(a) No Motor Driver Licence

(b) Refuse to Supply or Provide Name and Address

(c) Drive while disqualified from holding a licence

(d) Class A vehicle displaying unauthorised number plate

(e) Use of uninsured motor vehicle

(f) Use of unregistered registrable Class A motor Vehicle

(g) Drive while disqualified from holding a license

(h) Possess a prohibitive drug

(i) Cultivate prohibitive plant

(j) Possession of Dangerous Drugs

(k) Possess utensils or pipes used to administer, consume or smoke a dangerous drug

(l) Custody of a knife in a public place.

1. The Applicant's involvement in drugs has principally been with cannabis and methamphetamine. [20]
2. On 2 August 2016 the Applicant was convicted of Assaults Occasioning Bodily Harm- Domestic Violence Offence pursuant to s 339(1) and 47(9) of the Queensland Criminal Code ('the Domestic Violence offence'). The Applicant pleaded guilty to the offences and received a sentence of nine months' imprisonment to be served by way of an intensive corrections order.
3. On 26 May 2022 the Applicant was convicted and sentenced to 5 years' imprisonment for the Commonwealth offence of 'import/export marketable qty of border-controlled drugs/plants - aid/abet. The Applicant plead guilty to the offence. The offence occurred in or about December 2017 when the Applicant recklessly agreed to take delivery of a package that contained 547.3 grams of methamphetamine that had been addressed to his mother with whom he was living at the time.[21]
4. On 29 June 2023 the Applicant was convicted of an 'Assaults occasioning bodily harm whilst armed and in company' pursuant to s 339(1) and s 339(3) of the Queensland Criminal Code ('the Assault offence').[22] The offence occurred on 30 January 2022, prior to the Applicant being sentenced for the index offence, and in the company of the Applicant's brother, Mr Garry McNicol.[23]

1. The character test is defined in s 501(6) of the Act. It provides that a person does not pass the character test if they have a 'substantial criminal record' as defined in s 501(7) of the Act. Relevantly, s 501(7)(c) of the Act provides that a person has a 'substantial criminal record' if they have been sentenced to a term of imprisonment of 12 months or more or have been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.[24]
2. In this case the Applicant was sentenced to a term of 5 years' imprisonment for the index offence. As a result, the Tribunal finds that the Applicant does not pass the character test and cannot rely on s 501CA(4)(1)(a) for the cancellation of his visa to be revoked.

Whether there is another reason the visa cancellation decision should be revoked

1. The issue for the Tribunal is, therefore, whether there is another reason the decision to cancel the Applicant's visa should be revoked. The Tribunal is required to have regard to Direction 110 in deciding whether to revoke the cancellation decision.

1. Paragraph 8.1 of Direction 110 provides that when considering the protection of the Australian community, the Tribunal is required to keep in mind that the safety of the Australian community is the highest priority of the Australian Government.[25] In addition, it provides that the Tribunal give consideration to the nature and seriousness of the Applicant's conduct and the risk to the Australian community should the Applicant commit further offences or engage in further serious conduct.[26]

