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Campbell and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2542 (8 August 2023)

Last Updated: 15 August 2023

Campbell and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2542 (8 August 2023)

Division: GENERAL DIVISION

File Number: 2023/3622

Re: Paul Campbell

APPLICANT

And Minister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal: Senior Member Dr M Evans-Bonner

Date: 8 August 2023

Place: Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 15 May 2023, is affirmed.

...............[Sgd]...............................................

Senior Member Dr M Evans-Bonner

CATCHWORDS

MIGRATION – mandatory visa cancellation – aggregate sentence – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s Visa – character test – substantial criminal record – offences and conduct involving family violence, assault, weapons and ammunition possession – Applicant is a 49 year old citizen of New Zealand who arrived in Australia as a 32 year old adult – Direction No 99 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – family violence – strength, nature and duration of ties to Australia – no minor children – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed to New Zealand – Reviewable Decision affirmed

LEGISLATION

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 10A, 35(4)

Migration Act 1958 (Cth) ss 5AB, 499, 499(1), 499(2A), 500(6B), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)

Migration Amendments (Aggregate Sentences) Act 2023 (Cth) ss 1, 4

CASES

Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68

Moli and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 666

NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  [2021] AATA 1143 

Pearson v Minister for Home Affairs [2022] FCAFC 203

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

Webb v Minister for Home Affairs [2020] FCA 831

Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208

SECONDARY MATERIALS

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021)

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (23 January 2023) paras 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 6, 7, 8, 8(1), 8(2), 8(3), 8(4), 8(5), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(a)(i),8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.1(1)(h), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.2(2), 8.2(2)(a), 8.2(3)(d), 8.3, 8.3(1), 8.3(2), 8.3(3), 8.3(4), 8.4, 8.5, 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 8.5(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.1(1), 9.1(2), 9.1(3), 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4(1)

REASONS FOR DECISION

Senior Member Dr M Evans-Bonner


8 August 2023

BACKGROUND

1. The Applicant is a 49-year-old man who was born in New Zealand. He came to Australia to reside on 12 August 2006 when he was 32 years old (G45/165).
2. On 17 September 2021, the Applicant was sentenced in the Burwood Local Court to an aggregate sentence of two years with a non-parole period of 12 months for “assault occasioning actual bodily harm (DV) – T2”, “contravene prohibition/restriction in AVO [apprehended violence order] (domestic)”, “stalk/intimidate intend fear physical etc harm (domestic) – T2”, “common assault – T2” and “stalk/intimidate intend fear physical etc harm (personal) – T2”. On appeal, his aggregate sentence was reduced to 15 months with a non-parole period of eight months (G6/44-47).
3. On 5 October 2021, the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (Visa) was mandatorily cancelled (Cancellation Decision) under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) on the basis that he had a substantial criminal record and was serving a full-time custodial sentence of imprisonment (G47/170).
4. The letter advising the Applicant of the Cancellation Decision advised that he could make representations to seek revocation of the Cancellation Decision. The Applicant sought revocation of the Cancellation Decision on 15 October 2021 (G19/98-101). He subsequently submitted a personal circumstances form dated 1 November 2021, made submissions, and provided further evidence in support (G20-G23).
5. In a letter dated 11 November 2022, the Department of Home Affairs (Department) asked the Applicant to comment on further information that they would be considering when deciding whether to revoke the Cancellation Decision. This information included the Applicant’s national criminal history check and sentencing remarks (G46/167–168). The Applicant provided the Department with submissions in response (G24–G26).
6. The Applicant was in immigration detention from 3 June 2022 but was released on 23 December 2022 (S9/101) because the cancellation of his visa was based on an aggregate sentence and therefore invalid (Pearson v Minister for Home Affairs [2022] FCAFC 203 (Pearson)). On 23 February 2023, following the passing of the Migration Amendments (Aggregate Sentences) Act 2023 (Cth) (Amending Act), the Applicant was returned to immigration detention.
7. He made further submissions on 11 March 2023, 25 March 2023 and 28 April 2023 (G27-G29).
8. However, on 15 May 2023, a delegate of the Minister decided not to exercise discretion under s 501CA(4) of the Migration Act to revoke the Cancellation Decision (G4/26). This is the Reviewable Decision currently before me.
9. The Reviewable Decision was hand delivered to the Applicant on 16 May 2023 (G2/8; R3). On 25 May 2023 he lodged an application seeking a review of the Reviewable Decision in the General Division of this Tribunal (G2), just within the nine-day period prescribed by s 500(6B) of the Migration Act.

ISSUES

10. The issues that I need to determine are:

    (a) whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and

    (b) if he does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).

THE HEARING AND THE EVIDENCE

11. This application was heard on 21, 26 and 28 July 2023.
12. The Applicant was self-represented. The Respondent was represented by Ms G Mickle of Minter Ellison.
13. The Applicant gave evidence at the hearing in person on the first and second day. The Applicant’s half-brother, Mark, gave evidence on the second day of the hearing by telephone. His father, Colin gave evidence on the final day of the hearing by telephone.
14. I admitted the following documents into evidence at the hearing:

    (a) Applicant’s notes filed on 28 June 2023 (Exhibit A1);

    (b) Letter from the Applicant’s friend Crystal, dated 27 June 2023 (Exhibit A2);

    (c) Letter from the Applicant’s half-brother, Mark, dated 16 July 2023 (Exhibit A3);

    (d) Statement of the Applicant with four attachments filed on 18 July 2023 (Exhibit A4);

    (e) Undated handwritten letter from the Applicant’s father, Colin, filed on 18 July 2023 (Exhibit A5);

    (f) Documents provided under section 501G of the Migration Act (G Documents), labelled G1-G49, comprising pages 1-207 (Exhibit R1 – for convenience I refer to these documents by their G numbers, for example, G1);

    (g) Respondent’s Supplementary Documents, labelled S1-S9, comprising pages 1-104 (Exhibit R2 – which I have also referred to by their S numbers);

    (h) Signed acknowledgment of receipt of the Reviewable Decision and documents pertaining to the decision by the Applicant dated 16 May 2023 (Exhibit R3); and

    (i) Handwritten notes of the Applicant’s offending (Exhibit T1).

15. The Respondent lodged a Statement of Facts, Issues and Contentions (SFIC) dated 14 July 2023 prior to the hearing.

LEGISLATIVE FRAMEWORK

Migration Act

16. Subsection 501(3A) of the Migration Act provides that:

(3A) The Minister must cancel a visa that has been granted to a person if:

(a) the Minister is satisfied that the person does not pass the character test because of the operation of:

1. paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
2. paragraph (6)(e) (sexually based offences involving a child); and

(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

17. Subsection 501(6)(a) of the Migration Act provides that:

(6) For the purposes of this section, a person does not pass the character test if:

(a) the person has a substantial criminal record (as defined by subsection (7)); or

(Original emphasis.)

18. A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:

(7) For the purposes of the character test, a person has a substantial criminal record if: ...

(c) the person has been sentenced to a term of imprisonment of 12 months or more; or

(Original emphasis.)

19. Relevantly, s 1 of the Amending Act inserted a new s 5AB into the Migration Act:

    5AB Sentencing for offences

    The provisions of this Act and the regulations apply no differently in relation to a single sentence imposed by a court in respect of 2 or more offences to the way in which those provisions apply in relation to a sentence imposed by a court in respect of a single offence.

    Example: Paragraph 501(7)(c) applies in relation to a person sentenced to a term of imprisonment of 12 months or more. Because of this section, that paragraph applies in relation to a person sentenced to such a term, whether the sentence is imposed for a single offence or for 2 or more offences.

20. Section 4 of the Amending Act also retrospectively validated anything done, or purportedly done, before the commencement of the Amending Act, thus remedying the defect found by the Full Federal Court in Pearson.
21. Section 501CA of the Migration Act further provides, in part:

(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:

(a) would be the reason, or a part of the reason, for making the original decision; and

(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3) As soon as practicable after making the original decision, the Minister must:

(a) give the person, in the way that the Minister considers appropriate in the circumstances:

1. a written notice that sets out the original decision; and
2. particulars of the relevant information; and

(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

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

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

(b) the Minister is satisfied:

1. that the person passes the character test (as defined by section 501); or
2. that there is another reason why the original decision should be revoked.

(Original emphasis.)

Direction No 99

22. Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:

(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a) the performance of those functions; or

(b) the exercise of those powers.

23. Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
24. On 23 January 2023, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 99) under s 499 of the Migration Act, which commenced operation on 3 March 2023. This Direction replaced the previous Direction No 90: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA made on 8 March 2021 (Direction No 90).
25. Paragraph 5.1 of Direction No 99 sets out “[o]bjectives”, with paragraphs 5.1(3) and (4) being relevant to the current application:

(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full­ time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.

(4) The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

26. Paragraph 5.2 of Direction No 99 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to ... revoke a mandatory cancellation under section 501CA”. The principles are:

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

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

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

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

    (5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non­citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    (6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.

27. Informed by the principles set out in paragraph 5.2 of Direction No 99, when making a decision the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 99) must consider the primary considerations listed in paragraph 8 of Direction No 99, and the other considerations listed in paragraph 9 where relevant (see para 6 of Direction No 99).
28. Specifically, paragraph 8 of Direction No 99 provides:

    In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:

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

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

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

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

    (5) expectations of the Australian community.

29. Paragraph 9 of Direction No 99 lists other considerations to be considered as follows:

    (1) In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations 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

30. Guidance as to how a decision-maker is to apply the considerations in
    Direction No 99 can be found in paragraph 7, “[t]aking the relevant considerations into account”, which provides:

    (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.

DOES THE APPLICANT PASS THE CHARACTER TEST?

31. The Minister may revoke the Cancellation Decision if the Minister is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
32. The Applicant does not pass the character test due to the operation of s 501(6)(a) of the Migration Act because he has a “substantial criminal record” as defined by s 501(7) of the Migration Act, having been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act). This is due to the aggregate sentence of 15 months (reduced from two years after an appeal) for the “assault occasioning actual bodily harm (DV) – T2”, “contravene prohibition/restriction in AVO (domestic)”, “stalk/intimidate intend fear physical etc harm (domestic) – T2”, “common assault – T2” and “stalk/intimidate intend fear physical etc harm (personal) – T2” convictions.
33. As the Applicant fails the character test, the statutory power to revoke will only be enlivened if there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).

IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
PRIMARY CONSIDERATIONS

Protection of the Australian community (paras 8(1) and 8.1 of Direction No 99)

34. Paragraph 8.1(1) of Direction No 99 provides that:

(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

35. Paragraph 8.1(2) of Direction No 99 then provides:

(2) Decision-makers should also give consideration to:

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

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

Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 99)

36. Paragraph 8.1.1(1) of Direction No 99 provides:

(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:

a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

1. violent and/or sexual crimes;
2. crimes of a violent nature against women or children, regardless of the sentence imposed;
3. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

1. causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
2. crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
3. any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
4. where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;

100. with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

d) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

e) the cumulative effect of repeated offending;

f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

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

h) where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.

37. The Applicant does not have a lengthy traffic/ driving history. He has five traffic/ driving convictions as follows (the dates stated are Court dates). The offending was committed in Western Australia, except for the 1 March 2007 offence which was committed in Adelaide and the 17 May 2022 offence which was committed in New South Wales (R1/44-47):

    (a) 1 March 2007: “drive unregistered motor vehicle on a road” for which he was fined $65.

    (b) 12 April 2011: “unlicensed vehicle (owner/driver)” for which he was fined $50.

    (c) 25 October 2012: “reckless driving – excessive speed” for which he was fined $400 and had his drivers’ licence disqualified for six months.

    (d) 12 November 2012: “no authority to drive – suspended” for which he received a $500 fine and a nine-month cumulative disqualification of his licence.

    (e) 17 May 2022: “use unregistered registrable Class A motor vehicle on road” for which he received a $700 fine.

38. He has only appeared in Court for criminal offences on five occasions. All offences were committed in New South Wales (R1/44-47):

    (a) 31 March 2015: “contravene prohibition/ restriction in AVO (domestic)” for which he received a s 9 bond for 12 months and “custody of knife in public place – first offence” for which he received a s 10A conviction (pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW)) with no other penalty.

    (b) 24 August 2020: two counts of “contravene prohibition/ restriction in AVO (domestic)” for which he received $400 fines for each.

    (c) 21 September 2020: “possess or use a prohibited weapon without permit – T2” for which he received a $700 fine with the weapon being forfeited to the Crown.

    (d) The Applicant was first sentenced on 17 September 2021 (G9), and after lodging a severity appeal, he was resentenced on 1 November 2021 (G8) to an aggregate sentence of 15 months commencing on 4 April 2021 and concluding 3 July 2022 with a non-parole period of eight months for the offences:

    (i) “stalk/ intimidate intend fear physical etc harm (personal) – T2”;

    (ii) “common assault – T2”;

    (iii) “assault occasioning actual bodily harm (DV) – T2”;

    (iv) “stalk/ intimidate intend fear physical etc harm (domestic) – T2”; and

    (v) “contravene prohibition/ restriction in AVO (domestic)”.

    (e) 17 May 2022: the Applicant received an aggregate sentence of one year and three months imprisonment commencing on 4 August 2021 and concluding on 3 November 2022, with a non-parole period of 10 months commencing on 4 August 2021 and concluding 3 June 2022 for the offences:

    (i) “stalk/ intimidate intend fear physical etc harm (domestic) – T2”;

    (ii) “contravene prohibition/ restriction in AVO (domestic)”;

    (iii) “possess unauthorised pistol”; and

    (iv) “possess shortened firearm (not pistol) w/o authority – T2”.

39. At the Applicant’s court appearance on 17 May 2022, the following offences were “taken into account on form 1”. Given that an offender is not convicted of form 1 offences (s 35(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW)), it is appropriate for me to instead treat them as conduct, rather than offences:

    (a) Three counts of “possess ammunition w/o holding licence/permit/authority”; and

    (b) Three counts of “possess unauthorised pistol”.

40. I will now provide an overview of the facts of the Applicant’s offences and conduct where the sentencing remarks are before me.
41. In sentencing remarks dated 1 November 2021, the Judge who decided the Applicant’s severity of sentence appeal described the facts of the “common assault – T2” and “stalk/ intimidate intend fear physical etc harm (personal) – T2” offences. The Applicant pled guilty to these offences which were committed on 20 August 2020 (G8/54-55). The sentencing Judge stated:

    On the day in question, the victim and the appellant were not known to each other. The appellant drove his motor vehicle, when stopped by police for an unrelated matter. The police body worn video was activated. At the same time, the victim, who was working as a traffic controller at an Ausgrid work site, was on the corner of The Strand and Thompson Street, Gladesville. After the police left, the appellant was asking people nearby for a lighter or a match to use to light his cigarette. He proceeded to the Ausgrid worksite and asked the workers there if they had any lighters or matches.

    As he walked away, he believed that somebody was laughing at him. He turned and asked: “What are you laughing at?” and this was how the confrontation commenced.

    The victim was standing on the footpath and said: “No one is laughing”. The appellant then walked to the victim, approached him and shouted: “Why are you laughing? I am ex-military. I served for this fucking country”.

    He then pushed his chest forward so that it was contacting the front of the victim’s body. The force of the appellant pushed the victim backwards. The victim yelled: “Back off, back off”. The appellant used one of his hands to push the victim’s arm away from him.

    Others who were in the vicinity intervened to try to de-escalate the situation. The appellant continued to threaten the victim, saying things such as: “You’re lucky that I didn’t snap you like a twig. I will kill you. I will smash you”.

    This is a summary of the facts relating to those offences. Whilst they are serious offences, I take into account that the nature of the physical contact was push, rather than punching. The threats then accompany that action. This was a completely unprovoked attack on a person who was simply going about his own business.

42. Then, in the 1 November 2021 sentencing remarks, the sentencing Judge summarised the facts of the “assault occasioning actual bodily harm (DV) – T2”, “stalk/ intimidate intend fear physical etc harm (domestic) – T2” and “contravene prohibition/ restriction in AVO (domestic)” offences. These offences occurred on 23 November 2020. The victim was the Applicant’s former partner, whom I will refer to as “R”. The sentencing Judge stated (G8/56-57):

    The victim in those matters and the appellant had been in a relationship for about five months. These are domestic violence related offences. On 3 September 2020, the appellant had appeared before Burwood Local Court where a provisional apprehended domestic violence order naming the appellant as the defendant came into effect with a number of conditions.

    On 23 November 2020, whilst the appellant, the victim, and another person by the name of Michael, where in a motor vehicle an argument started between the appellant and the victim. It appears that this argument was over the victim owing the appellant $10.

