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

Williams and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2284 (31 July 2023)
Division:GENERAL DIVISION
File Number(s): 2023/3377
Re:Raymond Duncan Williams
APPLICANT

Minister for Immigration, Citizenship and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Deputy President S Boyle
Date:31/07/2023
Place:Perth

The decision of the delegate of the Minister dated 10 May 2023 not to revoke the cancellation of the Applicant’s Special Category (Class TY) (Subclass 444) visa is affirmed.
............[Sgd]............................................................
Deputy President S Boyle
CATCHWORDS
MIGRATION – S 501CA(4) OF THE MIGRATION ACT – REFUSAL OF DELEGATE OF THE MINISTER TO REVOKE MANDATORY CANCELLATION OF APPLICANT’S VISA – WHETHER THERE IS “ANOTHER REASON” TO REVOKE CANCELLATION OF APPLICANT’S VISA – MINISTERIAL DIRECTION 99 – APPLICANT IS A 58-YEAR-OLD CITIZEN OF NEW ZEALAND WHO ARRIVED IN AUSTRALIA AS A 22 YEAR OLD – RETURNED TO NEW ZEALAND FOR 12 YEARS - SEXUAL OFFENCE –FAMILY VIOLENCE – VERY SERIOUS CRIMINAL RECORD– PROTECTION OF THE AUSTRALIAN COMMUNITY – MEDIUM TO HIGH RISK OF REOFFENDING ––MENTAL HEALTH OF APPLICANT CONSIDERED – IMPACT ON FAMILY MEMBERS OF ADVERSE DECISION – THERE IS NOT ANOTHER REASON TO REVOKE THE DECISION TO CANCEL THE APPLICANT’S VISA – REVIEWABLE DECISION AFFIRMED
LEGISLATION
Migration Act 1953 (Cth) ss 499, 501(3A), 501(6), 501(6)(a), s 501(7), 501CA, 501CA(4)(b)(i), 501CA(4)(b)(ii)
CASES
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [43]-[45]
Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404
CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affair [2021] FCA 775
FYBR v Minister for Home Affairs ([2019] FCAFC 185; (2019) 272 FCR 454
FYBR v Minister for Home Affairs ([2019] FCA 500)
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628
Harrison and Minister for Immigration and Citizenship ([2009] AATA 47; (2009) 106 ALD 66
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Minister for Home Affairs v HSKJ [2018] FCAFC 217; [2018] FCAFC 217; 266 FCR 591
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Pearson v Minister for Home Affairs [2022] FCAFC 203
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1
Suleiman v Minister for Immigration and Border Protection ([2018] FCA 594
Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA paras 5.1, 5.2, 6, 7, 8, 9
REASONS FOR DECISION
Deputy President S Boyle
31 July 2023
THE APPLICATION

The Applicant seeks review of the decision of a delegate of the Respondent (Minister) dated 10 May 2023[1] not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth) (Act), the cancellation of the Applicant’s Special Category (Class TY) (Subclass 444) visa.
[1] R1/16.
The Applicant’s visa was cancelled on the basis that he did not pass the character test by reason of his substantial criminal record,[2] and he was serving a full-time term of imprisonment for an offence against a law of a State.
[2] R1/4.
The application for review[3] was made on 17 May 2023 pursuant to s 500(1)(ba) of the Act, which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister made under s 501CA(4) of the Act.
[3] R1/4.
BACKGROUND
The following background is taken largely from the Minister’s Amended Statement of Facts, Issues and Contentions (Minister’s SFIC). The Applicant concurs with the background set out in the Minister’s SFIC.[4]
[4] Applicant’s Amended Statement of Facts, Issues and Contentions (Applicant’s SFIC) para 3.
The Applicant is a 58-year-old citizen of New Zealand. He arrived in Australia on 11 July 1987 at the age of 22. He resided in Australia for around seven years until 8 December 1994, then returned to New Zealand for over 12 years, returning to Australia on 10 March 2007.
On 10 March 2007, the Applicant was granted the visa which has now been cancelled.
[5] R1/81.
The Applicant has not departed Australia since 10 March 2007.[5]
The Applicant’s criminal history in New Zealand and Australia is set out in the annexure.
On 14 June 2018, the Applicant was convicted of:
(a)resist or hinder police officer in the execution of duty;
(b)assault police officer in execution of duty without actual bodily harm-T2 (two counts);
(c)common assault-T2 (three counts);
(d)wilful and obscene exposure in/near public place/school;
(e)stalk/intimidate intend fear physical etc. harm (personal)-T2; and
(f)destroy or damage property.
The Applicant was sentenced to a good behaviour bond in respect of these convictions
The Applicant breached the good behaviour bond and, on 4 February 2019, was sentenced to an aggregate term of imprisonment for 18 months on these offences.
On 9 December 2019, the Applicant was given notice that his visa had been cancelled under s 501(3A) of the Act.
On 15 January 2020,[6] the Applicant made a request for revocation of the cancellation of his visa.
[6] R1/84.
On 7 July 2021, in the Parramatta Local Court, the Applicant was convicted of sexual intercourse without consent (offence occurred on 17 November 2018) following a trial and a guilty verdict by a jury. The Applicant was sentenced to a term of imprisonment for three years and nine-months for that offence. In sentencing the Applicant, the sentencing judge found the jury verdict was consistent with the finding that on 17 November 2018, at temporary accommodation where the Applicant and the victim were staying, the Applicant entered the room where the victim and her partner were in bed and performed cunnilingus on the victim without confirming that she was consenting to his acts.[7]
[7] R1/40.
The mandatory cancellation of the Applicant’s visa under s 501(3A) of the Act was affected by the decision in Pearson v Minister for Home Affairs.[8] In Pearson, the Full Court of the Federal Court of Australia relevantly held that (1) an aggregate term of imprisonment (of 12 months or more) ordered under s 53A of the Crimes(Sentencing Procedure)Act 1999 (NSW) is not “a term of imprisonment of 12 months or more”, for the purpose of s 501(7)(c) of the Act;[9] and (2) as the purported basis on which Ms Pearson failed the character test was an aggregate term of imprisonment, that meant the purported cancellation of Ms Pearson’s visa under s 501(3A) of the Act was invalid.[10]
[8] [2022] FCAFC 203.
[9] Pearson at [47-8].
[10] Pearson at [44] and [48].
The judgment in Pearson directly affected the mandatory cancellation of the Applicant’s visa as it was based on the Applicant’s aggregate sentence: s 501(3)(a)(i) of the Act. As a result, the Applicant was released from immigration detention on 30 December 2022.
On 5 February 2023, the Minister personally cancelled the Applicant’s visa.
On 17 February 2023, the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (Amending Act) commenced operation and the Applicant was given a notice informing him that the effect of the Amending Act was to validate the original mandatory cancellation of his visa under s 501(3A) of the Act.[11]
[11] R1/129.
On 8 March 2023, the Applicant was provided with the newly issued Ministerial Direction No.99 (see [26] below).[12]
[12] R1/132.
On 10 May 2023, the delegate of the Minister decided not to revoke the visa cancellation decision under s 501CA(4) of the Act (see [1] above). The Applicant was notified of that decision on 11 May 2023 by email to his representative.[13]
[13] R1/11.
On 17 May 2023, the Applicant applied to the Tribunal for review of the decision not to revoke the cancellation of his visa stating that he did not agree with the decision (see [3] above).
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act relevantly provides that:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Act relevantly provides:
For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); ...
(Original emphasis.)
A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
...
(Original emphasis.)
Section 501CA of the Act relevantly provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
...
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(Original emphasis.)
Section 499(1) of the Act provides that:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Section 499(2A) of the Act provides that “A person or body must comply with a direction under subsection (1).”
Direction 99
On 23 January 2023, the relevant Minister for the purposes of s 499 of the Act, made a direction titled “Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 99).
The commencement date for operation of Direction 99 was 3 March 2023. Upon its commencement, Direction 99 revoked the operation of “Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 90).
Paragraph 5.1 sets out the objectives of Direction 99. Relevantly, para 5.1 provides:
1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.
...
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
(4) The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of Direction 99 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke the cancellation of a visa under s 501CA of the Act. These principles are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable (sic) risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens 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.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(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 measureable (sic) risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 99 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 99 (where such considerations are relevant) in order to determine whether the decision to cancel the visa under s 501(3A) of the Act should be revoked.
Guidance in relation to how the relevant considerations are to be taken into account is found in para 7 of Direction 99 which provides that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of Direction 99 is as follows:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
Paragraph 9 of Direction 99 is as follows:
1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) Legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
THE HEARING AND THE EVIDENCE
The application was heard on 12 July 2023. The Applicant was represented by Ms M Mamarot who appeared by video. The Minister was represented by Ms D Jones-Bolla.
The following witnesses gave evidence at the hearing:
(a)The Applicant.
(b)Rosemary Violet Sylva-Williams, the Applicant’s daughter.
(c)Ethan Shiloh Judge Sylva-Williams, the Applicant’s son.
(d)Raymond Charles Sylva-Williams, the Applicant’s son.
(e)Ellyce Findlater, Ethan Sylva-Williams’ partner.
The following documents were admitted into evidence:
(a)Applicant’s tender bundle filed 9 July 2023 (A1);
(b)Letter from New South Wales Government Justice, Health and Forensic Mental Health Network dated 27 July 2022 (A2);
(c)Medical documents relating to Rosemary and Kayatona Sylva-Williams (A3);
(d)Respondent’s G Documents filed (R1);
(e)Summons (Tender) Bundle filed 22 June 2023 (R2); and
(f)Supplementary Summons (Tender) Bundle filed 6 July 2023 (R3).
At the conclusion of the hearing, as time had run out for the parties to make oral closing submissions, I made directions for the parties to file written closing submissions.

