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HTRT and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 2834 (7 August 2023)

Last Updated: 7 September 2023

HTRT and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 2834 (7 August 2023)

Division: GENERAL DIVISION

File Number: 2023/3369

Re: HTRT

APPLICANT

And Minister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

DECISION

Tribunal: L M Gallagher, Member

Date of decision: 7 August 2023

Date of reasons: 7 September 2023

Place: Perth

On 7 August 2023, I made the following decision:

The Reviewable Decision, being the decision of the Delegate dated 15 June 2023 to cancel the Applicant’s Class BW Subclass 856 Employer Nomination Scheme visa under s 501CA(4) of the Migration Act 1958 (Cth), is set aside and substituted with the decision that the cancellation of the Applicant’s visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

These are my written reasons.

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

L M Gallagher, Member

CATCHWORDS

MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – where the Applicant fails the character test – where there is another reason to revoke the mandatory cancellation of visa- consideration of Direction No 99 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a 28 year old man who arrived in Australia as a 14 year old – extent of impediments if returned to Zimbabwe found to be considerable – strength nature and duration of ties in Australia found to be considerable – Tribunal finding that there is another reason to revoke the mandatory cancellation of visa – Non-Revocation Decision is set aside and substituted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – s 43

Migration Act 1958 (Cth) – ss 189, 198, 197C(1), 197C(3), 500(1)(ba), 500(6B), 500(6L), 501, 501(1), 501(2), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(a), 501CA(4)(b)(ii), 501G

CASES

Apire and Minister for Immigration and Border Protection [2014] AATA 193

Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561

Berryman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 421

BVLD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 6

CZCV and Minister for Home Affairs [2019] AATA 91

FYBR v Minister for Home Affairs [2019] FCAFC 185

Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; (2016) 241 FCR 461

JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762

Kanara and Minister for Immigration and Citizenship [2011] AATA 13

Kohli and Minister for Immigration and Border Protection (Migration) [2017] AATA 1326

MJNN and Minister for Home Affairs (Migration) [2019] AATA 3205

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

Peterson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1256

Wang and Minister for Immigration and Border Protection [2017] AATA 89

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

Zaya and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 366

SECONDARY MATERIALS

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, 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 Citizenship, Citizenship and Multicultural Affairs, 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 3, 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 5.2(4), 5.2(5), 5.2(6), 6, 7, 8, 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)(a)(ii), 8.1.1(1)(a)(iii), 8.1.1(1)(b), 8.1.1(1)(b)(i), 8.1.1(1)(b)(ii), 8.1.1(1)(b)(iii), 8.1.1(1)(b)(iv), 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(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.3, 8.3(1), 8.3(2), 8.3(4)(a)(i), 8.4, 8.4(1), 8.4(2), 8.4(4), 8.4(4)(a), 8.4(4)(b), 8.4(4)(c), 8.4(4)(d), 8.4(4)(e), 8.4(4)(f), 8.4(4)(g), 8.4(4)(h), 8.5, 8.5(1), 8.5(2), 9, 9.1, 9.1.2, 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3, 9.4

REASONS FOR DECISION

L M Gallagher, Member

7 September 2023

1. The Applicant seeks review of a decision made by a delegate of the Respondent
   (the Delegate) on 15 May 2023 not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act), the mandatory cancellation of the Applicant’s Class BW Subclass 856 Employer Nomination Scheme visa (the Visa) (the Reviewable Decision). ^[1] The Applicant’s Visa was mandatorily cancelled under s 501(3A) of the Migration Act).
2. The application for review was lodged with the Administrative Appeals Tribunal (the Tribunal) on 17 May 2023,^[2] within the time prescribed by s 500(6B) of the Migration Act. The application for review of the Reviewable Decision is made in accordance with
   s 500(1)(ba) of the Migration Act, which allows applications to be made to the Tribunal for review of decisions of a Delegate under s 501CA(4) not to revoke a decision to cancel a visa.
3. The hearing was held on 18 July 2023 at the Tribunal in Perth. The Applicant was
   self-represented. The Respondent was represented by Mr Jon Papalia, of the Australian Government Solicitor. The Applicant and Mr Papalia appeared in person.

BACKGROUND FACTS

4. The Applicant is a 28-year-old citizen of Zimbabwe, who first arrived in Australia on
   23 September 2009, at age 14.^[3] The Applicant was granted the Visa on
   10 September 2012.^[4]
5. The Applicant has immediate family in Australia, including his father^[5] and his siblings. The Applicant also has a brother who lives in Zimbabwe.^[6]

Applicant’s offending

6. The Applicant’s criminal history is set out in a Check Results Report by the Australian Criminal Intelligence Commission, dated 31 May 2021 and a History For Court report by the Western Australian Police Force, compiled on 1 June 2023.^[7] The details are recorded as follows:

7. The Applicant has no other known criminal history in Australia or Zimbabwe.
8. The Applicant commenced offending in 2015 at age 20.^[8]
9. The Applicant’s criminal record (set out above) consists of unlawful entry, drug related offending, stealing, burglary and other dishonesty offences (giving false details, fraud), weapon related offending, carrying an article with intent to cause fear and breach of bail undertaking.
10. The Applicant’s criminal record also consists of numerous driving and traffic offences, the most serious of which occurred on 24 June 2017 (convicted 29 January 2018), being driver failed to stop (circumstance of aggravation). On this occasion, the Applicant evaded police on pursuit, drove through a petrol station at speed and collided with a civilian vehicle.^[9] On his arrest, the Applicant was found in possession of approximately 0.1 grams of methamphetamine and charged with possess a prohibited drug (amphetamine).^[10]
11. On 13 March 2020, the Applicant was sentenced to a term of seven months imprisonment (and disqualified from driving for 9 months and fined $200) by the Magistrates Court for his offending on April 2019 being no authority to drive – cancelled.^[11]
12. On 17 May 2021, the Applicant was sentenced to a term of imprisonment of three years and nine months by the District Court of Western Australia for his offending in April 2019, being:^[12]

    (a) Aggravated home burglary with intent; and

    (b) With intent to harm, did an act causing bodily harm,

(the index offending).

13. The Applicant was released on parole on 5 January 2023^[13] and was subsequently moved into detention at Yongah Hill Immigration Detention Centre (YHIDC) in Western Australia.

Present proceedings

14. On 22 June 2021, the Delegate cancelled the Visa under subsection 501(3A) of the Migration Act (the Cancellation Decision).^[14] The Visa was cancelled on the basis that the Applicant did not pass the character test in subsection 501(7)(c) of the Migration Act, by virtue of having been sentenced to a term of imprisonment of 12 months or more.^[15]
15. The Applicant was invited to make representations about why the Cancellation Decision should be revoked.^[16]
16. On 3 July 2021, 29 November 2021, 14 February 2022 and 31 October 2022, the Applicant made representations and provided submissions and documents to have the Cancellation Decision revoked under section 501CA of the Migration Act.^[17]
17. As noted above,^[18] on 15 May 2023, the Delegate made the Reviewable Decision. The Applicant was notified on the Reviewable Decision on the same date.^[19]
18. On 17 May 2023, the Applicant lodged an application in the General Division of the Tribunal for review of the Reviewable Decision.^[20] Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the Migration Act.

ISSUES

19. The Applicant does not dispute that he does not pass the character test.^[21] The Tribunal, in any event, so finds: s 501(6)(a) and 501(7)(c) of the Migration Act preclude a person from passing the character test if they have a ‘substantial criminal record,’ which includes a person who has been sentenced to a term of imprisonment of 12 months or more. On the basis that on 17 May 2021, the Applicant was sentenced to a term of imprisonment of three years and nine months for the index offending,^[22] he has a substantial criminal record as defined in the Migration Act and therefore he does not pass the character test.
20. Accordingly, the remaining issue is whether the Tribunal should exercise the power in
    s 501CA(4) of the Migration Act to revoke the Cancellation Decision.^[23] That will require determination under s 501CA(4)(b)(ii) of the Migration Act, as to whether there is “another reason”^[24] why the decision to cancel the Visa should be revoked,^[25] by having regard to the primary and other considerations in 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).^[26]
21. The Tribunal’s decision must be made within the 84-day period after the day on which the Applicant was properly notified of the Reviewable Decision, in accordance with s 501G of the Migration Act. If the Tribunal does not deliver a decision by the end of this date, the Reviewable Decision will be taken to be affirmed, under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (pursuant to s 500(6L) of the Migration Act).
22. The 84-day period for the Tribunal to decide this matter ended on 7 August 2023 and the Tribunal met its statutory obligation by delivering its decision on 7 August 2023.

LEGISLATIVE FRAMEWORK

Migration Act

Mandatory cancellation of a visa under s 501(3A) of the Migration Act

23. Section 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:

(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); ...

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.

The character test

24. Section 501(6) 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)); ...

(Original emphasis.)

25. A “substantial criminal record” is defined by s 501(7) 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.)

Power to revoke cancellation decision

26. Section 501CA of the Migration Act further provides:

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

(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:

(i) a written notice that sets out the original decision; and

(ii) 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:

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

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

(Original emphasis.)

Direction No. 99

27. Pursuant to s 499(1) of the Migration Act, the Minister may give written directions to a person or body exercising powers under the Migration Act if those directions are about the performance of those functions or the exercise of those powers. Further, s 499(2A) of the Migration Act provides that a person or body must comply with such a direction.
28. On 23 January 2023, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No. 99 under s 499 of the Migration Act. Direction No. 99 commenced operation on 3 March 2023, replacing the previous Direction No. 90: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (Direction No. 90), which was revoked on the same date.^[27]
29. The Tribunal notes that the Reviewable Decision was made by the delegate applying Direction No. 99, which was the Ministerial direction in force at the time that the decision was made. As there are no transitional provisions in Direction No. 99, all decisions made on or after 3 March 2023 must apply that direction, as the Tribunal must apply law and policy in place at the time that it makes a decision.^[28]
30. The purpose of Direction No. 99 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.^[29] In exercising the power under s 501CA(4) of the Migration Act, the Tribunal must have regard to the primary and other considerations set out in Direction No. 99.^[30]
31. Paragraph 5.1 of Direction No. 99 sets out ‘[o]bjectives’, with para 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:

(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 full­time 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.

32. Paragraph 5.2 of Direction No. 99 sets out ‘[p]rinciples’ which must be taken into account by decision makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to ... revoke a mandatory cancellation under section 501CA’ and are expressed as follows:

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on

non-citizens in the expectation that they are, and have been, law-abiding,

will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

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

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

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

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

(6) Decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the 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) ^[31](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.

33. Informed by the principles set out in para 5.2 of Direction No. 99, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case, in deciding ‘whether to revoke the mandatory cancellation of a non-citizen’s visa’.^[32]
34. The primary considerations in Direction No. 99, in deciding whether to revoke the refusal or cancellation of a non-citizen’s visa, are:^[33]

(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.

35. Paragraph 9 of Direction No. 99 sets out other considerations that the decision maker must take into account. It relevantly provides that:

(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

a) legal consequences of the decision;

b) extent of impediments if removed;

c) impact on victims;

d) impact of Australian business interests

36. Further guidance as to how a decision-maker is to apply the considerations in
    Direction No 99 can be found in para 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.

