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

[2020] AATA 4537

WJXV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4537 (11 November 2020)

Division:GENERAL DIVISION

File Number:          2020/5202

Re: WJXV  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member T Tavoularis and Member R Maguire

Date:11 November 2020

Place:Brisbane

The decision under review is affirmed.

.........................[SGD].............................      .........................[SGD].............................

Senior Member T Tavoularis   Member R Maguire

CATCHWORDS

MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 –decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

ETWK and Minister for Immigration and Border Protection [2017] AATA 228

FYBR v Minister for Home Affairs [2019] FCA 500

FYBR v Minister for Home Affairs [2019] FCAFC 185

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337

Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548

Minister for Home Affairs v Buadromo [2018] FCAFC 151

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIAL

Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Senior Member T Tavoularis and Member R Maguire

11 November 2020

INTRODUCTION AND BACKGROUND

1. We have before us, an application by WJXV (“the Applicant”) for review of a decision of a delegate of the Minister (“the Respondent”) dated 19 August 2020[1] made pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the decision made under subsection 501(3A) of the Act to cancel the Applicant’s Class TY, Subclass 444 Special Category (Temporary) visa (“the visa”).

   [1] Exhibit G1, G Documents, G4 at 14.

2. The Applicant is a 25 year old male citizen of New Zealand[2] who has lived in Australia since he was four years of age. The Applicant’s movement records[3] show that he first entered Australia on 26 October 1998, and left on 14 November 1998. He then re-entered Australia on 24 October 1999, at which time he commenced residing in Australia. The Applicant has subsequently made trips out of Australia from 6 January 2001 to 21 January 2001, 28 June 2002 to 12 July 2002 and 8 December 2006 to 25 January 2007. He was granted the visa on the occasion of his last entry into Australia.

   [2] Exhibit R2 Respondent's Statement of Facts, Issues and Contentions at 1, paragraph [3].

   [3] Exhibit R1, Supplementary Documents at 543.

3. On 2 October 2019, whilst the Applicant was serving a term of imprisonment (that is, in actual criminal custody) the Respondent, pursuant to section 501(3A) of the Act, decided to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test because of the operation of section 501(6)(a) (substantial criminal record) on the basis of section 501(7)(c),[4] i.e. that he had been sentenced to 12 months or more imprisonment.

   [4] Exhibit G1, G Documents, G18 at 90-96.

4. Notice of this decision[5] was given to the Applicant by hand, on 10 October 2019[6] and in accordance with Regulation 2.52(2)(b) he was invited to make representations to the Minister about revoking the cancellation decision within 28 days after he had received the notice. The Applicant made representations to the Minister within the period and in the manner specified.

   [5] Exhibit R1, Supplementary Documents at 561 – 566.

   [6] Exhibit R1, Supplementary Documents at 568.

5. On 19 August 2020, the Respondent decided not to revoke the visa cancellation decision made under section 501(3A) of the Act, and on 27 August 2020 the Applicant made the present application to this Tribunal for a review of that decision.[7] The Tribunal has jurisdiction to review this decision pursuant to section 500(1)(ba) of the Act.[8]

   [7] Exhibit G1, G Docs, G1 at 1 – 2.

   [8]  The Act, s 500(6B).

6. The hearing of the instant application took place on 28 October 2020. The Applicant appeared in person via video link, as did Mr D McLaren who appeared for the Respondent. The Tribunal received oral evidence from the Applicant, who was in the migration zone on shore in Australia. The Tribunal also received oral evidence from the Applicant’s mother and step-mother. The complete suite of written material forming the exhibit record is further particularised in the Exhibit Annexure attached hereto and marked “A”.

7. To his credit, at the hearing of this application, the Applicant appeared honest and genuinely remorseful in respect of his conduct, and understandably anxious about his future. Mr McLaren took the Applicant through a detailed exploration of his criminal history. The Applicant remained courteous throughout this, and substantially recollected details of individual offences when asked. He regularly confirmed the accuracy of the records before the Tribunal, and at no time challenged them in any respect.

8. By operation of section 500(6L)(c) of the Act, when an application is made to the Tribunal under section 501CA(4) of the Act, and the decision relates to a person in the migration zone, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1), the Tribunal is taken at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975[9] to affirm the decision under review. At the conclusion of the hearing, Mr McLaren informed the Tribunal that for the purposes of this review, and section 500(6L)(c), the 84^th day is Wednesday, 11 November 2020. It is therefore open to the Tribunal to make a decision prior to midnight, 11 November 2020.

   [9] (Cth)

   ISSUES

9. Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this provides that:

   (4)       The Minister may revoke the original decision if:

   (a)the person makes representations in accordance with the invitation; and

   (b)the Minister is satisfied:

   (i)     that the person passes the character test (as defined by section 501); or

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

10. The Applicant has made the representations required by section 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[10]

    …there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…[11]

    [10] [2018] FCAFC 151.

    [11] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016)153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).

11. There are therefore two issues presently before the Tribunal:

    ·whether the Applicant passes the character test; and

    ·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

12. If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[12] We address each of these grounds in turn.

    [12] Ibid.

    DOES THE APPLICANT PASS THE CHARACTER TEST?

13. The character test is defined in section 501(6) of the Act. Under section 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in section 501(7). Section 501(7)(c) 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”. In addition, and as an alternative, section 501(7)(d) provides that a person will have a substantial criminal record if the person “has been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more.” Section 501(7A) provides that for the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part) the whole of each term is to be counted in working out the total terms.

14. We have had regard to the summary of the Applicant’s offending.[13] We have had regard in particular for his conviction in the District Court of Queensland at Beenleigh on 11 May 2018 on charges including enter premises and commit indictable offence (two counts) and robbery, and sentence of 17 months imprisonment. We have also had regard to his conviction in the Magistrates Court of Queensland at Southport on 18 September 2019 of charges including enter premises and commit indictable offence by break (two counts) enter premises and commit indictable offence (six counts) and enter premises with intent and sentenced to 18 months imprisonment on each count and ordered to pay restitution of $150, $480, and $280.[14] At the time of sentencing, the Applicant was the subject of a suspended sentence for similar offending. As the custodial terms imposed were each “a term of imprisonment of 12 months or more”, the Applicant does not pass the character test by virtue of his “substantial criminal record” as defined in section 501(7)(c) of the Act. We therefore find that the Applicant does not pass the character test pursuant to section 501(6)(a) of the Act.

    [13] Exhibit G1, G Documents, G6 at 26.

    [14] Exhibit G1, G Documents, G10 at 46.

15. We are consequently satisfied that the Applicant does not pass the character test, and that the Applicant therefore cannot rely on section 501CA(4)(b)(i)[15] of the Act for the mandatory cancellation of his visa to be revoked.

    [15] Note: This provides that the Minister is satisfied that the person passes the character test (as defined by section 501).

16. The remaining question therefore is found in section 501CA(4)(b)(ii), namely whether there is another reason why the original decision should be revoked.

    IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?

17. In considering whether to exercise the discretion in section 501CA(4) of the Act, the Tribunal is bound by section 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[16] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[17]

    (1)…a decision maker:

    …

    b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.

    [16] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.

    [17] The Direction, sub-paragraph 7(1)(b).

18. In paragraph 6.2 (3) of the Preamble, the Direction provides:

    (3)  The principles provide a framework within which decision-makers should approach their task of deciding whether to… revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered… in making a revocation decision are identified in Part C of this Direction.

19. The principles referred to in paragraph 6.2 (3) are found in paragraph 6.3 of the Direction, and may be briefly stated 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-citizen’s in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;

    (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;

    (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In the circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia.

    (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen ’s visa should be cancelled, or the visa application refused.

20. Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case. Paragraph 8(2) provides that in applying these considerations, information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 8(3) provides that both primary and other considerations may weigh in favour of, or against, whether or not to revoke a mandatory cancellation of a visa. Paragraph 8(4) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 8(5) provides that one or more primary considerations may outweigh other primary considerations.

21. Three primary mandatory considerations relevant in the context of a revocation decision appear in Part C of the Direction at paragraph 13:

    (a)Protection of the Australian community from criminal or other serious conduct;

    (b)The best interests of minor children in Australia;

    (c)Expectations of the Australian community.

22. The Other Considerations which must be taken into account are provided in a
    non-exhaustive list in paragraph 14 of the Direction. These considerations are:

    (a)International non-refoulement obligations;

    (b)Strength, nature and duration of ties;

    (c)Impact on Australian business interests;

    (d)Impact on victims;

    (e)Extent of impediments if removed.

23. We note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[18]

    “…Direction 65 [now Direction 79] 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.”

    [18] [2018] FCA 594 at [23].

24. We now turn to addressing these considerations.

    PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY

25. In considering Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

26. In determining whether the mandatory cancellation of an applicant’s visa serves to protect the Australian community, paragraph 13.1 of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (1) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (2) those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.

27. In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction provides that decision-makers should 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.

28. In considering the nature and seriousness of the non-citizen ’s criminal offending or other conduct to date, decision-makers must have regard to factors including those set out in paragraph 13.1.1 of the Direction:

    (a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

    (b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

    (c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

    (d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;

    (e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

    (f)The cumulative effect of repeated offending;

    (g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

    (h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

    (i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.

1. The first step in considering the nature and seriousness of the non-citizen ’s conduct to date. Such conduct was previously summarised above with respect to the Applicant’s failing of the citizenship test[19] and must be measured in accordance with paragraph 13.1.1 of the Direction having regard to the Applicant’s criminal history. The totality of the Applicant’s offending can be gleaned from the following documents now before the Tribunal:

   (a)his criminal history which appears in a document called “Check Results Report” from the Australian Criminal Intelligence Commission;[20]

   (b)the Verdict and Judgement record Magistrates Court of Queensland dated 18 September 2019;[21]

   (c)the Queensland Corrective Services Integrated Offender Management System Sentence Calculations Details dated 26 September 2019;[22]

   (d)the Queensland Corrective Services Integrated Offender Management System Violation History dated 20 November 2019;[23]

   (e)the sentencing remarks of the Magistrates Court of Queensland dated 18 September 2019;[24]

   (f)the sentencing remarks of the District Court of Queensland dated 11 May 2018;[25]

   (g)the sentencing remarks of the Local Court of New South Wales dated 19 March 2014;[26]

   (h)the sentencing remarks of the Children’s Court of New South Wales dated 4 May 2011.[27]

   [19] Supra, [14].

