Section 501(3A) of the Act relevantly provides that:

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); or > > > > (ii) paragraph (6)(e) (sexually based offences involving a child); and > > (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

Section 501(6) of the Act relevantly provides:

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.)

A "substantial criminal record" is, relevantly, defined by s 501(7) of the Act as follows:

For the purposes of the character test, a person has a substantial criminal record if: > > (a) the person has been sentenced to death; or > > (b) the person has been sentenced to imprisonment for life; or > > (c) the person has been sentenced to a term of imprisonment of 12 months or more; > > ... > > (Original emphasis.)

Section 501CA of the Act relevantly 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. > > ... > > (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.)

Section 499(1) of the Act provides that:

The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about: > > (a) the performance of those functions; or > > (b) the exercise of those powers.

Section 499(2A) of the Act provides that "A person or body must comply with a direction under subsection (1)."

1. On 23 January 2023, the relevant Minister for the purposes of s 499 of the Act made a direction titled "Direction No. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA" (Direction 99). The commencement date for operation of Direction 99 was 3 March 2023. Upon its commencement, Direction 99 revoked the operation of "Direction no. 90 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA" (Direction 90).
2. Paragraph 5.1 sets out the objectives of Direction 99. Relevantly, para 5.1 provides:

1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa. > > ... > > (3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full­ time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case. > > (4) The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

3. Paragraph 5.2 of Direction 99 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke the cancellation of a visa under s 501CA of the Act. These principles are 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 non­citizens who have been participating in, and contributing to, the Australian community only for a short period of time. > > (5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non­citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years. > > (6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (sic) (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.

4. Paragraph 6 of Direction 99 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 99 (where such considerations are relevant) to determine whether the decision to cancel the visa under s 501(3A) of the Act should be revoked.
5. Guidance in relation to how the relevant considerations are to be taken into account is found in para 7 of Direction 99 which provides that:

(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. > > (2) Primary considerations should generally be given greater weight than the other considerations. > > (3) One or more primary considerations may outweigh other primary considerations.

In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations: > > (1) protection of the Australian community from criminal or other serious conduct; > > (2) whether the conduct engaged in constituted family violence; > > (3) the strength, nature and duration of ties to Australia; > > (4) the best interests of minor children in Australia; > > (5) expectations of the Australian community.

be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to): > > a) Legal consequence of the decision; > > b) extent of impediments if removed; > > c) impact on victims; > > d) impact on Australian business interests

1. The issue for determination is whether I should exercise the power in s 501CA(4)(b) of the Act to revoke the cancellation of the Applicant's visa under s 501(3A). This will require determination of:

(a) whether the Applicant passes the character test (as defined by s 501 of the Act); and > > (b) if he does not pass the character test, whether there is "another reason" why the decision to cancel the Applicant's visa should be revoked.

1. The application was heard on 5 December 2023. The Applicant appeared on his own behalf and the Minister was represented by Ms D Jones-Bolla. The Applicant, Ms Jessica Mortimer and Mr Michael Bainbridge gave evidence at the hearing.
2. The following documents were admitted into evidence:

(a) Applicant Submissions received on 21 November 2023 (A1); > > (b) Support Letter - Michael Bainbridge (undated) received 21 November 2023 (A2); > > (c) Support Letter - Karen Armour (undated) received 21 November 2023, signed copy received 1 December 2023 (A3); > > (d) Support Letter - H, received 1 December 2023 (A4); > > (e) Support Letter - Connie Hagart (undated) received 21 November, signed copy received 1 December 2023 (A5); > > (f) Support letter - Jessica Mortimer dated 19 November, received 21 November, signed copy received 1 December 2023 (A6); > > (g) Support Letter - Tiffany Willets (undated) received 21 November, signed copy received 1 December 2023 (A7); > > (h) Certificate of Completion - Alcohol and Drug (dated 25/10/2023) (A8); > > (i) Certificate of Completion - Buddhism for Beginners (dated 09/09/2023) (A9); > > (j) Certificate of Completion - Neuroscience for Parents (dated 25/10/2023) (A10); > > (k) Bundle of Articles - International Journal of Child, Youth and Family Studies; American Academy of Paediatrics; Frontiers in Psychiatry (Journals); US News; Guardian Australia (28/10/2019); UN Convention on Rights of the Child (A11); > > (l) Bundle of Documents received 27 November (A12); > > (m) Respondent's amended Statement of Facts, Issues and Contentions dated 28 November 2023 (R1); > > (n) Respondent's Section 501G Documents (R2); and > > (o) Respondent's Tender Bundle (R3).

1. Failure of the character test arises as a matter of law. The character test is defined in s 501(6) of the Act (see [9] above). Under s 501(6)(a) of the Act, a person does not pass the character test if the person has "a substantial criminal record". Section 501(7)(c) of the Act (see [10] above) provides that a person will have a substantial criminal record if they have "been sentenced to a term of imprisonment of 12 months or more...". The Applicant has been sentenced to a term of imprisonment of more than 12 months and therefore he has a substantial criminal record and, as a result, does not pass the character test.
2. The Applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution at the time of the cancelation of his visa on 14 November 2022. I am satisfied that the elements of s 501(3A) of the Act were satisfied and that the cancellation of the Applicant's visa under that section was valid.[10]
3. As the Applicant does not pass the character test, he cannot rely on s 501CA(4)(b)(i) of the Act for the decision to cancel his visa to be revoked. The issue for determination, therefore, is whether the power under s 501CA(4)(b)(ii) should be exercised on the basis that there is another reason why the decision under s 501(3A) should be revoked.

IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?

First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)

1. Paragraph 8.1 of Direction 99 provides that, when decision-makers are considering the protection of the Australian community, they:

(1)... 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. > > (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)

Paragraph 8.1.1 of Direction 99 relevantly provides:

1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following: > > a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community: > > > (i) violent and/or sexual crimes; > > > > (ii) crimes of a violent nature against women or children, regardless of the sentence imposed; > > > > (iii) 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: > > > (i)... > > > > (ii) 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; > > > > ... > > c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes; > > d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness; > > e) the cumulative effect of repeated offending; > > f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending; > > g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour). > > h) where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.

The Applicant's signed submissions dated 19 November 2023 (the Applicant's submissions)[11] made the following submissions relevant to this consideration:

(a) While the Applicant's criminal record is "extensive", most of the offences do not fall into the category of heinous or the most serious. > > (b) The Applicant disputes the Minister's lawyer's categorisation of the Applicant's offending as the worst offender type. His behaviour does not align with the offences viewed as very serious by the Australian Government and community, as outlined in Direction 99. > > (c) The Applicant cites Tohiariki and Minister for Immigration, Citizenship and Multicultural Affairs,[12] Pinder and Minister for Home Affairs,[13] and Fetelika and Minister for Immigration, Citizenship and Multicultural Affairs[14] and contends that his offending is not as bad as the applicants' offending in those cases. > > (d) Minor offences led to the cancellation of the visa.

The Minister's SFIC made submissions to the following effect:

(a) Insofar as the Applicant seeks to rely on the Tribunal decisions identified in [29(c)] above, the Tribunal is not bound by those decision which are, in any event, distinguishable on their facts. > > (b) In sentencing the Applicant on 24 March 2021, the magistrate said that the home burglary and commit conviction was serious in that the burglary was premediated, there was a 'very large amount of property stolen', there was substantial amount of planning that went into the offence, and there was 'invasion of privacy, a violation of security'.[15] > > (c) Despite being on a suspended imprisonment order for a similar offence, the Applicant committed a further home burglary and commit offence which resulted in the two-year sentence of imprisonment. The sentencing magistrate on 23 May 2022 said, 'you were placed on that order for a home burglary and commit, and you've now committed further offences of a similar nature'.[16] > > (d) The Minister referred to further comments made by the sentencing court and the statement of material facts before the court on the most recent home burglary and commit conviction. > > (e) Paragraph 8.1.1 of Direction 99 does not limit the range of offences that may be considered serious. The Applicant's driving offences, approximately 27 offences over a period of 15 years from 2006 to 2021(including drink driving, driving with illicit drug, reckless driving and unlicensed driving) should be considered very serious.[17] The Applicant also has multiple speeding offences. > > (f) The three driving offences and one receiving property offence in New Zealand[18] are classified as offences in Australia (para 8.1.1(1)(h) of Direction 99). > > (g) The Applicant has offended frequently. His criminal history records 47 offences committed over a 16-year period (para 8.1.1(1)(e) of Direction 99). His offending has also increased in seriousness (from no motor driver's licence to home burglary and commit) and can fairly be seen as cumulatively having had a deleterious impact on the Australian community (para 8.1.1(1)(e) of Direction 99). > > (h) Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy.[19] > > (i) The Applicant has committed offences while on bail and subject to a suspended sentence and continued to repeat the same types of offending namely, driving and burglary type offences. > > (j) The Applicant has also provided false or misleading information to the Department of Home Affairs (the Department). On incoming passenger cards dated 2 June 2012 and 24 May 2013, the Applicant circled "no" to the question "do you have any criminal convictions." He in fact had 19 convictions at the time in 2012 and 2013 including 4 offences of which he was convicted of on 16 March 2012 - approximately 3 months prior to signing the 2012 incoming passenger card. > > (k) The Applicant has also provided false information to police on three occasions resulting in four convictions on 23 July 2008 (1), 16 March 2012 (2) and 10 January 2018 (1).