EVIDENCE

37. The Applicant gave oral evidence at the hearing and was cross-examined.^[34] The Applicant called also called the following witnesses to give evidence:

    (a) Applicant’s father (MW);^[35]

    (b) Applicant’s friend (EM);^[36] and

    (c) Applicant’s friend (KE).^[37]

38. The Tribunal admitted the following documents into evidence at the hearing:

    (a) Applicant’s submissions dated 4 July 2023 (Exhibit A1);

    (b) Applicant’s list of completed courses and related certificates and statements (Exhibit A2);

    (c) Letter from EM, undated (Exhibit A3);

    (d) Letter from Applicant’s friend (EO), undated (Exhibit A4);

    (e) Applicant’s submissions (undated) (Exhibit A5);

    (f) Letter from Applicant’s friend (JD), (undated) (Exhibit 6);

    (g) Letter from Applicant’s friend (KM), (undated) (Exhibit 7);

    (h) Applicant’s submissions dated 28 June 2023 (Exhibit 8);

    (i) Letter from Applicant’s cousin (MW), (undated) (Exhibit 9);

    (j) Letter from MW dated 30 June 2023 (Exhibit A10);

    (k) Letter from Narcotics Anonymous Facilitator (DK), dated 8 February 2021 (Exhibit A11);

    (l) Letter from Applicant’s sister (NW), (undated) (Exhibit A12);

    (m) Applicant’s parole order dated 15 December 2022 (Exhibit A13);

    (n) Letter from YHIDC Pastor (TV), dated 28 June 2023 (Exhibit A14);

    (o) Applicant’s proposed business plan (undated) (Exhibit A15);

    (p) Letter from prison chaplain (Rev RB), (undated) (Exhibit A16);

    (q) Letter from prison peer support worker (SR), (undated) (Exhibit A17);

    (r) Letter from Applicant’s brother (TW), (undated) (Exhibit A18);

    (s) Letter from Chairperson Zimbabwean Association (SM), dated 4 July 2023 (Exhibit A19);

    (t) Applicant’s further submissions (undated) (Exhibit A20);

    (u) Letter from KE and KE’s husband (JM), dated 3 July 2023 (Exhibit A21);

    (v) Letter from Applicant’s friend (TS), dated 7 July 2023 (Exhibit A22);

    (w) Document entitled “Request for Remand,” dated 24 September 2020 (Exhibit A23);

    (x) Letter from Applicant’s uncle (VN), dated 12 July 2023 (Exhibit A24);

    (y) Letters (3) from SMART Recovery Facilitator dated 29 May 2023, 13 June 2023 and 24 June 2023 (Exhibit A25);

    (z) SMART Recovery Attendance & Participation Forms/Sheets (various dates) (Exhibit A27);

    (aa) Applicant’s list of witnesses (Exhibit A27);

    (bb) Respondent’s G-Documents, being a 246-page set of documents provided under s 501G of the Migration Act numbered G1-G6, filed on 1 June 2023 (Exhibit R1);

    (cc) Respondent’s Tender Bundle, being a 524 page set of documents numbered 1 to 57, filed on 15 June 2023 (Exhibit R2); and

    (dd) Respondent’s Statement of Facts, Issues and Contentions, dated and filed on 20 June 2023 (Exhibit R3).

39. Following the hearing, the parties filed the following additional documents, which also form part of the available evidence:

    (a) missing page from R1, G4, Attachment 5 (filed by Respondent on 18 July 2023);

    (b) email from Respondent attaching Applicant’s International Health and Medical Services Health Summary dated 19 July 2023 (IHMS Health Summary), together with Respondent’s related comments (filed by Respondent on 19 July 2023) and supplementary submissions (filed by Respondent on 26 July 2023) (together, Respondent’s evidence post-hearing); and

    (c) Applicant’s response to Respondent’s email attaching IHMS Summary and related comments, including Applicant’s further submissions, list of authorities and progress medical notes (filed by Applicant on 21 July 2023) (together, Applicant’s evidence post-hearing).

40. The Tribunal has taken into account the letters of support and statutory declarations of the Applicant’s family and friends.^[38]

The Applicant

41. In his statements and other materials, and orally at hearing the Applicant gave the following evidence:

    (a) He came to Australia from Zimbabwe in 2009, being sponsored by his father.^[39]

    (b) He returned to Zimbabwe on his own from July 2013 to September 2013,^[40] the year after his mother died^[41], staying with his mothers’ relatives and his paternal grandmother.^[42] It was “probably the worst two months”^[43] of his life, his relationship with his other side of the family being “uncomfortable” and with traumatic incidents.^[44]

    (c) On the day of the index offending, he had been drinking alcohol and smoking methamphetamine.^[45]

    (d) He used to carry weapons out of paranoia, induced by his methamphetamine use, or because of “having done the wrong thing.”^[46]

    (e) As to his knowledge of what was going on at the premises on the night of the index offending, his present views on this and his having handed himself in to police:^[47]

    “The honest truth, at the time, I did, yes [know it was a “rip”]. And having been under the influence... you think you control this drug, but it does not [sic]. It controls the hell out of you, regardless how – for me personally, like I said, I look back and I know. Now I know that this drug took over me. My beliefs changed, my morals, my values, everything changed... I went in prison when I was 23. If you were to ask me, what do you value? I would have said something like, my car at the time that I had. All these things, money, these things....^[48]

    ...To me, that’s nothing anymore. My family, I’ve put them through all this. The people that I’ve hurt, the community. And it’s just something that it [sic] cannot be repeated. I’ve gone, I’ve suffered a lot. And with me suffering comes everyone else around me. And it’s not something that I wish on anybody to have to endure or go through. Because at the end of the day... I played with somebody’s life. Yes, we both had something to do with it, but it was – we went together. I had to live with the fact that, yes, someone has passed away. I’ve injured two, maybe three people in this place. They’re going to live with the death of somebody, all because of me and [co-offender]. All because of us...

    ...

    I handed myself in. And I explained to the officers and then I think homicide detectives came and grabbed me. Then he said, ‘Look, it’s really rare that someone gets involved in these situations and hand themselves in. So what’s really going on?’ I said, ‘Look, I just thought I’d do what is right. And I hope it makes your job easier for me handing myself in and explaining to you how that actually happened’.

    ...

    And I’m really remorseful for how it happened and why it happened. And I look at it that I could have been dead if – let’s say none of that happened I could still be on methamphetamine. I could be in a worse situation today. I hate that it happened. I live with it every day and I regret it. My main aim from all of this experience is to be able to get out in the community and look at a vulnerable kid and say, ‘You, put you under my arm. I’m going to help you today. You’ve got to stop doing this. You’ve got to stop doing that. This is not good’....”

    (f) When asked about his other, earlier offending, the Applicant stated that he was involved in a police chase, that he had committed fraud, dishonesty and stealing offences, driving offences and offences involving carrying weapons.^[49] The Applicant said that most of his offending was driven by his methamphetamine, alcohol and marijuana use.^[50]

    (g) He failed to heed the sentencing Magistrate’s warning in 2018 that if he continued to offend he would face imprisonment once again (on a second occasion) because he was still using drugs while incarcerated, picked up on the beliefs of the people he found himself surrounded with in prison and continued to surround himself with the wrong peers following his release.^[51]

    (h) As to him being denied parole in April 2018 in his first prison sentence due to poor conduct, including swearing, indecent language, insults and threating language towards prison officers,^[52] he does not have any excuse for that behaviour.^[53] He was going through a phase where he was finding out about his sexuality and beliefs, grieving the loss of his mother as well as a dear friend, that he had a lot of anger in his system and that he did not understand most of the feelings he was experiencing.^[54] He has not been involved in drugs, alcohol, violence, threats or the like while in detention.^[55]

    (i) As to his having caused almost $2,000 worth of damage to his prison cell in June 2020,^[56] the Applicant said he takes full responsibility for his actions,^[57] being that he “smashed the cell,” “smashed the sink and then the window,”^[58] and there could have been better ways to resolve the situation.^[59]

    (j) As to his having been involved in an argument with a fellow prisoner on 25 April 2022,^[60] the Applicant stated he was in the wrong^[61], he shouldn’t have put his hands up (to fight)^[62] and could have simply walked away, as he now does in detention.^[63] He does not wish to go through all that (all that is involved with being in prison) ever again.^[64]

    (k) When directed to his “High” Risk Level rating in a Treatment Assessment Report prepared by Albany Regional Prison on 21 July 2021,^[65] and the related recommendations that he complete courses in “Addictions Offending” and “Violent Offending,”^[66] of which he has now completed both,^[67] he accepted that his risk of reoffending is highly linked to his substance use, also noting that he was four years sober from “everything” (smoking, alcohol, illicit drugs)^[68] and he intends to stay sober.^[69]

    (l) He intends to complete residential drug rehabilitation upon his release and has secured a place with the assistance of YHDC Pastor TV.^[70] He also plans to engage with a number of community organisations who run government sponsored rehabilitation programmes to support his reintegration into the community.^[71]

    (m) His family is dedicated to helping him “avoid reoffending.”^[72]

    (n) He is willing to abide by the conditions of his parole order.^[73]

    (o) If released, he has the option to work as a tradie’s assistant with his uncle^[74] or in traffic control, through his friend EM.^[75] He also has a number of valuable (employable) certified skills obtained through courses he has completed.^[76]

    (p) Since completing the various courses and programs, he has learned communication skills and consequential thinking.^[77]

    (q) As to why the Tribunal should accept he is a “changed man,” he said:^[78]

    “The honest truth, I’ve suffered. Like, I’ve honestly suffered, you know, Member. This is something that I do not wish upon anybody. Where I am, I’m in a place of – and I was talking about it the other day with one of the welfare ladies – there’s two parts [sic] to where I am. I can either choose to go straight, I’m in the middle of that path as we speak. I’m moving forward. Or I can spiral down, step one. I wouldn’t call it step one, just see you later. There are people in there that I’ve seen in prison incarcerated with me, and I’ve seen them today, not two different people. They have chosen the other path. My path is straightforward. The only reason why I can say – and there’s many – but the main reason is for me to be out there I just want to help the kids out there.^[79] There’s a lot of kids, especially African kids or the African community. Not just that – Australians, Asians, Indians, you name it – that are going through a lot. I’ve been through all this. I know the consequences. I know what happens when people start using drugs. I know every time we pile [sic] up that mountain it’s going to be harder to climb. So I can come and [sic] in the community. I can take that dirt off that mountain so you’re not climbing anywhere. You’re going straight through it. The reason why you’re going straight through it is I’ve been through where you’ve been. I’ve lost a dear friend in my life. I’ve lost a mother I never managed to grieve. All these things also drive people into using drugs and I’m [sic] trying to numb that pain or whatnot...

    ... – this is the only chance I have to prove myself. I’m not only trying to prove this to you. I’ve got to prove it to my family. I’ve got to prove it to my friends. I’ve got to prove it to the lawyer here, the lady behind me, these two ladies here. I’ve got to prove to a lot of people in my life. I’ve got a nephew out there. I’ve got two sisters who are under 18 and a brother as well...

    ...

    ...I’ve matured a lot. The way I look at life is different now. Back in the day, like I said, I valued certain things, and now I value – the way I value life is different to how I valued it back then. The most important thing is family and the people in the community is what I value, and mainly myself. I want to be looked at as someone that’s been through the worst, and have done the worst, and look at me – look at him now.”

