1. Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this provides that:

4) The Minister may revoke the original decision if:

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

b) the Minister is satisfied:

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

1. I am satisfied that the Applicant made the ultimately unsuccessful representations required by s 501CA(4)(a) of the Act. There remain two issues presently before the Tribunal. They are:

a) whether the Applicant passes the character test; and if not

b) whether there is another reason why the decision to cancel the Applicant's Visa should be revoked.

1. The Applicant does not pass the character test as a matter of law.[1] It is clear from his criminal history that he has received a sentence of imprisonment of 12 months or more[2] and thus has a "substantial criminal record"[3] which, in turn, compels this Tribunal to find he does not pass the character test. There was a helpful concession from the Applicant's representative at the Hearing in this regard which has its echo in the Applicant's Statement of Facts Issues and Contentions ("SFIC")[4], that he does not pass the character test for present purposes.

Is there another reason why the Decision to cancel the Applicant's visa should be revoked?

1. In considering whether there is another reason to revoke the mandatory cancellation of the Applicant's visa,[5] the Tribunal is bound by section 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction 110[6] has application.
2. For the purposes of deciding whether or not to revoke the mandatory cancellation of a

non-citizen's visa, the Direction contains several principles that must inform a decision maker's application of the considerations relevant to the decision. The principles found in paragraph 5.2 of the Direction are as follows:

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community. > > (2) 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 measurable 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 non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

3. Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and 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

(5) expectations of the Australian community.

1. Paragraph 9 of the Direction sets out three Other Considerations which must be taken into account. These considerations are:

a) legal consequences of the decision; > > b) extent of impediments if removed; and > > c) impact on Australian business interests.

2. I will now consider each of these primary and other considerations as may be relevant to the instant facts. Before doing so, I will note the mutually held positions of the parties that Primary Consideration 2 "family violence" and Other Considerations (a) "legal consequences of the decision" and (c) "impact on Australian business interests" are not relevant to determination of the instant application.[7]

PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

1. In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction stipulates that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Direction further provides that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
2. In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:

a) the nature and seriousness of the non-citizen's conduct to date; and > > b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

The nature and seriousness of the Applicant's conduct to date

1. When assessing the nature and seriousness of a non-citizen's criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:

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

(i) violent and/or sexual crimes;

(ii) crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;

(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

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

(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));

(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

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

(d) the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;

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

(f) the cumulative effect of repeated offending;

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

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

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

Application of factors appearing at paragraph 8.1.1(1) of the Direction

1. Prior to assessing the nature of the Applicant's unlawful conduct in this country, it is necessary to make a specific finding in relation to which of his offences can be taken into account for present purposes. I am mindful of the risk involved in taking into account offending in respect of which a "no conviction recorded" notation appears as part of the language of the sentence. The Applicant has committed some 80 offences in Australia that were dealt with at 16 separate sentencing episodes. The first two offences (dealt with at the first two sentencing episodes) involved the commission of two offences which were convicted on the basis of a "no conviction recorded" notation in the sentencing language. Out of an over-abundance of caution, I will not have regard to those first two convictions because of these respective notations in the sentencing language.
2. That leaves a criminal history involving:
   • the commission of some 78 offences;
   • 14 separate sentencing episodes at (1) the Brisbane and Beenleigh Magistrates Court; and (2) the Brisbane Supreme Court.
   • an offending period running (on the basis of applicable sentencing dates) from October 2013 to August 2023, a period of some 10 years;
   • offending in the realms of:
     • property offences;
     • illicit drug offending (incl. possession of utensils, possession (of illicit drugs) simpliciter and trafficking);
     • possessing anything used in the commission of a crime;
     • breaches of extant orders (including bail);
     • weapons offences;
     • failure to follow a lawful direction (to stop his vehicle);
     • unlawful use of a motor vehicle;
     • possession of unauthorised and prohibited explosives;
     • fraud and dishonesty offences;
     • unauthorised dealing with shop goods;
     • possession of counterfeit money;
     • obstructing Police officer.

1. In terms of sentencing episodes that dealt with the Applicant's offending, there are, as I mentioned earlier, 14 that I will take into account. The offending that I take into account for present purposes attracted 16 years and 8 months of head custodial time and approximately $1,300 in fines.

1. The chapeau to this paragraph refers to offending that is viewed very seriously by the Australian Government and the Australian community. While the Applicant's offending might not, at first blush, fall within any of the three categories of offending contemplated by this paragraph, the chapeau to this paragraph does not limit the range of conduct that may be found to be very serious. This Applicant has a conviction for trafficking in dangerous drugs which, to my mind, should now be found to be very serious. Simultaneous with his conviction for trafficking, he was also convicted for possess dangerous drug specified in Schedule1 or 2, two counts of possessing dangerous drugs Schedule 1 drug quantity of or exceeding Schedule 3 but less than Schedule 4 and a further count of possessing dangerous drugs.
2. The details of this latter charge involved the Applicant being found in possession of testosterone, amphetamines and methamphetamine. I am comfortably satisfied that this level of illicit drug offending is within the range of conduct that should now be found to very serious for present purposes.

1. The chapeau to this paragraph stipulates four modalities of illegal conduct that is considered serious by the Australian Government and the Australian community. I am satisfied the Applicant has not caused another person to enter into a forced marriage nor has he been a party to such a marriage.[8] Similarly, I am not able to glean from his criminal record any conduct that forms the basis for a finding that he does not pass the character test that is dependent upon my opinion. But that is not the end of the inquiry for the purposes of this paragraph.
2. The Applicant has committed crimes against government representatives or officials (i.e the Police) as a result of his respective convictions for fail to stop vehicle (x6); fail to comply with requirement to stop vehicle (x1); contravene direction or requirement (x1) and obstruct police officer (x1). This conduct falls squarely within paragraph 8.1.1(1)(b)(ii) and is conduct that can be found to be at least "serious" for present purposes. Similarly, the Applicant has been convicted on two counts of possessing dangerous drugs comprising methamphetamine and Gamma Hydroxybutyric Acid during his time in immigration detention. This conduct is regarded as "serious" by paragraph 8.1.1(1)(b)(iv) of the Direction.

1. None of the Applicant's sentences are precluded from consideration for the purposes of this paragraph. As mentioned earlier, while he may have received non-custodial sentences in the forms of fines and good behaviour recognizances, he has nevertheless cumulatively received some 16 years and eight months of head custodial time across the 13 year span of his offending. This is a significant cumulative period of custodial time and is surely indictive of the very serious nature of his conduct. As I have said elsewhere, sentences involving the imposition of terms of imprisonment are viewed as a last resort in the hierarchy of sentencing options available to a judicial officer. These are significant sentences and most certainly speak to the very serious nature of the totality of this Applicant's offending in this country.[9]
2. I am comfortably satisfied that the sentences imposed by the Courts for this Applicant's crimes are a strong indicator of the very serious nature of his unlawful conduct in this country.

1. I have searched the material before the Tribunal and to the best of my understanding of it, there is no reference to victim impact statement (or similar document) in which a victim recounts the impact of the Applicant's offending on that victim. This paragraph can be put to one side and rendered neutral for present purposes.

1. This Applicant has committed something in the order of 78 offences across barely a 13 year offending period. This is offending at the rate of six convictions for each year of the criminal history. As such, it is plainly frequent offending. Does it betray any trend of increasing seriousness? On one view, one could say (and find) that the offending has been serious from its outset. On another view, it may be found there is a trend of increasing seriousness. This is because when one looks at the offending that lead to this second cancellation giving rise to the decision under review, some 14 separate acts of "supply" of drugs were identified. However, the important point is that this offending was found to have been aggravated as a result of the Applicant's offence of 'possession of dangerous drug' having been committed while he was on bail and that he subsequently committed another 'possession of dangerous drug' offence after having spent time in custody for a conviction alleging precisely the same conduct. This circumstance of aggravation does speak to the Applicant's conduct displaying a trend of increasing seriousness.
2. I am comfortably satisfied that the frequency of this Applicant's offending together with its demonstrated trend of increasing seriousness are elements that strongly point to the very serious nature of the totality of his unlawful conduct in this country.