   [20] Exhibit G1, G Documents, G6 at 26 – 35.

   [21] Exhibit G1, G Documents, G7 at 36 – 40.

   [22] Exhibit G1, G Documents, G8 at 41 – 43.

   [23] Exhibit G1, G Documents, G9 at 44.

   [24] Exhibit G1, G Documents, G10 at 45 – 47.

   [25] Exhibit G1, G Documents, G11 at 48 – 50.

   [26] Exhibit G1, G Documents, G12 at 51 – 58.

   [27] Exhibit G1, G Documents, G13 at 59 – 62.

2. The Applicant’s criminal history[28] started when he was only 14 years of age, and as can be seen from the table below discloses an extremely lengthy criminal record spanning many years of regular offending, and frequent court appearances. Indeed, he has been dealt with for one offence in 2009, and for multiple offences in 2010, 2011, 2012, 2013, 2014, 2016, 2017, 2018, and 2019. Importantly, on 11 June 2014, the Applicant was given a Notice of Intention to Consider Cancellation (“NOICC”) of his visa. He continued to offend after this. On 17 May 2018, his visa was cancelled, but the decision was set aside by the Migration and Refugee Tribunal in September 2018. The Applicant committed a further 36 offences subsequent to the date of this decision.

   [28] Exhibit G1, G Documents, G6 at 26 – 35.

31.     Court	Court Date	Offence	Court Result
Southport Children’s Court, QLD	14/10/2009	Unauthorised dealing with shop goods (on 21/08/2009)	No Conviction recorded
Bildura Children’s Court, NSW	04/01/2011	Break and enter dwelling-house etc with intent (steal)	Probation: 12 months
Fail to appear in accordance with bail undertaking	Dismissed
Resist officer in execution of duty	Good behaviour bond: 12 months
Possess housebreaking implements	Good behaviour bond: 12 months
Fail to appear in accordance with bail undertaking	Dismissed with caution
Goods in personal custody suspected being stolen	Dismissed with caution
Shoplifting value less than $2,000	Dismissed
Resist officer in execution of duty	Probation: 12 months
Parramatta Children’s Court, NSW	04/05/2011	Break and enter dwelling-house etc with intent (steal)	Probation: 12 months
Resist officer in execution of duty	(call up) Good behaviour bond: 12 months
Possess housebreaking implements	Good behaviour bond: 12 months
Use offensive language in/near public place/school	Dismissed with caution
Assault officer in execution of duty	Probation: 12 months
Resist officer in execution of duty	Probation: 12 months
Larceny value less than $2,000	Probation: 12 months
Destroy or damage property less than $2,000	Good behaviour bond: 12 months
Aggravated break and enter w/I – in company	Control order: 6 months
Break & enter house etc steal value greater than $15,000	Control order: 6 months
Break & enter house etc steal value greater than $15,000	Control order: 6 months
Robbery	Control order: 15 months
Shoplifting value less than $2,000	Probation: 12 months
Shoplifting value less than $2,000	Probation: 12 months
Shoplifting value less than $2,000	Probation: 12 months
Resist officer in execution of duty	Probation: 12 months
Parramatta Children’s Court, NSW	19/04/2012	Break and enter dwelling-house etc with intent (steal)	(call up) Probation:12 months
Resist officer in execution of duty	(call up) Control order: 14 days
Possess housebreaking implements	(call up) Control order: 14 days
Assault officer in execution of duty	(call up) Control order: 14 days
Larceny value less than $2,000	(call up) Control order: 14 days
Destroy or damage property less than $2,000	(call up) Control order: 14 days
Robbery in company	Control order: 8 months
Shoplifting value less than $2,000	(call up) Control order: 14 days
Shoplifting value less than $2,000	(call up) Control order: 14 days
Shoplifting value less than $2,000	(call up) Control order: 14 days
Resist officer in execution of duty	(call up) Probation: 12 months
Parramatta Children’s Court, NSW	03/05/2012	Two counts of use etc offensive weapon to prevent lawful detention etc Take & drive conveyance w/o consent of owner Unlicensed driver/rider (not licensed for 5 yrs) - 1st offence Fail to stop and assist after impact causing injury – 1st offence Police pursuit - not stop – drive dangerously - 1st offence	Adjourned: Youth drug court program
Parramatta Children’s Court, NSW	05/07/2012	Take & drive conveyance without consent of owner	Control order: 2 months
Use etc offensive weapon to prevent lawful detention etc	Control order: 6 months
Use etc offensive weapon to prevent lawful detention etc	Control order: 6 months
Police pursuit - not stop – drive dangerously - 1st offence	Control order: 6 months
Unlicensed driver/rider (not licensed for 5 yrs) - 1st offence	Dismissed
Fail to stop and assist after impact causing injury- 1st offence	Dismissed
Parramatta Children’s Court, NSW	12/12/2012	Wound police officer in execution of duty Break & enter house etc steal value less than $60,000	Control order: 7 months
Break & enter house etc steal value less than $60,000	Control order: 7 months
Central Local Court, NSW	20/06/2013	Fail to appear in accordance with bail undertaking	Conviction with no other penalty
Enter inclosed land not presc premises without lawful excuse	Conviction with no other penalty
Destroy or damage property less than $2,000	Imprisonment: 5 months
Drive conveyance taken without consent of owner	Imprisonment: 10 months
larceny value less than $2,000	Good Behaviour Bond: 18 months .
Central Local Court, NSW	19/03/2014	break & enter house etc steal value less than $60,000	Imprisonment: 12 months
Larceny value less than $2,000	Good behaviour bond: 12 months
11 June 2014: DEPARTMENT SENDS APPLICANT NOICC AND INVITES SUBMISSIONS FROM THE APPLICANT
Manly Local Court, NSW	25/09/2014	Larceny	Fine: $500
Southport Magistrates Court, QLD	09/11/2016	Commit public nuisance (on 27/06/2016)	on all charges with other matters dealt with on this date No conviction recorded Probation period: 18 months Total restitution: $2,150.00 Time to pay: 28 days
enter premises and commit indictable offence by break (on 23/04/2016) Failure to appear in accordance with undertaking (on 01/07/2016) Enter premises and commit indictable offence by break (between 27/06/2016 and 30/06/2016)
Brisbane Magistrates Court, QLD	17/01/2017	Enter premises with intent to commit indictable offence (on 22/10/2016) Trespass - entering or remaining in dwelling or yard (on 22/10/2016) Failure to appear in accordance with undertaking (on 08/11/2016)	On all charges No conviction recorded Probation period: 15 months
Beenleigh Magistrates Court, QLD	20/02/2017	Failure to appear in accordance with undertaking (on 08/12/2016)	Conviction recorded Sentenced imprisonment: 14 days concurrent To be suspended for: 6 months
Southport Magistrates Court, QLD	25/10/2017	Failure to appear in accordance with undertaking (on 06/10/2017)	Conviction recorded Sentenced imprisonment: 2 months cumulative To be suspended: 18 months
25/10/2017	Failure to appear in accordance with undertaking (on 29/09/2017)	Conviction recorded Sentenced imprisonment: 2 months cumulative To be suspended: 18 months
Beenleigh District Court, QLD	10/01/2018	(Re: breach of order imposed on 25/10/2017)	Suspended sentence extended period: 3 months
10/01/2018	(Re: Breach of order imposed on 25/10/2017)	Suspended sentence extended period: 3 months To be suspended: 18 months
Beenleigh District Court, QLD	11/05/18	Two charges of enter premises and commit indictable offence (on 18/02/2017) Robbery (on 18/02/2017)	On all charges Conviction recorded Sentenced imprisonment: 17 months concurrent
Burglary and commit indictable offence (on 05/10/2017) [29]	Conviction recorded Sentenced imprisonment: 6 months concurrent
Four charges of failure to appear in accordance with undertaking (on 16/01/2017, 16/01/20181 19/01/2018) Two charges of contravene Direction or requirement (on 10/08/2017 & 19/01/2018) Two charges of assault or obstruct police officer (on 05/10/2017 & 19/01/2018) Unauthorised dealing with shop goods (maximum $150) (on 10/08/2017) 5 charges of breach of bail condition (on 16/08/2016, 15/09/2017, 09/10/2017, 13/10/2017, and between 22/09/2017 and 06/10/2017)	On all charges Conviction recorded Not further punished
Breach of suspended sentenced imposed on 20/02/2017 (Re: failure to appear in accordance with undertaking) Breach of suspended sentence imposed on 25/10/2017 and extended on 10/01/2018 (Re: failure to appear in accordance with undertaking) Breach of suspended sentence imposed on 25/10/2017 and extended on 10/01/2018 (Re: failure to appear in accordance with undertaking)	Breaches proven on all charges: Suspended sentence fully invoked Cumulative
17 May 2018: Department cancels the Applicant’s visa pursuant to section 116(1)(e)(i) of the Act.
September 2018: Migration and Refugee Division of the Administrative Appeals Tribunal sets aside the decision of the Minister and restores the Applicant’s visa.
Southport Magistrates Court, QLD	14/02/2019	Fail to properly dispose of needle and syringe (on 10/11/2018)	Conviction recorded Sentenced imprisonment: 7 days concurrent To be suspended: 12 months
Three counts of stealing (on10/11/2018, 12/01/2019 & 13/01/2019) Receiving stolen property (10/01/2019) Fraud – dishonestly gain benefit/advantage (on 10/01/2019) Attempted fraud – dishonestly gain benefit/advantage (on 10/01/2019)	On all charges Conviction recorded Sentenced imprisonment: 3 months concurrent To be suspended for 12 months Total restitution: $730.47 Time to pay: 28 days
Failure to appear in accordance with undertaking (on 12/12/2018)	Conviction recorded Not further punished
Fail to properly dispose of needle and syringe (on 10/11/2018)	Conviction recorded Sentenced imprisonment: 7 days concurrent To be suspended: 12 months
Three counts of stealing (on10/11/2018, 12/01/2019 & 13/01/2019) Receiving stolen property (10/01/2019) Fraud – dishonestly gain benefit/advantage (on 10/01/2019) Attempted fraud – dishonestly gain benefit/advantage (on 10/01/2019)	On all charges Conviction recorded Sentenced imprisonment: 3 months concurrent To be suspended: 12 months Total restitution: $730.47 Time to pay: 28 days
Failure to appear in accordance with undertaking (on 12/12/2018)	Conviction recorded Not further punished
Southport Magistrates Court, QLD	18/09/2019	Three counts of breach of bail condition (on 20/05/2019, 20/05/2019 & 27/05/2019) Obstruct police officer (on 28/05/2019)	On all charges Conviction recorded Sentenced imprisonment: 1 month concurrent
Evasion Offence (on 10/12/2018)	Conviction recorded Sentenced Imprisonment: 50 days concurrent MDL disqualified period: 2 years
Two counts of receiving Tainted Property (on 14/05/2019) Possess tainted property (on 16/05/2019) Attempted enter premises with intent to commit indictable offence (on 13/05/2019) Stealing (on 08/05/2019)	On all charges Conviction recorded Sentenced imprisonment: 3 months concurrent
Six counts of enter premises and commit indictable offence (on 13/05/2019, 15/05/2020, 19/05/2020, 24/05/2020, 25/05/2020, and between 16/05/2020 and 21/05/2020) Two counts of enter premises and commit indictable offence by break (on 14/05/2020) Enter premises with intent to commit indictable offence (on 15/05/2020)	On all charges Conviction recorded Sentenced imprisonment: 18 months concurrent Total restitution: $630.00 Time to pay: 28 days
(Re: breach of order imposed on 14/02/2019)	On all charges Suspended sentence fully invoked cumulative