    (r) When asked, the Applicant confirmed that:

    (i) He has four brothers, three of whom live in Australia. His eldest brother lives in Zimbabwe and has never been to Australia.^[80] His youngest brother is currently 16 years of age and is turning 17 in November.^[81]

    (ii) He has three sisters, two of which are of minor age (9 and 13 years old, respectively). They all live in Australia. ^[82]

    (iii) He is close with his siblings (in Australia) and used to see them every fortnight. He speaks to them on the phone “all of the time.” Without each other, they are “nothing.”^[83]

    (iv) He has a nephew (his eldest sister’s son), who is currently six years old and lives in Australia.^[84]

    (v) He regards EM’s two young children as his nephew and niece.^[85] EM is a single parent. He talks to EM every second or third day to check on her kids and assisted with their activities prior to his second prison term and recently sent EM’s son some money for his birthday.^[86] He plans to live with EM and her children if he is released.^[87]

    (vi) He also regards KE’s young grandson (who lives with KE and JM) as his nephew.^[88]

    (vii) His father, stepmother, uncle and two adult cousins live in Australia.^[89]

    (viii) His paternal aunty lives in Zimbabwe.^[90] While he does have a few relatives in Zimbabwe has does not consider them as relatives and some have done things (to him) that he does not want to repeat.^[91] He has no ties to Zimbabwe.^[92]

    (s) As to his claims that his uncle, VN, a senior police officer, had been charged with criminal offences because of the new government in Zimbabwe,^[93] he does not know a lot about this^[94] other than that his uncle was grabbed, tortured and incarcerated.^[95]

    (t) As to whether it would be possible that VN and the other person committed corrupt conduct described as “criminal abuse of office” as set out in the “Request for Demand” document,^[96] he has no idea and couldn’t really say.^[97] His concerns regarding VN’s charges are based on any link being made between them if the Applicant’s “name came up” and the “situation” regarding his sexuality becoming known.^[98]

    (u) He suffers “a bit” from Post-Traumatic Stress Disorder (PTSD), having been diagnosed while he was in Casuarina prison.^[99] He is not on medication for this condition and finds exercise to be a helpful form of therapy.^[100] He otherwise likes to think he is fit and healthy,^[101] (although) he does have issues with his knee, which gets “a bit sore sometimes.”^[102] He sees a physiotherapist for this.^[103]

    (v) He is concerned that if he were to return to Zimbabwe he would find himself in a situation where “if they found out a few things” about him no medical treatment would be available to him.^[104] The “collapsed medical system” and “lack of medical services due to sexual orientation” would also contribute to this.^[105] He is also concerned his Shona is “not the best”^[106] and if he were to return and people knew he had been deported, he’ll be “sort of in a way of harm.”^[107] As the fact of his offending was televised, he fears that upon return to Zimbabwe he would face a severe punishment or death.^[108]

MW (the Applicant’s father)

42. MW gave evidence that he arrived in Australia in 2007 and returned to Zimbabwe in 2009 to bring the Applicant and his siblings (other than his eldest son) to Australia.^[109] He has 9 children, 8 of whom live in Australia^[110] and five of whom live with him.^[111] His eldest son lives in Zimbabwe, generally with his paternal grandmother.^[112]
43. MW emphasised that in 2019 the District Court sentencing Judge discounted the Applicant’s sentence for handing himself in shortly after the index offending.^[113] MW said that in his opinion this demonstrates the start of the Applicant’s realisation of his mistakes.^[114]
44. MW said that he has provided the Applicant with emotional support whilst he has been in prison and in detention and has been visiting him and giving him guidance to help him turn his life around.^[115] MW said that he has contacts who can offer the Applicant employment if he is released.^[116] MW said that he and other community members will also provide financial assistance to the Applicant if released, to help him “find his feet.”^[117]
45. MW said the Applicant has matured since his first prison term and has plans to talk to community members about the dangers of drugs, speeding and the like.^[118]
46. As to how MW would be impacted if the Applicant were to return to Zimbabwe:^[119]

    “As a father and emotionally attached to my son it’s – I can’t maybe describe the feeling. I love my boy. And I want him to stay in Australia. (Indistinct words) I got sick when he was detained. And I wasn’t well. I had to call for medication. I had to go for counselling. My friends helped me and they told me, you’ll be right. And yes, it’s not going to be a good idea for him to go there. I know my country. It’s – the unfortunate country as the Australian language described the place here. So definitely he won’t survive. He has been here. He has friends behind me there that have been his closest and – he has no other friends in Zim. And with the political situation in Zimbabwe right now, it’s so toxic and people like him, he will be eaten with [sic] a day going in there. If he manages to survive a day...”

EM (the Applicant’s friend)

47. EM gave evidence that she has known the Applicant since the beginning of 2017.^[120]
48. EM said that her son and daughter are five years old and two years old, respectively.^[121]
49. EM said her son refers to the Applicant as “uncle,” that the Applicant has known him since he was two weeks old^[122] and, other than in recent times, the Applicant and her son have “always been together.”^[123] EM said her son calls the Applicant on the phone very often.^[124]
50. EM told the Tribunal that her daughter was born while the Applicant was in prison, that the Applicant had met her daughter a few times and that her daughter talks to the Applicant on the phone (to a lesser extent given her age).^[125]
51. When asked, EM said although she performed the parental role for both of her children,^[126] the Applicant provides her a lot of support in raising her children as a single parent.^[127]
52. EM said that if the Applicant were released, he would come and live with her and her children, as he is like “her brother” and “her best friend.”^[128] EM said that she “110 per cent” trust the Applicants with her children.^[129] EM also said that if released, the Applicant would have available to him a voluntary position at her son’s BMX club^[130] and has assisted her with her son’s BMX activities in the past.

KE (the Applicant’s friend)

53. KE gave evidence that she has known the Applicant for approximately 10 years, having met through her son, the Applicant’s close friend.^[131] KE said the Applicant is like a nephew to her and her family.^[132]
54. When asked, KE confirmed that her grandson lives with her and her husband, and that he is 9 years old.^[133]
55. KE said the Applicant has a good relationship with her grandson, who refers to him as “uncle,” because the Applicant is close to their family and her grandson thoroughly enjoys spending time with him. ^[134] KE said that the Applicant has spoken to her grandson on the phone during his time in detention.^[135]

WHETHER THE DISCRETION SHOULD BE EXERCISED TO REVOKE THE CANCELLATION DECISION

56. Having determined the Applicant does not pass the “character test,” ^[136] the Tribunal must determine whether discretion should be exercised to revoke the Cancellation Decision.
57. As the Applicant does not pass the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No 99, there is another reason why the Cancellation Decision should be revoked.^[137]
58. The Tribunal understands the Applicant takes the view that in circumstances where:

    (a) In his opinion, he poses no risk of reoffending;

    (b) the best interests of his three minor siblings, his minor nephew and the three young children he regards as his niece and nephews weigh in favour of revocation;

    (c) he has significant ties to Australia;

    (d) he would face significant impediments should he return to New Zealand; and

the Cancellation Decision should be revoked.

59. The Respondent is of the view, however, that there is not “another reason” why the Cancellation Decision should be revoked.^[138]

First primary consideration: Protection of the Australian community (paragraph 8.1 of Direction No. 99)

60. 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.

61. 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 (para 8.1.1 of Direction No. 99)

62. Paragraph 8.1.1(1) of Direction No. 99 provides:^[139]

(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 offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

(Emphasis added.)

63. While the Applicant made no specific submissions in relation to the nature and seriousness of his offending conduct by reference to matters or considerations raised in paragraph 8.1.1 of Direction No. 99, he expressed on numerous occasions (in writing and at hearing) his apologies, regrets and his taking full responsibility for his offending conduct.^[140]
64. The Respondent made the following observations and contentions in relation to the nature and seriousness of the Applicant’s offending conduct:^[141]

    (a) The Applicant’s convictions for aggravated burglary and assault with intent clearly amount to conduct that must be considered by the Tribunal as very serious. That is plain from their facts, the sentences imposed by the Courts and the guidance in cl 8.1.1(1)(a)(i) and (iii)^[142] of Direction No. 99.

    (b) The seriousness of and the harm that may follow from the Applicant’s traffic offences (which includes two counts of reckless driving) should also not be trivialised^[143] and must frankly be considered serious.

    (c) The Applicant’s criminal and other serious conduct has been committed over a lengthy period of time and has been frequent.

    (d) There has also been an escalation in the offending over time.

    (e) The Applicant’s evidence at hearing as to his appreciate for that offending was “impressive.”

65. The first primary consideration, Protection of the Australian community from criminal or other serious conduct,^[144] requires the decision-maker to look at “the non-citizen’s criminal or other conduct to date” (emphasis added). ^[145] For completeness, the Tribunal notes there is no “other conduct” to date that falls for consideration in this matter.
66. In determining whether the Applicant’s conduct should be viewed as serious, the Tribunal notes the facts and circumstances of the Applicant’s offending and the conviction imposed.
67. The Applicant’s offending conduct is briefly detailed above.^[146] The facts of the Applicant’s index offending, and its context, are set out in the sentencing remarks of Goetze DCJ on 17 May 2021 as follows:^[147]

    “...[T]he nub of the offending is that there was a plan for you and two others to go into this house. You were armed and you were covered in a balaclava and the other man who went into the house...also had a mask over his face. The third man remained in the car to act as a getaway driver. That was a change of plan for you. You thought he would go into the house with you. But you had the hammer and the crowbar. [Co-offender] had the samurai sword and when you got into the house, there were four people. A lady went and locked herself in the bathroom and the three others put up some resistance. Now, this was all for you to steal money and/or drugs. It’s at 1.30am in the morning.

    When the others put up resistance, you sought to help our [Victim 1]. You struck one of the men with the hammer. [Victim 1] was wounded it turned out fatally with the samurai sword, but you and he both ran out the door. You both went in different directions. You got in the car, you drove around the block trying to pick him up, but that didn’t work out. Now, the three people in the house received non life-threatening [sic] injuries, lacerations, cuts and bruises...

    ...[W]hen you got into the house you had the hammer in your back pocket. Your intent was to frighten people in the house, but things went wrong. [Victim 2] was fighting two people when you entered the lounge because apparently there are two doors. At this stage it was when [Victim 2] jumped up and you struck him to the back of the head twice...[Victim 1] by this stage was also injured. That’s when you left.

    Now, later that day you watched the news to see if there was any report about what had happened and then at 3 o’clock you went to see the police voluntarily. You were kept overnight and you were interviewed that day and also the next day. You apparently suffered hand, head and mouth injuries...in a case like this there is always potential for an occupant to be grievously or fatally injured.

    People can expect that they can live in their own home or be visiting if that’s what some of them were and be safe within a home, especially at 1.30 in the morning and have people like you break in and steal whatever it is that you might want to steal from them. At that time of morning...you were certainly armed and it would have to be said that at least in part you expected there would be a confrontation.

    Now, that happened here and it more by good luck than planning that one of the occupants wasn’t fatally wounded because if that had happened, then you and [Victim 1] if he were not the person injured – the two of you would be facing more serious charges. As it is, it was [Victim 1] who died and that just really demonstrates the seriousness of your offending on this burglary. In relation to the doing an act on count 3, with intent to harm and bodily harm being caused to [Victim 2], now you’ve struck him a couple of times...

    ...You used a claw hammer twice to the right side of [Victim 2’s] head and to his temporal region. Now, that’s not the only assault by you upon which the State relies, but that’s the primary act. That caused [Victim 2] to partially let go of the crowbar and you then wrestled for it again. In the meanwhile, [Victim 3] was fighting with [Victim 1] for the sword and that’s how [Victim 1] came to be impaled by it. So, although the injuries suffered by [Victim 2] weren’t that serious, the whole thing was nonetheless very frightening and no doubt you’d have to say this was a serious act of burglary and fighting people inside the house once you got there...

    ...

    ...[T]he preplanning, the use of you with the balaclava, arming yourself at the driver’s home and then being prepared to use those weapons when you got to the house. You didn’t know the house. You didn’t know who the occupants were, so you were obviously at 1.30 on the morning setting up a dangerous situation.

    Now, even if you were just seeking to frighten these people, the fact that you were prepared to use the weapons makes your offending serious...”

