WVJB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2023] AATA 1388

WVJB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 1388 (22 May 2023)
Division:GENERAL DIVISION
File Number: 2023/1386
Re:WVJB

APPLICANT

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

DECISION
Tribunal:Member R West
Date:22 May 2023
Place:Melbourne

The Tribunal affirms the decision under review.
..........................[SGD]..............................................
Member R West
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – other considerations – legal consequences of the decision – extent of impediments if removed – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
CGX20 v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs (No 2) [2020] FCA 1842
CKL21 v Minister for Home Affairs [2022] FCAFC 70
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 599
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197
NHBK and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 364
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection (2016) FCA 348
Secondary Materials
Direction No. 99 – Migration Act 1958 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Member R West
22 May 2023

This matter concerns an application for the review of the decision of a delegate of the Respondent dated 20 December 2022 not to exercise the discretion under s 501CA(4) of the Migration Act 1958 (Cth) (Act) to revoke the mandatory cancellation of the Applicant’s Special Category (Temporary) (Class TY) (Subclass 444) visa under 501(3A) of the Act.
BACKGROUND
The Applicant was born in New Zealand in November 1962.
He first arrived in Australia in about 1979 and was granted a Special Category (Temporary) (Class TY) (Subclass 444) visa (Visa) on 1 September 1994.[1]
[1] G8 at p.40.
The Applicant has a lengthy criminal record in New Zealand and Australia.[2]
[2] G3 and G4.
On 24 November 2006 the Applicant was convicted in the Supreme Court of South Australia of murder and sentenced to a term of imprisonment of life with a non-parole period of 16 years.[3] He was released from prison on parole on 21 July 2021[4] and taken into immigration detention.
[3] G5 at pp.29-33.
[4] G17 at p.113.
On 20 January 2020 the Visa was cancelled by a delegate of the Minister under s 501(3A) of the Act.[5]
[5] G8 at pp.40-44.
On 2 March 2022 the Applicant was notified of the cancellation decision.[6]
[6] A previous notice dated 20 January 2020 did not comply with the requirements of the Act identified in EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173 and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174, necessitating a re-notification on 2 March 2022.
On 5 April 2022 the Applicant sought revocation of the cancellation decision.[7]
[7] G6 at pp.34-37.
On 24 February 2023 a delegate of the Minister decided not to revoke the cancellation of the Visa under s 501CA(4) of the Act (Reviewable Decision).[8] The Reviewable Decision was notified to the Applicant on 28 February 2023.[9]
[8] G2 at pp.12-22.
[9] G2 at pp.9-11.
On 5 March 2023 the Applicant applied to the Tribunal for a review of the Reviewable Decision (Application).[10]
[10] G1 at pp.1-8.
HEARING
The Tribunal conducted a hearing of the Application on 15 and 16 May 2023. The Applicant was represented by Mr John Riordon of counsel. The Respondent was represented by Ms Samantha Liddy, a solicitor from Sparke Helmore.
In conducting the review, the Tribunal had regard to:
(a)the documents produced to the Tribunal by the Respondent pursuant to s 501G of the Act, sequentially numbered G1 to G23 and paginated from pages 1 to 157 (G Documents).
(b)the documents produced under summons and lodged by the Respondent and marked as exhibits in Appendix A;
(c)the documents lodged by the Applicant and marked as exhibits in Appendix A, and
(d)the oral evidence of:
(i)the Applicant;
(ii)the Applicant’s brother, Mr TT; and
(iii)Mr TB.
LEGISLATIVE FRAMEWORK
Section 501CA(4) of the Act enables the Tribunal on review to revoke the mandatory visa cancellation decision if it is satisfied that:
(a) the Applicant passes the character test as defined in s 501; or
(b) there is another reason why the cancellation should be revoked.
Section 501(6)(a) provides that a person is deemed not to pass the character test if they have a substantial criminal record. Section 501(7)(c) provides that for the purpose of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
On 24 November 2006 the Applicant was convicted in the Supreme Court of South Australia of murder and sentenced to a term of imprisonment for life with a non-parole period of 16 years.[11]
[11] G5 at pp.29-33.
On the basis of this sentence, the Tribunal is satisfied that the Applicant has a substantial criminal record as defined in s 501(7)(d) and that by virtue of s 501(6)(a), the Applicant is deemed not to pass the character test.
Accordingly, the sole issue before the Tribunal is whether, under s 501CA(4)(b)(ii), there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked.
On 23 January 2023, the Minister issued Direction No. 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 99) to commence operation from 3 March 2023. Direction 99 provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s visa should be revoked.[12]
[12] Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that the Tribunal must comply with the direction. See Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238, [591].
DIRECTION 99
Clause 6 of Part 2 of Direction 99 provides that decision-makers must take into account the considerations identified in cls 8 and 9, where relevant to the decision.
Clause 8 of Part 2 sets out five primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia
(4) the best interests of minor children in Australia; and
(5) expectations of the Australian community.
Clause 9(1) of Part 2 sets out other considerations. These include, but are not limited to:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims;
(d)impact on Australian business interests
Clause 6 stipulates that the decision maker must be informed by the principles stated in cl 5.2 in assessing these considerations.
EVIDENCE
Applicant’s Criminal Record
The Applicant has an extensive criminal record, commencing in 1981. A complete statement of the Applicant’s criminal record is set out in a National Criminal History Check produced by the Australian Criminal Intelligence Commission.[13]
[13] G3 and G4 at pp.24-28.
His criminal record includes his conviction for murder on 24 November 2006 for which he was sentenced to life in prison with a minimum parole period of 16 years.
Prior to the Applicant’s arrest and subsequent conviction for murder in 2006, he was convicted of numerous offences in South Australia, Victoria and New South Wales commencing in 1987. The offences include multiple offences for drug possession, public drunkenness, unlawful possession (GIC), indecent language, driving offences and two convictions for assault, including of a police officer. For these offences he received only one custodial sentence. In 1992, he was convicted of 5 counts of unlawful possession for which he received an aggregate sentence of 6 months in prison. He was otherwise subject to fines and driving disqualification penalties.
He was also convicted of offences in New Zealand between 1981 and 1985. The offences included cultivation of cannabis, receiving stolen property, burglary and various driving offences,[14] for which he received various non-custodial sentences.
[14] He was also convicted of burglary in 1978 while a minor, but this conviction was not considered.
Sentencing Remarks
In sentencing the Applicant following his conviction for murder in 2006, the sentencing judge, Justice Anderson of the Supreme Court of South Australia, made the following remarks:[15]
[15] G5 at pp.29-33.
(a)His Honour noted that the sentence of life imprisonment was a statutory mandatory sentence.
(b)He described the nature of the crime as follows:
It is fair to say that your attack on the deceased was sustained and merciless. You stabbed him many times to the head, neck, chest and back areas, and from the forensic and post-mortem evidence, he was clearly attempting to defend himself.
In summary, there were five distinct stab wounds to the head, 21 to the neck, 12 to the trunk and six stab wounds and many abrasions to the limbs. In some cases, there were both entry and exit wounds because of the depth of the wounds. Associated with the stab wounds to the neck, there was penetration of the airway, a full thickness wound through part of the thyroid cartilage, a near complete transection of the left internal jugular vein and transection of some neck muscles. There was a deep-penetrating stab wound into the fifth cervical vertebra which resulted in a transection of the left vertebral artery. The wounds on the trunk included one deep wound which was V-shaped. This wound had caused a lump of large intestine to protrude. It had penetrated the liver and gone to a total depth of 10 cm.
It appears that your attack on the deceased with a knife commenced in the kitchen area of his home, but then proceeded across the lounge room and that you were actively pursuing him in his attempts to get away from you.
From the forensic evidence, I find that, although significant stab wounds were inflicted in the kitchen, the movement of you and your victim, from the bloodstains examined at the scene, indicates a general movement in the direction of the living room where, again, a combination of forensic conclusions from bloodstains and shoe marks indicates a further struggle between you and the deceased. This finally concluded at the front door, where, again, the forensic evidence establishes that there were further stabbings inflicted.