1. In considering the nature and seriousness of the Applicant's offending or other serious conduct, the Tribunal is required to consider those factors detailed in paragraph 8.1.1 of Direction 110. The Direction indicates that violent crimes are viewed seriously by the Australian Government and the Australian Community.
2. In this case the Applicant was convicted of the index offending by the Queensland Supreme Court on 26 May 2022. The circumstances of the offending are that, in or about December 2017, authorities intercepted a package containing 547.3 grams of pure methamphetamine at an international airport in Australia. The package was addressed to the Applicant's mother, with whom the Applicant was residing at the time. On 2 January 2018 the Applicant called the postal delivery centre to enquire about the progress of the shipment. In March 2018, a search warrant was executed, during which the Applicant's phone was seized. Messages were found on the Applicant's phone that the Applicant had communicated with others about the package. In or about May 2018, the Applicant was arrested and charged in relation to the offence. The Applicant initially denied any knowledge of the contents of the package but ultimately pleaded guilty to the offence on 12 February 2021.[27]
3. At the time of his arrest for the above offence, the Applicant had already been convicted of approximately 50 prior offences, that included the weapons offences, drug offences, traffic offences and family violence assault referred to above.[28]
4. The Respondent submits that the Applicant's offending was very serious.[29] The fact that he was sentenced to a five-year term of imprisonment indicates the serious nature of his offending.[30] To this end, incarceration is the penalty of last resort in the sentencing hierarchy. The fact that the Applicant was sentenced to a significant term of imprisonment of five years, regardless of time served, the Court viewed the Applicant's offence to be of such a serious nature as to warrant an immediate custodial sentence for a significant period.
5. The Tribunal notes that following the Applicant's conviction for the index offending, he was convicted of[31] the Assault offence and breach of bail.
6. The Assault offence[32] occurred while the applicant was on bail for the index offending and prior to him being sentenced for the index offending. As a result, it appears that the applicant has committed the Assault Offence in blatant disregard for the bail conditions imposed on him pending his hearing for the index offending. The Assault offence was a premediated attack on the victim that occurred following an assault on the Applicant's brother. The Applicant's phone SMS history indicated that he had told a friend he planned to 'knock out' the victim prior to the incident. The assault involved the Applicant punching, kicking and choking the victim until he lost consciousness, a result of which the victim suffered injuries to his eye, face, and neck.
7. In considering the nature and seriousness of the Applicant's conduct, the Tribunal is required to consider any crimes of violence the Applicant may have committed against women and any acts of family violence, regardless of any conviction or sentence being imposed.[33] The Australian Government and the Australian Community view such crimes very seriously. In this case the Applicant was convicted of the Domestic Violence offence and sentenced to nine months' imprisonment to be served as an Intensive Corrections Order (ICO).[34]
8. The Applicant's submission was that he has apologised to the victim for his actions and that he now maintains a good friendship with the victim. However, the documentation provided to the Tribunal showed that a Domestic Violence Order (DVO)[35] was made against the Applicant on 27 January 2015[36] that, amongst other matters, prevented the Applicant from contacting or attempting to contact the Applicant by any means whatsoever. The DVO has been renewed by the Applicant several times[37] and was last renewed on 25 March 2021 and continues until 25 March 2026.[38] After being taken to the relevant documents, the Applicant stated that he had not had any contact with the victim but nevertheless believed he maintained a good relationship with the victim. Based on the documentation provided to the Tribunal, it does not accept the Applicant's evidence that he has apologised to the victim, and they are on good terms as claimed.
9. In addition, the Queensland Corrective Services reports provided to the Tribunal states that the Applicant contravened the conditions of his intensive corrections order.[39] The Applicant's evidence was that he had not been informed by his corrections officer of the conditions of the intensive correction order. However, the documentation provided the Tribunal indicated that the Applicant had been advised of the conditions and was aware of the conditions of the ICO. The Queensland Corrective Services reports indicated that the Applicant had attended some counselling and psychologist sessions in accordance with his ICO. In addition, the Applicant provided medical certificates by Dr John Mullet dated 18 November 2016,[40] 10 March 2017[41] and 30 March 2017[42] as reasons for him not attending the parole office. The Tribunal notes that the medical certificate dated 30 March 2017 refers to the Applicant being involved in a motorcycle accident. However, the Applicant's evidence to the Tribunal was that he suffered injuries from a motorcycle accident approximately 20 years ago because for which he now receives a disability pension. In addition, the medical certificates do not state the Applicant's medical condition and did not provide any medical reason why he was not able to attend the parole office on each occasion. Based on the content of the medical certificates and the Applicant's evidence, the Tribunal places no weight on the medical certificates in relation to the Applicant's medical condition. In any event, the Applicant did not complete the counselling/programs as directed by the corrective services officer including substance abuse (education/relapse) and Domestic Violence counselling program, MDVEIP/ Centacare care. The Applicant conceded to the Tribunal that he had not completed the conditions of his ICO.
10. In addition, when considering the nature and seriousness of the Applicant's conduct, the Tribunal is required to consider any crimes committed against vulnerable members of the community or government representatives or officials due to the position they hold, or the performance of their duties.[43] In this case the Applicant was charged and convicted of two counts of assault against police soon after his arrival in Australia.[44] The Applicant's actions of having assaulted police displays a wilful disrespect for the law and the authorities which appears to have continued up until the time of his index offending.

