicant had not resided there for two and a half months. The Applicant was convicted of that offence on 8 August 2019.
[27] RTB, p 49; p 77.
The Applicant was taken into pre-sentencing custody on 20 July 2022.[28] He has remained in either prison or immigration detention since that time.[29]
[28] RTB, p 149.
[29] Respondent’s SFIC, paragraphs [6] – [22].
The Applicant’s Evidence
The Applicant provided a personal statement to the Tribunal.[30] By way of that statement, the Applicant indicated that when he was aged about three, his parents had separated, with the Applicant’s father returning to Malaysia, whereafter the Applicant had no further contact with his father for the remainder of his childhood.
[30] A2, pp. 25-28.
While growing up in New Zealand the Applicant also claims that he was often exposed to drugs and alcohol, and that he was forced to witness his mother suffering abuse and violence at the hands of her domestic partners. The Applicant was compelled by these circumstances to live with other family members while his mother recovered to a point where she could resume looking after him. In his statement, the Applicant said, in part:
‘…So, I grew up in a household where I was neglected, maltreated, and rejected. These things were a constant reminder that [I] did not deserve to be loved as a child. That others were better than me. This abuse had a profound impact on me.
I have in the past disclosed some of this information to my doctor and other medical professionals and [I] have been diagnosed with PTSD.
Prison and detention has allowed me to think long and hard and I now understand my disadvantaged childhood is the root cause for all my offending though not an excuse.’[31]
[31] A2, p. 25, paragraphs [9] – [11].
By way of his statement the Applicant also indicates that he accepts full responsibility for all of his offending and acknowledges that it has had adverse impact on many people, including the direct victims of his crimes, his children and family, friends, and the wider Australian community.
The Applicant further acknowledges that his actions over the past few years have “consumed a lot of community and law enforcement resources”, and that he is “truly remorseful and ashamed of all my actions” and:
‘I know and accept that I cannot change the past now. All I can do now is work hard on my rehabilitation and to use the skills and knowledge that I have learnt from all the courses that I have voluntarily undertaken to say no to illicit drugs and instead focus my energies on being productive and becoming a law-abiding member of the Australian community again.’[32]
[32] A2, p. 26, paragraphs [13] – [16].
The Applicant’s offending history is inextricably linked to drug addiction. Although the Applicant had used some drugs recreationally in New Zealand prior to his arrival in Australia, drug use of any significance did not commence until late in 2017, near the end of the Applicant’s relationship with R, who is the mother of the Applicant’s now six-year old daughter.
The Applicant denies that his relationship with his former partner had ended because of his drug use, ‘I started using drugs around that time, but my drug use wasn’t why we split up’.[33]
[33] Transcript, p. 5, lines 14-15.
The Applicant described the commencement of his drift into drug addiction in these terms:
‘MEMBER: So what was the context of your drug use at that time? -I drank quite heavily, and I was using a bit of ice, and I gambled.
Did that contribute to the relationship breakdown?   I don’t believe so. I believe that the relationship was already gone, and that’s, kind of, why I leaned towards drugs.
All right?   We continued, even though we were - we knew it was over, we lived together for a little bit afterwards as well. And that was, you know, just difficult watching it crumble in front of you.
Do you think you used drugs as a response to the relationship breakdown?   Yes, I do.
All right. I see you were heavily involved in rugby at that time?   No, before I moved to Australia I was heavily involved in rugby.
All right, did the drinking start as part of the rugby culture or what happened?---Yes, I think it did. But it wasn’t a problem when I was playing rugby, because I always had something to make sure that I was not drunk for, it’s trainings and a game on Saturday. So if I had an opportunity to drink, it was really on a Saturday night. I think the drinking came in more when I moved to Australia, and I just had no - I guess, I took for granted the support network I had being involved with sports. I’d been quite insulated my whole life, because I started playing sports when I was 17 and I was in a rugby academy. So for all those years, you know, I had somewhere to be, someone was making me accountable for something. And then when I moved here and just began to work, I had no one or nothing to be accountable to, in the way I started drinking more after work. And everyone that I worked with drank, we went to the pub every day.
All right, and where were you working at that point? -DND carpets.
All right, so you’re a carpet layer? -Carpet and vinyl, yes.
Okay. And then the relationship broke down?   Yes.
Did the drinking increase?   Yes.
And you started using drugs?   Yes.
All right. And you say that the drug use was really in response to the difficult domestic circumstances?   Yes.
All right, I understand.
MS TATTERSALL: And so, when did you leave the house that you were sharing with R then, would that be the end of 2017 when your relationship broke down or is that different? -Yes, we waited for our lease to finish, we had a lease together. And as soon as that lease was finished - as that lease was finishing, we were both looking at different houses.
Okay.
MEMBER: So, you were really bound to her for financial reasons, because of the lease?   Yes, well, we didn’t want to give ourselves a bad name, like, terminating early.
No, I understand that?   Yes.
But that meant that you had to stay together longer than perhaps you would have?   Yes.
And that probably contributed to the problem?   Yes’[34]
[34] Transcript, p. 5, line 17 – p. 6, line 33.
Constant pain caused for the Applicant by a work-related hernia also contributed towards the Applicant edging further into drug dependency. The prospect of the Applicant becoming addicted was then all but assured when the Applicant commenced a short-lived relationship with a drug-addicted partner:
‘MS TATTERSALL: And so, I understand that you were diagnosed with a hernia in 2019?   Yes.
And that prevented you from working for a period of time?   Yes.
So how long was that period of time that you couldn’t work for? -It ended up being a year and half.
MEMBER: Is that a stomach hernia or a groin hernia? - Groin hernias, I had bilateral inguinal hernias, in the groin.
All right. From heavy lifting?---Yes.
So work-related or sports? -Well, I know it was work related, but they said that because they can’t be for sure that it happened at a place of work, then it’s not a workplace injury because - - -
All right, so you were refused WorkCover?   Yes.
I understand. But you think you did it at work, what, probably lifting heavy rolls of carpet or something?   Yes, I know it was from years of lifting heavy rolls of vinyl.
Yes, okay. And how much pain and discomfort has that caused you?---It was horrendous, I couldn’t walk, I couldn’t stand up, I couldn’t urinate sometimes.
Have you had surgery? - I haven’t had surgery yet, but I have been back for scanned since, and the hernias are still there, but they’ve just been at bay, if I keep - - -
All right? - - - - if I don’t do heavy heavy lifting.
So, if you get treatment, will you have to get it as a public patient?   Yes.
So, there’s a waiting list?   Yes.
How long is it, the waiting list? - So, minimum waitlist, I think, is six months before I can get a consult, that’s to go on the waitlist, which I’d done in the past. But then they told me it’s about year, it’s - you know, how long is a piece of string? That they’re looking at a year before I even get looked at to get the surgery.
All right. So, even if you get released from immigration detention, it’s still a way off in the future?   Yes, I believe so. But I’ve managed it since then, and my employers know about it, and we just work around it.