The Applicant provided his closing submissions on 13 July 2023 and the Minister provided his closing submissions on 17 July 2013.
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law.[14] The character test is defined in s 501(6) of the Act (see [21] above). Under s 501(6)(a) of the Act, a person does not pass the character test if the person has “a substantial criminal record”. Section 501(7)(c) of the Act (see [22] above) provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more...”. The Applicant has been sentenced to a term of imprisonment of more than 12 months and he therefore has a substantial criminal record. The Applicant, rightly, concedes that he does not pass the character test.[15]
[14] Harrison and Minister for Immigration and Citizenship ([2009] AATA 47; (2009) 106 ALD 66.
[15] Applicant’s SFIC para 7.
THE ISSUE FOR DETERMINATION
As the Applicant does not pass the character test, he cannot rely on s 501CA(4)(b)(i) of the Act for the decision to cancel his visa to be revoked. The issue for determination, therefore, is whether the power under s 501CA(4)(b)(ii) should be exercised on the basis that there is another reason why the decision under s 501(3A) should be revoked.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)

Paragraph 8.1 of Direction 99 provides that, when decision-makers are considering the protection of the Australian community, they:
(1)... should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen's conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (para 8.1.1)
Paragraph 8.1.1 of Direction 99 relevantly provides:
1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
...
c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e) the cumulative effect of repeated offending;
...
h) where the offence or conduct as committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant’s SFIC made the following submissions and contentions in relation to this consideration:
(a)The Applicant’s criminal conduct can be regarded as very serious by the Tribunal. He has been convicted of violent crimes, a sexual crime and acts of family violence. He was convicted of sexual intercourse without consent on 7 July 2021, three counts of common assault on 14 June 2018 and assault (domestic violence) on 28 July 1992. The Applicant has also been convicted of three counts of male assaults female (manually) in New Zealand (para 11(a)).
(b)The Applicant’s offending has spanned over many years in Australia (1986-2021).[16] The Applicant also has a criminal record in New Zealand that spans from 1996-2005. The Applicant had some crime free years, namely between 2005 and 2017.[17]
(c)There has been a trend of increased seriousness of offending by the Applicant.[18]
(d)The Applicant did not provide false information to the Department and did not receive a formal warning as to the consequences of further offending on his visa status.[19]
(e)The Applicant did not re-offended after receiving the visa cancellation notice on the 9 December 2019.[20]
(f)The Applicant concedes that if he were to reoffend in a similar manner (assaults, sexual intercourse without consent, stalk/intimidate etc.) the nature of harm to individuals and/or the Australian community could be deemed as very serious.[21]
(g)The Applicant concedes that the first primary consideration, the protection of the Australian community, weighs against revocation of the cancellation of the Applicant’s visa.[22]
[16] R1/35-9.
[17] Para 11(b).
[18] Para 11(c).
[19] Para 11(d).
[20] Para 11(e).
[21] Para 12.
[22] Para 14).
The Minister’s SFIC on this consideration was to the following effect:
(a)The Applicant’s offending should be viewed as very serious.
(b)Violent crimes, sexual crimes and acts of family violence are very serious (paras 8.1.1(1)(a)(i) and (iii) of Direction 99). Relevantly, the Applicant has been convicted of sexual intercourse without consent on 7 July 2021, three counts of common assault on 14 June 2018 and assault (domestic violence) on 28 July 1992. The Applicant has also been convicted of three counts of male assaults female (manually) in New Zealand.
(c)The Applicant was on a good behaviour bond at the time of the sexual assault.
(d)The Applicant continues to maintain his innocence. The Minister cites Bromberg J’s judgment in HZCP v Minister for Immigration and Border Protection,[23] including his Honour’s reference to a person contesting a conviction which was not the foundation of the exercise of the power having a heavy onus to displace the facts underlying the conviction.
[23] [2018] FCA 1803.
(e)While the facts underlying the conviction for sexual assault are not immune from challenge, there is no evidence to challenge the facts upon which the conviction was based and the Applicant was found guilty. The jury found beyond reasonable doubt that the Applicant was reckless as to whether the victim was consenting or not and he made no attempt to verify whether she was consenting.
(f)The two counts of assault police officer in execution of duty without actual bodily harm on 14 June 2018 were offences against an official in the performance of their duty such that the offending is serious (paras 8.1.1(1)(b)(ii) of Direction 99).
(g)The Applicant has also been convicted of various other offences: wilful and obscene exposure in/near public place/school arising out of the one incident, stalk/intimidate intend fear physical etc harm (personal)-T2, destroy or damage property, drive vehicle illicit drug present in blood etc – 1st off offence and similar offences in New Zealand and driver not disclose identity of driver/passenger as required.
(h)Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy (citing PNLB and Minister for Immigration and Border Protection[24] (para 8.1.1(1)(c) of Direction 99).
[24] [2018] AATA 162 at [22].
(i)The Applicant has been convicted of 36 offences over a period of 30 years with a trend of increasing seriousness (para 8.1.1(1)(f) of Direction 99).
(j)This behaviour must be seen as cumulatively having had a deleterious impact on the Australian community (para 8.1.1(1)(e) of Direction 99).
(k)The Applicant’s offending has occurred while he has been the subject of a good behaviour bond and conditional liberty including his most serious offence of sexual intercourse without consent.
(l)The Applicant’s offending in New Zealand on the face of the convictions are also offences in Australia (para 8.1.1(1)(h) of Direction 99).
(m)In relation to the Applicant’s driving offences, the Minster cites Bartlett and Minister for Immigration and Border Protection[25] and QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[26]
[25] [2017] AATA 1561 at [43]-[45].
[26] [2021] AATA 1.
(n)If the Applicant were to reoffend, the nature of the harm that may result includes physical harm to members of the Australian community. Further offending, in particular violent and sexual offending, may also have ongoing psychological consequences for the victims and others. It will also have broader financial and other consequences to the justice and health systems. If the Applicant reoffends the nature of the harm that may result includes financial harm to Australian citizens.
(o)There remains an ongoing and unacceptable risk of the Applicant reoffending because:
(i)the Applicant has an extensive history of offending in both Australia and New Zealand.
(ii)the sentencing remarks dated 7 July 2021 noted that the Applicant had been assessed at medium risk of reoffending according to the revised LSI - R and medium to high or above average risk of sexual recidivism with respect to the Static-99R.
(iii)the sentencing assessment report dated 22 January 2019 assessed the Applicant at a ‘high risk of reoffending according to the level of service inventory – revised (LSI-R)’
(iv)the nature of the harm, in particular harm arising from sexual offences, if it were to be repeated is so serious that any risk of reoffending is unacceptable (para 8.1.2(1) of Direction 99).
(v)the sentencing assessment report dated 22 January 2019 in respect of the convictions on 4 February 2019 noted the Applicant “justified his offending behaviour and minimised his responsibility, attributing blame to the victim for his involvement with the Police” and did not demonstrate any insight into the impact of his offending behaviour on the victim. Similarly, the remarks of the sentencing judge on 7 July 2021 indicate the Applicant has no insight or remorse into the sexual offending. The Applicant has consistently denied his sexual offending, claiming that it was consensual, and has rationalised his behaviour as a response to mutual flirting.
(vi)On 21 June 2021, the Applicant was assessed as a “Level IVb (Well Above Average)” risk for being charged with, or convicted of, another sexual offence. The Applicant was recommended to engage with a psychologist experienced in the delivery of treatment for men who have sexually offended to address his criminogenic risk factors. There is no evidence that he has done this nor commenced any treatment.
(vii)The Applicant has a significant issue with cannabis as noted by the sentencing judge and his offending has been underpinned by cannabis and alcohol use and mental health issues. The Applicant has reported in the past that he plans to continue consuming alcohol and using cannabis on release and he is not sure he will be able to stay away from drugs if he can source them.
(viii)The Applicant has a history of non-compliance with medication regimes (as noted by the sentencing judge).
(ix)As noted by the sentencing judge on 4 February 2019, there is a strong need for psychiatric intervention and unless that is done, the Applicant will come back before the Court for continuing serious offences.
(x)The Applicant was an inpatient at Prince of Wales Hospital between 1 October and 17 October 2017 and had attended Blacktown Hospital, however, there is no evidence of psychiatric intervention or the Applicant having completed rehabilitation relating to the factors which underpin his offending namely, his mental health.
(xi)Mr Borenstein, consultant clinical psychologist recommended that in addition to pharmacotherapy, the applicant ‘should participate in psychological treatment with an emphasis on evidenced based cognitive behaviour therapy (CBT), to assist in the management of an affect dysregulation, particularly with respect to anger management’.
(xii)Factors that would ordinarily be considered protective such as stable accommodation, employment and his relationship with his children, did not deter the Applicant from offending in the past.
(p)The Applicant is an unacceptable risk of re-offending and the consideration of the protection of the Australian community weighs very heavily against revocation of the Applicant’s visa.
Applicant’s closing submissions
In his closing submissions, the Applicant contended that the Tribunal should only consider the most recent psychological assessment, that being dated 1 March 2023, written by Alan Quan (Psychologist) from Blacktown Community Corrections.[27]
[27] R3/175-7.
This report is a Sex Offender Supervision Assessment (SOSA) utilizing the Stable2007. It assessed the Applicant as being in the moderate risk range indicating a moderate density of dynamic risk. The report determined that, based on the current risk assessment, the Applicant is estimated to require low supervision.
That report stated that the Applicant is ineligible for the Sex Offender Programs and not suitable for community based EQUIPS programs due to the nature of his offences. The recommendation is that the Applicant be referred to a community-based psychologist and a community-based psychiatrist for ongoing review given his mental illness.
The Applicant was released on parole on the first available date after the parole board deemed him eligible and is on parole until 6 February 2024. He will, until that time, be subject to supervision by New South Wales Corrective Services.
The 24 June 2021 a pre-sentence report used the Static99r tool and found that the Applicant was Above Average Risk for sexual reoffending. However, the assessment’s limitation was that dynamic factors had not been formally assessed,[28] and the Applicant submits that this report should be afforded no weight, as it was superseded by Mr Quan’s report.
[28] R3/304.
The Applicant was released into the community on the 30 December 2022 until February 2023 without incident. During this period, the Applicant organised stable accommodation with his son Ethan and Ms Findlater. He also obtained full-time work at Flemington Markets.
The Applicant’s oral evidence at hearing was that he was medicated and compliant with his medications while in detention.
Minister’s closing submissions
The Minister’s closing submissions in relation to this consideration were to the following effect:
(a)The Applicant was the subject of a bail undertaking signed on 13 November 2018[29] – four days before his sexual offending. That bail undertaking required him ‘to be of a good behaviour and not to commit any further offences while on bail’. The Applicant breached that bail undertaking by consuming cannabis and the sexual offending that followed after the use of cannabis.
[29] R2/278-9.
(b)The Tribunal should give little weight to the Applicant’s claims that he is reformed because:
(i)He has not painted a complete picture in his statement dated 3 July 2023. He said in his statement that he had no family in New Zealand. His evidence at the hearing was that he has four uncles or aunts and six cousins in New Zealand.[30]
[30] I note that, as the Minister pointed out, the Applicant had identified those relatives in New Zealand in his Personal Circumstances Form (R1/97).
(ii)In his statement the Applicant had said that his family returned from New Zealand to Australia and that he followed them to Australia two years later. The Applicant failed to advise that the reason he waited two years before returning to Australia was that he was in prison in New Zealand awaiting the outcome of a grievous bodily harm charge which was eventually dropped.
(iii)When released into the community between December 2022 and March 2023, he was not compliant with his medication. The Applicant was prescribed sodium valproate, duloxetine (SNRI)[31] and Zyprexa (Applicant’s evidence) for his bipolar disorder and when out in the community ceased his medication because, according to him, the “kids and grandkids were [his] medicine”
[31] R2/464.
(iv)The Applicant lacks insight into his mental health condition stating that he has seen the damage done by the medication taken by his daughters and in the past has preferred to rely on cannabis to ‘knock [him] out’ instead of his prescribed medication.
(v)The Applicant has not undergone the recommended treatment for his mental health and again, despite his recent release, did not engage with a psychologist, or a psychiatrist, or drug and alcohol programs.
(vi)The Tribunal cannot be satisfied that the Applicant will remain drug and alcohol free because:
ohis cannabis use is a long-term dependency since about 1986 and has continued in detention;
ohis alcohol use continued in the community as recently as 2023;
oin 2019, it was reported that he did not want to stop cannabis but merely cut down.
owhile the Applicant engaged in mental health consultations in detention on three occasions in October 2022 and one occasion in November 2022, they were not in relation to treatment for the factors underpinning his criminal offending;
othe Applicant attended two sessions of a drug and alcohol course in 2018 but it cannot be said that they assisted in his treatment needs as he continued to use cannabis and alcohol after the two sessions and committed further offending whilst under the influence of cannabis and alcohol, including the sexual offence. Further, the sessions were at the direction of his employer because the Applicant had tested positive to cannabis at work.
oto the extent that Dr Gaudry[32] noted that the Applicant was enrolled in addiction and drug/alcohol rehabilitation program, the Applicant did not complete this and it is not clear if he even commenced it because a case note dated 28 September 2022[33] recorded the Equips addiction program was abandoned stating ‘Inmate has insufficient time to participate whilst in custody. being released on 13/10 22’.
[32] Exhibit A2.
[33] R3/159.
(vii)The Applicant’s drug and alcohol use has preceded two of the most serious offences, the 2017 offending and the 2018 sexual offending. The Applicant does not adequately acknowledge that his drug and alcohol use and mental health are issues.
(viii)Even if I accept that the Applicant understands the factors behind his offending, the Applicant has no real plans or system in place to cease his alcohol or cannabis use or engage with mental health treatment for his bipolar disorder.
(ix)The Applicant continues to deny the sexual offending and despite a conviction to the contrary: maintains that the sexual encounter was consensual; that the victim was flirting with him; the victim was ‘making out’ with someone other than her boyfriend the night before; he still believes the victim was enjoying it; and that he is not guilty.
(c)In relation to the respective weight to be given to the reports of Dr Orreal on the one hand, and Mr Quan on the other, Mr Quan assessed the Applicant’s risk of reoffending as ‘Moderate Risk range indicating a moderate density of dynamic risk’ using the Stable2007 tool. The Applicant’s total score on the Static 99R in June 2021 was 5 which placed him in Level IVa (Above Average) risk for being charged with, or convicted of, another sexual offence.[34]
[34] R3/120-1 and the coding form for the Static-99 R assessment tool is at R3/300-4.
(d)There is also evidence that the Applicant’s “overall risk of reoffending [is] T3/Medium/High1”.[35] The assessment in June 2021 is not dissimilar to the assessment in March 2023. Regardless of whether the Applicant’s risk of reoffending is a ‘medium/high’ risk or ‘moderate risk’ or ‘above average risk’, the risk is wholly unacceptable.
[35] Sentencing Assessment Report at R3/188.
(e)Despite the time that has passed since the report in 2021, it remains accurate and should be given weight. While Dr Orreal did not undertake a formal assessment of the dynamic risk factors, she did consider the dynamic factors from the available documents and the case notes available to her and wrote a detailed description addressing the dynamic factors.
(f)Dr Orreal’s report accords with the Applicant’s evidence that he is innocent, maintains that the sexual encounter was consensual; that the victim was flirting with him and still believes the victim was enjoying it.
(g)The Applicant had at the time in 2021 and continues to have in 2023 significant unmet treatment needs in respect of his sexual offending, his drug use, his alcohol use and his mental health. Mr Quan’s report identifies the Applicant as having untreated drug, alcohol and mental health issues. The treatment needs are not new and similar treatment needs were raised in the past and remain unmet by the Applicant.
(h)The Applicant’s family should not be seen as protective factors in circumstances where:
(i)The Applicant’s son, Raymond, does not believe that his father is guilty of the sexual offence;
(ii)Ms Findlater, with whom the Applicant intends to reside with if released into the community, had no knowledge of the Applicant’s drug use;
(iii)While the other children were aware of the Applicant’s drug use, that knowledge should not be taken to be a protective factor because the knowledge did not prevent the Applicant from using drugs in the past.
(iv)The Applicant drinks and has smoked cannabis with his son Phoenix previously.
(v)Ethan and Raymond told the Tribunal that Phoenix has ‘alcohol issues’.
(i)In circumstances where the Applicant’s mental health, alcohol use and cannabis use underpin his offending, the Tribunal should be very concerned that during his recent release in or around January 2023 to March 2023 the Applicant consumed alcohol and ceased his medication and used cannabis in detention in or around 24 March 2023.
Consideration – Nature and seriousness of the conduct

