1. The Tribunal has jurisdiction to review a decision made under s 501CA(4) to refuse to revoke a decision to cancel a visa under s 501(3A), where the application for review is lodged within nine days after the decision is notified: s 500(6B). As noted above, the application for review was lodged on 5 June 2025, which is within nine days after the decision was notified. The Tribunal therefore has jurisdiction to hear and determine the application.

1. The following material was included in the Hearing Bundle (HB) prepared by the Minister:

(a) The applicant's statement dated 25 July 2025 - Exhibit A1

(b) The statement from the applicant's partner Ms DK - Exhibit A2

(c) The undated letter of support from the applicant's daughter LN - Exhibit A3

(d) The undated letter of support from the applicant's son AN - Exhibit A4

(e) The letter of support dated 23 July 2025 from the applicant's daughter JN - Exhibit A5

(f) The undated letter of support from the applicant's friends Amita Roy and Kyle Fuller - Exhibit A6;

(g) The G-Documents - Exhibit R1

(h) The Minister's statement of facts, issues and contentions (SOFIC) - Exhibit R2

(i) The Minister's chronology of relevant facts - Exhibit R3

(j) The Minister's supplementary bundle of selected summonsed material - Exhibit R4

(k) The Minister's further supplementary bundle of selected summonsed material - Exhibit R5.

1. Additional summonsed material produced by the NSW Department of Communities and Justice is contained in a supplementary bundle (SB1).
2. I have also considered:

(a) The oral evidence given by the applicant and his partner Ms DK; and > > (b) The closing oral submissions made by the applicant and by the applicant, assisted by Ms DK.

3. Relevant parts of the documentary evidence, the oral evidence and the submissions are considered below.

1. The following background is taken largely from the chronology submitted by the respondent and the respondent's statement of facts, issues and contentions (SOFIC),[2] the sentencing judge's remarks[3] and from other material contained in the HB. This material includes but is not limited to the applicant's affidavit dated 31 March 2023[4] and a report prepared by Kris North, forensic psychologist, on 22 March 2023,[5] both of which were before the sentencing judge.

1. The applicant was born in Auckland, New Zealand on 15 August 1981 and is the third eldest of fourteen children.[6] He moved to Australia with his parents and older siblings on 10 July 1982. The applicant has not left Australia since that time. His younger siblings were born in Australia.
2. The applicant has been in a relationship with his partner Ms DK since they were teenagers. They have had four children together: KN (who passed away as a result of asthma in 2017), JN (aged 20), AN (aged 14) and LN (aged 13). Ms K and their surviving children are close to and supportive of the applicant and have all provided letters in support of the cancellation of the applicant's visa being revoked.
3. The applicant was exposed to domestic violence and alcohol abuse from a young age. When he was younger, the applicant thought this was normal because his family and extended family would drink a lot of alcohol and become violent to one another. The applicant has reported the violence as constant and usually involving his mother as the victim. In addition, family members drank to the point where they would lose control.
4. All but five of the applicant's siblings have been involved in criminal activities and have been in and out of gaol. The applicant's father spent time in prison in New Zealand and also spent time in custody in Australia but, according to the applicant, this was not for long periods. Recent traumatic events for the applicant and his family include the murder of one of the applicant's younger brothers, the death of the applicant's father from cancer in 2016, and the death of applicant's son KN in 2017.
5. The applicant had a socially impoverished upbringing as his parents struggled financially and he often attended school without lunch or a proper school uniform. He could not go on school excursions unless they were free and his family couldn't afford to pay for him to participate in sports on sports day. The applicant attended four different primary schools, three high schools and a behaviour school. He was expelled from two of the high schools in year 7 and left school in year 9. The applicant claims that he was sexually abused by a school principal when he was in primary school.
6. The applicant obtained employment in steel fixing after he left school and worked in landscaping for a few months in his early twenties. Issues with drugs and time spent in custody later prevented him from gaining employment, although he was employed as a labourer and later on the M5 after he was released from custody in 2020.
7. The applicant's extended family, including his mother, siblings, aunts, uncles, nephews, nieces and cousins all reside in Australia. According to the applicant, he has no relatives in New Zealand.

1. The applicant was introduced to cannabis when he was between 13 and 14 years of age. His use of drugs led him to start offending, predominantly thefts. According to the applicant, his parents were happy when he brought home money, which resulted in the reinforcement of offending behaviours. The applicant began using heroin when he was seventeen, after he was released from a juvenile detention centre. He used heroin habitually for up to six years prior to commencing methadone treatment at the age of 23. The applicant claims that his heroin started after he was sexually abused in juvenile custody. He denies using heroin since starting to take methadone. He remains on a methadone program.
2. The applicant has described using amphetamines and cocaine intermittently in his mid-twenties, before he started using methamphetamines when he was in his early thirties. He has reported that methamphetamines have been his primary drug of concern since that time. He has claimed to use this drug to improve his mood and prevent him from thinking about his problems.

1. The applicant has physical health problems. He suffered injuries as a result of the accident which occurred following a police pursuit which is the subject of one of the offences relevant to this application. Documents tendered in the applicant's District Court trial showed that in October 2021 he complained of pain in his legs and back and neck, dizzy spells and pain through his whole body while walking. He was referred to hospital from 7 November 2021 in relation to a lower left quadrant pain radiating down to the top of the thigh that was increasing in severity, difficulty breathing, headaches and lethargy. A discharge summary from Blacktown Hospital outlined that the applicant was discharged on 15 November 2021 with instructions for further care and investigation required, including a CT scan, with oral antibiotics and pain relief. The applicant was treated for phlebitis and thrombophlebitis in his legs in December 2021. In a document dated May 2022, the applicant wrote a self-referral note in which he noted blood clots in his leg. In October 2022, he again wrote a self-referral note to say that he would like to see a nurse in relation to throbbing pain in his right leg that he was worried was caused by blood clots. The applicant has been anxious about blood clots and other issues including shortness of breath.
2. A report dated 29 January 2024[7] by Dr John Albert Roberts, consultant forensic psychiatrist, notes that the applicant's description of his medical conditions is consistent with the presence of pulmonary emboli and deep venous thrombosis. Dr Roberts also notes that the applicant is substantially overweight. The applicant referred to having high blood pressure and asthma. In relation to medication, the applicant told Dr Roberts that he takes an anticoagulant (Rivaroxaban), Metformin (a Type 2 diabetes medication), a medication for hypertension that the applicant could not name, Ventolin to treat asthma and Methadone.
3. At the hearing, the applicant referred in particular to having issues with his legs. He was supposed to have a scan, which did not proceed because of the hearing. The applicant referred to the difficulty getting medical treatment while in prison.

1. The applicant was diagnosed with depression in 2014. He had an episode of psychosis in 2016 which was recorded as a diagnosis of schizophrenia. The psychotic episode occurred after a decline in the applicant's mental health following the death of his father. The applicant's son KN died unexpectedly from an asthma attack soon afterwards, which resulted in an escalation in symptoms of depression. The applicant reported his feelings were exacerbated by the fact he was in custody at the time of these events and had been unable to attend his father's or his son's funerals. The applicant subsequently began using drugs in custody to avoid dealing with his grief issues and began experiencing auditory hallucinations. He described self-harming during this episode and the onset of physically aggressive behaviours.
2. In the report provided to the District Court, Ms North expressed the opinion that the applicant experienced a drug induced psychosis. The applicant denied experiencing any further symptoms of psychosis since that time. Ms North noted in her report that although the applicant did not present with any other psychological issues at the time of his assessment, he identified issues of anxiety when in the community likely associated with his difficulties in adapting after experiencing prolonged periods in custody.
3. Dr Roberts opines in his report that as a result of sexual abuse associated with physical violence and threats, the applicant has developed:

(a) Post-traumatic stress disorder; > > (b) Major depressive disorder; > > (c) Substance use disorder; > > (d) As a consequence of substance abuse disorder, paranoid schizophrenia; and > > (e) Poor impulse control disorder, namely a propensity to exhibit violent behaviour.

4. At the hearing, the applicant confirmed that he does not take medication or receive any regular treatment for mental health conditions. He stated that he had started hearing voices, which was a symptom associated with the psychotic episode he suffered in custody in 2016, which led to a diagnosis of schizophrenia.