Okay? -Work smarter.
Yes, all right, I understand.
MS TATTERSALL: So, for that period of one and a half years when you weren’t able to work, how were you supporting yourself? - I wasn’t really. I lost everything to drug use.
MEMBER: So, did you stop work because of the hernia?   Yes.
And now I need to understand this, WorkCover got refused?   Yes.
But you weren’t working. So, what was your financial means of support, were you on the dole or - - -? -No, I’m not entitled to that. So, I pretty much lived off anything I had saved.
Yes? - And then proceeded to sell everything I had. And then I started living off my parents.
All right, where had you been living, had you been living with your partner?---No, so at this time, I’ve separated and I live with my mother and her partner, and we rent a house near my ex-partner.
All right. So, you exhausted your savings?   Yes.
Then you started selling all your stuff. And then what happened? -That’s pretty much it. So, I’ve just lived off whatever I could scrounge, or you know, eventually - I actually did a few odd jobs for a few people.
How long did this go on for?   Years, up until I went to jail.
So, can you recall when you stopped working - - -?   Sorry, not up until I went to jail, I went back to work from jail.
All right, so can you recall the date when you stopped working because of your hernia?---I want to say it was some time in 2019.
All right, so when you met your partner, not first met her, but when you started chatting more seriously to her, then you started your relationship with her, you were not working?   No, I had just been let go from a job where I cleaning as a housework - house cleaner. I wasn’t working.
Okay, I understand all of that. Tell me about the drug use and how that all came into the mix? - Okay so, pretty much I get the hernias, I try to get a surgery through my private healthcare, I don’t have high enough cover. I then go to WorkCover, I’m not covered because they can’t determine it’s a work injury. It’s then that I turned to drugs to mask the pain and I guess just deal with what I’ve got in front of me.
Okay, so you were self-medicating?   Yes.
Now, what drugs were you using? - Ice.
You didn’t think to start with something softer like cannabis or - - - ? - I’ve had very bad experiences with cannabis.
All right, okay. So, you were using ice, now presumably that got a bit out of control?   Yes, it ruined my life.
All right. Well, tell me about that, please. When did you first start? I know you dabbled in ice previously because these records say that you had.
Sometime after the hernia you started using ice more prolifically, can you put a date on that? - Yes, I want say it was in 2019.
Did your partner know about this? - No, I didn’t have a partner then.
All right, so it was before you met your current partner, or was it before you were in a relationship with her?   Yes.
When you started your relationship with her, you were using ice, was she aware of that?   No, I had come off ice because I’d already been to jail when I met her.
All right?   So, I used pretty much only with a partner named F, that was that relationship.
Okay?   Yes.
So, was that the point of entry, as it were, to ice, because she was a user too?   No, it was myself. I started using, and then what happened was - so I was buying from a house, right? And then I just - I started hanging around with them and then they started coming to my house. And then before I know it, one of them lives with me, you know, they’re like, I’ve got nowhere to stay, so I say you can stay with me. And it doesn’t take long, it’s probably six month and then like, I’m fully entrenched in this drug life. And there’s people coming in and out of my house, they’re stealing from me, I’m getting more traumatised, but they’re giving me more drugs, and I’m just falling deeper and deeper into the spiral. And - - -
So, it all got a bit crazy? - It got beyond crazy, it was just - I couldn’t believe that this kind of stuff existed.
All right? - And at the same time, I just keep using the drug to numb what was actually happening. I knew these people weren’t good for me, and I could see they were, you know, they’d steal your wallet and help you look for it type of people. But at the same time, I was - - -
So, this was all in the space of about six months?   Yes, it lasted right up until I went to jail.
All right, okay. I’ll let Ms Tattersall get back to her line of questioning. I just wanted to try and understand the social context a bit more.
MS TATTERSALL: So, you referred in your evidence there, to living with your parents?   Yes.
So just (indistinct) back the timetable in my head, you were living with your ex-partner R until the end of 2017. And then where did you go to live from there? -From there I found a house with - pardon me - me, my mother, and her partner, we got on a lease together at a different house.
And how long did you have that for? - That lease would have ended in, probably, maybe, 2021.
And so, when you referred to other people coming to live with you, was that with your parents as well then?   Yes.
And so, you basically lived with your parents, then up until you went into prison?   Yes.
MEMBER: Did your parents know about your ice use or not? - I think they knew, but they just couldn’t control me. And I lied through my teeth to get what I needed.
All right, you weren’t using it in front of them you were - - -?   No.
All right. So you’d always be elsewhere, away from your parents when you were using?   Yes, definitely or else I would - I had to lie to do everything.
Yes, all right, I understand? -I used in the car, I used in my room, at other people’s houses. There - sorry, there was a period where I moved to my partner F’s.
And how heavy a user was she? - She used, as far as I know, most of her adult life.
How long did that relationship last for? - I think it lasted eight months.
And why did that relationship end? - I think it’s just because the drugs ran out and I had nothing more to give her.
All right. So what, she left you? - I left her because she pretty much said - she told me, pretty much, that she doesn’t like me, no, and didn’t want anything to do with me. She just told me what she thought of me, and I left.
All right. And at that stage, the drugs had run out, had they? -Yes, you know, when you’re in the drug life, you’re wheeling and dealing with what drugs you can. And I went to prison and then I got out and we were still together, but I was putting that all behind me, and then that’s when I noticed that her whole attitude changed and she wasn’t - it was just - there was nothing there, it was a drug relationship, that’s all it ever was.
Okay. So, during the time that you were in prison, that time?   Yes.
Did you use in prison at all?   No.
So you sobered up in prison?   Yes.
So when you came out, had you turned your back on drugs at that point?   No, I used for a little bit when I came out.
Did you?   Yes, that was all I knew. But I got clean in 2020.
And did she have any - your former partner, did she have intention of getting clean, or does she want to continue with drugs? Yes, I don’t think she believes it’s a problem.
Okay?   Shen’s not, yes, she’s never going to get clean, I don’t think.
All right, I understand. Yes, Ms Tattersall.
MS TATTERSALL: Sorry, I’m just trying to get the timeline right. So you said that you were in a relationship with F for a short relationship, for about seven months. And you said that you lived with her for a period of time. So, was that that entire seven months or a shorter period of time, or - - -?   It was when I got released, that would have been maybe April of 2020, a few months.
That’s when you started living together?   Yes, when I got released from jail the first time - - -
Yes?    - - -was when I went to stay with her, but we didn’t last very long after that.
MEMBER: Where was she living at that stage when you lived with her?   (Indistinct.)
A rental property, or?   She actually owned the property.
How did she support herself financially?   She was a stripper.’[35]
Evidence of other witnesses
[35] Transcript, p. 8, line 26 – p. 13, line 29.
Dr Gavan Palk