    At some point during the car ride, he reached around from the front seat and began punching and flicking at the victim an unknown number of times. He threatened her with serious violence. He attempted to pull the victim from the car. She yelled at him not to hit her again.

    During the journey that followed, the vehicle pulled over an undisclosed amount of times where the appellant punched and grabbed at the victim’s face an unknown number of times. It appears that some of these acts at least were perpetrated at a time when she was seated as a passenger in the back seat.

    On 24 November 2020, police attended Royal North Shore Hospital in relation to an unrelated matter. The victim was receiving a mental and medical assessment. Police observed bruising around her eyes, nose, multiple bruises to her legs and arms.

    In respect of these offences, I am satisfied that they are the middle of the range of objective seriousness. I repeat, these are domestic violence related offences. The assaults were constituted by a number of blows to the victim who was sitting, at least for some of this assault, in the motor vehicle, helpless.

43. In the sentencing remarks dated 17 May 2022, the sentencing Judge described the facts of the numerous offences that the Applicant was sentenced for on that date, including domestic violence offences committed against R on 2 and 3 April 2021 (G7/48-49).
    The Applicant pled guilty to these offences:

    Facts behind the charges which are agreed are as follows. He, Mr Campbell, had been in a relationship for some time with a woman by the name of [R]. They lived together for some time, but on 10 December 2020, and AVO was granted at Burwood Local Court in favour of [R]. The conditions of the AVO stipulating among other things that he not assault, stalk, threaten, harass, or intimidate her, or indeed approach or contact her in any way except through a lawyer. But then on 2 April 2021, the victim stayed overnight at his apartment.

    In doing so, the accused found himself in contravention of that AVO, giving rise to 1 of the charges. The following morning, an argument developed between the two which began to escalate with the accused tipping over her coffee, telling her to leave. Eventually she did leave, but she was followed by the accused out onto the street where the argument continued. One point he hugged her, and another point he began to stroke her throat with his finger and did so when onlookers had passed and were no longer able to observe what was going on.

    During the argument, he issued various insults towards [R] which included calling her a putrid dog. Such actions gave rise to the offence of intimidation. The argument continued with the accused threatening to end the relationship. Shortly thereafter, [R] returned to the home of the offender of the accused. The accused continued to harass her and insult her. He grabbed her arm at one point where she tried to leave, which is also part of the offence of intimidation. Somebody outside, a witness, a young woman heard the victim, [R], screaming “Please leave me alone,” and eventually found her crying and in distress.

    The young woman inserted herself between the accused and the victim and assisted the victim with her suitcase. They went to a nearby café and some phone calls were made in relation to emergency housing, at which point the women, [R] and the young woman assisting her whose name was [B], decided to return to the accused’s apartment so she could get her wallet. She being [R]. She went back into the accused units and further arguments continued. When [R] eventually left, she decided to contact the police.

44. On 17 May 2022, the sentencing Judge continued to describe the various firearms offences that were taken into account on form 1 (which I regard as conduct), as well as the two firearms offences that formed part of the aggregate sentence (G7/49):

    Police were contacted, and as they sought to do so, the accused continued to follow the two women calling them various insults and urging them not to call the police. One point, the accused stepped in front of [R] and the young woman, [B]. He was told by them to leave them alone, at which point the accused ran to a white Toyota HiAce with no registration plates, which was apparently a vehicle that he had access to at the time. Police soon enough identified the vehicle and pulled it over, and the accused was arrested without any difficulties and placed into handcuffs. But when the vehicle was searched by the police, having found that it was an unregistered vehicle, they located the firearms and the ammunition, the subject of the charges and the Form 1 matters to which I have referred.

    One of the firearms was a shortened 4.5 millimetre 22 single shot break action airgun. Two of the firearms were repeat gel ball air pistols. Two of the firearms were imitations of loading pistols. And the ammunition is described in the agreed facts. There is an agreed position between the parties that none of the firearms were capable of discharging a projectile by means of an explosive substance. They appear to have been firearms which were either intended for use recreationally, or intended to be and were imitation firearms, and in one case an airgun which has various non-lethal uses.

45. Direction No 99 provides that certain types of offending should be considered as “very serious” or “serious” (paras 8.1.1(1)(a) and (b) of Direction No 99). These include violent offences and crimes of a violent nature against women which fall into the “very serious” category. This means that the “common assault – T2” offence for which the Applicant was resentenced on 1 November 2021, which involved the Applicant pushing the victim backwards and pushing the victim’s arm away with his hand, would fall within this very serious category, even though it was a push rather than a punch (para 8.1.1(1)(a)(i)).
    The “assault occasioning actual bodily harm (DV) – T2”, which the Applicant was also resentenced for on 1 November 2021, was a domestic violence offence committed against the Applicant’s former partner, R. The Applicant punched and flicked at the victim and grabbed her face when they were in the car. As this is a crime of a violent nature against a woman, it should also be regarded as very serious.
46. Some of the Applicant’s other offences are less serious than these violent offences.
    His offences involving weapons and ammunition possession are less serious, and I note the remarks of the sentencing Judge on 17 May 2022 that “none of the firearms were capable of discharging a projectile by means of an explosive substance”. Further, offences that are taken into account on form 1 are often less serious offences and I regard those offences as such.
47. The Applicant has several breaches of conditions of apprehended domestic violence restraining orders. Breaches of this kind are often serious because such orders are imposed to protect victims from physical and psychological abuse. Although some of these breaches were contact breaches at the less serious end of the scale, his breach on 23 November 2020 where he was in the car with the victim, was very serious because of the serious consequences that resulted. That is, the victim was assaulted, resulting in the Applicant’s conviction for “assault occasioning actual bodily harm (DV) – T2”.
48. This Tribunal has often regarded driving offences as being serious. The Applicant’s most serious driving offence was his 25 October 2012 “reckless driving – excessive speed” offence due to the danger that this type of offence can cause to innocent road users.
    The Applicant’s other driving/ traffic offences, such as driving unregistered or unlicensed vehicles and driving whilst suspended are moderately serious because those rules are there to ensure the roadworthiness of vehicles and to ensure that unsafe drivers are not on the roads, to protect the safety of other road users.
49. The Applicant received a 12-month bond and fines for the offences that were the subject of his first three court appearances (weapons possession and breaches of AVOs), which suggests that they were regarded by the Court as being of a lower level of seriousness. After a severity of sentence appeal, the Applicant received an aggregate sentence of imprisonment for 15 months on 1 November 2021 for the three domestic violence-related offences concerning the incident in the car, as well as the two offences near the construction site where he pushed the victim and threatened him. The Applicant received another aggregate sentence on 17 May 2022, that was backdated to 4 August 2021, which effectively added seven months to the 1 November 2021 sentence. These sentences suggest that the Court viewed these offences collectively as being sufficiently serious to impose a sentence of custodial imprisonment. The six weapons offences from 17 May 2022 were taken into account on form 1 which suggests that they were regarded as less serious by the Court (para 8.1.1(1)(c) of Direction No 99).
50. The Applicant has been convicted of five driving/ traffic offences, 13 criminal offences and six offences that can be regarded as conduct because they were taken into account on form 1. The number of offences suggests a frequency of offending. However, his offending occurred over approximately six separate days, being 19 August 2014, 11 August 2020, 20 August 2020, 23 August 2020, 23 November 2020, and 3 April 2021. Overall, his offending is not frequent and there does not appear to be an increase in seriousness of the Applicant’s offending (para 8.1.1(1)(d) of Direction No 99).
51. Excluding his severity of sentence appeal, the Applicant has had five Court appearances for his criminal offending and two custodial sentences of imprisonment. This would have placed some burden on the resources of police, corrective services, and the Courts. Also noting some of his offences are similar or repeated, I find that there is likely to have been a minimal cumulative effect (para 8.1.1(1)(e) of Direction No 99).
52. I am also required to consider whether the Applicant has provided false or misleading information to the Department, including not disclosing prior criminal offending (para 8.1.1(1)(f) of Direction No 99). There is no evidence of any such conduct.
53. Paragraph 8.1.1(1)(g) of Direction No 99, requires me to consider whether the Applicant previously received any formal or other written warnings that further offending may affect his migration status. He has not received any such warnings.
54. The Applicant has not committed any offences in another country, and so I am not required to consider whether any such offence is an offence in Australia (para 8.1.1(1)(h) of Direction No 99).
55. The Applicant does not have a lengthy history, his criminal offending occurred on approximately six separate days and there is a minimal cumulative effect. He does, however, have repeated offences and conduct such as weapons/ ammunition possession and breaches of domestic violence restraining orders. He has committed two very serious offences but most of his other offences are at the less serious end of the scale.
56. Overall, I find that paragraph 8.1.1 of Direction No 99, the nature and seriousness of the conduct, weighs moderately against the revocation of the Cancellation Decision.