1. There are at least three cumulative effects discernible from the Applicant's repeated offending. First, the Applicant has been involved in the unlawful distribution of illicit drugs in our community. There can be no question that such dissemination adversely impacts users of those substances, their families as well as the community's healthcare resources in dealing with the impact of those substances on the physical and mental wellbeing of others. Second, despite the best efforts of judicial sentencing officers, it is plain that this Applicant has experienced little or no deterrent effect from the regime of sentences that have been progressively imposed on him. His first 21 convictions were not punished by custodial time. He learnt nothing from this and proceeded to commit about another 55 offences that were punished by 16 years and 8 months of cumulative head custodial time.
2. Third, the Applicant has failed to develop any measure of respect for this country's criminal laws or the authority represented by its law enforcement officers or the authority represented by lawfully made instruments such as bail which compel him to do or refrain from doing something. He will not be now heard to say that illicit drugs so distorted his moral compass such as to deprive him of any capacity to understand right from wrong. The offences for which he cumulatively received 16 years and eight months of head custodial time were committed and convicted during a span of time when the Applicant was aged 25 years and into his early 30's. He was old enough to know, or ought reasonably to have known, that his conduct was seriously unlawful and otherwise unacceptable to the Australian community.
3. Fourth, there is surely no cavilling with the finding that this Applicant's appalling history of criminal offending in this country has well and truly consumed more than its fair share of the community's policing, judicial sentencing and custodial resources. There is no other way to interpret the commission of some 78 offences requiring him to appear before a sentencing Court on at least one occasion for each year of the offending history. Likewise, for one offender to commit an average of six offences per year is offending that unduly consumes the community's policing resources.
4. I am easily satisfied that the abovementioned four cumulative effects of the Applicant's repeated offending most certainly now speak to the very serious nature of the totality of his unlawful conduct in this country.

1. I have searched the material before the Tribunal and to the best of my understanding of it, there is no reference to the Applicant providing false or misleading information to the Respondent's Department by not disclosing his prior criminal offending. Such non-disclosure usually results from a failure of a non-citizen to disclose their prior Australian criminal history upon any return or re-entry into this country. As noted earlier, this Applicant has never left Australia since initially arriving here in November 2002. He has therefore never been required to complete any incoming passenger card (or equivalent). This paragraph can be put to one side and rendered neutral for present purposes.

1. As mentioned earlier, the decision under review for present purposes derives from a second mandatory cancellation of the Applicant's visa. When his visa was restored to him following the first cancellation, the letter from the Respondent's Department (dated 26 March 2020) notifying him of revocation of the first mandatory cancellation gave him this warning: "Warning: if you engage in further criminal or other serious conduct, this may again result in your visa being cancelled on character grounds."[10] [Emphasis in original]. There can be no question that the Applicant received this letter because he signed an acknowledgement of receipt of it.[11]
2. Following receipt of this warning, the Applicant returned to his previous pattern of offending. He committed at least 13 additional offences that attracted some 13 months of cumulative head custodial time. There can be no other finding than that he has re-offended since being formally warned, in writing, about the consequences of further offending on his visa status to remain here. This is surely indicative of the very serious nature of the Applicant's pattern of offending in this country.

1. The Applicant first came here in November 2011 when he was 11 years of age. There is no record of him committing any offence in Romania (or elsewhere) as a juvenile. Even if there was, I would exercise caution about whether any offending as a juvenile could be taken into account for present purposes. This paragraph should be put to one side and rendered neutral.

Conclusion about the nature and seriousness of the Applicant's conduct

1. I have applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction to the evidence. The relevant paragraphs in paragraph 8.1.1(1) informing my assessment of the Applicant's offending now safely and cumulatively lead me to the conclusion (and finding) that the totality of his unlawful conduct in this country can be readily characterised as 'very serious'. I so find.

The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct

1. There is a ready concession in the Applicant's SFIC such that '...should the Applicant re-offend in a similar manner in future, the harm to Australia [sic] community could be deemed as serious given the nature of his past offending.'[12] A broadly parallel submission is contained in the Respondent's SFIC which says that '...any re-offending would expose the Australian community to significant physical, psychological and financial harm.'[13] I am in broad agreement with the general tenor of these submissions.
2. As I have earlier identified, this Applicant has offended in a number of different realms. Were he to repeat his pattern of offending involving the unlawful dissemination of illicit drugs in our community, palpable physical and psychological harm would befall both end-users of these substances and those around them upon whom care and rehabilitation of those users inevitably devolves. Were he to again commit his property offences, materially measurable loss would be occasioned upon the lawful owners of that property. Any repetition of any aspect of his offending would again unduly consume the community's Policing/law enforcement, judicial sentencing and custodial resources.
3. I will therefore find that the nature of harm resulting from this Applicant's commission of further offending of the type he has committed thus far would result in (1) measurably material financial harm and loss; (2) physical, psychological and potentially catastrophic harm upon users of illicit substances he disseminates into the community; and (3) the undue consumption of the community's Policing, judicial sentencing and custodial resources. To this finding, I will add that the harm resulting from any re-commission of the Applicant's past conduct would be so serious that any such risk of re-commission should now be found to be unacceptable.[14]

The likelihood of the non-citizen engaging in further criminal or other serious conduct

1. The Applicant's SFIC contains a concession that while the Applicant's offending ".....has escalated in severity over time, including the offence that lead to cancellation of his visa....."[15] this escalation should be contextualised on two grounds: (1) by having regard to the "Applicant's personal; circumstances"; and (2) by having regard to "his ongoing efforts to rehabilitate". [16] First, the Applicant's SFIC references those personal circumstances in the findings of Cassandra Tuckey[17] whose two reports are respectively dated 25 August 2023[18] and 10 November 2023.[19] The Applicant's refers to and relies on Ms Tuckey's findings about "....the Applicant's extensive health challenges, including PTSD, grief, moderate to severe depression, chronic anxiety disorder, and stress...."[20]
2. The Applicant's SFIC goes on to refer and rely on Ms Tuckey's findings that the Applicant's mental health issues ".......are attributed to a history of significant trauma, including a dysfunctional childhood, where the Applicant was placed in an orphanage in Romania for six years. Additionally, the Applicant endured sexual abuse in Australia, then dealt with the tragic murder of his sister, and faced complex family dynamics, including a partner with her own mental difficulties."[21] These are propounded as the dispositive factors behind the Applicant's offending history because it is said they have had ".....a profound and lasting effect on his well-being, significantly influencing his past behaviour and contributing to his involvement in criminal conduct."[22]
3. Second, in terms of rehabilitation, the Applicant's SFIC refers to and relies on the Applicant's "......significant efforts towards rehabilitation and......post-release plans to support his ongoing progress."[23] Reference is made in the SFIC to five counselling sessions attended by the Applicant between June 2022 and May 2023. During his time in immigration detention, it is said the Applicant completed a range of courses offered to him via IHMS[24] and that he proposes to engage with a Senior Mental Health Social Worker (Ms Cherelle Evans from Centacare) in the event of a return to the community.
4. The Applicant claims to be remorseful and to have developed a level of insight into his past conduct. He describes his conduct as "....poor to say the least. ..."[25] He purports to express his remorse to both his own family and the Australian community more generally. As best as I understood the Applicant's SFIC, his position on recidivist risk seems to be that the collective elements of (1) his diagnosed mental health symptoms; (2) his past and ongoing commitment to rehabilitation; and (3) his claimed remorse about and insight into his offending, should lead this Tribunal to find that he has identified the predispositive factors behind his past offending, that those factors have been and will remain under remedial management and control so as to now ".....suggest a reduced likelihood of future criminal behaviour, as the Applicant is focused on positive reintegration into society."[26]