In short, you have continually stabbed a defenceless man in an unprovoked attack.
(c)His Honour found that the Applicant’s actions were premeditated, noting that …when you went round to the deceased’s house that evening it was your intention to kill him.[16]
[16] G5 at p.32 at [23].
Applicant’s Evidence
The Applicant affirmed his statements of 24 April 2023[17] and 10 May 2023[18] and gave oral evidence at the hearing.
[17] Exhibit A1.
[18] Exhibit A2.
In his statement of 24 April 2023, the Applicant stated:
(a)He is currently 60 years of age and is a citizen of New Zealand. He is single and has no children.
(b)His mother abandoned him and his siblings many years ago. His biological father has passed away. His brothers and sisters live in Australia.
(c)He completed Form 4 (or Grade 9 in Australia) at school.
(d)He first entered Australia when I was about 16 years of age in 1978 and took up residency in Australia in 1981 or 1982. By operation of law, he was granted a Subclass 444 visa on 1 September 1994.
(e)He has physical and mental health issues that are being dealt with through medication. He has a slipped disc and arthritis in the back, hips and shoulders for which he takes Celebrex and Panadol Osteo. He also suffers from depression and anxiety, for which he takes anti-depressant medication. He is currently seeing mental health counsellors and drug and alcohol counsellors while in detention. When he was in prison he was on the Bupe Program (Buprenorphine) and then transferred to the Methadone Program to address his drug addiction and he has continued taking Methadone while in the detention centre. He said he had a neuropsychological assessment at the detention centre in March 2023 and was told that he had alcohol-related brain impairment.
(f)He said he has a carer to help him with his daily routines including assistance with meals, cleaning and showering from 10:00 am to 6:00 pm Monday to Sunday.
(g)He described his childhood in New Zealand as quite traumatic and he developed social anxiety which he continues to deal with. He said his parents divorced when he was seven years old and his mother remarried. He said his stepfather (now deceased) used to beat him and degrade him. He described himself as petite and said this also added to his low self-esteem.
(h)He said that he began committing burglary when he was 15 years old and was caught and remanded into custody. He said he was placed in a cell with an adult male who sexually abused him.
(i)He said that when he was 16 years of age, his mother sent him to Australia to live with his brother, but he went back and forth between the countries until he was 20 years of age when his mother said she would not receive him at home again.
(j)He said that while in Australia, he did seasonal work or worked in factories and on boats. He said that in 1982-83 at about 21 years of age he went with his brothers’ friends to seek work in Darwin after Cyclone Tracy, but he became separated and found himself homeless. He said he was homeless from then until 2002-3 when, at age 42, he was placed in public housing, although throughout that period, he found various temporary housing. He said he worked at various jobs in Victoria, NSW and South Australia, including on a fishing trawler and was able to obtain a Coxswain's Ticket at TAFE in Lakes Entrance, Victoria.
(k)He said that during this time he felt broken emotionally and began drinking more often. He said he had attempted suicide a number of times but found Christ which gave him hope. At various times he volunteered with community groups, including the Newcastle City Mission, St Vincent De Paul Society in Darwin and the Salvation Army in Batemans Bay, NSW.
(l)He said that he made several attempts at alcohol rehabilitation beginning in his mid-twenties because he hated the way he lived, particularly the hangovers and the run-ins with the law. This including programs in Newcastle NSW, Woden Valley Hospital in Canberra, the Salvation Army Bridge Program in Warrnambool and Reservoir, Victoria, and St Vincent’s in Wagga Wagga, NSW. He said he also had a Drug and Alcohol Counsellor in Waikerie, South Australia, as well as a social worker.
(m)He described the circumstances leading up to the murder of PF in 2004 as follows:
I had met him at the library and had started to drink with him on occasion. He suggested online dating, which was new to me, and I became interested. But I found that the profiles were all very young girls. Seeing this, had an effect on me because of my life on the streets at a youthful looking age and the abuse I had seen the young girls on the streets go through and I believe my childhood trauma also played a part.
I had been drinking though my levels were low. Not to excuse what I had done or my responsibility, if I had been sober none of this would have happened. My childhood trauma played a part in this too I believe.[19]
[19] Exhibit A1 at [57]-[58].
(n)He said that he has been committed to his rehabilitation while in prison and detention since his arrest in 2004. He said he had done a number of courses, including mindfulness and CBT therapy, the Making Changes Program for drug and alcohol, Traffic Management, White Card, Certificate in Ministry, Certificate in Horticulture and Business Studies and various computer courses, including Operate Presentations, Operate Spreadsheets, Operate Word-Processing, Make a Presentation, Support Operational Plan, Cooking, Food Safety, and Write Complex Documents. He said he also saw a mental health practitioner and the psychiatrist while in prison.
(o)While in prison, he set up the library of over 5000 books, including audio books which took about a year and a half to finish. He said he was then the librarian for 5-6 years.
(p)He said he intends to continue to build connections so that he can reach out for help if he needs it when released, and he keeps notes on his phone of mental health services for phone support.
(q)He also noted that he will be on parole for the rest of his life and must continue to do the right thing in the community or he will have to go back to prison. He said that under the terms of his parole he must keep the peace and report to his corrections officer regularly and he is not allowed to touch alcohol or other drugs or commit an offence or carry a weapon.
(r)He said that he has developed a close relationship with a women named AA, whom he met through his brother, TT. She has two daughters MA (5) and MI (10) and four sons C (16), O (17), M (18) and D (19). He said he encountered AA in Mallacoota 20 years ago and started speaking with her again about two years ago after he was taken into detention. He said he had previously planned on moving in with AA when he was released from prison to see how their relationship would work but she was dealing with her own family law proceedings and mental health difficulties. He said they have a friendship that he hopes will continue on and develop into something more. He described the relationship with AA as his first relationship. He said:
We talked twice to three times a day, but she has issues with a previous partner and has recently been diagnosed with liver problems and diabetes and I believe me talking about my issues in here and recent health issues has been nothing but depressing for her. So, at present we communicate by text, and I am not sure what the future holds for us.[20]
[20] Ibid at [73].
(s)He said he remembers little of New Zealand apart from his difficult childhood and he is afraid of the impact on his mental and physical health if he is returned to New Zealand. He said he would likely move to the South Island because of the trauma he experienced in the North Island as a child, but he would have no one there and it would be foreign to him. He would need help to find accommodation, employment, find a GP for medical treatment, be linked into a mental health counsellor, drug and alcohol counselling and find a carer to help him.
(t)He said he has always considered Australia to be home and has family ties to the country, including:
(i)His brother TT who has always been a support for him and who will be impacted if he cannot stay in Australia. He said TT is relying on him to go and live with him to help him out, with firewood, gardening, and keeping him company. He also said that he would like to connect with TT’s children K and S whom he had spoken with a couple of times on the phone, but he had been in prison while they have been growing up.
(ii)His sister, D who is in Queensland and has three children with whom he hasn’t spoken since he went to prison.
(iii)His younger brother, P (adopted brother), his de facto partner, Rl and their daughter B, who live in Sydney and with whom he speaks by phone.
(iv)His stepbrother, R, with whom he has had no contact.
(u)He also said he has other personal connections, including:
(i)a good friend, G, in Western Australia that he has been trying to reconnect with online;
(ii)a friend C, in Broadmeadows, Victoria whose mother, M, let him stay with her many times on his visits to Melbourne;
(iii)a friend TB and his wife, MB, in South Australia, who have visited him regularly while in prison whom he met through the Church. He said he speaks to TB on a fortnightly basis and TB also sends him money for his birthday; and
(iv)friends, G, A and J from Mallacoota, Victoria whom he knew through work before he went to prison.