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 99)

57. Paragraph 8.1.2(1) of Direction No 99 provides:

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

58. Paragraph 8.1.2(2) of Direction No 99 provides, in part, in relation to assessing risk:

(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

1. information and evidence on the risk of the non­citizen re-offending; and
2. 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 (para 8.1.2(2)(a) of Direction No 99)

59. Broadly speaking, I am required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should he engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 99).
60. The harm that could result to members of the Australian community if the Applicant were to reoffend in a violent manner, including by engaging in violence against women, could include serious physical injury, temporary or permanent impairment or even loss of life. Violent offending may also result in psychological harm to victims.
61. The Applicant also has convictions for breaching restraining orders. Whilst not as serious as offences involving physical violence, these types of offences can make victims fearful of their safety, and therefore such offending can have a negative psychological impact on victims. Restraining orders are in place to protect the safety of the person protected, and so breaching them can cause psychological and even physical harms to victims, depending on the nature of the breach.
62. The Applicant also has convictions and conduct involving the possession of firearms and ammunition. Unlicensed and/or dangerous firearms can be unsafe and possessing them raises the risk that they may be used and that members of the Australian community could suffer physical or psychological harms.
63. The Applicant also has five driving/ traffic convictions in 2007, 2011, 2012 and 2022.
    A primary purpose of road traffic and driving laws is the protection of road users.
    For example, prohibitions against driving whilst suspended exist to ensure that persons driving cars are appropriately qualified and safe to do so. Prohibitions against reckless driving ensure that innocent road users are not endangered. Contraventions of these laws can result in serious consequences, including fatalities from road traffic accidents, as well as physical and psychological injuries to innocent road users.

Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 99)

64. Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (para 8.1.2(2)(b)(i) and sub-para (ii) of Direction No 99).
65. The Applicant is a 49-year-old man who has a short criminal history having been convicted of five driving/ traffic offences, 13 criminal offences and six offences that can be regarded as conduct. He did not commit his first criminal offence until he was approximately 41 years old. There was a six-year gap in his criminal offending between August 2014 and August 2020. He also resided in the community for two months from 23 December 2022 until 23 February 2023 after his release from immigration detention after the Pearson decision.
    He is therefore capable of living in the community and not committing any offences.
    This also suggests a lower likelihood of future reoffending, when compared with a person with a longer and more frequent criminal history.
66. A sentencing assessment report dated 20 August 2021 stated that the Applicant had been assessed “at a Medium risk of reoffending according to the Level of Service Inventory – Revised (LSI-R)” (S5/24). Consultant psychologist Mr Tim Watson-Munro stated in his report dated 11 May 2022 (S1/9) that the Applicant:

    ... clearly would benefit from ongoing Cognitive Behavioural Therapy in conjunction with supportive and motivational psychotherapy. His treatment should include systematic desensitisation for his anxiety, social skills training for his low self-esteem, as well as the development of specific relapse prevention strategies. ... Additionally, he requires consistent psychotropic treatment and in this regard, he should be encouraged to maintain his medication in the community. This will need to be overseen by a suitably qualified Medical Practitioner.

67. Mr Watson-Munro opined that with suggested supports and treatment, the Applicant’s “risk of offending will continue to trend from Moderate to Low” (S1/10).
68. The Applicant has also undertaken rehabilitation programs. He has submitted the following certificates of completion which show he participated in (G40-G44):

    (a) Alternative Sanctions Program (certificate dated 13 May 2022), a voluntary 10-week program which the Applicant completed between 17 February 2022 and 13 May 2022. The program included a component on consequential thinking as well as an addictions component (G40/157-158).

    (b) John Morony Correctional Centre (JMCC) Induction, Orientation & Health Survival Tips Information sessions (certificate dated 17 May 2021) (G41/159-160).

    (c) Completing all worksheets required in the In Cell Getting Past Addiction Pack (certificate dated 16 September 2021). This was in place of the Remand Addiction program which could not be facilitated due to COVID-19 restrictions (G42).

    (d) Remand Domestic Violence Program, commenced on 14 May 2021 and completed on 14 July 2021, with positive comments from the facilitator including that the Applicant “has shown motivation towards a positive change which can be attributed to his level of participation when completing these modules” (G43/162-163).

    (e) JMCC 360 Wellness Inside & Out, Personal Development & Life Skills Program (completion report dated 18 May 2021) which was “designed to promote and encourage offenders maintain a healthy lifestyle whilst in custody”. The program was comprised of five “streams”: physical fitness, men’s health, hygiene, nutrition, and mental wellness. The facilitator stated that the Applicant “has shown motivation towards a positive change which can be attributed to his level of participation when contributing to the 5 streams” (G44/164).

69. When sentencing the Applicant on 17 May 2022, the sentencing Judge made the following positive remarks about the Applicant’s attempts at rehabilitation being genuine (G7/52):

    I have read and considered the material from the various programs that he has undertaken in custody, which makes it abundantly clear that it is not simply a case of somebody asserting that they intend to do better, but in Mr Campbell’s case, he has indeed, it would appear, been making positive strides by way of pursuing his rehabilitation every way he possibly can while in custody.