• 50. The Applicant's flagrant disregard for the law is evident in the nature and frequency of traffic offences incurred by the Applicant. The traffic offences[45] include driving a vehicle whilst under the influence of methamphetamine,[46] drive while disqualified from holding a license,[47] use unregistered motor vehicle, use uninsured motor vehicle,[48] displaying unauthorised number plate[49] and disqualified driving.[50] While the Applicant's driving offences may initially appear relatively minor, viewed against the balance of his criminal history, the Applicant has consistently displayed a recklessness and indifference to the law and rules governing the operation and control of a motor vehicle. That is, the laws and rules that are in place to protect road users and other members of the public in the interests of community safety.[51] By committing the traffic offences that included repeated offences for driving an unregistered vehicle and unlicensed driving, the Applicant has displayed a complete indifference to the law and the safety of the community generally when operating a motor vehicle. The Applicant ought reasonably to have known the potentially serious adverse consequences of unlicensed driving, or driving an unregistered/uninsured vehicle, for other road-users. The insurance implications of another road user becoming involved in an incident with an unlicensed driver and/or unregistered/uninsured driver is common knowledge.[52] As such, the Tribunal finds that the Applicant's traffic offences are serious and demonstrate a lack of insight into the risks and impacts of his actions on the Australian community.

1. The Applicant arrived in Australia in March 1986 and at the time of his arrest for the index offending he had committed approximately 50 prior offences. The Applicant has shown a flagrant disrespect for the law and its operation by continuing to offend including the breach of community-based orders and failure to appear. The Tribunal notes that the Applicant's offending appears to have escalated over time. In relation to his index offending the Judge remarked that his offending 'reflects a very significant escalation in what has gone on before.'[53]
2. Therefore, having considered the evidence relevant to paragraph 8.1.1(1) of Direction 110, the Tribunal finds that the nature and seriousness of the Applicant's conduct to date is of a very serious nature.

1. Paragraph 8.1.2 of Direction 110 provides that in assessing whether the Applicant represents an unacceptable risk of harm to the Australian community, the Tribunal 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 information and evidence on the risk of the non­citizen re-offending and any evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence.

2. In measuring the risk to the Australian community, it is necessary for the Tribunal to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.[54] The Tribunal is required to assess the risk posed to the Australian community if the Applicant reoffends, taking into consideration the nature of any harm and its probability. An unacceptable risk requires consideration of the likelihood of offending and, if it eventuates, what consequences flow from such offending. 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 occur.[55]
3. The courts have held that past actions are legitimate predictors of future behaviour.[56] In Murphy v Minister for Home Affairs [2018] FCA1924 Mortimer J (as her Honour then was) considered the notion of risk and its nexus to future possibility as follows:[57]

That is, part of the Tribunal's task was to decide not only whether the Applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be tolerated.

4. In Minister for Immigration and Ethnic Affairs v Guo[58] the High court considered the extent to which past events can be a guide to the future. The Court stated:

Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence.