1. The applicant has an extensive criminal history, which includes convictions for juvenile offences and offences committed as an adult from 1999 onwards. His criminal history is too long to set out in these reasons for decision and can be found at HB pages 55-78.
2. The applicant's juvenile criminal record has not been considered in these proceedings. Nor has a charge the applicant is currently facing arising from an incident in custody, as the applicant has not been tried and convicted of the offence concerned.
3. The applicant's adult criminal record dates back to 23 August 1999. He has been convicted of a range of offences regularly since that time. The applicant's record includes convictions for:
   • Property offences including theft, stealing motor vehicles, breaking and entering, stealing from the person and receiving stolen goods;
   • Dishonesty offences such as obtaining financial advantage by deception and detaining for advantage.
   • Offences involving violence, including common assault, robbery and assault occasioning actual bodily harm.
   • Drug related offences including supply.
4. It also includes offences of intimidating a police officer, detaining for advantage, possession of an unauthorised firearm, police pursuit offences and a number of other driving offences.
5. The sentences of imprisonment the applicant has been given as an adult - as opposed to fines and other sanctions - are as follows:[8]
   • On 26 October 1999, the applicant was convicted of three counts of steal a motor car/motor vehicle and aggravated break and enter and commit felony in company. He was sentenced to a three-year supervisory order and three months imprisonment.
   • On 29 November 1999, the applicant was convicted of possessing prohibited article, self-administer/attempt to self-administer a prohibited drug, drive while disqualified from holding a licence second offence and larceny valued at less than $2000. He was sentenced to a fixed term of four months imprisonment and had his driver's licence disqualified for two years.
   • On 23 August 2000, the applicant was convicted of breach of recognizance and steal from the person. He was sentenced to imprisonment for eight months.
   • On 29 November 2002, the applicant was convicted of larceny and robbery and was sentenced to two terms of imprisonment, one being for six months and the other for two years and six months.
   • On 22 February 2005 the applicant was convicted of breaking and entering with the intent to steal, enter a vehicle or boat without consent, shoplifting value less than $2,000 and drive conveyance taken without consent of owner. He was sentenced to 15 months imprisonment, two sentences of 10 months imprisonment, and one sentence of three months' imprisonment to be served concurrently.
   • On 20 February 2006 the applicant was convicted of robbery, take/detain person, two counts of obtain money by deception, intimidate a police officer in execution of duty and supply a prohibited drug. As per the order of the offences, he was sentenced to seven years imprisonment, three years imprisonment, two sentences of one year of imprisonment, two months' imprisonment and one month imprisonment.
   • On 3 April 2008 the applicant was convicted of possessing a prohibited drug and was imprisoned for 14 days.
   • On 18 June 2015, the applicant was convicted of never licensed person drive on road - prior offence and police pursuit - not stop - drive dangerously. He was sentenced to three years' disqualification and two years' imprisonment.
   • On 23 June 2016 the applicant was convicted of one count of stealing and was sentenced to two years and eight months' imprisonment.
   • On 16 December 2016 the applicant was convicted of one count of possess an unauthorised prohibited firearm, four counts of dishonestly obtain financial advantage by deception and one count of assault occasioning actual bodily harm in company with others. He was sentenced to six years and six months' imprisonment.
   • On 22 August 2019 the applicant was convicted of common assault and sentenced to 12 months' imprisonment.[9]

1. Consideration was first given to cancelling the applicant's visa as a result of his conviction for robbery on 29 November 2002. On 3 February 2003, the then Minister decided not to cancel the applicant's visa. Rather, the Minister issued a warning to the applicant that any further offences would result in a new assessment under s 501 of the Act. The applicant acknowledged receipt of the Minister's warning on 9 February 2003.[10]
2. As set out above, the applicant went on to commit further offences resulting in convictions and terms of imprisonment. Consequently, on 12 June 2009 a delegate of the Minister cancelled the applicant's visa under s501(2) of the Act.[11] The applicant successfully sought review of this decision and on 26 August 2009, the Administrative Appeals Tribunal (AAT) set aside the cancellation decision and the applicant's visa was reinstated.[12]
3. However, the applicant committed further offences, which again resulted in convictions and terms of imprisonment. On 5 December 2019, a delegate of the Minister cancelled the applicant's visa under s501(3A) of the Act. The applicant unsuccessfully sought revocation of the cancellation decision.[13] He then sought a review of the decision not to revoke the cancellation of his visa. On 3 December 2020, the AAT set aside the cancellation decision and the applicant's visa was again reinstated.[14]

1. The convictions and sentence that are relevant to this decision are as follows.
2. On 5 May 2023, Mr NGATI was convicted of a number of offences the District Court of New South Wales at Campbelltown. He had pleaded guilty to the offences on 30 November 2022 and was sentenced to an aggregate term of imprisonment of four years and nine months, receiving a 25% discount because of the early guilty plea. According to the sentencing judge, the agreed facts were set out in a seven-page document tendered in the proceedings.
3. The list of offences and the maximum penalty for each offence are set out in the District Court's sentencing judgment as follows:[15]

(1) Common assault, contrary to s 61 of Crimes Act. The maximum penalty for this offence is two years imprisonment.

(2) Intimidate police officer in execution of his duty without actual bodily

harm, contrary to s 60(1) Crimes Act. The maximum penalty for this offence is

five years imprisonment.

(3) Drive, never licensed, contrary to s 53(1)(a) Road Transport Act. The

maximum penalty for this offence is a fine of 20 penalty units. This is an

offence which is on a certificate pursuant to s 166 Criminal Procedure Act.

(4) Supply prohibited drugs (cannabis leaf), contrary to s 25(1) Drug

Misuse and Trafficking Act. The maximum penalty for this offence is ten years

imprisonment.

(5) Supply prohibited drugs on an ongoing basis, contrary to s 25A(1)

Drug Misuse and Trafficking Act. The maximum penalty for this offence is 20 years imprisonment.

(6) Drive, never licensed, contrary to s 53(1)(a) Road Transport

Act. Again, the maximum penalty for this offence is a fine of 20 penalty units.

This is an offence which is on a certificate pursuant to s 166 Criminal

Procedure Act.

(7) Police pursuit, not stop, drive dangerously, contrary to s 51B(1) of the

Crimes Act. The maximum penalty for this offence is three years

imprisonment.

(8) Assault a police officer in the execution of their duty without actual

bodily harm, contrary to s 60(1) Crimes Act. The maximum penalty for this

offence is five years imprisonment.

(9) Possess unregistered, unauthorised pistol in public place, contrary to

s 93I(2) Crimes Act. The maximum penalty for this offence is 14 years

imprisonment.

1. In sentencing the applicant, the Court also dealt with a number of Form 1 offences,[16] which have not been considered when making this decision.
2. The offences of which the applicant was convicted were committed over a period of approximately two years. The statement of agreed facts is summarised in the sentencing judgment.[17]
3. The offences of which the applicant was convicted are further summarised as follows, without reference to the Form 1 offences:
   • The common assault offence occurred on 22 July 2021, the applicant headbutted a McDonalds employee during an incident at a McDonalds restaurant when the applicant became argumentative while waiting for his order and was asked to leave.
   • The offences of intimidate police officer in the execution of duty and driver never licensed occurred on 17 August 2021, when the police approached the applicant when he was sitting in the driver's seat of a car at 6.05 am. It became apparent that the applicant had never held a driver's licence. When questioned about his reason for being in the area, the applicant became agitated, looked directly at one of the police officers and said, 'I will squash you like a peanut', causing the police officer to feel intimidated.
   • The supply charges occurred between 27 August and 6 September 2021 and arise from an investigation into the applicant the police commenced on 21 August 2021, which involved the lawful interception of a mobile phone service subscribed to by Ms DK. During the relevant period the applicant made and received a number of phone calls and sent and received a number of text messages which concerned the supply of illicit drugs.
   • The offences of driver never licensed and police pursuit not stop, drive dangerously, possession of an unregistered pistol in a public place and assault police in the execution of duty without actual bodily harm were all committed on 6 September 2021 and involved a number of incidents.
   • The first incident occurred from about 1.40 am on 6 September 2021 when police pursued a speeding car which failed to stop. After terminating the pursuit, the police again saw the car, which had collided with a telegraph pole. The applicant was out the car, rolling on the ground from the driver's side door to the rear of the vehicle.
   • The second incident occurred as the police arrested the applicant and discovered that he had on his person ammunition and a pen gun.
   • The third incident occurred after the applicant was taken to hospital by ambulance. He was under police guard. At around 3am on 6 September 2021, hospital staff advised the police they believed the applicant had something in his hand. The applicant was holding a small black purse, which he would not hand over to the police. When a police officer took hold of the hand in which the applicant was holding the purse, the applicant spat at and hit him on the arms and chest. The purse contained five resealable plastic bags. Analysis of four of the bags established they contained methylamphetamine totalling 16.99 grams.
4. At the time the applicant committed the offences, he was on parole in relation to the offences of possess unauthorised firearm and four counts of dishonestly obtain financial advantage by deception. In addition, he had been granted bail on 17 August 2021 in relation to charges of intimidate police officer, custody of a knife and driver never licensed. This meant that when the applicant committed offences after 17 August 2021, he was on two forms of conditional liberty: on bail and on parole. This served to aggravate the sentence imposed.
5. In sentencing the applicant, the Court had regard to his criminal history noting:[18]