70. The Applicant’s engagement in rehabilitation shows an intention and a commitment to address his drug use and his offending behaviour. This may, in turn, provide him with strategies to abstain from drug use and not to commit further offences if he was released into the Australian community.
71. The Applicant has had a significant drug addiction which has contributed to his offending behaviour. He started drinking at the age of seven and using marijuana at the age of 15. The Applicant’s father was a Vietnam veteran and the Applicant experienced childhood trauma arising from his father’s own mental health struggles. He was diagnosed with bipolar affective disorder when he was approximately 22 years old and stated that he had spent most of his life self-medicating, due to a mistrust of the healthcare system (G21/119).
    His evidence was that he started using methamphetamine in New Zealand when he was approximately 22 or 23 years old. His methamphetamine use escalated just prior to his arrival in Australia, when he was injecting the drug daily. He wanted to come to Australia for “a chance to get clean”. After he came to Australia he used less frequently on a fortnightly basis. The Applicant had a serious motorcycle accident in September 2019. When he was in hospital following this accident for approximately 42 days, the Applicant was not given medication for his bipolar disorder (transcript/16). His lack of medication, serious injuries, the loss of his job and homelessness, contributed to the Applicant going “back down the track of full-on relapse” (transcript/29-31).
72. He met his former partner who was also an intravenous methamphetamine user, in July 2020. They used methamphetamine together two days after they met and the Applicant said, “we were just using drugs constantly after that” (transcript/31-32). According to the Applicant, his partner also had issues with her mental health, and he was concerned that she was mixing alcohol and anti-depressants (transcript/49 and 52). Towards the end of their relationship, the Applicant said that he wanted to stop using drugs but that his partner did not. The relationship ended because the Applicant wanted to cease using drugs (transcript/53). The Applicant no longer has any contact with his former partner.
    My impression was that the Applicant and his former partner were a negative influence on one another and that their relationship was marred by mutual drug use and conflict. Indeed, a sentencing report for the Applicant described it as “a toxic relationship” (S1/7).
73. The Applicant has resolved not to use drugs if he is released into the community and is committed to his rehabilitation. He appeared genuinely proud that, as at the date of the hearing, he had been “clean and sober” for 838 days (transcript/10). If he is released into the Australian community, he plans to attend Narcotics Anonymous and to find himself a sponsor so that he has one-on-one support in the community (transcript/38).
74. On the one hand, the Applicant has a long history of drug use which suggests that it may be difficult for him to abstain from drugs in the community. On the other hand, he is genuinely committed to his rehabilitation, has a plan in place to remain drug-free in the community, and has had a period of abstinence from drugs. He is also no longer in contact with his former partner, which will also assist him to remain abstinent from drugs.
75. The Applicant has a comprehensive plan for when he is released into the community.
    He has a general practitioner in Perth who can refer him to services near where he will reside. He can also see his brother Mark’s general practitioner (transcript/18). His brother Mark is going to help him to establish his own transport business which will courier urgently needed parts to mining companies. He has a drivers’ licence which includes “a full heavy combination”.
76. He plans to find a psychologist near where he will be residing and wants to become involved in community groups again. When he was released after Pearson, he started volunteering with a wildlife protection group called “Fauna” and he would like to continue with this volunteer work.
77. As I have mentioned, he proposes to attend Narcotics Anonymous and to find a sponsor (transcript/38). His brother Mark will also provide the Applicant with stable accommodation and a car, as well as any support that the Applicant may require. The Applicant’s brother is strongly supportive of him, as are his brother’s wife and their two adult sons. I was particularly impressed with Mark’s evidence at the hearing. He is a professionally successful and pro-social person who is strongly opposed to drug use, and he is likely to be a positive and stable influence for the Applicant.
78. The Applicant’s plan for his release into the community which includes mental health treatment, stable accommodation, employment and support from his brother and family, is likely to be protective and is also likely to, as Mr Watson-Munro suggested, reduce the likelihood of the Applicant lapsing to drug use and reoffending.
79. The Applicant has also expressed remorse for his offending. At the hearing he stated that the “shame of what I did will never leave me” and that he was “truly remorseful” (transcript/10). He also stated, with respect to the domestic violence incident against his former partner in the car that he was raised to respect women and that, “I’ve brought dishonour upon myself and my family through my actions” (transcript/34). The Applicant’s remorse for his offending may be a protective factor that could reduce the likelihood of future reoffending.
80. I do, however, have some reservations about the Applicant’s insight into his offending based on his evidence at the hearing. Although he pled guilty to the offences he was sentenced for on 17 September 2021 and 17 May 2022 (excluding the offences that were taken into account on form 1), at the hearing he did not agree with the facts found by the sentencing judges and sought to minimise some of the offending. For example, with respect to the domestic violence incident in the car, the sentencing judge found that the argument between the Applicant and the victim was over the victim owing him $10 and that the Applicant had inflicted “a number of blows” on the victim by punching and grabbing at her face an unknown number of times (G8/56). However, the Applicant stated that the argument was over the victim mixing alcohol and anti-depressants and that he reached behind and struck the victim after she lashed out at him, describing it as an instinctive reaction (transcript/49-50). As I have mentioned, the relationship was most likely marred by drug use and conflict. However, I am bound by the factual findings of the sentencing judge that underpin the conviction and sentence. My impression, based on this evidence, was that the Applicant tried to minimise some aspects of his offending. This lack of insight does raise concerns about a likelihood of reoffending because it suggests that the Applicant has not taken full responsibility for his actions.
81. At the hearing the Applicant was asked about several incidents in immigration detention. This included an incident on 12 December 2022 where the Applicant kicked a door open and walked through whilst pushing past an officer (G48/177), which he explained was a light-hearted incident where he was laughing with the officer. There was another incident on 2 November 2022 where the Applicant was reportedly aggressive towards staff (G48/178). The Applicant’s explanation was that this may have happened when he was coming off his medication and he may have yelled (transcript/93-94). There was another incident on 22 September 2022 where it was alleged that the Applicant raised his voice and pointed aggressively towards another detainee at the medical dispensary window (G48/181). The Applicant’s evidence was that he had told the other detainee to hurry up and the other detainee had sworn at the Applicant (transcript/95). Another incident on 6 July 2022 was recorded where the Applicant reportedly swore at a nurse, kicked a drawer, and threw a tablet in the bin (G48/183). He did not recall kicking the drawer, but admitted he was upset because the psychiatrist was taking him off medication the Applicant thought he needed (transcript/97). These incidents are relatively minor in nature. Also, I am concerned that there are large portions of text redacted in the client incident reports surrounding the reports of the incidents I have just described. It is not appropriate for the Tribunal to be provided with redacted material under summons. The Tribunal should be provided with redacted and unredacted copies. A confidentiality order can be requested, if for example, there is information that concerns third parties. It is for the Tribunal to assess what is relevant and confidential in making that order. The redactions are problematic because they could clarify or change the content of the surrounding incident reports.
    I therefore accept the Applicant’s evidence about what had occurred.
82. The Applicant was also asked about another more serious incident where a parcel was sent to him on 1 June 2023 which was later tested and found to contain a white crystal substance with traces of methamphetamine in it (S9/101-102). His evidence was that he got a slip telling him to go to the property section, and that when he arrived an officer x-rayed a package that was addressed to him from a sender whose name he did not recognise. The officer said that the package did not look right. It was later found to contain the substance. The Applicant said he later understood that the package contained contraband of some sort, but he was never charged with an offence. This evidence is highly prejudicial, untested (in that the author cannot be called for cross-examination) and as the Applicant has denied knowingly being sent the package (transcript/44), I therefore accept the Applicant’s evidence and do not draw any adverse conclusion.
83. There was another incident on 14 April 2023 where officers located a green lighter in a desk drawer in the Applicant’s room, as well as 3 “baggies with white powder residue” in a top locker and smoking paraphernalia (S9/103). The Applicant denied the items were his and said they belonged to a former room mate who had been returned to New Zealand (transcript/87). Similarly, this evidence is prejudicial, untested and the Applicant has denied ownership. I therefore accept the Applicant’s evidence and do not make any adverse finding.
84. The Applicant agreed that another incident had occurred on 23 March 2023 where he behaved in an aggressive manner towards another detainee and threatened to hit him with his shoe (S9/104). The Applicant’s evidence was that the other detainee had been abusing the Applicant and had made a derogatory comment about the Applicant’s deceased mother (transcript/88). At most, this incident shows the Applicant became angry on this occasion, but he did not resort to violence and the incident is relatively minor.
85. Issues with a person’s compliance in a controlled environment can raise concerns about their ability to comply with rules and laws in the community, and about the extent of any gains they may have made in treatment programs, for example, for anger management and consequential thinking and with rehabilitation from substance abuse. As I outlined above, I accept the Applicant’s evidence about these incidents. I therefore do not think the incident reports, much of which the Applicant disputes, raise concerns about the Applicant’s ability to comply with laws in the community or any treatment gains that he has made.
86. The Applicant has been in prison and immigration detention since approximately April 2021, and he now has the hope of beginning again in Western Australia with the assistance of his brother. He is concerned about returning to New Zealand where he fears falling in with the wrong crowd again and that his rehabilitation from substance abuse will be in jeopardy. The Applicant would also like to make something of his life so that he can reconnect with his adult children who live in New Zealand (transcript/108). The Applicant’s time in prison and immigration detention, his concerns about returning to New Zealand, his appreciation of the chance that he has to make a good life in Western Australia with his brother’s support, and his desire to prove himself to his adult children, are likely to deter the Applicant against future drug use and reoffending.
87. Four of the Applicant’s driving/ traffic offences were committed 11 or more years ago, and there is one offence in 2022. As I have mentioned, the Applicant proposes to work in the transport industry, and his brother Mark has offered him the use of a car. I am therefore of the view that there is a minimal to low likelihood of the Applicant committing any further driving/ traffic offences. Thus, the main likelihood of reoffending would be with respect to violence (such as assault), general offending such as weapons possession and breaches of restraining orders, and drug related offending (given the Applicant’s history of substance abuse).
88. In summary, the following factors are not protective or suggest some likelihood of reoffending:

    (a) His lengthy history of substance abuse which may make it difficult to abstain from drug use if he is released into the community.

    (b) Although the Applicant has shown some remorse, he did seek to minimise some of his offending which raises concerns about a likelihood of reoffending because it suggests that the Applicant has not taken full responsibility for his actions.

89. The following factors are protective and may reduce the likelihood of the Applicant reoffending:

    (a) His relatively short criminal history, including that he committed his first criminal offence when he was 41 years old.

    (b) The six-year gap in the Applicant’s criminal offending between August 2014 and August 2020, and his residing in the community for two months from 23 December 2022 until 23 February 2023 after his release from immigration detention after the Pearson decision. This suggests an ability to live in the community without committing any offences.

    (c) The assessment in the sentencing report that the Applicant was a medium risk of reoffending. Further, Mr Watson-Munro’s assessment was that with ongoing community supports and treatment his risk would trend from moderate to low.

    (d) The numerous voluntary rehabilitation programs that the Applicant has undertaken including for consequential thinking, addictions and domestic violence with positive reports from treatment facilitators.

    (e) He is no longer in a negative relationship with his former partner, has support from his pro-social brother and his brother’s family, has stable accommodation, an opportunity for employment with the assistance of his brother and a comprehensive plan including mental health treatment, engagement with Narcotics Anonymous and community work to make meaningful use of his time.

    (f) His commitment to abstain from drugs and to his rehabilitation, together with being “clean and sober” for 838 days.