1. As such, in the process of determining the chance of something occurring in the future a conclusion will need to be formed concerning past events.[59] Assessing what is likely to happen in the future based on past events involves questions of degree. That is the degree of probability that they have occurred, the regularity with which they occurred and the conditions under which they have occurred. [60]
2. The Tribunal has found the Applicant's index offending to be very serious. As stated by Bowskill CJ in his sentencing remarks:[61] 'methamphetamine is one of the most horrible and evil things in the world. It causes untold damage, destruction and despair within our community. It causes people to become incredibly ill, it causes people to die, it sometimes leads to committing serious criminal offences which lead to death of other people.' As a result, the impact of a large quantity of methamphetamine on the community would be significant. Accordingly, the Tribunal finds that any future offending of a similar nature would expose the Australian community to significant physical, psychological and financial harm.[62] As such the Tribunal accepts and finds that such harm, if repeated, is so serious that any risk that it may be repeated is unacceptable.[63]
3. In addition, the Applicant's other offending including crimes of violence, drugs offences, weapons offences, and traffic offences, present a significant and unacceptable risk to the Australian community. The Tribunal has already found that the Applicant has continually displayed a flagrant disregard for the law and its process. The Applicant failed to complete the conditions of his ICO and has continually ignored the court process by failing to appear before court in breach of bail conditions. On 23 November 2021 the Applicant failed to attend court in accordance with his bail undertaking. As a result, a warrant was issued, and the Applicant was arrested on 24 November 2021. The court brief[64] states that the Applicant was not able to offer any reasonable excuse for his non-appearance at court.
4. In addition, by the nature and frequency of the traffic offences,[65] the Applicant has displayed a complete disregard for the law and the safety of the community. The traffic charges included driving a vehicle whilst under the influence of methamphetamine[66] and multiple charges of drive while disqualified from holding a license,[67] use unregistered motor vehicle, use uninsured motor vehicle,[68] displaying unauthorised number plate[69] and disqualified driving.[70]
5. The Applicant has submitted that a significant proportion of his offending has been due to his mental health issues, including post-traumatic stress disorder (PTSD) and depression.[71] However, the Applicant provided very limited expert medical evidence in relation to his mental health. Despite claiming that he had been diagnosed with PTSD by Dr Bill Follent, the Applicant did not provide any evidence that he had been diagnosed with PTSD by Dr Follent or any other psychologist as claimed.
6. A report by psychologist Kirsten McArthur dated 26 May 2021[72] ('the McArthur report') states that the Applicant was, at the time of the report, experiencing extremely severe symptoms of depression and stress. In addition, a letter from Dr Brownhill, psychologist dated 24 June 2021[73] (Brownhill letter) and addressed to a Presiding Magistrate refers to the Applicant having been diagnosed with depression. The letter refers to a report prepared by Dr Brownhill, however, the Tribunal was not provided with a copy of any such report. There was no evidence that the Applicant had received any further or ongoing treatment from Dr Brownhill.
7. The McArthur report and the Brownhill letter were both prepared approximately 4 years ago for the purposes of the Applicant's sentencing. That is, at a time when the Applicant would be experiencing heightened emotions and feelings. No report has been provided in relation to the Applicant's current mental health. Nevertheless, the Tribunal accepts that the Applicant has suffered depression and anxiety as claimed.
8. Finally, the Applicant provided two documents entitled 'Referral to Psychologist' by Dr John Mullett dated 16 December 2016[74] and 11 April 2022.[75] In each case the Applicant was referred for a mental health care plan. However, there is no evidence that any such plan was enacted. In a letter to the Minister dated 26 September 2024,[76] the Applicant claims that upon 'Entering Woodford Correctional Center, the only support I have received is drawings to colour in, & coloured pencils. My mental health I feel is still not okay.' In addition, the Applicant claims that since entering prison, his mental health treatment has ceased.[77]
9. Therefore, based on the documentation presented to the Tribunal, it accepts that the Applicant has not received mental health treatment for his depression, PTSD and anxiety as claimed. As such, the Tribunal accepts that the Applicant has not received the necessary medical treatment to successfully ameliorate the risk factors that he claims were causative to the Applicant's serious offending.
10. The Applicant claimed that, if he is released into the community, he will undertake mental health treatment with Dr John Brownhill, as well as 'intensive relapse prevention programmes' organised by Crest, including Lives Lived Well and I Believe. In addition, he claims that upon his release he intends to undertake a private drug counselling service at Banyans Medical Centre, Bowen Hills.[78] However, the Applicant did not provide any evidence of him having contacted Dr Brownhill or the Banyans Medical Centre for the purposes of ensuring he would be able to access their services upon his release as claimed. In circumstances where the Applicant's mental health concerns were initially referred to a psychologist in 2016[79] without any mental health plan being enacted, the Tribunal places little weight on the Applicant's evidence in relation to his future mental health treatment.
11. The Applicant's evidence was Mr Mark 'Gus' Garcia had been a contributing factor in the index offending. His evidence was that he no longer has a relationship with Mr Garcia and as such is at a lower risk of offending.[80] However, the Applicant has been convicted of over 50 offences stretching across four different states over a period of 30 years. There does not appear to be any one specific person or group that has contributed to the Applicant offending. Instead, the Applicant has displayed a consistent disregard for the law regardless of the jurisdiction or who he was associating with at a particular time. As such, the Tribunal does not accept that by no longer having an association with Mr Garcia the Applicant has lowered his risk of reoffending as claimed.
12. Despite having expressed remorse for his index offending,[81] by his actions the applicant has demonstrated a lack of insight into his offending indicating that he still represents a risk of reoffending. The Applicant's evidence at the hearing was that he was not aware of what was in the package and that he was not responsible for it being sent to his mother's address. Despite having plead guilty to the index offending the Applicant maintained to the Tribunal that he had been set up and that he was innocent of the offence.[82] In his application for review the Applicant maintained his innocence in relation to the index offending. The Applicant claims he only plead guilty after his psychologist Dr Brownhill indicated he 'would receive much needed further mental help out in the community.'[83] The Applicant claimed that he had been affected by drugs at the time of his interview with police in relation to the index offending.[84]
13. In addition, in relation to the Domestic Violence offence, despite having been ordered to undertake a men's behaviour program, and a substance abuse program,[85] the Applicant has failed to do so. While in prison the Applicant has completed courses in first aid and in visual arts,[86] but did not provide any evidence of having completed any course relevant to reducing his risk of reoffending and/or rehabilitation.
14. The Applicant asserts that he will ensure he does not commit further criminal offences in the future by utilising 'discernment' to ensure that he is not taken advantage of, and that he no longer trusts every person who is friendly to him.[87] While this may be relevant to his index offending, the Applicant has not provided any plan or course of conduct that he intends to undertake to prevent his reoffending in relation to the other 50 criminal convictions that include traffic and drug offences, and assaults. In circumstances where the Applicant has been given the opportunity to take steps towards not reoffending, he has failed to do so. Instead, he has displayed a complete disregard for the law and the safety of the community by continuing to offend and repeatedly breaching bail and failing to appear at court when required.[88] In addition, the Applicant failed to comply with the conditions of his ICO by not completing the Centacare DV program following his conviction for family violence.[89] Finally, the Applicant has failed to attend mandated community service on several occasions. [90]
15. The Applicant claims that his ties to his family and his family support will help him avoid reoffending if he is returned to the Australian community.[91] However, the Tribunal notes that the Applicant has enjoyed the support of his family for the entire time he has been in Australia during which time he has been charged and convicted of approximately 50 offences. In addition, the Tribunal notes that the Assault offence arose out of circumstances involving the Applicant's brother and his co-offender was his brother.[92] As such it appears that the Applicant's family constitute a contributory rather than a protective effect on the likelihood of the Applicant's reoffending. Therefore, the Tribunal finds that the Applicant's family do not represent a protective factor to the extent that they will prevent the Applicant from reoffending and lower the risk to the Australian community.
16. On 17 June 2022, the Applicant was found by Queensland Corrective Services to require a High Security classification.[93] As to the Applicant's risk of future offending the Applicant was assessed as having a high risk of further general offending.[94]
17. Finally, the Applicant was refused parole on 26 November 2024, despite being scheduled for release on that date. The Refusal of Parole statement dated 21 November 2024[95] ('the Parole statement') stated that having considered the nature and circumstances of his offending and the comments made by the sentencing court, the Applicant represented an unacceptable risk to the Australian community. In addition, the Parole statement referred to the Applicant's criminal history dating back to 1986 that included multiple drug offences, multiple failing to appear, possessing a weapon in public, assault occasioning bodily harm (domestic violence). The Parole statement referred to the fact that the Applicant had been sentenced to imprisonment on two occasions (one of those he served by way of an intensive correction order) and noted that the index offending was committed at a time when the Applicant was subject to a probation order.[96] Finally the Parole statement stated that the Applicant's previous convictions had not deterred the Applicant from further offending.[97]
18. Therefore, having considered the Applicant's evidence and the documentation provided, the Tribunal finds that the Applicant poses a real and unacceptable risk of re-offending. Having regard to the ongoing risk and the potential for similar offending to cause harm, the Tribunal finds that this primary consideration weighs heavily in favour of a decision not to revoke the cancellation of the Applicant's visa.