The offender's record does not entitle him to leniency. > > He has served a number of terms of imprisonment for offences yet > > continues to offend. Whilst I accept that the offender's record demonstrates > > that these offences demonstrate a continuing attitude of disobedience to > > the law, and that the purposes of sentencing of retribution, deterrence and the > > protection of the community take on greater significance in this sentencing > > exercise, prior criminal record cannot be given such weight as to lead to the > > imposition of a penalty which is disproportionate to the gravity of the instant > > offences.

6. The Court also considered the applicant's personal circumstances, in particular childhood, education and employment history, his relationship history, history of prior sexual abuse, and physical and mental health.

1. A Pre-Release report dated 17 December 2024 was prepared by Community Corrections Cessnock and is included in documents summonsed from Corrective Services NSW.[19] The report notes that the applicant was classified as an A2 Maximum Security Inmate on 19 May 2023, with the classification being confirmed on 15 January 2024 and 18 July 2024. The report also states that during the applicant's current period of incarceration, he has been charged with sixteen institutional offences, which include but are not limited to offences of intimidation, assault, indecency, possession of an offensive weapon (a metal bar) and drug possession The report also states that the applicant has a history of poor behaviour and disrespect to custodial staff.[20]
2. A previous Pre-Release report dated 11 August 2020 prepared by Community Corrections Taree,[21] states that at the time the report was prepared, the applicant had been the subject of multiple Segregations and Special Management Area Placements which had made his placement in correctional facilities very difficult. The report also stated that during that period of custody to which the report related the applicant had accrued 27 institutional misconducts due to drugs, violence, intimidation and weapons, only two of which had occurred in the previous 18 months.
3. Documents concerning the applicant's conduct in custody are at HB pages 645-673.
4. The 17 December 2024 Pre-Release Report states that to date the applicant had not completed any offence targeted programs. He was referred to the EQUIPs Foundation Aggression, and Addiction programs on 11 September 2024, but these programs were yet to commence. The report states that while in custody the applicant has been compliant with his opioid treatment program. He completed three modules in the NEXUS 3 program in February 2022, but said he did not want to complete further modules due to feelings on increased stress. In addition, in June 2023, the applicant completed a Core Skills Assessment in Language, Literacy and Numeracy, a CPI Skills Check and a course in Mandatory Safety.
5. The report states that the applicant has been employed in the following capacities while in prison:
   • As a general hand between 22 December 2021 and 4 January 2022;
   • As a cleaner between 11 August 2023 and 2 January 2024; and
   • As a general and a lead hand in food services between 27 February 2024 and 15 July 2024.
6. The report states that the applicant has demonstrated 'a poor work ethic and lack of enthusiasm when employed', that he has received negative case notes for his consumption of food without permission and the need for him to be regularly reminded to complete tasks.[22]

1. Section 501 of the Act deals with decisions to cancel a visa on character grounds.
2. Relevantly to this case, under s 501(3A) the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record having been sentenced to a term of imprisonment of 12 months or more.
3. In accordance with s 501CA(3), as soon as practicable after making a decision under s 501(3A), the Minister must give the person whose visa was cancelled written notice setting out the decision together with particulars of specified information that were the reason or part of the reason for making the decision. The Minister must also invite the person whose visa was cancelled to make representations to the Minister about revocation of the decision.
4. Under s 501CA(4) the Minister may revoke the original decision if representations are made in accordance with the invitation and the Minister is satisfied that the person passes the character test (as defined by s 501) or that there is another reason why the original decision should be revoked.
5. An application to review a decision made under s 501CA(4) not to revoke the cancellation of a visa may be made to the Tribunal under s 500(1)(ba).
6. The Minister may give written directions under s 499(1) of the Act to a person or body having functions or powers under Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) requires the Tribunal to comply with any directions made under s 499(1).
7. In this case, 'Direction No 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA' (the Direction) applies.
8. For the purposes of deciding whether to refuse an application for a visa or whether to revoke the mandatory cancellation of a visa, 5.2 of the Direction sets out several principles that must inform the decision-maker's application of the primary and other considerations set out in Part 2 of the Direction, where those considerations are relevant to the decision.
9. These principles are:

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

(2) The safety of the Australian Community is the highest priority of the Australian Government.

(3) 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.

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

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

(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

(7) 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.

(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measureable risk of causing physical harm to the Australian community.

1. Informed by these principles, in making a decision I must take into account the relevant primary and other considerations set out in the Direction.
2. Section 7.1 of the Direction states that appropriate weight is to be given to information and evidence from independent and authoritative sources. Section 7.2 of the Direction states that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. It also states that primary considerations should generally be given greater weight than 'other' considerations.
3. The primary considerations are set out in section 8 of the Direction. They are:

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

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

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

(4) The best interests of minor children in Australia; and

1. A non-exclusive list of other considerations is set out in section 9 of the Direction. They are:

1. In FHHM v Minister for Immigration,[23] the Full Federal Court considered 8.4 of Direction 79, which also stated that primary considerations should generally be given greater weight than other considerations. O'Callaghan and Colvin JJ (Derrington J agreeing) referred to remarks made by Colvin J in Suleiman v Minister for Immigration,[24] and stated at [34] that '...particular circumstances may pertain that may justify greater weight being given to one or more of the other considerations than one or more of the primary considerations'.

1. The issues to be decided in this matter this matter are:
   • Does the applicant pass the character test?
   • If not, is there is another reason to revoke the decision cancelling the applicant's visa, taking into account considerations in the Direction and any other relevant considerations?

1. As noted above, s 501(3A)(a)(i) of the Act, the Minister must cancel a visa if a person does not pass the character test. A person will not pass the character test if the person has a substantial criminal record. A person will have a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.
2. The applicant was sentenced to an aggregate term of imprisonment of four years and nine months. I therefore find that he does not pass the character test.

Is there is another reason to revoke the decision cancelling the applicant's visa, taking into account considerations in the Direction and any other relevant considerations?

1. I have considered each of the relevant primary and other considerations. The applicant did not claim and the evidence before me does not suggest that there are any other relevant considerations.

Protection of the Australian community from criminal or other serious conduct - 8.1**

1. In accordance with 8.1(1) of the Direction, in considering the protection of the Australian community I have had regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. I have also considered 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. As required by 8.1(2) of the Direction, I have considered:

(a) the nature and seriousness of the applicant's conduct; and > > (b) the risk to the Australian community, should the applicant commit further offences or engage in other serious conduct.