The most serious of the Applicant's many offences are the home burglary and commit and burglary with intent offences. In sentencing the Applicant on the most recent of his convictions for home burglary and commit and related charges on 23 May 2022, Magistrate Andretich made the following findings and observations:[20]

With respect to the aggravating factors, you were on an order at the time you committed these offences. > > I'm going to cancel that order. I am going to trigger that sentence. And the reason I'm doing that is you were placed on that order for a home burglary and commit, and you've now committed further offences of a similar nature. So whilst you might have engaged initially, you didn't engage that well with the order when you were given an opportunity to do so, and you've not taken that up. Also, with respect to the home burglary, there were people upstairs inside at the time. > > And the potential for you to run into them and something worse to occur is there, and you were invading someone's home when they're entitled to the sanctity of their home, and they're entitled to be of the understanding that their belongings on the ground floor are going to be there when they get up in the morning. > > ... because the previous conviction with respect to the home burglary for which you were placed on a conditional suspended imprisonment order doesn't seem to have had a salutary effect with respect to you. > > ... > > ... one of the factors I didn't mention is when people commit thefts or home burglaries like this and steal property belonging to people, often that property is of a sentimental value and something that they can't replace. And that causes significant heartache on those people when property of that nature is stolen when they've had it locked up inside their house.

The facts of the home burglary and commit offence for which the Applicant was convicted and sentenced on 23 May 2022 were set out in the Western Australian Police Statement of Facts.[21] They were as follows:

At about 2.30am on the 13th of February 2022 [the Applicant] attended [redacted] with the intention of breaking in and stealing property. The storage units are built with a dwelling, used by the victim and his family and [are] used to store a mobile home and other business equipment. > > [The Applicant] could be seen by CCTV cameras walking around the mobile home (truck) parked at the front of the property. He forced entry to the truck by breaking open the lock by unknown means. He entered and searched the mobile home, upturning bedding and searching through cupboards. He spent some time in the truck removing a television from a wall mount. This television was taken to the property line. > > Once finished in the truck [the Applicant] opened a door to the alfresco area of the dwelling. He walked through the area to the rear glass sliding door which leads directly to the kitchen area. [The Applicant] used a tool to force the locked glass sliding door and entered the lower level of the dwelling. A one point [the Applicant] could be seen entering the office area, observing the CCTV cameras and retreating from the office. > > At the time, the victim and family members were sleeping in the upper level of the dwelling and were unaware [the Applicant] was in the house. [The Applicant] stole handbags, wallets and keys situated in the kitchen area. Contained in these bags included keys to the victims vehicle and "Master keys" to the front gates of the storage units. > > ... > > Total value of property being $1837.00

In cross-examination, the Applicant conceded the accuracy of the facts as set out in the Statement of Facts, but stated that he did not think that the residents were at home at the time.[22] 7. The Applicant was also taken the Police Statement of Material Facts for the offences, including burglary with intent, committed on 3 and 4 March 2022 for which the Applicant was also convicted and sentenced on 23 May 2022. He confirmed that the Statement of Material Facts was accurate. Relevantly, that statement said:[23]

Between 4.00pm and 8.00am between the 3rd and 4th of March 2022 the accused attended mobile workshops situated next to the Leschenault leisure centre, Leisure drive, Australind with the intention of breaking in and stealing property. The workshop is secured by a fence and owned and managed by the Shire of Harvey. It is used to store property and equipment for nearby work. > > The accused accessed the secure compound by unknown means and approached the locked shed. He removed the tech screws from the aluminium sheeting walls of the shed to gain access. The workshop is alarmed and as a result the accused was unable to steal property items from the premise.

8. The Applicant had convictions for home burglary and commit prior to the above two convictions. On 24 March 2021, the Applicant was convicted in the Collie Magistrates Court for home burglary and commit and stealing (see Annexure). Those offences were committed in July 2019. The facts of those offences were set out in the Police Statement of Material Facts as follows:[24]

Between the hours of 1600 on the 16th July 2019 and 1200 hours on the 17th July 2019 the accused has entered the property at [address], Collie. > > The accused was in company with one other person and made multiple attempts to enter the property through windows, doors and under the house, and has turned off the breakers for the rear security lights. > > The accused gained access to the property and has stolen multiple items to the value of $11,946.69.

9. The Applicant confirmed that the Statement of Material Facts was accurate.[25]

In sentencing the Applicant on these charges, Magistrate Young made the following findings and observations:[26]

I will impose a conditional suspended imprisonment order, but it has to be said that the facts are particularly serious. I mean, burglary is an inherently serious offence. Every burglary is premeditated. There's obviously a process of selecting a property, working out how to get in, working out what property to steal. > > Some premeditation is more extensive than others. This is one where there has clearly been a quite substantial amount of planning gone into this. You've gone there with duct tape, gloves. You've tried a number of different points of entry - it has been consistent - and then there has been a very large amount of property stolen. It hasn't been recovered, so a substantial loss to the homeowner and/or the insurance company. More important than the monetary value is the fact that there has been an invasion of privacy, a violation of security, and I haven't seen what property is said to have been stolen, but obviously quite substantial, and that may well have involved items of sentimental value. > > ... > > You went there in company with somebody else. I don't know much about that person. I know that she was a good deal younger than you. She was 22 years of age and you were, at the time, 34. So whilst she's not a babe in the woods, you were clearly a good deal older. Somebody should have realised that this was a particularly bad idea and a particularly nasty thing to inflict on another person, but if anyone was going to come to that realisation, you would expect the older, more mature person to come to that first. > > You don't have the benefit of prior good character. Albeit you haven't offended at this level previously, your record has been reasonably persistent over the course of a number of years. > > ... > > Burglary, as I said, is a very serious matter. It carries a sentence of 20 years imprisonment. In this court, you can deal with it by way of a sentence of three years imprisonment. And it's essential you understand, Mr Bainbridge, that, going forward - I mean, hopefully, any warning about this is completely moot because you're not going to commit any sort of burglary again at any time, but if you do commit any further burglaries, you will be, from this point forward and for your entire lifetime, a third-striker. If there are any further burglary offences from this point on - doesn't matter if there's a 20-year gap - then you will be a third-striker and you will get two years jail minimum. Do you understand that? > > APPLICANT: Yes.

10. Notwithstanding Magistrate Young's unequivocal warning as to the consequence of committing a further burglary, within less than 12 months the Applicant had committed two further burglaries.
11. The first of the Applicant's burglary convictions, a home burglary and commit, was committed by the Applicant on 25 September 2019. I note that the Applicant was arrested and taken into custody on 29 September 2019 where he stayed until 18 March 2020.[27] The Applicant was convicted and sentenced for this offence, along with numerous other related and unrelated offences, in the Collie Magistrates Court on 11 March 2020. In sentencing the Applicant for these offences, Magistrate Coleman said:[28]

There are six matters before the court, but the most serious of course is the home burglary and related stealing and the trespass that all occurred on 25 September 2019. > > ... > > I accept your position that at the time you were subject to a - well, you were operating under a drug addiction to methylamphetamine. > > ... > > ... I cannot impose a term of imprisonment unless I consider it is the only appropriate disposition, taking into account all of the other available sentencing options under the Sentencing Act. I have reached, of course, the point - where a term of imprisonment is the only appropriate disposition for the home burglary charge and the trespass charge,.. > > ... > > ... But also I need to send you the message that you can't behave in this way and invade people's homes. I appreciate that the property was returned to the owner, but that is not the point. The point is that you invaded the privacy of another person's home, and forever that person will be scarred by the fact that someone entered their property and stole their things. > > And, of course, the ongoing psychological impact that that has on a person whose home has been invaded - it doesn't need to really be said, but of course that person will have ongoing difficulties in feeling safe in their castle, so to speak. > > You are a man who clearly was struggling with a methylamphetamine addiction. You may not be struggling with that now, of course, because you've been in custody since September (indistinct) September last year. But, of course, once you are released back into the community, that temptation will remain. And you have not, from my materials before me, been given any opportunity to deal with that drug addiction and the underlying reasons why you chose to take illicit drugs in the first place. > > In addition, you've got very good supports, in terms of your parents, who are prepared to have you back to their home and support you in any rehabilitation that you might wish to do. And, of course, you are determined to return to a prosocial life.