68. In assessing the Applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction No. 99, the Tribunal has regard to the fact that the Applicant has been in Australia for over almost 14 years, having come to Australia in 2009 as a 14 year old. Since 2015, the Applicant has consistently engaged in offending and in 2020 he was sentenced to a term of seven months’ imprisonment, disqualified from driving and fined for driving without authority on 12 April 2019. The Applicant committed the index offending four days later and was sentenced on 17 May 2021.
69. In relation to para 8.1.1(1)(a) of Direction No. 99, the Tribunal finds that the Applicant’s index offending is, by its very nature, to be viewed very seriously.^[148] The Applicant has not committed crimes of a violent nature against women or children,^[149] nor has he engaged in acts of family violence.^[150]
70. The Tribunal has regard to the fact that the Applicant’s history of offending includes numerous driving and traffic offences, which are clearly serious crimes against other road users. The Tribunal has previously cited the seriousness of driving related offences such as those committed by the Applicant.^[151]
71. The Tribunal notes that the Applicant’s evidence that most of his offending took place at a time when he was under the influence of drugs (and alcohol),^[152] which increases the potential for catastrophic harm. The Tribunal has previously recognised that drugs ‘cause[s] real and serious harm to the Australian community.’^[153]
72. The Applicant’s index offending involved conduct for which he was ultimately sentenced to three years and nine months imprisonment. This conduct formed the basis of the finding that the Applicant did not pass the character test,^[154] and is, in the Tribunal’s view, probative of the seriousness of that offending conduct. The overall seriousness of the Applicant’s offending is further indicated by his prison sentence,^[155] being the last resort in the sentencing hierarchy.^[156]
73. The Tribunal notes that the Applicant did not, at any time, contend his offending was not serious. The Applicant did, however, maintain that his carrying of weapons was at times out of paranoia, induced by his methamphetamine use and the index offending occurred during a time in his life where his drug use was controlling the “hell out of him.”^[157]
74. In considering para 8.1.1(1)(b) of Direction No. 99, the Tribunal is to have regard to whether the Applicant has caused a person to enter into or be a party to, a forced marriage;^[158] committed a crime against a vulnerable member of the community or government representative or official;^[159] and any crime committed while in immigration detention.^[160] In the Tribunal’s view, none of the Applicant’s offending or other conduct falls within these categories. Similarly, the Tribunal considers that none of the Applicant’s offending or other conduct falls within the scope of paras 8.1.1(1)(f)^[161], 8.1.1(1)(g)^[162] or 8.1.1(1)(h)^[163] of Direction No. 99.
75. The Applicant’s frequency of offending has been consistently high for a sustained period of time (the last 8 years) and the nature of the index offending which resulted in the Applicant’s second and most recent of imprisonment is objectively of far greater seriousness, which does, in the Tribunal’s view, demonstrate a trend of increasing seriousness.^[164]
76. The Tribunal also considers that any cumulative effect of the Applicant’s offending (repeated offending to the extent that the Applicant committed a considerable number of offences over an extended period of time) is a significant feature of his offending.^[165]
77. In summary, the seriousness of the Applicant’s offending, in particular the index offending while involved a violent crime while the Applicant was under the influence of drugs and with a fatal outcome cannot be ignored. The Tribunal is satisfied that having regard to the evidence to which the above sub-paras of 8.1.1 of Direction No. 99 are relevant, the nature and seriousness of the Applicant’s conduct is such that it ought to be viewed seriously and weighs strongly against revocation of the Cancellation Decision.

Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2 of Direction No. 99)

78. Paragraph 8.1.2 of Direction No 99 states, in part:^[166]

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

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

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

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

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).

...

(Emphasis added.)

79. The Tribunal in CZCV and Minister for Home Affairs^[167] (CZCV) summarised the task for the Tribunal as follows:

    “In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359 , [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration & Border Protection [2014] FCAFC 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration & Border Protection (No 2) [2015] FCA 705 at [42]–[43]):

    ‘An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.’

    In BSJ16 v Minister for Immigration & Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: “... there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration & Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis.”

Nature of the harm (para 8.1.2(2)(a) of Direction No. 99)

80. Broadly speaking, the Tribunal is 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 the Applicant engage in further criminal or other serious conduct.^[168]
81. The Applicant acknowledged that the nature of the harm that would be caused to the Australian community, should the Applicant engage in further violent offending, would be significant.^[169] The Applicant, however, also submits that he poses no risk of reoffending^[170] and that he is, by undergoing rehabilitation, on a “journey towards self-improvement and reformation”.^[171]
82. The Respondent submitted that should the Applicant engage in further criminal or other serious conduct that there is a real prospect that it could cause emotional, financial and physical harm and that this has the potential to be very serious.^[172]
83. The Applicant has been convicted of a significant number of offences,^[173] including drug related offending, weapon related offending, numerous driving and traffic offences and most recently, the index offending. In the Tribunal’s view, should the Applicant commit further similar offences, in particular drug-related offences and driving and traffic-related offences, this would clearly result in further serious harm that may cause considerable physical, psychological and economic harm to members of the Australian community.
84. Most notably, the index offending occurred in circumstances that injuries were suffered and a death resulted. Again, should the Applicant reoffend in a similar manner in future, members of the public would suffer very serious harm as a result.

Likelihood of the non-citizen engaging in further criminal or other serious conduct (para 8.1.2(2)(b) of Direction No. 99)

85. Next, the Tribunal is 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.^[174]
86. The Applicant contended there is nil likelihood of him engaging in further criminal or serious conduct.^[175] The Applicant made the following related submissions in this regard:^[176]

    (a) In prison, he was involved in “a few scraps” with fellow inmates and the officers who did not accept him for who he was.

    (b) He refrained from drugs and alcohol in prison, and returned negative urinalysis results.^[177]

    (c) He has not had any negative reports of incidents whilst in detention.

    (d) He has successfully completed a number of rehabilitation courses and is currently enrolled in anger management courses.

    (e) He has grown spiritually through his daily Vipassana meditations.

87. The Respondent made the following submissions as to the risk to the Australian community, should the Applicant commit further offences or engage in other serious conduct:^[178]

    (a) In 2021, the Applicant was assessed for his risk of recidivism^[179]. He was assessed as being a ‘high’ risk of re-offending in general, and at ‘high risk of reoffending in a violent manner.’^[180]

    (b) His risk factors included his criminal history, education and employment, leisure and recreation and his companions.^[181]

    (c) The Treatment Assessment Report noted that the Applicant’s index offending closely related to his drug use, citing a pattern of engagement in crime with his co-offenders to maintain his drug habit.^[182]

    (d) It acknowledges that the assessment referred to in the Treatment Assessment Report was conducted after the Applicant’s first 12 months imprisonment and before he had undertaken any substantive rehabilitation in relation to his drug use and violent behaviour.

    (e) It accepts that there is evidence that the Applicant has completed relevant courses whilst in detention, has demonstrated significant insight into his offending patterns, and, in particular, his violent offending,^[183] and has expressed willingness to undertake rehabilitation programs in the community if released.^[184]

    (f) However, notwithstanding the Applicant’s steps towards rehabilitation, his incarceration has not been without incident. Relevantly, the Applicant has been involved in physical altercations with other prisoners and demonstrated aggressive, threatening and inappropriate behaviour against prison staff.^[185]

    (g) Even if the Applicant’s risk of reoffending has reduced as a result of steps taken to address risk factors, this rehabilitation has not been tested in the community.

    (h) Due to the Applicant’s anti-social behaviour in custody and his re-lapse into offending following his previous release from prison, there remains an unacceptable level of risk that he will engage in further offending.

88. At hearing, the Respondent added:^[186]

    “There is a helpful assessment of the Applicant’s treatment needs...^[187] The Applicant has also engaged in two courses [of] custody, and two substantial courses. The first is the Violent Offender [sic] Treatment Program...^[188] [and second is the] Completion Report for [the] Pathways [Program] at Bunbury Regional Prison...^[189]

    ...

    ...The Applicant is currently in immigration detention, he has been released on a parole order.^[190] ...[T]he [B]oard ultimately made a decision on 15 December 2022, to release the Applicant on parole from 5 January 2023. That parole order expires on 24 May 2024...

    The Applicant has then done the two prescribed courses or recommended courses that he was obliged to do or recommended to do in state custody and we have the treatment reports for them. The Applicant has also adduced evidence about his continued counselling for drug[s] and alcohol which is clearly the prime risk factor for further reoffending.

    I think logically one would have to accept that the Applicant has come down from a high-risk of reoffending both general and violent and is somewhere lower – I don’t think you can – it’s definitely above low, but not high, if I can put it in that – I mean, there is no – sometimes we usually the psyche [sic] report that will, your know, offer an opinion...

    ...

    So far as risk is concerned, there is evidence before the tribunal about risk assessments – formal risk assessments being done in 2021, there is then – and that is by Corrective Services. You have been taken to the actuarial instruments and the recommendations made therein...

    ...

    I am not sure what precisely it is but there is a, you know, in classification terms, but there is clearly a risk.

    I mean, the problem factor is that the actuarial risk assessments generally – particularly the violent one, relies on static factors which cannot be changed and the Tribunal will regularly hear evidence about that. What can be changed is the substance abuse risk factor and the applicant has clearly taken steps to address that.

    The evidence is all to the effect that more is required, in particular all that all the recommendations point to in the requirement or recommended requirement that he undergo drug rehab – formal drug rehab – and the Applicant did indicate today in evidence that he is willing to do so following the completion of his parole period and should the tribunal give him back a visa.

    ...

    I note relevant to risk there was the parole order as well the tribunal is obliged to consider that and the conditions imposed therein.

    The Tribunal in Peterson^[191] ... The Tribunal is well aware of the relevance of it. It is relevant to your assessment but it is also temporarily fixed. The Tribunal doesn’t have the power to impose conditions whereas obviously the parole board does including to revoke parole. But nevertheless, it is relevant to risk to the community that there is a parole order until next year.

    ...

    ... I think [the Applicant’s risk of further offending] has to be [unacceptable] because you have violent offending with very serious consequences. You have also got other serious offending and then you’ve got a cogent risk and I think applying the policy guidance in the direction, you would have to say protection of the Australian community weighs considerably against revocation.”

    (Emphasis added.)

89. The Tribunal has considered the available evidence and the parties’ submissions in relation to the Applicant’s risk of reoffending.
90. Firstly, the Tribunal recognises that the Applicant has taken a number of steps to rehabilitate. The Applicant has undertaken a number of courses while in prison and detention – the Pathways Program, the Violent Offending Treatment Program, SMART Recovery, numerous ASETS courses, TAFE external studies^[192] and Narcotics Anonymous.
91. The Applicant (uniquely, in the Tribunal’s view) acknowledges that his rehabilitation is ongoing and he had indicated his plans to continue with this if he is to be released into the Australian community. The Applicant has, in fact, been attending weekly drug and alcohol counselling since 25 May 2023.^[193] This is in keeping with the recommendation of the authors of Pathways Program completion report that the Applicant “would benefit from engaging in an individual alcohol and drug counselling service upon his release.”^[194]
92. The Tribunal has considered that the Applicant has abstained from substance use (drugs, alcohol, cigarettes) for four years. The Tribunal has considered that while the Applicant’s time in prison has not been without incident (and that he continued to offend following his first term of imprisonment) he has demonstrated insight into his behavioural triggers on these occasions.
93. The Tribunal also considered that the Applicant has had no incidents while in detention, has returned all urinalysis tests with a negative result, has reasonably confirmed employment prospects and has a strong family and social support and accommodation should he be released.
94. Having considered the Applicant’s written statements and his oral evidence at hearing, the Tribunal shares the Respondent’s view that that the Applicant has demonstrated significant insight into his offending. The Applicant has clearly articulated the strength of his remorse and the effect that the separation from his family and friends to date has had on him, and how this has impacted his plans and views for the future. The Tribunal notes that it was not just the content the Applicant’s evidence and answers during cross-examination that lead it to this view, but also the Applicant’s expression and openness in his delivery. This being the case, the Tribunal considers that the Applicant’s genuine remorse and insight into his offending had a meaningful impact on his risk of reoffending.
95. The Respondent put the Applicant’s risk of reoffending as above reduced, but not high^[195], and in any event, at an unacceptable level. The Tribunal considers that the Applicant well understands the migration consequences of future offending, as does his family, such that the threat of further visa cancellation, should he reoffend, would act as a further protective factor against any future offending. The Tribunal also considers the Applicant has a clear understanding of the relationship between his past substance use and his offending.
96. That the Applicant’s risk of reoffending is less than “high’ hinges on his ability to remain sober. As noted above, the Applicant’s ardently expressed understanding of the migration consequences of future offending acts as a protective factor to his sobriety, and in turn, his risk of reoffending.
97. The Tribunal also places some weight on the fact the Parole Board granted parole to the Applicant and the requirement that are in place until its expiry. While the Applicant’s parole conditions are not a matter for the Tribunal, the fact that the Applicant’s parole order expires on 24 May 2024 would act as a deterrent to his reoffending prior to that date.
98. Overall, having considered all of the evidence of the Applicant’s circumstances, the Tribunal is of the opinion that the Applicant’s likelihood of reoffending is moderate. Given the significant impact of violent, drug and traffic offending on the Australian community, the Tribunal considers that this level of risk of reoffending is unacceptable. If the Applicant were to reoffend in a similarly way, there is a risk of significant harm to the community.
99. The Tribunal finds that, on balance, paragraph 8.1.2 of Direction No. 99, being the risk to the Australian community should the Applicant commit further offences, weighs strongly against revocation of the Cancellation Decision.