The most serious of the Applicant’s offences is the sexual intercourse without consent. The circumstances of that offence were set out in the sentencing remarks of Judge Norton dated 7 July 2021[36] as follows:
These events occurred on 17 November 2018 at [omitted], which is temporary accommodation for individuals, couples and families whilst they are seeking more permanent housing elsewhere. The property was managed by a caretaker,... On 7 November 2018 the offender moved in and was staying in room 8. On 12 November 2018 the victim and her partner, Mr [W], moved into room 6.
On Saturday 17 November 2018 the victim and Mr [W] were out for most of the day and returned between 5 and 6pm. They commenced drinking in the backyard with other residents at about 7pm. Sometime during the night the victim, Mr [W] and the offender left the premises and Mr [W] and the victim purchased more alcohol for the group.
…Ms [J] indicated she was not interested in having sex with the offender and there were no observations from other witnesses which indicated the pair had been flirting.
The victim recalls having drunk seven bourbon and Cokes, two Jim Beams and Cokes and about six to eight premixed shooters. It was her evidence she was intoxicated and that evidence was supported by the expert,…
The offender was also drinking bourbon and premixed shots. The victim and Mr [W] went to bed before midnight…
The jury verdict is consistent with the finding that later in the night the offender entered the room where the victim and Mr [W] were in bed and performed cunnilingus on the victim without confirming she was consenting to his acts. When the victim realised it wasn’t Mr [W] who was performing cunnilingus, she squeezed Mr [W]’s arm to wake him up and the offender left the room. The victim felt the offender was going to attack her, and after he left the room she broke down crying hysterically.
[36] R1/40-53.
Specifically in relation to the nature of the Applicant’s offending and its seriousness, Judge Norton found:
Criminal Record
I accept the summary of the record as set out in the Sentencing Assessment Report, which indicates he had a history of offending both in New South Wales and New Zealand and his offending behaviour predominantly relates to violence, domestic violence and drug use.
…
Objective Seriousness
…
I have found that it is not possible to know whether the jury accepted beyond reasonable doubt that the victim was asleep when the offender entered the room, or whether it was the offender who removed her clothes whilst she was asleep.
This offending was carried out in the bedroom of the victim, who, like most of the people in this facility, would no doubt have been a vulnerable person. She was in her own bed and had a right to feel safe in her own bed. This is serious offending, but it was of relatively short duration and falls just below mid-range.
Aggravating Factors s 21A(2)
…
The offending was committed in the home of the victim and in her
bedroom, where, as I have said, she was entitled to feel safe. …
The offender was on two s 9 bonds at the time of the offending.
The circumstances which gave rise to the Applicant’s convictions on 14 June 2018 and 4 February 2019 were (in part at least) set out in the remarks of Magistrate Miller made at the time of sentencing the Applicant on 4 February 2019.[37] The Applicant had been convicted and sentenced in the Blacktown Local Court on 14 June 2018 on two counts of assault police in execution of duty, three counts of common assault, one count of stalk/intimidate, one count of wilful obscene exposure and one count of resist/hinder police in execution of duty[38] for which he had received fines, suspended sentences and bonds. The Applicant, however, breached the terms of the bonds and suspended sentences resulting in him being re-sentenced by Magistrate Miller on those offences plus two more offences (destroy damage property and drive with illicit drugs in blood) on 4 February 2019. In sentencing the Applicant, Magistrate Miller said:
The facts of the malicious damage are quite odd. The defendant, in short, believed that another person had possession of his phone. When that was not given to him he took a baseball bat and applied that baseball bat numerous times to the victim's car causing significant damage to the motor vehicle. It is clear that at the time the defendant appears to have gone into a form of rage, lost control and attacked the car with the baseball bat causing significant damage. The prescribed illicit substance was relating with cannabis in his system.
In relation to the breach of bond matters, again, each of the sets of offences have peculiar behaviour on behalf of the defendant. It appears in each set of matters he has to a large extent lost control and acted out in an extremely aggressive manner to those persons around him relating to a charge of intimidation, three counts of common assault, one count of wilfully obscene exposure for exposing his buttocks. When the police attended, there was assaults upon the police officers. They are all serious offences.
[37] R1/60-4.
[38] R1/38.
The facts giving rise to the convictions on 14 June 2018 for which the Applicant was re-sentenced on 4 February 2019 were set out in a New South Wales Police Facts Sheet[39] as follows:
[39] R1/65-9.
OFFENCE 1: Intimidation. About 12.30am Friday 15th September 2017 [redacted] was asleep in his lounge room with his 2 year old child when he was woken by the sounds of his dogs growling and barking. [redacted] looked out the window and saw the accused Raymond WILLIAMS standing on his verandah near the front door.
On seeing [redacted] through the window the accused said, "Hey bro, don't come outside I've got a knife." [redacted] closed the curtains and informed his partner of the accused's presence and his concerns the accused may be armed with a knife.
Moments later [redacted] exited his residence to see if the accused was still near the house. [redacted] heard the accused yelling from his front yard, "Hey bro, hey bro you want to fight?" [redacted] didn't reply and was informed by his partner the police had been contacted. [redacted] returned to his residence.
The attending police spoke with [redacted] and were informed of the accused's movements and comments regarding having custody of a knife. Police then spoke with the accused at his residence and were a witness to the erratic behaviour of the accused. The accused informed police he did not have custody of a knife and he approached [redacted] in order to request [redacted]’s assistance with moving his furniture.
During this conversation the accused said to police, " I want to hurt someone, I have issues, I need help and I'm depressed. I want help cause I feel like hurting someone. ... I can't cope with not seeing my grand daughter. I don't know what to do. Life is killing me."
…
OFFENCE: 2 , 3 & 4 Common Assault: About 10.40am Monday 18th of September 2017 the accused saw 67 year old, [redacted], walking along Eudon Street with his daughter and grand daughter. The accused stood at his front door and called out to "where is the rake?" [redacted] told the accused he didn't have a rake and kept walking. The accused called out to [redacted]’s daughter, "Who the fuck are you, slut?" The accused then walked over and stood directly below the front verandah of number [redacted]. By this time [redacted] and his daughter were on the front verandah of their residence. [redacted] had exited onto the verandah holding his 5 months old daughter when he heard and saw the accused near his house. The accused spat towards [redacted] as he held the baby. The baby was passed to [redacted] and at this time an amount of dirt was thrown by the accused over the brick veranda fence onto [redacted], his daughter and the baby.
The accused then, spat at and commenced to walk backwards across [redacted]’s lawn with closed fists saying, "come on, come on. You want to fight" [redacted] stood at the bottom of his verandah and watched the accused pick up a cricket bat from his front lawn then enter his house.
[redacted] was then approached by the accused adult son, who accused [redacted] of approaching his father with an axe.
…
The accused exited the house seconds later and called to [redacted], "You're a white cunt, Noongar (meaning a black Aboriginal). The accused picked up a tennis and cricket ball and threw them towards [redacted].
OFFENCE 5: Wilful and Obscene Exposure; The accused then turned and pulled his pants down to his ankles and exposed his buttocks. Other occupants of number [redacted] saw the buttocks and penis of the accused. Passing motorists along Richmond Road were within proximity to witness the wilful and obscene exposure of the accused too.
…
Police spoke with [redacted] before approaching the residence of the accused. The accused was extremely hostile towards the 4 attending police officers. His violent behaviour escalated to the point where he moved towards police with raised fists, yelling abuse.
The accused was subdued and placed under arrest.
The other offences for which the Applicant was sentenced on 14 June 2018 (and re-sentenced on 4 February 2019), arose out of a further incident on 18 September 2018 which was described in a New South Wales Police Facts Sheet[40] as follows:
[40] R1/70.
About 11:00am on Monday the 18th September 2017 police attended [deleted], in response to a neighbour dispute between the Accused and his neighbour.
At the location police were speaking with the Accused who was standing at the top of the set of stairs at the front porch of his address…The Accused was highly irate, he was breathing heavily and sweating whilst swearing at police. The Accused pointed individually at each of the four police officers at the scene stating, "I will take on you. I will take on you. I will take on you and I will take on you." Senior Constable [redacted] produced his official police identification and said, "My name is Senior Constable [redacted] from [omitted] Police, what's your name. The Accused replied, "Fuck off, get it yourself."
OFFENCE 1: Assault police officer in execution of duty.
Police told the Accused to calm down, however the Accused stated, "Want to have a go, I'll fucking kill you." The Accused clenched both his fists and stepped towards Senior Constable [redacted]. The Accused clenched his jaw and pulled back his right fist and whilst within one metre of Senior Constable [redacted] twisting his torso motioning to punch Senior Constable [redacted]. Senior Constable [redacted] stepped back away from the Accused to create distance. The Accused stopped his fist mid way without following through with the punch. With the Actions of the Accused Senior Constable [redacted] believed the Accused was going to punch him.
Senior Constable [redacted] said, "You are now under arrest." Senior Constable [redacted] attempted to grab hold of the Accused's arm, however, the Accused stepped backwards up the set of stairs and pulled his arm away. The Accused stood at the top of the stairs and said, "Fuck off, I will fucking kill you." Police concerned further physical altercation was likely deployed one second burst of Oleoresin Capsicum spray into the face of the Accused. The Accused backed up into the front door of the premises whilst stating, "Fuck you cunt, I'll fucking kill you." Police followed the Accused inside. Police attempted to grab hold of the Accused's arms, however the Accused pulled his arms away from police again.
OFFENCE 2 and 3: Assault police officer in execution of duty/ Resist arrest.
Police managed to grab hold of the Accused arms inside the house. Whilst holding the Accused's arms he thrashed his head backwards striking Constable [redacted] in the right side of his jaw. Police wrestled with the Accused, forcing him to the ground inside the front door of the premises. The Accused continued to pull his arms away from police on the floor and thrash his feet. Police pulled the Accused out the front door of the premises and with the assistance of further police at the scene were able to put handcuffs on the Accused. Police or the Accused did not sustain any visible injuries.
OFFENCE 4: Destroy or damage property.
The Accused was conveyed to [omitted] police Station and introduced to the Custody Manager. The Accused was placed into the cell within the custody area. Whilst in the cell the Accused turned his head to the left and made a halking sound in his throat and spat on the wall of the cell. The Accused remained aggressive towards police at the station and continued to bang on the door of the cell. Given the Accused's behaviour it was not suitable to interview him in relation to the incident.
The Applicant was cross-examined about the offences committed in September 2017. The Applicant had conceded that the accounts set out in the Facts Sheets were accurate.[41] Asked whether he had been smoking cannabis before the offences, the Applicant’s evidence was that he had not, but that he was at that time “struggling with [his] daughter”.[42] It was then pointed out by counsel that the Applicant had told Ms McAuliffe in January 2019 that he had told her that he had “smoked large amounts of cannabis” leading up to this offending. The Applicant’s evidence was that he could not remember telling Ms McAuliffe that.[43]
[41] Transcript at 15, 16 and 38.
[42] Transcript at 38.
[43] Transcript at 39.
In assessing the seriousness of the Applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction 99 relevant in this case, I find that:
(a)Paragraph 8.1.1(1)(a) - the Applicant has been convicted of crimes of violence and of a sexual nature. He has also been convicted of family violence offences and has conceded further conduct which would constitute family violence. I deal with that in more detail under the family violence consideration below. These offences and conduct are to be viewed very seriously.
(b)Paragraph 8.1.1(1)(b)(iii) - the Applicant has two convictions for assault/resist police in execution of duty and one count of resist/hinder police in execution of duty. These offences are to be considered as serious.
(c)Paragraph 8.1.1(1)(c) - the sentences imposed by the courts (ignoring the sentences imposed for the male assaults female, assault domestic violence and breaches of protection orders which would come under subparas (a)(ii) and (a)(iii)), while individually at the lower end of the possible sentences for those offences, were still significant sentences reflecting the Courts’ assessments of the seriousness of the offending.
(d)
Paragraph 8.1.1(1)(d) – the Applicant has been convicted of 36 offences over the period from January 1986 to July 2021, with the last of the offences being committed in November 2018. The Applicant’s offending has been frequent, albeit with one relatively significant crime-free period from 2005 to 2017 (see [40(b)] above).