Nature and seriousness of the applicant's conduct - 8.1.1

1. In considering the nature and seriousness of the applicant's conduct, in accordance with 8.1.1(1)(a) and 8.1.1(1)(b), I must have regard to the fact that violent and/or sexual crimes are viewed very seriously by the Australian government and the Australian community and that crimes committed against government officials in the performance of their duties are considered serious.
2. The majority of the applicant's adult offences have been in respect of property offences such as robbery and larceny, dishonesty offences such as obtain money by deception and dishonestly obtain financial advantage by deception, drug offences and driving offences. The applicant has not been convicted of any sexual crimes. However, he has been convicted of assault occasionally actual bodily harm in company of others (on 16 December 2016) and common assault (two counts on 22 August 2019, and one count on each of 8 December 2020 and 5 May 2023).
3. Further, the applicant was convicted of intimidating a police officer in the execution of duty without actual bodily harm on 20 February 2006 and 5 May 2023 and assaulting a police officer in execution of duty without actual bodily harm, also on 5 May 2023. In addition, the victims of the two counts of common assault of which the applicant was convicted on 22 August 2019 were corrections centre officers.
4. I conclude that the applicant's offences involving violence should be viewed as very serious and that his offences involving police officers and corrective services officers should be viewed as serious.
5. In relation to the seriousness of the applicant's offending generally, relevant factors under 8.1.1(1) that I must consider are:
   • The sentence imposed on the applicant - 8.1.1(1)(c);
   • The impact of the applicant's offending on any victims of offending and their family - 8.1.1(1)(d);
   • The frequency of the applicant's offending and/or whether there is any trend of increased seriousness - 8.1.1(1)(e);
   • The cumulative effect of repeated offending - 8.1.1(1)(f); and
   • Whether the applicant has re-offended since being formally warned about the consequences of further offending in terms of the applicant's migration status - 8.1.1(1)(g).
6. As there is nothing to suggest that the applicant provided false or misleading information to the Department, 8.1.1(1)(g) is not relevant. Neither is 8.1.1(1)(i), as all of the applicant's offences were committed in Australia.
7. As noted above, the applicant has an extensive adult criminal history. He was first sentenced to a term of imprisonment as an adult on 26 October 1999. He has been sentenced to terms of imprisonment on eleven further occasions since then. On several occasions, the applicant has been sentenced to multiple terms of imprisonment for multiple offences. The fact that the applicant has been sentenced to terms of imprisonment on so many occasions supports a conclusion that his offending should be regarded as serious given that imprisonment is a penalty of last resort in NSW. In relation to this, s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) states that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.
8. As far as the impact of the applicant's offending on victims of his offending is concerned, there is relatively little evidence about this in relation to the applicant's most recent offences. While in the sentencing judgement the Court referred to the common assault committed on a McDonalds employee, stating that 'the harm done was only transient and does not amount to [actual bodily harm] ... there was a degree of force involved in the headbutt',[25] there are no other references in the judgment to the effect on victims.
9. The applicant was convicted of assault occasioning actual bodily harm in December 2016 in respect of an assault that occurred on 22 March 2013 and to which the applicant pleaded guilty. The sentencing judge noted that the applicant and his co-accused punched the victim to the head and neck area. The victim sustained a bleeding nose and soreness to his head, neck and face.[26] Whether or not the victim had lasting injuries as a result of the assault, I consider that being punched in the head and neck would be a distressing experience.
10. The December 2024 Pre-Release Report notes that the applicant tended to 'minimise the impact his offending behaviour had on the victims', that he did not believe his actions impacted on those purchasing drugs as they 'were already using' and he was 'merely supplying a need'. The report states that the applicant also minimised his possession of a firearm and ammunition as he 'wasn't out there doing stick up'.[27] However, the report states that the applicant was able to identify the risk to the community he posed through the police pursuit and did not blame the police involved in the pursuit.
11. At the hearing, the applicant the also tended to minimise the effect of his offending. When asked whether he considered his offending to be serious, he initially responded 'yes and no', stating that the majority of it was 'blown out of proportion' and that nobody was hurt by him selling drugs. He appeared to excuse his violent offending by saying that it was caused by drug use. However, later in the hearing, the applicant acknowledged that supplying drugs did have an adverse impact on users. He also acknowledged that property and dishonesty offences he had committed in the past adversely affected the victims of his offending.
12. I do not consider there has been a trend of increasing seriousness to the applicant's offending. In relation to this, an examination of the applicant's record shows that the nature of his offending has been reasonably consistent since his first offences as an adult, with multiple convictions for property offences, dishonesty offences, traffic offenses and drug offences, and comparatively few convictions for violent offences. However, as noted above, the applicant has frequently offended. At the hearing he agreed that he had probably been incarcerated for about twenty of the past twenty-five years. I conclude that the applicant's repeated offending has had an adverse impact on him, on his family and on the community.
13. The applicant has continued to offend notwithstanding having been given a warning when his visa was not cancelled in 2003.[28] He has also continued to offend after his visa was cancelled in 2009 and in 2020 and then reinstated after successful applications for review.
14. Overall, I consider that the applicant's violent offences should be viewed as very serious, notwithstanding the fact that the evidence does not suggest that those offences had lasting effects on the applicant's victims. Taking into account the relevant factors under 8.1.1(1), and particularly the impact of continued offending and the fact that the applicant has continued to offend after being given a formal warning and after previous cancellations of his visa were revoked, I consider that the balance of the applicant's offending should be viewed as serious.

1. In accordance with 8.1.2, when assessing the risk that the applicant may pose to the Australian community, I must have regard to, cumulatively:
   • The nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and
   • The likelihood of the applicant engaging in further criminal or other serious conduct, taking into account information and evidence about the risk of the applicant re-offending, as well as evidence of rehabilitation achieved by the time of the decision.
2. Given the nature and frequency of the applicant's offences I consider that the nature of the harm to individuals or the Australian community should the applicant engage in further criminal other serious conduct would be serious. As noted above, the applicant has committed drug supply offences, crimes of violence, crimes of dishonesty and property offences. He has also committed driving offences that have involved police pursuits. All of this conduct has the potential to seriously harm individuals and the Australian community. Crimes of violence can lead to physical and psychological injury and potentially death. This is also true of drug supply offences and driving offences giving rise to police pursuits. Property and other dishonesty offences can also cause significant harm to the individuals affected and, through them, to the community generally.
3. I have considered the likelihood of the applicant re-offending. On the evidence provided, I consider it likely that he will do so.
4. First, the December 2024 Pre-Release Report states that the applicant has been assessed at a medium risk of re-offending according to the Level of Service Inventory - Revised (LSI-R).[29] The August 2020 Pre-Release Report states that the applicant has been assessed at a T3/Medium-High risk of re-offending according to the LSI-R.[30]
5. Second, in sentencing the applicant in 2023, the Court stated that:[31]

On the basis of the evidence and in light of the offender's record of offending, including committing offences on parole and on bail, I can only be extremely guarded about the applicant's prospects of rehabilitation. > > It is not submitted that the court would find good prospects of rehabilitation nor that he was unlikely to re-offender (sic), and on the evidence I am not able find either.

6. Third, it is clear that much of the applicant's criminal history stems from his drug use. When asked at the hearing whether he would be able to not re-offend the applicant responded that he does not want to re-offend, as he's 'over it'. However, he acknowledged that he has said this before. The applicant's explanation for the offences of which he was convicted in 2023 was that he missed some methadone doses because of his employment, then lost his employment because of Covid, was unable to get social security benefits because he could not provide sufficient identity documents and then relapsed into methamphetamine use and supply. When asked whether he would take drugs again if he felt stress in the future, the applicant stated that he knows 'to never say never'. The applicant's history strongly suggests that he is likely to relapse into drug taking if he comes under stress. If this occurs, I consider it likely that the applicant will re-offend.
7. Fourth, the applicant's offending is extensive and has occurred over a long period of time. He also has a history of offending and other misconduct in prison. The applicant continued to re-offend after being formally warned and having had the benefit of two AAT decisions in his favour. In its 2009 decision the AAT stated (emphasis added):

.... There is a great deal of reason to be apprehensive about Mr Ngati's ability to put his life into a situation where he becomes an effective member of the community and a member of the community from whom no protection is required. Having said that, there are also good reasons, perhaps for the last time, to entertain a degree of confidence that he has both the motive, the opportunity and the support to achieve for himself the life that promised when he was 16, and which through his own conduct he has, up until more recent times, put significantly at disadvantage.[32]