Dr Gavan Palk has provided a forensic psychological risk assessment on the Applicant, in a report now dated 19 September 2023.[36]
[36] A6, p. 108.
Dr Palk conducted telephone interviews with the Applicant on each of 8 and 17 September 2023, and interviewed the Applicant’s partner, and conducted a review of court materials and other documents. Dr Palk also administered psychometric risk assessment instruments to the Applicant. In the aftermath of his assessment Dr Palk opined as follows:
5.3      He impresses as being hard-working and committed to rehabilitating himself. There were no indications of current aggressive or violent tendencies or elevated psychopathic traits.
5.4      Mr Wihongi-Lim’s of reoffending is currently low considering his personality and overall lifestyle, remorse, and attitudes to work, desire to remain in Australia and the steps he is taken towards a rehabilitation.
…
6.3      In consideration of the PAI results the diagnostic manual of mental disorders (DSM-5) Mr Wihongi-Lim’s offending occurred in the context of his drug addiction. He has been relatively free of drug use and criminal offending until he was aged about 28 or 29 years. During this period, he became addicted to ‘ice’ and his offending has occurred during 2019 and 2020. At the time of the offending, he displayed poor coping skills, poor judgement and was depressed due to an inability to work as he was suffering from hernias.
…
8.2      Mr Wihongi-Lim has strong and supportive relationships with his current partner, two children and his biological mother. He reports he suffers no major physical medical problems apart from asthma which is controlled through medication. He meets the DSM-5 Criteria for traumatic stress disorder (PTSD) and stimulant use disorder in remission. He acknowledges he had passed a serious problem with ‘ice’ use, depression and anxiety associated with ice use. Since his arrest in 2020 he ceased using ‘ice’ and submitted to drug rehabilitation treatment.
8.3      The clinical, historical, and psychometric evidence indicates that Mr Wihongi-Lim is generally hard-working and has been a good and productive member of the community until his offending. As noted, offending occurred in the context of his ice dependency, financial difficulty and associating with other drug users.
8.4      He accepts his offending was serious and regrets the offending and is determined to not reoffend. He appears genuinely remorseful and is committed to not reoffending and living a pro-social life. Mr Wihongi-Lim has been assessed as being an exceptionally low risk of reoffending, particularly if he abstains from illicit substances and continues to cooperate with substance intervention treatment.[37]
[37] A6, pp. 117 - 119
During his oral testimony before the Tribunal, Dr Palk slightly qualified his assessment of the Applicant regarding his risk of re-offending - “it’s qualified in the sense that if he keeps away from drug use, misuse of any drugs or alcohol and keeps away from drug associates, then his risk should be low”.[38]
‘MEMBER: Doctor, it’s the Member here?   Yes.
The evidence this morning was, putting to one side the experimental use at the age of 19 in New Zealand, that in about 2017, during a breakup, ice was used again on a perhaps weekly basis on weekends for a period of a few months. When the relationship finally ended, he stopped using ice for a period of about 18 months before resuming the use of ice, and the resumption then coincided with the criminal history of which you are aware?   Yes.
Does that change your views?   It doesn’t really change my views, it just probably reinforces the fact that he doesn’t handle life stressors very well and he doesn’t handle relationships very well and that he needs to deal with those issues. I mean his risk is going to be higher if he uses again or he doesn’t learn the skills to cope with breakdown in relationships and not to turn to ice but to turn to counselling and support in those times. I mean his current assessment still remains at low, but he hasn’t been tested in the community for quite some time. I can’t say he hasn’t had access to drugs. We know they’re in the prison system, but he certainly hasn’t been tested in the community for some time. So, we really can’t say how effective the relapse prevention and protective factors he has in place. I mean I guess in his favour he does have a solid working history that it doesn’t - he seems to work most non-stop as an adult, particularly in Australia, so that’s a protective factor. But having said that, that didn’t stop him from using drugs at 28 or 29 and he’s continued to work but his problem is the money he’s earning hasn’t been enough to cover his - the habit he’s developed.
Doctor, we heard today that now whilst in prison, and it’s continued in immigration detention, Mr Wihongi-Lim is now taking a drug as a blocker. He’s taking Suboxone? -Yes, he told me that.
And he intends to continue with that drug, even if he is released. What impact would that have on his risk of recidivism?   Well he - first of all, I’m not a medical doctor but from the research that I know, it does take away the cravings but the reality is I’m well aware of addicts that do double dip. They will take the Suboxone and also get the other drugs to give it the added effect. There’s no way of predicting that with him at this stage, of course, but Suboxone is the standard treatment for people with an ice addition and it obviously takes away the cravings and keep their - it keeps their moods low but I’d qualify again I’m not a medical doctor and it’s more appropriate for a medical doctor to be answering that sort of question.’[39]
[38] Transcript, p. 44, lines [28] – [30].
[39] Transcript, p. 47, line 32 – p. 48, line 25.
Ms Esther Davidsson
Ms Esther Davidsson is the Applicant’s domestic partner and is the mother of the Applicant’s infant son M, who is now aged 18 months.[40]
[40] Transcript, p. 65, line 14.
Ms Davidsson told the Tribunal that her relationship with the Applicant had commenced in 2020, after the Applicant had already been charged with the offences that resulted in his second term of imprisonment:
‘And when did your relationship start?   Within a couple of weeks of knowing each other.
All right. And when did you start living together? - In - within a few months of knowing him. I fell pregnant three months after being with him.
Okay. And when did you first become aware that he’d been charged with these serious offences?   He told me as soon as he met me. So, I was aware of it. But I was shocked. The court cases obviously took a lot longer because of COVID. But the whole time that he’s been with me he hasn’t used any drugs or committed any crimes.
All right, so when you first met, or when you first started your relationship, I understand that you may have met him a good while earlier but your relationship started later?   Yes.
But at the point where you were in a relationship he told you that he’d been charged?   Yes.
All right, so you were waiting for the matters to be dealt with by the court?   Yes, correct.
All right. Okay, now during that period he was living with you?   Yes.
Was he using?   No.
All right. And was he working?   Yes, he was.
Where was he working?   He was working at doing floor laying.’[41]
[41] Transcript, p. 58, lines 11-39.
‘MR WIHONGI-LIM: Yes. Do we have a close relationship? And how do we remain in contact?   Yes. I love you very much. We remain in contact by regular video calls, text, going to visit him at the detention centre and jail.
MEMBER: All right. How often do you go out to the detention centre?   At least once every couple of weeks, or once a month.
All right. And do you take your child?   Yes. Before he went to jail we were together every single day and we did everything together.
Esther, do you have a job?   Yes.
Where do you work?   I work with my brother doing construction - formwork. I’m a labourer.
You’re working as a labourer?   Yes.
All right, you’re on the tools?   Yes, I’m on the tools.
All right, you’re not working in the office. You’re on the tools?   Yes.
Okay. Yes, Mr Wihongi-Lim, when you’re ready.
MR WIHONGI-LIM: Next question is, are you struggling with my absence?   Yes, definitely. Multiple reasons why I’m struggling. The first one is financially. The costs of living has risen so much in the last couple of years, I’m struggling financially looking after our son, paying for all the kindy bills and all the bills that he has.
MEMBER: All right, now in order for you to go to work you’d have to put your child in childcare?   Exactly, and that costs money as well.
All right, understand that. What about rent? Do you rent?   Yes, I rent.
All right. What’s your rent every week?   It’s about $250 a week.
All right. And that’s in Inala is it?   No. I moved to Logan Street now in Eagleby. I live with my brother.
All right, so you’re living with your brother. That brings the rent down a bit?   Yes.
All right, you’re working for your brother?   Yes, but I’m only working twice a week. Because of kindy I can’t afford too much.
Okay. What’s your brother’s trade?   He’s a form worker.
So, a form work - carpenter?   Yes.
All right. Okay, so doing what the Brits call shuttering work?   Yes.
Okay. And you work two days a week for him?   Yes.
Because you can’t afford to do any more than that because of the costs of kindergarten?   Yes, correct.
Okay. Tell us some more about the financial struggles?   Yes, well food has gone up almost triple. So, my groceries, I’m struggling - I’m just managing to get enough groceries for us each week. With having to lend money off my mum which - she’s financially struggling as well. So, it’s not really ideal at the moment. So, we are heavily relying on Pera’s support financially in the future if he gets his visa back.
All right, now when you were living together before, he went into jail and then immigration detention?   Yes.
Was he contributing financially?   Yes, he was.