If released into the community he said he would live with his brother TT in Queensland and try to get part-time or casual work suited to his capacity. He will look into getting a carer and resuming the disability support pension. He said he would continue to attend the Pentecostal Church once per fortnight and continue to get counselling to deal with his drinking and mental health issues.
In his statement of 10 May 2023, the Applicant stated that he had contacted the South Australian Parole Board seeking confirmation whether, if released from immigration detention, he would be required to return to South Australia and be taken into the Adelaide Pre-Release Centre for 12 months as part of his parole conditions.[21] He explained that the Centre is a low security facility at which prisoners are assisted in their transition to release at the end of their sentence with education, work release, community work programs and unaccompanied family visits. The Applicant stated that once he had completed the 12-month pre-release program he would seek permission from the Parole Board to relocate to Queensland to stay with his brother TT. He stated that if a relocation was not approved, he would remain in South Australia where he would have arranged accommodation and employment and access to support services and connections with the Church community.
[21] See Exhibit A18.
The Applicant confirmed in his oral evidence that he had not received a response from the Parole Board.
The Applicant said in his oral evidence that:
(a)He and AA had decided not to continue their relationship because AA was concerned that she would lose custody of her daughter in a custody dispute with her ex-partner if she remained in a relationship with the Applicant.
(b)He was not intoxicated at the time of committing the murder and while his judgement may have been affected by using alcohol, it was not a contributing factor to his crime.
(c)Before his arrest on the murder charge, he had for many years used drugs including methamphetamines and cannabis when they were offered to him and, as a teenager, he had used LSD, but his drug of choice was alcohol because it was cheaper. He said that he drank heavily and regularly spent his whole weekly wages on alcohol. He said he had had periods of abstinence but had relapsed.
(d)Alcohol and drugs were available in prison and in detention. He said that when he first entered prison he attempted to make a home brew but was caught and did not use alcohol otherwise while in prison. He said that he had smoked cannabis while in prison occasionally and acknowledged that on one occasion a small amount of cannabis was found in his cell.[22]
(e)He said he no longer craved alcohol and had no desire to drink alcohol again but he acknowledged that as an addict he was vulnerable to lapsing into alcohol abuse if he had even one drink. He insisted that he now has the will to avoid alcohol and has developed the tools to deal with his addiction.
[22] Exhibit R1 at p.199-201.
The Applicant’s brother, TT, provided an unsworn and undated statutory declaration[23] which he affirmed in giving evidence to the Tribunal.
[23] Exhibit A14.
In the declaration, Mr TT stated:
(a)He is 63 years old and is retired on a government pension. He lives in Innisfail, Queensland with his partner. He has two children aged 35 and 32.
(b)He explained that the Applicant is his younger brother with whom he has a close relationship. He said he visited the Applicant in prison once or twice per year and spoke by telephone every 2-3 weeks or every 2 months when the Applicant was able to call him. He said they have spoken to each other once or twice per week while the Applicant has been in detention because the Applicant now has a mobile phone.
(c)He described the Applicant as a kind, caring and compassionate man and stated that he had spoken to the Applicant about his offending and he was extremely remorseful and regretful.
(d)Mr TT stated that he is willing and able to provide the Applicant with accommodation in his home in Innisfail if he is released and would help him to meet his parole conditions by providing him with transport and helping him find employment.
(e)He said that the Applicant has been in Australia for 45 years and is familiar with the Australian way of life and has family here, but if he is forced to return to New Zealand it will have serious negative impacts on his mental health and emotional and physical wellbeing. He said that a decision to deny the Applicant a visa would have a negative impact on his family and friends who would be extremely disappointed and saddened.
In his oral evidence Mr TT described the abuse the Applicant has been subjected to as a child. He said that the Applicant and the other children were regularly beaten by their step-father and their mother who used a bat. He said that he was forced to live in a shed or bungalow in the backyard and that the Applicant was often sent out of the house to live with him. He said that his mother tried to get rid of each of her children when they reached 14 or 15 and that the Applicant was sent to live with him in Australia at about that age. He also said that the Applicant was gang raped by five inmates while in custody when he was about 16 and his mother’s response was to tell the Applicant to toughen up.
Mr TT said that he was confident the Applicant would not resume drinking and he would not tolerate the Applicant drinking in his home if he lived with him.
Mr TB provided an unsworn and undated statutory declaration[24] which he affirmed in giving evidence to the Tribunal.
[24] Exhibit A13.
In the declaration, Mr TB stated:
(a)He is 77 years old and lives in Encounter Bay in South Australia with his wife MB. They have a daughter and four grandchildren.
(b)He first met the Applicant around 19 years ago when he was an elder of the Waikerie Church of Christ. He said that the Applicant attended the Church regularly most weekends. He visited the Applicant in prison 2 or 3 times per year and once while he was in detention and has otherwise maintained contact with him by letter. He met with the Applicant’s father at the Applicant’s request while in New Zealand in 2009.
(c)He said the Applicant is very remorseful for his offending and regrets his actions.
(d)He said that if the Applicant has to return to South Australia under his parole conditions he would have friends and support, including the Offenders Aid and Rehabilitation Services in Adelaide, to find accommodation and employment.
In his oral evidence Mr TB stated
(a)The Applicant was involved with the Waikerie church for only 5 or 6 months before he was arrested.
(b)The Waikerie church has now disbanded and he was not sure if members of the community still remember the Applicant and his crime.
(c)He had spent time in New Zealand and had friends there who were prepared to help the Applicant if he is removed to New Zealand and they could put him in contact with a church and the Salvation Army.
(d)He was supportive of the Applicant’s religious studies and thought he would be an asset in church ministry.
(e)He said he would maintain contact with the Applicant if he is released and would welcome him to his home but he lives in a retirement village and has limited ability to provide support and could not help with accommodation or employment.
Other Evidence
The Applicant also tendered various letter of support from people he knew in the community:
(a)An undated letter of support from AH;[25]
(b)Letter of support from Mr TB, dated 15 March 2022;[26]
(c)Undated letter of support from Mr TT;[27]
(d)an undated letter of support from AB;[28]
(e)a letter of support from CF, dated 18 October 2021;[29]
(f)a letter of support from DA, dated 1 November 2021;[30] and
(g)letter of support from Chris Clarke, dated 22 October 2021.[31]
[25] G22(a) at pp.139-140.
[26] G22(b) at pp.141-142.
[27] G23 at pp.156-157.
[28] G16 at p.110.
[29] G16 at p.111.
[30] G16 at p.112.
[31] G19 at pp.116-117.
The Respondent tendered two bundles of documents produced under summons comprising:
(a)Department of Correctional Services South Australia records; and
(b)IHMS health records for the Applicant.
PRIMARY CONSIDERATIONS – CLAUSE 8 OF PART 2
Protection of the Australian Community
In considering the protection of the Australian community, the Tribunal has had regard to the matters set out in cl 8.1(1) and (2) of Part 2 of Direction 99.
Clause 8.1(2) requires decision-makers to give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and Seriousness of the Applicant’s Conduct to Date
Murder
The Applicant’s principal crime was that of murder for which he was convicted on 24 November 2006. The criminal court found that the murder was a premeditated and unprovoked attack on a defenceless man in which the victim was repeatedly stabbed.
The Applicant submitted that the seriousness of the offence should be counterbalanced with the Applicant’s moral culpability citing his history of abuse, his motivation for committing the offence (a misguided attempt to take the law into his own hands), his drug and alcohol dependence and his genuine remorse.
The Respondent submitted that where a person has been convicted of criminal offences and a sentence imposed, the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal,[32] and the Tribunal should find that the Applicant’s offending was very serious for the purpose of Direction 99.
[32] Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197.
The Tribunal accepts the Respondent’s submission in this regard and bases its assessment of the seriousness of the offending on the findings of the criminal court, noting that the sentencing judge took into account the applicant’s history of alcohol and drug use and his history of abuse.[33]
[33] G5 at [19]-[20].
Clause 8.1.1(1)(a) of Part 2 of Direction 99 provides a description of what is considered very serious conduct. It includes various forms of violence but does not specifically refer to murder. There can be no doubt that murder is properly to be considered very serious conduct.
In addition, under clause 8.1.1(1)(c)-(h), decision-makers must have regard to a range of factors in considering the nature and seriousness of the criminal offending or other conduct to date. This includes, for relevant purposes in this case, the sentence imposed by the courts for crimes of violence. The sentence imposed in the Applicant’s case was a mandatory life sentence, the maximum custodial sentence possible. This further confirms that the Applicant’s conduct was very serious and that by its nature it raised serious character concerns.
Other Offending
Prior to the committing murder in 2004 the Applicant had a long criminal history beginning in New Zealand when he commenced what His Honour Justice Anderson described as a life of petty offending.[34]
[34] G5 at p.29, [6].
After arriving in Australia, the Applicant was convicted of numerous offences in South Australia, Victoria and New South Wales between 1987 and 2004, including multiple offences for drug possession, public drunkenness, unlawful possession (GIC), indecent language and driving offences and two convictions for assault, including of a police officer.
Of these offences, only two involved violence. One was a conviction for assault by kicking in June 1998 and the other assaulting police/person assisting police in June 2001. Both offences can be considered serious conduct as provided in cl 8.1.1(1)(b) and the offence involving the police is to be viewed particularly seriously,[35] although the penalties imposed in both cases (fines of $1000 and $800 respectively) indicate that they were not at the high end of seriousness.
[35] See paragraph 8.1.1(1)(b)(ii) of Direction 99.
Of the remaining offences, only one conviction resulted in a custodial sentence. In 1992 the Applicant was convicted of 5 counts of unlawful possession for which he received an aggregate sentence of 6 months in prison. He was otherwise subject to fines and driving disqualification penalties.
Under cl 8.1.1(1)(c)-(h), the Tribunal is, relevantly, required to have regard to the frequency of the Applicant’s offending and the cumulative effect of his repeated offending in considering the nature and seriousness of his conduct to date.
The Applicant attributed his offending to the abuse of drugs and predominantly alcohol and this was recognised in the sentencing remarks of His Honour Justice Anderson.
The Applicant pointed to lengthy gaps between the offending[36] asserting that this was consistent with the Applicant abstaining from abusing alcohol and demonstrated the Applicant’s ability to live in Australia offence-free. When balanced against the low-level nature of the offending, it was submitted that this prior history should take less relevance.
[36] The periods referred to were March 1987 to October 1990 (3 years); April 1991 to June 1998 (7 years) and June 2001 to November 2004 (3 years).
The Tribunal accepts that there were reasonably lengthy periods between offences, although there is no independent evidence to suggest that this can be attributed to abstinence from alcohol or drug use. However, over the seventeen-year period from 1987 to 2004, the Applicant appeared in court on ten occasions and was convicted of multiple offences. A significant number of the offences related directly or indirectly to alcohol and drug use and involved general anti-social behaviour.
The Tribunal is satisfied that the cumulative effect of the Applicant’s repeated offending between 1987 and 2004 and specifically his convictions for assault and unlawful possession are to be regarded as serious offending indicating a general failure by the Applicant to obey Australian laws and observe community standards.
The risk to the Australian community should the Applicant commit further offences or engage in other serious misconduct
Clause 8.1.2(2) of Part 2 of Direction 99 relevantly states for the purpose of s 501CA that in assessing the risk that may be posed by a non-citizen to the Australian community, the decision-maker must have regard to, cumulatively:
(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non- citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of the Harm
For the reasons discussed, the Tribunal is satisfied that the murder committed by the Applicant is very serious conduct and that his other offending between 1987 and 2004, when taken together, was serious.
Should the Applicant again commit murder or any other serious assault of the kind for which he was convicted in 2006 it would result in the most serious threat of harm to members of the Australian community.
If the Applicant were to repeat any offence for which he was convicted between 1987 and 2004, it may expose the community to some risk of physical or financial harm, but if the Applicant were to return to the pattern of offending his record indicates over that period, it would threaten significant harm to the general welfare of the Australian community.
Likelihood of re-offending
The Respondent advanced four reasons that the Applicant remains at risk of reoffending:
(a)He reoffended after being imprisoned in 1992. Not only did prison fail to serve as salutary experiences, but he went on to commit offences that were objectively more serious.
(b)He reoffended despite having received drug and alcohol counselling, having obtained stable accommodation, and having reduced his alcohol intake substantially and ceased other illicit substances aside from cannabis.[37]
(c)He admitted in 2017 that he had possessed and smoked cannabis while in prison.
(d)His offending occurred in the context of stressors in his life whilst in the community, and he requires ongoing care in the community if released.[38] His clean record whilst in the protective and highly regulated environment in prison and immigration detention is not necessarily a guide to his conduct if released.
[37] G5 at [11] and [28] and Exhibit A1 at [49]-[51].
[38] Exhibit A11.
The Applicant says he has now recognised the cause of his offending, has addressed it and is committed to not repeating that behaviour. He has expressed remorse. On this basis, the Applicant, while conceding that a ‘no risk’ assessment is impossible, invites the Tribunal to conclude that the risk of the Applicant engaging in offending involving physical, psychological or financial harm is low enough to be an acceptable risk to the Australian community and that the weight the Tribunal should place on this factor should be significantly tempered.
In assessing the risk of re-offending, the Tribunal is mindful of the comments of the Full Court in CKL21 v Minister for Home Affairs[39] that:
…while the future is not predictable, it is possible to assess the degree of likelihood of an event occurring in the future based on past and current circumstances. On occasions, the task of predicting future events in curial or administrative decision-making has been described as involving speculation. That is an unfortunate description, as the word speculation is typically used as a synonym for conjecture, which is the formation of an opinion without sufficient evidence for proof. In curial and administrative decision-making, the task of assessing the degree of likelihood of an event occurring in the future requires more than mere speculation. It must be based on a logical process of reasoning based on the known facts. A conclusion that a risk “cannot be ruled out” does not, of itself, logically establish the existence of a risk. Further … a risk may be so low that it must properly be disregarded. In assessing the likelihood of a future event, the key facts will include the regularity with which the event has occurred in the past, the conditions under which the event occurred in the past and the likelihood that those conditions have since changed or other events have intervened to interrupt the cycle of regularity.
[39] [2022] FCAFC 70 at [74], citing the High Court’s decision in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 599 at 574-575.
There are a number of factors relevant to the assessment of risk.
Remorse
The Applicant has expressed remorse for his offending. In his written statement he said:
I know I have made serious mistakes in my life. I am deeply ashamed of my behaviour. I acknowledge my criminal history and the very serious offence of murder that I committed. I am very sorry for what I did and for the other criminal matters on my record, including my disorderly behaviour when I encountered the police. For all my encounters with the law, I am very sorry.[40]
[40] Exhibit A1 at [3].
The Sentencing Judge accepted that the Applicant’s remorse was genuine and that he took responsibility for his actions. His Honour stated in his sentencing remarks:
You have clearly had difficulty in coming to grips with your life since the early teenage years. Your life can only be described as going from bad to worse in the way it developed from those years. Despite all that, your previous record is not too bad, considering the lifestyle you have led. It appears that your life had improved to some extent in the 12 months or so leading up to this incident. It appears, however, that for a couple of months prior to the incident, you had gone back into your old habits of binge drinking associated with lack of judgment and the unfortunate consequences which followed.
To your credit, you have come to grips with the situation in as much as you have taken full responsibility for your offending. As I have said….. provided your attitude remains positive, you do have reasonable prospects of rehabilitation.[41]
[41] G5 at p.33, [28]-[29].