12. As the Minister quite rightly noted, the Applicant also has an extensive and serious driving record, 27 offences over a period of 15 years from 2006 to 2021 (including drink driving, driving with illicit drug, reckless driving and unlicensed driving).
13. Assessing the seriousness of the Applicant's offending and other conduct against the considerations identified in para 8.1.1 of Direction 99 relevant in this case, I find that:

(a) Paragraph 8.1.1(1)(a) and (b) - none of the Applicant's offences is of the type described in these subparagraphs. I note, however, that both subparagraphs are expressed not to limit the range of conduct that may be considered very serious and serious respectively. > > (b) Paragraph 8.1.1(1)(c) - the Applicant has been sentenced to terms of imprisonment on six of his convictions with the term of imprisonment being suspended on three occasions. As the Minister noted, imprisonment is a last resort in the sentencing hierarchy (see [30(h) above]). While the terms of imprisonment were not insubstantial, they were at the lower end of the range of possible sentences and, in the case of the 23 May 2022 conviction for burglary, a mandatory minimum sentence, a result that the Applicant was warned of when he was being sentenced on his previous burglary conviction in March 2021 (see [36] above). > > (c) Paragraph 8.1.1(1)(d) - as noted above, the Applicant has been convicted of 47 offences committed over a 16-year period which, on any assessment, is frequent offending. His offending has also increased in seriousness (from no motor driver's licence to multiple home burglary and commit). There were periods in which the Applicant did not offend, or at least was not convicted. In particular, in the period from February 2009 to March 2012 no convictions were recorded against the Applicant. I asked the Applicant what changed in that period for the Applicant not to offend. His evidence was that he was working in Karratha and Port Hedland on a fly-in-fly-out basis in that period. He was during this period subject to drug testing at work, so he reduced his methamphetamine use.[29] There was also a shorter gap in 2020 the Applicant's explanation for which was that the Applicant was in prison and then living with his parents.[30] > > (d) Paragraph 8.1.1(1)(e) - As noted above, the Applicant's offending has been frequent. Of particular concern is the Applicant repeatedly committing the same, or same type of, offence notwithstanding clear and unequivocal warnings as to the consequences of repeat offending (see [36] and [37] above). The cumulative effect of the frequency and repetition of the same offences, with an increase in the seriousness of the offending, indicates that the Applicant is unwilling, or unable, to comply with the law. The other cumulative effect of the Applicant's offending has been the undoubted waste of money and police and justice system resources. The Applicant's extremely serious driving record also shows a contempt for the law. > > (e) Paragraph 8.1.1(1)(f) - the Applicant has provided false information to the Department on two occasions, on 2 June 2012 and 24 May 2013. On each occasion the Applicant had signed a declaration on an incoming passenger card that he had no criminal convictions. Both declarations were false. At the time that he made the declarations on the incoming passenger cards in June 2012 and May 2013, the Applicant had 19 criminal convictions. The Applicant sought to explain the false statement in 2012 as him grieving for his niece who had, at that time, recently passed away. Even if one were to accept that as an explanation for providing a false declaration on the June 2012 incoming passenger card, it cannot be taken as an explanation for making a similar false statement on the May 2013 passenger card. The fact is that the Applicant has provided false information to the Department on two occasions.

While this subparagraph refers to providing false or misleading information to the Department, as the Minister noted in his SFIC, the Applicant has also provided false information to police on three occasions, two of providing a false name and one of wilfully misleading police (convictions recorded on 23 July 2008 and 16 March 2012).

(f) Paragraph 8.1.1(1)(h) - the offences of which the Applicant has been convicted in New Zealand (see Annexure) would be offences in Australia.

1. The Applicant's criminal record is very serious. It is the case, as the Applicant points out, that he has not committed offences of the type described in para 8.1.1(a) or (b). However, as I noted above, the Direction makes clear that by providing examples of the sort of offences that the Australian Government and the community consider to be serious or very serious, the Direction is not limiting the range of conduct that may be considered to be serious or even very serious. As Magistrate Young observed in sentencing the Applicant in March 2021 on the home burglary and commit and stealing charges, burglary is a very serious matter and involved an "invasion of privacy, a violation of security" (see [36] above). Similar sentiments as to the seriousness and consequences to the victims of burglary were expressed by Magistrate Coleman in sentencing in May 2022: "you invaded the privacy of another person's home, and forever that person will be scarred by the fact that someone entered their property and stole their things" (see [38] above).
2. Somewhat disconcertingly, the Applicant considers his criminal record not to be serious. Notwithstanding his claim that he "do[es] not seek to trivialize [his] actions", the Applicant's submissions described his criminal offending as "mistakes" (page 2), "past missteps" (page 6), "past indiscretions" (page 7) and "past transgressions" (page 11).

Of particular concern is the reference in the Applicant's submissions at page 8 to the "the minor offences that led to the revocation of my visa". The Applicant's visa was cancelled on the basis of the 12-month sentence of imprisonment (to be released on a conditional suspended imprisonment order) imposed on the 24 March 2021 for the conviction for home burglary and commit, and the 12-month term of imprisonment imposed on 23 May 2022 for the further home burglary and commit offence committed in February 2022.

As the sentencing magistrates made clear, these are not "minor offences". 3. The sheer number of offences, the frequency of their commission, the fact that the Applicant continued to offend again and again notwithstanding clear and unequivocal warnings as to the consequences of such offending and the serious nature of certain of the offending, in particular the four burglary convictions, causes me to consider the Applicant's criminal record and his criminal offending as very serious.

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)

1. Paragraph 8.1.2 of Direction 99 relevantly provides:

(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. > > (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: > > > i) information and evidence on the risk of the non­ citizen re-offending; and > > > > ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

Nature of harm to individuals or the Australian community (8.1.2(2)(a))

1. The Applicant's submissions, insofar as they can be read to make submissions relevant to this consideration, were to the effect that he has developed a lot of empathy for the people from whom he stole and understands that driving as he did can endanger other road users and the public at large (page 5).
2. The Minister's SFIC contended that if the Applicant were to reoffend:

(a) by committing further driving offences, the nature of the harm that may result includes physical and psychological harm to members of the community. > > (b) by committing further burglary offences, the nature of the harm that may result includes psychological and financial consequences for the victims and others. > > (c) in general, there would be broader financial and other consequences to the justice and health systems.[31] > > (d) drug related offending is likely to cause significant psychological, financial and physical harm to members of the Australian community.[32] The health, social and economic harms of methamphetamine is also well-documented[33] and an increase in the harms associated with methamphetamine use has been reported.[34]

3. The nature of the harm, apart from the financial loss suffered by those who are burgled and robbed, was summarised by the sentencing magistrates as reproduced at [31], [36] and [38] above. I can do no better than adopt their statements as to the psychological harm done by the types of burglaries perpetrated by the Applicant.
4. I also take account of the sort of harm caused to individuals and the broader community by driving offences, particularly drink and drug related driving offences. I adopt the observations of Colvin J in JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs_[35]_ at [43]-[45] wherein, with apparent approval, his Honour referred to the Tribunal as having found that "driving offences could result in 'injury, death, and possibly psychological trauma'".
5. While I agree with the Minister's contention that the decision in Buntin is plainly wrong in excluding consideration of the financial cost to the Australian community through the waste of public resources and funds that would be caused by future offending, as the Minister rightly points out, until the principle stated at [102-3] of Buntin is overturned, I am bound by it. Accordingly, I exclude from my consideration those additional costs of law enforcement and an added burden to legal administration that would undoubtedly be incurred if the Applicant were to reoffend.
6. I find that the harm to individuals or the Australian community should the Applicant engage in the behaviour that he has in the past, in particular, the burglaries and stealing, is serious.

The likelihood of the non-citizen engaging in further criminal or other serious conduct (8.1.2(2)(b))

1. The Applicant's submissions were to the following effect:

(a) The Applicant has been working hard to change his life and has actively pursued education and therapy "to address my entitlement issues and understand the psychological factors behind my actions". > > (b) The Applicant has focused on his physical and mental well-being, hoping to rebuild his life positively. He now understands that being sent back to New Zealand would mean severing important ties that he has established over the years, including his role as a father, his "professional connections", and his support networks. > > (c) The Applicant has learnt from his mistakes and is committed to living a lawful and meaningful life. He is determined to make amends for his mistakes. > > (d) He has undertaken various courses "aimed at improving [his] cognitive abilities and practical skills". > > (e) His criminal record is "extensive"; however, most convictions do not fall into the category of heinous or the most serious offenses. He expresses remorse for the choices that he made. > > (f) His offending and behaviour was not of the type committed by Pinder, Tohiariki and Fetelika (referring to the applicants in the cases cited in [29(c)] above). > > (g) The Applicant has undertaken significant steps towards rehabilitation - [d]rawing inspiration from various proverbs, [he has] embarked on a journey to uproot the negative influences that led [him] astray". > > (h) He has actively contributed to the Australian community for over a decade through his work as a construction worker. > > (i) He has engaged in self-improvement, including completing the ten-day Dharma course and adopting a daily meditation practice. This transformative journey has provided him with clarity and equanimity, leading to significant improvements in his quality of life. > > (j) As he strives for redemption, he is "sober, detoxed, and committed to making amends for the missed moments in [his] children's lives". > > (k) He has the support of his ex-partner and the Australian community "as reflected in the changing stance of the immigration minister towards considering the length of residence in Australia as a top consideration for deportations".