8. When revoking the cancellation of the applicant's visa in 2020, the AAT listed the matters it considered lowered the applicant's risk of re-offending as follows:
   • the Applicant's now earnest desire to remain in Australia, maintain contact and live with his children, and his undertakings to abide by the law;
   • the Applicant has the support of his fiancé and extended family and has confirmed employment with his brother who is a fencing contractor;
   • the Applicant's apologies and remorse for his past actions, as displayed in his statements and evidence;
   • Despite being able to access drugs in prison the applicant has at last ceased his substance abuse; and
   • If allowed to retain his Visa, the Applicant could be in no doubt that this would be his last chance.
9. The factors identified by the AAT in 2020 did not prevent the applicant from re-offending. Those factors still operate, with the exception that the applicant's current job offer comes from his friend Mr Fuller rather than from his brother. Given that these factors did not prevent the applicant from relapsing into drug use and offending in 2021, I have no confidence that they would do so if the applicant were to be released into the community now.
10. Fifth, there is little evidence that the applicant has achieved rehabilitation. In relation to this, the applicant has spent no time in the community since his most recent convictions. In addition, he has not undertaken drug or other rehabilitation programmes during his current period of incarceration, which I accept is due to the availability of such programs to an inmate with the applicant's A2 classification and other issues to do with his management in the prison system. However, there is evidence that the applicant undertook such programs in the past.[33] Given the applicant's re-offending since that time, it is clear that the programs were not successful. In this regard, the applicant stated that he has tried to do courses in the past, but they did not help. He stated that 'if you don't want to, it won't work'. He further stated that the only thing he has ever gained from doing a course was the concept of doing a cost benefit analysis, which he learned in a positive lifestyle program. The evidence does not suggest that this strategy, to the extent that he has used it, has helped the applicant in the past or that it would do so if the applicant came under stress in the future.
11. Although the applicant is compliant with methadone treatment, the evidence suggests that he has been on a methadone program for a significant period of time. As noted above, the applicant claims that he missed methadone doses because of the demands of his employment in early 2021. However, in circumstances where the applicant explains his relapse into taking methamphetamines and offending on the loss of his employment due to Covid and an inability to obtain social security payments, rather than on missing some methadone doses, I do not accept that being on a methadone program operates as a factor that would reduce the risk of the applicant re-offending.
12. In addition, the applicant's oral evidence leads me to conclude that he has not developed effective strategies to cope with stressful situations that may arise in the future without falling back on drug taking, with the inherent risk that this will lead him to re-offend. When asked at the hearing what he would do differently this time around, the applicant stated that his strategy for not using drugs would be to stay with his partner and their children and 'try not to impress anyone'. He stated that he 'would take everything slow' and 'not worry about racing around doing everything'. To avoid being involved in violence, the applicant stated that he would 'take a step back' and 'assess what would happen'. Given the applicant's history, I consider these strategies are unlikely to prevent the applicant from relapsing into drug use or re-offending - including re-offending involving violence - in a stressful situation. I note that the applicant indicated that he was open to going to counselling and that he wanted to obtain help, but his evidence did not suggest that he has investigated any options for that to occur outside the prison environment.
13. Further, as noted above, the applicant's oral evidence at the hearing indicates that he retains a tendency to minimise his offending. His oral evidence also suggested that he tends to deny his offending. In relation to this, at the hearing the applicant claimed that the drugs found on him in 2021 were for his personal use only, even though he pleaded guilty to and was convicted of a supply charge in 2023. He denied having assaulted the McDonalds worker, claiming that he was the one who was assaulted. The applicant also denied having verbally threatened a police officer and denied having assaulted a police officer, despite having pleaded guilty to and having been convicted of such offences. This suggests that the applicant has developed little insight into his offending.
14. Sixth, while I accept that the applicant feels remorse, I consider that his remorse is limited. In relation to this, I note what the District Court stated concerning this issue when sentencing the applicant in May 2023:[34]

Ms North stated in her report that the offender "had accepted > > responsibility and expressed regret for his offences." Clearly this is not a direct > > quote of what the offender said. Other than the offender stating that what he > > told Ms North was true in his affidavit, there is no further evidence of remorse. > > The offender did not give evidence. > > I accept that there is some contrition in the offender's plea of guilty to the > > court. > > However, I note the number of offences committed by the offender. On > > the basis of the evidence before me, I am not satisfied that the offender has > > met what is a requirement in respect to that specified in s21A(3)(i) Crimes > > (Sentencing Procedure) Act 1999[36] in terms of remorse, and accordingly I do not > > make that finding.

15. When sentencing the applicant in December 2016, the District Court stated:[37]

So far as Ngati is concerned, other than his one page statement, no > > evidence was put before me on sentence. In those circumstances it is difficult > > to come to any view other than that which is revealed by his lack of remorse > > for this offending, and by his criminal record. His record for offences of > > robbery and theft, and other like offences, is significant. He shows no sign of > > remorse. His attitude to compliance whilst in custody can only be regarded as > > poor, and in those circumstances I find his prospects of rehabilitation are poor.

16. Similarly, when sentencing the applicant for other offences in June 2016, the District Court stated that it made no finding that the applicant was remorseful and no finding that he had good prospects [of rehabilitation].[38]
17. In my view, the applicant's tendency to minimise and (to an extent) deny his offending also demonstrates that his remorse is limited. While he acknowledges that drugs and a deterioration in his mental health have led him to make poor choices, I conclude that the applicant's remorse is motivated more by regret for what he has put his family through and distress at the situation in which he finds himself than it is by remorse for the offending itself or the effect of the offending on his victims.

Conclusion in relation to protection of the Australian community

1. I have found that the applicant's offences were serious to very serious. I accept that should the applicant again engage in similar conduct the resulting harm to an individual and more broadly to the Australian community would be serious. I consider it likely that he will re-offend. I also consider that the applicant has demonstrated limited remorse.
2. The view of the Government is that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. In this regard, I have had regard to 8.1.2(1), which states that '[s]ome 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'.
3. This is a case in which the Government's view as expressed in 8.1.2(1) is persuasive.
4. The applicant was not deterred from re-offending by the support of his partner, children and extended family. He was not deterred from offending by the death of his father in 2016 and his older son KN in 2017 and the fact that he could not attend their funerals because he was incarcerated. He was not deterred from offending by a formal warning of the consequences of offending. He was not deterred from re-offending by AAT decisions in his favour. I accept that the applicant genuinely wants to stop offending and turn his life around. I also accept that the applicant was sexually abused as a child and young person and that this led to drug use and offending. However, I consider the nature and seriousness of the applicant's offending and the likely impact on victims and on the Australian community if the applicant were to re-offend makes unacceptable any risk that the applicant's offending may be repeated.
5. I conclude that protection of the Australian community weighs very strongly against revoking the cancellation of the applicant's visa.