[29] A notation in the National Police Certificate indicates that the following Magistrates Court Matters were heard by the District Court: Exhibit G1, page 29.

1. From 2010 on the Applicant’s resistant behaviour toward police escalated into (1) assaults on police, (2) using an offensive weapon to prevent lawful detention, and (3) wounding an officer in execution of duty.

2. In 2010 the Applicant made one sentencing appearance before the Bidura Children’s Court on a total of eight charges, including two offences of resisting an officer in the execution of duty, which offences appear to have been committed when he was only 14 years of age.[30] We give these offences against police substantial weight with regard to paragraphs 13.1.1 (1) (a), (c), and (f).

   [30] Exhibit G1, G Documents, G6 at 35.

3. On 4 May 2011 the Applicant made his only sentencing appearance for that year. The Parramatta Children’s Court sentenced[31] him on a total of 16 charges including three offences of resisting officers in the execution of their duty, as well as one offence of assaulting an officer in the execution of duty.[32] There was also an offence involving an 84 year old victim.[33] The charges included “offensive language, assault police et cetera stealing alcohol, damage to a police vehicle, as well as two counts of break and enter and one count of Aggravated break and enter”. With respect to the charges other than the break and enters, the learned magistrate remarked:[34]

   I am not going to give you a talking to about those. My guess is that you have had more talking to’s from Youth Drug and Alcohol Court staff and the magistrate there without me going on about it, but the bottom line is you get yourself into strife and you have got to take responsibility for it, and the key way of dealing with it is not getting yourself into strife in the first place.

   [31] Exhibit G1, G Documents, G13 at 59 – 62.

   [32] Exhibit G1, G Documents, G6 at 34.

   [33] Exhibit R1, Supplementary Documents at 37.

   [34] Exhibit G1, G Documents, G13 at 60.

4. The sentencing remarks in respect of the break and enter and aggravated break and enter charges the Children’s Court of New South Wales records from 4 May 2011 show that the Applicant broke into a house, scared an 84 year old occupant and took substantial amounts of property. In sentencing the Applicant for aggravated break and enter and the two other break and enter charges, the learned Children’s Magistrate remarked with regard to the charges:

   They are serious. You took substantial amounts of values of property, you scared the crap out of one poor old bloke, trying to break into his house. People are entitled to feel safe in their homes. You have been busted for break and enter and steal before. You knew how wrong it was. You knew what the consequences were. So people have got to feel safe in their homes, they have got to have their property left undisturbed.

   …

   The important thing is that because you have gone through the Use Drug and Alcohol Court Program you should have acquired some skills to deal with your problems.

   …

   You have got to realise that just about any further criminal offence you might commit will result in a gaol penalty – even for shoplifting a gaol penalty or a detention penalty is likely to come out of it, so it will be really important when you get out of custody that you grab hold of all of the help that is there for you from Juvenile Justice from mental health people, from family. You need to grab hold of that and really make the very best use of it you can, otherwise you will let other people down, but most importantly you will let yourself down.

   [Tribunal’s emphasis]

5. These remarks, particularly those which we have highlighted in bold, provided a robust and clear warning to the Applicant in respect of the likely outcome of further offending, but it seemingly fell on deaf ears.

6. We give these offences, particularly as they were committed against a vulnerable member of the community, and against police substantial weight with regard to paragraphs 13.1.1 (1) (a), (c), (e), and (f).

7. On 19 April 2012, the Applicant made what was to be the first of his three sentencing appearances that year before the Parramatta Children’s Court and was dealt with on 11 charges, including two counts of resisting an officer in the execution of duty[35] and one count of assault an officer in execution of duty.[36] These offences must be looked at in the context where they occurred not long after a robust judicial warning. We give these offences against police substantial weight with regard to paragraphs 13.1.1 (1) (a), (c), (e), and (f).

   [35] Exhibit G1, G Documents, G6 at 33-34.

   [36] Exhibit G1, G Documents, G6 at 33.

8. On 5 July 2012, the Applicant made his second sentencing appearance for the year before the Parramatta Children’s Court and was dealt with on 5 charges including one count of unlicensed driving, one count of take and drive a conveyance without the consent of the owner, one count of police pursuit – not stop - drive dangerously, two counts of use offensive weapon to prevent lawful detention, and one count of fail to stop and assist after impact.

9. These offences can be viewed as a significant instance of increasing frequency and seriousness of the Applicant’s offending.  They arose in circumstances when the Applicant failed to stop a stolen vehicle he was driving (whilst unlicensed and intoxicated) for the purpose of a mobile random breath test. This incident occurred at 3:10 AM on Friday, 17 February 2012.[37] When the Applicant failed to stop, the police car activated its lights and sirens, but the Applicant failed to stop the vehicle which he was driving. The Applicant drove through a stop sign, and a red light. When eventually intercepted, the Applicant attempted to turn the vehicle around in a confined area, driving forward and reversing to make a complete turn to evade police. The rear of side of the vehicle struck a police officer, causing him to jump back to avoid further injury. The police officer suffered from bruising and shock as a result of the collision. At this point, the vehicle managed to escape police, and was pursued by another police vehicle. After eventually being forced to come to a stop, a fully marked police vehicle stopped behind the vehicle the Applicant had been driving, and another fully marked police vehicle parked behind it. Police officers exited their vehicles and approached the driver with firearms and tasers drawn. The Applicant placed his vehicle into reverse and accelerated backwards causing a collision with the first of the fully marked police cars. The Applicant was then detained by police and arrested and handcuffed at 3:19 AM. At the time of these offences, the Applicant had never held a driver’s licence. The Applicant was submitted to a roadside breath analysis which returned a positive result. He was then taken to Dee Why Police Station where he was submitted to a breath analysis which returned a reading of 0.019. At the time of these offences, the Applicant was on bail for the offence of robbery in company, and was the subject of a warrant for arrest, in consequence of his failure to appear at Parramatta Drug Court the day before.

   [37] Exhibit R1, Supplementary Documents at 52.

1. The Facts Sheet records “During the incident the Young Person showed a total disregard for police and the safety of the community. The Young person was given several opportunities to stop and he continued to drive in a manner that was considered dangerous to police and the public.” The Applicant was subsequently convicted of offences of drive a vehicle recklessly, assault police officer in execution of duty, failure to stop and assist after impact causing injury, and using an offensive weapon to prevent lawful detention. He was 17 years of age at the time.

2. Although the Applicant only received control orders in respect of these offences, we view the Applicant’s conduct in this episode extremely seriously. By stealing a motor vehicle (whilst unlicensed) and driving it dangerously through a stop sign and a red light whilst heavily intoxicated, he exposed himself, and innocent road users to great danger, which could easily have resulted in one or more fatalities. He has also exposed police officers to great danger. His use of a motor vehicle to injure a police officer could well have resulted in far more serious injury to the police officer. He has caused damage to the vehicle which he was using unlawfully, and he has used that vehicle to inflict damage on a fully marked police vehicle. He has demonstrated a lack of respect for the property and safety of others. His failure to stop and assist after injuring the police officer demonstrates a callous contempt for law enforcement officers. We give these offences against police substantial weight with regard to paragraphs 13.1.1 (1) (a), (c), (e), and (f).

3. On 12 December 2012, the Applicant made his third sentencing appearance for 2012 before the Parramatta Children’s Court and was dealt with on three charges including wounding a police officer in execution of duty and two counts of break and enter stealing goods valued at less than $60,000.[38] We give the offence against a police officer substantial weight with regard to paragraphs 13.1.1 (1) (a), (c), (e), and (f).

   [38] Exhibit G1, G Documents, G6 at 31 – 32.

4. On 20 June 2013, the Applicant made his only sentencing appearance for the year before the Central Local Court of New South Wales and was sentenced in respect of five offences, to imprisonment of five months in respect of a charge of destroy or damage property less than $2000, and 10 months with a non-parole period of five months[39] in respect of a charge of drive conveyance taken without consent of owner. We note that these sentences by themselves, met the definition of substantial criminal record in section 501(7)(d), and we give substantial weight to this.  We also note that they continue a pattern of continuing frequency and seriousness of offending. We give these offences substantial weight with regard to paragraphs 13.1.1 (1) (a), (c), (d), (e), and (f).

   [39] Exhibit G1, G Documents, G12 at 52.

5. On 19 March 2014 the Applicant made the first of his two sentencing appearances for the year in the Central Local Court of New South Wales where was sentenced to 12 months imprisonment with a non-parole period of six months[40] on one count of break and enter. The Tribunal notes that this sentence by itself, met the definition of substantial criminal record in section 501(7)(c), and we give substantial weight to this. We give this offence substantial weight with regard to paragraphs 13.1.1 (1) (a), (c), (d), (e), and (f).

   [40] Exhibit G1, G Documents, G12 at 58.