    (g) The deterrent effect of the time the Applicant has spent in prison and immigration detention, his concerns about returning to New Zealand, his appreciation of the chance that he has to make a good life in Western Australia with his brother’s support, and his desire to prove himself to his adult children.

90. Overall, after balancing the protective factors against those that suggest a likelihood of reoffending, I find that the Applicant is likely to be a low risk of reoffending.
91. I therefore find that paragraph 8.1.2 of Direction No 99, being the risk to the Australian community should the Applicant commit further offences, weighs slightly against the revocation of the Cancellation Decision.

Summary on para 8.1 of Direction No 99

92. I have found that paragraph 8.1.1 weighed moderately, and paragraph 8.1.2 weighed slightly against revocation of the Cancellation Decision. Therefore, overall, I find that primary consideration 8.1, being the protection of the Australian community, weighs slightly to moderately against the revocation of the Cancellation Decision.

Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 99)

93. Paragraph 8.2 of Direction No 99 requires decision-makers to have regard to family violence committed by the non-citizen:

(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

(2) This consideration is relevant in circumstances where:

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

b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

(3) In considering the seriousness of the family violence engaged in by the non­ citizen, the following factors must be considered where relevant:

a) the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;

b) the cumulative effect of repeated acts of family violence;

c) rehabilitation achieved at time of decision since the person’s last known act of family violence, including:

1. the extent to which the person accepts responsibility for their family violence related conduct;
2. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
3. efforts to address factors which contributed to their conduct; and

d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non­citizen's migration status, should the non-citizen engage in further acts of family violence.

94. Family violence is defined in the interpretation section of Direction No 99 at para 4(1), which provides, in part:

    family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:

    a) an assault; or

    b) a sexual assault or other sexually abusive behaviour; or

    c) stalking; or

    d) repeated derogatory taunts; or

    e) intentionally damaging or destroying property; or

    f) intentionally causing death or injury to an animal; or

g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

9. preventing the family member from making or keeping connections with his or her family, friends or culture; or

j) unlawfully depriving the family member, or any member of the family member's family, or his or her liberty.

95. Paragraph 8.2(2) of Direction No 99, stated above, sets out the circumstances where this primary consideration will be relevant. Firstly, it is relevant where the Applicant has been convicted of an offence, has been found guilty, or has had charges proven that involve family violence (para 8.2(2)(a)).
96. The Applicant has been convicted of four separate breaches of “contravene prohibition/ restriction in AVO (domestic)” on 31 March 2015, 24 August 2020, 17 September 2021 (with the resentencing being on 1 November 2021) and 17 May 2022. He has also been convicted of “stalk/intimidate intend fear physical etc harm (domestic) – T2” on 17 May 2022, and on 17 September 2021 (resentencing on 1 November 2021) when he was also convicted of “assault occasioning actual bodily harm (DV) – T2”.
97. I outlined the facts of each of these offences above where the sentencing remarks were available. The offences that I have sentencing remarks for were committed against his former partner, R.
98. Other incident reports from police that did not result in any convictions were put to the Applicant at the hearing. The Applicant denied these incidents, and in the absence of further corroborating evidence, I do not draw any adverse inferences from them.
99. There are four separate breaches of AVO’s, and two other domestic violence related offences, therefore, there is some frequency to the offending.
100. There is some increase in seriousness because the initial offence for which the Applicant appeared in Court on 31 March 2015 was, on the Applicant’s evidence, a contact breach (with no sentencing remarks being before me). The offences that occurred on 23 November 2020 (sentencing on 17 September 2021 and resentencing on 1 November 2021), particularly the “assault occasioning actual bodily harm (DV) – T2” were the most serious given that a restraining order was in place, the nature of the assault, and the injuries to R that police observed when they attended the hospital on an unrelated matter.
101. I have already commented on the cumulative effect of the Applicant’s overall offending history in my consideration of the first primary consideration above on the resourcing of police, corrective services, and the courts. There may be some cumulative effect of repeated acts of family violence on R, but I do not have any specific evidence before me in relation to the impact on her.
102. The Applicant commenced the “John Morony Remand Domestic Violence Intervention Program” on 14 May 2021, which he completed on 14 July 2021 (G43/162-163; G22/122; S2/17; S5/23; S7/31). The Applicant received a positive report from the program’s facilitator which indicates that he gained some insight into his family violence offending (G43/162).

     [The Applicant] has openly discussed his insight into his criminal offending behaviour and his awareness on how these behaviours have impacted his life and family to date; he has now been able to recognise the role domestic violence has on human behaviour and has explored his own triggers and identified strategies to reduce his risk of reoffending.

103. At the hearing the Applicant described what he learnt from this program (transcript/36):

     I did in remand a domestic violence course, which basically covers all aspects of the different types of control, you know, anger management. You know, the blame game, looking at your offending behaviour, trying to find the roots and causes of it. Changing your behaviours, changing your thinking.

104. The Applicant pled guilty to his family violence offending. However, at the hearing he did not agree with the facts found by the sentencing Judges on 1 November 2021 and 17 May 2022.
105. For example, with respect to the 1 November 2021 sentencing remarks, he did not agree that he repeatedly punched and grabbed at R’s face during the car incident. The Applicant’s version of events was that he instinctively reached behind and struck R with the back of his hand on her cheek after she started lashing out at him (transcript/50). The Applicant also admitted that he may have caused some bruising to R, but that she may have received injuries from another fight she had been involved in (transcript/51). He said that when he went to Court, he “just wanted to get it out of the way” and that he had wanted to get the facts amended but that his solicitor had told him, “not to worry about it” (transcript/49).
106. With respect to the 17 May 2022 sentencing remarks, the Applicant admitted that he was in breach of the AVO because R was staying at his house, and that he called her a “putrid dog”. However, he said that “there was no intimidation” and disagreed with other aspects of the facts that were put to him (transcript/75-77).
107. However, the Applicant pled guilty and was sentenced based on the facts stated by the sentencing Judge. I therefore cannot go behind those facts and must accept them. Given his denial of some aspects of the offending, it does not seem that the Applicant has accepted full responsibility for the offending or that he appreciates the full impact of this offending behaviour (despite the positive comments from the treatment facilitator of the Remand Domestic Violence Intervention Program).
108. For completeness, I note that in a report by Mr Watson-Munro dated 11 May 2022 (S1), he referred to a sentencing assessment report dated 20 August 2021 which described the Applicant’s relationship with R as “a toxic relationship”. I also accept the Applicant’s evidence, which was not contested, that when the Applicant was in a relationship with R, they were regular intravenous drug users. It was most likely a dysfunctional relationship marred by mutual drug use. The nature of the relationship suggests that there may have been some truth in the Applicant’s descriptions of the events, but I am bound by the facts found in sentencing.
109. The Applicant has not received any formal warnings about the consequences of further acts of family violence (para 8.2(3)(d) of Direction No 99).
110. After balancing the above considerations, including the frequency of offences, that there is a slight increase in seriousness, that the Applicant has shown some insight (which could be more fulsome) and the rehabilitation undertaken by the Applicant, I find that this primary consideration weighs moderately against the revocation of the Cancellation Decision.

The strength, nature and duration of ties to Australia (paras 8(3) and 8.3 of Direction No 99)

111. Paragraph 8.3(1) of Direction No 99 provides that:

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

112. Paragraphs 8.3(2) and (3) of Direction No 99 direct decision-makers to consider the non-citizen’s ties to any children, and the strength, duration, and nature of any family or social links to members of the Australian community who are citizens, permanent residents or who have an indefinite right to remain in Australia:

(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 the 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.

113. Further, in paragraph 8.3(4) of Direction No 99, decision-makers are required to consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. Specifically:

(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:

a) The length of time the non-citizen has resided in the Australian community, noting that:

• considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
• more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
• less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.