All right. Okay, yes, I understand all of that?   I will say, like to admit that emotionally and mentally his absence has caused lots of issues because I don’t have that emotional support anymore. And I’ve dealt with my own mental illnesses in the past and Pera’s been my biggest support person. And his absence has really - hasn’t been too good for me.
All right. Now, tell me about your child, your young boy?   Yes. M loves Pera so much. And his first word was actually daddy. He’s just starting to talk at the moment. And every time he sees a phone or he sees me on my phone he yells out, ‘daddy, daddy’ because he knows that we video chat every night. And every time he sees Pera he shouts, ‘daddy’ with joy.
All right. Now, how old was Mi when your partner went inside?   He was four months old.
All right. So up to the age of four months how was he as a father?   He was consistent. And I couldn’t have asked for a better father for my child. He stayed - all he did was go to work, come home, look after our son. He let me have a sleep and let me - just was emotionally and mentally really supportive towards me over the first couple of months of motherhood as it can be challenging. He was not just financially supporting but mentally and emotionally too.
All right. So - then when he went inside M was about four months?   Yes.
How did it change for you?   It was horrible. It was the worst thing I’ve ever gone through in my whole entire life. I was - I think that was when the cost of living really did rise up too, so financially I was struggling because I wasn’t working back then for the first - I only just started work a couple months ago. So for the first year of Pera being in jail it was very difficult in lots of ways.,
So, what were you using for financial support?   I was on Centrelink.
Centrelink?   Yes.
With some supplements and parental allowance and stuff?   Yes.
All right. Now, the point where he went into jail were all the COVID shutdown, lockdown stuff over?   Yes, it was over.
All right. Yes, I understand. Okay, back to your questions, Mr Wihongi-Lim.
MR WIHONGI-LIM: How would I help you if I was able to return home?   Well, I believe that Pera has a job already waiting for him when he gets out of jail. His boss has promised to give him work. So, for him to get back into work and support us financially is one of the - one reason he would help. Another way is for M to have a father in his life and for him to have a good role model as a father figure in his life, a good male role model. Which would help me because I want the best for my son. Also emotionally and mentally to have that support back in my life, he has been very supportive while he’s been in jail and the detention over the phone and video chats and texting. But to have that support back where he’s at home again would help me a lot in lots of ways.
MEMBER: What other support do you have in the community?   I have my - I see a psychiatrist - psychologist, sorry - and I also have help with - I live with my mum and my brother. So I get help from them. But they’re very busy working all the time. And I’m basically on my own with M.
All right. What other family do you have in this country?   I have all my family. So I have four brothers, one sister, one auntie, one uncle, one grandma and grandad here, and lots of close family friends.
All right. Now, you’re an Australian citizen?   Yes.
All right, so M is an Australian citizen?   Yes.
If Mr Wihongi-Lim gets deported what’s the possibilities of your and M moving to New Zealand?   There’s no possibility.
Just unpack for me. Explain why?   As I said, I’ve suffered from my own mental health problems. My whole support system is here. My family and Pera also being my biggest support, to leave them behind and move to New Zealand not knowing anyone - I don’t know a single person in New Zealand - it would be close to impossible for me to move over there and - - -
Re-establish?   Re-establish and start over. It wouldn’t be ideal at all.
Now, I understand you’ve got bipolar?   Yes.
And the impression I’ve formed yesterday - and you can tell me if this is wrong - is that it’s actually quite stable and well controlled?   Yes, because of medication and it is controlled. But I’m fearing that if Pera does go to New Zealand I’ll get triggered again and become unwell.
All right. So you see a psychologist. How often?   Once every three to four weeks.
All right. And you’re on medication?   Yes.
And do you see a psychiatrist as well?   Yes.
How often do you see the psychiatrist?   Every three months.
All right. And that’s just to check how things are going?   Yes, and medication-wise too, how that’s all going.
All right, so the psychiatrist does the prescribing?   Yes, correct.
All right, are you a drug user? Do you use any recreational drugs?   No.
All right. Okay, yes back to you, Mr Wihongi-Lim.
MR WIHONGI-LIM: Thank you. Do you think I will relapse on drugs or reoffend?   Definitely not. The whole time I’ve known Pera I’ve known him to be rehabilitated and be a good person to everyone he knows. And I’ve never known him to be a drug user or offender. And as I said, when I heard that he had trouble in his past I was quite shocked. Because he did a lot of rehabilitation before he met me and also during the time that he was with me before jail.
All right. Well, tell me about the rehabilitation he did while he was with you?   Yes, he was going to NA meetings and doing drug courses. And also he was very low profile which means he didn’t have any contact with the friends that he used to be friends with. So he didn’t even have Facebook for a little while and stuff like that. So, he was really - for the whole time I’ve known him he definitely hasn’t used any drugs.
All right. Well, the big risk I suppose is if he doesn’t get deported and he’s allowed to return to the community, he’ll crack on with life and get busy and stop going to NA and stop all that sort of stuff because he’s too busy and too confident it’s all in the past. And then something might happen. He might have some relationship difficulties with you, or he might get sacked at work or he might be in a car accident or something, or whatever. And he might slip back into a drug lifestyle. What can you say about that? That’s a risk I have to take into account?   Okay, just he’s got such a firm support system around him with lots of family. Also his ex-partner and her partner are very supportive. And his mum, me, all of my family are very supportive towards Pera. So, he’s got that strong, firm foundation that if something does happen he can turn to us and not drugs. And we can help him, and we can talk with him.
All right. Well, an argument might be made that all of that existed previously, and it didn’t stop him from - in his former relationship he started to use as the relationship was ending?   Yes. He wasn’t aware of his triggers and identifying drug relapses then. Now that he’s been in jail and the time that he was with me he was very informed about all the triggers and identifying all the risks when doing the drug courses. So, he’s a lot more aware now than he was when he first went - did drugs - because he had no idea.
And the impression I’ve formed is that your partner has one of those addictive personalities where even so much as a taste of ice and he’s on a slippery slope?   I also know he’s very determined and he has self-control, and he is self-disciplined. Because the - the whole time that I was with him he didn’t relapse, not once. And he’s proven that for over a year of being with me and then another year of jail of not using.’[42]
[42] Transcript, p. 59, line 1 – p. 63, line 29.
Ms Davidsson suffers from bipolar disorder and has in the past been subject to a forensic mental health order:
‘MS TATTERSALL: So there’s some reference to you being under forensic orders?---No, not anymore.
Not anymore. And so when did that cease?---In March this year.
SENIOR MEMBER: I understand that was just a mandatory order that you had to be administered drugs for your bipolar?---Yes, that’s correct. Yes.
MS TATTERSALL: And that order previously prevented things like overseas travel, is that right?---No, I can still travel overseas, but it did in the past. I needed to get permission.
SENIOR MEMBER: Are you able to say how long your bipolar was unmanaged for?---I got diagnosed in 2018. The psychiatrist said it was mainly from trauma, my father being absent when I was younger, and just things, trauma that I went through - made me get bipolar, and not getting help when I - in the early stages, so that did progress. But since I’ve been medicated, I’ve been pretty stable.
All right. So 2018 was the first point where it was identified?---Yes.
All right. And the forensic order, you know, the mandatory part of it, how long did that last for?---I think it was about four years.
Four years, okay?---Yes. The main reason I couldn’t come off it was because I moved addresses so much cause
All right. Because you were living a fairly itinerant lifestyle     ?---Yes.
somebody put you on order?---Pardon?
Because you were living itinerant, you were moving around a lot     ?---Yes.
somebody put you on an order? You weren’t institutionalised? You weren’t sent to a psychiatric hospital or anything?---No, no.
No, no. So it was just an order that you     ?---I was, actually. Sorry.
Were you?---Yes, I was. When I first got diagnosed, I was sent to a psychiatric
Okay, all right. My understanding is that the terms of that order were just - it was a way to compel you to take the medication?---Yes, that’s correct. That’s the terms of the order, yes.
All right. Presumably, now that you’ve got insight into your condition, you’d take the medication anyway?---Yes.
Yes, all right. Good?---However, there is certain triggers, like, that do trigger me to get unwell.
All right, what are your triggers?---Not having the emotional support and mental support around me. Stresses in life, whether it’s financial or - any stress could trigger me to become unwell, so it’s - it is manageable, but it’s not, like, black and white.
If Mr Wihongi-Lim was to be deported     ?---That would trigger me, definitely.’[43]
[43] Transcript, p. 68, line 24 – p. 69, line 44.