6. On 11 June 2014, the Department sent the Applicant the NOICC.[41] The purpose of the letter was to “advise you that consideration is being given to cancelling your visa under section 501(2) of the Migration Act 1958.” The letter informed the Applicant that the Minister or his delegate might cancel his visa if:

   ·the Minister or his delegate reasonably suspects [the Applicant did] not pass the character test; and

   ·[the Applicant did not] satisfy the Minister or his delegate that [the Applicant passed] the character test.

   [41] Exhibit G1, G Documents, G14 at 63 – 66.

7. The NOICC was clearly a formal warning for the purposes of paragraph 13.1.1(1) (h), and placed the Applicant on notice as to his endangered visa status, and warrants additional weight being given to every one of the 70 offences he committed subsequent to its receipt.

8. Subsequent to the sending of the NOICC, the Applicant made his second sentencing appearance of 2014 on 25 September 2014. The Applicant appeared before the Manly Local Court and was fined $500 for larceny in respect of an offence committed prior to the issue of the NOICC. We give this offence substantial weight with regard to paragraphs 13.1.1 (1) (d), (e), and (f).

9. On 9 November 2016 the Applicant made his only sentencing appearance which was in the Southport Magistrates Court in respect of four charges. There were two charges of enter premises and commit indictable offences by break. One was alleged to have occurred on 23 April 2016, and the other between 27 June 2016 and 30 June 2016. An offence of commit public nuisance was alleged to have occurred on 27 June 2016, and a failure to appear in accordance with an undertaking was alleged to have been committed on 1 July 2016. We note that no conviction was recorded, and that the Applicant was placed on probation for a period of 18 months and ordered to pay restitution of $2,150 within 28 days. We also note that all but one of these charges arose after 11 June 2014, the date on which the Applicant was sent the NOICC. We give these charges substantial weight for the purposes of paragraph 13.1.1 (1) (e), (f), and (h).

10. On 17 January 2017 the Applicant made a sentencing appearance in the Brisbane Magistrates Court. On 20 February 2017 the Applicant made a further sentencing appearance and was sentenced to 14 days imprisonment for failure to appear. The Applicant made his third sentencing appearance of 2017 on 25 October 2017 when he was sentenced to 2 months imprisonment on each of two counts of failure to appear. By this stage, it appears that the Applicant was routinely ignoring his obligations to appear and generally observe court orders. He was clearly not giving due respect to Australia’s law enforcement framework, and had been for some time, and continued to do so thereafter. We note that a sentence of suspended imprisonment was imposed in this instance, and we give substantial weight to this for the purposes of paragraph 13.1.1 (1) (d), (e), (f) and (h).

11. On 10 January 2018 the Applicant made the first of his two sentencing appearances for the year, and his suspended sentences were extended in the Beenleigh District Court in respect of breaches of orders. We give substantial weight to this for the purposes of paragraph 13.1.1 (1) (d), (e), and (h).

12. On 11 May 2018 he received sentences of six months imprisonment for burglary and commit indictable offence, and 17 months imprisonment for two charges of enter premises and commit indictable offence. The Applicant was also sentenced on 11 May 2018 in the Beenleigh District Court for an offence of assault or obstruct police officer in respect of offences alleged to have occurred on 5 October 2017, and 19 January 2018. The total number of charges in respect of which the Applicant was dealt with on 11 May 2018 was 21. These sentences also met the definition of substantial criminal record in sections 501(7)(c) and (d). We give substantial weight to this for the purposes of paragraph 13.1.1 (1) (a), (c), (d), (e), (f) and (h).

13. On 17 May 2018, a delegate of the Minister for Home Affairs decided to cancel the Applicant’s visa under section 116(1)(e) of the Act, on the ground that he was a risk to the Australian community or an individual, and the Applicant was placed in immigration detention.

14. In September 2018, the Migration and Refugee Division of this Tribunal set aside the decision to cancel the Applicant’s visa.[42] At paragraph 25 of the decision, the Tribunal said:

    In considering this matter, I have carefully considered the nature and extent of Mr [WJXV]’s criminal behaviour and have concluded that it does constitute grounds for cancellation. Against this I have weighed Mr [WJXV]’s subjective factors, including his upbringing, mental health history, measures to deal with addiction, ties to Australia and the hardship he would encounter with his visa to be cancelled. On balance the considerations against cancellation very slightly prevail. It is, however, unlikely that this conclusion would survive any further criminal offending.

    [42] Exhibit R1, Supplementary Documents at 554 – 559.

15. We consider the foregoing remarks to amount to a further formal warning of the Applicant about the consequences of further offending in terms of his migration status. We consider that the Applicant was intended to receive the Tribunal’s words as a final warning in terms of his visa status, and to place him on notice of the fact that the higher level of tolerance[43] of criminal or other serious conduct by a non-citizen who has lived in the Australian community for most of their life, or from a very young age, as is the case with this Applicant was close to being exhausted, and that any further offending would be regarded very seriously. This serves to further and greatly increase the weight which we would otherwise ordinarily give to offending which occurred subsequent to the NOICC for the purposes of paragraph 13.1.1(1) (h).

    [43] The Direction, clause 6.3 (5).

16. On 14 February 2019, the Applicant made the first of his two sentencing appearances for 2019 in respect of 16 charges, and he was sentenced to three months imprisonment in respect of stealing charges and seven days imprisonment in respect of failure to properly dispose of a needle and syringe. The offences occurred on various dates between 10 November 2018 and 13 January 2019. We note that a sentence of imprisonment was imposed in this instance, and we give substantial weight to this for the purposes of paragraph 13.1.1 (1) (a), (d), (e), (f), and (h).

17. On 18 September 2019, the Applicant was sentenced in the Southport Magistrates Court in respect of a charge of obstructing a police officer on 28 May 2019. He faced a total of 20 charges on that day and received one sentence of 50 days’ imprisonment, four separate sentences of imprisonment for a period of one month, five separate sentences of three months imprisonment, and nine separate sentences of 18 months imprisonment, all sentences to be served concurrently. He was also ordered to pay $630 restitution. The offences occurred on various days between 10 December 2018 and 28 May 2019. These sentences also met the definition of substantial criminal record in sections 501(7)(c) and (d). Coming as they did about 12 months after the Tribunal’s decision to set aside the cancellation of his visa under section 116 (1) (e), and the associated warning in the decision of the Tribunal we give very significant weight to these offences for the purposes of paragraph 13.1.1 (1) (a), (d), (e), (f), and (h).

18. It can be distilled from the foregoing that the Applicant has been sentenced to periods of imprisonment on the following occasions:

    (a)20 June 2013, Central Local Court:

    (i)10 months imprisonment for the offence of drive conveyance taken without consent of owner – T2, with a non-parole period of five months; and

    (ii)five months imprisonment for destroy or damage property <= $2000 – T2;

    (b)19 March 2014 Central Local Court, 12 months imprisonment for the offence of break and enter house et cetera steel value <= $60,000 – T1 with a non-parole period of six months;

    (c)20 February 2017 Beenleigh Magistrates Court 14 days’ imprisonment (suspended for six months) for the offensive failure to appear in accordance with an undertaking;

    (d)25 October 2017, Southport Magistrates Court two months imprisonment (suspended for 18 months) for each of two offences of failure to appear in accordance with an undertaking;

    (e)11 May 2018, Beenleigh District Court:

    (i)17 months concurrent, for offences of enter premises and commit indictable offence (two charges) and robbery; and

    (ii)six months imprisonment concurrent for the offence of burglary and commit indictable offence;

    (f)14 February 2019, Southport Magistrates Court:

    (i)seven days imprisonment (suspended for 12 months) for the offence of failed to properly dispose of needle and syringe;

    (ii)three months imprisonment (suspended for 12 months) for the offences of stealing (three counts) receiving stolen property, fraud – dishonestly gain benefit/advantage and attempted fraud – dishonestly gain benefit/advantage;

    (g)18 September 2019 Southport Magistrates Court:

    (i)18 months imprisonment for each of six counts of enter premises and commit indictable offence, two counts of enter premises and commit indictable offence by break, one count of enter premises with intent to commit indictable offence;

    (ii)one month imprisonment for each of three counts of breach bail condition and one count of obstruct police officer, a total of four months;

    (iii)three months imprisonment for each of two counts of receiving tainted property, one count of possess tainted property, one count of attempted enter premises with intent to commit indictable offence, and one count of stealing, a total of fifteen months.

    (iv)50 days imprisonment for evasion

19. The Applicant’s criminal history presents as a tangled web. He has had 18 sentencing court appearances over a period of roughly ten years, and been dealt with for 123 offences. Since being given the NOICC on 11 June 2014, the Applicant has had nine sentencing appearances. He appears to have taken precisely no notice of the NOICC.

20. On 17 May 2018, the Applicant’s visa was cancelled under section 116(1)(e) of the Act, but restored by a decision of this Tribunal in September 2018. Notwithstanding the cautionary words of the Tribunal at the time, the Applicant continued to offend and appeared in Court to receive sentences of imprisonment on 14 February 2019, and again on 18 September 2019. The seriousness of the Applicant’s offending is reflected in an increasing incidence and duration of sentences of imprisonment in recent years.

21. It is true that life has dealt this Applicant some unkind and unhelpful cards. It is also true that the Applicant has been shown sympathy, empathy and patience, and a high level of tolerance in respect of his criminal and other serious conduct. The Applicant has been given many opportunities to rehabilitate himself, and whilst he has stated a desire to do so, he has not demonstrated any actual success at this.

22. He has an extensive history of breaches of bail, parole, suspended sentences and Court orders as seen in his history. He has received sentences of imprisonment on numerous occasions which far exceed a total period of twelve months.

23. He has committed a lengthy series of property related offences, (including shoplifting, possessing housebreaking implements, breaking and entering, robbery, and burglary).

24. He has been dealt with for over 40 offences against police and the administration of justice, (including prevention of arrest and non-compliance with court orders). He has been dealt with for an offence against an elderly person, and for several offences against police officers, a number of which involved significant, serious violence. His offences against police include counts of resisting an officer in the execution of duty, assaulting an officer in the execution of duty, and wounding an officer in the execution of duty.

25. He has breached many court orders including failing to appear in accordance with bail undertakings, breach of imposed orders, and breach of suspended sentences.