1. Paragraph 8.2 of Direction 110 provides that the Australian Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia.
2. On 2 August 2016, the Applicant was convicted of the Domestic Violence offence.[98] The relevant offence took place in July 2016 against the Applicant's then-partner.[99] The circumstances of the offence were detailed in a statement by the victim[100] in which she states that she had been in a de facto relationship with the Applicant for approximately 1.5 years. On 7 July 2016, the Applicant and the victim attended a social function at a friend's house during which the Applicant accused the victim of flirting with his friend which she denied. At home, the Applicant became enraged that the victim had embarrassed him in front of their friends. Between 1am and 2am, the Applicant followed the victim to the kitchen and grabbed her forcefully by the arms. He then punched her in the face upon which she fell to the ground and the Applicant then kicked her in the back. The Applicant's housemate then intervened and took the victim to her room.
3. When she thought it was safe to do so the victim returned to the kitchen to make a cup of tea. However, the Applicant returned to the kitchen and punched her to the floor and kicked her several times. While she remained on the floor the Applicant punched her three times to the face. He then chocked her for around 30 seconds and 'karate chopped' her to the throat. Finally, he then grabbed both sides of her head and struck the back of her head several times into the tiled floor, and then into the door, at which point she lost consciousness.[101]
4. On any view the assault on the victim was a brutal and violent attack. Acting Magistrate Tynan in sentencing the Applicant described the attack as a very serious assault that was prolonged and 'just intolerable.'[102] In circumstances where the attack was on the applicant's partner the Tribunal is satisfied that the incident constitutes a family violence offence for the purposes of paragraph 4(1) of Direction 110.
5. The Applicant has shown a lack of remorse and insight into his offending in relation to the Domestic Violence offence. This is demonstrated by the fact that, despite the serious and visible injuries to the victim, when questioned by the police the Applicant initially denied the assault[103] claiming that she had fallen down the stairs.
6. Further, the Applicant has failed to comply with the ICO.[104] Despite having been ordered to complete a domestic violence men's program and a substance abuse program as a condition of the ICO, the Applicant has failed to complete any programs as required.[105]
7. Finally, the Applicant has sought to minimise the impact of his family violence offending by contending that he and the victim, remain on 'good terms' and were friends following the offence.[106] On 8 July 2016, immediately after the Domestic Violence offence, the Applicant was subjected to a Temporary Domestic Violence Order (DVO) in respect of the victim, a condition of which was that the Applicant had no contact with her.[107] The Applicant then consented to a series of subsequent DVOs[108] which has resulted in a DVO being in placed between the Applicant and the victim since the date of the offence. On 25 March 2021, the Applicant consented to a further full non-contact DVO for a period of 5 years.[109] As such, the Tribunal has not accepted the Applicant's evidence that he remains on 'good terms' and that he remains friends with her. The fact that a DVO remains in place against the Applicant indicates that the Applicant remains a threat to the victim.
8. The Applicant claimed[110] that alcohol was a cause of the Domestic Violence offence. He states that he no longer consumes alcohol and as such it has been removed as a risk of him reoffending. However, while the Applicant claims to have stopped consuming alcohol in 2016, he continued to consume illicit substances and commit crimes of violence. While the Tribunal accepts that the Applicant has stopped consuming alcohol, in circumstances where the Applicant has continued to consume illicit drugs, the Tribunal is not satisfied that it is a sufficient protective factor to mitigate any future risk of harm to the Australian community posed by the Applicant.
9. Accordingly, the Tribunal gives this consideration heavy weight against revocation.