1. The applicant has not committed a family violence offence. This consideration is neutral.

The strength, nature and duration of ties to Australia - 8.3

1. In accordance with 8.3(1) of the Direction, I have considered the impact of the decision on the applicant'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. The applicant's immediate family members who are either Australian citizens or who have a right to remain in Australia indefinitely are his partner Ms DK, his children JN, AN and LN, and his mother and siblings.
3. As AN and JN are minors, I have considered the impact of the decision on them when considering the best interests of minor children affected by the decision.
4. In relation to Ms DK, the applicant and Ms DK have been in a relationship since they were teenagers and have had four children together. In a letter of support provided to the Tribunal, Ms DK states that the applicant's removal from Australia would have a devastating impact on their family and that it would not only punish the applicant but would also tear their family apart. Ms DK states that she knows the applicant's faults, but also his strengths, kindness and determination to do better. Ms DK further states that moving to New Zealand is not an option for her.
5. In oral evidence, Ms DK stated that she has a good relationship with the applicant and that he has a good relationship with their children. She stated that the applicant is supportive of her, and she knows the different person he is when he's not taking drugs. When asked to confirm that she and the children would not move to New Zealand to be with the applicant, Ms DK initially stated that she could not live there and that she does not know anyone there. Later in the hearing, when questioned about the same issue, Ms DK said that she would ask the children about moving to New Zealand. However, she reiterated that it would not be possible for her to go, as she has no support there and everything she knows is in Australia. Ms DK stated that she is no longer her mother's carer, which had been the case in 2020 when the applicant was last before the AAT. Nor does she have a close relationship with her mother. However, she has a close relationship with her brother, her sister-in-law and their children and grandchildren, as well as with the applicant's mother and family. She would have no such relationships in New Zealand.
6. JN is the applicant's older daughter. She is twenty years of age, is in her first year of a nursing degree at Western Sydney University and works as a disability support worker. In her letter of support, JN relevantly states that balancing her university and her work require a great deal of support, and she relies heavily on her family, especially her father. JN states that although her father is currently in jail, he is still a crucial part of her life. She continues to contact him and maintain a close relationship with him. JN states that knowing he is in Australia, where she can stay connected to and supported by him, brings her comfort and strength during a challenging time in her life.
7. JN states that her father has always been a source of guidance and support. She believes that being close to family is an important part of rehabilitation, healing, and growth and that her family remains united, and is committed to supporting one another. JN states that it is not possible for her to move to New Zealand, as her education, her job, and her future are all in Australia. She states that she has worked hard to build a stable and meaningful life and having her parents, brother, and sister by her side is essential to her continued success and wellbeing. JN submits that removing her father from Australia would deeply affect her entire family.
8. Based on the letters of support provided by Ms DK and JN and Ms DK's oral evidence, I accept that the removal of the applicant to New Zealand would have a devastating impact on them, particularly if the family does not move to New Zealand to be with him. It is clear that notwithstanding the applicant's criminal history and long periods of incarceration, the family has maintained a close and loving relationship. I accept that Ms DK has no support in New Zealand. I consider it would be very difficult for her to move to New Zealand with the younger children without some level of family support, particularly given the risk of the applicant re-offending. I further accept that JN's studies, work and life are in Australia. It would be very difficult for her to move to another country at this stage of her life.
9. The applicant's mother is Irene Ngati, and his siblings include but are limited to his brothers Rua, William, Morgan, John and Bulwark, and his sisters Manua, Dannielle, Teetu and Helen. Neither the applicant's mother nor his siblings provided letters of support in these proceedings. However, letters of support were provided by the applicant's mother, a cousin, several of his siblings and his sister-in-law in connection with the AAT proceedings in 2020. These letters were before the delegate and are included in the HB at pages 422 to 442. I accept that the applicant's mother and siblings remain supportive of the applicant and would be adversely affected if the applicant was removed to New Zealand.
10. I have considered the strength, nature and duration of other ties the applicant has to the Australian community. In doing so, I have placed weight on the fact that the applicant arrived in Australia more than forty-three years ago, as an eleven-month-old baby. He has lived in Australia for almost all of his life, including his formative years. The applicant has not travelled outside Australia since his arrival as a baby.
11. The applicant has a large extended family in Australia. While there is no direct evidence on this point, I accept that the members of the applicant's extended family are either Australian citizens or have the right to remain in Australia indefinitely. The applicant has submitted that he has four uncles, six aunts, more than seventy nieces and nephews and more than twenty cousins in Australia.[39] This includes nephews and nieces who are minors, who I have considered separately. I accept that members of the applicant's extended family would be adversely affected if the applicant were removed to New Zealand.
12. Although the applicant's most extensive ties to Australia are through his immediate and extended family, he also has ties through friends. In this regard, I note the letter of support from Kyle Fuller and Amita Roy.[40] They relevantly state that they have built a personal connection with the applicant over several years. They write of their support for him and the employment they expect to offer him. They also state that they will provide any practical or emotional support he needs. I accept that the Mr Fuller and Ms Roy are genuinely supportive of the applicant and would be adversely affected if he was removed from Australia.
13. While the applicant has an extensive criminal history as an adult, when not incarcerated he has been employed as a steel fixer, labourer and landscaper. I accept that through his employment, the applicant has made some contribution to the Australian community. However, that contribution is limited, as the applicant has spent a large part of his adult life in prison.
14. I note the letter of support provided in 2020 by the applicant's cousin Peti Ngati, which refers to the applicant's role in The Fires of the South Seas, a non-profit organisation involving South Pacific music and performing arts. I accept that the applicant has played a role in this organisation, although given the periods the applicant has been incarcerated, I conclude that his role has been limited.
15. Overall, given the adverse effect the removal of the applicant would have on his immediate and extended family - and most particularly on Ms DK and JN - I consider that this consideration weighs very strongly in favour of revoking the cancellation decision.

The best interests of minor children in Australia - 8.4

1. In accordance with 8.4(1) of the Direction, I have considered whether the refusal of the applicant's visa application is in the best interests of applicant's minor children AN and LN, and of his minor nephews and nieces.
2. I note the factors to be considered in respect of this consideration, which are set out in 8.4.(4).
3. I have first considered the best interests of AN and LN.
4. Although the applicant has spent significant time in custody and relatively little time in the family home since the birth of AN and LN, they have daily contact through phone calls and regular contact through video calls. The applicant's incarceration in a maximum-security prison necessarily limits the contact he has with AN and LN and he stated at the hearing that he does not like them to visit him there and they do not like doing so. However, there are no court orders in place that restrict contact between the applicant and his minor children, nor any Court orders relating to parental access or care arrangements.
5. I accept that the applicant has maintained a loving parental relationship with AN and LN by electronic means. I accept that the applicant's relationship with his children is as close as it could be in circumstances where the applicant is currently an inmate in a maximum-security prison and has been incarcerated for a considerable part of their respective lives.
6. I accept Ms DK's evidence that the applicant provides advice and support to AN and LN. I also accept that she genuinely believes the applicant to be a good role model for them, although this was qualified by her evidence that they do not know what the applicant has done. I conclude that the applicant's prior conduct has had an impact and AN and LN, because his criminal conduct has directly led to him being incarcerated for lengthy periods of time, which means that his parental role has been necessarily limited. If the applicant again engaged in criminal conduct, this would also affect AN and LN, for the same reason.
7. That said, I consider that the impact on AN and LN of the applicant's conduct is indirect rather than direct. I reach this conclusion because the applicant has not committed acts of family violence. AN and LN have not witnessed such violence or other abuse or been subjected to it and are not at risk of being exposed or subjected to family violence or other abuse in the future. Nor have they suffered or experienced any physical or emotional trauma arising from the applicant's conduct. In addition, while the applicant both used and supplied drugs, I accept Ms DK's evidence that he did not use drugs in the home and was able to hide his drug use from the family.
8. I have considered the extent to which the applicant is likely to play a positive parental role in the future, taking into account the length of time until AN and LN turn eighteen. Neither AN nor LN are young children. AN is now 15 years old and will turn eighteen in three years. This necessarily means that the applicant's time to play a positive parental role during AN's childhood is limited. LN is thirteen years old, so the applicant has five years in which to play a positive parental role before LN becomes an adult.
9. I have also considered AN and LN's views. AN and LN have both written letters of support for their father. Given their age, I consider that weight should be placed on their views.
10. In his letter, AN relevantly states (grammatical errors unchanged):

I am writing a letter to tell you how hard it's been not having my dad around. I'm really struggling without my him and I need him back home with me. My dad is always there for me his my best friend, my support and someone I can talk to when I feel upset. Since his been gone everything has felt different. I feel like A big part of me is missing. It's been hard to focus on school and with everyday life without him. Losing my brother broke my heart ad now I'm scared I'm going to lose my dad. My dad has made mistakes but I know he's trying to change and do better I need him here to guide and support me. I am still growing and need my dad in my life.

I am writing this letter because I want to ask you not to send my dad away. He is a big part of my life and I need him here with me. My dad is always there for me and I love him so much. He helps me with my school stuff talks to me when I am feeling down and makes me laugh when I am sad. He teaches me right from wrong and always tells me to make good choices and believe in myself. If my dad gets taken away it will break my heart. I can't imagine growing up without him and I want him to see me grown up and be here for all the big moments in my life. My dad loves us and we love him and can't wait for him to be back home with us. Pleases let our family stay together.