Having considered the Applicant’s evidence and taking into account the findings of the criminal court, the Tribunal is satisfied that the Applicant is genuinely remorseful and accepts responsibility for his conviction for murder. This is an important factor in assessing the likelihood that he will re-offend in relation to violent conduct of the kind for which the Applicant was convicted of murder.
While the Applicant did express remorse for his other offending, he largely attributed his conduct to alcohol abuse and his mental health issues. The Tribunal is not satisfied that the Applicant is likely to be substantially deterred from re-offending generally because of remorse over the offences committed between 1987 and 2004.
Drug and alcohol rehabilitation
The Applicant’s history of drug and alcohol use prior to his imprisonment in 2006 indicates a very serious addiction. Dr Craig Raeside, who provided a psychiatric report to the criminal court in January 2005, described his substance abuse as follows:
Mr [WVJB] used amphetamines intranasally from his late 20's into his 30,s. He said this gave him extra energy and made him a good worker. He did not report any other difficulties, but stopped it as he found alcohol and cannabis were his preferred drugs. He said he tried heroin on a couple of occasions, as well as opium at times. He had sniffed glue, petrol, and fly spray in his school years and also in his later years when he couldn't get a "high". He said he needed this at times to help him get through life. He had even dissolved suppositories and drunk them, as well as boot polish and other substances. At times he had had periods in which he drank methylated spirits when no other alcohol was available.
Mr [WVJB] reported the abuse of other medication at times including Valium, Avil, car sickness tablets. Codeine, Panadeine Forte, etc.[42]
[42] Exhibit R1 at p.131.
The Applicant claimed in his evidence to have abstained from alcohol use for some 18 years while in prison and detention and to have only used cannabis on a few occasions. His records indicate that he has not tested positive for drugs while in prison for over 6 years.
A psychologist, Mr Richard Balfour, noted in his report of 17 August 2022 that the Applicant’s alcoholism and drug abuse are significant mental health problems that facilitated his murder offence.[43] However, it is accepted that the murder was a once off offence and the product of its own causal factors. The sentencing judge did not accept that the Applicant was heavily intoxicated at the time of the offending which led to the conviction for murder (as claimed by the Applicant at the time) nor that it explained his actions in stabbing the victim to death. The Applicant conceded in his oral evidence that alcohol played at most a minor role in his conduct leading to the murder. Accordingly, while the Tribunal accepts that abstinence from alcohol is a positive step for the Applicant’s rehabilitation generally, it does not accept that it is a significant factor in diminishing the risk that he will again commit murder or serious violence.
[43] G15 at p.100.
The Applicant consistently maintained in his evidence that his offending prior to 2004 was largely attributed to drug and predominantly alcohol abuse. This claim is consistent with the nature of the offences and the observations of His Honour Justice Anderson in his sentencing remarks. The Tribunal therefore accepts that there was a close link between his offending prior to 2004 and his drug and alcohol abuse. As it is a factor of importance in terms of causation, drug and alcohol abuse is of greater relevance to the assessment of the risk of repeating those kinds of offences.
In his oral evidence, the Applicant said he had no desire to drink alcohol again but he acknowledged that as an addict he was vulnerable to lapsing into alcohol abuse if he had even one drink. He insisted that he now has the will to avoid alcohol and has developed the tools to deal with his addiction.
The Tribunal notes the Applicant’s genuine commitment to abstaining from further alcohol use, but it is of concern that he has not completed a comprehensive rehabilitation program for his alcohol addiction. The prison records indicate that the Applicant completed an Alcohol and Drugs Course – Part A while in Yatala Labour Prison in 2008, but he declined to participate in the Alcohol and Drugs Course – Part B which was recommended for him, beyond the first session.[44] In his oral evidence, he said that he declined to complete Part B because he found it difficult to be around people because of his social anxiety at the time. The Applicant gave evidence that he had made a number of unsuccessful attempts to stop drinking prior to being imprisoned in 2004, including participation in various drug and alcohol rehabilitation courses.[45]
[44] G22 at pp.144-145.
[45] Exhibit A1 at [48]-[51].
Nevertheless, Mr Balfour noted in his report of 17 August 2022 that the Applicant:
…no longer suffers from drug and alcohol abuse problems. He has been totally abstinent from alcohol for eighteen years. He has no desire to become a controlled social drinker in the community. He wants to remain totally abstinent…[46]
the only illegal drug he has used in jail is cannabis. He only sporadically used cannabis. He last had a positive drug test result for cannabis six years ago. He said his subsequent drug test results have all been negative for illicit substances. Mr [WVJB] has no desire to use illegal drugs again. He does not experience a craving to use illegal drugs.[47]
[46] G15 at p.100.
[47] G15 at p.98.
On the basis of this evidence, the Tribunal is satisfied that there is a very good chance that the Applicant will not resume drug and alcohol use if released into the community, but there remains a low risk that he may relapse into alcohol or drug abuse and resort to further criminal activity of the kinds he committed in the period from 1987 to 2004.
Personal Development
The Applicant has participated in courses while in custody directed at his personal development, including: Drug and Alcohol Part A (5 August 2008); Literacy and Numeracy course (1 January 2011); Certificate IV in Christian Life and Ministry (26 November 2015) and Making Changes program (2 April 2020). He has also undertaken a range of vocational courses, including: Certificate II in Business (7 March 2013); Certificate II in Horticulture (26 February 2014); Work Zone Management training (26 September 2019); Construction Safety Certification (21 September 2020) and Certificate of Infection Control (1 July 2021).
The Tribunal notes the report of Marika Forsyth, senior social worker at Port Augusta Prison, dated 2 November 2021. Ms Forsyth worked with the Applicant for 3 years between July 2018 and July 2021. She commented on the Making Changes course attended by the Applicant in 2020. She stated that the course comprised 120 hours of program delivery over 12 weeks. She said:
[The Applicant] successfully completed all 3 Modules of the Making Changes on the 02/04/2020. [The Applicant] was able to link the connection of his drug and alcohol use to his offending. [The Applicant] was open with his substance misuse and his offending, citing problematic alcohol use and past trauma led to the offence. [The Applicant] reported using alcohol due to being homeless and surrounded by anti-social peers as a coping strategy. [The Applicant] discussed his diagnosis of 'Social Anxiety’ and that alcohol helps him manage and cope in social situations. [The Applicant] advised that finding ‘God’ has given him meaning and purpose in his life. He discussed connecting with his religion and becoming a member of a Christian organisation post-release.[48]
[48] G14 at pp.87-88.
The Applicant’s engagement in such programs and his involvement in productive activities while in prison, particularly his role as prison librarian,[49] and in detention where he has actively engaged in gardening[50] are strong indicators that he has developed positive social attitudes and enhanced his self-esteem. This factor points to a reduced risk of re-offending.
[49] Exhibit A1 at [67].
[50] Exhibit A17.
Prison record
The Applicant asserted that he had a clean record in prison. The Parole Report prepared for the Parole Board in December 2020 notes:
Since Mr [WVJB]'s admission into custody, in November 2004, there have been 35 Incident case notes and 5 Warning case notes recorded against him. Although there have been many Incident case notes recorded against Mr [WVJB], a review of his general case notes indicate he has largely behaved politely towards Officers and other prisoners. It appears that his behavioural issues increase when he is stressed, anxious or experiencing a decline in his mental health.[51]
[51] Exhibit R1 at p.140.
The Applicant was released on parole on the first available date under the terms of his sentence.[52] He was described by a prison social worker as polite to others. The social worker also noted that even when anxious or depressed, the applicant did not display aggressive behaviour.[53]
[52] G17 at p.113-114.
[53] G19 at p.116.
The Applicant’s prison record does not indicate any enhanced risk of re-offending.
Mental health
The Applicant’s brother described the childhood abuse suffered by the Applicant at the hands of his mother and step-father, which included frequent physical beatings and emotional rejection. He also confirmed the Applicant’s account of having been raped while in prison as a teenager in New Zealand. The Applicant claimed that this childhood trauma had resulted in his low self-esteem and social anxiety which in turn contributed to his drug and alcohol abuse.
The Applicant was assessed by Dr Craig Raeside, forensic psychiatrist, in January 2005 for the purpose of the Applicant’s appearance before the court to answer his murder charge. Dr Raeside concluded that:
Mr [WVJB] is a 42 year old man who reported lifelong difficulties arising from early family breakdown, physical abuse, disruptive schooling and early onset of offending, sexual assault whilst in custody with posttraumatic stress symptoms and heavy alcohol abuse subsequently. He appears to have had chronic depression and anxiety for which he has self medicated with alcohol and experiencing difficulty coping over the last year after he attempted to remain essentially abstinent from alcohol. He has some reported memory difficulties, consistent with alcohol abuse, but also possibly due to inhalant abuse. The hallucinations are also probably related to chronic alcohol abuse and possibly withdrawal symptoms as well.