The Applicant himself concedes (see [40(c)] above), rightly, that with his last conviction, that being for sexual intercourse without consent, there is a trend of increasing seriousness in his offending.
(e)Paragraph 8.1.1(1)(e) - The cumulative effect of the Applicant’s frequent offending and the repetition of the same sorts of offences, with a significant increase in the seriousness of the offending, indicates that the Applicant is unwilling, or unable, to comply with the law. The Applicant’s repeated breaches of restraining orders, breaches of bonds and terms of suspended sentences and his re-offending after previous terms of incarceration also add to the conclusion that the Applicant is unwilling, or unable, to learn from previous mistakes and to comply with the law.
The Applicant concedes, again rightly, that his record is very serious (see [40(a)] above and para 3 Applicant’s closing submissions). I am satisfied that that is the case.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
Paragraph 8.1.2 of Direction 99 relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the non citizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of harm to individuals or the Australian community (8.1.2(2)(a))
The Applicant concedes that if he were to reoffend in a similar manner (assaults, sexual intercourse without consent, stalk/intimidate etc.) the nature of harm to individuals and/or the Australian community could be deemed as very serious (see [40(f)] above and para 4 Applicant’s closing submissions)
The nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or serious conduct of the type that he has in the past is self-evident and serious. An insight into the type of harm caused by the Applicant’s sex offending was provided by Norton J in his sentencing remarks wherein, referring to the victim’s impact statement, his Honour noted:
The Victim’s Impact Statement was read to the Court… The victim acknowledged that it had been two and a half years since these events but the aftermath has been messy and she is struggling to accept what had happened. She feels sadness and anger, fear and shame about what she was put through, and what she endured was horrible. She acknowledges that she has received some justice for what he did in the verdict and indicates no sentence will be enough compared to the deep scar left by his behaviour.
She states she cries in her sleep, gets night terrors, and at one point was self-harming and went backwards in her drug addiction recovery. She states her anxiety has got worse and she has been diagnosed with PTSD.
While the above statement relates to the harm caused to the particular victim of the Applicant’s sexual assault, common human experience tells us that the harm suffered by that victim is of the type that is likely to be suffered by a future victim if the Applicant were to commit the same sort of sexual assault.
The harm, physical, psychological and financial that can be caused by assaults of the type of which the Applicant has been convicted are obvious. Similarly, the harm that can be caused by driving a motor vehicle while under the influence of alcohol or drugs is serious. In that regard, I refer to Colvin J’s comments at [43] and [44] of JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs:[44]
Further there are many instances, and drink-driving is an example, where the risk of serious consequences is the reason why the lesser offence exists. In effect, the purpose of the lesser offence is to discourage conduct which, in some but not all instances, will have serious consequences. …
[44] [2021] FCA 762.
The nature of the harm to individuals, or the Australian community more generally, if the Applicant were to offend as he has in the past is serious. The Applicant himself concedes that the nature of harm to individuals and/or the Australian community could be deemed as very serious (see [40(f)] above).
The likelihood of the non-citizen engaging in further criminal or other serious conduct (8.1.2(2)(b))