2. The Minister's SFIC made contentions on this point to the following effect:

(a) There is no psychological opinion providing any professional risk assessment of the Applicant's likelihood of reoffending. > > (b) A classification review dated 29 November 2022 recorded that the Applicant was assessed as "general offending - not required: low risk/need".[36] > > (c) The Applicant has a lengthy criminal history in Australia and a concerning theme is apparent from his criminal history in committing driving offences and burglary offences multiple times. > > (d) The application for parole was not supported and the parole review report dated 28 March 2023 records[37] on the basis that: > > > (i) The Applicant had not provided a viable parole plan; > > > > (ii) His address was not confirmed; > > > > (iii) He had no employment; and > > > > (iv) No requirement for treatment program was noted.[38] > > (e) The sentencing judge on 11 March 2020[39] noted that the Applicant's addiction to methylamphetamine was a cause of his offending, however, the Applicant's rehabilitation is limited to one online meeting on 23 July 2023 in the Smart Recovery Program.[40] > > (f) The Applicant has also undertaken a 4.8-hour course by the Brain Academy titled Alcohol and Drug Addictions: psychology on 25 October 2023; and a pass parenting program.[41] The Applicant also submitted that he has completed a ten-day Dharma course, has adopted a daily meditation practice and has submitted a certificate of completion for Buddhism for Beginners dated 9 September 2023. There is no evidence as to the outcome of these courses in relation to the Applicant, how the courses mitigate the risk of future offending from these factors or how the above courses have mitigated the risk of future drug use. > > (g) The parole review report dated 28 March 2023 indicated the Applicant has been subjected to six substance tests during his current sentence and that three returned positive results but were deemed within the window period. The other three returned negative results.[42] > > (h) The Applicant has continued to offend despite fines, licence suspensions, bail orders, and suspended imprisonment sentences such that the Tribunal should take little comfort in the Applicant's claims that he will not reoffend again and maintain his sobriety. > > (i) The Applicant claims that his offending is also the result of 'hanging around with the wrong crew' in Collie[43] and that he intends to move to Narrogin if released to be where his kids live.[44] Collie is about one hour from Narrogin. It was open to the Applicant to relocate in the past and the geographical distance between Collie and Narrogin is not so great to be an effective deterrent. > > (j) Any factors that the Applicant relies on now as protective factors such as his children and family, were also present in the past and did not prevent the Applicant from offending. > > (k) While the Applicant has expressed sentiments of remorse, his insight is limited given he claims that it would have been a lesser sentence of imprisonment if it was not for a mandatory sentence being imposed on him.[45] The Applicant relevantly breached a suspended sentence (imposed for a burglary offence) when he committed a further burglary offence.

3. At the hearing I asked the Applicant how, given his extensive criminal record, I could be satisfied that he would not offend in the future. His answer was:[46]

Well, I'm doing my best to get my head around these things. My kids are going to be my main goal to - just to do right by them. I've been to a lot of people too, and my family, my brother, they've brought me over, expecting me to do good and so forth, my parents at the time. I just want to do - I just want to set all that right. > > And every time I've been in prison and I've tried to do courses to do it, to actually try and - from this imprisonment, try and switch my life around. I've been moved up to minimum which didn't allow immigration - people in immigration are allowed to go to the medium prison to do the courses and so forth. I'm really trying to give it a good old crack, and just - yes. I want to do the best I can for my kids now. It's just - I've seen the things I'm missing out on. With the last documents I sent you yesterday. My kid's just going to school, just starting school. And my son, he's had his - missed the first day of school.

4. I also asked the Applicant where he would live if he were to be released. His evidence was that he would initially live with his ex-partner Ms Mortimer, their children and her older child, and Ms Mortimer's current partner. The Applicant's evidence was that he would seek to return to working in scaffolding. Ms Mortimer's evidence was that there were good employment prospects in Narrogin (not specifically in scaffolding) and that her partner could assist in the Applicant finding work, most likely as a farmhand.[47]
5. The Applicant's evidence was that he started using methamphetamine when he was 19 or 20, shortly after he arrived in Australia (the Applicant arrived in Australia in August 2006), and that he continued using methamphetamine up to shortly before he went to prison in March 2022.[48] In relation to his methamphetamine use, his evidence was that he could go for months without using but then he would "go a few months with it" during which periods he would use every second or third day. His cannabis use was similar and was also impacted by his working as he would be subject to drug testing at work. His evidence was that when he was released from prison in March 2020, he lived with his parents during which time he did not use methamphetamine. He did, however, return to using methamphetamine and committed the home burglary offences in February and March 2022 when he was using methamphetamine.
6. Letters of support were provided by friends of the Applicant. These letters of support bore similarities in the language used. In cross-examination, the Applicant was asked about the similarity of the letters provided by Karen Armour, Connie Hagart, Jessica Mortimer, Tiffany Willets and the Applicant's brother, Michael Bainbridge. The Applicant's evidence was:[49]

I sent them a couple of ones that I downloaded off the internet and so forth. I sent them, like, a template.

7. The language of those letters is similar to the language used by the Applicant in his submissions as noted in [42] above. Ms Armour described the Applicant's offending as "transgressions", Ms Hagart described it as "transgressions" and "mistakes", Ms Mortimer described it as "mistakes", Ms Willets described it as "transgressions" and "mistakes" and Mr Michael Bainbridge described the Applicant's offending as "misconduct". As with the Applicant's submissions, the language downplays the seriousness of the Applicant's very extensive criminal record.
8. The letters of support also referred to the Applicant as having undergone "significant personal growth" (Michael Bainbridge), a "remarkable transformation...during his time in prison" (Ms Armour), a "significant transformation during his time in prison" (Ms Hagart) and "profound positive changes" (Ms Willets). None of the authors, however, stated how they have observed that which they describe or how, in real terms, what they describe is manifested. While I do not doubt the authors' sincerity and their obvious regard for the Applicant, such general and subjective statements do not provide any significant degree of evidence that the Applicant has been rehabilitated and will not offend in the future as he has in the past. While a person is not destined to repeat history, a person's past conduct is a guide to future conduct in similar circumstances unless there has been a change in the psyche or the personal circumstances of the person. Justice Hespe observed in BGW22 v Minister for Immigration, Citizenship and Multicultural Affairs_[50]_ that:

In undertaking the statutory task, the Tribunal must necessarily have regard to the facts and circumstances which it considers bear on the prospects of future behaviour. The assessment of future conduct requires a consideration of the Applicant's character. Past conduct may provide a guide as to likely future conduct. As has been recognised in the context of a fear of persecution (by the High Court in Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 at 575 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ)), determining what is likely to happen in the future will invariably require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future (see also Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 255 FCR 81 at 91 [36] (Charlesworth J, Flick J concurring at 83 [1], Perry J concurring at 83 [2]).

9. In the present case, I am not satisfied that there has been any substantial degree of rehabilitation undertaken by the Applicant. There is no evidence that the courses to which the Applicant refers (see [51] above) have been of value. I asked the Applicant about the courses for which he had produced certificates issued by Udemy: A8 - "Alcohol and Drug Addictions: Psychology", A9 - "Buddhism for Beginners" and A10 - "

Neuroscience for parents: How to raise Amazing kids". The Applicant's evidence was that all of these courses were undertaken online. As I advised the Applicant at the hearing, I have never heard of Udemy. The Applicant conceded that he "didn't really get much from them"[51] The Applicant did say that he was trying to do new online courses while in immigration detention and that:[52]

So I've committed myself to that, so I'm moving up as I go, because it's - rehabilitation is - I guess it's - it don't [sic] happen just like that. It kind of - I've got to work on it, work on it, and I'm just trying to work on where I start and how to move on and so forth like that.

10. I asked the Applicant what enquiries he had made as to courses available for him on release, particularly in the south-west of the State. His evidence was that he had "googled a couple of things in Narrogin".[53]
11. The Applicant's rehabilitation has been scant. Perhaps with the exception of the single online session with SMART Recovery Australia,[54] the Applicant has not undertaken relevant, recognised programs which could be accepted as reducing his risk of offending as he has in the past to any significant degree. The Applicant has a serious criminal record and a long-standing issue with drugs, in particular, methamphetamine. He has had numerous warnings and "second chances". The warning that Magistrate Coleman gave the Applicant in March 2020 (see [38] above) could not have been any clearer. Notwithstanding that warning, the Applicant reoffended multiple times. The community and family supports and incentives that the Applicant points to as lessening his risk of reoffending, were all present when the Applicant offended. There is nothing to indicate that those supports and incentives will be of any greater effect than they were in the past in preventing the Applicant from offending.
12. I assess the Applicant as a high risk of re-offending.
13. The harm that would be caused should the Applicant engage in the offending behaviour that he has in the past is serious (see [50] above). This, coupled with my assessment of the risk of the Applicant re-offending being high causes me to consider that this first primary consideration, the protection of the Australian community, weighs heavily against revocation of the cancellation of the Applicant's visa.

Second primary consideration: Family violence committed by the non-citizen (para 8.2)

1. The Minister's SFIC noted that there is no evidence to suggest that the Applicant has committed any family violence and contended that this consideration weighs neither in favour nor against revocation of the original decision. I agree.

Third primary consideration: The strength nature and duration of ties to Australia (para 8.3)

(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 the right to remain in Australia indefinitely. > > (3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely. > > (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: > > > (i) Considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and > > > > (ii) more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and > > > > (iii) less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.