Diagnosis
Based on the information available to me and from my interview with Mr [WVJB] I believe that he has Dysthymia (longstanding low grade depression), together with anxiety symptoms, possibly representing a chronic Posttraumatic Stress Disorder. Certainly his most prominent diagnosis is that of alcohol dependence. Despite the reported difficulties in his childhood and schooling there is insufficient evidence to warrant a formal diagnosis of an Antisocial Personalty Disorder.[54]
[54] Exhibit R1 at pp.148-155.
A medical report dated 22 February 2022[55] prepared by a senior clinician for the South Australian Prison Health Services at the time of the Applicant’s discharge from prison recorded that:
(a)The Applicant had used amphetamines and LSD when younger and at the time of the report suffered from hypercholesterolaemia, GORD (gastro-oesophageal reflux disease), with a history of intravenous drug use (IVDU), alcohol abuse (ETOH) and cannabis use (THC).
(b)In relation to his mental health the Applicant accessed inpatient and community mental health services in South Australia between 2004 and 2021 and had required hospitalisation on six occasions. The report noted that he has a history of Complex Childhood Trauma (physical, emotional and sexual abuse by mother and step-father) and major depression with suicidal ideation and intent and anxiety. The report noted suicide attempts at the age of 24 and 27.
(c)the Applicant has a significant history of social anxiety/social phobia and difficulty making friends.
[55] G18 at pp.114-115.
The Applicant is recorded as having regular contact with counsellors while in prison between 2005 and 2021.[56]
[56] Exhibit R1 at pp.103-130.
The Applicant received cognitive behavioural therapy (CBT) while in Port Augusta prison to address his anxiety issues, consisting of 13 sessions in 2017 and 16 sessions in 2018. The counsellor reported that he engaged willingly and openly in each of these sessions, where he progressively confronted the issues which had led to his developing an anxiety disorder, and the maladaptive responses (including using drugs and alcohol) he had used in attempts to cope with overwhelming distress.[57]
[57] G19 at p.116.
An assessment of the Applicant was conducted in Port Augusta prison on 16 May 2019 by Dr O. Burgess, consultant psychiatrist, who reported:
In Jail has been using substances to manage his anxiety, i.e. buprenorphine. Initially was in solitary only agreed to come out due to very firm coercion and a budgie companion. Reported he can't do any re-integration (such as at APC), due to the visa issues, but he needs to as has never lived independently, lacks the skills.
Medications Coloxy + Senna 2tabs BD, Atrovastatin20mg Nocte; Rabeprazole 20mg; Ranitidine 150mg BD; Valproate - 1.5g mood swing, not epileptic. Not Bipolar.; Mirtazapine 60mg; Methadone.
Mood - Never feels happy. Suicidal thoughts regularly, but attempted suicide when 27, found religion which meant he was bound by an oath that he can't suicide, as Christian. He was told not to hate people. I live on my memories, the good times, describing times in the NT. Suicidal thoughts when in 20's hospitalised 3 times, within 18 months. Brief admission to JNH in 2004/2005, for an evaluation. Mood is currently not as bad as it normally gets. It's low but normal for him. Had a bad spell a few months ago which has resolved. sleep - not great, wakes every hour, same for the whole sentence
Weight - 75 kgs, normally 82, gained some weight recently, which is good. Energy - very little, exhausted, worsened recently with the immigration coming up. Hopelessness, always been there. Nil DSH. Impulsivity - somewhat, life has no meaning/ no plans, always been the case. Never had intimate relationships. Only had one close friendship ever in his life, they left him a day after finding a girlfriend to start a new life.
Anxiety Social anxiety - worries -"their judgement of me" "being unsure" of himself. Will closely examine others interactions, focusing on his deficits. Severe avoidance. Lost budgie - his phobic companion, had pride in his bird, could talk about her. Lots and lots of safety behaviour. Was doing exposure therapy with a SW, this was helpful. Now able to walk around the complex, go to the garden.
Panic attacks - once a week. tense, shaking, knots, tries to hide. Avoids areas that will set off the panic attacks. Nil OCD.
Nil manic episodes. Nil Psychosis - nil AH, IOR, thought interference.
An earlier assessment of the Applicant was conducted in Port August Prison on 26 November 2018, by Dr B Bickmore, who reported:
looks down over the entire interview, appears anxious and concerned about multiple pressures, nil agitation. Speech is grossly normal although some latency, nil FTD. Affect is flat, dysphoric although also appears anxious, mood is low and anxious. Denies delusional thought content. Not responding to int stimuli. Insight and judgement fair. Orientated - possible concern about alcohol related cognitive deficits
Imp; Symptoms of depression and anxiety over the last month – perpetuated by the "change' of moving accommodation and the stress of upcoming parole board and possible deportation. Considering he has had no close relationships in the past, I imagine leaving the prison environment would be traumatic in itself for him
-While there are sx of major depression, his descriptions of these, in particular the eating, gives me the impression that this may be an maladaptive response to pressure and more related to anxiety (on a background of b&W thinking, low stress tolerance, inflexibility, low self worth - and possible cognitive impairment) - however at risk of developing MDE
-Acute risks to self/others low, however, may be at future risk of ending life (moderate) due personality traits above and the stress of transition into the community/deportation to NZ where he has no supports.[58]
[58] Exhibit R1 at pp 260-262.
The psychologist, Mr Richard Balfour, opined in his report of August 2022[59] regarding the Applicant’s mental condition. He said:
In my 2006 report, I diagnosed Mr [WVJB] as having a personality disorder characterised by antisocial and borderline traits, which had been exacerbated by drug and alcohol abuse problems.
In 2022, I could not find any clinical evidence to suggest that Mr [WVJB] has a psychotic illness, intellectual disability, neurodevelopmental disorder, or an acquired brain injury.
Mr [WVJB]’s personality disorder has decreased in severity with age. He no longer satisfies all the diagnostic criteria for a personality disorder. He displayed evidence of evolving psychological and social maturation.
[59] G15 at p.100.
The Applicant gave evidence that he currently has issues with his memory and had recently been diagnosed with an acquired brain injury as a result of his prolonged alcohol abuse.
The Tribunal accepts that the Applicant has been the victim of significant childhood trauma which has adversely affected him psychologically and that he continues to suffer anxiety and depression but he has taken positive steps to deal with his mental health issues. The improvement in the Applicant’s mental health and his willingness to address the issues is a positive factor in assessing his propensity to re-offend. However, the Applicant demonstrated in giving his evidence that he remains a vulnerable person and he acknowledged that he continues to have underlying psychological issues which were present at the time of his offending. Accordingly, the Applicant’s mental health and the need for him to maintain efforts to address the issues if released in the community represent an element of risk of him re-offending.
Prospects for Release
The Applicant’s counsellor opined that the Applicant:
would benefit from having the benefit of supportive and prosocial community members in Victoria. He will require ongoing statutory supervision to monitor and support abstinence from substances, to ensure he does not revert to associating with people with antisocial attitudes, that he resides in appropriate accommodation, and that he engages in meaningful and fulfilling activities.[60]
[60] G19 at p.117.
Mr Balfour opined in his report[61] that the Applicant’s rehabilitation requires a supervised, structured rehabilitation programme that includes: referral to the drug and alcohol service, random urine drug screens to monitor his drug usage, weekly contact with a case manager, cognitive-behavioural therapy, positive recreational pursuits to develop positive peer support, financial counselling, referral to a psychiatrist to assess his suitability for pharmacotherapy for his depression, assistance with finding stable accommodation and access to training and employment support and assistance as a victim of sexual assault.
[61] G15.
The Tribunal is not satisfied that the Applicant is able to implement the full comprehensive programme proposed by Mr Balfour if he is released. However, there are indications that some aspects of the proposal are able to be implemented. The Applicant has taken steps to obtain counselling support. He confirmed in his evidence that he engaged Dr Jaime Juarez to complete a Mental Health Treatment Plan[62] and he was referred by Dr Juarez to a psychologist for six sessions for an opinion and treatment for stress and PTSD under the Plan. The Applicant commenced counselling with Sandra Grams on 11 April 2023.[63] The Applicant was also referred by Dr Dalia Muraleedharan to the Melbourne Geriatricians Group for an evaluation of him, as she had diagnosed him with dementia. The Applicant’s plan to continue his involvement with the Church may provide the positive recreational outlet contemplated by Mr Balfour. In addition, the role of the CCO under the parole conditions may go some way to fulfilling the role of a case manager. The Applicant has access to government social services and to assistance with accommodation and employment.
[62] G22 at pp.147-153.
[63] See Annexure 6 of the Bundle of Supporting Documents of the Applicant.