Summary on paragraph 8.1 of Direction No. 99

100. The Tribunal has found that, on balance, paragraphs 8.1.1 and 8.1.2 of Direction No. 99 each weigh strongly against revocation of the Cancellation Decision. Thus, overall the Tribunal finds that the primary consideration of the protection of the Australian community weighs strongly against revocation of the Cancellation Decision.

Second primary consideration: Whether the conduct engaged in constituted family violence (para 8.2 of Direction No. 99)

101. Paragraph 8.2 of Direction No. 99 provides that decision-makers must have regard to family violence perpetrated by the non-citizen when deciding whether to refuse or cancel a visa under s 501 of the Migration Act:

(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 non­ citizen's migration status, should the non-citizen engage in further acts of family violence.

102. “Family violence” is defined in para 4(1) of Direction No. 99 as:

     “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 predominately 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.”

103. The Tribunal is required to consider whether family violence considerations arise on any of the submissions, materials or evidence before the Tribunal.
104. Neither party made any submission on this consideration. There is no evidence before the Tribunal the Applicant engaged in family violence and hence this factor should be given neutral weight.

Third primary consideration: The strength, nature and duration of ties to Australia (para 8.3 of Direction No. 99)

105. 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.

(2) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

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

1. considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
2. more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
3. 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.

(Emphasis added.)

106. In relation to the strength, nature and duration of the Applicant’s ties to Australia, the Applicant contended:^[196]

     “I arrived in Australia at the age of 14, and I have now lived here for over 13 years. Throughout this time, I have integrated into Australian society, established strong ties, and contributed positively to my local community. My formative years, education, and career have all been shaped by the opportunities and experiences provided by this country.

     ...

     Over the years, I have built strong family and community ties in Australia. My network of support includes immediate and extended family members, close friends, and mentors who have become an integral part of my life. Deportation would not only separate me from loved ones but also sever the support system that has provided me with stability, guidance, and emotional well-being.

     My mum passed away. My father, stepmom and the rest of my siblings reside in Australia. I have four brothers and three sisters who currently live here in Western Australia. I have attached letters of support from the family and friends. As mentioned above. [sic] I came to Australia when I was just fourteen years old, and I am twenty-eight years old now.”

107. The Respondent submitted that the Tribunal is required to consider any impact of the decision on the Applicant’s immediate family members in Australia, where those family members are Australian citizens, permanent residents of Australia have an indefinite right to reside.^[197]
108. The Respondent contended that the strength, nature and duration of the Applicant’s ties to Australia favours revocation, for the following reasons:^[198]

     (a) In considering those ties to Australia, the Tribunal should give more weight to his ties to his or her child and/or children.^[199]

     (b) The Applicant has resided in Australia since he was 14. The Applicant’s status as a member of the Australian community, from a young age, should attract significant weight.^[200]

     (c) It accepts that the Applicant’s immediate family and social network all reside in Australia, and that he has reasonably strong ties.^[201]

     (d) Whilst the Applicant has lived in Australia since adolescence, he has spent most of his adult life offending on a regular basis. Through that lens, there is somewhat limited evidence of positive contribution by him to the Australian community.^[202]

109. At hearing, the Respondent added:^[203]

     “The Applicant arrived in Australia as a child and has clearly spent the majority of his life in Australia... – he arrived as a teenager, he was 14 but still a minor. He grew up – he spent most of his life here. That, in my submission, is a matter that should attract weight according to the direction. It’s clear that the majority of his family reside in Australia. He does have some ties to Zimbabwe but clearly most of them are here, including his father, his siblings and in this respect I should point out that there are adult siblings who ought to be considered in this context because ...– in the direction it does pick up on adult siblings and siblings more broadly and, if I can put it this way, the minister [sic] accepts that the applicant does have substantial ties to jurisdiction and that this weights [sic] considerably in his favour.”

     (Emphasis added.)

110. The Applicant has provided a body of lay evidence regarding his family and social connections in support of his case.^[204] This evidence focuses on his relationships with family members including his father, siblings, cousins, friends, Narcotics Anonymous facilitator, prison peer support workers, prison chaplain, and a Zimbabwe Association of Western Australia members.
111. The Tribunal does not seek to, nor does it consider it necessary, to summarise the entirety of the evidence here and notes it has considered the numerous available statements in the context of this consideration (along with the oral evidence of the lay witnesses at hearing).
112. It is apparent that the Applicant’s familial and social ties are strong. MW and the Applicant’s siblings (other than his eldest brother, who resides in Zimbabwe) reside in Australia. His extended family including cousins and his nephew live in Australia.
113. It is also clear from the Applicant’s evidence and statement from his family (in particular, MW^[205]), that his return to Zimbabwe would result in great emotional distress.
114. As outlined above^[206], the Applicant has resided in Australia since September 2009, for over 13 years, since the age of 14. The Applicant’s immediate and extended family and friends (other than his eldest brother) reside in the Australian community and, the Tribunal understands are either Australian citizens or otherwise have the right to reside or remain in Australia indefinitely. The Tribunal attaches considerable weight to this in favour of revocation.
115. The Applicant’s first offence took place in 2015 and he has consistently offended since. While the Tribunal accepts the Applicant has been sober for the last four years, it is not in dispute (and the Tribunal accepts) that the evidence of any positive contribution by the Applicant to the Australian community is limited.
116. The Tribunal is satisfied there is sufficient evidence to support the Applicant’s claim of his strong ties. The Tribunal is also satisfied that the Applicant intends to secure employment and would seek to positively contribute to the Australian community if released.
117. Overall, the Tribunal finds that the strength, nature and duration of the Applicant’s ties to Australia weighs strongly in favour of revocation of the Cancellation Decision.

Fourth primary consideration: The best interests of minor children in Australia affected by the decision (para 8.4 of Direction No. 99)

118. Paragraph 8.4 of Direction No. 99 provides, in part:

(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.

(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.

(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

(Emphasis added.)

119. Paragraph 8.4(4) of Direction No. 99 continues to outline the factors that a
     decision-maker must consider when determining the best interests of a child:

(4) In considering the best interests of the child, the following factors must be considered where relevant:

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

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

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

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

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

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

g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

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

(Emphasis added.)

The relevant minor children

120. The Tribunal must make a determination about whether revocation is in the best interests of the child.^[207] This primary consideration only applies with respect to children under 18 years old at the time of the decision to revoke or not revoke the cancellation.^[208]
121. The Applicant has no minor biological children of his own. The Applicant however claims that the following minor children would be affected by the Tribunal’s decision:

     (a) three minor siblings (a brother aged 16 and two sisters aged 13 and 9);^[209]

     (b) a minor nephew (his sister’s son), aged 6;^[210]

     (c) three minor children who he regards as his “niece” and “nephews,” being:

     (i) EM’s two young children, a 2-year-old daughter and a 5 year-old son; and

     (ii) KE’s grandson, who is 9 years old.

122. While the Applicant made no specific submissions regarding the best interests of the minor children who he claims would be impacted by the Tribunal’s decision, he did speak at length and provide evidence regarding his close relationships with these children, in particular with EM’s son.^[211]
123. In relation to the best interests of the Applicant’s three minor siblings, the Respondent submitted that:^[212]

     (a) Whilst not supported by direct evidence from each of these siblings, the Applicant’s other siblings have expressed their love and support of him, and the extent to which his removal would impact him.^[213]

     (b) It is arguable that the Applicant has a similar relationship to his minor siblings and that his removal would impact them in the same way.

     (c) The Applicant has expressed that he has close relationships with his minor siblings which has persevered through his incarceration.^[214]

     (d) The Applicant’s relationship with his minor siblings is non-parental. However, it accepts that it is in their best interests, for the reasons given by the Applicant, that the Cancellation Decision be revoked.^[215]

124. In relation to the best interests of the Applicant’s minor nephew, EM’s two minor children and KE’s grandson, the Respondent submitted:^[216]

     “There are then the three minor children who are not [the Applicant’s] relatives but look up to him in an uncle-like relationship. [KE’s] grandson and then [EM’s] two children.

     In the event that the [A]pplicant is to be released he is to live with [EM] and her two children. He will clearly be providing some form of support for them. There is no evidence of an adverse nature in respect of the [A]pplicant and those children and [EM] did give evidence that she had no concerns about it. It is – at least on the face of the evidence, clear that there is a slightly different relationship between [EM’s son] and [EM’s daughter]. The [T]ribunal will be aware that it is obliged to consider their interests differently.”

125. The Tribunal has considered the available evidence and considers that the interests of the minor children the Applicant claims would be affected by the decision are aligned as follows (and will be addressed accordingly):^[217]

     (a) The Applicant’s three minor siblings and minor nephew;

     (b) EM’s son; and

     (c) EM’s daughter and KE’s grandson.

126. The Tribunal has considered the terms in which the Applicant has described his relationship with his minor siblings, his minor nephew, EM’s children and KE’s grandson and the reciprocal terms by which the Applicant’s sister, EM and KE have described the Applicant’s relationship with their respective children and grandchild and mirrored the Applicant’s sentiments.^[218]
127. Having considered the relevant factors and available evidence, the Tribunal finds that overall, the best interests of the minor children affected by the decision are as follows:

The Applicant’s three minor siblings and minor nephew

128. The Tribunal accepts that the Applicant has been involved in his siblings’ and nephew’s lives since their birth and their close relationship is as he and his sister (his nephew’s mother) describe.^[219] The Applicant’s relationship with these minor children is non-parental.^[220]
129. The Applicant’s minor brother will turn 18 in approximately 1.5 years. His minor sibling sisters and his minor nephew will be turning 18 years of age some 5, 9 and 12 years later respectively. As to the extent that the Applicant is likely to play a positive parental role in future, the Tribunal accepts the Applicant desires to continue his relationship with his minor siblings and nephew. Conversely, the Applicant has been found to have an unacceptable, moderate risk of reoffending. This, in the Tribunal’s view, casts a question mark over the Applicant’s ability at present to be a positive role model for these minor children.^[221]
130. The likely effect of long term separation from the Applicant would likely have a negative effect on his minor siblings and nephew.^[222] Maintaining contact via electronic means, while possible, is not ideal.
131. The Tribunal understands that the Applicant’s father and stepmother fulfil the parental role for his minor siblings and his sister (his nephew’s mother) fulfils the parental role in relation to his nephew.^[223]
132. There is no evidence that the Applicant’s prior conduct has had or will have a negative impact on his minor siblings or minor nephew,^[224] that his minor siblings or nephew have been, or at risk of being subject to, or exposed to family violence by the Applicant,^[225] or that they have suffered of experienced any physical or emotional trauma arising from the Applicant’s conduct.^[226]

EM’s son

133. In relation to the bests interests of EM’s minor son, the Tribunal is satisfied that his interests are largely aligned with that of the Applicant’s minor siblings and minor nephew and that the considerations in para 8.4(4) of Direction No. 99 apply in a largely similar fashion, with some distinctions to be made. Namely, while the Applicant has known EM’s son since he was two weeks old, and the Tribunal accepts the evidence of their close relationship, EM plays the parental role and this relationship has been marked by a lengthy absence and limited meaningful contact, particularly for a child of that age.^[227]

EM’s daughter and KE’s grandson

134. As to the best interests of EM’s daughter and KE’s grandson, again while the Tribunal is satisfied that the considerations in para 8.4(4) of Direction No. 99 apply in a largely similar fashion, the Tribunal considers the Applicant’s relationship with these minor children to be less established. In the case of EM’s daughter, she was born while the Applicant was in prison and he has met her only a few times. Similarly, while the Tribunal accepts the Applicant’’ and KE’s evidence that KE’s grandson regards the Applicant as his “uncle” and they enjoyed spending time together, this has been marked by long periods of absence. EM fulfils the parental role for her daughter and KE (with her husband) for KE’s grandson.
135. Having considered the above matters, the Tribunal finds that:

     (a) The best interests of the Applicant’s minor siblings and minor nephew lie moderately in favour of revocation of the Cancellation Decision.