2. The Applicant's submissions referred to an ABC News report which, according to the Applicant, stated that:

"The immigration minister has ordered his department to soften its stance on deporting New Zealanders convicted of serious crimes, saying how long they have lived in Australia should now be made a top consideration."

3. The Tribunal is bound to follow Direction 99 (s 499(2A): see [13] above), not orders by a Minister reported to have been given to the Department. I will, as I am obliged to do, apply Direction 99 as it is drafted.
4. The Applicant's submissions relevant to this consideration were to the following effect:

(a) The Applicant arrived in Australia in 2006 and has contributed to the community through his work as a scaffolder. > > (b) The Applicant cites Tohiariki and submits that "a substantial period of residency in Australia can forge unbreakable ties", > > (c) The Applicant has "faced the consequences of [his] actions" and has, over the past three years, "remained on the path of rehabilitation and sobriety". His conduct in prison and immigration detention is proof of his commitment to change. > > (d) He has learned from his mistakes and has endeavoured to reform himself, propelled by the desire to reunite with his children and contribute constructively to society.

5. The Minister's SFIC made submissions to the following effect:

(a) The Applicant has lived in Australia for 17 years, arriving at the age of 19. > > (b) The Applicant has been employed as a scaffolder since 2008. > > (c) While the length of time the Applicant has resided in Australia is a factor that must be brought to account (para 8.3(4)(a)(i)), it should be given limited weight in the Applicant's favour in circumstances where he was not ordinarily resident in Australia during his formative years (para 8.3(4)(a)(iii)) and where he began offending in May 2007 within nine months of arriving in Australia (para 8.3(4)(a)(iii) of Direction 99). > > (d) The Applicant has two minor biological children and one minor daughter of his ex-partner, Ms Mortimer. The Applicant's mother, father and one brother live in Australia.[55] > > (e) Other than the Applicant's brother, Michael Bainbridge, none of the Applicant's immediate family has provided a statement. > > (f) Statement have been provided by other members of the community. The Applicant has also declared ten cousins, eight uncles/aunts and two nieces/nephews in Australia. However, none of these people has provided a statement. > > (g) This consideration should be given minimal weight.

6. Paragraph 8.3(1) of Direction 99 requires the consideration of "any impact of the decision on the non-citizen's immediate family members in Australia...". The only member of the Applicant's immediate family who provided evidence was his brother, Michael Bainbridge.[56] In his statement, Mr Michael Bainbridge made referred to:

...the profound impact William's deportation would have not only on him but also on our entire family, including his three beloved children [H], [A], [M] and our community. > > William, or Will as we fondly call him, has been a steadfast pillar of support for me and my family throughout the years. His kindness, love, and unwavering commitment have been invaluable, especially during my trials, tribulations, and triumphs. Will has been an integral part of my life, providing emotional and moral support. Moreover, he has been an exceptional uncle to my children, [J] and [S], who adore him deeply. > > ... Deporting him would not only separate him from his children but also sever the vital support system they need to thrive. Will's absence would create an irreparable void in our family, affecting the emotional well-being of his children and all of us who love him dearly.

7. At the hearing, Mr Bainbridge confirmed that his children, J, who is 16 years old, and S who is 14 years old, live with him in Queensland. His evidence also was that after the Applicant's "little mishap" (which I assume to be a reference to the Applicant's most recent arrest), which caused him to be "quite disappointed", he did not have much contact with the Applicant. According to Mr Bainbridge, the Applicant has then "popped up on Messenger" and he has now been in contact with the Applicant for the last "eight months or something".[57]
8. Mr Bainbridge's evidence at the hearing was that he, and therefore the Applicant, have family in New Zealand. His evidence was that:[58]

Yes. We got all our family there, actually. My mother and father, they just moved home.

9. His evidence also was that he was sure to travel to New Zealand again as all of his family was there. In relation to the frequency of the Applicant seeing Mr Bainbridge and his children S and J, Mr Bainbridge agreed that he and the children had not lived in the same state as the Applicant since 2014 and that they would see the Applicant once or twice a year when they came to Western Australia to visit his parents. The Applicant had never come to Victoria (where Mr Bainbridge lived with his children) or to Queensland where he now lives with his children to visit.
10. I asked Mr Bainbridge whether he could expand on the comment in his letter of support that the Applicant being deported "...would create an irreparable void in our family" (see [70] above). His evidence was that the Applicant had been a big part of his children's lives when they lived in Western Australia but that for the last 10 years, he had not been a big part of their lives, or at least not as big a part as they would have liked.[59]
11. I also asked Mr Bainbridge to explain the comment in his letter that the Applicant's "...former partner relies heavily on him". His evidence was that that was a reference to the "emotional support" that the Applicant provided for his two children who live with Ms Mortimer. He did say, however, that he and Ms Mortimer do not stay in touch as they "have a troubled past".[60] I then asked how, if he had no contact with Ms Mortimer, he could comment on the level of support that the Applicant provides to her and her children. Mr Bainbridge's answer was:

Well, William's family is pretty much what I'm kind of referring to there, I suppose. My mother, she helps him so much and - financially, and William's just been there for those kids the whole time as well. That's what I'm trying to - that's what I'm kind of trying to say there.[61]

12. On cross-examination by Ms Jones-Bolla following on from the above exchange, Mr Bainbridge stated that his mother had financially supported the Applicant when "he was put inside a lot". The Applicant's parents would also provide financial support to the grandchildren by "buying shopping for the kids".
13. Ms Mortimer's letter of support[62] stated that, while she and the Applicant "had grown apart", they were now in a "good place, committed to co-parenting" their children. She said that in the Applicant's absence, she was facing challenges and this the children miss him dearly. She said that, as the Applicant is Māori, "it is crucial for our children not to be confused about their identity". Other than the above general comments, Ms Mortimer did not say what the impact the Applicant being deported would have on their two children, or her daughter H.
14. Ms Mortimer's evidence at the hearing was that she and the Applicant had started their relationship in 2017[63] and that the relationship had ended in 2019. Their son, M, was born in 2018. Her evidence was that the children miss their father and that her daughter A, "is definitely struggling not seeing her dad".
15. As noted at [56] above, friends had provided letters of support. Also as noted above, those letters were similar not only in the unusual language used, but also in content. They all expressed views as to the character and qualities of the Applicant, how much his children relied on him, how he was a caring and loving father, and what a true friend he is. While the letters, in very general terms, referred to the profound impact that the Applicant being deported would have on them and his children, none of the letters provided any specificity to that claim. Several referred to the Applicant as providing financial support to Ms Mortimer and his children. There is little evidence to support that claim[64] and Ms Mortimer's evidence was that she and her partner supported the three children including the Applicant's two children. I also note Mr Bainbridge's evidence that the Applicant's parents provided financial support to the children.
16. I accept that the Applicant loves his children and that during his relationship with Ms Mortimer he treated Ms Mortimer's daughter H as his child, there is little evidence that the Applicant has played a significant financial role in supporting his children or H. Similarly, there is little evidence, other than very general statements by some of those who provided letters of support, as to what impact the Applicant being deported would have on his children or those who gave statements. Certainly, there is no evidence that the Applicant provides financial or other material support to any of those who have given letters of support.
17. I do accept, as evidenced by the fact of the number of letters of support provided, that the Applicant does have social links with members of the Australian community outside his direct family.
18. I give weight to the fact that the Applicant has lived in Australia for 17 years. He did, however, arrive as an adult and did start offending very shortly after he arrived (see Annexure). I also accept that the Applicant has positively contributed to the community through his reasonably regular work as a scaffolder and the payment of taxes, however, that contribution is diminished by the seriousness and frequency of the Applicant's offending and that fact that it started so shortly after his arrival in Australia.
19. While this consideration, strength, nature and duration of ties to Australia weighs in favour of revocation of the cancellation of the Applicant's visa, for the above reasons only minor weight can be given to it.

Fourth Primary Consideration: Best interests of minor children in Australia affected by the decision (para 8.4)

(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. > > (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.