There is a level of uncertainty regarding the Applicants ability to address the issues raised by Mr Balfour largely because he is unclear in his evidence where he expects to be physically located if released into the community. At one stage he claimed a desire to try to establish a partner relationship with AA who lives in Mallacoota, Victoria, but he confirmed in his oral evidence that their relationship has now ended. He also stated an intention to go to Queensland to live with his brother TT. Whether this is possible will depend on whether he is required to participate in the Pre-Release Program in South Australia if his Visa is restored and, even then, whether the Parole Board in South Australia will approve his relocation to Queensland.
In addition, the Tribunal is not satisfied that the Applicant’s support in the community is sufficiently strong and enduring to ensure that he is not drawn into the kind of lifestyle that led to his offending prior to the murder conviction in 2006. The sentencing judge described this as an itinerant life without regular employment in which the Applicant was drinking heavily, including methylated spirits, and taking speed and cannabis.
The Applicant identified individuals whom he believed would provide him with community support, principally his brother TT and also his sister, D, who both reside in Queensland. He also added his younger adopted brother P, who resides in Sydney; GL, a friend from the Christian community who lives in Western Australia; CF, a friend who resides in Broadmeadows, Victoria; TB and MB, two friends from the Christian community in South Australia who visited the Applicant regularly in prison and AR who resides in Mallacoota, Victoria.
The Tribunal notes that these people are scattered in various parts of the country and the Applicant acknowledged that he has had little contact with anyone during his incarceration for over 18 years. The Tribunal accepts that his relationship with his brother TT is a strong and supportive relationship. However, the Applicant said that he has not spoken with his sister D for over 10 years and has not had any real contact with any of the other people except for Mr TB since being imprisoned in 2004.
The position regarding the Pre-Release Program in South Australia is unclear. If the Applicant is able to access the program it would provide him with support in establishing himself in the community in South Australia where his only friend is Mr TB. If he is permitted to relocate to Queensland either in lieu of or after the Pre-Release Program, he will have the continuing support of his brother TT and his sister D. If he cannot relocate to Queensland, the Tribunal is not satisfied that sufficient measures are likely to be in place to support the Applicant so as to minimise the risk of him lapsing into the itinerant lifestyle and alcohol use which led to him committing the types of offences for which he was convicted before 2004. This is a factor which tends to indicate a higher risk of re-offending, although it must be balanced against the other factors.
The Passage of Time
The Applicant is now 60 years of age and has had a period of 18 years in prison and detention to reflect on his past behaviour. He stressed in his oral evidence that the prospect of further time in prison is a major incentive for him to avoid reoffending. His incarceration has also given him a period of stability, a factor noted by the sentencing judge as significant even after the two years the Applicant served in remand:
Following the offence and your admissions and arrest, you have been in maximum for security at the Yatala Labour Prison. It seems that prison life has brought home to you, for the first time, the advantages of having a regular lifestyle, including a regular bed, regular meals, and a set routine. As a result it appears, from the reports that I have read, that this regime, together with the antidepressant medication which has been prescribed for you, has changed your life, and that you can actually look forward to enjoying each day, including enjoyment from watching television.[64]
[64] G5 at p.30, [12].
Religion
The Applicant claimed in his evidence that he found religion again when he was 27, having had some involvement with the church from childhood. He completed an Undergraduate Certificate of Ministry Studies from Adelaide College of Divinity in February 2023[65] while in custody. Mr Balfour reported[66] that the Applicant was formerly a member of a church congregation in Waikerie, South Australia while in prison and members of his church had visited him two to three times per year for the 16 years he was imprisoned. He still maintains regular contact with them. This was confirmed in the evidence of Mr TB. Ms Peggy Ruzzier reported that the Applicant has regularly attended bible studies sessions with the Freedom Centre in Tullamarine, Victoria from detention via Zoom for about a year.[67]
[65] G22 at p.155.
[66] G15 at p.94.
[67] Exhibit A19.
The Applicant was involved with the church at the time he committed murder and so his religious belief was not of itself enough to deter him from such behaviour at that time. However, the Tribunal is satisfied that the Applicant has reflected on his conduct and now has a genuine and strong religious belief which is likely to act as a moderating effect on his behaviour and reduce the likelihood of him re-offending in any respect if released into the community.
Parole
The Applicant was released from prison on parole on 27 July 2022. He is on parole for the balance of his sentence (a life sentence) and therefore he is on parole for the rest of his life. Under the terms of his parole, he is released under the supervision of a Community Corrections Officer (CCO) on conditions including that he:
(a)be of good behaviour;
(b)not commit any offence;
(c)not possess any offensive weapon unless permitted by the CCO;
(d)not leave South Australia without written permission of the CCO;
(e)not take any drugs except under medical direction;
(f)present for drug and alcohol testing as required;
(g)abstain from alcohol and not enter or remain on licensed premises;
(h)undertake counselling for substance abuse; and
(i)undertake psychiatric assessment and treatment.
Any breach of these conditions can cause the Parole Board to cancel the Applicant’s release and return him to prison.
The parole conditions are an important factor in reducing the risk that the Applicant might re-offend and expose the Australian community to harm. First, the conditions of the parole, if followed, are likely to remove many risk factors which may lead the Applicant into re-offending. Secondly, the supervision by the CCO and the threat that the Applicant might be returned to prison for any breach of conditions will provide a strong incentive for the Applicant not to offend. Thirdly, if the Applicant were to offend, the Parole Board has a direct means to address the offending and to remove further risk to the community.
The Tribunal is satisfied that the existence of indefinite parole will be a very significant factor in reducing the risk that the Applicant will be drawn into re-offending if released into the community.
Other Assessments of Risk
The Tribunal notes that the risk of re-offending has been independently assessed by other responsible entities.
The sentencing judge formed the view in 2006 that there were reasonable prospects of rehabilitation for the Applicant.[68]
[68] G5 at p.33 [29].
The Applicant was assessed in 2012 and 2021 by the Department of Correctional Services as being at low risk of recidivism and it was decided that he was not suitable for the Violence Prevention Program.[69]
[69] Exhibit R1 at pp.78-79.
The Parole Board approved the Applicant’s release on parole at the earliest date available under the terms of his sentence. The Parole Report noted:
This is Mr [WVJB]'s first application for parole. It is noted he has various criminogenic needs being a history of problematic drug and alcohol use and mental health issues including alcohol dependence, PTSD, anxiety and depression. The Making Changes post treatment report indicates treatment targets were met in the areas of pro social attitudes however emotional management remains unresolved and he continues to exhibit impulsivity. This is evident in June 2020 where he was asked to undertake a urine test, to which he refused and threatened self harm as a result, consequently the test did not proceed. Furthermore he has continued to display difficulties in adjusting to new cell mates, often resulting in anxiety attacks. Mr [WVJB]'s motivation to apply for parole appears to be driven by an eventual plan to be deported to NZ and be subject to their returning offender's program for 5 years whereby he will be afforded intensive assistance including accommodation, employment and counselling. Mr [WVJB] is of the opinion that with this intensive support and his own desire to become a member of the local church (as he has completed certificate 4 in Chaplaincy) he will live a law-abiding life away from anti-social associates. It is the verifier's position that Mr [WVJB] has not yet exhibited a sustained period of emotional regulation, to engender confidence this will transition through to parole and form the basis of further rehabilitation. Should Mr [WVJB] be afforded Parole, it is recommended he is afforded intensive re-integration support, not unlike what he would be provided in New Zealand. RD and SOC consulted and reviewed by SOC delegate with release supported should Australian Border Force approve deportation of Mr [WVJB] back to New Zealand.[70]
[70] Exhibit R1 at p.145.
The psychologist Mr Richard Balfour, who assessed the Applicant’s criminogenic risk profile in August 2022 and opined that at the time the risk of criminal recidivism was in the low range of risk as assessed on a rating scale of low, moderate and high and assessed his prognosis for ceasing offending as good on a scale of poor, fair and good.[71] Mr Balfour gave the following reasons for his assessment of the Applicant:
[71] G15 at p.103.
(a)his murder offence occurred in response to a unique constellation of situational stressors that are unlikely to be repeated;
(b)he no longer has drug and alcohol abuse problems;
(c)he is in a supportive relationship with AA who is a positive social influence on him and they share the same Christian values;
(d)the recidivism rate for murder is one of the lowest recidivism rates for any crime;
(e)he has not exhibited violent behaviour or come into legal conflict during the last sixteen years;
(f)he is now fifty-nine years of age and criminological evidence has found that the ageing process significantly reduces the risk of criminal recidivism;
(g)he is highly remorseful regarding his offending behaviour and exhibited significant victim empathy;
(h)his life parole will automatically resume if he is released and he will live in the community under a rigorous supervision regime with strict parole conditions; and
(i)he is highly motivated to remain in Australia, where his social support network is located.
The assessment of Mr Balfour is based in part on the assumed support of AA, which the Applicant confirmed is no longer relevant. Nevertheless, the Tribunal is satisfied from the evidence of the Applicant’s brother that he and his sister D provide a similar alternative source of support to that offered by AA.
The Tribunal also notes that Mr Balfour’s assessment of the risk of re-offending is directed primarily at the likelihood of the Applicant committing a serious crime such as murder and that he does not separately consider the prospect of the Applicant reverting to the sorts of anti-social criminal activity he committed between 1987 and 2004.
Conclusion
Having regard to each of the factors discussed the Tribunal is satisfied that the Applicant presents a low risk of committing murder or other serious violent crime.
However, the Tribunal notes cl 8.1.2(1) and the view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases and that some conduct, and the harm that would be caused if it were repeated, is so serious that any risk that it may be repeated may be unacceptable.
As to the risk of the Applicant engaging in further anti-social criminal activity of the kind he committed between 1987 and 2004, much depends on his ability to avoid the itinerant life-style he lived in that time and particularly drug and alcohol use. While there are positive indications, some doubt remains as to the level of community support the Applicant would receive to deal with his addiction and psychological issues if released. The Tribunal assesses the risk of re-offending of this kind as low to moderate.
The Tribunal must also take into account the principle set out in 5.2 of Direction 99 that Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in Australia for most of their life, or from a very young age. The applicant arrived in Australia at the age of 17. With the exception of a few short periods of time returning to New Zealand, the applicant resided exclusively in Australia from 1982. Prior to his incarceration in 2004, he lived in the Australian community for approximately 25 years.
Having regard to these matters, the Tribunal is satisfied that there is a low risk that the Applicant would commit a serious crime of violence if he remained in the Australian community, but there is a slightly higher risk that he may lapse into anti-social behaviour and less serious offending.
The protection of the Australian community is a primary consideration under Direction 99 and weighs in favour of not revoking the cancellation of the Applicant’s Visa. While the risk of serious offending is low, the Tribunal is concerned that the harm that would be caused if the Applicant’s criminal violence was repeated is so serious that the risk is unacceptable. Accordingly, the Tribunal gives this consideration substantial weight.
Family Violence committed by the Applicant
Clause 8.2(1) of Direction 99 states:
The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
There is no evidence that the Applicant has engaged in family violence and this consideration is not relevant to him.
The Strength, Nature and Duration of ties to Australia
Clause 8.3 of Direction 99 requires that decision-makers:
(1)…must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to the length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
Impact on the Applicant’s Family Members
The Applicant identified the following members of his immediate family in Australia:
(a)His brother TT who has always been a support for him and who will be impacted if he cannot stay in Australia. He said TT is relying on him to go and live with him to help him out, with firewood, gardening, and keeping him company. He also said that he would like to connect with TT’s children, K and S, with whom he had spoken a couple of times on the phone, but he had been in prison while they have been growing up.
(b)His sister, D who also lives in Queensland and has three children with whom he hasn’t spoken since he went to prison.
(c)His younger brother, P (adopted), his de facto partner, RI and their daughter B, who live in Sydney and with whom he has spoken by phone.
(d)His stepbrother, R, with whom he has had no contact.
The Applicant’s brother TT gave evidence that he was looking forward to the Applicant living with him and his family in Queensland and that he would be disappointed if the Applicant was not able to do so. He also said that their sister D was looking forward to the Applicant coming to Queensland to live with him.
The Tribunal notes that apart from TT, who visited the Applicant in prison and has maintained contact by telephone, the Applicant has had little or no contact with his family members in Australia for the last 18 years since being in prison. In addition, for many years prior to his imprisonment, the Applicant lived an itinerant lifestyle, moving around the country living in various places including Waikerie, South Australia, Darwin, NT, Newcastle, NSW and Mallacoota, Victoria.
Having regard to this lack of contact, the Tribunal is satisfied that, apart from his brother TT, there is likely to be minimal impact on members of the Applicant’s family as a result of the Tribunal’s decision. In TT’s case, the Tribunal accepts that he will be disappointed if the Applicant is unsuccessful, but he will have the opportunity to continue the relationship he has had with the Applicant over many years via social media or other electronic means. In addition, there is no indication that TT would be disadvantaged in any material respect by the continued absence of the Applicant. It is not a situation where, for example, a relative is dependent on another for the continuation of a commercial venture or to assist with the care of an elderly relative.
Strength, duration and nature of any family or social links
Apart from his family members, the Applicant identified several personal social connections:
(a)a good friend, G, in Western Australia that he had lost contact with when he went to prison and who he had been trying (unsuccessfully) to reconnect with on-line;
(b)a friend C, in Broadmeadows, Victoria whose mother M let him stay with her many times on his visits to Melbourne, who he had not contacted since going to prison;
(c)TB and his wife, MB, in South Australia who have visited him regularly while in prison whom he met through the Church; and
(d)friends, G, A and J from Mallacoota, Victoria whom he knew through work before he went to prison.
TB gave evidence at the hearing. He said he met the Applicant in 2004 through the church in Waikerie, South Australia, 5 or 6 months before the Applicant was arrested and charged with murder. He said he visited the Applicant while he was on remand and then while in Port Augusta prison 2 or 3 times per year. He said he intended to keep in contact with the Applicant even if he is relocated to New Zealand but hoped he would be released and, if the Applicant was in South Australia, he would welcome him to visit him at his home in Victor Harbour. He said that the church in Waikerie has folded but members of his current church would be pleased to meet the Applicant.