114. The Applicant’s half-brother Mark, and his sister-in-law, Toni, reside in Western Australia. Mark has two adult sons from a previous marriage who are aged 25 and 30.
115. The Applicant has another half-brother, Robert, as well as cousins and an aunt, in Queensland. He also has cousins in Sydney. However, he stated that he lost touch with these other family members from when he was about 17 or 18 years of age (transcript/21-22).
116. It is therefore only Mark, Toni and their adult sons who would potentially be affected by my decision. The Applicant described himself as being very close to Mark (transcript/22). Mark gave evidence in support of the Applicant at the hearing and confirmed that he and the Applicant had reconnected over the last two and a half years. He is a pro-social and professional person who has offered to assist the Applicant to set up a business and has offered to provide the Applicant with accommodation, a car, and any support he needs if the Applicant was to stay in Australia. Mark’s evidence was that it would be “heartbreaking” to lose his brother if he was deported to New Zealand. Mark also thought that Toni and his sons would be “disappointed” if the Applicant was deported to New Zealand because they had recently started to develop a relationship with the Applicant. I find that Mark would suffer the most emotional detriment, and his wife Toni, and adult sons may suffer some emotional detriment, if the Applicant was returned to New Zealand. They would still be able to maintain contact with him, and may even be able to visit him, if he was returned to New Zealand.
117. The Applicant’s friend Crystal, who lives in New South Wales and has been his friend for approximately 10 years, submitted a reference in support of the Applicant (A2).
     The Applicant’s evidence was that Crystal relies on him for emotional support and that he communicates with her by video call (Facetime) (transcript/23). The Applicant’s evidence concerning the impact on Crystal if he was returned to New Zealand was that “it would hurt a bit because I’ve always been there for her” (transcript/23). If the Applicant remains in Australia he will live in Western Australia, whilst Crystal resides in New South Wales, and so he would still be able to maintain contact with her in this way if he was in New Zealand. I accept, however, that there may be some emotional impact on her if the Applicant is deported, and that her friendship is indicative of a tie to the Australian community.
118. The Applicant was not resident in Australia during his formative years. He has resided in Australia for approximately 17 years, having arrived on 12 August 2006 when he was a 32-year-old adult.
119. His first criminal offences were “contravene prohibition/ restriction in AVO (domestic)” and “custody of knife in public place – first offence” committed on 19 August 2014, for which he appeared in the Newcastle Local Court on 31 March 2015. Therefore, it cannot be concluded that the Applicant started offending soon after arriving in Australia.
120. Although he did not start offending shortly after arriving in Australia, the Applicant’s formative years were spent in New Zealand. This slightly lessens the weight of the time he has spent in Australia.
121. The Applicant has made some contributions to the Australian community through employment and community volunteer work. The Applicant worked as a truck driver from the time he arrived in Australia until his motorcycle accident in September 2019 (transcript/11-13). He volunteered for an organisation called “Will to Live” who help feed the homeless, by cooking sausages on the barbeque and handing out food parcels.
     The Applicant’s evidence was that he did this volunteer work four nights a week for approximately three to four months in 2014. The Applicant also said that in 2015 he volunteered for the “No Shark Cull WA” project where he helped to organise a rally. When he was released into the community in late December 2022 following the Pearson decision, the Applicant said that he started to volunteer for a wildlife protection organisation called “Fauna”, where he would assist to pick up injured wildlife (transcript/19-20). In her letter of support Crystal referred to the Applicant’s involvement with the No Shark Cull rally, and she also made reference to his 2015 volunteer work with the “Exodus Foundation” charity where he would assist with feeding the homeless and “conflict resolution”. I am uncertain whether this is the same charity that the Applicant referred to, or an additional one. Nevertheless, I find that the Applicant has made contributions to the community through his volunteer work which add weight to his time in the Australian community.
122. The Applicant’s only family ties in Australia are with his half-brother Mark, whom he reconnected with approximately two years ago, and Mark’s wife and adult sons. He also has ties through his friend Crystal. Although they may suffer emotional detriment if he was removed to New Zealand, overall, I do not think his ties can be described as strong. The Applicant has resided in Australia for approximately 17 years, which is a substantial amount of time, and although he did not start offending shortly after arrival, he did not spend his formative years in Australia. He has made some contributions through employment and volunteer work. On balance, I find that the strength, nature, and duration of the Applicant’s ties to Australia weighs moderately in favour of revocation of the Cancellation Decision.

Best interests of minor children in Australia affected by the decision (paras 8(4) and 8.4 of Direction No 99)

123. Paragraph 8(4) of Direction No 99 states that in making a decision under s 501CA(4), “the best interests of minor children in Australia” is a primary consideration.
124. Direction No 99 states that decision-makers must determine whether the decision under review is, or is not, in the interests of a child affected by the decision.
125. The Applicant has not identified any minor children that would be affected by the decision, and so this primary consideration is not relevant.

Expectations of the Australian community (paras 8(5) and 8.5 of Direction No 99)

126. A decision-maker must consider the expectations of the Australian community when making a decision under ss 501 or 501CA.
127. These expectations are set out in paragraph 8.5 of Direction No 99, which provides:

(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

a) acts of family violence; or

b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

f) worker exploitation.

(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.

(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community's expectations in the particular case.

128. I must give effect to the “norm” stipulated in paragraph 8.5(1) of Direction No 99, being that the Australian community expects non-citizens to obey Australian laws whilst in Australia. This will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future. As demonstrated by his criminal history, the Applicant has breached this expectation by not obeying Australian laws. Consequently, the expectation of the Australian community would be that the Applicant’s Visa should remain cancelled (para 8.5(1) of Direction No 99).
129. As is evident from the reference to the “norm” in paragraph 8.5(1) of Direction No 99, I am being told unequivocally what the community’s expectations are. Further, paragraph 8.5(4) of Direction No 99 confirms more explicitly that the Australian community’s expectations are what the Government deems them to be, because decision-makers are directed to proceed based on the Government’s views about community expectations without independently assessing them (see Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68 at [41]- [44]).
130. I agree with the observations of Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [ 2021] AATA 1143 , which were adopted by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman).
     I note that Deputy President Boyle was writing about the previous Direction No 90, however the wording in Direction No 99 is identical in this regard, and therefore those observations apply equally to Direction No 99.
131. In Wightman, Deputy President Boyle stated, at [85]–[86]:

... Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH) at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).

Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:

195. It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196. It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...

(Original emphasis and footnotes omitted.)

132. Further detail about the Australian community’s expectations with respect to certain types of conduct is given in paragraph 8.5(2) of Direction No 99. That paragraph states that the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paragraphs 8.5(2)(a)–(f). The Applicant’s 17 September 2021 conviction for “assault occasioning actual bodily harm (DV) – T2” falls within sub-paragraph (a) “acts of family violence”. It would also fall within sub-paragraph (c) “commission of serious crimes against women” which includes “crimes of a violent nature”. This is because the facts found by the sentencing Judge included that he punched and flicked at the victim an unknown number of times and punched and grabbed at her face, some of which was perpetrated when she was a passenger in the back seat of a car when the Applicant was in the front seat.
     The sentencing Judge stated that police had observed “bruising around her eye, nose, multiple bruises to her legs and arms” (G8/56-57). As I mentioned above, the Applicant stated at the hearing that he did not agree with those facts. However, he pled guilty, and I must accept the facts upon which the conviction and sentencing were based.
133. Paragraph 8.5(3) of Direction No 99 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Thus, even though I found above that the Applicant is likely to pose a low risk of reoffending, the community’s expectations as stated apply regardless.
134. Further, paragraph 8.5(4) of Direction No 99 tells decision-makers that this consideration is about the expectations of the Australian community as a whole. It directs decision-makers to proceed based on the Government’s articulated views without assessing the community’s expectations in the particular case. I therefore cannot speculate about what the community’s views might be about the Applicant.
135. Overall, I find that the primary consideration in paragraph 8.5 of Direction No 99, being the expectations of the Australian community, weighs moderately against the revocation of the Cancellation Decision.

OTHER CONSIDERATIONS (PARA 9(1) OF DIRECTION NO 99)

136. As I outlined above, Direction No 99 directs decision-makers to have regard to a non-exhaustive list of several other considerations to the extent they are applicable.

Legal consequences of decision under section 501 or 501CA (para 9(1)(a) and 9.1 of Direction No 99)

137. Paragraph 9.1 of Direction No 99 identifies the legal consequences that decision-makers must bear in mind when making a decision under s 501 or 501CA of the Migration Act.
138. The first sub-paragraph, 9.1(1), of Direction No 99, outlines that a non-citizen is liable for removal from Australia, notwithstanding any non-refoulement obligations:

(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

139. In other words, if I affirm the Reviewable Decision, the Applicant will likely be removed to New Zealand as soon as is reasonably practicable and he will remain in immigration detention until he is removed.
140. Further, if he is removed to New Zealand, it is likely that the Applicant will face a range of restrictions which would make it unlikely that he would meet the criteria under the Migration Act for a visa to enable him to re-enter Australia (for a comprehensive overview with respect to Special Category (subclass 444) visas, see Senior Member Burford in Moli and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 666 at [167]- [169]).
141. The next two sub-paragraphs of Direction No 99, 9.1(2) and (3), address Australia’s non-refoulement obligations:

(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.