26. On 11 May 2018, in the District Court at Beenleigh, Her Honour Judge Muir sentenced the Applicant for two counts of entering premises and stealing and one count of robbery. Her Honour described the robbery count as:

    a particularly serious charge. It has a maximum penalty of life imprisonment. I’m also sentencing you for an array of summary offences – some more serious than others – three failing to appears, a contravention of a direction, to assault or obstruct police officers, and unauthorised dealing with shop goods, another five breaches of bail conditions, one count of entering a dwelling and committing an indictable offence and another count of evading fare…. Some offences were committed while you were the subject to a probation order, some while subject to suspended sentences, some offences were committed while you were on bail for other offences, and some while you were at large on a warrant. Your offending behaviour is reflective of a young man who seems to me has completely lost his way. It’s consistent with what your Counsel has told me to, that you were drug dependent, homeless at times and that explains your conduct but certainly doesn’t excuse. As the prosecutor said, there’s a lot of your offending conduct as you would understand. And it’s persistent and it does show that you have at least on one occasion for which I’m sentencing you, resorted to violence though, in my view it does seem at the lower end of violence

    …. From what has been outlined to me, it seems that you are a young person that has encountered some difficulties in your life, the separation of your parents early, mental health issues, exposure to drugs, and as a result of that you have had cannabis and amphetamine addiction. And you have been using methyl amphetamine and ice from quite a young age.…

    You spent a considerable period on remand in relation to these offences, some eight and a-half months, and I am really grateful to hear from your barrister that you have been making good use of that time and that you have been employed whilst you are in custody that you have undertaken courses and particularly trying to deal with your drug addiction.

    … You have made your life, if you like, somewhat complicated by committing these offences while you are on probation and on suspended sentences, and quite frankly you are making it very difficult for the Court to impose anything but periods of imprisonment upon you moving forward. So you need to understand that.…

    So balancing all of the relevant considerations, in relation to each of the counts on the indictment, the entering premises and stealing counts, you are convicted and sentenced to 17 months imprisonment. In relation to count three on the indictment – that is the robbery – you are convicted and sentenced to 17 months imprisonment.[44]

    [Tribunal’s emphasis]

    [44] Exhibit R1, Supplementary Documents at 380.

27. A mere four months later, the Applicant’s most recent period of incarceration commenced on 18 September 2019 when he was convicted in the Magistrates Court of Queensland of enter premises and commit indictable offence by break (two counts), enter premises and commit indictable offence (six counts) and enter premises with intent and sentenced to 18 months imprisonment on each count and ordered to pay restitution of $150, $480, and $280. In the course of his sentencing remarks, Magistrate Kilner said:

    Mr [WJXV], as so often happens, people come before the Court – young people like you come before the court with drug addiction and no means of supporting that addiction, and the inevitable result is that offences are committed to support and pay for that drug addiction. And, quite bluntly, the community does not owe you some licence or grant you some licence to go and steal and enter other people’s premises to support that addiction. I can have a great deal of sympathy for people who are addicted to drugs, and the difficulty there is in beating that addiction, but the community is not obliged to have their property destroyed, stolen or otherwise interfered with simply for that purpose.

    You have been given opportunities in the past. You have not availed yourself successfully of those opportunities. Indeed, you are on a suspended sentence for like offences when these offences occurred and, further, you are on parole, again, for like offences. It would seem that you are going to need either further supervision or you’re going to be spending longer and longer in custody. There is very little that could be said in mitigation other than that you have pleaded guilty. Your self-induced drug addiction, unfortunately, offers very little in the way of mitigation. It explains why you commit these offences. It does not justify or excuse them in any way shape or form.

    It would seem that upon release, you have the benefit of your stepfather’s residence again. I note that he has told you on one previous occasion that you are not welcome there because of your unreliability and that you may have some further prospect of employment with him in the carpet laying business, but there is nothing to support that and, quite frankly I do not give it a great deal of credence. What I propose to do is to activate the suspended sentence imposed on 14^th of February 2019. That was for a period of three months. I note that the offences are relatively minor, but they are consistent with the type of offences that you pleaded guilty to today.

    In relation to the enter premises charges that you pleaded guilty to today, there are some six of those matters where people have had their property interfered with simply for your own nefarious purposes. In relation to these charges you were sentenced to 18 months imprisonment. On the stealing and attempted enter premises and the tainted property charges is three months imprisonment on each and that will be concurrent with the 18 months. On the breach of bail and the obstruct charge, one month on each; again, concurrent. On the evasion offence, I note that this predates the suspended sentence imposed the 14^th of February 2019. It is however for a different offence and unless there are particular circumstances, it is a matter that requires a mandatory 55 days imprisonment to be served.[45]

    [45] Exhibit G1, G Documents, G10 at 46.

1. This Applicant has frequently and persistently, over a period of years routinely breached bail undertakings, and re-offended whilst the subject of variously described court orders including suspended sentences. Whilst these offences, of themselves viewed individually may appear relatively minor, they take on a new perspective when considered cumulatively in the context of the Applicant’s full history of offending and have complicated, protracted, and frustrated the administration of justice. Paragraph 13.1.1 (1)(a) does not limit the range of offences that may be considered serious, and in the circumstances, we consider these offences to be serious.

2. The Applicant’s record, particularly for a person of his age, is lengthy and poor, and he has repeatedly failed to avail himself of the opportunities which have been given to him to change his ways, and safeguard his right to remain in Australia.

   Application of Factors in Paragraph 13.1.1(1) of the Direction

3. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, including:

   (a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

   (b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

   (c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

   (d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;

   (e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

   (f)The cumulative effect of repeated offending;

   (g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

   (h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

   (i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.

4. Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously.

5. The Tribunal notes this subparagraph does not limit the range of offences that may be considered serious to those which are violent or sexual. The Tribunal further notes, that a crime of violence is not limited to a crime of violence against a person, and may extend to violence against property. Whilst there is no record of any sexual crimes by this Applicant, he does have a history of threatened and actual violence against people and property.

6. On 13 November 2009, the Applicant resisted attempts by police to subdue him by “violently thrashing his body around”.[46] He subsequently said to police, after being handcuffed “[Expletive deleted] you, [expletive deleted] I’m going to smash you. I’m going to follow you home and kill you’s… I’m going to stab you, I’m going to follow you home, you’re all a bunch of [expletive deleted]”.

   [46] Exhibit R1, Supplementary Documents at 21.

7. On 15 December 2009, in resisting arrest, the Applicant wrestled with police, who found it necessary to use oleoresin capsicum (“OC”) spray in order to subdue the Applicant and arrest him for charges of resist officer in execution of duty, breach of bail, and to execute a warrant.[47]

   [47] Exhibit R1, Supplementary Documents at pages 12 – 14.

8. On 6 February 2010, whilst being placed under arrest, the Applicant began to forcefully swing his upper body and arms away from the police and attempt to escape police custody. He was restrained and handcuffed, but continued to erratically throw his body around making it difficult for police to control their grip on him. The Applicant screamed obscenities at police whilst being escorted through a hotel bistro where families and children were present to a police vehicle. Upon reaching the police vehicle, the Applicant began to throw his whole body around in an attempt to gain escape from police custody, and attempted to head-butt a police officer. Upon being placed in the police vehicle, the Applicant continued to kick the rear door of the vehicle until arrival at the Dee Why Police Station, and caused extensive damage to the rear of the police vehicle. Whilst in custody in the holding cells at the Dee Why Police Station, the Applicant continued to forcefully kick and punch the holding walls and door. Police estimated the damage occasioned to the rear door of the please vehicle to cost in excess of $500 to repair.[48]

   [48] Exhibit R1, Supplementary Documents at 42 – 44.

9. On 9 November 2010, the Applicant used and threatened violence in the course of a robbery committed whilst he was on bail and required to be of good behaviour and not to commit any other offences.[49] In the process of robbing the victim of his Apple iPhone, the Applicant said to the victim “Give it to me” and when the victim replied “no” the Applicant said “Do you want to get stabbed?” The victim said “No”, and the Applicant replied “Do you want to fight?” The victim said “No”. The Applicant then grabbed the victims left index finger and pulled it back causing the victim immediate pain. The Applicant threatened to break the victim’s finger, and the victim let go of the phone due to the pain in his finger and for fear of being stabbed and bashed by the Applicant. The Applicant made repeated threats to fight the victim. It is not clear from the New South Wales Police Facts Sheet whether the victim of this assault was a child, however the Tribunal notes that the incident occurred at a bus stop, and subsequent to the incident, the victim telephoned his mother from a nearby shopping centre. The Tribunal views the threats of assault, stabbing, and the use of actual violence very seriously.

   [49] Exhibit R1. Supplementary Documents at 31 – 34.

10. On 14 June 2012, the Applicant was pursued by the victim of a break and enter who was attempting to retrieve two bags which he recognised as his property from the Applicant, and the Applicant said “Back off or I’ll stab ya”.[50]

    [50] Exhibit R1, Supplementary Documents at 67.

11. On 17 June 2012, whilst being placed under arrest, the Applicant assaulted police by thrashing his arms around, and pushing a police officer against a wall and kicking and punching at police as he was restrained. It was necessary to subdue him with OC spray. During the altercation, a police officer sustained a five centimetre jagged laceration to his scalp which required 10 stitches to close the wound.[51]

    [51] Exhibit R1, Supplementary Documents at 66.

12. An overall consideration of sub-paragraph (a) of paragraph 13.1.1(1) of the Direction as discussed above and earlier in these reasons, weighs heavily against the Applicant.

13. Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.

14. There is no clear evidence that the Applicant has committed crimes of a violent nature against women or children, and therefore no weight is given to this consideration.

15. Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction provides that “crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious.”

16. From 2010 onwards, his resistance of police escalated into assaults on police, and using an offensive weapon to prevent lawful detention, and wounding an officer in execution of duty.

17. In 2010 the Applicant made one sentencing appearance before the Bidura Children’s Court on a total of eight charges, including two of resisting an officer.

18. In 2011 he made one sentencing appearance on 4 May 2011, before the Parramatta Children’s Court on a total of 16 charges including three resisting an officer and one assaulting an officer.

19. In 2012, the Applicant made three sentencing appearances before the Parramatta Children’s Court. The first was on 19 April 2012 where he was dealt with on 11 charges, including one two counts of resisting an officer, and one of assaulting an officer.