1. In his recent statement, the Applicant refers to priorities and protective factors he says will minimize his risk of re-offending. In terms of a first protective factor, he claims to found support and solace in religion. He says reading the Bible has been transformative for him and that "Now, my uncle and I do Bible studies every night, and it's been a source of strength for me."[27] A second protective factor he propounds is put in these terms:

'In the longer term, I have a clear financial plan. I want to get my ABN, regain my driver's license, and work toward buying property. I've done a lot of research on this. My goal is to buy a house, rent it out, and use the equity to purchase a second property. Over time, I'd like to grow this into a larger portfolio, working with brokers and developers to renovate and sell property while paying off the banks.[28]

1. His third protective factor is to be found in what he describes as his "ultimate goal" of re-establishing a parental presence in the lives of his children. He talks about wanting to "....invest time in my kids' lives, help them succeed in school, and make sure they feel loved and valued.[29] An ancillary part of this factor is said to involve him having "....thought about settling down with Chanel, building a stable life together, and creating a home where our family can thrive."[30]
2. His primary focus upon a return to the community is, however, said to be rehabilitation. He says: 'If I'm released, my first priority is rehabilitation. That has to come first. I know I need to enrol in a structured program, see psychologists and counsellors, and take the necessary steps to maintain my recovery. After that, my plan is to work with my uncle, who has contracts lined up, so I can start earning an income.'[31]

1. The material contains two reports from the abovementioned Ms Cassandra Tuckey, Criminologist and Senior Psychologist. The first of those reports is dated 25 August 2023. Ms Tuckey opines that the Applicant '...is currently suffering from moderate-severe depression, PTSD, moderate-severe anxiety and moderate-severe stress,...'[32] [Emphasis in original]. This first report of Ms Tuckey does not contain an assessment of the Applicant's level of recidivist risk other than to say 'It is my professional opinion that Daniel is a good candidate for a visa.'[33]
2. Ms Tuckey's second report is dated 10 November 2023. She took various histories from the Applicant. With specific reference to his criminal history, her report notes 'Daniel stated that he does have some criminal history. He reported that he was guilty of some driving offences, and that he has previously been incarcerated.'[34] The significant difficulty with this observation is that by the time of this report, the Applicant had committed almost 80 offences and had appeared before sentencing Courts on at least 14 occasions at which his offending was punished by the imposition of cumulative head custodial time of 16 years and eight months.
3. Ms Tuckey conducted certain testing on the Applicant and in terms of a personality test outcome, she thought the Applicant '...has the personality structure of a "neurotic extrovert".'[35] She applied the Beck Depression Inventory to ascertain the extent of the Applicant's depression symptomatology. She concluded that 'On this test, his score indicated that he has moderate-severe depression.'[36] [Emphasis in original]. She also applied the Beck Anxiety Inventory to ascertain the Applicant's anxiety symptomatology. Her conclusion here was that 'On this test, his score indicated that he has moderate-severe anxiety.'[37] [Emphasis in original]. Ms Tuckey also applied the DASS[38] test to ascertain the Applicant's symptomatology in relation to depression, anxiety and stress. She concluded that 'On this test, his scores indicated that he has depression, anxiety and stress.'[39] [Emphasis in original].
4. In terms of a concluded diagnosis, Ms Tuckey opined the Applicant '...is suffering from PTSD, grief, moderate-severe depression, moderate-severe anxiety in the form of a Chronic Anxiety Disorder, moderate-severe stress & sensory deprivation from being detained in immigration detention.'[40] [Emphasis in original].
5. Towards the end of her report, Ms Tuckey expresses two professional opinions which she put as follows: '...if Daniel FARCAS continues with his current treatment plan, then prognosis for future rehabilitation will be good'[41] and '...some of Daniel's behaviour stems from his past exposure to abuse, and these behaviours can be improved and modified with medication and regular Psychological treatment.'[42]
6. In terms of an opinion about the Applicant's recidivist risk, Ms Tuckey arrived at this finding: 'It is my professional opinion that Daniel FARCAS is at minimal risk of re-offending, & he poses no threat to society. It is recommended that he not be removed from Australia, as doing so would have such a detrimental impact on him,...'[43]

1. To my mind, there some telling findings made by the learned Supreme Court sentencing Judge[44] who dealt with the Applicant at the sentencing Hearing that occurred on 22 November 2019 at the Brisbane Supreme Court. The Applicant came before the Brisbane Supreme Court for sentencing on the following counts[45]:
   • receiving tainted property[46];
   • unlawful possession of weapons[47] (x2);
   • possessing dangerous drugs, schedule 1 drug quantity of or exceeding schedule 3 but less than schedule 4[48] (x2);
   • possessing anything for use in the commission of crime[49] (x2);
   • possess dangerous drug specified in schedule 1 or 2[50]; and
   • trafficking in dangerous drugs[51];
2. For this offending, the learned sentencing Judge imposed cumulative head custodial terms amounting to 11 years and nine months. In his sentencing remarks, the learned sentencing Judge had regard to the Applicant's claimed factor of his sister's death as an explanation for his unlawful conduct. This factor received short shrift from the learned sentencing Judge who noted:

"In coming to an appropriate penalty, I have regard to the serious aspects of your offending as set out in the various agreed statements of fact. I have regard to your personal circumstances.

Some of the matters that you seek to rely upon as an explanation for your behaviour, I do not find, are supported by that material.

For example, I do not doubt that the tragic death of your sister had an enormous impact on you, but to suggest that that explains your offending is to disregard completely your criminal history prior to that date."[52]

1. Similarly, the learned sentencing Judge rejected the Applicant's claim of his family purportedly acting as a protective factor against future offending. His Honour said: 'Similarly, there are other matters which are relied upon by you, such [as] your concern as to the effect on your family in circumstances where you had a complete disregard for that at the time you were committing these offences.'[53]

1. Any suggestion of the Applicant having maintained a pattern of abstinence from illicit drug and alcohol consumption for anything like the two years he has previously propounded,[54] should be either received with significant caution or otherwise rejected. It is plain from the evidence that he was convicted for possessing dangerous drugs while in immigration detention. Notably, he entered his own plea of guilty to this offending. The further reason of his claim to remain drug-free now if returned to the community is that his capacity to do so remains to be tested in the significantly less regulated community environment where illicit drugs will be significantly more freely available to him.
2. For the same reasons referred to by the learned sentencing Judge who dealt with the Applicant on 22 November 2019, I will reject the claimed explanatory factor of his sister's tragic death behind his offending. He was obviously committing crimes before her death. Likewise, this Tribunal should be cautious about accepting his three now-claimed protective elements around his future recidivist risk. The claim about experiencing some kind of religious epiphany should be received with considerable caution because it is the evidence of the Applicant and him alone. He talks about studying the Bible with his Uncle but there is nothing corroborative from the Uncle in this regard or any other religious-type witness who can speak to this claim.
3. The Applicant's intention to become a property developer and speculator are, although well-intended, are largely expressions of speculative intent. There is no explanation, for example, about where the capital will come from for him to purchase an initial property. There is no guarantee of this first property increasing in value to the extent he will then be able to acquire a second and subsequent properties. It is difficult to see how this property development and speculation objective will be reached from only the Applicant's earnings as an employed tiling labourer in his Uncle's tiling business.
4. The Applicant's intention to re-establish himself as a parental figure in the lives of relevant children in his life is, again, a well intentioned objective but one which requires the intervention of external decision makers to actualise. The relevant children have been placed in the care of others. They do not reside with the Applicant's domestic partner, Chanel. The Applicant will not be entitled to, as it were, automatically resume some kind of parental role in the lives of these children. The stark reality for both the Applicant and Chanel is that they are some distance away from being in any position to call themselves the day-to-day carers and parental providers for these three children.
5. The Applicant claims to have insight into what he has done wrong and the extent to which he has breached the criminal law of this country and the extent to which, in turn, this conduct has now placed his visa status at existential risk. He claims to understand the necessity to remain connected to some sort of rehabilitative pattern if now returned to the community. There is some tentative indication that he will do so with entities such as Centacare but it is not clear exactly what that sort of treatment he will receive and how it will alleviate the factors that have pre-disposed him to very seriously offend. His latest statement talks about him knowing '...I need to enrol in a structured program, see psychologists and counsellors, and take the necessary steps to maintain recovery.' On any reasonable view, these are early and preliminary steps and, more likely, they are steps not yet fully defined or otherwise capable of immediate implementation. We do not know the resilience of those programs in terms of ensuring the Applicant remains on a rehabilitative path and, ultimately any extent to which they may favourably impact his recidivist risk.
6. The two reports of Ms Tuckey should be viewed cautiously and weighed sparingly. In the first of her reports, there is no assessment of the Applicant's recidivist risk other than for her to say the Applicant '...is a good candidate for a visa.' The second of them purports to define the Applicant's recidivist risk on the basis that he is '...at minimal risk of re-offending, & he poses no threat to society.' To my mind, this is a somewhat bold finding in circumstances where (1) the Applicant's rehabilitative journey is barely at its formative stage; (2) he gave her a patently untruthful and incorrect summary of his criminal history; and (3) he told her he had not consumed any illicit drugs since 2022, yet he was convicted for possession of illicit drugs while in immigration detention. More significantly, Ms Tuckey was not called to give oral evidence which denied the Respondent (and the Tribunal) the opportunity to test her evidence.