The strength, nature and duration of ties to Australia

1. Paragraph 8.3(1) of Direction 110 provides that the Tribunal must consider any impact of the decision on the non-citizen's immediate family members in Australia. In this case, the Applicant's immediate family are his father, stepmother, two brothers, two stepbrothers, and a stepsister.
2. Paragraph 8.3(2) of Direction 110 sets out factors to be considered in determining the strength, nature and duration of ties that the Applicant has to the Australian community, having regard to:

(a) how long the Applicant has resided in Australia, including whether the Applicant arrived as a young child, noting that:

1. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
2. more weight should be given to time the Applicant has spent contributing positively to the Australian community; and

(b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

Impact of the decision on immediate family members in Australia

1. The Applicant arrived in Australia in 1986 aged 20 and has resided in the country ever since (39 years).
2. The Applicant's immediate family in Australia consists of (G15, 78) his mother, two brothers and son.
3. The Applicant is single and does not have any minor children. The Applicant's son lives in Northern New South Wales.[111] The Applicant's evidence was his son is an Australia citizen and works as a surf photographer. His evidence was that the last time he had any contact with his son was in 2022. That is, prior to him being sentenced for the index offending. The Applicant claims he asked his son not to visit him in prison. The Applicant's evidence was that his son was starting a family but was not able to say if his son was married or had a child.
4. The Applicant claims his family are very close, particularly since the death of his father.[112] The Applicant claims his mother suffers from chronic emphysema[113] and provided a medical report as evidence of her health condition.[114]
5. Based on the Applicant's evidence the Tribunal accepts that he has ties to his family in Australia. As a result, the Tribunal has given moderate weight on this consideration in favour of revocation.

Length of time spent in Australia and positive contributions to the community

1. The Applicant arrived in Australia in March 1986 as an adult aged 20 years of age. As such, none of the Applicant's childhood was spent in Australia. The Applicant has been in the country 39 years.
2. The Applicant commenced offending almost immediately after his arrival in Australia. On 5 August 1986 he was convicted of 'assault police', approximately 6 months after his arrival. The Applicant did not provide any evidence of him being permanently employed while in Australia. His evidence was that due to a back injury suffered in or about 2009 he has been on a disability pension. Nevertheless, in the time he has been in Australia the Applicant has been convicted of approximately 50 offences, across 4 different states (Vic, Qld, NSW and WA).
3. Therefore, given the Applicant's criminal record, the Tribunal places little weight on the length of time the Applicant has resided in Australia in favour of revocation.[115]

Best interests of minor children in Australia

1. Paragraph 8.4 of Direction 110 requires decision-makers to determine, where relevant, whether revocation is in the best interests of any minor children in Australia. This provision applies only if the child is, or would be, under 18 years old at the time of the application.
2. In this case, the Applicant has not identified any minor children in Australia with whom he has a relationship. As a result, the Tribunal places neutral weight on this consideration.