20. The second sentencing appearance in 2012 was before the Parramatta Children’s Court on 5 July 2012, when he was dealt with on 6 charges including one count of police pursuit – drive dangerously, two counts of use offensive weapon to prevent lawful detention, and one count of fail to stop and assist after impact.

21. His third sentencing appearance in 2012 was before the Parramatta Children’s Court on 12 December 2012, when he was dealt with on three charges including wounding a police officer in execution of duty.

22. The Applicant was also sentenced on 11 May 2018 in the Beenleigh District Court for an offence of assault or obstruct police officer in respect of offences alleged to have occurred on 5 October 2017, and 19 January 2018.

23. On 18 September 2019, the Applicant was sentenced in the Southport Magistrates Court in respect of a charge of obstructing a police officer on 28 May 2019.

24. An overall consideration of sub-paragraph (c) of paragraph 13.1.1(1) of the Direction as discussed above and earlier in these reasons, weighs heavily against the Applicant.

25. Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/Applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.

26. The Applicant has been the beneficiary of many non-custodial sentences, and many suspended sentences. It appears from recent judicial comment that the imposition of a custodial sentence is close to, if not, the only available sentencing option left to the courts in respect of this Applicant.

27. One need look no further than the following remarks of Her Honour Judge Muir when sentencing the Applicant on 11 May 2018, in the District Court at Beenleigh, and set out at greater length above:

    Your offending behaviour is reflective of a young man who seems to me has completely lost his way…. From what has been outlined to me, it seems that you are a young person that has encountered some difficulties in your life, the separation of your parents early, mental health issues, exposure to drugs, and as a result of that you have had cannabis and amphetamine addiction. And you have been using methyl amphetamine and ice from quite a young age.… You have made your life, if you like, somewhat complicated by committing these offences while you are on probation and on suspended sentences, and quite frankly you are making it very difficult for the Court to impose anything but periods of imprisonment upon you moving forward. So you need to understand that.…[52]

    [Tribunal’s emphasis]

    [52] Exhibit R1, Supplementary Documents at 380.

28. The passage in bold above appears to reflect not only a sense of frustration at the Applicant’s failure to take up the many opportunities he has been given to take back control of his life, but it also gives a clear indication that further offending will most likely result in further periods of imprisonment being imposed.

29. Similar comments are found in the sentencing remarks of Magistrate Kilner a mere four months after Judge Muir’s above quoted remarks.

30. On 18 September 2019 in the course of sentencing the Applicant to 18 months imprisonment, His Honour said:

    Mr [WJXV], as so often happens, people come before the Court – young people like you come before the court with drug addiction and no means of supporting that addiction, and the inevitable result is that offences are committed to support and pay for that drug addiction. And, quite bluntly, the community does not owe you some licence or grant you some licence to go and steal and enter other people’s premises to support that addiction.  I can have a great deal of sympathy for people who are addicted to drugs, and the difficulty there is in beating that addiction, but the community is not obliged to have their property destroyed, stolen or otherwise interfered with simply for that purpose.

    You have been given opportunities in the past. You have not availed yourself successfully of those opportunities. Indeed, you are on a suspended sentence for like offences when these offences occurred and, further, you are on parole, again, for like offences. It would seem that you are going to need either further supervision or you’re going to be spending longer and longer in custody. There is very little that could be said in mitigation other than that you have pleaded guilty. Your self-induced drug addiction, unfortunately, offers very little in the way of mitigation. It explains why you commit these offences. It does not justify or excuse them in any way shape or form.

    It would seem that upon release, you have the benefit of your stepfather’s residence again.  I note that he has told you on one previous occasion that you are not welcome there because of your unreliability and that you may have some further prospect of employment with him in the carpet laying business, but there is nothing to support that and, quite frankly I do not give it a great deal of credence.[53]

    [Tribunal’s emphasis]

    [53] Exhibit G1, G Documents, G10 at 46.

31. An overall consideration of sub-paragraph (d) of paragraph 13.1.1(1) of the Direction as discussed above and earlier in these reasons, weighs heavily against the Applicant.

32. Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.

33. We have set out the pattern of the increasing frequency and seriousness of the Applicant’s offending earlier in these reasons, and they do not need to be repeated. The above quoted remarks of Judge Muir and Magistrate Kilner make it fairly clear that the frequency and seriousness of the Applicant’s offending has reached a point where there is a judicial expectation that any further offending will be regarded seriously and most likely result in custodial sentences, and probably lengthy ones.

34. An overall consideration of sub-paragraph (e) of paragraph 13.1.1(1) of the Direction as discussed above and earlier in these reasons, weighs heavily against the Applicant.

35. Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending.

36. Unless we have miscounted, this Applicant has been charged with 123 offences over a period of ten years. Among these, are 66 property offences including robbery. He has been dealt with for 43 offences pertaining to prevention of arrest and non-compliance with court orders. He has committed several offences involving violence, including injury to police, and has twice been dealt with for dangerous driving related offences. On his last sentencing occasion alone, he received sentences which totalled fifteen years and 50 days of imprisonment.

37. We feel compelled to view the cumulative effect of this Applicant’s repeated offending extremely seriously and afford it great weight.

38. Sub-paragraph (g) of paragraph 13.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.

39. There is no evidence before us of the provision of any false or misleading information to the Department by the Applicant, and this consideration is therefore given no weight.

40. Sub-paragraph (h) of paragraph 13.1.1(1) of the Direction looks for evidence about whether this the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.

41. We note that on 11 June 2014, the Applicant was sent a NOICC.[54] The Applicant does not appear to have taken any notice of this letter, and continued to offend regularly. He committed 70 offences subsequent to this date. This weighs heavily against the Applicant.

    [54] Exhibit G1, G Documents, G14 at pages 63 – 66.

42. On 17 May 2018 a decision was made to cancel the Applicant’s visa under section 116 (1)(c)(i) of the Act. This provision gave the Minister a discretion to cancel a visa if satisfied that the presence of its holder in Australia is or may be, or would be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community. History shows that this decision did not deter the Applicant from further offending.

43. In September 2018, the Migration and Refugee Division of this Tribunal set aside the decision to cancel the Applicant’s visa.[55] At paragraph 25 of the decision, the Tribunal said:

    In considering this matter, I have carefully considered the nature and extent of Mr [WJXV]’s criminal behaviour and have concluded that it does constitute grounds for cancellation. Against this I have weighed Mr [WJXV]’s subjective factors, including his upbringing, mental health history, measures to deal with addiction, ties to Australia and the hardship he would encounter were his visa to be cancelled. On balance the considerations against cancellation very slightly prevail. It is, however, unlikely that this conclusion would survive any further criminal offending.[56]

    [55] Exhibit R1, Supplementary Documents at 554 – 559.

    [56] Ibid.

44. Once again, the Applicant appears to have taken precisely no notice of the cautionary words and rare opportunity offered by the Tribunal.  On 10 November 2018, two months to the day from the Tribunal’s decision, the Applicant was found in possession of a hypodermic syringe that had been used in connection with the administration of a dangerous drug.[57] He continued to offend regularly after he received the Tribunal’s decision, and committed a further 36 offences. Considering the Applicant’s first warning, when combined with a second warning, we give very significant weight against this conduct.

    [57] Exhibit R1, Supplementary Documents at 205.

45. We note therefore, that this is the second occasion within less than two and a half years that the Applicant has sought review of a decision pertaining to the cancellation of his visa. It is an extremely rare circumstance for an Applicant to reappear before this Tribunal after having been the recipient of a NOICC, a subsequent visa cancellation, and a beneficial outcome of a prior application to this Tribunal. It is clear that past warnings to this Applicant have fallen on deaf ears, and we are of the view there is no point in repeating them.

46. This consideration weighs to the maximum against the Applicant.

47. Sub-paragraph (i) of paragraph 13.1.1(1) of the Direction refers to a non-citizen who has committed a crime while in immigration detention in Australia.

48. There is no evidence that the Applicant has committed a crime while in immigration detention in Australia, and the Tribunal therefore gives this consideration no weight.

1. Having regard to the totality of the evidence to which the abovementioned relevant sub‑paragraphs (a), (c), (d), (e), (f), and (h) of paragraph 13.1.1(1) of the Direction are relevant, we are of the view that the nature and seriousness of the Applicant’s offending conduct can be readily characterised as “extremely serious”.

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

2. Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:

   (i)paragraph 13.1.2(1)(a) requires us to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   (ii)paragraph 13.1.2(1)(b) requires us to consider the likelihood of the non‑citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.

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

3. The Respondent has submitted[58] that the nature of the harm which would arise if the Applicant engaged in other conduct similar to that in the past includes:

   (a)with respect to crimes of violence, the Applicant may cause physical harm to other members of the community;

   (b)with respect to property based offences such as theft, the Applicant may cause loss of property and related harm; and

   (c)with respect to drug use, the Applicant may cause harm to himself and the broader community, particularly in terms of committing property or violent offences to support his drug addiction.

   [58] Exhibit R2, Respondent’s Statement of Facts, Issues and Contentions at [38].

4. Paragraph 6.3 (4) of the Direction stipulates that decision-makers should be guided by the principle that criminal offending and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. On the basis of this paragraph 6.3 (4), we think the Respondent’s above-mentioned contention is correct.

5. The nature of the Applicant’s offending as has evolved over his lengthy and complex criminal history set out above is self-explanatory. His primary occupation over this period appears to have been stealing in order to fund his drug and alcohol addictions. He appears to have had little if any gainful, long term employment.

6. His past conduct includes violence and threats of violence against individuals. He has abused, threatened, kicked and punched police officers, and caused one to receive a 5 cm wound which required ten stitches. He has, whilst intoxicated, used a motor vehicle to injure a police officer. It is only through good fortune that no individual or officer was seriously injured or worse during this episode. He has damaged properties in order to unlawfully gain entry, and he has stolen property after having done so. He has damaged police vehicles on multiple occasions.

7. We are of the view that were he to reoffend, this Applicant’s conduct could seriously impact  the property and physical safety and well-being not only of members of the public, but on the physical safety of police and police property as well. We therefore think it inescapable to conclude that the potential consequences flowing from further similar or identical offending by this Applicant would be very serious indeed, and we give great weight to this.

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

8. The recurrent theme which runs through this Applicant’s history is reoffending whilst on bail, probation, parole, or other court order. He has regularly and routinely failed to demonstrate any desire or preparedness to respect the Australian legal framework.