12. On the basis of the letters provided to the Tribunal by AN and LN, I accept that they are genuinely attached to the applicant, see him as a positive influence in their lives and want him to remain in Australia.
13. I have considered the likely effect on AN and LN of the applicant being returned to New Zealand.
14. On the basis of the applicant's and Ms DK's oral evidence, I conclude that AN would be particularly adversely affected by the applicant's removal. I accept that the applicant and Ms DK are very concerned about AN, who has refused to attend school for the past twelve months, does not go out with friends, never leaves the house and generally stays in his bedroom on a screen all day. I further accept that AN has gained a large amount of weight in a short period of time, now weighing around 120 kg. I accept Ms DK's oral evidence that AN's current issues arose from an episode of bullying at school, which has escalated. I accept that AN refuses to see a doctor or a counsellor and says that he is waiting for his father to come home. This is clearly a very distressing situation for the applicant and for Ms DK. I accept that they believe that AN's situation will further deteriorate if the applicant is removed to New Zealand, as this will mean that he will never return to the family. In circumstances where AN has said that he is waiting for his father to come home before he will see a counsellor or a doctor, I accept that the applicant's removal to New Zealand is likely to have a significant adverse effect on his physical and mental health.
15. In relation to LN, Ms DK's evidence, which I accept, is that her daughters are doing okay, because they have their mother. I further accept Ms DK's evidence that while LN is shy, she has now settled into her first year of high school and is doing well. I also accept Ms DK's evidence that although LN is doing well, she misses the applicant. On the basis of Ms DK's evidence, I consider that the impact on LN of the applicant's removal to New Zealand, while distressing, would not be as serious as it would be on her brother.
16. Given that the applicant faces outstanding charges, it is possible that he would not return to the family home for a lengthy period of time even if he is not removed to New Zealand. Furthermore, the last time the applicant was released from prison in late 2020 he was in the community for only a matter of months before he re-offended and was returned to prison. Given the risk of the applicant re-offending, he may not remain in the community with his family for an extended period of time in any event. However, I acknowledge that the presence of the applicant in Australia, with the potential that he will return to the family home, is a more positive situation for AN and LN than the removal of the applicant to New Zealand.
17. That said, AN and LN live with Ms DK, who provides for their needs, even though she relies on the applicant's emotional support in her parenting role. It is clear from Ms DK's evidence that during the applicant's periods of incarceration, the main responsibility of parenting AN and LN and the applicant's older children has fallen on her. While I accept that the applicant has actively supported Ms DK when he has not been incarcerated and otherwise supports her through their daily electronic communication and Ms DK's regular visits, the burden of parenting has fallen predominantly on Ms DK.
18. The applicant's support to AN and LN is provided by way of telephone and video calls. While this is not the ideal form of communication between a parent and child, if the applicant goes to New Zealand and Ms DK and the children do not go with him, the applicant will still be able to play a role in AN and LN's lives by talking to them on the phone every day and through regular video calls. This is the method by which he communicates with them now.
19. I have considered the interests of the applicant's nephews and nieces.
20. The applicant was unable to specify how many minor nephews and nieces he has, nor their ages. However, given how many siblings the applicant has, I accept both that he has many nephews and nieces and that a significant number of them are minors. The applicant's evidence did not distinguish his nephews and nieces from each other. I conclude that their interests are the same for the purposes of this consideration.
21. I accept that the applicant receives visits from his nephews and nieces from time to time. I also accept that the applicant's siblings have called on him to give advice to nephews and nieces. From the applicant's oral evidence, it appears that this has occurred in the context of his siblings wanting him to give advice to their children so that they avoid getting into trouble.
22. The applicant confirmed that his minor nephews and nieces are cared for by their parents.
23. While I accept that the applicant plays a positive role in the lives of his nephews and nieces, he does not have a parental role. He could continue to play a role in their lives through phone and video calls if he were removed to New Zealand.
24. I conclude that it is in the best interests of AN and LN for the applicant not to be removed to New Zealand. Given the issues the applicant and Ms DK currently face with AN, it is particularly not in his best interests for this to occur. It is also in the best interests of his minor nephews and nieces, albeit to a lesser degree.
25. Overall, I consider that this consideration weighs very strongly in favour of revoking the decision to cancel the applicant's visa.

1. In relation to this consideration, 8.5(1) of the Direction states:

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 remain in Australia.

2. In accordance with 8.5(4) of the Direction, I must consider the expectations of the Australian community as a whole and proceed on the basis of the Government's views expressed in the Direction, without independently assessing the community's expectations in the particular case.[41]
3. In RCLN v Minister for Immigration, Citizenship and Multicultural Affairs,__[42] Horan J stated:

The assessment of community expectations is therefore not a matter of evidence, and does not turn on the personal circumstances of the individual non-citizen: compare, in relation to an earlier iteration of the Ministerial direction: FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [66] -[67] , [74] -[75] (Charlesworth J), [91]-[93], [103]-[104] (Stewart J); see also CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634 at [29] -[30] (Moshinsky, O'Bryan and Cheeseman JJ). The "degrees of tolerance" referred to elsewhere in the Direction "are matters that fall for consideration by the decision-maker in the ultimate exercise of his or her discretion" (or, in the present context, the determination whether there is another reason to revoke the original cancellation decision), and "in determining whether it is appropriate to give more or less weight to a deemed community expectation of visa refusal that might otherwise arise simply because of the nature of the non-citizen's character concerns or offences": FYBR at [77] (Charlesworth J). In other words, the decision-maker can take into account the personal circumstances of the individual non-citizen in so far as they are relevant to another primary consideration or one of the other considerations, and adjust the relative weight to be given to each of the primary and other considerations accordingly.

4. The applicant has engaged in conduct in breach of Australian laws. The Australian community therefore expects the Government to not allow the applicant to remain in Australia. The fact that the applicant has committed offences against police officers and corrective services officers in the performance of their duties also raises serious character concerns and may make it appropriate for the applicant not to be allowed to remain in Australia.
5. The Australian community may afford a higher level of tolerance of criminal or other serious conduct by a person such as the applicant who has lived in the Australian community for most of his life. However, given the nature of the applicant's offences and his repeated breaches of the expectations of the Australian community, I conclude that this factor weighs very strongly against revoking the cancellation of the applicant's visa.

1. A legal consequence of the decision to cancel the applicant's visa not being revoked is that once he is released from prison, he will be placed in immigration detention pending removal from Australia under s 198 of the Act, which in accordance with s 198(2B) would need to occur as soon as reasonably practicable.
2. Another legal consequence is that there will be significant restrictions on the applicant's ability to apply for another visa. An application for any visa other than a protection visa would be subject to s 501E; that is, it could not be made from within the migration zone unless it was for a Bridging Visa R (Class WR) as prescribed by cl 2.12AA of the Migration Regulations 1994. The applicant could only apply for such a visa in response to an invitation.
3. Neither the documentary evidence before me nor the applicant's oral evidence at the hearing suggest that his circumstances engage Australia's non-refoulement obligations.
4. Further, depending on the visa that may be applied for once the applicant is offshore, the applicant may be subject to indefinite (or permanent) exclusion as he may not be able to meet Special Return Criteria 5001(c) if it applies to the relevant schedule 2 criteria of the visa.
5. In circumstances where the applicant has lived in Australia for all but the first eleven months of his life, I consider that the legal consequences of the decision - and specifically the possibility of permanent exclusion from Australia - weigh very strongly in favour of revoking the decision to cancel the applicant's visa.

1. This consideration refers to impediments the applicant may face if removed from Australia to New Zealand, in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of New Zealand. I must take into account the applicant's age and health, whether there are substantial language or cultural barriers, and any social, medical and/or economic support available to him in New Zealand.
2. The applicant is 44 years of age and suffers from both physical and mental health issues.
3. In relation to his physical health, the applicant apparently has venous thrombosis, hypertension, asthma and possibly Type 2 diabetes. In relation to his mental health, the applicant has been diagnosed with depression and paranoid schizophrenia, the latter condition possibly caused by a drug-induced psychotic episode. Dr Roberts has also diagnosed him with post-traumatic stress disorder, substance use disorder and poor impulse control disorder.
4. In his request for revocation of the cancellation of his visa, the applicant has threatened to commit suicide if he is returned to New Zealand.[43] In oral evidence at the hearing, he stated on more than one occasion that he would not return to New Zealand and that he would only go 'in a box'. The medical evidence before me does not suggest that the applicant has attempted suicide previously. However, regardless of whether he has actual suicide ideation, the threats made by the applicant in this regard must be taken seriously. They demonstrate the high level of distress the applicant feels at the thought of being removed to New Zealand. I accept that the applicant's distress in this regard is genuine. I conclude that in these circumstances, the applicant's mental health is likely to deteriorate if he is removed to New Zealand.
5. The applicant has neither visited nor lived in New Zealand since he was a baby. As he stated at the hearing, everything he has learned in life he has learned in Australia. I consider that the fact that the applicant has spent virtually all of his life in Australia, combined with applicant's mental and physical health issues and drug dependency mean that he will have very significant difficulty establishing himself in New Zealand. In addition, the fact that the applicant has spent much of his adult life in prison will also create significant difficulties for him. This is so even though, given the similarities between Australia and New Zealand, the applicant would not face language or cultural barriers in that country.
6. I accept that Ms DK and the applicant's children are unlikely to relocate to New Zealand to be with the applicant. I also accept that the applicant does not have extended family in New Zealand who could provide him with assistance and support. The fact that the applicant will be without family support will significantly increase the difficulty the applicant will have establishing himself in New Zealand. Further, the lack of assistance and support from the applicant's partner, children and other family members could exacerbate his mental health conditions.
7. The applicant has not worked in New Zealand previously. I consider that the applicant's criminal record, physical and mental health issues, history of substance abuse and lack of significant employment history will make it particularly difficult for him for him to find a job in New Zealand. That said, I am satisfied that the applicant would be entitled to the same services available to other New Zealand nationals, including physical and mental health care and income support. The applicant has previously claimed that he would be subject to a two-year waiting period for social security benefits. However, no evidence has been provided to support that proposition and the applicant did not press that argument at the hearing, although he and Ms DK indicated that they had not investigated this issue to any extent and had particularly not investigated any entitlement Ms DK might have to social security benefits in New Zealand.
8. I find that the applicant will face very significant impediments if he is removed to New Zealand. He is likely to have great difficulty establishing himself in New Zealand after living in Australia for effectively all of his life.
9. I conclude that this consideration weighs very strongly in favour of revocation of the cancellation of the applicant's visa.