(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.

142. As contemplated by sub-paragraph 9.1(3) of Direction No 99, the Applicant has not raised any non-refoulement obligations, nor do they arise from the Applicant’s circumstances or on any of the materials before me.
143. The Applicant’s removal would be a consequence of the operation of Australia’s migration laws, and as there are no non-refoulement considerations that would apply to the Applicant, I give this consideration neutral weight.

Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 99)

144. Paragraph 9.2(1) of Direction No 99 provides:

(1) Decision-makers must consider the extent of any impediments that the non­ citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a) the non-citizen’s age and health;

b) whether there are substantial language or cultural barriers; and

100. any social, medical and/or economic support available to them in that country.

145. The Applicant is 49 years of age.
146. He has physical and mental health issues which I will now outline.
147. The Applicant’s evidence was that in September 2019 he was in a serious motorcycle accident. He said that he broke his right femur in seven places, his left radius in four places and his left ulna in four places. He spent 42 days in hospital and from that time has lived in constant pain. The Applicant takes daily pain medication (Panadol Osteo and Ibuprofen) and is on a pain management program (transcript/14; G22/123).
148. The Applicant also gave evidence that he was diagnosed with bipolar affective disorder when he was 22 years old and that he also suffers from post-traumatic stress disorder (transcript/15; G8/58). I note that on 17 May 2022, the sentencing judge referred to the Applicant having “vicarious post-traumatic stress referrable to his father’s experience in the Vietnam War” (G7/51). In his report dated 11 May 2022, Mr Watson-Munro stated that the Applicant has “a Depressive Disorder (severe & recurring) ... according to DSM-5” (Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition) (S1/6).
149. After his motorcycle accident, the Applicant was not given medication for his mental health in hospital. After he was discharged, he lost his job and was living in a van for three months. This triggered a mental health decline and the Applicant suffered from depression, as well as being in constant pain (G22/123). At the hearing the Applicant said that he was currently taking daily anti-depressant medication but not anti-psychotic medication. He stated that this was because a psychiatrist in immigration detention did not approve his anti-psychotic drugs on the basis that it was a “historical diagnosis” (transcript/18 and 100). The Applicant said that he would have access to counselling in the Australian community and that he has a general practitioner that he feels confident seeing who can help him manage his mental health.
150. The Applicant has lived in Australia for the last 17 years, since he was 32 years old. As he came to Australia as an adult, there are unlikely to be any language or cultural barriers if he were to return to New Zealand. It is not an unfamiliar country, and the Applicant has travelled back there on ten occasions (G45/165-166).
151. If he is returned to New Zealand, he will be separated from his half-brother Mark, his sister-in-law and two adult nephews whom he is close to. He is also looking forward to starting a new life in Western Australia with these family members and to setting up a business with his brother. It is likely that separation from these people would cause him some emotional distress and disappointment.
152. The Applicant will also have access to the same social, medical and economic supports as other citizens of New Zealand, which are equivalent to those available in Australia (Webb v Minister for Home Affairs [2020] FCA 831 at [98]; Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [68]- [69]). His mental health issues which require medication and his physical health issues arising from the 2019 motorcycle accident make the Applicant’s situation more complex than that of a person in good physical and mental health. It will be necessary for him to access those supports if he is returned to New Zealand.
153. The Applicant fears that he will fall in with the wrong crowd again, and that he may relapse to drug use if he is returned to New Zealand. Given the Applicant’s long-standing history of drug use, there is a possibility that being returned to New Zealand may detrimentally impact on his rehabilitation and that he may relapse.
154. The Applicant’s elderly father lives in New Zealand in a veterans’ community and has his own mental health issues. He is not able to offer the Applicant accommodation or financial support if he is returned there. The Applicant appears to have a good relationship with his father, who has written letters of support for the Applicant in these proceedings (G36; A5). I therefore find that the Applicant is likely to have at least some emotional support from his father in New Zealand. I note that the Applicant is estranged from his two adult children in New Zealand and that he is not in contact with his other family members in New Zealand and so he is unlikely to be able to rely on them for any type of support.
155. The Applicant has a work history in New Zealand in the music industry as a “roadie”, an acting stage manager and as a truck driver. He previously played guitar but his ability to do so has been affected by his injuries after the 2019 motorcycle accident (transcript/150-151). He has substantial experience in Australia as a truck driver, however his injuries have also affected his ability to undertake some aspects of the job such as lifting. He has also learnt barista skills in immigration detention and works in the café in immigration detention making coffee four days a week from 8am to 10am (transcript/14). He is concerned that due to his criminal history, and being a s 501 returnee, that there will be a stigma that will be an impediment to his finding work if he is returned to New Zealand. It is a possibility that the Applicant’s physical injuries, and his status as a returnee with a criminal record may make it more difficult for him to find work and to support himself.
156. I find that there are some impediments to the Applicant being able to establish himself and maintain basic living standards if he was returned to New Zealand, but that they are not insurmountable. The main impediment is likely to be emotional due to the Applicant being separated from his half-brother and family if returned to New Zealand, which may impact on his mental health and rehabilitation. His mental health issues and ability to find employment due to his physical health issues and criminal record may also be slight impediments.
157. Consequently, I find that this consideration weighs slightly in favour of the revocation of the Cancellation Decision.

Impact on victims (paras 9(1)(c) and 9.3 of Direction No 99)

158. Paragraph 9.3(1) of Direction No 99 provides that:

(1) 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.

159. There is no information before me regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations), or the Applicant’s former partner who was the victim of several of his domestic-violence related offences.
160. Consequently, I give this other consideration neutral weight.

Impact on Australian business interests (paras 9(1)(d) and 9.4 of Direction No 99)

161. Paragraph 9.4(1) of Direction No 99 states that decision-makers should consider the impact of a decision whereby the Applicant is not allowed to remain in Australia on any business interests. It provides:

(1) 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.

162. The Applicant has given evidence that he will develop a business with his half-brother Mark in transport and logistics (A4). However, I do not think that the proposed business is the type of business contemplated in paragraph 9.4(1). This is firstly because the business is not yet up and running (according to the Applicant it “will be live online” on 11 August 2023). Secondly, there is also no evidence that an adverse decision “would significantly compromise the delivery of a major project, or delivery of an important service in Australia”.
163. Consequently, I find that this consideration does not arise on the material before me and is therefore not relevant.

THE WEIGHING EXERCISE

164. The Applicant does not pass the character test under s 501 of the Migration Act.
165. I have therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 99.
166. For the reasons set out above, I made the following findings about the relevant primary considerations in Direction No 99. These were:

     (a) The protection of the Australian community from criminal or other serious conduct primary consideration weighed slightly to moderately against the revocation of the Cancellation Decision.

     (b) The family violence primary consideration weighed moderately against the revocation of the Cancellation Decision.

     (c) The strength, nature and duration of the Applicant’s ties to Australia weighed moderately in favour of the revocation of the Cancellation Decision.

     (d) The expectations of the Australian community weighed moderately against the revocation of the Cancellation Decision.

167. I made the following findings with respect to the other considerations that were relevant. These were:

     (a) I gave neutral weight to the other consideration of the legal consequences of the decision.

     (b) The extent of impediments if removed other consideration weighed slightly in favour of revocation of the Cancellation Decision.

     (c) The other consideration regarding the impact on victims was also given neutral weight.

168. As is evident from this summary, the primary and other considerations for and against revocation of the Cancellation Decision are closely balanced.
169. Overall, I find that the primary considerations of the protection of the Australian community (which weighed slightly to moderately), the expectations of the Australian community (which weighed moderately), and family violence (which weighed moderately) against the revocation of the Cancellation Decision slightly outweighed the considerations that weighed in favour of the revocation of the Cancellation Decision. These were the primary consideration of the strength, nature and duration of the Applicant’s ties to Australia (which weighed moderately), and the other consideration of the extent of impediments if the Applicant was removed to New Zealand (which weighed slightly) against the revocation of the Cancellation Decision.
170. I am therefore not satisfied that there is another reason why the Cancellation Decision should be revoked. Therefore, the correct or preferable decision is to affirm the Reviewable Decision.

DECISION

171. The Reviewable Decision, being the decision of a delegate of the Respondent dated 15 May 2023, is affirmed.

.............[Sgd]......................................................
Associate

Dated: 8 August 2023