During her testimony Ms Davidsson sought to impress upon the Tribunal the wider impacts of the Applicant being deported to New Zealand:
‘SENIOR MEMBER: All right. Do you have anything further you wish to say, Esther, before you leave the witness stand?---Just that Pera - if Pera was to get deported, it would affect us all tremendously, and it would affect Australians living here, not just - like, our son’s Australian, and I’m Australian, and all my family is here, and it would impact a lot of people, not just himself. Pera’s proven to me, the whole time that I’ve known him, to be of good character, to be rehabilitated, a great, perfect father for our son, and I’ve also seen him be a father to J before M was born, and he’s an amazing father. And I would suffer tremendously. Not just financially, but emotionally and mentally if he was to move, which would ---'[44]
[44] Transcript, p. 71, lines 1-10.
Ms Ruiha Wihongi-Lim
Ms Ruiha Wihongi-Lim is the Applicant’s mother
‘MEMBER: Tell you one of the issues - I need to make a decision in this case, all right, and really there’s a fork in the road. Either we deport your son back to New Zealand or we allow him to stay here. Now, one of the key issues I have to look at is risk, risk to the Australian community if we allow your son to stay, right. Now, the risk is - in several terms the risk is he slides back into drugs and starts offending again, right, starts doing crazy stuff because he’s using drugs. What support can you provide as his mother if he’s allowed to stay to prevent that risk, or to help reduce that risk? You know, I can only see what I can do to help in that respect is to keep up with how he’s going in how his family life is going, and just making sure he’s not associating with anybody, I guess, that’s from the past at least, or to do with that, but I just - being a family - keeping up with each other as a family, and hopefully we can, you know, share with each other what’s going on with our lives. If he needs support to get to any meetings because he’s feeling, like, he’s feeling like he needs some sort of help, getting to NA meetings, or if he needs to speak to doctors, psychologists or whatever, I can help him find where to get help in that way, but I can’t stand on him and say, ‘Don’t do that’ or anything, he’s a man and I’m
MEMBER: You can be alert to changes though, can’t you? You can be alert to if he’s starting to move in a negative direction? Definitely.
And you can say something, you can raise your hand and say, ‘Look’ - I definitely can do that.’[45]
[45] Transcript, p. 75, lines 1-25.
Ms Ruiha Wihongi-Lim indicated to the Tribunal that she would not have any ability to offer her son any support in the event that he were to be deported back to New Zealand.
‘In all honesty, I’m not rich. And I have a job that can support me and my partner. And as you know, he’s just had major surgery. And I’m caring for him as well. I honestly don’t have any financial support at all I could give you. I know, because we’ve kind of made a life over here.’[46]
[46] Transcript, p. 76, lines 43-47.
Ms Ruiha Wihongi-Lim also indicated that the Applicant would have limited support from other family in New Zealand:
‘MS TATTERSALL: And so if Mr Wihongi-Lim was to return to New Zealand do you understand whether any of your family members over there would be able to offer him any support, for example short term accommodation or those sorts of things?   What can I say? My mother is very elderly. I think she’s coming close to 90. My sister has not long had a kidney transplant and my brother is being - has got punctured lungs from - so they’re all not in good health. And I wouldn’t even think that they would be able to assist him in accommodation.
MEMBER: I get the impression from how you describe the situation with Robbie that there’s not much of a relationship between your two boys?   Not like - I don’t think so, (indistinct). Not a good relationship. They may be brothers.
Could Robbie conceivably provide support to him in New Zealand?   I don’t think so. Robbie - - -
Just explain your thinking there?   I think Robbie is - doesn’t really work. He’s got his own demons going on with drugs and the people he hangs around with in New Zealand. I doubt very much if that’s going to be any good influence at all.
How often do you speak to Robbie?   Probably monthly. I do make a point of calling him or keeping in touch with him and just seeing how he’s doing and what he’s up to. Just to make sure that we’re keeping our family contacts. Same with the rest of my family, I try to call them.
All right. But you don’t think that he could be a support provider over there for - - -?   I honestly don’t.’[47]
[47] Transcript, p. 78, lines 19-47.
ISSUES
The issues for determination on the hearing of this Application for review are:
(a)whether the Applicant meets the requirements of the character test as defined in section 501 (subparagraph 501CA(4)(b)(i)); and if not
(b)if he does not, whether there is another reason why the cancellation decision should be revoked (subparagraph 501CA(4)(b)(ii)).
LEGISLATIVE FRAMEWORK
Does the Applicant pass the character test?
In 20 July 2022, the Applicant was sentenced by a District Court of Queensland to an imprisonment term of three years and six months, for the offences ‘wilful damage, enter premises and commit indictable offence by break, stealing and entering dwelling with intent by break at night whilst armed in company .’ As a consequence, the Tribunal can now only find that the Applicant has a ‘substantial criminal record’ and, as a matter of law, the Applicant cannot pass the character test: section 501(7).
Consequently, the task for the Tribunal reduces to an exercise of the discretion in subparagraph501CA(4)(b)(ii), to consider whether there is now ‘another reason’ why the original visa cancellation decision under section 501(3A) should be revoked.
In considering whether to exercise the discretion, the Tribunal is bound to comply with any Directions made under the Act by virtue of section 499(2A). In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Ministerial Direction’) is applicable.
The Ministerial Direction outlines a framework for decision-makers with respect to exercising the discretion outlined in section 501CA of the Act. Relevantly, paragraph 6 of the Ministerial Directions provides:
6. Exercising discretion
Informed by the principles in paragraph 5.2 above, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
The principles contained within 5.2 of the Ministerial Direction are as follows:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Ministerial Direction sets out the five Primary Considerations that the Tribunal must take into account, being:
(1)protection of the Australian community from criminal or other serious conduct (‘Primary Consideration 1’);
(2)whether the conduct engaged in constituted family violence (‘Primary Consideration 2’);
(3)the strength, nature and duration of ties to Australia (‘Primary Consideration 3’);
(4)the best interests of minor children in Australia (‘Primary Consideration 4’); and
(5)expectations of the Australian community (‘Primary Consideration 5’).
The Ministerial Direction then stipulates ‘Other Considerations’ which must also be taken into consideration:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
Notably, these considerations are to be regarded as ‘other’, as opposed to ‘secondary’ considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]:
...Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non-refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
The nature and seriousness of the Applicant’s conduct to date:
Paragraph 8.1.1 of the Ministerial Direction sets out the factors to which a decision-maker must have regard when assessing the nature and seriousness of the Applicant’s criminal offending, and other serious conduct.
The Respondent Minister submits that the Applicant’s conduct should be assessed by the Tribunal as “very serious”[48] for the following reasons:
‘Violent crimes are viewed very seriously by the Australian Government and the Australian community (paragraph 8.1.1(1)(a)(i) of Direction 99). The applicant has been convicted of a violent crime. The categorisation of the applicant’s offending as serious is also supported by the sentencing judge who accepted the 4 February 2020 offending was a serious and protracted incident (G8/42).
Regard must also be had to the fact that the applicant has been sentenced to terms of imprisonment for his offending (paragraph 8.1.1(1)(c) of Direction 99). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy.4 Where a Court has sentenced an offender to a term of custodial imprisonment, this should be viewed as a reflection of the objective seriousness of the offences involved.
There has also been a trend of increasing seriousness as the applicant’s offending has escalated from drug offences to violence (paragraph 8.1.1(1)(d) of Direction 99).
The applicant also provided false and misleading information to the Department by way of his incoming passenger cards which failed to disclose his New Zealand criminal convictions (G31/150-151)(paragraph 8.1.1(1)(f) of Direction 99). Whilst the applicant has stated that he didn’t believe he had committed a criminal offence as he was only fined it remains that his New Zealand criminal history was a relevant matter to disclose (G19/123).’[49]
[48] Respondent’s SFIC, paragraph [42].
[49] Respondent’s SFIC, paragraphs [42.1] - [42.4].
The Applicant concedes that his criminal offending in Australia is ‘very serious’.[50]
[50] A3, p. 36, at [20] and [28].
The Tribunal considers in all the circumstances that the correct categorisation for the Applicant’s prior offending is for it to now be assessed as ‘very serious’.
Risk to the Australian community
When assessing the risk of harm to the Australian community that may now be posed by the Applicant, a decision-maker must have regard to, cumulatively, the following relevant matters arising under paragraph 8.1.2(2) of the Ministerial direction:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen reoffending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Respondent Minister submits[51] that the Tribunal should conclude that the risk of further offending by the Applicant is ‘unacceptable’, for the following reasons:
45.1‘Although the applicant was assessed as posing a low risk of further general offending by Risk of Reoffending Prison Version (RoR-PV) which is a screening tool administered at the commencement of each new correctional episode to determine the risk of general reoffending and inform eligibility for intervention programs. This risk rating does not indicate his risk of further violent offending (G21/128; TB 179). The applicant was not formally assessed to identify rehabilitative needs (TB 189).
45.2The applicant has suggested that his offending was a one off (G13/78). This is not however an accurate categorisation of his offending in Australia, which has spanned from September 2019 to May 2021. The applicant also suggests that he did not re-offend even whilst on bail for an extended period (G13/78) however this is at odds with him committing the offence of stealing as well as breach of bail following his offending in February 2020. The applicant’s attitudes demonstrate a lack of acceptance of responsibility and insight into his offending.
45.3The applicant’s drug use is long standing. He grew up around cannabis use (G13/78; G15/87), started using ice in his early 20’s and was using at the time of the 2 February 2020 offending (G8/43) having become addicted following health problems that resulted in an inability to maintain employment and socialising with the ‘wrong crowd” (G13/78;G13/80). Whilst there are references in the sentencing remarks to the applicant attending narcotics anonymous (G8/43), there is no independent evidence of same and the applicant does not claim to have continued to participate in narcotics anonymous whilst incarcerated (G13/80). The only evidence of any rehabilitation relates to: a twelve hour explore program completed in October 2022 (AFE 3); an early recovery group program completed in May 2023 (G22/137); a drug and alcohol abuse program completed in August 2023 (AFE 4); correspondence confirming that an intake screening was undertaken in August 2023 (AFE 2); and one SMART recovery meeting in August 2023 (AFE 11).
45.4The applicant has otherwise identified that he has anger problems and childhood trauma (G15/89). Whilst he completed an anger management course in prison (G22/138) and suggested he has also been speaking with a psychologist there is no independent evidence to support that assertion other than a request to see a psychologist (G20/124).
45.5Whilst the applicant has stated that he will not offend and that the love and support of his family is a protective factor (G13/82) the Tribunal can have no confidence that family support will be a protective factor in circumstances where it did not prevent previous offending.’[52]
[51] Respondent’s SFIC, paragraph [45].
[52] Respondent’s SIFC, paragraphs [45.1] – [45.5].
The Applicant submits[53] that, on the premise he were to engage in further criminal offending in the Australian community, there is a real prospect that such further offending could cause emotional, financial and physical harm to members of the Australian community, and the nature of that prospective harm is also acknowledged by the Applicant as being potentially very serious.
[53] A3, paragraphs [30] – [45].
However, the Applicant submits that the likelihood of his now engaging in further offending in Australia is ‘extremely low’,[54] and the following matters become important to consider:
[54] Ibid paragraph [44].
(a)The Applicant has been in sustained drug remission for more than a year in an environment where drugs are readily available, he is also on the opioid substitute program.
(b)The Applicant has much better insight into his offending. With the benefit of reflection and rehabilitation, the Applicant is genuinely remorseful for the full extent of his criminal offending and adverse conduct in Australia.
(c)The Applicant is currently seeking mental health treatment and counselling with a mental health Professional, or his mental health issues and drug addiction.
(d)The Applicant has completely cut off former antisocial peers from his life. He has changed his mobile telephone number.
(e)The Applicant is currently undertaking the Smart Recovery Program to further promote his rehabilitation.
(f)The Applicant has engaged with – and, if allowed to re-enter the Australian community - will continue to receive counselling from Lives Lived Well and SANE to manage his mental health and addiction issues.
(g)The prospect of future visa cancellation and the real prospect of deportation to New Zealand will act as a significant deterrent against the Applicant further offending. The Applicant is reformed and rehabilitated and understands that any further criminal activities will result in his visa cancellation and deportation to potentially a life without his children and family.
(h)The Applicant has undertaken considerable rehabilitation. The Applicant has worked very hard to address his criminogenic needs to reduce his future risk of reoffending.
(i)The evidence reveals the Applicant have been in sustained remission, since 2020 the Applicant has been on the OST program.
(j)The Applicant is remorseful and has accepted responsibility for his offending.
(k)The Applicant has a supportive family network in Australia, and is able to immediately return to paid employment.