I do not accept the Applicant’s contention that I should only consider the most recent psychological assessment, that being psychologist Mr Quan’s report dated 1 March 2023. Mr Quan did not give evidence at the hearing so we are reliant on his “Case Note Report”.[45] Mr Quan’s report identified that, in making his assessment utilising the Stable007 tool to “identify dynamic risk factors and provide recommendations for the SOSA”,[46] he had relied on various sources of information, including “Offender integrated Management System (OIMS) Case Notes”, “Psychiatrist report - completed by Dr Richard Furst - dated 23 June 2021”, “Consultation with CCO La'Ulu” and “Intake Assessment Form (IAF) - completed by CCO Stephanee Bryant”.
[45] R3/175-7.
[46] R3/175.
Mr Quan did not dispute the findings in the earlier reports and assessments, nor did he suggest that his report superseded or replaced any such reports or assessments. On the contrary, Mr Quan specifically referred to the earlier reports including the risk assessment of sexual reoffending undertaken by Dr Orreal (BPsych(Hons), PhD) in her report dated 24 June 2021. Various earlier reports and assessments, including those of Dr Orreal[47] were included in the Case Notes to which Mr Quan said that he had reference. Dr Orreal’s report dated 24 June 2021 was headed “Case note for sentencing assessment report” and stated its purpose to be “to assist in the prediction of sexual recidivism and to make comment on Mr. Williams's treatment needs, risk considerations, and suitability for Sex Offender Programs within Corrective Service NSW (CSNSW)”[48] Dr Orreal applied the Static-99R actuarial risk tool but noted that that limited her “ability to comprehensively assess Mr. Williams's dynamic risk”. She did, however, as noted by the Minister, take account of the dynamic factors apparent from the available documents and the case notes available to her and included a detailed analysis addressing the relevant dynamic factors in her report.[49]
[47] R3/119-23.
[48] R3/119.
[49] R3/121.
Relevantly, Dr Orreal made the following observations and assessments:[50]
Mr. Williams has reported having cannabis dependency since 1986 (smoking "bongs morning, afternoon and night" if he can afford it; OIMS Case Note dated 17/01/2019). He commenced using cannabis recreationally at 16 years of age with increased frequency after his wif's death ("Pot has helped me through some of the toughest times in my life"; OIMS Case Note dated 18/05/2020). He has previously engaged in drug and alcohol treatment at the Doonside Community Health Centre in 2018 and claimed abstinence since incarceration; however, he has indicated on several occasions that he does not wish to stop cannabis use, but merely cut down as he is reliant on it as a coping strategy for stress and to sleep. Despite acknowledging exposure to alcohol at a young age, binge drinking when alcohol is available, and being drunk at the time of the latest offences, Mr. Williams denied any history of, or current problems with, alcohol abuse.
[50] R3/120.
Under the heading “Assessment of Risk”, Dr Orreal made the following assessments:[51]
[51] R3/121.
Actuarial Risk Assessment
Mr. Williams's risk of sexual reoffending was assessed on 15th June 2021 using the Static-99R (2016 Coding Rules: Phenix, Fernandez, Harris, Helmus, Hanson, & Thornton, 2016). The Static-99R is an instrument designed to assist in the prediction of sexual recidivism for individuals charged with, or convicted of, a sexual offence. Comprising 10 items which, together, have moderate predictive accuracy, the Static 99-R estimates future risk based on several risk factors present in any one individual. Total scores (obtained by summing all the items) range from -3 to 12.
Mr. Williams's total score on the Static 99R was 5 which places him in Level IVa (Above Average) risk for being charged with, or convicted of, another sexual offence…. On average, offenders with this score have a sexual recidivism rate that is 2.7 times the rate of 'average' sexual offenders. Within routine correctional samples, the 5-year sexual recidivism rate is between 14% and 17%;
…
Dynamic Factors for Consideration
…
Importantly, Mr. Williams appears to hold an attitude of hostility toward women given his history of domestic violence and derogatory statements such as "Who the fuck are you, slut?" when addressing a neighbour's daughter (p. 3 New South Wales Police Facts Sheet for Charge H64999125; EDRMS record OID20/411578). In my interview with Mr. Williams on 21st May 2021, he minimised his offence of Sexual Intercourse Without Consent denying the offence was non-consensual ("There was lots of flirting") and rationalising his behaviour by making comment on the victim's supposed promiscuity ("She was like that the night before; she was doing it with everyone") and motivation toward reporting ("She just did it to get out of trouble").
…
Private Clinical Psychologist Borenstein (20/05/2018) noted that Mr. Williams is prone to impulsiveness, which he acknowledges, and is evidenced by his difficulty with money, frequent changes in accommodation, and previous gambling disorder in which he "gambled our house away".
He also tends toward negative emotionality; as noted by Mr. Borenstein (20/05/2018), "Mr. Williams's default position against symptoms of depressed mood and anxiety is to become angry, which dates back to childhood and adolescence". Mr. Williams has acknowledged that he "sometimes lashes out and can't control his anger" (OIMS Case Note dated 28/05/2019). His criminal history includes several assault and resist arrest offences.
In addition, Mr. Borenstein noted (20/05/2018), "Mr. Williams's history indicates a propensity towards oppositional defiance and non-compliance". Several OIMS Case Notes indicate non-compliance with Community Corrections Orders (such as not reporting) and failure to engage with mental health treatment. Mr. Williams has acknowledged that he "doesn't like people telling him what to do" and has appeared unwilling to engage with internal treatment programs for which he is eligible (OIMS Case Note dated 18/05/2020).
Mr Quan in his report made 1 March 2023 made the following observations and assessments:[52]
[52] R3 pp 175-7
Mr Williams denied the version of events outlined in the police facts. He recounted that the victim had consented to his sexual encounter. However, during his interview with the author on 07 February 2023, he acknowledged that the victim was heavily intoxicated and was unable to provide consent…. While in Custody, he did not complete any therapeutic programs.
…
Mr Williams has previously been incarcerated for some of the offences listed above. During these periods of incarceration, he did not complete any therapeutic programs. He recalled seeing a psychiatrist while in custody due to difficulties with mood regulation and sleep. He stated being diagnosed with delusional features. A history of non-compliance with his psychotropic medication is noted. At present, Mr Williams is prescribed an anti-psychotic administered orally. He reported being compliant with this dose.
A problematic history with alcohol consumption, cannabis use, and poker machine gambling is noted for Mr Williams.
…
Mr Williams' risk of sexual reoffending was assessed at pre-sentence by Ms Tammy Orreal (CSNSW Psychologist) on 24 June 2021 using the Static99r tool. He was found to be in the Above Average Risk range for sexual reoffending.
To inform the SOSA, Mr Williams was interviewed using the Stable2007 tool. He was found to be in the Moderate Risk range indicating a moderate density of dynamic risk.
…
Based on the available information, initial case management should focus upon Mr Williams? Engagement with therapeutic intervention programs to address his problematic history with alcohol consumption, drug use and gambling.
The difference in the assessments of Dr Orreal and Mr Quan as to the risk of the Applicant offending are not significant. They use different tools to come to slightly different assessments as to the risk of the Applicant offending. I agree with the Minister’s analysis of the two assessments in his closing submissions set out in [49(c)] above. Mr Quan assessed the Applicant’s risk of reoffending as ‘Moderate Risk range indicating a moderate density of dynamic risk’ using the Stable2007 tool while the Applicant’s total score on the Static 99R in June 2021 applied by Dr Orreal placed the Applicant at above average risk for being charged with, or convicted of, another sexual offence. I note that both the Stable2007 and the Static 99R are tools used in assessing the likelihood of sex offenders re-offending.
While acknowledging the inexactness of adjectival ranges to describe possible human behaviour, I find that the Applicant is a moderate to above average risk of sexually offending as he has in the past. I am concerned by certain aspects of the Applicant’s extensive criminal record and his lack of insight and understanding of his offending and the causes or drivers of his offending behaviour. Even in his evidence at the hearing the Applicant still failed to accept, in any real sense, responsibility and culpability for his sexual offence:[53]
[53] Transcript pp 21-2.
COUNSEL:    Mr Williams, have you previously reported that the victim was    enjoying it?
APPLICANT: Yes, I do, ma’am.
COUNSEL:     Do you still hold that belief?
APPLICANT: I do, ma’am.
COUNSEL:     You have reported in the past that you were not guilty, is that correct,                    of the sexual intercourse without consent offence?
APPLICANT: Yes, ma’am.
COUNSEL:     Do you still hold that belief that you’re not guilty of it?
APPLICANT: I do, ma’am.
COUNSEL:     Is one of the reasons that you don’t consider that you need to attend    a sex offender program because you are not guilty?
APPLICANT: I’ve definitely believe I’m not guilty, ma’am, and - - -
COUNSEL:     That’s why you don’t believe you need to attend any sexual offending                    program?
APPLICANT: Because I know I’m not that kind of a person, ma’am.
Not only is this lack of understanding of what he did an obvious concern, but it is also hard to reconcile with Mr Quan’s report dated 1 March 2023 (see [68] above) that during his interview on 7 February 2023, the Applicant “acknowledged that the victim was heavily intoxicated and was unable to provide consent…”. Notwithstanding that apparent admission made to Mr Quan only a matter of months ago, the Applicant was still maintaining at the hearing that, not only had the victim consented to the sexual act but was enjoying it.