2. The Applicant's submissions identify his two children and H, the daughter of Ms Mortimer, as being relevant to this consideration. Similarly, in the Personal Circumstances Form provided to the Department,[65] the Applicant identified those three children as relevant to this consideration. While that Applicant identified that he had two nieces/nephews,[66] neither his submissions in these proceedings nor the Personal Circumstances Form identified his brother Michael's two children, or any other children as being relevant to this consideration.
3. The Applicant's submissions, unfortunately, included a lot which is irrelevant to this and the other considerations as particularised in Direction 99. Insofar as the Applicant's submissions raised relevant matters and arguments, they were to the following effect:

(a) He has two biological children with Ms Mortimer. > > (b) He has "wholeheartedly embraced" Ms Mortimer's daughter from a previous relationship as his own. Their relationship has flourished, and he maintains regular contact with her through Messenger. > > (c) The suggestion that the Applicant can mentor his children from New Zealand overlooks the complexities of maintaining meaningful relationships over long distances.[67] > > (d) During his time in Australia, the Applicant actively participated in the upbringing of his children. He took on responsibilities such as babysitting, providing financial support, and offering moral guidance. > > (e) All clinical studies show how relevant a father is to their children especially their daughters. Being around his children is going to help cushion them from sexual predators. > > (f) Australia is a party to the Convention on the Rights of the Child, under which the best interests of the child shall be a primary consideration. > > (g) There is no evidence that the Applicant is a danger to his children. His good rapport with his children shows why they need him in Australia. > > (h) As a proud Māori, the Applicant wishes to stay with his children and educate them on their culture and heritage. > > (i) The Applicant has been talking to the children using Messenger, but it is not the same as being around them. > > (j) The separation from Ms Mortimer is amicable. He supports Ms Mortimer as much as possible and looks after the children and helps out financially. > > (k) The findings of the research article "Adverse Academic Impacts" (Frontiers in Psychiatry, 2020)", highlights the adverse effects of parental deportation on children. > > (l) The suggestion that the Applicant's children could visit him in New Zealand overlooks that, as Ms Mortimer works, the children would only be able to visit in school holidays which would deprive him of their company for lengthy periods and would also place a financial burden on him and Ms Mortimer. > > (m) Ms Mortimer's letter evidences how much he supports his children.[68]

4. The Minister's SFIC made the following contentions:

(a) The Minister accepts that it is open to the Tribunal to find that revocation of the cancellation decision is in the best interest of the minor children but contends that any weight in favour of revocation of the cancellation decision should be tempered for the following reasons:

In respect of the Applicant's two biological children;

(i) The Applicant's relationship has been marked by a lengthy absence given he has spent time in custody and immigration detention since 10 March 2022 (para 8.4(4)(a) of Direction 99). Even prior to his incarceration, the Applicant's contact with the children was limited to the weekends and school holidays.[69]

(ii) It is unlikely that the Applicant would play a positive parenting role in the future given his criminal history and previous drug use (para 8.4(4)(b) of Direction 99).

(iii) There is no independent evidence of the effect that any separation would have on the children, nor is there any obvious impediment to the Applicant having contact with them via electronic means as he does at present if he were to return to New Zealand -. It may also be open for the children to travel to New Zealand during school holidays (paras 8.3(4)(d) and (f) of Direction 99). To the extent the Applicant relies on an extract of an article in his submissions titled "Adverse Academic Impacts" (Frontiers in Psychiatry, 2020), that article has no application in this matter because it is based on a study from 2013, where 303 Mexican male nationals completed a questionnaire at a free clinic in Tijuana, Mexico. A general article does not assist the Tribunal in determining the effect that any separation would have on the children and it remains that there is no independent evidence of the effect that any separation would have on the children relevant to this matter.

(iv) To the extent the Applicant relies on the article titled "Fathers' Roles in the Care and Development of Their Children: The Role of Pediatricians" by the American Academy of Pediatrics, this is not independent evidence of the effect that any separation would have on the children in the circumstances of this matter especially in circumstances where the Applicant has a criminal history and he has been separated from them.

(v) The Applicant's submission that 'It would be naïve for me to say that I would be able to protect her from any possible harm, but it is objective that my presence would decrease the likelihood of harm' has no evidentiary basis. To the contrary, the Applicant has limited contact with his children and it is unlikely that the Applicant would play a positive parenting role in the future given his criminal history and previous drug use.

(vi) In relation to the United Nations Convention on the Rights of the Child treaty, it is not in dispute that Direction 99 requires the Tribunal to consider the best interests of minor children in Australia and make a determination about whether non-revocation under s 501CA is, or is not, in the best interest of a child affected by the decision.

(vii) The children's mother, Ms Mortimer, fulfills the parental role and there is no evidence that she does not do so adequately.

(viii) To the extent the Applicant provides financial support to these children (there is limited evidence of this and nothing beyond the assertions by the Applicant and Ms Mortimer) but no obvious impediment to the Applicant continuing to do so if he were to return to New Zealand.

In respect of Ms Mortimer's daughter, H:

(i) The Applicant's relationship with H has been marked by a lengthy absence given he has spent some time in custody and immigration detention since 10 March 2022 (para 8.4(4)(a) of Direction 99). The Applicant's contact with H prior to incarceration is also not clear given that the relationship with Ms Mortimer, H's mother, has ended at some point.

(ii) It is unlikely that the Applicant would play a positive parenting role in the future given his criminal history and previous drug use (para 8.4(4)(b) of Direction 99).

(iii) There is no independent evidence of the effect that any separation would have on her, nor is there any obvious impediment to the Applicant having contact with her via electronic means if he were to return to New Zealand (paras 8.3(4)(d) and (f) of Direction 99). There is also no evidence of H's biological father's views or what role her biological father has in her life.

(iv) H's mother, Ms Mortimer, fulfills the parental role and there is no evidence that she does not do so adequately.

1. The Applicant's evidence at the hearing was that the three children live with their mother in Narrogin. Prior to his imprisonment and immigration detention he would see the children on weekends. He would pick his two biological children up on Thursday from Narrogin and drive them back to Australind, where he was living, and return them to Narrogin on Sunday. H would join them "every so often".[70] He would also have the children for a week in school holidays.[71] The Applicant stays in touch with the three children through Messenger.[72]
2. In addition to the matters set out in [77] above, Ms Mortimer's statement[73] stated that the children were eager to have their father back and she was "optimistic about the positive impact it will have on their lives".
3. Ms Mortimer's evidence at the hearing confirmed that she was happy to have the Applicant live with her and the children until he found accommodation of his own.[74] Her evidence was that she took good care of the three children, made sure that they were fed, clothed and went to school. She said that she would describe herself as a good mother.[75] She also confirmed that the Applicant stayed in touch with the children through Messenger.[76]
4. Both the Applicant and Ms Mortimer referred to the Applicant's Māori heritage and it being important that his children not be confused about their identity. Neither the Applicant nor Ms Mortimer explained what that meant, why it was critical that the Applicant remain in Australia, or how his being deported would more adversely affect the Applicant's two natural children because they have Māori heritage. I have placed no weight on those claims by Ms Mortimer and the Applicant.
5. Considering the factors identified in para 8.4(4) of Direction 99:

(a) Subparagraph (a) - the Applicant's relationship with his natural children is obviously parental. While his relationship is, or at the least was, close with H, it is not a parental relationship. In relation to all of the three children, there have been periods of absence while the Applicant has been in prison and detention. As set out in [88] above, before he was arrested, the Applicant did not live with the children, but did have regular weekend and school holiday contact, at least with his two natural children. I accept that the Applicant's contact with his children and H has been meaningful. > > (b) Subparagraph (b) - given the Applicant's serious criminal record and long-standing history of drug abuse and my assessment that he is a high risk of reoffending and returning to drug abuse, it is difficult to see the Applicant playing a positive parental role. I do accept, however, that the children would still benefit from the Applicant having the same, or similar, contact with them that he had before his arrest. I also accept that it is likely that Ms Mortimer would benefit from the Applicant sharing, albeit only occasionally, the parenting role. > > (c) Subparagraph (c) - there is no evidence that, other than absences caused by the Applicant's imprisonment and visa cancellation, his prior conduct has had an adverse impact on the children. If the Applicant were to return to the same level of drug abuse (and offending) that he has in the past, it is likely that there would be an adverse impact on the children by, as a minimum, further absences due to imprisonment/detention. > > (d) Subparagraph (d) - as the Minister correctly noted, there is little evidence as to the impact that the continued separation would have on the children. I place little weight on the various studies and supposed academic papers to which the Applicant referred in his submissions for the reasons identified by the Minister's SFIC (see [87(a)(iii) and (iv)] above). I accept that the three children, more particularly the Applicant's natural children, will be upset by a continued physical separation from the Applicant. It is clear that the Applicant can, as he does now, stay in touch with the children through electronic means. > > (e) Subparagraph (e) - In the case of all three children, Ms Mortimer fulfils the parenting role. > > (f) Subparagraph (f) - A letter was provided by Ms Mortimer's older daughter H.[77] which, while it did not specifically say that it was her desire that the Applicant stay, it would be fair to assume that that would be her view given the content of the letter. The views of the other two children, other than Ms Mortimer's reference to them missing the Applicant, is not known, however, I accept that they miss their father and would want him to stay and be able to have physical contact with them. > > (g) Subparagraphs (g) and (h) - there is no evidence to suggest that either subparagraph is relevant.

6. I find that the best interests of the Applicant's two natural children and H, would be served by the Applicant being allowed to remain in Australia. However, given that the relationship with H is non-parental, given that others presently fulfil the parental role for the three children and given the question over whether the Applicant would play a positive role in the lives of all three children, only moderate weight should be given to this consideration.

Fifth primary consideration: Expectations of the Australian community (para 8.5)

1. Paragraph 8.5 of Direction 99 relevantly provides:

(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia. > > (2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind: > > (a) acts of family violence; or > > ... > > (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; > > ... > > (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.

2. The Applicant's submissions relevant to this consideration were to the following effect:

(a) The Applicant has not been convicted of offences of the type identified in para 8.5(2) of Direction 99. Others who have committed such offences have been granted visas. > > (b) The Applicant has actively pursued self-improvement and rehabilitation through various courses, demonstrating his genuine commitment to positive change. > > (c) The Applicant has embarked on a journey of self-discovery, incorporating meditation and the study of Buddhism. > > (d) He has undertaken courses instrumental in enhancing the Applicant's ability to contribute positively to the well-being of his family. > > (e) He expresses remorse to his victims. > > (f) The Applicant quotes various proverbs and biblical references in support of his assertions.