1. Paragraph 8.5(1) of Direction 110 provides that 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. Further, paragraph 8.5(2) of Direction 110 provides that visa cancellation, refusal or non-revocation 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. Finally, paragraph 8.5(3) states that this expectation applies regardless of whether the Applicant poses a measurable risk of causing physical harm to the Australian community.
3. Critically, 8.5(4) states:

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

1. In FYBR v Minister for Home Affairs [2019] FCAF 185, the Federal Court stated that the paragraph imputed or ascribed to the whole of the Australian community is an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[116] Nevertheless, it remains an issue for the Tribunal as to the weight that should be given to this consideration in making its decision.[117] In doing so the Tribunal is required to consider the specific circumstances of the Applicant's case.[118]
2. The Respondent submits that the primary consideration weighs against revocation. The Tribunal notes that it is the expectation of the Australian community that a person would not be granted a visa or be allowed to continue to hold a visa in circumstances where their conduct raises serious character concerns. Such conduct includes acts of family violence, commission of a serious crime against women and the commission of a crime against a government representative or official.[119] In this case the Applicant has displayed such charter concerns by committing the Domestic Violence offence and the assault police offence. The Tribunal notes that the expectations of the Australian community apply regardless of whether the Applicant poses a measurable risk of causing physical harm to the Australian community.[120]
3. In addition, the Australian community expects non-citizens to obey Australian laws while in Australia, and that where a non-citizen has engaged in serious conduct in breach of this expectation the Australian community would expect the Government not to allow the non-citizen to remain in Australia.[121] In this case the Applicant has an extensive history of offending, including crimes of violence, weapons offences, drug offences, traffic offences, and dishonesty offences. In such circumstances the Applicant has breached the expectations of the Australian community by failing to obey the law.

1. In deciding whether there is 'another reason' to revoke the cancellation of the Applicant's visa, the Tribunal must consider the 'other considerations' listed in Direction 110. These considerations are not exhaustive.[122]

9.1 Legal consequences of decision under section 501 or 501CA

(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 noncitizen.

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

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

1. There is no evidence to suggest that Australia's international non-refoulement obligations are engaged. However, should the Tribunal affirm the decision under review, the Applicant will remain an unlawful non-citizen and, accordingly, will be liable for removal from Australia as soon as reasonably practicable, and will continue to be subject to a period of time in immigration detention.[123] The Tribunal gives this consideration little weight in favour of revocation.

1. Paragraph 9.2 of Direction 110 requires the Tribunal to consider any impediments that the Applicant may face if removed from Australia to New Zealand in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country).
2. The Tribunal notes that the Applicant is 59 years of age. He claims he suffers from some mental health issues,[124] a chronic lower back injury,[125] high blood pressure, a stomach hernia, and a bowel condition.[126] The documents provided to the Tribunal indicate that the Applicant underwent testing of his spine,[127] there is no independent evidence of the Applicant's health conditions as claimed. The Tribunal notes that New Zealand is a developed country. There was no evidence to suggest that the applicant would not be able to access mental health and medical services as required in New Zealand.
3. It was the Applicant's evidence that he is a qualified craniosacral therapist/practitioner.[128] While his evidence was that his initial claim that he could earn $500.00 for a 5-hour day[129] was a 'bit ambitious' he maintained that he would be able to earn 'a bit less' than the amount claimed. There was no evidence that the Applicant would not be able to apply his skills as a craniosacral therapist in New Zealand. In fact, there appears to be no obstacle to the Applicant applying his skills in New Zealand as he claims he would be able to in Australia.
4. Finally, the Applicant notes that there are no substantial language or cultural barriers between Australia and New Zealand. Nevertheless, the Tribunal accepts that the Applicant would be without his family support upon his return to New Zealand. Accordingly, the Tribunal accepts that the Applicant would initially face some practical, financial, and emotional hardship upon his return to New Zealand. However, as a citizen of New Zealand he will be eligible for social welfare payments in New Zealand, including the age pension from the age of 65. The Applicant will also be eligible for healthcare in New Zealand in line with the general citizenry, including medicinal cannabis if medically indicated.
5. The Applicant claims that he will have nowhere to live if he is returned to New Zealand.[130] However, as a New Zealand citizen he will be eligible for assisted housing in line with the general population.
6. The Applicant has extended family support in New Zealand,[131] although the Tribunal accepts his evidence that they are now elderly, and he has not had contact with them for many years. The Tribunal notes that both his mother and older brother are New Zealand citizens.[132] As such, they would be able to visit him to render support in the short-term as required. Finally, the applicant trained in Taichi and claims to have been involved in the WTBA. There was no evidence to suggest that the applicant would not be able to continue his involvement in Taiji and Taichi in New Zealand. Tribunal notes that sporting and cultural association often provide a network of support for individuals moving into a new environment or circumstances.
7. The Tribunal gives this consideration moderate weight in favour of revocation.