     (b) The best interests of EM’s minor son lies moderately in favour of revocation of the revocation of the Cancellation Decision.

     (c) The bests interest of EM’s minor daughter and KE’s minor grandson weight slightly in favour of revocation of the Cancellation Decision.

136. Hence, overall the Tribunal finds that the bests interests of minor children in Australia affected by the Tribunal’s decision weighs moderately in favour of revocation of the Cancellation Decision.

Fifth primary consideration: Expectations of the Australian community (para 8.5 of Direction No. 99)

137. Paragraph 8.5 of Direction No. 99 states:

(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 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.

(Emphasis added.)

138. The Tribunal also refers to the principles set out in para 5.2 of Direction No. 99.^[228]
139. As noted at para [26] above, Direction No. 99 superseded Direction No. 90 on 23 January 2023. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH) ^{[229 ]}noted that the provisions of Direction No. 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No. 65 (Direction No. 65), the predecessor to Direction No. 79.^[230] Those corresponding provisions in Direction No. 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).^[231]
140. In this context, the Tribunal is guided by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman) at [86] to [87]:

     “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:

     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.

     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. ...

     This Tribunal respectfully agrees with Senior Member Morris. In Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, this Tribunal summarised the effect of the Full Court’s judgment in FYBR and the current state of the law as follows:

     .... The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’- expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]–[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Rehman). See also decisions of the Hon. John Pascoe AC CVO, Deputy President in Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [77]–[78].

     Special leave was sought to appeal the decision in FYBR (FC). On 24 April 2020 the High Court (Kiefel CJ and Keane J) refused special leave.

     Justice Stewart in FYBR (FC) found:

     It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.

     However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590–591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69 ; 180 CLR 404 at 429–430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1 ; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.

     The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case — they are to be understood and applied normatively.

     Justice Charlesworth also observed:

     Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.

     ...

     .... The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.

Member Burford put it in Rehman as follows:

It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view deeming the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold the visa.

Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or “deemed” in the Direction, they weigh against revocation with respect to “serious crimes”.

However, it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other consideration.

(Footnotes omitted.)

141. The Applicant made no specific submission regarding the expectations of the Australian community.
142. In relation to the expectations of the Australian community, the Respondent submitted:^[232]

     “The [A]pplicant’s violent offending, against members of the community who were arguably vulnerable (in their home in the early hours of the morning), engaged the adverse expectations set out at clauses 8.4(1) and (2). However, the weight to be afforded to those deemed community expectations must be somewhat tempered by the tolerance afforded to the [A]pplicant as a member of the Australian community from childhood (see clause 5.2(5)). This primary consideration must nevertheless weight significantly against revocation in all the circumstances, particularly where the conduct was not isolated.”

143. The Tribunal considers that the nature of the character concerns in this instance are objectively serious, such that the deemed community expectation that the cancellation is not revoked ought to be applied.
144. The Tribunal proceeds on the basis that Direction No. 99 establishes a norm of the Australian community’s expectations, which should be applied by the Tribunal irrespective of whether the Applicant is found to pose a measurable risk of causing physical harm to the Australian community, and without reference to any independent assessment of the community’s expectations in this case.^[233]
145. The Applicant’s conduct has breached this community expectation by not obeying Australian laws. The Applicant has engaged in serious violent offending, drug related offending, driving and traffic offending as well as stealing, burglary and other dishonesty offences and consequently the expectation of the Australian community would be that the Visa should remain cancelled.
146. In weighing this consideration, the Tribunal is also guided by the principles set out in para 5.2 of Direction No. 99. Applying the principles in para 5.2(5) of Direction No. 99, the Tribunal is of the view that there may be a higher level of tolerance for the Applicant’s criminal conduct, given that he has lived in Australia for half of his life and for all of his adult life.
147. Due to the application of the “norm” in para 8.5(1) of Direction No. 99, and the deeming operation of the corresponding direction as found by the Full Court in FYBR, this primary consideration weighs strongly against the revocation of the Cancellation Decision.

Other considerations (para 9 of Direction No. 99)

148. Paragraph 9 of Direction No. 99 states:

(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

a) legal consequences of the decision;

b) extent of impediments if removed;

c) impact on victims;

d) impact on Australian business interests

Legal consequences of decision under section 501 or 501CA (para 9.1 of Direction No. 99)

149. Paragraph 9.1 of Direction No. 99 states:

(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.

(2) In 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.

(Emphasis added.)

150. Paragraph 9.1.2 of Direction No. 99 states:

(1) Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered. (Original Emphasis.)

(2) However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.

(3) Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.

151. The Applicant made a number of representations with respect to non-refoulement issues arising from his return to Zimbabwe and with respect to other legal consequences of the Cancellation Decision:

     (a) The Applicant claimed that as a bisexual he would face severe discrimination and persecution if returned to Zimbabwe^[234] and this would have severe psychological and emotional consequences on him.^[235]

     (b) The Applicant claimed that he fears persecution in Zimbabwe for his criminal conduct in Australia due to the media coverage of his offending.^[236]

     (c) The Applicant also claimed that his uncle, who held a high-ranking position in the Zimbabwe Republic Police has had false charges made against him (i.e. the Applicant’s uncle)^[237] (which, he claims, were ultimately dismissed), evidencing ongoing persecution against his family and resulting in a heightened risk to himself should he be returned.^[238]

152. In relation to the legal consequences of a decision under (here) s 501CA of the Migration Act, the Respondent submitted:^[239]

     (a) The Applicant is an unlawful non-citizen as a consequence of mandatory cancellation, who must be detained until he is either removed from Australia or granted a visa.

     (b) The Applicant has made protection claims in this proceedings, namely that he fears persecution in Zimbabwe for his criminal conduct in Australia due to the media coverage of his offending.^[240]

     (c) The Applicant fears he will be targeted and subject to further punishment that could “lead to his death.”^[241]

     (d) The Applicant also states his uncle was a high ranking police officer during the reign of President Mugabe and is now “going through torture pain” as a result.^[242]

     (e) There is little to no evidence to support the Applicant’s claims.

     (f) In circumstances where the Applicant can apply for a protection visa, the Tribunal should defer consideration of whether Australia’s protection obligations are engaged. In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 (Plaintiff M1/2021), the High Court found that such an approach (i.e. deferral) was open to the delegate^[243] and by adopting that approach, the delegate had not failed to exercise the jurisdiction conferred by 501CA(4) of the Migration Act.^[244]

153. This consideration requires the Tribunal to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.^[245]
154. The Applicant has made a number of protection claims. In light of the High Court’s approach in Plaintiff M1/2021, the Tribunal will defer consideration of whether Australia’s protection obligations are engaged in the Applicant’s case. Rather, the Applicant’s representations in this regard will be taken into account under other considerations.^[246] The Tribunal considers this consideration should be given neutral weight.

Extent of impediments if removed (para 9.2 of Direction No. 99)

155. Paragraph 9.2 of Direction No. 99 states:

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

a) the non-citizen's age and health;

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

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

(Emphasis added)

156. In relation to the extent of impediments if removed to Zimbabwe, the Applicant voiced his concerns regarding language barriers and the medical support that would be available to him:^[247]

     “If I’m to go back, I’ll have to restart again. My Shona is not the best as well, so I speak broken Shona. And if I’m to be around people who look at me and go, look at this guy, been deported, I’ll be sort of in a way of harm. And I’ve been to a country where they obviously look at you differently, and Zimbabwe is the same. If you’re not proper – they say you’re not proper Zimbabwean, anything can happen. I do have, recall, I said something to do in one of my stories there, that I was brutally beaten up, and this was when I was still young, by other school kids. So imagine grown-ups, you know. The implement of harm could be greater than what it is, and how it would be implemented. So if I’m to be faced with a situation where I do have to go to hospital, I don’t think I would have the right medical needs or anything like that, so please take that into consideration when you can.”

157. The Applicant raised his having suffered PTSD, depression and anxiety^[248] in this regard.
158. The Respondent’s position with respect to the impediments to the Applicant if he were removed is that it accepts that the Applicant’s return to Zimbabwe will present language and cultural barriers as the Applicant has lived in Australia since a relatively young age and no longer has strong cultural ties to Zimbabwe.^[249] Further, the Respondent submitted that the Applicant’s return to Zimbabwe would likely mean that his medical treatment of his mental health issues will cease and thus prevents a barrier to his continue rehabilitation.^[250]
159. The Respondent accepts that the Applicant has minimal family in Zimbabwe and will have limited access to personal and financial support, which is compounded by the fact he has no transferable skills to obtain employment.^[251] The Respondent also accepts that the Applicant will face significant, but not insurmountable, obstacles in establishing himself and maintaining basic living standards in Zimbabwe, and that this weighs in the Applicant’s favour to a considerable degree.
160. Having considered the available evidence and the parties’ submissions in the context of para 9.2 of Direction No. 99, the Tribunal accepts that the Applicant would likely face significant emotional, economic and social hardship at the prospect of returning to Zimbabwe.
161. The Tribunal accepts that the Applicant has a history of depression and mental health issues arising from his incarceration and the evidence regarding his treatment for PTSD.^[252] The Tribunal accepts the Applicant’s evidence that he is otherwise healthy. The Tribunal has considerable concerns that if returned to Zimbabwe, the Applicant’s treatment of his mental health conditions would cease, and in turn, his continued rehabilitation would be compromised. Compounding this is the language barrier the Applicant would face, based on his evidence his Shona is “broken.”
162. The Tribunal also accepts the Applicant’s evidence that his relationship with family in Zimbabwe (for example, during his trip after his mother’s death) is such that the family that does reside they would be of no social or economic support to him and given the considerable passage of time, cultural barriers would also impede his return. Given the limited economic support otherwise available to the Applicant, it is likely he would have considerable difficulty establishing and maintaining himself in Zimbabwe.
163. As such, the Tribunal is satisfied that this other consideration weighs strongly in favour of revocation.

Impact on victims (para 9.3 of Direction No. 99)

164. Paragraph 9.3 of Direction No. 99 states:

(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.

165. Neither party made any submission on this consideration (other than to say there is no victim impact statement in the present matter)^[253]. The Tribunal is satisfied that it is not a relevant consideration in this matter and is therefore given neutral weight.