1. In relation to this consideration, I must consider any impact on Australian business interests if the applicant is not allowed to remain in Australia. I note that an employment link would generally only be given weight where the decision would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
2. The applicant has worked in Australia in the past and could be expected to work in the future, subject to his health and risk of re-offending, with the consequent risk of again being incarcerated. While he has received a job offer in Australia, there is no evidence that Mr Fuller could not find another person to fill that role or that his business will fail if the applicant does not work for him. In these circumstances, there is no evidence that a failure to revoke the decision to cancel the applicant's visa would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
3. I conclude that this factor is neutral.

1. I have made the following findings concerning the relevant primary considerations in the Direction:

(a) Protection of the Australian community against criminal and other serious conduct weighs very strongly against revoking the cancellation of the visa. > > (b) The family violence consideration is neutral. > > (c) The strength, nature and duration of ties to Australia weigh very strongly in favour of revoking the cancellation of the visa. > > (d) The best interests of the minor children weigh very strongly in favour of revoking the cancellation of the visa. > > (e) The expectations of the Australian community weigh very strongly against revoking the cancellation of the visa.

2. I have made the following findings concerning the other considerations:

(a) The legal consequences of the decision weigh very strongly in favour of revoking the cancellation of the visa. > > (b) The extent of the impediments if the applicant were removed to New Zealand weigh very strongly in favour of revoking the cancellation of the visa. > > (c) Australian business interests are neutral.

3. However, compliance with the Direction is not achieved by focussing upon the weight I have given to the various considerations in isolation. In deciding this case I must 'bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together'.[44]
4. In CRNL v Minister for Immigration, Citizenship and Multicultural Affairs stated:

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.[45]

5. As noted above, 7.2 of the Direction states that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. It also states that primary considerations should generally be given greater weight than 'other' considerations.
6. In this case the relevant considerations weigh either very strongly against revoking the cancellation of the applicant's visa or very strongly in favour of doing so. This arises from the applicant's personal and family circumstances being considered in conjunction with his criminal history, taking into account the fact that he has lived in Australia for almost all of his life. I have found that the protection of the Australian community and the expectations of the Australian community weigh very strongly in favour of not revoking the cancellation of the applicant's visa. Balanced against this are the applicant's ties to Australia, including his relationship with his Australian citizen partner and adult daughter, the best interests of his minor children and, to a lesser extent, those of his nephews and nieces, the legal consequences of the decision and the impediments the applicant will face on removal to New Zealand.
7. I conclude that this is a case where the protection of the Australian community and the expectations of the Australian community that the applicant's visa should remain cancelled should be given greater weight than the both the other primary considerations and the other considerations. I base this conclusion on the seriousness of the applicant's offending, the likelihood that he will re-offend, the limited evidence of rehabilitation, and the fact that the applicant has continued to offend notwithstanding having been given a warning by the Minister in 2003 and favourable decisions on review by the AAT in 2009 and 2020.
8. I acknowledge that the applicant genuinely wants to stop using drugs and to stop offending. I acknowledge that the applicant has lived in Australia since he was a baby, that he has suffered sexual abuse in this country, that he developed a drug habit in this country and that his offending has occurred in Australia and has stemmed in large part from his drug habit.
9. I also acknowledge that the applicant has a close relationship with Ms DK, with his children and with his other close and extended family members. I accept that they will be adversely affected by the applicant's removal from Australia and that the applicant will have serious difficulty establishing himself in New Zealand. However, neither the applicant's relationship with Ms DK and his children, his relationship with other family members, their support for him, the warning from the Minister in 2003 or the AAT's decisions in 2009 and 2020 have deterred the applicant from offending, which has put the Australian community at risk. Given my finding that the applicant is likely to re-offend in the future, the applicant remaining in Australia will continue to put the Australian community at risk. The protection of the Australian community should be given priority over the considerations which weigh in favour of revoking the cancellation of the applicant's visa.
10. I conclude that there is not another reason to revoke the cancellation of the applicant's visa. I have therefore affirmed the decision under review.

[1] This is because the correctional centre uses different video conferencing technology from that used by the Tribunal.

[6] At the hearing, the applicant stated that there were fifteen children. He is also reflected in a report prepared by Dr John Roberts, a consultant forensic psychiatrist, which is at HB 703-717. Whether the applicant was one of fourteen children or fifteen children is not relevant for the purposes of these proceedings.

[7] HB pages 703-717. Dr Roberts' report was in material summonsed by the Minister. It has apparently been prepared for the purposes of proceedings connected with the applicant's claims to have been sexually abused at school. Dr Roberts did not give evidence.

[8] This list does not include the offences of which the applicant has been convicted in 2023, which led to the cancellation of his visa. These offences are set out below.

[9] This offence relates to an assault on prison officers.

[16] When sentencing an offender for an offence (the principal offence), a court may take into account additional charges with which the offender has been charged but not convicted (further offences). The offender must want the further offences to be taken into account and a court may only take the criminality of those further offences into account if certain criteria and formalities have been met: Crimes (Sentencing Procedure) Act 1999 ss 32, 33 and 35A. See Sentencing Bench Book - Judicial Commission of New South Wales - November 2024 - at [13.100] - Accessed on 25 March 2025. The Form 1 offence is not a conviction. See Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 488 at [53] to [54] and Jattan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 86 at [117].

[23] [2022] FCAFC 19.

[24] [2018] FCA 594 at [23].

[33] For example, the Immigration Report prepared by the Probation and Parole Service on 30 October 2008 when the applicant was serving a seven year sentence form 17 July 2005 to 14 July 2012 (with a non-parole period of four years to 14 July 2009) states that the applicant had completed a six session program on Mental Fitness and Alcohol and Other Drug programs including Breakout, Making Changes and Relapse Prevention, as well as a short program on Health Survival Tips: see HB pages 246-249 at page 248. Another Immigration Report, prepared by the Probation and Parole Service on 19 May 2009 (which is during the same period of imprisonment) relevantly refers to the applicant also having completed a course in Anger Management: see HB pages 243 to 245 at page 244. A Pre-Release Report prepared on 19 August 2020 states that in September 2018 the applicant commenced the EQUIPS Addictions Program and completed five sessions before being returned to segregation. The report further states that in June 2020, the applicant was provided with the Getting Past Addictions workbook, to complete in his own time. At that time he was also completing the Practice Guideline to Intervention Modules of Managing Environment, Managing Cravings and Managing Stress, during his supervision sessions with his Community Corrections Officer. The report states that the applicant applied himself well to these interventions and was making positive progress: See HB pages 617 to 626 at page 622.

[36] Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that an offender's remorse is a mitigating factor in sentencing, but only if the offender has provided evidence that they have accepted responsibility for their actions and have acknowledged any injury, loss or damage caused by their actions and/or made reparation for such injury, loss or damage.

[41] See Ismail v Minister for Immigration, Citizenship & Multicultural Affairs [2024] HCA 2, at [38] and [51] to [52].

[42] [2024] FCA 876 at [56].

[44]CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [28].