The Tribunal accepts the forensic risk assessment prepared by Dr Palk.
In the aftermath of the Applicant’s evidence before the Tribunal, the Tribunal has been left with a distinct impression that the Applicant has a strong determination to avoid drugs in the future, and has taken appropriate steps to ensure a scaffold of supports around him to safeguard against further drug temptation, if the Applicant is released into the community. The Tribunal considers that Suboxone treatment has been an important factor mitigating drug use by the Applicant and notes that the Applicant intends to continue Suboxone treatment for the foreseeable future. In regards the question of future risk to the Australian community, the Tribunal considers that in light of Dr Palk’s assessment the risk of the Applicant now re-offending is ‘very low’, such as to be assessed by the Tribunal as an ‘acceptable’ risk.
Overall, the Tribunal considers that Primary Consideration One still weighs in support of cancellation of the Applicant’s visa, yet because the risk of the Applicant re-offending if allowed to remain in Australia is assessed as a ‘very low’ and an ‘acceptable’ risk, only ‘some’ weight now attaches to Primary Consideration One, in support of visa cancellation.
PRIMARY CONSIDERATION TWO – FAMILY VIOLENCE
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 (paragraph 8.3(2) of the Ministerial Direction).
In the current case, there is nothing in the material that suggests that the Applicant’s offending involved any acts of family violence and therefore this consideration weighs neutrally.
PRIMARY CONSIDERATION THREE – STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
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 (paragraph 8.3(2) of the Ministerial Direction).
Decision-makers must also consider the strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely (paragraph 8.3(2) of the Ministerial Direction). Decision-makers 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)the length of time the non-citizen has resided in the Australian community, noting that:
(i)     considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when the offending commenced and the level of that offending; and
(ii)    more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii)   less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia (paragraph 8.3(4) of the Ministerial Direction).
The Applicant’s immediate family in Australia includes his current partner, two Australian-born children, his mother and his step-father.
In his Statement of Facts Issues and Contentions, the Applicant submits[55] that he arrived in Australia as a young adult and, as the Applicant has now lived in Australia for a considerable period, the Australian community would be apt to afford a higher tolerance of the Applicant’s criminal conduct. The Applicant also submits[56] that a non-revocation decision would have a very substantial adverse effect on his whole family in Australia, particularly on his partner Ms Davidsson, his two minor children, and on his mother.
[55] Applicant’s SFIC, paragraph [51].
[56] Applicant’s SFIC, paragraph [53].
In her testimony before the Tribunal Ms Davidsson had stated:
‘SENIOR MEMBER: All right. Do you have anything further you wish to say, Esther, before you leave the witness stand?---Just that Pera - if Pera was to get deported, it would affect us all tremendously, and it would affect Australians living here, not just - like, our son’s Australian, and I’m Australian, and all my family is here, and it would impact a lot of people, not just himself. Pera’s proven to me, the whole time that I’ve known him, to be of good character, to be rehabilitated, a great, perfect father for our son, and I’ve also seen him be a father to Jordy before Malakai was born, and he’s an amazing father. And I would suffer tremendously. Not just financially, but emotionally and mentally if he was to move, which would ---'[57]
[57] Transcript, p. 71, lines 1-10.
Overall, the Applicant submits[58] that this Primary Consideration should be assessed by the Tribunal is weighing “very heavily” in favour of revocation of the visa cancellation decision.
[58] Applicant’s SFIC, paragraph [57].
The Respondent Minister submits that the Applicant has lived in Australia for 8 years, and that the length of time that he has spent in Australia is a factor that the Tribunal ‘must’ bring to account,[59] however the Respondent Minister submits[60] that this should attract significantly less weight favourable to the Applicant in circumstances wherein the Applicant was not ordinarily resident in Australia until the age of 24, and in circumstances in which the only positive contribution to the community that the Applicant has identified relates to his periods of employment.
[59] Paragraph 8.3(4)(a) of the Ministerial Direction.
[60] Respondent’s SFIC, paragraph [52].
In assessing the various competing arguments, the Tribunal considers that the Applicant does have strong ties to Australia, and certainly far stronger ties to Australia than are any ties to New Zealand. The Tribunal assesses this primary consideration as now weighing ‘heavily’ in favour of revocation of the mandatory cancellation decision.
PRIMARY CONSIDERATION FOUR – BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA.
In accordance with paragraph 8.4 of the Ministerial Direction, decision-makers must make a determination about whether non-revocation is, or is not, in the best interests of minor child affected by the decision. Paragraph 8.4 (4) of the Ministerial Direction provides that when having regard to this consideration, a number of factors must be considered:
(a)the nature and duration of the relationship;
(b)the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18;
(c)the impact of the Applicant’s prior conduct, and whether it has or will have a negative impact on the child;
(d)the likely effect of separation and the ability to maintain contact;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has declared[61] two minor children residing in Australia:
(a)His daughter J, now aged 6 years; and
(b)His son M, now aged about 19 months.
[61] G30,pp. 148-149; G13, p. 68.
The Applicant has also declared six minor nieces and nephews, all under the age of 8 years.
Although implicitly accepting that this primary consideration weighs in favour of revocation of the mandatory visa cancellation decision, the Respondent Minister submits that the weight that attaches to this primary consideration in favour of revocation is however lessened, because of the following considerations:
56‘The applicant states that, prior to incarceration he had shared, part time custody of his daughter with Ms Morurai and full-time custody of his son with Ms Davidsson. Regarding whether there is any independent evidence from the children’s mothers or other family members before the Tribunal to support that assertion, the Minister observes that, as set out above, although Ms Morurai provide a refence, no information is given as to the specific aspects of the applicant’s relationship with their child or any effect that the decision may have on the child (G28/145). Ms Davidsson’s statements are also in general terms that a non-revocation decision would result in their son not having a father figure (G23/140). Whilst the Tribunal may find that the best interests of the applicant’s biological children weighs in favour of revocation the weight given to their interests should be lessened in circumstances where:
the extent of the relationship, particularly with Jordie, is unknown, the children are cared for by other family members and the relationships have been marked by long periods of absence in light of the applicant’s imprisonment and detention (paragraph 8.4(4)(a) and (e) of Direction 99); and
it is unlikely that the applicant would play a positive parenting role in the future given his criminal history and drug use (paragraph 8.4(4)(b) of Direction 99).
57In relation to his nieces and nephews, who do not appear to be the children of his siblings but the children Ms Davidsson’s siblings, the applicant states that he sees them once a week and has a great relationship with them “filled with lots of babysitting, laughter and care for them” (G13/79). The children’s parents have not however provided any supporting statements.
58The Minister contends that that any weight given to the best interests of the applicant’s nieces and nephews should be limited in circumstances where:
the applicant’s relationship with the children is non-parental, the children’s parents already fulfil that role, and, in any event, the applicant’s role in their lives has inevitably been marked by a lengthy absence given he has spent some time in custody and now immigration detention (paragraph 8.4(4)(a) and (e) of Direction 99);
it is unlikely that the applicant would play a positive parenting role in the future given his criminal history and drug use (paragraph 8.4(4)(b) of Direction 99); and,
there is no independent evidence of the effect that any separation would have on the children, nor is there any obvious impediment to the applicant having contact with them via electronic means if he were to return to New Zealand (paragraphs 8.4(4)(d) and (f) of Direction 99).’[62]
[62] Respondent’s SIFC, paragraphs [56] – [58].
In his Statement of Facts Issues and Contentions the Applicant submits[63] that this Primary Consideration be assessed as weighing ‘very heavily’ in favour of revocation of the mandatory cancellation decision.
[63] Applicant’s SFIC (A3), at paragraphs [58] – [75], inclusive.
The Tribunal considers that all of the arguments elaborated by the Applicant in his Statement of Facts Issues and Contentions regarding his biological children now warrant that very significant weight be attached by the Tribunal in favour of revocation of the mandatory cancellation decision. The Tribunal records that it is not persuaded that any discounting of the weight otherwise in favour of revocation by reason of this primary consideration should now be applied on the basis of any of the matters raised by the Respondent Minister.
Some additional weight in favour of revocation (albeit only limited) also attaches on account of the Applicant’s minor nephews and nieces in Australia.
PRIMARY CONSIDERATION FIVE – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5(1) and (2) of the Ministerial Direction outlines the Australian community’s expectations, stipulating that the Australian community expects non-citizens to obey Australian laws while in Australia, and that the Australian community expects the government to not allow individuals to remain in Australia where they have engaged in serious conduct in breach of this expectation. 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 and remain in Australia (paragraph 8.5(1)).
Paragraph 8.5(3) of the Ministerial Direction states that these expectations apply irrespective of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Decision-makers should proceed on the basis of the government’s views, as now outlined in paragraph 8.5 of the Ministerial Direction, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to the Applicant circumstances, or evidence about those expectations. Rather, the Tribunal must regard paragraph 8.5 the Ministerial Direction as if it were a deeming provision: FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] per Charlesworth J and at [92]-[93], [100]-[104], per Stewart J; and Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68.
The Respondent Minister submits[64] that this consideration should now carry heavy weight against the Applicant, in light of the nature of his offending, as well as the potential harm that would be caused to the Australian community in the event that the Applicant were to re-offend in the future.
[64] Respondent’s SFIC, paragraph [62].
The Applicant concedes[65] that as he has committed serious offences in Australia, he has therefore contravened the stipulated normative principle reflected in the Ministerial Direction, yet that the Tribunal should offset the adverse attribution of weight to this Primary Consideration on account of the Applicant’s lengthy residence in Australia.[66]
[65] Applicant’s SFIC (A3), paragraph [78].
[66] Applicant’s SFIC (A3) paragraph [79].
The Tribunal considers that this primary consideration necessitates that ‘very heavy’ weight now attaches in favour of a decision by the Tribunal affirming the Visa cancellation decision.
OTHER CONSIDERATIONS
It is necessary to look at the ‘Other Considerations’ listed at paragraph 9 of the Direction. The Tribunal will now consider each of the four stipulated sub-paragraphs