Impact on Australian business interests (para 9.4 of Direction No. 99)

166. Paragraph 9.4 of Direction No. 99 states:

(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.

167. The Respondent at hearing stated that there is no evidence of an Australian business interest being affected by this decision.^[254]
168. The Tribunal is satisfied that this factor is not relevant in the present case^[255] and should be given neutral weight.

CONCLUSION - THE WEIGHING EXERCISE

169. The Applicant does not pass the character test under s 501 of the Migration Act. Therefore, the Tribunal has considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary considerations and relevant other considerations in Direction No. 99.
170. As to how to apply the primary and other considerations in Direction No. 99, the Tribunal is guided by Deputy President Boyle in Wightman:^[256]

     Direction 90 guides the decision maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account (see [31] above). It 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 other considerations.

     (3) One or more primary considerations may outweigh other primary considerations.

     A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. The Tribunal is guided by Colvin J’s judgment in Suleiman v Minister for Immigration & Border Protection and the Full Court of the Federal Court decision in Minister for Home Affairs v HSKJ.

     The Tribunal in CZCV at [164] summarised the legal position following the various cases referred to above as follows:

     Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so. ...

(Emphasis added, footnotes omitted.)

171. The Tribunal follows the approach directed by the above cases. The Tribunal also takes guidance from the principles set out in paragraph 5 of Direction No. 99, in particular paragraph 5.2(6) of Direction No. 99,^[257] which in turn refers to paragraph 8.5(2) of Direction No. 99.^[258]
172. The first primary consideration, the protection of the Australian community (para 8.1 of Direction No. 99), the relevant consideration is whether the risk is an unacceptable one, taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the offences or other serious conduct and the likelihood of that occurring. For the reasons set out in paras [60]-[100] above, the Tribunal has found that given:

     (a) the nature and seriousness of the Applicant’s conduct to date is very serious (paras 8.1(2)(a) and 8.1.1 of Direction No. 99); and

     (b) the serious nature of the harm and the moderate, unacceptable risk to the Australian community, should the Applicant commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No. 99),

the primary consideration of the protection of the Australian community weighs strongly against revocation of the Cancellation Decision.

173. Looking at the second primary consideration (para 8.2 of Direction No. 99), family violence is not applicable to this application and therefore carries neutral weight.
174. With respect to the third primary consideration, the strength, nature and duration of ties to Australia (para 8.3 of Direction No. 99), the Tribunal has found that this primary consideration weights strongly in favour of revocation of the Cancellation Decision (see para [105]-[117]).
175. With respect to the fourth primary consideration, the best interests of minor children in Australia (para 8.4 of Direction No. 99), the Tribunal has found that for the reasons set out in paras [118]-[136] above, the best interests of the Applicant’s minor children weigh moderately in favour of revocation of the Cancellation Decision.
176. The fifth primary consideration, the expectations of the Australian community (para 8.5 of Direction No. 99), as it must and as is the “norm,” weighs strongly against revocation of the Cancellation Decision.
177. In relation to the “other considerations” identified in para 9 of Direction No. 99:

     (a) As the Tribunal intends to defer the assessment of whether Australia’s protection obligations are engaged in the Applicant’s case, pursuant to Plaintiff M1/2021, the Tribunal cannot be satisfied that Australia’s non-refoulement obligations are enlivened and considers this consideration carries neutral weight (para 9.1 of Direction No. 99).

     (b) The extent of impediments if the Applicant were removed from Australia weighs strongly in favour of revocation of the Cancellation Decision (see paras [156]–[164] above) (para 9.2 of Direction No. 99).

     (c) The impact on victims consideration does not arise and is therefore neutral (para 9.3 of Direction No. 99).

     (d) The impact on Australian business interests (para 9.4 of Direction No. 99) has no relevance to the present matter and hence is a neutral consideration.

178. Having weighed the considerations in favour of revocation of the Cancellation Decision and the considerations against revocation of the Cancellation Decision against each other, the Tribunal finds that:

     (a) The third primary consideration weighs strongly in favour of revocation, the fourth primary consideration weighs moderately in favour of revocation and the extent of impediments if removed consideration weighs strongly in favour of revocation.

     (b) The first and fifth primary considerations weigh strongly against revocation.

     (c) The remaining considerations carry neutral weight.

179. The Tribunal emphasises that while “primary considerations should generally be given greater weight than the other considerations”^[259] the considerations are not hierarchical - one or more primary considerations may outweigh other primary considerations.^[260]
180. After having weighed the primary and other considerations against each other the Tribunal is satisfied that appropriate weight has been assigned to each of them. Particularly, the Tribunal is satisfied (for the reasons stated above) that the circumstances of the Applicant’s case warrants considerable weight to be placed on the third primary consideration and the “extent of impediments” other consideration. The Tribunal is mindful of the fact that it has done so in circumstances where the Applicant’s offending is serious, he is at a moderate risk of reoffending and although the Australian community would have a degree of tolerance for him, his having spent almost 14 years in Australia, their expectation would be that the Visa remain cancelled.
181. In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction No. 99, the Tribunal is satisfied that there is “another reason” why the Cancellation Decision should be revoked.
182. Therefore, the correct or preferable decision is to set aside the Reviewable Decision and to substitute it with a decision that the cancellation of the Visa be revoked.

DECISION

183. The Reviewable Decision, being the decision of the Delegate dated 15 June 2023, is set aside and substituted with a decision that the cancellation of the Applicant’s Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

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

Dated: 7 September 2023

^[1] R1, G5(b).

^[2] R1, G1.

^[3] R1, G4, Attachment D1, p 65; Attachment P, p 227; Attachment R.

^[4] R2, Document 41, p 362.

^[5] The Applicant’s mother is deceased. See R2, Document 28, p 286.

^[6] Transcript, p 71 [20].

^[7] R1, G4, Attachment A; R2, Document 45.

^[8] R1, G4, Attachment A, p 28.

^[9] R2, Document 46, p 406.

^[10] R2, Document 46, p 408.

^[11] R1, G4, Attachment A, p 27.

^[12] R1, G4, Attachment A, p 27.

^[13] R2, Document 54, p 496. The Applicant’s parole order expires on 24 May 2024. See also R2, Document 56, p 514.

^[14] R1, G4, Attachment P.

^[15] R1, G4, Attachment P, p 227. See subsections 501(6)(a) and 501(7)(c) of the Migration Act.

^[16] R1, G4, Attachment P, p 229.

^[17] R1, G3, p 8, referring to R1, G4, Attachments D to N2.

^[18] See [1] above.

^[19] R1, G5(a).

^[20] R1, G1.

^[21] Transcript, p 91 [25[-[26].

^[22] See [7] above. Pursuant to ss 410(1)(a) and 304(2)(a) of the Criminal Code Act Compilation Act 1913 (WA): R1, G4, Attachment A, p 27.

^[23] Direction No. 99 para 5.1(3).

^[24] See BVLD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 6 at [19] and [21].

^[25] The Tribunal notes that the Applicant made representations in accordance with the invitation to do so.
See s 501CA(4)(a) of the Migration Act and [15]-[16] above.

^[26] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), (23 January 2023).

^[27] Direction No. 99 para 3.

^[28] See the discussion of the application of previous directions made under Jagroop and Minister for Immigration and Border Protection [2015] AATA 751 upheld on appeal in Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; (2016) 241 FCR 461.

^[29] Direction No. 99 para 5.1(4).

^[30] Direction No. 99 para 6.

^[31] As there is no para 8.55(2) the Tribunal infers this is a reference to 8.5(2).

^[32] Direction No. 99 para 6; see also the definition of ‘decision-maker’ in para 4(1) of Direction No. 90, which includes the Tribunal.

^[33] Direction No. 99 para 8.

^[34] The Applicant’s evidence is contained within R1, G4, A1, A5 and A20 and in the documents identified in para 39[c] below.

^[35] MW gave evidence in person and his statement appears at A10.

^[36] EM gave evidence by telephone and her statement appears at A3.

^[37] KE gave evidence by telephone and her statement appears at A21.

^[38] See R1, G4, document H and A3, A4, A6 to A12 (inclusive), A14, A16 to A19 (inclusive), A21, A22 and A24.

^[39] Transcript, p 52 [25]-[30].

^[40] See R1, G4, Attachment R, p 235.

^[41] The Applicant’s mother did not travel to Australia during her life.

^[42] Transcript, p 52 [25]-[45] and p 53 [5].

^[43] Transcript, p 52 [30]-[35].

^[44] Transcript, p 53 [15]-[20].

^[45] Transcript, p 20 [10], [20].

^[46] Transcript, p 21 [35], [40].

^[47] Transcript, p 22 [45], p 23 [5]-[20], p 25 [35] and p 26 [15]-[25].

^[48] See also R1, G4, Attachment D1, pp 65-66.

^[49] Transcript, p 26 [45].

^[50] Transcript, p 26 [45], p 27 [5].

^[51] Transcript, p 27 [25]-[45] and p 28 [5]. See also R1, G4, Attachment C, pp 45, 46.

^[52] Transcript, p 28 [7]- [17].

^[53] Transcript, p 28 [20].

^[54] Transcript, p 28 [29]-[35].

^[55] Transcript, p 28 [40]-[45].

^[56] R1, Document 52, p 490.

^[57] Transcript, p 29 [45].

^[58] Transcript, p 30 [35].

^[59] Transcript, p 30 [5].

^[60] R1, Document 52, p 492.

^[61] Transcript, p 31 [15].

^[62] Transcript, p 31 [25].

^[63] Transcript, p 31 [25].

^[64] Transcript, p 31 [40].

^[65] R2, Document 47, p 447.

^[66] R2, Document 47, p 448.

^[67] Transcript, p 32 [25]. See Completion Reports for 1) Pathways Program and 2) Violent Offending Treatment Program [R2, document 55, pp 498-513]. See also A5, pp 1 and 2.

^[68] Transcript, p 32 [30]-[40].

^[69] Transcript, p 32 [45].

^[70] Transcript, p 35 [30]-[45]; A14.

^[71] Transcript, p 36 [10]-[25], [40]-[45].

^[72] A5, p 2.

^[73] Transcript, p 37 [5]-[45]; See R2, document 56, pp 514-515.

^[74] Transcript, p 38 [5]-[20].

^[75] A5, p 2.

^[76] Transcript, p 38 [40]-[45], p 39 [5]-[10]; See A2, A25, A26, R1 G4, Attachments E1, I, K, L, M N, Q and R2, Document 55. See A5, p 2.

^[77] Transcript, p 40 [5]-[20].

^[78] Transcript, p 41 [5]-[25], [35]-[40] and p 65 [25]-[30].

^[79] See also R1, G4, Attachment D1, p 67 and Attachment N, p 192.

^[80] Transcript, p 53 [30]-[35].

^[81] Transcript, p 49 [5]-[20], p 53 [20], [30]-[35], p 74 [45]. See also R1, G4, Attachment D, pp 52 and 56. The Tribunal notes the transcript records the Applicant’s agreement with the Respondent’s proposition that the Applicant’s youngest brother as being currently 17 years of age, rather than 16 years of age, having been born in November 2006 (Transcript, p 49 [15]; R1, G4, Attachment D, p 56). In any event, the Applicant’s youngest brother is currently of minor age.

^[82] Transcript, p 49 [20]-[35]. See also R1, G4, Attachment D, p 56.

^[83] R1, G4, Attachment D, p 57.

^[84] Transcript, p 49 [40]. See also R1, G4, Attachment D, pp 56 and 58. Again, the transcript records the Applicant’s agreement with the Respondent’s proposition that the Applicant’s nephew is seven years old, rather than six years old, which is in error according to the date of birth provided (R1, G4, Attachment D, p 56). In any event, the Applicant’s minor nephew is currently of minor age.