1. Paragraph 9.3 of Direction 110 provides that a decision-maker must have regard to any impact on Australian business interests if the non-citizen is not allowed to remain in Australia. There is no evidence that Australian business interests are enlivened, as the Applicant has not been employed since before his prison term. This consideration is not enlivened and carries neutral weight.

1. The Tribunal has considered the specific circumstances in relation to the Applicant. Given the Applicant does not pass the character test, the Tribunal is required to weigh the relevant factors to determine whether it is satisfied that there is another reason to revoke the cancellation decision.
2. The primary consideration is the protection of the Australian community. The Tribunal has found that the Applicant's offending was serious and for the reasons expressed above the Tribunal has found that the Applicant does pose an unacceptable risk to the Australian community. Having considered the expectations of the Australian community, the strength, nature and duration of the Applicant's ties to Australia, together with the other considerations of the legal consequences of the decision and the extent of impediments if removed, the Tribunal has found that the Applicant is not an acceptable risk to the Australian community. As such, the Tribunal is not satisfied that countervailing considerations outweigh the protection and expectations of the Australian community. Accordingly, the cancellation decision should not be revoked.

1. The Tribunal affirms the decision under review.

[7] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125; (2021) 285 FCR 187, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O'Bryan J).

[8] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 ('Plaintiff M1/2021'), [22]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ).

[9] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 [23].

[24] Migration Act 1958 (Cth) s501(7).

[30] Paragraph 8.1.1(1)(c) of Direction 110; MNLR and Minister for Home Affairs [2019] AATA 61 at [31], per Senior Member Tavoularis.

[32] S25, 133-134.

[33] Paragraph 8.1.1(1) of Direction 110.

[35] S68.

[36] S65.

[37] S66, S68.

[38] S64.

[39] S46 178-180; S71.

[40] S75 238.

[41] S75 237.

[42] S75 236.

[43] Paragraph 8.1.1(1)(b)(ii) of Direction 110.

[45] S38 161-170.

[46] S18, 94.

[51] MJNN and Minister for Home Affairs [2019] AATA 3205 at [54]-[55] per Senior Member Evans.

[52] Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 at [43]-[45] per Senior Member Tavoularis.

[54] Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673.

[55] Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673 at [95].

[56] Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 144 ALR 567, 578-579; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133, [81]; Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120, [63].

[57] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].

[58] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, [574].

[59] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, [575].

[60] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, [574]-[575].

[62] Paragraph 8.1.2(2)(a) of Direction 110.

1. [63] Paragraph 8.1.2(1) of Direction 110.

[64] S24 129.

[65] S38 161-170.

[66] S18, 94.

[74] S77 240-243.

[79] S77 240-243.

[86] G16, 86; G16, 87; S47, 182.

[88] S7, 31; S8, 34-55; S16, 80-85; S23, 125; S24, 129; S25, 138-144; ,S46, 178; G6, 35.

[89] S46, 180; S76, 239.

[90] S46, 180; S71, 232; S73, 235.

[92] S25, 133.

[93] S59, 208-210.

[99] S11, 59-61; S31, 150.

[100] S37, 158.

[103] S34, 154.

[105] G7, 40; S32, 151.

[107] S35, 155.

[108] S2, 7; S64, 224 - S68, 229.

[109] S2, 5; S64, 224.

[115] Paragraph 8.3(2)(a)(i) of Direction 110.

[116] FYBR v Minister for Home Affairs [2019] FCAF 185; 272 FCR 454, [66]-[67], [91], 101] and [104].

[118] Kelly [2022] FCA 396, [98]-[109] (Beach J).

[119] Paragraphs 8.5(2)(a), 8.5(2)(c) and of Direction 110.

[120] paragraph 8.5(3), 5.2(4) of Direction 110.

[121] paragraph 8.5(1) of Direction 110.

[122] SZRTN v Minister for Immigration and Border Protection [2014] FCA 303; (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.

[123] s 198 of the Act.

[127] S58, 207.