1. I will cautiously find that the Applicant has understood that difficulties with illicit drugs have been at the front and centre of his past offending. I will also cautiously find that he now understands he needs clinical treatment and help for his difficulties with illicit drugs and, more broadly, for the psychopathological symptoms identified by Ms Tuckey. As against that, the protective factors of (1) his family/parental responsibilities; (2) his proposed property development and speculation venture; and (3) his now-claimed religious epiphany, do not displace the seriously incomplete nature of his rehabilitation which, in turn, does not facilitate a finding that he now represents a low recidivist risk.
2. I will find that this Applicant represents a moderate risk of resuming his pattern of very serious unlawful conduct. The current state of the evidence does not allow the introduction of the word 'low' before the word 'moderate' and also does not allow any finding of him representing a low recidivist risk_._ Were he to resume his pattern of offending, the impact on any victim would be so serious that any such risk should now be found to be unacceptable.[55] I reach this "moderate" recidivist risk finding with the Direction's dictum that the safety of the Australian community is "...the highest priority of the Australian Government"[56] at the forefront of my mind.

1. The Direction also contains a reference to sub-paragraph 8.1.2(2)(c). With reference to this specific sub-paragraph, this matter does not involve a 'refusal to grant a visa to a

non-citizen'. It involves an application for the 'revocation' of a decision refusing to revoke the earlier mandatory cancellation of the Applicant's Visa. This specific paragraph is not relevant to the determination of this application.

1. With reference to the weight attributable to this Primary Consideration 1:

(a) I have found that the nature and seriousness of the totality of the Applicant's conduct to date has been very serious; > > (b) I have found that the nature of harm resulting from this Applicant's commission of further offending of the type that he has committed thus far would result in (1) measurably material financial harm and loss; (2) physical, psychological and potentially catastrophic harm upon users of illicit substances he disseminates into the community; and (3) the undue consumption of the community's Policing, judicial sentencing and custodial resources. To this finding, I will add that the harm resulting from any re-commission of the Applicant's past conduct would be so serious that any such risk of re-commission should now be found to be unacceptable.[57] > > (c) I have assessed the Applicant's recidivist risk as "moderate". In reaching this finding about recidivist risk, I have kept the Direction's dictum that the safety of the Australian community is "...the highest priority of the Australian community" at the forefront of my mind.

2. My analysis of the material leads me to a finding that this Primary Consideration 1 confers a very heavy level of weight in favour of this Tribunal affirming the decision under review.

1. Paragraph 8.2 of the Direction provides:
   1. The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

1. This consideration is relevant in circumstances where:

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

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

1. In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:

1. the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
2. the cumulative effect of repeated acts of family violence;
3. rehabilitation achieved at time of decision since the person's last known act of family violence, including:
   1. the extent to which the person accepts responsibility for their family violence related conduct;
   2. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
   3. efforts to address factors which contributed to their conduct; and

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

1. Earlier in these Reasons, I referred to what appeared to be a consensus between the parties that this Primary Consideration did not apply to the instant facts. I took this impression from their mutual allocation of neutral weight to this Primary Consideration 2 in their respective SFICs. It would appear that after they drafted and then filed and served their respective SFICs, certain additional material was received into this proceeding, presumably as a result of a summons issued by the Respondent's representatives. That material appears at Exhibit R4 to these proceedings which comprises the Respondent's further supplementary documents. Within this bundle, there appears a safety 'assessment and outcome' issued by the Department of Child Safety, Seniors and Disability Services.[58]
2. In this document, there are the following findings/observations:

It is my assessment that [Child N], [Child R], and [Child D] are at risk of experiencing physical and emotional harm as a result of neglect, emotional abuse and physical abuse by Chanel Spencer and Daniel Farcas.

There is no recorded domestic violence between Chanel and Daniel, however [name of person redacted] report that Daniel is largely controlling of Chanel, watching her movements, taking her car and controlling her social relationships. Chanel has alluded to this on one occasion, however has not provided any substantial information to suggest Daniel is perpetrating domestic violence towards her.[59]

1. As noted earlier, this is an expedited matter and during this matter's interlocutory phase, the parties do not appear to have had an opportunity to receive this additional material in sufficient time for them formulate a written position that could have been recorded in, for example, further or amended SFIC documents. The parties were left with no alternative but to address this issue from the bar table at the Hearing.
2. It was contended on behalf of the Respondent that the described controlling conduct in the above document fell within the definitional auspices of paragraph 4 of the Direction relating to family violence. The contention went no higher than these few lines in this single document might suggest the Applicant had been involved in the perpetration of family violence. There was an accompanying concession from the Respondent that there was a total absence of any police record of family violence in the material. Be that as it may, the Respondent's representative urged the Tribunal to take these few words into account, to apply them to paragraph 8.2 of the Direction and to weigh this Primary Consideration accordingly against the Applicant.
3. It was contended on behalf of the Applicant that while the presence of the document in the material before the Tribunal could not be denied, the Tribunal should afford little or no weight to it. Support for this contention was sought from the four realities of (1) there being no other independent and authoritative record of this alleged conduct by the Applicant in the material either from the Police or any other such body; (2) Ms Spencer's evidence to the instant Hearing was clearly to the effect that no matter what this report might say, the Applicant had never perpetrated any conduct against her which could now be construed as family violence which is consistent with the report's finding that '...Chanel...has not provided any substantial information to suggest Daniel is perpetrating domestic violence towards her.' ; (3) both the Applicant and Ms Spencer were not either direct or indirect authors of this document, it being the construct of a distantly removed third party; and (4) this document/report dates from April 2022 and is now over three years old. There is no subsequent document indicating the relevant Department's attitude or findings about this slight reference to allegedly controlling conduct some three years ago.
4. In these circumstances, I will find that this single document which contains barely five lines obliquely referring to domestic violence which is not suggested or endorsed by the alleged victim, does not rise to the necessary definition appearing in paragraph 8.2(2) of the Direction. To be clear, the alleged victim told both the relevant Department that authored this now over-three year old report as well as the instant Hearing, that the Applicant has never perpetrated family violence against her. The further point is this: the author of this report was not called to give evidence and the Applicant was denied the opportunity of testing that author's evidence during cross-examination.
5. The safest and procedurally fairest course is to put this Primary Consideration 2 to one side and render it neutral for present purposes.

PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

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

1. The subsequent paragraph 8.3(2) also stipulates that in the assessment of any other ties that a non-citizen may have in Australia, the decision-maker must have regard to:

a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and

1. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

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

The Applicant's Immediate Family Members in Australia (8.3(1) of the Direction)

1. The Applicant's immediate family in Australia comprises his mother, sister and two brothers. The evidence given by the Applicant and Ms Chanel Spencer at the instant Hearing was strongly suggestive of a reality that he and she will resume their domestic relationship were he successful in the instant proceeding. As mentioned earlier, the Applicant said in his most recent statement that he has:

".....also thought about settling down with Chanel, building a life together, and creating a home where our family can thrive." The Applicant's evidence dovetails neatly with that of Ms Spencer who notes: I am aware that Daniel's current situation is complicated, and his legal challenges are significant. However, I respectfully ask that you consider not only the legal aspects but also the profound impact that his absence would have on his family. Daniel has always put his family first and has been an unwavering source of support. His presence is essential to our family's well-being, and his absence would have devastating emotional and practical consequences."[60]

1. In terms of recommencing their domestic relationship, Ms Spencer understood that both hers and the Applicant's best prospects of convincing the relevant Department to return the relevant children to them would be if they could demonstrate a capacity to jointly run a household that could safely receive the children with him and her as their primary parental carers. This reality gives weight to a finding that Ms Spencer is an immediate family member of the Applicant who would be significantly impacted by his removal to Romania not just in a personal sense but in terms of her prospects of resuming a primary parental role for the three relevant children.
2. Ms Victoria Duga is the Applicant's mother who provided both written and oral evidence to the instant Hearing. She relies on him for assistance with meeting the challenges of her ill-health and advancing years. She is not assisted by her other two sons and without the Applicant, she says she ".....struggle to cope...."[61] She describes the Applicant as "....my rock, and I cannot express enough how much I depend on him."[62] She implores the Tribunal to ".....take into account the personal and emotional impact that this situation has on me and our family. The separation of Daniel from me would cause irreparable harm, not only to my well-being but also to the emotional harm and mental health of our family."[63]
3. I am satisfied the Applicant has the abovementioned immediate family members[64] (including Ms Spencer) in Australia and that they would be adversely impacted by his permanent removal from Australia. I will find that these ties militate in favour of the allocation of a heavy level of weight in favour of the Applicant pursuant to this Primary Consideration 3. This finding is predicated on the limiting proviso contained in paragraph 8.3(1) of the Direction that the people representing these ties are Australian citizens, Australian permanent residents and/or a people who have a right to remain here indefinitely.

The Applicant's ties to other family members and social ties in Australia (8.3(2)(b)) of the Direction

1. In his PCF,[65] the Applicant refers to having a relatively extensive list of extended family members comprising his grandmother, uncles, aunts, cousins and nieces and nephews who reside in Australia. In terms of the impact on them, the Applicant says this in his PCF: 'it will [sic] a massive impact of destruction [if he is permanently removed] they have seen me go through so much, they want to see me successful - they are already saddened because I am already in prison, we have already lost my sister in the tool-box murders and I lost two brothers to deputation [sic] and now they [sic] about to lose another two of us. It is to much for our family to bare, nor do they diserve [sic] for us to go through this tradgic [sic] process again.'[66]
2. One extended family member who has provided both written and oral evidence to the instant Hearing is Ms Lara Anderson who is the Applicant's sister in-law. She describes the Applicant as '...a loving and nurturing person who always helps whenever he can. He has a kind heart and a genuine desire to support those around him.'[67] She says the Applicant '...deserves the opportunity to demonstrate his rehabilitation and reintegration into society.'[68] She has minor-aged children and given her separation from her husband, she told the instant Hearing that the Applicant had, until his incarceration, assumed a fatherly/parental role in the lives of her children by, for example, taking them to the cinema. At the instant Hearing, she was asked about the extent of the Applicant's contact with her children, even now while he has been in in either prison or immigration detention, and she said her children speak with him everyday via FaceTime.
3. There are also statements from three people representing the Applicant's social ties in the Australian community. In a statement from a Ms Julie Anne Hall, dated 5 August 2023, she describes herself as an Aboriginal elder from the Kamillaroi tribe who has known the Applicant for six years. She describes him as a '...kind natured, a loving father, trustworthy and determined...I will emotionally support Daniel in his rehabilitation to achieve his goals.'[69] Ms Hall did not give evidence at the instant Hearing and her evidence was not tested in cross-examination.
4. Ms Travina Lee Fenton also previously provided a letter of support for the Applicant whom she says she has known for around five years. She described the Applicant as a 'family friend and I am proud to offer my support.'[70] She also described the Applicant as '...honest, dependable and conscientious...a kind, understanding man...a very dedicated loving father.'[71] She contemplated the possibility of the Applicant's removal and says 'I cannot begin to explain how much of a detrimental impact this would have, not only on Daniel but also his children.'[72] Ms Fenton did not give evidence at the instant Hearing and her evidence was not tested in cross-examination.
5. Dor Gatwech Tut regards the Applicant as 'my close friend.'[73] In their statement, Dor Gatwech Tut says the Applicant '...has impacted my life in a positive light; by meeting him for the first time by chance on the street. Daniel has helped me find shelter - somewhere to live and in him we not only found a brother but have found a family member who I would do anything for.'[74] This witness did not give evidence at the instant Hearing and their evidence was not tested in cross-examination.
6. I am satisfied the Applicant has extended family and social ties to Australia. I am further satisfied that the totality of people representing those ties will be adversely impacted by his permanent removal to Romania. I will find that the Applicant's ties with these extended family members and these social ties militate in favour of the allocation of a heavy level of weight in favour of the Applicant pursuant to this Primary Consideration 3. This finding is predicated on the limiting proviso contained in paragraph 8.3(2)(b) of the Direction that these people I have identified representing these extended family and social ties being Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely.

Paragraph 8.3(2)(a): Additional factors to take into account

1. This component of Primary Consideration 3 requires me to look at how long the Applicant has resided in Australia, taking into account the following factors:
   • whether the Applicant arrived here as a young child? [75] The Applicant arrived in Australia when he was 11 years old. He has lived here for a period of nearly 23 years. I will find that the Applicant arrived here as a young child. This component of paragraph 8.3(2) does augment the weight allocable to his ties to this country;
   • whether the Applicant began offending soon after arriving here? [76] The Applicant initially arrived here as an 11 year old in November 2002 and recorded his first criminal conviction[77] in Australia in 2013. That is some 11 years after his initial arrival. He thus did not begin offending soon after arriving here. Thus, the weight allocable to the Applicant for this Primary Consideration 3 cannot be impugned on the basis of him offending soon after arriving here;
   • the time the Applicant has spent contributing positively to the Australian community during his time here.[78] He has a work history in Australia in the fields of the automotive trade, tiling and cheffing[79]. He will no doubt have paid income taxation on his earnings. His PCF refers to positive contributions to the Australian community by involving himself in community programs aimed at supporting the underprivileged.[80] On the basis of his employment and community contributions, I will find that this component of paragraph 8.3(2) of the Direction affords a moderately strong level of weight in the Applicant's favour towards a finding about the strength of his ties to Australia.
2. Accordingly, I am of the view (and I find) that based on my analysis of the evidence around subparagraph 8.3(2)(a) of the Direction that:
   • sub-paragraph 8.3(2)(a) does augment the weight allocable to the Applicant for the purposes of this Primary Consideration 3 because he did arrive in Australia as a young child;
   • sub-paragraph 8.3(2)(a)(i) does not impugn the weight allocable to the Applicant for the purposes for this Primary Consideration 3 because he did not begin offending soon after arriving in Australia; and
   • sub-paragraph 8.3(2)(a)(ii) does assist the Applicant because of his employment and community contributions to Australia.
3. Therefore, only the specific sub-paragraphs 8.3(2)(a)(i) (he did not begin offending soon after arriving here) and 8.3(2)(a)(ii) (employment and community contributions) serve to augment the weight I have already allocated to the Applicant pursuant to the earlier-applicable paragraphs comprising paragraph 8.3(1) and 8.3(2)(b) of the Direction, respectively, relating to his ties to immediate family members in Australia and his ties to extended family and social links in Australia.

1. I have referred to the three relevant components of this Primary Consideration 3. I am of the view, after having analysed the evidence relevant to each of those three components to which the evidence applies, that the totality of that evidence points to a heavy level of weight in favour of this Tribunal setting aside the Decision Under Review.

PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

1. This Primary Consideration requires a decision-maker to consider what impact a decision to refuse or not revoke cancellation of a visa will have on children who are and will continue to be under the age of 18 years of age at the time of the decision.[81] The Direction further requires that the best interests of each child must be considered individually if there are more than one minor child/ren identified.
2. In assessing the best interests of each child/ren, a decision-maker is required to take into account:[82]

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

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

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

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

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

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

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

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

1. The parties seem to be of one mind that the three relevant children comprise:
   • Child N: the 17 year old daughter of Ms Spencer from another relationship and, thereby, the Applicant's step-daughter for present purposes;
   • Child R: the seven year old son of Ms Spencer from another relationship and, thereby, the Applicant's step-son for present purposes; and
   • Child D: the six year old biological son of the Applicant and Ms Spencer.
2. To my mind, perhaps the most reliable 'statement of position' in relation to these three relevant children appears in the abovementioned 'assessment and outcome report' from the Department of Child Safety, Seniors and Disability Services. This report relevantly notes:
   • Ms Spencer is the biological mother of each of the three children;
   • The father of Child N is Mr LT, whose whereabouts are unknown. Mr LT has not had contact with Child N for many years and he has never taken on a primary parenting role throughout Child N's life;
   • Mr KM is the father of Child R. This was established by a paternity test conducted in 2018. Despite this, Mr KM has not partaken in any active parenting role in Child R's life. Mr KM is not listed on Child R's birth certificate and he has not had any interactions with Child R since his infancy;
   • The Applicant is the father of Child D;
   • Ms Marissa Ryan and Mr Leonard Spencer are the maternal grandparents of all three children. They have taken on a primary carer role of Child N and Child R at many points in the lives of those two children; and
   • Ms Marissa Ryan is the current approved carer (i.e. for the purposes of this Department) for all three children.[83]
3. The Department has reached the following conclusions about each of the three children:

There is sufficient evidence to indicate Child N has suffered cumulative emotional harm at this time (being defined as any detrimental effect of a significant nature of the child's physical, psychological or emotional wellbeing as defined by the Child Protection Act 1999).

There is insufficient evidence to indicate Child R and Child D have suffered harm at this time (being defined as any detrimental effect of a significant nature of the child's physical, psychological or emotional wellbeing as defined by the Child Protection Act 1999).

It is my assessment that [Child N], [Child R], and [Child D] are at risk of experiencing physical and emotional harm as a result of neglect, emotional abuse and physical abuse by Chanel Spencer and Daniel Farcas.

1. With particular reference to Ms Spencer, the Department's report notes the following:
   • 'Chanel has a criminal history consisting of three charges: 2014: Commit public nuisance, 2020: Possess utensils or pipes for use, and 2021: Possessing dangerous drugs x2, Unlawful possession of restrictive drugs, possessing property suspecting of having been used in connection with the commission of a drug offence;
   • Chanel has a complex and strained relationship with her parents and brother (sister is deceased) and reports no social relationships. There are current concerns in relation to a domestic violence incident between Leonard and Chanel and information gathered throughout the I&A [Investigation and Assessment] indicates that there has been ongoing strain within the family dynamic for some time.'[84]

1. With particular reference to the Applicant, the Department's report notes: (1) 'Daniel has not provided a parenting role of [Child D] since his birth due to his numerous and lengthy incarcerations'[85]; and (2) 'Daniel is currently paroled to his mother's home and thus he does not have any resources of his own.' [86]
2. While I accept this report dates from April 2022, there is little to suggest that all that much has changed with specific reference to the capacity of either Ms Spencer or the Applicant to assume any parental role. As best as I recall Ms Spencer's evidence at the instant Hearing, the Department facilitates contact visits for her with the three children every Thursday from 3pm until 4:30pm at a local park. While she is with the children, Ms Spencer calls the Applicant on FaceTime and, in this way, the Applicant gets to spend time with the children, most particularly Child R and Child D.
3. There was a further aspect of the evidence referrable to these three children and it related to some kind of Court or Departmental event that was due to occur on 11 June 2025 but neither the Applicant or Ms Spencer could tell the Hearing precisely what would be occurring on that day and whether it related to something as significant as a possible fundamental change in the care arrangements for the children or whether it was nothing more than a regular and recurring review to endorse the existing care arrangements with no likely changes.

Application of factors at paragraph 8.4(4) of the Direction to these three relevant children.

1. Sub-paragraph (a): the Department's report confirms the minimal extent of any nature and duration of a relationship between and of these three children and the Applicant. Harsh though this may sound and so contrarian to the Applicant's evidence (and the evidence of Ms Spencer) as it may be, the safest course is to prefer the independent and disinterested findings and observations appearing in the Departmental report over all other evidence relating to these three children. There have also been very long periods of absence of the Applicant from the lives of these three children. Indeed, the Department found that as at April 2022, the Applicant had not provided any type of parenting role to Child D since that child's birth. Given the state of the evidence, I can only find this sub-paragraph militates in favour of the allocation of, at best, a moderate level of weight to the Applicant.
2. Sub-paragraph (b): the contents of the Department's report paint a sombre and bleak picture about the Applicant's prospects of playing a positive parental role in the future lives of these three children. There are a decent number of parenting years left until the two younger children attain the age of 18 years during which the Applicant can assume such a role. But one takes the strong sense from the evidence that he is only at the start of a long and difficult administrative process of securing any right to play a positive parental role in the lives of these children. At best, I can only find this sub-paragraph militates in favour of the allocation of a moderate level of weight to the Applicant.
3. Sub-paragraph (c): as best as I recall the evidence, it seems silent about any extent to which the Applicant's past conduct has, and the extent to which his future conduct may or will have, any negative impact on any of these three children. I will put this sub-paragraph to one side and render it neutral for present purposes.
4. Sub-paragraph (d): we have the evidence of Ms Spencer that she puts the two younger children (and when available presumably the eldest child) onto FaceTime when she has her 90 minute visitation with them at a local park every Thursday afternoon. There is, therefore, an established pattern of electronic or telephonic contact which could presumably be maintained in the event of the Applicant's removal to Romania. To my mind, it is unfair to allow this sub-paragraph to weigh against the Applicant. Rather, I will find that this sub-paragraph (d) only marginally assists the Applicant because in-person contact between him and the three relevant children is preferable to non-in-person contact. Therefore, this sub-paragraph (d) militates in favour of, at best, a moderate level of weight to the Applicant.
5. Sub-paragraph (e): clearly and obviously, the Department has the legislative mandate in deciding who will fulfill the parental role for each of these three relevant children. This sub-paragraph does not assist the Applicant and I will put it to one side and render it neutral for present purposes.
6. Sub-paragraph (f): there no known views of any of the relevant children. I will very cautiously draw an inference that (1) the children who speak with the Applicant via FaceTime do take something positive from their apparently recurring FaceTime meetings with the Applicant and (2) there is a resulting, but tenuous, likelihood they would be impacted from being told that unless they one day travelled to Romania (or elsewhere) to see the Applicant, they would only have non-in-person contact with him for the rest of their lives. I will cautiously find this sub-paragraph militates in favour of a moderate level of weight to the Applicant.
7. Sub-paragraph (g) and (h): the evidence is silent about any of the elements appearing in both of these sub-paragraphs impacting any of the three relevant children. Both of these sub-paragraphs should be put to one side and rendered neutral for present purposes.

Allocation of weight to the best interests of these three relevant children.

1. Having regard to the evidence referable to the componentry of 8.4(4) of the Direction, I will find that the best interests of Child N, Child R and Child D militate in favour of the allocation of a moderate level of weight in favour of the Applicant for this Primary Consideration 4.

1. I again refer to the evidence of Ms Lara Anderson, the Applicant's sister in law. It will be recalled her evidence was that she had separated from the Applicant's brother and that the Applicant had taken on quasi-parental role in the lives of her two minor-aged daughters who are 13 and 12 years of age respectively. She spoke of the Applicant regularly speaking with both of these children via FaceTime and that when he was last in the community, he would take these two children on social outings such as the cinema.