That clearly does not augur well for successful rehabilitation.
In relation to the Applicant’s other offending, there was not the same level of expert review and opinion on the likelihood of the Applicant re-offending as there was in relation to his sexual offending. Both Dr Orreal and Mr Quan referred in their reports to the report of clinical psychologist Sam Borenstein dated 20 May 2018.[54] Mr Borenstein did not make an assessment of the likelihood of the Applicant re-offending. It appears that his report was prepared in respect of the pending court appearance on the charges of which the Applicant was convicted in the Blacktown Local Court on 14 June 2018. Mr Borenstein’s report laid out an extensive treatment plan for the Applicant’s psychiatric condition. Mr Borenstein noted that the Applicant:[55]
…requires community and social support. In addition to the pharmacotherapy prescribed by psychiatrist, Mr Williams should participate in psychological treatment with an emphasis on evidenced (sic) based cognitive behaviour therapy (CBT), to assist in the management of an affect dysregulation, particularly with respect to anger management.
[54] R2/206-15.
[55] R2/213.
It is clear that the Applicant has long-term serious mental health issues. These are summarised in the New South Wales Government Justice, Health and Forensic Mental Health Network letter dated 27 July 2022[56] in which Dr Gaudry said:
He has a history of mental health issues which have contributed to his offending. He was seeing health professionals for this prior to him coming into custody but I do not believe he was formally diagnosed or treated properly.
He has been assessed by a number of psychiatrists and mental health practitioners while in custody and had [been] subsequently diagnosed with schizophrenia. He has been medicated with mood stabilizing medications and antipsychotic medications and has been compliant with his treatment while in custody.
[56] A2.
The Applicant was asked about his psychiatric conditions at the hearing:[57]
[57] Transcript at 47.
COUNSEL: Have you also been diagnosed with depression in the past, Mr Williams?
APPLICANT: Delusional, ma’am, and I don’t know why I get delusional. They told me because my mum had it.
COUNSEL: And you’ve also been diagnosed with a drug induced psychosis. Is that correct?
APPLICANT: It’s not drug induced, ma’am. It was just psychosis. I was pretty – I almost died, ma’am, at one of those psychosis.
COUNSEL: Are you on any medication at present, Mr Williams?
APPLICANT: Yes, ma’am.
COUNSEL: And what medication are you on?
APPLICANT: Mood stabiliser and things to help me sleep.
COUNSEL: Is that sodium valproate and duloxetine?
APPLICANT: Yes, ma’am. Yes. And Zyprexa.
COUNSEL: Zyprexa?
APPLICANT: That’s correct. And now I’ve got another one for my blood pressure and cholesterol, so I’ve got other medication going on.
COUNSEL: Now, Mr Williams, in the past you have been prescribed medication for your mental health condition?
APPLICANT: Yes, ma’am. Yes, ma’am.
COUNSEL: Yes. And in the past you have not been complaint with that medication 25 recommendations or those prescriptions?
APPLICANT: I don’t like it, ma’am.
COUNSEL: You don’t like the medications?
APPLICANT: Makes me drowsy, make me – knocks me out. But I know I’ve got to take it.
COUNSEL: Mr Williams, in the past when you’ve been not compliant with medication you’ve preferred to rely on cannabis. Is that correct?
APPLICANT: Yes. I’ve had a smoking stint to knock me out, ma’am.
COUNSEL: And, Mr Williams, is it correct that you’ve reported in the past that you would love to be medication-free?
APPLICANT: I’d love to be. I wish I can get off it.
COUNSEL: Yes. And is that your current - - -?
APPLICANT: No. I’m on it now.
COUNSEL: No. Is that your current view as well that you would love to be medication- free?
APPLICANT: One day maybe, ma’am, once I give my head – or might – when I be all right. Hope – if it doesn’t happen it doesn’t happen. I’ve just seen the damage it did to my partner and my daughters.
COUNSEL: Mr Williams, in the past cognitive behaviour therapy has been…
DEPUTY PRESIDENT: Sorry. Just – could you clarify that? When you say you’ve seen the damage that it’s done in the past - - -?
APPLICANT: Yes. My daughters are on it now and - - -
DEPUTY PRESDENT: So, when you say the damage, you’re talking about the damage caused by the medications, not the mental condition?
APPLICANT: Side effects. Side effects, yes. Lot of side effects. Sometimes I don’t even know my daughters – her, you know what I mean. I’m talking to something that’s not even real when she’s zonked out, like. I wish she was just back to how she used to be before her mum died.
COUNSEL: Mr Williams, you’ve been recommended cognitive behaviour therapy?
APPLICANT: I’m not too sure what that is, ma’am.
COUNSEL: You would agree that you haven’t engaged in cognitive behaviour therapy?
APPLICANT: I don’t know it is---I don’t know what cognitive means.
The Applicant’s evidence at the hearing was that he had not undertaken any programs, other than medication, for his mental health conditions.[58]
[58] Transcript at 48.
The evidence relating to the other possible causes of the Applicant’s offending behaviour, drugs, in particular marijuana, and alcohol, was inconclusive. There is repeated reference in the medical notes and in the police reports to the Applicant having consumed alcohol before his offending or being under the influence of alcohol and or drugs at the time of his offending. The Applicant’s evidence, however, was that, while he had some marijuana before he committed the sexual offence in November 2018, he had not had “much”.[59]

In relation to treatment that the Applicant has had in respect of his drug use, there was evidence that the Applicant attended two sessions at the Doonside Community Health Care[60] in May 2018. His evidence was, however, that he did not undertake any drug or alcohol course or program while in prison or detention.[61] While that may be as a result of the Applicant’s assessment for suitability for such programs and the lack of available programs, the fact is that he has not undertaken any programs specifically targeting drug and alcohol use.
[59] Transcript at 39-40.
[60] R2/202.
[61] Transcript at 44.
The evidence showed that the Applicant also attended Cumberland Hospital.

The Applicant’s evidence was that those attendances were related to his having tested positive for marijuana at work which required the Applicant to attend the hospital to “make sure that [he] was drug-free”.[62] It was not for treatment.
[62] Transcript at 45.
At various times the Applicant is recorded as having advised that he does not intend stopping using marijuana, but rather that he intended cutting down on his marijuana use. His evidence at the hearing on this issue was unclear:
COUNSEL:     You’ve also indicated in the past that you don’t want to stop cannabis,                   you just want to cut down. Is that correct?
APPLICANT: Yes, ma’am.
COUNSEL:     Mr Williams, is that your present view?
APPLICANT: I’m going to cut back, ma’am, big time.
COUNSEL:     You’re going to cut back?
APPLICANT: I’m going to – I’m going to stop, I’m absolutely going to stop it. I need                     to be around people that can give me the strength to.
The above exchange does not fill me with confidence as to the Applicant stopping using marijuana.
The issues of greatest concern to me in assessing the likelihood of the Applicant reoffending, are:
·The Applicant’s ambivalent attitude towards his drug and alcohol use.
·His not having undertaken, or certainly completed, any formalised treatment program in respect of drugs and alcohol;
·The Applicant’s long, serious criminal record and the fact that he has re-offended notwithstanding being subject to bail conditions, good behaviour bonds and suspended sentences.
·That notwithstanding his serious mental health conditions and the clear need for medication and treatment, the Applicant has not been treated and has in the past been non-compliant with medication regimes (most recently when temporarily released from immigration detention between January and March 2023)
·The fact that, notwithstanding that drug and alcohol use preceded his most serious offending, the Applicant still does not acknowledge that his drug and alcohol use is an issue.
·The Applicant’s continued denial, even at the hearing, of responsibility for the most serious of his offences, the sexual intercourse without consent.
·The Applicant’s family is unlikely to be a protective factor as they have not proven in the past to be such and there is no evidence to indicate that they are likely to be any more of a protective or stabilising factor in the future.
I assess the Applicant to be a medium to high risk of reoffending.
The harm that would be caused should the Applicant engage in the offending behaviour that he has in the past is very serious (see [63] above). This, coupled with my assessment of the risk of the Applicant re-offending being medium to high causes me to consider that this first primary consideration, the protection of the Australian community, weighs heavily against revocation of the cancellation of the Applicant’s visa.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
Paragraph 8.2 of Direction 99 provides:
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3) In considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant:
a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non citizen's migration status, should the non- citizen engage in further acts of family violence.

The application of the “norm” in para 8.5(1) of Direction 99 means that this primary consideration weighs against revocation of the cancellation of the Applicant’s visa. I must, however, determine the weight that should be given to this consideration. Some guidance in this regard is provided by para 8.5(2) of Direction 99 (see [127] above), which provides that the Australian community expects that the Australian Government can, and should, refuse entry to non-citizens if they raise serious character concerns through conduct, in Australia or elsewhere, of the kind listed is sub-paras 8.5(2)(a)–(f) of Direction 99. The Applicant’s acts of family violence come within the category of conduct described in para 8.5(2)(a).
The nature of the Applicant’s offending, in particular the intercourse without consent and the family violence (although not recent), the number of offences that the Applicant has committed and my assessment of the Applicant being a medium to high risk of reoffending cause me to give this consideration moderate weight.
OTHER CONSIDERATIONS
Paragraph 9 of Direction 99 sets out the “Other considerations” to be taken into account as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) Legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
Legal consequences of decision under section 501 or 501CA (para 9.1)
The Applicant made no submissions on this consideration. The Minister’s SFIC contended that this consideration is not relevant and there is no evidence to suggest this consideration is enlivened. Accordingly, according to the Minister, this consideration neither weighs for nor against revocation.
I agree with the Minister’s contention.
Extent of impediments if removed (para 9.2)
Paragraph 9.2 of Direction 99 provides:
(1) Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
The Applicant’s SFIC contended that the Applicant
“would face emotional hardship upon being returned to New Zealand due to his separation from his children, father, and siblings and other extended family members. Furthermore, he would suffer financial and practical due to lack of social support and employment opportunities in New Zealand”.
The exact same submission is made in the Applicant’s closing submissions.
The Minster’s SFIC made the following submissions:
(a)The Applicant is aged 58 and has not disclosed any medical or psychological conditions. While the material suggests that the Applicant is in fact impacted by certain psychological conditions, he would have access to health care commensurate to that available to him in Australia and his conditions clearly do not prevent him from working – the Applicant having indicated to the Court that he planned to return to work on garbage trucks.
(b)As a citizen of New Zealand, he has the same access to social, medical and economic support as other citizens. As a broad proposition, in the absence of any contrary evidence, the Tribunal is entitled to take into account that the Applicant would have access to government benefits similar to those available to him in Australia.[96]
(c)The Applicant spent the first 22 years of his life in New Zealand and returned to live in New Zealand from the age of 29 to 42.
(d)In his closing submissions, the Minister contended that, contrary to claims previously made by the Applicant including in these proceedings, the Applicant does have family in New Zealand being four uncles or aunts and six cousins.[97]
[96] Citing Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296.
[97] R1/97; see also [49(b)(i)] above.
The relevant consideration is whether, taking into account the considerations identified in sub-paras 9.2(1)(a), (b) and (c), the Applicant would face an impediment (or impediments) in establishing and maintaining basic living standards in the context of the basic living standards that other citizens of New Zealand enjoy. In relation to what social services, medical and economic support the Applicant would be entitled to, New Zealand is a country which is broadly comparable to Australia in terms of language, culture and access to social services.[98]
[98] See Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [44].
The Applicant has no disclosed physical impediments to his establishing himself in New Zealand and would appear to have transferrable skills (truck driving) which would enable him to find employment to support himself. It is also the case that he does have family in New Zealand and that he has, relatively recently (from 1994 to 2007) lived in New Zealand. It is clearly a country with which he is familiar, there are no language or cultural barriers and there are no obvious physical impediments to the Applicant once again establishing himself in New Zealand.
I accept that the Applicant would face emotional hardship as a result of his separation from his family in Australia. I am also conscious that the Applicant has a long history of mental illness, for which he has received some treatment (extent unknown) and for which he takes various medications. The Applicant’s evidence at the hearing was:
COUNSEL:     And you’ve also been diagnosed with a drug induced psychosis. Is    that correct?
APPLICANT: It’s not drug induced, ma’am. It was just psychosis. I was pretty – I    almost died, ma’am, at one of those psychosis [sic].
COUNSEL:     You would accept, though, that the diagnosis was a drug induced    psychosis?
APPLICANT: I’m not sure, ma’am. I don’t know that.
COUNSEL:     Are you on any medication at present, Mr Williams?
APPLICANT: Yes, ma’am.
COUNSEL:     And what medication are you on?
APPLICANT: Mood stabiliser and things to help me sleep.
COUNSEL:     Is that sodium valproate and duloxetine?
APPLICANT: Yes, ma’am. Yes. And Zyprexa.
COUNSEL:     Zyprexa?
APPLICANT: That’s correct. And now I’ve got another one for my blood pressure    and cholesterol, so I’ve got other medication going on.
I accept that the Applicant’s mental health conditions and his issues with drugs and alcohol may be an impediment to the Applicant establishing and maintaining himself in New Zealand. I also accept that the Applicant will face some emotional stress resulting from separation from his family. I am, however, satisfied that the Applicant has a good work ethic, is physically capable and has relevant skills to secure employment if he were to be returned to New Zealand. I am satisfied that, after some initial emotional hurdles, he would be able to establish himself and maintain a basic living standard.
I find that because of the emotional stress that the Applicant will suffer by reason of his separation from his family in Australia and the possible impediment of his mental health, drug and alcohol issues, this consideration weighs in favour of revoking the cancellation of the Applicant’s visa. I find that only minor weight should be given to it.
Impact on victims (para 9.3) and impact on Australian business interests (para 9.4)
Both parties contended that these considerations were not relevant to the present case.