(a), (b), (c) and (d).
(a) Legal consequences of the decision
Under paragraph 9.1 of the Ministerial Direction decision-makers are required to be mindful of Australia’s non-refoulement obligations. In the current case, non-refoulement does not arise as an issue requiring consideration, such that the Respondent Minister submits[67] that this other consideration should be assessed as weighing neutrally.
[67] Respondent’s SFIC, paragraph [64].
The Applicant submits[68] that ‘another’ legal consequence is that the Applicant will not be able to apply for another visa in Australia (with the exception of a protection visa), such that this other consideration should now be assessed by the Tribunal as weighing ‘strongly’ in favour of revocation of the mandatory cancellation decision.
[68] Applicant’s SFIC (A3), at paragraph [85].
The Tribunal accepts that another adverse consequence of affirming the visa cancellation decision becomes that the Applicant is unable to apply for any other category of visa in Australia (other than a protection visa). Because of the adverse nature of that consequence some - albeit only limited - weight attaches in favour of the Tribunal now making a decision to revoke the mandatory visa cancellation decision.
(b) Extent of impediments, if removed
Pursuant to paragraph 9.2 of the Ministerial Direction, decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, when establishing themselves and maintaining basic living standards (in terms of what is generally available to other citizens of that country), taking into account the non-citizen’s age and health; whether there are substantial language or cultural barriers and any social, medical and/or economic support that will be available to them.
The Respondent Minister observes[69] that the Applicant is 32 years of age, and first arrived in Australia from New Zealand when aged 24, such that it cannot be claimed that New Zealand is a country that is unfamiliar to the Applicant and in all of the circumstances, the Respondent Minister submits[70] that this consideration now weighs only neutrally, and, to the extent that the Tribunal attaches any weight to this consideration in favour of revocation of the mandatory visa cancellation decision, it does not outweigh those primary considerations now weighing heavily in favour of non-revocation.
[69] Respondent’s SFIC, paragraph [67].
[70] Respondent’s SFIC, paragraph [71].
The Applicant submits[71] that the event that he is deported there is a strong likelihood that his mental health issues will significantly deteriorate, and the Applicant will face insurmountable financial, practical, emotional and psychological hardships if compelled to return to New Zealand, such that this Other Consideration should now be assessed by the Tribunal as weighing “very heavily” in favour of revocation of the mandatory visa cancellation decision.
[71] Applicant’s SFIC (A3), paragraphs [89]; [91].
The Tribunal considers that although the impediments that the Applicant will likely face in New Zealand will not be altogether insurmountable, the Applicant is still likely to face considerable difficulties as well as financial, practical, emotional and psychological hardships in the event that he is required to return to New Zealand. The Tribunal assesses these prospects as requiring that ‘heavy’ weight now attach in favour of the decision to revoke the mandatory visa cancellation decision.
(c) Impact on victims
Under paragraph 9.3 of the Ministerial Direction decision-makers are required to be mindful of the impact on victims of the Applicant’s offending if he is or is not allowed to return back to the Australian community. In the current case there is nothing in the material to indicate the impact this Tribunal’s decision will have on the victims of the Applicant’s offending, and therefore this consideration weighs neutrally.
(d) Impact on Australian business interests
In consideration of this Other Consideration, paragraph 9.4 of the Ministerial Direction requires that decision-makers must have regard to any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia.
The parties agree that this Other Consideration is not relevant in this case. Accordingly, the Tribunal finds that this is Other Consideration weighs neutrally.
CONCLUSION
In summary the Tribunal concludes as follows regarding each of the Primary and Other considerations:
(1)protection of the Australian community from criminal or other serious conduct (‘Primary Consideration 1’) – some weight in support of non-revocation;
(2)whether the conduct engaged in constituted family violence (‘Primary Consideration 2’) – neutral weight;
(3)the strength, nature and duration of ties to Australia (‘Primary Consideration 3’) – heavy weight in support of revocation of the visa decision;
(4)the best interests of minor children in Australia (‘Primary Consideration 4’) – very significant weight in support of revocation of the visa decision; and
(5)expectations of the Australian community (‘Primary Consideration 5’) – very heavy weight in support of non-revocation.
(6)legal consequences of the decision – limited weight in favour of revocation of the visa cancellation decision;
(7)extent of impediments if removed – heavy weight in favour of revocation of the visa cancellation decision;
(8)impact on victims – neutral weight; and
(9)impact on Australian business interests – neutral weight.
DECISION