9. The formal warning he received via the NOICC, the subsequent visa cancellation, and the cautionary words of the Tribunal’s decision setting aside the prior visa cancellation, and many admonitions from the bench appear to have been water off a duck’s back.

10. The remarks of Judge Muir and Magistrate Kilner set out above, demonstrate their concern, and indeed expectation that this Applicant is likely to be facing further sentences of imprisonment if he is released back into the community.

11. The Applicant has expressed hope that he can reform himself however in view of his past conduct we give this little credence. The Applicant has had the support of family and friends available to him in the past, but this has failed to yield any apparent benefit. The Applicant has had many years and opportunities to rehabilitate himself but has failed to do so in the past, and there appears to be little reason to believe that he is capable of doing so in the future.

12. We note that a Queensland Corrective Services Parole Board Assessment Report dated 12 November 2019 assessed the Applicant as a “high risk of recidivism should he be released at this point in his sentence”.[59] We give substantial weight to this.

    [59] Exhibit R1, Supplementary Documents at 378 – 379.

13. Again we find ourselves drawn to the inescapable conclusion that there is a very high likelihood that this Applicant will engage in further criminal or other serious conduct should he be permitted to re-join the Australian community, and this must weigh very heavily against the Applicant.

    Conclusion: Primary Consideration A

14. The Applicant’s offending and sentencing history clearly demonstrates that he has had many opportunities to modify and ameliorate his conduct. The courts have been patient with him in giving him the benefit of a graduated sentencing regime, however that patience appears close to exhaustion.

15. We have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and have also had regard to subparagraph 6.3(3)-(4) of the Direction. We find that the nature of the Applicant’s offending conduct today is at least very serious, and that there is a very strong and convincing likelihood that he will engage in further very serious conduct if returned to the Australian community.

16. Having considered the entirety of the evidence and each of the relevant factors contained in the Direction, we find that Primary Consideration A weighs very heavily in favour of non-revocation.

    PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

17. Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether cancellation is or is not in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to cancel the subject visa is expected to be made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

18. It is first necessary to identify the children actually or possible relevant to this proceeding.

19. The Applicant is not the father to any children, however in his request for revocation of a mandatory visa cancellation[60] he nominated four stepsiblings as children. One of these has since turned 18, and the remaining three children under the age of 18 are:

    (a)Child T;

    (b)Child A; and

    (c)Child K.

    [60] Exhibit G1, G Documents,G15 at 81.

20. At the hearing, it emerged that the Applicant’s mother has re-partnered with a gentleman named Mr T who has three children, Child Y aged 12, Child R, aged nine and Child H aged six. These children are not blood relatives of the Applicant, and have spent about seven or eight weekends over the course of a few months with the Applicant a couple of years ago when he was living at his mother’s residence. There is evidence before the tribunal that Mr T has previously objected to the Applicant living in the same residence as his three children,[61] because of concerns about substance abuse or other poor behaviours. This appears to be the extent of the evidence before the Tribunal in relation of the Applicant’s likely future interaction with those children.

    [61] Exhibit R1, Supplementary Documents at 395 – 396.

21. We are unable to see that the interests of Mr T’s children differ as between themselves. It appears likely that Mr T will take steps to prevent any contact or interaction between his children and the Applicant. There is insufficient evidence before the Tribunal so as to enable it to make a finding that Mr T’s children will be impacted other than marginally, if at all, by a decision in the present review.

22. The Applicant’s step-brother Child T resides with the Applicant’s step-mother, and is aged 10 years, and lives with her in Sydney. The Applicant gave evidence that he has not seen him in a long time, probably seven years, but talks to him on the telephone. Child T’s mother, Ms R told the Tribunal that the Applicant had not physically seen Child T in five years,[62] but she thought that the Applicant spoke to Child T fairly frequently. She also told the Tribunal that Child T knew the Applicant had been in trouble and was in gaol, but did not know what his offences were. Her knowledge of the Applicant’s offending was limited to stealing, a gun charge, and “a lot of theft and drugs”.[63] She expressed concerns about the impact that involvement with the Applicant might have on Child T. She agreed that she was not aware of all of the Applicant’s offending.

    [62] Transcript, page 65, line 35.

    [63] Ibid, page 57, line 16.

    Application of Factors in Paragraph 13.2(4) of the Direction

23. Paragraph 13.2(4) of the Direction provides a list of factors to be considered in determining the best interests of the abovementioned minor children. Those factors relevantly comprise for present purposes:

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

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

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

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

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

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

    (g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

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

24. Sub-paragraph (a) of paragraph 13.2(4) of the Direction refers to the nature and duration of the relationship between the child/ren and the non-citizen. As a general proposition, less weight should be given to this factor where there have been long periods of absence or limited meaningful contact between the Applicant and the child/ren.

25. In respect of Child T, the Tribunal accepts that the child is the Applicant’s stepsibling, and has been known to him since birth. We also accept that there is a good relationship between the child and the Applicant. Living remotely from each other, they have not physically seen each other in at least five years, but maintain meaningful contact regularly.

26. In respect of the children Child K, aged 16, and Child A aged 12, the Tribunal accepts that the children are the Applicant’s stepsiblings and have been known to him since birth. Neither child has visited the Applicant since the Applicant was sent to prison, and there is no evidence of recent or regular communication between the children and the Applicant.

27. Sub-paragraph (b) of paragraph 13.2(4) of the Direction requires a decision-maker to make an assessment of the extent to which the Applicant is likely to play a parental role in the future, taking into account the length of time there is until the child/ren turn 18. Any application of this sub-paragraph (b) is informed by the extent to which the Applicant has played any such role to date.

28. In respect of Child T, the Applicant has thus far played no parental role, and is unlikely to play any such role in the future.

29. The same can be said for the children Child K and Child A.

30. Sub-paragraph (c) of paragraph 13.2(4) of the Direction involves an assessment of any negative impact of the Applicant’s prior conduct, and any likely future conduct, on any of the children.

31. In respect of Child T, there is no clear evidence before us that the Applicant’s prior conduct has had any negative impact on him.  We hold concerns having regard to the Applicant’s long-term life of crime and drugs as to the potential for the Applicant’s conduct to have a negative impact on the child should they reside in close proximity.

32. In respect of the children Child K and Child A, there is no clear evidence that the Applicant’s prior conduct has had any negative impact on either of them either. Based on past experience, the Applicant is not likely to live with these children for any length of time should he be released back into the community. Having regard to the Applicant’s protracted life of crime and drugs, we nevertheless do hold concerns as to the potential for the Applicant’s conduct to have a negative impact on these two children.

33. Sub-paragraph (d) of paragraph 13.2(4) of the Direction refers to an assessment of the likely effect that any separation of the three children from the Applicant would have on them, taking into account the Applicant’s ability to maintain contact in other ways.

34. In respect of Child T, we note that the Applicant and the child now been physically separated for not less than five years, and as at the date of this decision Child T is only 10 years old. We note that if the Applicant is relocated to New Zealand, there will be no significant difference in the communications between Child T and the Applicant other than that they will be doing it on an international rather than interstate basis.

35. In respect of the children Child K and Child A, we accept that the Applicant and child lived under the same roof until the Applicant was imprisoned, but have not seen the Applicant since. There is no clear evidence that these children have had any significant contact with the Applicant for a considerable period of time. We note that if the Applicant is relocated to New Zealand, there will be able opportunity for him to communicate with the child via the Internet.

36. Sub-paragraph (e) of paragraph 13.2(4) of the Direction asks whether there are other persons who already fulfil a parental role in relation to the children.

37. In respect of Child T, we note that his biological mother already fulfils a parental role in relation to him.

38. In respect of the children Child K and Child A, we note that they continue to reside with their mother who already fulfils a parental role in relation to both of them.

39. Sub-paragraph (f) of paragraph 13.2(4) of the Direction requires the Tribunal to consider any known views of the children about their separation from the Applicant, having regard to their age and maturity.

40. In respect of Child T, we accept having regard to the evidence of the Applicant and Child T’s mother, that the child will not want to be separated from the Applicant.

41. In respect of Child K and Child A, there is little specific evidence as to the children’s views on the Applicant’s removal from Australia. We nevertheless accept that it is likely that they will not want to be separated from the Applicant.

42. Sub-paragraph (g) of paragraph 13.2(4) of the Direction looks to evidence that the Applicant has abused or neglected the child/ren in any way, including physical, sexual, and/or mental abuse or neglect.

43. There is no evidence before us that the Applicant has in any way abused or neglected any child.

44. Sub-paragraph (h) of paragraph 13.2(4) of the Direction looks for evidence that the child/ren have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.

45. There is no evidence before us that any child has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.

    Conclusion: Primary Consideration B

46. Having considered the above considerations in the light of the available evidence, we find that the best interests of the children weigh slightly in favour of revocation of the decision to cancel the Applicant’s visa.

    PRIMARY CONSIDERATION C: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

    The relevant paragraphs in the Direction

47. In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1)[64] of the Direction provides that we should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. we must also have regard to (1) the Government’s views in this respect and (2) any overarching principles and guidance provided by the Direction.[65] Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that he/she should not hold a visa.

    [64] The terms of paragraph 13.3(1) of the new Direction 79 are identical to the terms of paragraph 13.3(1) of the now revoked Direction 65.

    [65] See the Direction, paragraphs 6.2(1) and 6.3(1)-(7).

    The Evolution of the Australian Community’s “Expectations”

48. In 2003, this Tribunal said that in considering weight attributable to this Primary Consideration C, one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[66]

    [66] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] (per DP Block).

49. In 2017, Deputy President Forgie of this Tribunal considered that paragraph 13.3(1) of the Direction leads a decision-maker to:[67]

    “102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…”

    [Tribunal’s underlining]

    [67] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].

50. This more circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection (“YNQY”):[68]

    “In substance this consideration is adverse to any applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes.”

    [Tribunal’s underlining]

    [68] [2017] FCA 1466 at [76]-[77].

1. The learned Justice Mortimer also thought the last two sentences of paragraph 13.3 of the Direction:

   “…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

   [77] we do not consider that even if the Applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…”

   [Tribunal’s underlining]

2. In Afu v Minister for Home Affairs (“Afu”),[69] Justice Bromwich said:

   “The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.”

   [Tribunal’s underlining]

   [69] [2018] FCA 1311 at [85].