Application of factors at paragraph 8.4(4) of the Direction to these other two relevant children.

1. The extent of the relationship between the Applicant and these two minor-aged nieces is described as that of the loving Uncle. It cannot be safely found that the relationship between him and these two children has been parental. In addition, there have been long periods of absence and limited meaningful contact between him and them due to the lengthy period of time of his removal from the Australian community.[87] I am not satisfied that the Applicant is likely to play a positive parental role in the future lives of these children. The evidence of their mother confirms he has played the role of the loving Uncle and there is little in the evidence to convince me the Applicant would play any other role if now returned to the community.[88] We do not know any impact the Applicant's past conduct has had on these two children and how any re-commission of his past conduct would negatively impact them in future. The only safe finding is that, if removed to Romania, they will miss him as their loving Uncle.[89]
2. We know from the oral evidence of Ms Anderson to the instant Hearing that the Applicant has maintained contact with the children via FaceTime. There is nothing to cavil with a finding that he will be able to do so in future if removed to Romania.[90] Clearly, Ms Anderson already fulfills a parental role in relation to both of these children.[91] We do not know the views of these children in the event the Applicant were permanently removed to Romania. At best, we have the oral evidence of Ms Anderson which suggests they would miss him as their loving Uncle.[92] There is no suggestion that either of these two children have been subjected to, or are suffering from any of the elements referred to in sub-paragraphs 8.4(4)(g) or (h) of the Direction.

Allocation of weight to the best interests of these two additional minor-aged children

1. Having regard to the scant nature of the evidence referable to the componentry of 8.4(4) of the Direction, I will find that the best interests of these two further relevant children militate, at the very highest, in favour of only a moderate level of weight in favour of the Applicant for this Primary Consideration 4.

1. Having regard to the respective weights I have allocated to the best interests of (1) Child N, (2) Child R; and (3) Child C, plus the two other relevant children, I arrive at a finding that, overall, only a moderate level of weight should be allocated to the best interests of all of these five relevant children about the extent to which they would be affected by the Applicant's permanent removal to Romania. I thus arrive at a finding that this Primary Consideration 4 is of moderate weight in favour of this Tribunal revoking the decision under review.

PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

1. The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[93] The Direction further explains:

'This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated [in paragraph 8.5(1)-(3) of the Direction], without independently assessing the community's expectations in the particular case.'[94]

2. With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:

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

Has the Applicant breached the normative expectation?

1. This Applicant has clearly breached the Australian community's expectations by his extensive record of very serious criminal offending in this country which is evidenced by some very serious breaches of the Australian criminal law. Therefore, I will find that the Australian community, 'as a norm', expects the Australian Government not to allow him to remain in Australia.

Is the Applicant's conduct alone sufficient to breach the normative expectation?

1. The Direction also states that visa cancellation or refusal, or non-revocation of a mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:[95]

(a) acts of family violence; or > > (b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage; > > (c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect; > > (d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or > > (e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

1. This Applicant's criminal history does contain convictions that fall within one of the abovementioned sub-paragraphs of paragraph 8.5(2) of the Direction. He has convictions for offences against law enforcement officers in the performance of their duties.[96] I am therefore satisfied that the Applicant's convictions are sufficiently serious such that the Australian community would expect the Australian Government can and should refuse to set aside the (second) mandatory cancellation of his visa.

Are there any factors modifying the Australian community's expectations?

1. The remaining question is whether there are any factors which modify the Australian community's expectations. I have identified the following factors from the principles appearing in the Directions which now inform this question. Those factors derive from the principles in paragraphs 5.2(5), (6) and (7) of the Direction. In summary these informative factors are:

a) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa (paragraph 5.2(5)); > > b) the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time (paragraph 5.2(5)); > > c) Australia may afford a higher level of tolerance towards 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 (paragraph 5.2(6)); > > d) the nature of a 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 a visa outcome that is not adverse to the non-citizen (paragraph 5.2(7)); and > > e) the inherent nature of the non-citizen's conduct is so serious that it displaces even strong countervailing factors militating in favour of a positive visa outcome for a non-citizen even in circumstances where the non-citizen does not pose a measurable risk of harm to the Australian community (paragraph 5.2(8)).

2. In relation to sub-paragraph (a) of the immediately preceding paragraph [119], the term 'limited stay visa' is not defined in the Act. The Applicant in this case held an AS Subclass 801 Spouse Visa until it was mandatorily cancelled (for a second time) on 7 August 2024. As the Applicant continued to hold this visa until it was mandatorily cancelled, it can be safely concluded that this visa permitted the Applicant to remain in Australia without any end point on his stay. Further, it is can also be concluded that if his Visa was not mandatorily cancelled (for a second time) 7 August 2024, the Applicant would have continued to hold the visa and thus remain in Australia indefinitely. As the visa permitted the Applicant to remain in Australia without any limit on the duration of his stay, the Visa held by the Applicant cannot be classified as a limited stay visa.[97] Therefore this sub-paragraph (a) is not applicable to the Applicant.
3. In relation to sub-paragraph (b) of the abovementioned paragraph [119], the Applicant has spent nearly 23 years of his life in Australia since initially arriving here in November 2002 aged 11 years. He has spent about 67% of his life in this country and is currently aged 34 years. He has a work history in Australia. He has fathered one biological child in this country and has made employment and community contributions to it. Whatever participation in, and contribution to, the Australian community he may have made during his time here cannot be safely found to have been 'short'. Therefore, the Australian community's tolerance is not lowered by this part of the principles in 5.2(5) of the Direction.
4. In relation to sub-paragraph (c) of the abovementioned paragraph of [119], I repeat that the Applicant initially arrived in Australia as a 11-year-old in November 2002. He has spent about 67% of his life in Australia and he did come here at a young age. This means the Australian community's level of tolerance of criminal or other serious conduct by this Applicant is raised.
5. In relation to sub-paragraph (d) of the abovementioned paragraph [119], I am of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing his criminal offending of the same type already committed and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community's expectations for present purposes. This is because I am of the view that the nature of the Applicant's offending[98] in this country has been very serious. The totality of his conduct comprises offending of such a significantly serious magnitude as to now dispel any applicable countervailing considerations.
6. In relation to sub-paragraph (e) of the abovementioned paragraph [119], I am of the view that the totality of the Applicant's unlawful conduct[99] in this country has been sufficiently serious such as to displace any strong countervailing considerations militating in favour of a positive visa outcome. I have found that the Applicant poses a moderate recidivist risk but that the harm resulting from any recommission of his offending would be so serious as to be unacceptable to the Australian community were he now returned to it.

1. Primary Consideration 5 confers a very heavy level of weight in favour of this Tribunal affirming the Decision Under Review.

Other Consideration (a): Legal consequences of the decision

1. The parties are of one mind that the Applicant has not made any claims pointing to any engagement of Australia's non-refoulement obligations consequent upon his removal to Romania.[100] He has given no indication of applying for a protection visa. He is not barred from doing so either by s 48A of the Act or s 501E of the Act. The High Court has said that where a non-citizen can apply for a protection visa, this Tribunal can defer any assessment of whether any non-refoulement obligations are owed to that non-citizen.[101]
2. This is not to tritely suggest the Applicant will not experience any adverse consequence in the event he does not succeed in this application. In that scenario, he will be permanently excluded from re-entering Australia. This permanent exclusion carries two consequences: (1) his permanent exclusion from Australia does not engage the terms of paragraph 9.1 of the Direction. This is because s 501E of the Act prohibits him from making any application for another visa, with the exception of a protection visa;[102] and (2) the Applicant might experience some impediments if removed to Romania which will also result in his ties to people in this country also being impacted.
3. Neither of these two aspects of this second consequence are contemplated for consideration in 9.1 of the Direction. Any impediments are to be considered under paragraph 9.2 of the Direction. The impact on the Applicant's Australian ties was considered earlier in these Reasons pursuant to paragraph 8.3 of the Direction. While I accept there may well be legal and other consequences for the Applicant if unsuccessful in the instant proceeding, it would be unsafe to allocate anything more than (at best) moderate weight to those legal and other consequences.