The Applicant commented on the prospect of his return to New Zealand stating that he had heard that if you get deported back to New Zealand, you get dumped at the airport. He stated:
I remember little of New Zealand apart from the difficult childhood that shaped my life. If I am returned to New Zealand, I will have no one and it will be foreign to me. I believe there have been many changes there since I made Australia my home. I do not know anyone there and do not know what will become of me. That really scares me.[87]
[87] Exhibit A1 at [76].
He said in his statement that:
(a)he may have extended family in New Zealand but he does not know any family members that he can ask for help and he has had no contact with his mother or any cousins or extended family in New Zealand;
(b)he could not go back to the North Island because of it reminding him of the abuse he had suffered there and would have to go to the South Island and the cold would cause difficulties for his arthritis;
(c)he was afraid generally of the impact on his mental and physical health and he was not sure how he could continue to receive the treatment he needs in New Zealand;
(d)he would need help to find accommodation, employment, a general practitioner for medical treatment, a mental health counsellor, drug and alcohol counselling and a carer and he was not sure where to start in New Zealand;
(e)he was concerned that because of his age he may not find employment;
(f)he was unsure if he could access similar benefits in New Zealand to the Disability Support Pension he received in Australia before his imprisonment; and
(g)his family in Australia would not be able to support him financially in getting established in New Zealand as they are struggling themselves.
The Respondent submitted that, although the applicant may face some difficulty in re-establishing himself in New Zealand due to his residence in Australia, this factor would only present as a short-term hardship and would not preclude resettlement in circumstances where:
(a)New Zealand presents no language or cultural barriers for the Applicant to overcome.
(b)He will have access to New Zealand’s social, medical and economic support systems and the Tribunal should infer that they are of an equivalent quality to those available in Australia.
(c)The Applicant has a work history, ameliorating any difficulty in finding employment in New Zealand.
(d)Contrary to the applicant’s statement returnees to New Zealand are not “dumped at the airport”. Returnees are able to access support from the Department of Immigration on return[88] and the Department of Correctional Services will provide specific support for the Applicant on return to New Zealand.
[88] The Respondent’s submission cited the following website: Australian Government Department of Home Affairs, ‘Status Resolution Service’ (17 March 2020):
The Tribunal has little doubt that deportation to New Zealand would be difficult for the Applicant especially given his anxiety and the effect that any change has on his anxiety. As he has been in prison and detention for the last 18 years, he would face the challenges of adjusting to life outside prison wherever he lived upon release. There are, however, factors which limit the detriment that the Applicant may suffer if relocated to New Zealand. He is familiar with the country having lived there as a child and young man. There are no language or major cultural barriers for him to overcome.
The Applicant has not identified any specific welfare benefits that would not be available to the Applicant in New Zealand which would constitute an impediment that he would face. In the absence of such evidence, the Tribunal is satisfied that in New Zealand the Applicant would have access to government benefits and social, medical and/or economic support similar to that available to him in Australia.[89]
[89] Uelese v Minister for Immigration and Border Protection (2016) FCA 348 at [68]-[69].
As to the Applicant’s position as a returnee, the issue of the Applicant’s removal to New Zealand was specifically addressed in the Parole Report prepared for the Parole Board consideration of the Applicant’s parole. The delegate noted:
Mr [WVJB] advised that he has decided to apply for Parole as he would then be able to take advantage of the opportunity to gain support with employment and housing in New Zealand. He stated that when he was first advised he would be deported; he felt depressed, anxious and suicidal but has since thought about this in a more positive way and will utilise the assistance that will be offered to him in New Zealand. The writer has obtained information from the Returning Offenders Advisor, Department of Corrections in New Zealand, and was advised the following:
"...All deportees receives assistance in obtaining their Inland Revenue Tax number, which is required to open a bank account, which in turn is required by Ministry of Social Development (MSD) to assist with any benefit payments. We also have PARS contracted to the Department to assist with all this and also assist the deportees in obtaining accommodation and employment. MSD does provides assistance with accommodation, if needed. On his arrival in New Zealand, will he be met by Police at the airport and transported to the Managed Isolation Facility for the required 2 week stay...I confirm that Mr [WVJB] is eligible for a Returning Offenders Order (ROO) and will be subject to its standard and special conditions for a period of five (5) years, once he is returned to New Zealand."[90]
[90] Exhibit R1 at pp.131-132.
The Tribunal accepts that relocation to New Zealand will likely be detrimental to the Applicant’s mental health as he will have limited social support and be exposed to a risk of confronting the trauma he faced as a child. Mr Balfour opined that without reliable social support the Applicant would be at risk of becoming homeless.[91] Nevertheless, Mr TB gave evidence that he has contacts in New Zealand who would be willing to assist the Applicant and introduce him to the church community. The Applicant also has relatives in New Zealand with whom he may be able to establish contact. The Applicant would also be able to maintain his relationship with his brother TT and other family and friends in Australia via social media and other electronic means to the extent that he has done for many years while incarcerated.
[91] G15 at p.104.
The Tribunal also accepts that by reason of his age and physical and mental health, the Applicant will experience significant difficulty in obtaining paid employment in New Zealand and would be likely to have to rely on social security payments to survive financially.
Having regard to these matters the Tribunal is satisfied that if relocated to New Zealand the Applicant will face impediments in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of New Zealand) but these impediments are not dissimilar to those he would face if released into the Australian community. This consideration weighs in favour of revoking the cancellation of the Applicant’s Visa but given the nature and extent of the impediments, the Tribunal gives the consideration moderate weight.
Impact on Victims
Clause 9.3(1) of Part 2 requires:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The relevant impact under cl 9.3 is the adverse impact likely to result from the non-citizen being granted a visa.[92]
[92] CGX20 v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs (No 2) [2020] FCA 1842 [17] - [21], which considers the analogue consideration at 14.4 of Direction No 79.
The Applicant confirmed that he does not rely on this consideration and the Tribunal does not have any evidence of the possible impact of its decision under s 501CA on the family members of the deceased victim of the Applicant’s murder conviction or other members of the Australian community who may be adversely impacted.
Accordingly, the Tribunal gives this consideration no weight.
Impact on Australian business interests
Clause 9.4(1) requires:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant confirmed that he does not rely on this consideration and there is no evidence that a decision under s 501CA not to revoke the cancellation of the Applicant’s Visa would compromise the delivery of a major project or important service in Australia, or that the removal of the Applicant from Australia would have any significant impact on Australian business interests otherwise.
Accordingly, the Tribunal gives this consideration no weight.
CONCLUSION
In Gaspar v Minister for Immigration and Border Protection,[93] North ACJ elaborated on how to approach the exercise of the discretion under s 501CA(4)(b)(ii) of the Act:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view.
[93] [2016] FCA 116, [38].
Factors against revocation
There are two primary considerations against revocation.
First, the protection of the Australian community is a primary consideration under Direction 99 and weighs in favour of not revoking the cancellation of the Applicant’s Visa. The Tribunal finds that while the risk of serious offending is low, the Tribunal is concerned that the harm that would be caused if the Applicant’s criminal violence was repeated is so serious that the risk is unacceptable. Accordingly, the Tribunal gives this consideration substantial weight.
Secondly, the Tribunal is satisfied that the expectation of the Australian community is that the Applicant should not be allowed to continue to hold a visa and remain in Australia. This is a primary consideration which should be given substantial weight in favour of not revoking the cancellation of the Applicant’s Visa in the overall assessment of all of the considerations.
Factors in favour of revocation
There are three considerations in favour of revocation.
First, the strength, nature and duration of the Applicant’s ties to Australia is a primary consideration which weighs in favour of revocation. The Applicant has ties to the Australian community in the nature of relationships with his immediate family members and with people with whom he has come into contact, through his employment, community volunteering and involvement with his church, but after 18 years in prison and detention, these ties are not strong. Accordingly, even though it is a primary consideration, the Tribunal affords it moderate weight.
Secondly, the Tribunal accepts that it may be in the best interests of the Applicant’s sister’s children for the Applicant to remain in Australia so that they at least retain the opportunity to develop a relationship with him if he is released. This consideration weighs in favour of revocation but the Tribunal gives it little weight even though it is a primary consideration under Direction 99.
Thirdly, the Tribunal is satisfied that if relocated to New Zealand the Applicant will face impediments in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of New Zealand) but these impediments are not dissimilar to those he would face if released into the Australian community, and gives the consideration moderate weight in favour of revoking the cancellation of the Applicant’s Visa.
Conclusion
Clause 7 of Part 2 of Direction 99 provides guidance on how relevant considerations are to be assessed. It states that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Weighing the factors for and against revocation requires the Tribunal to give both primary and other considerations appropriate weight. This 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.[94]
[94] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594.
The Tribunal is not satisfied that the extent of impediments if removed consideration should be treated as a primary consideration or be afforded greatest weight in this case.
In assessing the relative weight to attribute to factors for and against revocation, the Tribunal has had regard to the principles set out in cl 5.2 of Direction 99 which provide the framework for decision making under s 501CA of the Act. Those principles are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
There are two strong primary considerations against revocation which are consistent with the principles set out in cl 5.2 of Direction 99. The considerations in favour of revocation include one primary consideration, the Applicant’s ties to Australia, which attract moderate weight, a second primary consideration, the best interests of minor children, which attracts little weight, and a non-primary consideration, impediments if removed, which carries moderate weight. Weighing the considerations, the Tribunal is satisfied that the considerations against the revocation of the cancellation of the Visa outweigh the considerations in favour.
Accordingly, the Tribunal is not satisfied that there is another reason to revoke the cancellation of the Applicant’s visa pursuant to s 501CA(4)(b)(ii) of the Act.
DECISION
The Tribunal affirms the decision under review.
APPENDIX A