3. In FYBR v Minister for Home Affairs (“FYBR”),[70] Justice Perry observed that:

   “It follows, in line with the authorities, that cl 11.3 of Direction 65[71] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...” [72]

   [Tribunal’s underlining]

   [70] [2019] FCA 500.

   [71]  Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.

   [72] FYBR, paragraph [42] (Perry J).

4. The single judge decision in FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld the single judge decision in FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian community.[73]

   [73] See FYBR v Minister for Home Affairs [2019] FCAFC 185.

5. Thus, the Full Court’s decision, along with the existing authorities of YNQY and Afu establish that:

   (a)the “expectations of the Australian community” cannot be measured or determined as in the case of a provable fact. Rather, it is an assessment of community values made on behalf of that community.[74]

   (b)it is not for the Tribunal to determine for itself what such “expectations” are by reference to the Applicant’s circumstances or evidence about those expectations;[75]

   (c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks the “expectations of the Australian community” are, and the Tribunal should have due regard of those statements, if made;[76]

   (d)in assessing the weight attributable to this Primary Consideration C, decision‑makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision-maker.[77]

   [74] Afu at paragraph [85].

   [75] FYBR at paragraph [42].

   [76] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.

   [77] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).

   Analysis – Allocation of Weight to this Primary Consideration C

6. In weighing this consideration, there is no escaping the clear unequivocal language of the very simple proposition found in paragraph 13.3 (1) of the Direction. It is in these words. “The Australian community expects non-citizens to obey Australian laws while in Australia.” The language could not be clearer. Neither could the Applicant’s failure to meet this expectation. During the time this Applicant has been in Australia he has committed some 123 offences and spent little if any time during the last 10 years when he’s not been on bail, probation, a suspended sentence, or incarcerated. He has routinely ignored court orders, and insulted, abused, threatened, assaulted and wounded, those who make a career out of trying to keep Australia a safe place to live. He has been sentenced to many years of imprisonment. He has made little or no discernible positive contribution to the Australian community. He has for all practical purposes, turned a deaf ear to all sources of counselling, and all forms of warning, including judicial advice, a departmental warning, a visa cancellation, and a cautiously worded beneficial decision from the Migration and Refugee Division of this tribunal. We have looked for, and found, no reason to believe that this Applicant is corrigible.

7. Not only has this Applicant breached his obligation to obey Australian law, there is an unacceptable risk that he will do so again given the opportunity. We believe the Australian community would strongly expect that this Applicant should not hold a visa.

   Conclusion: Primary Consideration C

8. We accordingly find that this Primary Consideration C is to be given heavy weight in favour of affirming the non-revocation decision under review.

   OTHER CONSIDERATIONS

9. It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. we will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).

   (a) International non-refoulement obligations

10. The Applicant has not claimed to fear harm if returned to New Zealand. None of the evidence suggests a risk of harm were that to occur. This consideration is not relevant to determination of this application.

    (b) Strength, nature and duration of ties

11. We accept that the Applicant did not come to the adverse notice of police until he was 14 years of age at which time he appeared in the Southport Children’s Court and was reprimanded on 14 October 2009 in respect of unauthorised dealing with shop goods.

12. It is clear that the Applicant did not commence offending until he lived in Australia about 10 years, and this therefore does not lessen the weight which should be given to this Other Consideration in accordance with paragraph 14.2 (1)(a)(i) of Direction 79. However, the Applicant does not appear to have spent significant time contributing positively to the Australian community, and this only attracts a little weight in his favour paragraph 14.2 (1)(a)(i) of Direction 79.

13. In having regard for this consideration, we have had regard for the Principles at paragraph 6.3 of the Direction, and in particular at subparagraph (5) where it is stated “However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.” We accept that the Applicant commenced living in Australia at the age of about 4 ½ years, and that his mother, stepmother, and step siblings as well as other family members reside in Australia. He has now resided in Australia for over 21 years. We also accept that should the Applicant’s visa remain cancelled this will impact on all of these people to some degree. We also accept that the Applicant has had very limited periods of employment in Australia.

14. We give this consideration limited weight in favour of revocation.

    (c) Impact on Australian business interests

15. There is no evidence before us that the cancellation of the Applicant’s visa would have an impact on Australian business interests, or would significantly compromise the delivery of a major project, or delivery of an important service in Australia. We therefore find that this consideration is not relevant to determination of this application, and give it neutral weight.

    (d) Impact on victims

16. There is no evidence before us relating to the impact that the Applicant’s continued presence in Australia would have on any of his victims, and we therefore make no finding in relation to this consideration, and give it neutral weight.

    (e) Extent of impediments if removed

17. In his reasons for requesting revocation of the cancellation of his visa, the Applicant stated:

    All my family are here in Australia, I have no one in New Zealand.

    Ive been in Australia since I was 2 years old, this is all I know.

    I have bad mental health and I dont know how Im gonna (sic) cope if I do get deported.

    I came over to Australia in 1997 with my dad, he passed away when I was 18 he means everything to me. I havent been the same since.

    I am remorseful for my crimes and am willing to change. [78]

    [errors in original]

    [78] Exhibit G1, G Documents, G15 at 70.

18. The Applicant also stated that his criminal offending had a lot to do with his getting caught up in the wrong crowd, and that he also acquired a bad drug habit after his father passed away. We give little weight to this evidence. It is clear from material before us that the Applicant had a serious drug and alcohol habit well before his father passed away, and we note that for the most part, he has acted solely in his criminal activity. If in fact the Applicant’s drug problems stem from bad company, relocating away from his current associates may in fact be doing him a favour. The Applicant has had 10 years and many opportunities to rehabilitate himself and has not done so. We therefore give little weight to his stated desires and intentions of redeeming himself at this time.

19. We have had regard for the statement provided to the Department by Zaia Rosita Freriechs who was not called to give evidence at the hearing.[79] Ms Freriechs spoke glowingly and sympathetically of a generous caring family orientated young man who unfortunately was caught up in the wrong crowd. Ms Freriechs said that the Applicant “was always looking for work and at one point secured a job painting housing in the Northern Beaches of Sydney. I will always remember his joy and excitement when informing me of his new job.” Ms Freriechs’ statement was provided to the Department in November 2019. In his evidence before the Tribunal, the Applicant did not mention a job painting houses.

    [79] Exhibit G1, G Documents, G17 at 89.

20. The Tribunal received evidence from Mrs H, the mother of the Applicant, who gave evidence consistent with her written statement that the Applicant is intelligent and is loved by his three siblings. She also stated that all of his family reside in Australia, and that his deportation would have a devastating impact on his siblings and on his own mental health as he has no support regarding family in New Zealand.

21. The Tribunal also received evidence from Ms R, the Applicant’s stepmother who has known him since he was 11 years old. Ms R echoed the evidence of the Applicant and his mother as to the hardships he will endure in the event that he is required to relocate to New Zealand. Ms R spoke of a lack of support for the Applicant, and his need to be supported and guided. If this is correct, he has obviously not been receiving that support and guidance in Australia, and would not be in his current predicament if he had.

22. We accept the evidence of the Applicant and his mother and step mother that whilst he does have some blood relatives in New Zealand, he has had practically nothing to do with them, and will be to a significant degree without the support of family or friends should he relocate to New Zealand. We also accept that it will be upsetting for the Applicant and his family should he not be able to return to Australia. However, there is no evidence before us of any impediment to the travel by any member of the Applicant’s family, or any of his friends to New Zealand. Whilst travel to New Zealand is presently impacted to some degree by the pandemic, there is the possibility of establishing a travel bubble between Australia and New Zealand, and we think it likely that any of his family or friends who wish to travel to visit him there should be able to do so in the not-too-distant future.

23. We also accept that the Applicant, who is presently 25 years of age, has lived in Australia since he was an infant, and that he has significant mental health problems, including drug induced psychosis, anxiety, and depression.[80] However we are mindful of the fact that New Zealand has a very good health system, and he would be able to receive treatment and medication there which would be comparable to what he might expect to receive in Australia. We also accept that the Applicant has some physical impediments in terms of his vision and an ankle injury, however, we do not consider that they are so significant as to be given any great weight in this regard. We note that there are no language or cultural barriers to the Applicant’s potential assimilation in New Zealand. We also note that New Zealand is a developed country, with a strong social welfare system on which he will almost certainly be dependent.  

    [80] Exhibit G1, G Documents, G16 at 84.

24. Overall we view this consideration as being of very slight weight in favour of revocation.

    Findings: Other Considerations

25. With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which each weighing heavily in favour of non‑revocation. The application of the Other Considerations in the present matter can be summarised as follows:

    ·international non-refoulement obligations: not relevant;

    ·strength nature and duration of ties: limited weight in favour of revocation;

    ·impact on Australian business interests: neutral;

    ·impact on victims: neutral; and

    ·extent of impediments if removed: very slight weight in favour of revocation.

    CONCLUSION

26. We are now required to weigh all of the Considerations in accordance with the Direction. 

27. In considering whether there is another reason to exercise the discretion afforded by section 501CA(4) of the Act to revoke the mandatory visa cancellation decision, we find as follows:

    ·Primary Consideration A weighs very heavily in favour of non-revocation;

    ·Primary Consideration B weighs slightly in favour of revocation;

    ·Primary Consideration C weighs heavily in favour of non-revocation; and

    ·To the extent that Primary Consideration B and Other Considerations weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.

28. Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.

29. Consequently, we cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.

    DECISION

30. The decision under review is affirmed.

I certify that the preceding 195 (one hundred and ninety five) paragraphs are a true copy of the reasons for the decision herein of Senior Member T Tavoularis and Member R Maguire

.........................[SGD].............................
Associate

Dated: 11 November 2020

Date(s) of hearing:	28/10/2020
Date final submissions received:	22/10/2020
Applicant	Via Microsoft Teams
Solicitors for the Respondent:	Mr D McLaren, Minter Ellison Solicitors

Annexure A

Exhibit Register

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G21) pages 1 - 129	R	-	10 SEP 20
R1	Respondent’s Supplementary Documents (S1 to S68) pages 1 - 568	R	-	20 OCT 20
R2	Respondent’s Statement of Facts, Issues and Contentions (15 pages)	R	20 OCT 20	20 OCT 20
A1	Statement of WJXV	A	-	12 OCT 20
A2	Statement of Mrs H	A	-	22 OCT 20