I agree.
THE WEIGHING EXERCISE
Direction 99 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 99 sets out the way in which the relevant considerations are to be taken into account (see [30] above).
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under earlier Ministerial Directions issued under s 499 of the Act (see [26] above), the same considerations apply to the exercise required by Direction 99 which is materially in the same terms to those earlier Ministerial Directions. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[99] and the Full Court judgment in Minister for Home Affairs v HSKJ.[100]
[99] (2018] FCA 594.
[100] (2018] FCAFC 217; [2018] 266 FCR 591.
Colvin J’s judgment in Suleiman was considered by Wigney J in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affair.[101] At [21], Wigney J cited [23] of Colvin J’s judgment which was as follows:
The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non‑refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
(Emphasis omitted.)
[101] [2021] FCA 775.
Wigney J then observed at [22]:
It is the last sentence of this paragraph of Suleiman which has given rise to the issue in this case. That issue will be discussed in more detail later. It suffices at this point to note that, with the greatest respect to Colvin J, this analysis of paragraph 8 of the relevant direction tends to overcomplicate or over intellectualise the issue. More significantly, it may lead decision-makers into error. Paragraph 8 of Direction no. 79 is expressed in simple terms. Relevantly, decision-makers must take into account the primary and other considerations that are relevant to the individual case and, when it comes to weighing up the relevant considerations, have regard to three relevant principles: first, both primary and other considerations may weigh in favour of, or against, whether or not to revoke a cancellation of a visa; second, primary conditions should generally be given greater weight than other considerations; and third, one or more primary considerations may outweigh other considerations. It is difficult to see why any further elaboration of those simple principles or propositions is necessary or warranted.
(Emphasis omitted.)
I adopt the approach directed by the above cases.
I find that the first primary consideration, the protection of the Australian community, weighs heavily against revocation of the cancellation of the Applicant’s visa. (see [82] above)
I find that the second primary consideration, family violence committed by the Applicant, weighs against the revocation of the cancellation of the Applicant’s visa, but that only moderate weight should be given to this consideration. (see [90] above)
The third primary consideration, the strength, nature and duration of the Applicant’s ties to Australia, weighs in favour of revocation of the decision to cancel the Applicant’s visa and I find that moderate weight should be given to it. (see [117] above)
The fourth primary consideration, the best interests of minor children in Australia affected by the decision, weighs in favour of revocation of the decision to cancel the Applicant’s visa but I find that only minor weight should be given to this consideration. (see [126] above)
I find that the fifth primary consideration, the expectations of the Australian community, weighs against revocation of the decision to cancel the Applicant’s visa and that moderate weight should be given to it. (see [140] above)
The only “other consideration” on which the Applicant made submissions was the extent of impediments if removed. For the reasons set out in [148-52] above, I find that this consideration does weigh in favour of revoking the cancellation of the Applicant’s visa, but that only minor weight should be given to it. I agree with the parties that the other three “other considerations” identified in para 9(1) of Direction 99 are not relevant.
I am mindful that para 7(2) of Direction 99 states that primary considerations should generally be given greater weight than the other considerations (see [30] above). Nothing has been presented which would indicate that that general principle should not apply in the present case. Having weighed the considerations in favour of revoking the decision to cancel that Applicant’s visa and those against revoking the decision to cancel the Applicant’s visa, I find that the considerations against revoking the decision to cancel the Applicant’s visa, in particular the first primary consideration, outweigh those weighing in favour of the revocation of the cancellation of the visa. Accordingly, I find that there is not another reason why the original decision should be revoked.
DECISION
The decision of the delegate of the Minister dated 10 May 2023 not to revoke the cancellation of the Applicant’s Special Category (Class TY) (Subclass 444) visa is affirmed.

I certify that the preceding 166 (one hundred and sixty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

.................[Sgd].....................................................
Associate
Dated: 31 July 2023

Date of hearing: 11-12 July 2023

Solicitors for the Applicant: Ms M Mamarot, South West Migration and Legal

Solicitors for the Respondent: Ms D Jones-Bolla, Sparke Helmore
ANNEXURE A

Offence date

Date of conviction

Reference

Offence

Result

20.01.1986

NZ

Possess cannabis plant material

FINE: $250

04.08.1987

Possess offensive implement

Fine $200 or 4 days hard labour

04.08.1987

Offensive behaviour (swearing)

Fine $300 or 6 days hard labour

22.06.1989

Administer hemp

Fine: $500

22.06.1989

Possess implement administer hemp (bong)

Fine: $75

20.04.1990

Use conveyance without consent (FIW)

Fine $300

02.10.1990

Low PCA

Fine: $300

Licence disqualification 4 months

01.11.1990

Resist arrest (2 counts)

Fine: $250 on each charge

01.11.1990

Off lang

Fine: $250

28.07.1992

Assault (domestic violence)

Fine: $200

GB 6mths not assault or interfere with victim

On 8 December 1994 the applicant departed Australia for 13 years until 10 March 2007 (apart from a short return to Australia between 23 May 1997 and 1 June 1997).

27.07.1996

12.02.1997

NZ

Breath alcohol level over 400Mcgs/litre of breath blood/breath = 602

Convicted and sentenced: disqualification from driving – 12/02/1997 – 6 months

Fine: $400

27.07.1996

12.02.1997

NZ

Drove a motor vehicle in a dangerous manner

Convicted and sentenced: disqualification from driving – 12/02/1997 – 6 months

08.01.1997

25.03.1997

NZ

Breath alcohol level over 400Mcgs/litre of breath blood/breath = 721

Convicted and sentenced: community service – 25/03/1997 – 175 hours / disqualification from driving – 11/08/1997 – 6 months / Final warning

08.10.1997

24.11.1997

NZ

Obstruct / Hinder police

Convicted and discharged

11.07.1997

09.12.1997

NZ

Drove while disqualified

Convicted and sentenced: Non- residential periodic detention – 09/12/1997 – 3 months

11.07.1997

09.12.1997

NZ

Person on a road failed to give name and address on demand

Convicted and discharged

02.09.2001

26.03.2002

NZ

Male assaults female (manually)

Convicted and sentenced: non- residential periodic detention – 26/03/2002 – 3 months / Supervision by community corrections – 26/03/2002 – 6 months / suspended imprisonment – 6 months, suspended for 6 months beginning 26/03/2002, standard release conditions / additional information – I 6m – U/T counselling

02.09.2001

26.03.2002

NZ

Contravenes protection order – No firearm

Convicted and sentenced: non- residential periodic detention – 26/03/2002 – 3 months / Supervision by community corrections – 26/03/2002 – 6 months / suspended imprisonment – 6 months, suspended for 6 months beginning 26/03/2002, standard release conditions / additional information – I 6m – U/T counselling

20.01.2002

26.03.2002

NZ

Male assaults female (manually)

Convicted and sentenced: non- residential periodic detention – 26/03/2002 – 3 months / Supervision by community corrections – 26/03/2002 – 6 months / suspended imprisonment – 6 months, suspended for 6 months beginning 26/03/2002, standard release conditions / additional information – I 6m – U/T counselling

20.01.2002

26.03.2002

NZ

2 X Contravenes protection order – no firearm

For each charge: convicted and sentenced: non-residential periodic detention – 26/03/2002 – 3 months / Supervision by community corrections – 26/03/2002 – 6 months / suspended imprisonment – 6

months, suspended for 6 months beginning 26/03/2002, standard release conditions / additional information – I 6m – U/T counselling

05.03.2003

31.10.2003

NZ

Shoplifts (under

$500)

Convicted and sentenced: to come up for sentence if called upon 31/10/2003 – 6 months

10.11.2004

16.12.2004

NZ

Male assaults female (manually)

Convicted and sentenced: Community Work (SA) – 16/12/2004 – 70 hours

02.03.2005

14.04.2005

NZ

Disorderly behaviour S4 S/offences Act

Convicted and sentenced: to come up for sentence if called upon 14/04/2005 -6 Months

16.07.2017

01.09.2017

H65456671

Driver not disclose identity of driver/passenger as required

Fine: $2000

Licence disqualification 12 months

15.09.2017

14.06.2018

04.02.2019

H64999125

Stalk/intimidate intend fear physical etc harm (personal)-T2

Bond: 18 months

supv NSW prob service for counselling, educational development or drug and alcohol rehabilitation and…

Imprisonment (aggregate): 18

months (18.11.2018 to

17.05.2020) non-parole period:

9 months( 18.11.2018 to

17.08.2019)

18.09.2017

14.06.2018

04.02.2019

H64999125

Common assault – T2

Bond:12 months

Imprisonment (aggregate): 18

months (18.11.2018 to

17.05.2020) non-parole period:

9 months( 18.11.2018 to

17.08.2019)

18.09.2017

14.06.2018

04.02.2019

H64999125

Wilful and obscene exposure in/near public place/school

Bond: 12 months

supv NSW prob service for counselling, educational development or drug and alcohol rehabilitation and…

Imprisonment (aggregate): 18

months (18.11.2018 to

17.05.2020) non-parole period:

9 months( 18.11.2018 to

17.08.2019)

18.09.2017

14.06.2018

04.02.2019

H64999125

Common assault – T2

Bond:12 months

Imprisonment (aggregate): 18

months (18.11.2018 to

17.05.2020) non-parole period: 9 months( 18.11.2018 to

17.08.2019)

18.09.2017

14.06.2018

04.02.2019

H64999125

Common assault – T2

Bond:12 months

Imprisonment (aggregate): 18

months (18.11.2018 to

17.05.2020) non-parole period:

9 months( 18.11.2018 to

17.08.2019)

18.09.2017

14.06.2018

04.02.2019

H65967258

Resist or hinder police officer in the execution of duty

Bond: 2 years

Imprisonment (aggregate): 18

months (18.11.2018 to

17.05.2020) non-parole period:

9 months( 18.11.2018 to

17.08.2019)

18.09.2017

14.06.2018

H65967258

Destroy or damage property <=$2000- T2

Fine: $500

18.09.2017

14.06.2018

04.02.2019

H65967258

Assault police officer in execution of duty w/o abh-T2

Imprisonment: 2 months commencing on 14.06.2018 to 13.08.2018 suspended on enter bond: 2 months

Imprisonment (aggregate): 18

months (18.11.2018 to

17.05.2020) non-parole period:

9 months( 18.11.2018 to

17.08.2019)

18.09.2017

14.06.2018

04.02.2019

H65967258

Assault police officer in execution of duty w/o abh-T2

Imprisonment: 4 months

(14.06.2018 to 13.10.2018)

suspended on enter bond: 4 months

Imprisonment (aggregate): 18

months (18.11.2018 to

17.05.2020) non-parole period:
9 months( 18.11.2018 to

17.08.2019)

09.07.2018

04.02.2019

H68370423

Drive vehicle illicit drug present in blood etc – 1^st off

Conviction with no other penalty

Licence disqualification 4 months (commencing 04.02.2019)

11.11.2018

04.02.2019

H71858784

Destroy or damage property

Imprisonment (aggregate): 18

months (18.11.2018 to

17.05.2020) non-parole period:
9 months( 18.11.2018 to

17.08.2019)

17.11.2018

07.07.2021

H69327517

Sexual intercourse without consent – SI

Imprisonment: 3 years and 9

months (07.05.2020 to

06.02.2024) non-parole period
with conditions: 2 years, 5

months and 7 days (07.05.2020

to 13.10.2022)

[2023] AATA 2284

31 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

Natural Justice

Date of hearing:	11-12 July 2023
Solicitors for the Applicant:	Ms M Mamarot, South West Migration and Legal
Solicitors for the Respondent:	Ms D Jones-Bolla, Sparke Helmore

Offence date	Date of conviction	Reference	Offence	Result
20.01.1986	NZ	Possess cannabis plant material	FINE: $250
04.08.1987	Possess offensive implement	Fine $200 or 4 days hard labour
04.08.1987	Offensive behaviour (swearing)	Fine $300 or 6 days hard labour
22.06.1989	Administer hemp	Fine: $500
22.06.1989	Possess implement administer hemp (bong)	Fine: $75
20.04.1990	Use conveyance without consent (FIW)	Fine $300
02.10.1990	Low PCA	Fine: $300 Licence disqualification 4 months
01.11.1990	Resist arrest (2 counts)	Fine: $250 on each charge
01.11.1990	Off lang	Fine: $250
28.07.1992	Assault (domestic violence)	Fine: $200 GB 6mths not assault or interfere with victim
On 8 December 1994 the applicant departed Australia for 13 years until 10 March 2007 (apart from a short return to Australia between 23 May 1997 and 1 June 1997).
27.07.1996	12.02.1997	NZ	Breath alcohol level over 400Mcgs/litre of breath blood/breath = 602	Convicted and sentenced: disqualification from driving – 12/02/1997 – 6 months Fine: $400
27.07.1996	12.02.1997	NZ	Drove a motor vehicle in a dangerous manner	Convicted and sentenced: disqualification from driving – 12/02/1997 – 6 months
08.01.1997	25.03.1997	NZ	Breath alcohol level over 400Mcgs/litre of breath blood/breath = 721	Convicted and sentenced: community service – 25/03/1997 – 175 hours / disqualification from driving – 11/08/1997 – 6 months / Final warning
08.10.1997	24.11.1997	NZ	Obstruct / Hinder police	Convicted and discharged
11.07.1997	09.12.1997	NZ	Drove while disqualified	Convicted and sentenced: Non- residential periodic detention – 09/12/1997 – 3 months
11.07.1997	09.12.1997	NZ	Person on a road failed to give name and address on demand	Convicted and discharged
02.09.2001	26.03.2002	NZ	Male assaults female (manually)	Convicted and sentenced: non- residential periodic detention – 26/03/2002 – 3 months / Supervision by community corrections – 26/03/2002 – 6 months / suspended imprisonment – 6 months, suspended for 6 months beginning 26/03/2002, standard release conditions / additional information – I 6m – U/T counselling
02.09.2001	26.03.2002	NZ	Contravenes protection order – No firearm	Convicted and sentenced: non- residential periodic detention – 26/03/2002 – 3 months / Supervision by community corrections – 26/03/2002 – 6 months / suspended imprisonment – 6 months, suspended for 6 months beginning 26/03/2002, standard release conditions / additional information – I 6m – U/T counselling
20.01.2002	26.03.2002	NZ	Male assaults female (manually)	Convicted and sentenced: non- residential periodic detention – 26/03/2002 – 3 months / Supervision by community corrections – 26/03/2002 – 6 months / suspended imprisonment – 6 months, suspended for 6 months beginning 26/03/2002, standard release conditions / additional information – I 6m – U/T counselling
20.01.2002	26.03.2002	NZ	2 X Contravenes protection order – no firearm	For each charge: convicted and sentenced: non-residential periodic detention – 26/03/2002 – 3 months / Supervision by community corrections – 26/03/2002 – 6 months / suspended imprisonment – 6 months, suspended for 6 months beginning 26/03/2002, standard release conditions / additional information – I 6m – U/T counselling
05.03.2003	31.10.2003	NZ	Shoplifts (under $500)	Convicted and sentenced: to come up for sentence if called upon 31/10/2003 – 6 months
10.11.2004	16.12.2004	NZ	Male assaults female (manually)	Convicted and sentenced: Community Work (SA) – 16/12/2004 – 70 hours
02.03.2005	14.04.2005	NZ	Disorderly behaviour S4 S/offences Act	Convicted and sentenced: to come up for sentence if called upon 14/04/2005 -6 Months
16.07.2017	01.09.2017	H65456671	Driver not disclose identity of driver/passenger as required	Fine: $2000 Licence disqualification 12 months
15.09.2017	14.06.2018 04.02.2019	H64999125	Stalk/intimidate intend fear physical etc harm (personal)-T2	Bond: 18 months supv NSW prob service for counselling, educational development or drug and alcohol rehabilitation and… Imprisonment (aggregate): 18 months (18.11.2018 to 17.05.2020) non-parole period: 9 months( 18.11.2018 to 17.08.2019)
18.09.2017	14.06.2018 04.02.2019	H64999125	Common assault – T2	Bond:12 months Imprisonment (aggregate): 18 months (18.11.2018 to 17.05.2020) non-parole period: 9 months( 18.11.2018 to 17.08.2019)
18.09.2017	14.06.2018 04.02.2019	H64999125	Wilful and obscene exposure in/near public place/school	Bond: 12 months supv NSW prob service for counselling, educational development or drug and alcohol rehabilitation and… Imprisonment (aggregate): 18 months (18.11.2018 to 17.05.2020) non-parole period: 9 months( 18.11.2018 to 17.08.2019)
18.09.2017	14.06.2018 04.02.2019	H64999125	Common assault – T2	Bond:12 months Imprisonment (aggregate): 18 months (18.11.2018 to 17.05.2020) non-parole period: 9 months( 18.11.2018 to 17.08.2019)
18.09.2017	14.06.2018 04.02.2019	H64999125	Common assault – T2	Bond:12 months Imprisonment (aggregate): 18 months (18.11.2018 to 17.05.2020) non-parole period: 9 months( 18.11.2018 to 17.08.2019)
18.09.2017	14.06.2018 04.02.2019	H65967258	Resist or hinder police officer in the execution of duty	Bond: 2 years Imprisonment (aggregate): 18 months (18.11.2018 to 17.05.2020) non-parole period: 9 months( 18.11.2018 to 17.08.2019)
18.09.2017	14.06.2018	H65967258	Destroy or damage property <=$2000- T2	Fine: $500
18.09.2017	14.06.2018 04.02.2019	H65967258	Assault police officer in execution of duty w/o abh-T2	Imprisonment: 2 months commencing on 14.06.2018 to 13.08.2018 suspended on enter bond: 2 months Imprisonment (aggregate): 18 months (18.11.2018 to 17.05.2020) non-parole period: 9 months( 18.11.2018 to 17.08.2019)
18.09.2017	14.06.2018 04.02.2019	H65967258	Assault police officer in execution of duty w/o abh-T2	Imprisonment: 4 months (14.06.2018 to 13.10.2018) suspended on enter bond: 4 months Imprisonment (aggregate): 18 months (18.11.2018 to 17.05.2020) non-parole period: 9 months( 18.11.2018 to 17.08.2019)
09.07.2018	04.02.2019	H68370423	Drive vehicle illicit drug present in blood etc – 1^st off	Conviction with no other penalty Licence disqualification 4 months (commencing 04.02.2019)
11.11.2018	04.02.2019	H71858784	Destroy or damage property	Imprisonment (aggregate): 18 months (18.11.2018 to 17.05.2020) non-parole period: 9 months( 18.11.2018 to 17.08.2019)
17.11.2018	07.07.2021	H69327517	Sexual intercourse without consent – SI	Imprisonment: 3 years and 9 months (07.05.2020 to 06.02.2024) non-parole period with conditions: 2 years, 5 months and 7 days (07.05.2020 to 13.10.2022)