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside and substitutes the decision made by the delegate of the Respondent dated

26 July 2023 to not revoke the cancellation of the Applicant's visa with a decision that this Tribunal exercised the discretion conferred by section 501CA(4) of the Migration Act 1958 (Cth).

I certify that the preceding 102 (one hundred and two) paragraphs are a true copy of the reasons for the decision herein of Member McLean Williams

..................[SGD]..................
Associate
Dated: 18 December 2023

Dates of hearing: 3 and 4 October 2023

Applicant: Self-represented litigant

Solicitors for the Respondent: Ms Elle Tattersall (Special Counsel)

Sparke Helmore Lawyers
ANNEXURE A

Exhibit Number

Description of Exhibit

Party

Date of Document

Filing Date

1

G Documents

R

-

7 August 2023

2

Tender Bundle

R

-

18 September 2023

3

Respondent’s Statement of Facts, Issues and Contentions

R

-

18 September 2023

4

Applicant’s Compiled Evidence

A

-

-

[2023] AATA 4182

16 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Remedies

Statutory Construction

Natural Justice

Dates of hearing:	3 and 4 October 2023
Applicant:	Self-represented litigant
Solicitors for the Respondent:	Ms Elle Tattersall (Special Counsel)
Sparke Helmore Lawyers

Exhibit Number	Description of Exhibit	Party	Date of Document	Filing Date
1	G Documents	R	-	7 August 2023
2	Tender Bundle	R	-	18 September 2023
3	Respondent’s Statement of Facts, Issues and Contentions	R	-	18 September 2023
4	Applicant’s Compiled Evidence	A	-	-