(a) The Applicant's submissions, in effect, ask the Tribunal to undertake the task cautioned against by Charlesworth J in FYBR v Minister for Home Affairs[78] at [67]. > > (b) The Applicant contends that he has not been charged with the kinds of offences described in paragraph 8.5(2) of Direction 99. There is nothing which suggests that all, or most, of a person's offending needs to be of the nature of those described in paragraph 8.5(2) of Direction 99, for the Applicant's conduct to raise serious character concerns of a kind that the Australian community would expect that non-revocation can and should be the outcome in this case. > > (c) Observing the norm stipulated in paragraph 8.5(1), and in accordance with Principles 5.2(2)-(5), the Australian community would expect that the Applicant should not hold a visa on account of his serious criminal offending.

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 in para 8.5 of Direction 99, without independently assessing the community's expectations in the particular case. The principles set out in para 5.2 of Direction 99, as set out in [16] above, are also relevant to this consideration.
5. In FYBR the Full Court of the Federal Court of Australia considered the operation of the corresponding provisions in Ministerial Direction No 65 (Direction 65), a predecessor to Direction 90 and Direction 99: see [14] above. The relevant provisions of Direction 99 contain generally similar wording to the corresponding provisions in Direction 65. Some provisions, in particular those dealing with the expectations of the Australian community (para 8.5(1)), were expanded by Direction 90 and subsequently incorporated into Direction 99.
6. In Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs_[79]_ I summarised the effect of the Full Court's judgment in FYBR, 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 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.

7. Justice Stewart in FYBR found at [89]-[91]:

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. > > (Emphasis omitted.)

8. In FYBR Justice Charlesworth observed at [75] and [79]:

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. > > (Emphasis omitted.)

9. That "narrow view" found by Perry J at first instance in FYBR v Minister for Home Affairs,[80] approved by the Full Court in FYBR, is reflected in the amendments to the Ministerial Direction which resulted in the additions in para 8.4(1) of Direction 90 subsequently carried over into para 8.5(1) of Direction 99. Due to the application of the "norm", as it is now referred to in para 8.5(1), and the deeming operation of the corresponding Direction as found by the Full Court in FYBR, the starting point is that this primary consideration will weigh against the revocation of the cancellation of the person's visa.
10. The operation of this provision was considered by the Full Court in Minister for Immigration, Citizenship and Multicultural Affairs v HSRN.[81] While the Full Court in HSRN was considering Direction 90, the wording of the corresponding provisions in Direction 99 is the same. Relevantly, the Full Court found at [40] and [44]:

It is to be observed that s 499(2A) of the Act, as mentioned, provides that a person or body "must" comply with a direction given under s 499(1) - reference is expressly made to that requirement in para 5.1(4) of Direction No. 90. Also, the Direction provides that the decision-maker "must", amongst other things, consider the expectations of the Australian Government as expressed in the Direction (para 5.2(4), 5.2(5) and 6 read with 8.4(4)), and that expression of the expectations applies as a "norm" (para 8.4(1)). In that context, "should" in para 8.4(4) is indicative of a requirement that must be followed; it is mandatory. That is because it would be inconsistent to read, for example, para 6 as being mandatory because of its use of the word "must", with the result that the relevant consideration must be taken into account, but reading para 8.4(4) as merely offering guidance thereby permitting the decision-maker to arrive at its own view or assessment of what the expectations of the Australian community are. It is to be noted that one of the meanings of "should" is to convey duty or obligation rather than merely guidance: Oxford English Dictionary online version, "shall" (meaning no. 18.a). Reading "should" as indicating only guidance would also be inconsistent with what was held in FYBR, and the acceptance by the Court in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] that a failure to comply with the relevant Direction's express requirements as to the conditions to be brought into account and the manner in which those considerations were to be weighed in deciding whether to revoke a visa cancellation would be jurisdictional. > > ... > > Leaving aside whether the Tribunal can permissibly have independent regard to community expectations as assessed by it, which must be considered at least doubtful given the Direction's express provisions with regard to that subject which can be expected to cover the field, the submission fails on the facts. That is because the Tribunal did not take account of its own assessment of community expectations "outside the prism of para 8.4(4)". On the contrary, it made its own assessment of community expectations expressly within the context of its consideration of para 8.4. That is a clear error.

11. Nothing that the Applicant has raised in relation to this consideration indicates that the "norm" as stated in para 8.5(1) of Direction 99, should not apply. I must, however, determine the weight that should be given to this consideration. Some guidance in this regard is provided by para 8.5(2) of Direction 99 (see [94] above) which provides that the Australian community expects that the Australian Government can, and should, cancel a non-citizen's visa if they raise serious character concerns through conduct, in Australia or elsewhere, of the kind listed is sub-paras 8.5(2)(a)-(f) of Direction 99. While the Applicant's multiple convictions do not include offences of the types described in the subparagraphs of 8.5(2), as the Minister correctly points out, the statement of the community's expectations that the non-citizen should not hold a visa is not predicated on the non-citizen having committed offences of the type described. I do accept, however, that given that the Applicant's offending has not included offences of the types particularised in para 8.5(2), the community's expectation would be less than it would be if the offending did include such offences.
12. For the reasons set out above, while this consideration weighs against the revocation of the cancellation of the Applicant's visa, only moderate weight should be given to it.

1. Paragraph 9 of Direction 99 sets out the "Other considerations" to be taken into account as follows:

(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 consequence of the decision; > > b) extent of impediments if removed; > > c) impact on victims; > > d) impact on Australian business interests

Legal consequences of the decision (para 9.1)

(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) 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.

2. The Applicant made no submissions on any of the "Other considerations". The Minister's SFIC pointed out that the Applicant has not raised any non-refoulement issues. I also find that there is nothing before me which would indicate that the Applicant would have a claim to be owed protection. The only legal consequence of the decision that I make will be whether the Applicant would be subject to removal under s 198 of the Act and, until he is removed, continued detention.
3. I agree with the Minister's contention that the first of the other considerations, legal consequences of the decision, is neutral.

(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.

2. The Applicant made no submission on this consideration. The Minister's SFIC made submissions to the following effect:

(a) The Applicant is 37 years old and has not lived in New Zealand for 17 years. He did, however, attend school in New Zealand and has returned there on three occasions, and so it could not be said to be a country entirely unfamiliar to him. Nor could there be said to be any language or cultural barriers. The Applicant has also declared that one of his brothers, four uncles or aunts and our cousins remain living in New Zealand.[82] > > (b) The Applicant has not declared any medical conditions and states that he is not engaged in any medical treatment.[83] In any event, as a citizen of New Zealand, the Applicant will have the same access to social, medical, mental health support and economic support as other citizens. New Zealand is culturally, linguistically and politically similar to Australia. As a broad proposition, in the absence of any contrary evidence, the Tribunal is entitled to take into account that the Applicant would have access to government benefits similar to those available to him in Australia. > > (c) The Applicant also has some employment history in Australia as a scaffolder[84] and while the Applicant states that he is fearful that he won't find work in New Zealand[85] there is nothing to suggest that he would be unable to find similar employment in New Zealand. > > (d) The Minister accepts that this consideration weighs in favour of revocation but contends little weight should be placed on it and the consideration does not outweigh the other primary considerations weighing against revocation of the original decision.

3. While the Minister's submission set out at [111(a)] above reflected the information available at the time that the Minister prepared the SFIC, the Applicant's brother's evidence at the hearing was that, in addition to those family members identified in the Minister's SFIC, the Applicant's parents have now returned to New Zealand. Further, the Applicant's brother's evidence was that all his family was in New Zealand (see [72] above).
4. The relevant consideration as directed by Direction 99, is whether, taking into account the considerations identified in sub-paras 9.2(1)(a), (b) and (c) and anything else raised by the Applicant, the Applicant would face an impediment (or impediments) in establishing and maintaining basic living standards in the context of the basic living standards that other citizens of New Zealand enjoy. The test is not whether he would be worse off or enjoy a lower living standard than he would if he were allowed to stay in Australia.
5. The Applicant does not suffer from any disclosed medical condition which would preclude him from working. While the Applicant did not raise it as a possible impediment, I am conscious that the Applicant's problems with methamphetamine, of which I have found there to be a risk of recurrence, may be an impediment to the Applicant establishing and maintaining a basic living standard. I also accept that the Applicant being removed from the environment and the community that he has lived in for 17 years would be disruptive and upsetting. I also accept that his being physically separated from his two natural children and his ex-partner's daughter would be cause emotional stress.
6. In Australia he has gained skills in the construction industry, more particularly scaffolding, which would be transferrable to New Zealand. He is relatively young and fit. There are obviously no language or cultural barriers and he will have family members, including his parents and one brother[86] (noting Mr Michael Bainbridge's evidence that "all [their] family [is] there": see [72] above) for whatever support they can provide. Insofar as there may be impediments, again noting that the Applicant did not identify any impediments,[87] because of their nature, they are likely be temporary only.
7. The Minister conceded that this consideration weighs in favour of revocation of the cancellation of the Applicant's visa, but contended that little weight should be placed on it. I agree with that assessment. While it weighs in favour of revocation, only minor weight can be given to this consideration.
8. There is no evidence to find that the final two other considerations, impact on victims and impact on Australian business interests, are relevant in this matter.