List of exhibits

A1

Statement of the Applicant of 24 April 2023 (Annexure 15 of Bundle of Supporting Documents of the Applicant)

A2

Further statement of the Applicant of 10 May 2023 (Annexure 16 of Bundle of Supporting Documents of the Applicant)

A3

Order for Release on Parole for Applicant, dated 22 June 2021 (Annexure 2 of Bundle of Supporting Documents of the Applicant)

A4

Bundle of Courses and Qualifications of the Applicant (Annexure 3 of Bundle of Supporting Documents of the Applicant)

A5

Photos of Applicant – conferral of certificate (Annexure 4 of Bundle of Supporting Documents of the Applicant)

A6

Bundle of records for the psychology sessions attended by the Applicant (Annexure 5 of Bundle of Supporting Documents of the Applicant)

A7

Bundle of documents for counselling with Sandra Grams Counselling (Annexure 6 of Bundle of Supporting Documents of the Applicant)

A8

Brochure for Alcohol, Tobacco, and Other Drugs Service Innisfail (Annexure 7 of Bundle of Supporting Documents of the Applicant)

A9

Email for confirmation of call from Adis 24/7 Alcohol and Drug Support Line, dated 28 March 2023 (Annexure 8 of Bundle of Supporting Documents of the Applicant)

A10

Bundle of email correspondence for confirmation of self-referral for mental health assessment for the Applicant (Annexure 9 of Bundle of Supporting Documents of the Applicant)

A11

Arbias Neuropsychological Assessment Report, dated 31 March 2023 (Annexure 13 of Bundle of Supporting Documents of the Applicant)

A12

CCO Order Termination Report (Annexure 14 of Bundle of Supporting Documents of the Applicant)

A13

Statutory declaration of TB, unsigned (Annexure 19 of Bundle of Supporting Documents of the Applicant)

A14

Statutory declaration of TT, unsigned (Annexure 18 of Bundle of Supporting Documents of the Applicant)

A15

Detainee Medical Request forms for the Applicant, dated 25 July 2021 to 21 April 2022 (Annexure 20 of Bundle of Supporting Documents of the Applicant)

A16

IHMS Special Needs Health Assessment for the Applicant, dated 22 June 2022 (Annexure 22 of Bundle of Supporting Documents of the Applicant)

A17

Bundle of photos of the gardens at an immigration detention centre (Annexure 23 of Bundle of Supporting Documents of the Applicant)

A18

Email from the Applicant to Parole Board of South Australia attaching letter for consideration, signed and dated 29 April 2023 (Annexure 17 of Bundle of Supporting Documents of the Applicant)

A19

Reference letter from Peggy Ruzzier, dated 30 March 2023 (Annexure 12 of Bundle of Supporting Documents of the Applicant)

R1

Department of Correctional Services South Australia records (Respondent’s Bundle of Documents – pages 58-267)

R2

IHMS documents (Respondent’s Bundle of Documents – pages 1 – 57)

I certify that the preceding 194 (one hundred and ninety-four) paragraphs are a true copy of the reasons for the decision herein of Member R West

.........................[SGD]...............................................
Associate
Dated: 22 May 2023

Dates of hearing: 15 and 16 May 2023

Counsel for the Applicant: John Riordan

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Advocate for the Respondent: Samantha Liddy

Solicitors for the Respondent: Sparke Helmore Lawyers

List of exhibits
A1	Statement of the Applicant of 24 April 2023 (Annexure 15 of Bundle of Supporting Documents of the Applicant)
A2	Further statement of the Applicant of 10 May 2023 (Annexure 16 of Bundle of Supporting Documents of the Applicant)
A3	Order for Release on Parole for Applicant, dated 22 June 2021 (Annexure 2 of Bundle of Supporting Documents of the Applicant)
A4	Bundle of Courses and Qualifications of the Applicant (Annexure 3 of Bundle of Supporting Documents of the Applicant)
A5	Photos of Applicant – conferral of certificate (Annexure 4 of Bundle of Supporting Documents of the Applicant)
A6	Bundle of records for the psychology sessions attended by the Applicant (Annexure 5 of Bundle of Supporting Documents of the Applicant)
A7	Bundle of documents for counselling with Sandra Grams Counselling (Annexure 6 of Bundle of Supporting Documents of the Applicant)
A8	Brochure for Alcohol, Tobacco, and Other Drugs Service Innisfail (Annexure 7 of Bundle of Supporting Documents of the Applicant)
A9	Email for confirmation of call from Adis 24/7 Alcohol and Drug Support Line, dated 28 March 2023 (Annexure 8 of Bundle of Supporting Documents of the Applicant)
A10	Bundle of email correspondence for confirmation of self-referral for mental health assessment for the Applicant (Annexure 9 of Bundle of Supporting Documents of the Applicant)
A11	Arbias Neuropsychological Assessment Report, dated 31 March 2023 (Annexure 13 of Bundle of Supporting Documents of the Applicant)
A12	CCO Order Termination Report (Annexure 14 of Bundle of Supporting Documents of the Applicant)
A13	Statutory declaration of TB, unsigned (Annexure 19 of Bundle of Supporting Documents of the Applicant)
A14	Statutory declaration of TT, unsigned (Annexure 18 of Bundle of Supporting Documents of the Applicant)
A15	Detainee Medical Request forms for the Applicant, dated 25 July 2021 to 21 April 2022 (Annexure 20 of Bundle of Supporting Documents of the Applicant)
A16	IHMS Special Needs Health Assessment for the Applicant, dated 22 June 2022 (Annexure 22 of Bundle of Supporting Documents of the Applicant)
A17	Bundle of photos of the gardens at an immigration detention centre (Annexure 23 of Bundle of Supporting Documents of the Applicant)
A18	Email from the Applicant to Parole Board of South Australia attaching letter for consideration, signed and dated 29 April 2023 (Annexure 17 of Bundle of Supporting Documents of the Applicant)
A19	Reference letter from Peggy Ruzzier, dated 30 March 2023 (Annexure 12 of Bundle of Supporting Documents of the Applicant)
R1	Department of Correctional Services South Australia records (Respondent’s Bundle of Documents – pages 58-267)
R2	IHMS documents (Respondent’s Bundle of Documents – pages 1 – 57)

Dates of hearing:	15 and 16 May 2023
Counsel for the Applicant:	John Riordan
Solicitors for the Applicant:	Carina Ford Immigration Lawyers
Advocate for the Respondent:	Samantha Liddy
Solicitors for the Respondent:	Sparke Helmore Lawyers