^[85] Transcript, p 50 [25]-[45]. This is supported by EM in her statement (A3).

^[86] Transcript, p 50 [45], p 51 [5]-[15].

^[87] R1, G4, Attachment N, p 192 and A5, p 2.

^[88] Transcript, p 51 [20]-[40]. This is supported by KE in her statement (A21).

^[89] R1, G4, Attachment D, p 58.

^[90] Transcript, p 53 [10].

^[91] Transcript, p 65 [5].

^[92] R1, G4, Attachment D, p 62 and Attachment D1, p 66.

^[93] Transcript, p 53 [40]-[45].

^[94] Transcript, p 53 [45], p 54 [25]-[30].

^[95] Transcript, p 54 [5]. See also R1, G4, Attachment D, p 62.

^[96] A23.

^[97] Transcript, p 54 [35].

^[98] Transcript, p 54 [45].

^[99] Transcript, p 55 [10]-[20]. See also R1, G4, Attachment D, p 61.

^[100] Transcript, p 55 [25]-[40].

^[101] Transcript, p 55 [45].

^[102] Transcript, p 56 [5]-[10].

^[103] Transcript, p 56 [5].

^[104] Transcript, p 55 [44]-[45].

^[105] Transcript, p 56 [10]-[15].

^[106] See also R1, G4, Attachment D1, p 67.

^[107] Transcript, p 65 [10]-[15].

^[108] R1, G4, Attachment D, p 62.

^[109] A10.

^[110] Transcript, p 71 [85].

^[111] Transcript, p 72 [1]-[5].

^[112] Transcript, p 75 [15].

^[113] Transcript, p 75 [40]-[45]; See R1, G4, Attachment B, p 38 and A10, p 1.

^[114] Transcript, p 75 [45].

^[115] Transcript, p 72 [5]-[10], [20], [35]-[45].

^[116] Transcript, p 73 [40]-45].

^[117] A10, p 1.

^[118] Transcript, p 73 [5]-[15].

^[119] Transcript, p 73 [20]-[3]. See also A10, p 2.

^[120] Transcript, p 79 [35].

^[121] Transcript, p 78 [20]-[25].

^[122] Transcript, p 78 [30].

^[123] Transcript, p 78 [30].

^[124] Transcript, p 78 [30].

^[125] Transcript, p 78 [40].

^[126] Transcript, p 78 [45]. See also A3, p 2.

^[127] Transcript, p 79 [5]-[15]. See also A3, p 1.

^[128] Transcript, p 79 [33].

^[129] Transcript, p 79 [35].

^[130] Transcript, p 80 [20].

^[131] A21, p 1.

^[132] A21, p 1.

^[133] Transcript, p 81 [30]-[35].

^[134] Transcript, p 81 [40]-[45]. See also A21, p 1.

^[135] Transcript, p 82 [5].

^[136] The Applicant accepts this is the case: Transcript, p 91 [25].

^[137] Pursuant to s 501CA(4)(b)(ii) of the Migration Act.

^[138] R3 [64].

^[139] See also Direction No. 99 para 8.1(2)(a).

^[140] For example, see A1, p 8 and [41(e)] above.

^[141] R3 [30]-[31] and transcript, p 84 [45].

^[142] The Tribunal understands the Respondent to be referring to paragraphs 8.1.1(1)(a)(i) and 8.1.1(b)(iii) of Direction No. 99 in this context.

^[143] Referring to JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762.

^[144] Para 8(1) of Direction No. 99.

^[145] Direction No. 99, para 8.1.1(1).

^[146] See [6]-[12] above.

^[147] R1, G4, Attachment B, pp 33-34, 36.

^[148] Para 8.1.1(1)(a)(i) of Direction No. 99.

^[149] Para 8.1.1(1)(a)(ii) of Direction No. 99.

^[150] Para 8.1.1(1)(a)(iii) of Direction No. 99.
^[151] MJNN and Minister for Home Affairs (Migration) [2019] AATA 3205 at [54]- [55] per Senior Member Evans; Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561, at [43]-[45] per Senior Member Tavoularis; Wang and Minister for Immigration and Border Protection [2017] AATA 89, at [7] per Senior Member Bell; Zaya and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 366, at [54] per Deputy President Kendall; Apire and Minister for Immigration and Border Protection [2014] AATA 193, at [16] per Member Webb; Kohli and Minister for Immigration and Border Protection (Migration) [2017] AATA 1326, at [20] per Senior Member Poljak; Berryman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 421, at [80]-[81] per Deputy President Boyle.
^[152] For example, see [41](c), (d) and (e) above.

^[153] Kanara and Minister for Immigration and Citizenship [2011] AATA 132 at [32] per SM Toohey.

^[154] Para 8.1.1(1)(b)(iii) of Direction No. 99.

^[155] Para 8.1.1(1)(c) of Direction No. 99.

^[156] See also sentencing remarks at R1, G4, Attachment B, p 39, para 4.

^[157] See [41](d) and (e) above.

^[158] Para 8.1.1(1)(b)(i) of Direction No. 99.

^[159] Para 8.1.1(1)(ii) of Direction No. 99.

^[160] Para 8.1.1(b)(iv) of Direction No. 99.

^[161] There is no evidence the Applicant has provided false or misleading information to the Department.

^[162] The Applicant was never formally warned about the consequences of further offending on his migration status.

^[163] The Applicant has no known criminal history outside Australia.

^[164] Para 8.1.1(1)(d) of Direction No. 99.

^[165] Para 8.1.1(1)(f) of Direction No. 99.

^[166] See also Direction No. 99 para 8.1(2)(b).

^[167] [2019] AATA 91 [56]–[57]. The Tribunal in CZCV and the Courts referred to in the related cited cases were considering visa cancellation in the context of predecessors to Direction No. 99 (the CZCV matter itself falling for consideration by Direction No. 90) Given the similarity in wording, the same considerations and principles apply to the present matters. The Tribunal therefore follows the approach in these cases.

^[168] Para 8.1.2(2)(a) of Direction No. 99.

^[169] See [41(e)] above; see also A5, p1.

^[170] Transcript, p 62 [15].

^[171] A5, p 1.

^[172] R3 [35].

^[173] Including unlawful entry, stealing, burglary and other dishonesty offences (giving false details, fraud), carrying an article with intent to cause fear and breach of bail undertaking.

^[174] Para 8.1.2(2)(b)(i) of Direction No. 99.

^[175] Transcript, p 62 [15].

^[176] A1, pp 6 and 9.

^[177] See R2, Document 49, p 464.

^[178] R3, [36]-[40], Transcript, pp 12, 84-86.

^[179] See Treatment Assessment Report dated 21 July 2021: R2, Document 47, pp 445-448.

^[180] R2, Document 47, pp 445-448.

^[181] R2, Document 47, p 447.

^[182] R2, Document 47, p 447.

^[183] See “Offender Programs: Completion Report”: R1, G4, Document K, pp 150-158.

^[184] R2, Document 48, p 451.

^[185] R2, Document 48.

^[186] Transcript, pp 12; 84-86.

^[187] Referring to R2, Documents 47 and 48, pp445-454, being the Treatment Assessment Report dated 21 July 2021 and the Parole Assessment dated 21 November 2022.

^[188] See R1, G4, Attachment K; also at R2, Document 55, pp 505-513.

^[189] See R2, Document 55, pp 498-503. See also Respondent.

^[190] The notes of the Prisoner’s Review Board’s decision are at R2, document 496 to 497.

^[191] Referring to Peterson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1256.

^[192] The Applicant has provided evidence of completion of adult general education, Certificate III in Community services, Certificate I in Sport and Recreation and has completed a construction induction. See A2.

^[193] See A25, A26.

^[194] R2, Document 55, p 504.

^[195] The Tribunal notes there is no expert witness report available to it, which, when available, generally offer an opinion on the risk of reoffending and, in some cases, the acceptability of that risk.

^[196] A1, pp 2 and 6.

^[197] R3 [41], referring to para 8.3(1) of Direction No. 99.

^[198] R3 [42]-[47].

^[199] Para 8.3(2) of Direction No. 99. The Respondent considered the nature of the Applicant’s ties to his minor siblings and their best interests in the context of the fourth primary consideration “The best interests of minor children in Australia affected by the decision” (para 8.4 of Direction No. 99).

^[200] Referring to para 8.3(4)(a)(i) of Direction No. 99.

^[201] Referring to letters of support at R1, G4, pp 106-113.

^[202] The Applicant concedes this point: R1, G4, Attachment D, p 61.

^[203] Transcript, p 87 [5]-[15].

^[204] See fn 38.

^[205] See A10, p 2.

^[206] See [106] and [108(b)].

^[207] Para 8.4(1) of Direction No. 99.

^[208] Para 8.4(2) of Direction No. 99.

^[209] See R1, G9, p 56.

^[210] See R1, G9, p 56 and transcript, p 15.

^[211] See [41].

^[212] R3 [50], [51].

^[213] R1, [50].

^[214] Referring to R1, G4, Attachment D, p 57.

^[215] See transcript, p 87 [25].

^[216] Transcript, p 87 [30]-[35].

^[217] In accordance with para 8.4(3) of Direction No. 99.

^[218] See [41], particularly [41(f)]; A3; A12; A21.

^[219] The views of the Applicant’s minor siblings and minor nephew are unknown: Para 8.4(4)(f) of Direction No. 99.

^[220] Para 8.4(4)(a) of Direction No. 99.

^[221] Para 8.4(4)(b) of Direction No. 99.

^[222] Para 8.4(4)(d) of Direction No. 99.

^[223] Para 8.4(4)(e) of Direction No. 99.

^[224] Para 8.4(4)(c) of Direction No. 99.

^[225] Para 8.4(4)(g) of Direction No. 99.

^[226] Para 8.4(4)(h) of Direction No. 99.

^[227] Para 8.4(4)(a) of Direction No. 99.

^[228] Set out in [30] above.

^{[229 ]}  [2021] AATA 1143  [194].
^[230] As do the provisions of Direction No. 99 – they contain generally similar wording to the corresponding provisions in Direction No. 90.

^[231] [2019] FCAFC 185.

^[232] R3 [54].

^[233] Referring to paras 8.5(3) and 8.5(4) of Direction No. 99.

^[234] A1, pp 2- 4, referring DFAT Country Information Report Zimbabwe – 19 December 2019, p 55. See also A20.

^[235] A1, p 5.

^[236] Referring to R1, G4, Attachment D, p 62.

^[237] See A23.

^[238] A20.

^[239] R3 [55]-[57].

^[240] Referring to R1, G4, Attachment D, p 62.

^[241] Referring to R1, G4, Attachment D, p 62.

^[242] Referring to R1, G4, Attachment D, p 62.

^[243] At [42(1)-(3)].

^[244] At [36]-[38] and 42(2)(a)].

^[245] Para 9.2 of Direction No. 99.

^[246] In the present matter, the “other consideration” relevantly engaged by the Applicant’s representations is, in the Tribunal’s view, the “extent of impediments if removed” consideration.

^[247] Transcript, p 65 [5]-[20].

^[248] See [41(u)] above, IHMS Health Summary and progress medical notes.

^[249] R3 [59].

^[250] R3 [59].

^[251] R3 [59].

^[252] Documented in the IHMS Health Summary and progress medical notes.

^[253] See, for example, transcript, p 89 [10]).

^[254] Transcript, p 89 [7]-[9].

^[255] As is the Respondent (Transcript, p 89 [10]).

^[256] Again, noting that the provisions of Direction No. 99 contain generally similar wording to the corresponding provisions in Direction No. 90. See also fn 234 above.

^[257] See [30] above.

^[258] See [128] above.

^[259] Para 7(2) of Direction No. 99.

^[260] Para 7(3) of Direction No. 99 and see [171] above.