1. Direction 99 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 99 sets out the way in which the relevant considerations are to be taken into account (see [18] above).
2. 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 earlier Ministerial Directions issued under s 499 of the Act (see [14] above), the same considerations apply to the exercise required by Direction 99 which is materially in the same terms to those earlier Ministerial Directions. I am guided by Colvin J's judgment in Suleiman v Minister for Immigration and Border Protection[88] and the Full Court judgment in Minister for Home Affairs v HSKJ.[89] See also XRGY and Minister for Immigration, Citizenship, and Multicultural Affairs[90] for analysis of those cases.
3. More recently the Full Court of the Federal Court considered the operation of Direction 90 (relevantly materially the same as Direction 99) in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[91] At [35] the Full Court described the process as follows:

The balancing process is directed to determining whether there is "another reason" why the visa cancellation should be revoked. It requires an identification of the matters that may constitute "another reason" and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute "another reason" capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.

4. In criticising the Tribunal's reasons, the Full Court at [38] found:

...They do not disclose that there was any process by which the Tribunal grappled with the competing considerations, each of which had been ascribed a different descriptor of weight and some of which had the status of being "primary" considerations and others not, in order to bring them to bear in forming a state of satisfaction as to whether there was "another reason" to revoke the cancellation. The statutory task is not fulfilled by ascribing a descriptor of weight, such as "strong", "significant", "considerable" or "moderate" (in favour of or against revocation) to the different considerations, primary and other, and then stating a conclusion as if that conclusion was made inevitable by the application of a mathematical formula.

... the Tribunal recognised in paragraph [113] that it was required to weigh "all the Considerations" (emphasis added), and because it had expressly gone through the process of considering each of the "other considerations in turn", as explained above, it cannot be concluded that the Tribunal failed to consider the "other considerations". However, there is nothing in the concluding section of the Tribunal's reasons, or indeed anywhere, which reveals any process of balancing and evaluation... Nor is there anything which demonstrates that in reaching its ultimate conclusion, the Tribunal brought to bear its assessment of the weight of the various "other considerations". After summarising, and rephrasing, its earlier ascription of descriptors of weight to each of the primary considerations, the Tribunal then simply concluded in paragraphs [114] and [115] by use of the words "therefore" and "consequently" that the visa cancellation should not be revoked. Such a conclusion does not inevitably or necessarily follow from those unexplained, un-balanced and un-weighed descriptors of weight; it may be that such a conclusion is justified by what preceded it but it is not apparent that the Tribunal undertook the required process of evaluation in order to reach its decision. It is not even apparent that the Tribunal considered that the weight of all the primary considerations were compelling against revocation of the cancellation of the visa, since it placed "significant weight" on one of those considerations, the interests of minor children, as favouring revocation.

...What it did, on the face of its reasons, is ascribe weight to the various considerations having considered each in isolation and then express a conclusion without demonstrating that it actually weighed the various considerations against each other and undertook a proper evaluation of whether there was indeed "another reason" why the cancellation should be revoked.

1. What I understand the Full Court to be saying in CRNL is that giving a weight to each consideration by ascribing a particular quantitative or qualitative adjective and then stating a conclusion without explaining how the conclusion flows from or arises out of a described process of assessing the weight of each consideration against each other consideration, is not discharging the statutory function. Applying those principles to the case of the exercise of being "satisfied ... that there is another reason why the original decision should be revoked" (s 501CA(4)(b)(ii)), I take the Full Court to be directing the decision-maker to give appropriate weight to each relevant consideration, explain why such weight is given to the consideration and then, through a described, logical process, compare and balance all of the applicable considerations to determine whether there is another reason why the original decision should be revoked.
2. Following the above-described process, I have ascribed a weight to each of the relevant considerations under Direction 99 and explained the basis upon which I have assessed the weight to be given to each consideration. What remains is to compare and balance the considerations to determine whether I am satisfied that there is another reason why the original decision should be revoked.
3. Following the direction provided by the above cases, I find that the first primary consideration, the protection of the Australian community, weighs heavily against revocation of the cancellation of the Applicant's visa (see [63] above).
4. The second primary consideration, family violence committed by the Applicant, weighs neither in favour of nor against revocation of the original decision.
5. The third primary consideration, the strength, nature and duration of the Applicant's ties to Australia, weighs in favour of revoking the cancellation of the Applicant's visa, however, only minor weight can be given to this consideration (see [83] above).
6. The fourth primary consideration, the best interests of minor children in Australia affected by the decision, weighs in favour of revocation of the cancellation of the Applicant's visa, however, only moderate weight should be given to this consideration (see [93] above)
7. The fifth primary consideration, the expectations of the Australian community, weighs against the revocation of the cancellation of the Applicant's visa. Moderate weight should be given to this consideration (see [105] above).
8. In relation to the "other considerations" identified in Direction 99, I find that the consideration of the legal consequences of the decision is to be given neutral weight and that the only relevant other consideration, extent of impediments, weighs in favour of revocation, but that only minor weight can be given to that consideration (see [116] above) The remaining other considerations are not relevant
9. I am mindful that para 7(2) of Direction 99 states that primary considerations should generally be given greater weight than the other considerations (see [18] above). Nothing has been presented which would indicate that that general principle should not apply in the present case. Having weighed all of the considerations, I find that the considerations against revoking the decision to cancel the Applicant's visa, being the first primary consideration, the protection of the Australian community and the fifth primary consideration, the expectations of the Australian community, outweigh the primary considerations of ties to the Australian community, the best interests of minor children and the "other consideration" of the extent of impediments if removed, which weighed in favour of the revocation of the cancellation of the Applicant's visa. Accordingly, I find that there is not another reason why the original decision should be revoked.

1. The decision of the delegate of the Minister dated 25 September 2023 under s 501CA(4) of the Act not to revoke the cancellation of the Applicant's Special Category (Class TY) (Subclass 444) visa is affirmed.

I certify that the preceding 131 (one hundred and thirty - one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

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

Breath alcohol level over 400 Mcgs/litre of breath blood/breath = 514

Court Costs - $130.00 Disqualification From Driving - 01/12/2006 - 6 Months

Court Costs - $130.00 / Disqualification From Driving - 01/12/2006 - 6 Months

Drove with excess blood alcohol content blood/breath = 99

FINE: $150; DISQ HOLD/OBT MDL 3 MTHS MAND - SECT 51

Reckless Driving - Dangerous to the Public or any Person

Reckless Driving - Dangerous to the Public or any Person

SUSPENDED 18 Months FROM 16-MAR-2012.; Mdl Disqualified: 18 mths - Cumulative; FINE: $500

Possessed drug paraphernalia in or on which there was a prohibited drug or plant

Possessed drug paraphernalia in or on which there was a prohibited drug or plant

Used a licence, number plate or label to which not entitled

Drove or permitted vehicle with false plate to be driven

[10] A valid cancellation decision is a pre-condition to the valid exercise of the revocation power under s 501CA(4) of the Act - see PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 14 and XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6.

[12] [2022] AATA 1748.

[13] [2019] AATA 1398.

[14] [2023] AATA 2606.

[17] Citing Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [43]- [45] and QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1 at [51].

[19] Citing PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22].

[31] Noting that the Tribunal is bound by the decision in Buntin v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1055 but contending that that decision is "plainly wrong".

[32] Citing the Final Report of the National Ice Taskforce, 2015.

[33] Citing the Commonwealth of Australia National Drug Strategy 2017-2026 pp 4-5.

[34] Citing the National Drug Strategy.

[35] [2021] FCA 762.

[38] The Applicant was granted parole by order dated 1 May 2023 (Parole Order included in A12). The Parole Order was subject to the following condition:

If upon a successful application by you for a revocation of the cancellation of your visa the Board will review your case to determine whether you are suitable for release in Australia. If you are found not to be suitable for release in Australia, this may result in your Parole Order being cancelled and you being returned to prison to serve the balance of your sentence once you re-enter (or are released in) Australia.

[50] [2022] FCA 1569.

[55] Note, the Applicant's mother and father live in New Zealand; Evidence of Michael Bainbridge: see para [72] below.

[63] This may not be correct as their daughter, A, was born in February 2016; birth certificate for A part of A9.

[64] Ms Mortimer's letter refers to the Applicant "contributing financially", however, no detail was provided.

[67] Citing the research article "Adverse Academic Impacts" (Frontiers in Psychiatry, 2020).

[79] [2020] AATA 3953 at [156].

[81] [2023] FCAFC 68.

[88] [2018] FCA 594.

[89] [2018] FCAFC 217; [2018] FCAFC 217; 266 FCR 591.

[90] [2023] AATA 755 at [182]- [183].

[91] [2023] FCAFC 138.