Other Consideration (b): Extent of impediments if removed

1. Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

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

(c) any social, medical and/or economic support available to that non-citizen in that country.

1. Paragraph 9.2(1)(a): as best as I recall the evidence, there is no contention that any significant physical health malady has previously, or is currently, impacting the Applicant. In his PCF, he refers to his mental health difficulties as "depression and anxiety"[103] which he says is treated by anti-depressant medication (Avanza) originally prescribed to him by a Dr Robert Stewart who was treating him in prison. Since his time in prison, the Applicant has been assessed by Ms Cassandra Tuckey who, as noted earlier, describes the Applicant's symptomatology thus: PTSD, grief, moderate-severe depression, moderate-severe anxiety in the form of a Chronic Anxiety Disorder, moderate-severe stress & sensory deprivation from being detained in immigration detention.'[104] [Emphasis in original].
2. It is, in my respectful view, somewhat trite to suggest that the Applicant will be able to access such publicly available mental health treatments in Romania to the same extent as other citizens of that country. Here, we are looking for "impediments" those symptoms would present to the Applicant in Romania. To my mind, the major impediment is to be found in the relative difference between publicly available mental health support available to him in Australia compared to that in Romania. Such a finding presupposes a perhaps misplaced superiority in Australian public mental health care compared to that of Romania. If that presumption is misplaced, then there few, if any, impediments arising from his mental health symptoms. If it is not, then it reasonable to find the Applicant will be impeded as a result of sourcing the necessary mental health treatments in Romania. The Applicant's age and state of physical health are not impediments to him returning to Romania. The relative difference between Australia and Romania in terms of publicly available mental health care does constitute a genuine, but not insurmountable impediment.
3. Paragraph 9.2(1)(b): the Applicant spent the first third of his life in Romania, albeit in relatively trying circumstances as a state ward in orphanages. While he has spent over two decades in this country and completed his schooling here, it cannot be said the entirety of his cultural and linguistic familiarity with Romania has been obliterated from his consciousness. While he may not be as proficient in Romanian as he once was and while he may not be able to readily name (for example) the highest rating television program in Romania, he is not unfamiliar with Romanian cultural life and norms to such an extent as to now be suggestive of any impediment to his return and resettlement in that country. There is evidence from the instant Hearing that in Australia, he speaks in Romanian with his mother and at least some Romanian with his sister-in-law. I am therefore of the view there are no substantial language or cultural barriers impeding the Applicant returning to Romania.
4. Paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and/or economic support available to the Applicant in Romania. First, with reference to economic support, the Applicant cautiously accepted at the instant Hearing that he would be likely to find remunerative employment in Romania but that if he did, he would not be paid very well. The material is unclear about the level of government support and benefits available to the Applicant in the first few months of his return and resettlement in Romania on which he could sustain himself while finding a job and safe lodgings. I accept the first few months in Romania could prove economically precarious for the Applicant. This should settle down somewhat after finds remunerative employment. I am satisfied that the relative lack of economic support, at least in the short to medium term, will impede the Applicant's return and resettlement in Romania but not to an insurmountable extent.
5. Second, with reference to medical support in Romania, I again refer to the state of the Applicant's physical and mental health. He mentioned physical issues with a hernia and early arthritis but that these issues are currently managed by him taking fish oil tablets and vitamins. There is no impediment issue arising from those physical issues. But there remains the reality of his mental health symptoms. Earlier, I have presumed there to be a difference between Australia and Romania in terms of publicly available mental health care. I will find this difference does constitute a genuine, but not insurmountable, impediment to this Applicant's return and return and resettlement in Romania.
6. Third, with reference to social support available to the Applicant in Romania, I took the following impressions from the evidence: (1) most, if not all, of the Applicant's immediate family formerly in Romania have left that country and now reside in other places in Europe; (2) whatever relatives the Applicant may now have in Romania are barely known to him and cannot be approached to provide at least some measure of social support towards the Applicant while he finds his feet in that country; and (3) given the Applicant left Romania at a quite young age (11 years) he did not get an opportunity to establish any sort of adult contact network in Romania as may have occurred if, for example, he had been employed in a large workplace or served in the army before coming here. No doubt he is likely to establish such connections in due course in Romania but I will find that the relative lack of social support, at least in the short to medium term, will impede the Applicant's return and resettlement in Romania but not to an insurmountable extent.

1. My findings about impediments are as follows:
   • the Applicant's age and state of physical health are not impediments to him returning to Romania. The relative difference between publicly available mental healthcare between Australia and Romania does constitute a genuine, but not insurmountable, impediment to him returning to Romania;
   • there are no substantial language or cultural barriers impeding the Applicant's return and resettlement in Romania;
   • any lack of economic support will, in the short to medium term, impede his return and resettlement in Romania but not to any insurmountable extent;
   • any lack of medical support is a genuine, but not insurmountable, impediment to the Applicant's return and resettlement in Romania;
   • the relative lack of social support, at least in the short to medium term, will impede the Applicant's return and resettlement in Romania but not to an insurmountable extent.
2. Given my findings about each of the three sub-paragraphs to this paragraph 9.2 of the Direction, I am of the view that this Other Consideration (b) warrants a moderately strong level of weight in favour of revocation.

Other Consideration (c): impact on Australian business interests

1. Earlier in these Reasons,[105] I noted the respective positions of the parties that this Other Consideration (c) is not relevant to the instant determination. I concur with that mutually-held view and will therefore put it to one side and allocate neutral weight to it.

1. The allocation of weight to the Other Considerations in the present matter can be summarised as follows:

(a) legal consequences of the decision: is of moderate weight in favour of revocation; > > (b) extent of impediments if removed: is of moderately strong weight in favour of revocation; and > > (c) impact on Australian business interests: is of neutral weight.

1. Under section 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant's Visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied there is another reason, pursuant to the Direction, to revoke the cancellation decision. As noted (and found) previously in these Reasons, the Applicant does not pass the character test.[106]
2. In considering whether there is another reason to exercise the power afforded by section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant's visa, I have had regard to the considerations referred to in the Direction. I find as follows:
   • Primary Consideration 1: is of a very heavy level of weight in favour of affirming the Decision Under Review;
   • Primary Consideration 2: is of neutral weight;
   • Primary Consideration 3: is of a heavy level of weight in favour of setting aside the decision under review;
   • Primary Consideration 4: is of a moderate level of weight in favour of setting aside the decision under review;
   • Primary Consideration 5: is of a very heavy level of weight in favour of affirming the Decision Under Review.
3. I have earlier outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined respective weights I have allocated to Primary Considerations 3 and 4 together with Other Considerations (a) and (b) are comprehensively and dispositively outweighed by the combined respective weights I have allocated to Primary Considerations 1 and 5.
4. A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding there is not another reason to revoke the mandatory cancellation of the Applicant's visa.

1. Pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth), this Tribunal affirms the decision made by a delegate of the Respondent on 7 August 2024 to not revoke the mandatory cancellation of the Applicant's Class AS Subclass 801 Spouse visa.

1. I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for the decision herein of Senior Member T Tavoularis

Respondent's Statement of Facts, Issues and Contentions

Applicant's Statement of Facts, Issues and Contentions

[1] Harrison v The Minster for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at [63].

[5] Pursuant to section 501C(4) of the Act.

[6] Direction No 110 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA commenced on 21 June 2024. It replaces Direction No. 99 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA. I will hereinafter refer to Direction 110 as "t_he Direction_."

[7] For the Applicant's position, see A1, p 8, [38], p11, [52]-[53] and p12, [56]. For the Respondent's position, see R2, p 7, [35]; p 9, [51]; p 10, [54].

[8] Paragraph 8.1.1(1)(b)(i) of the Direction.

[9] Pavey v Minister for Home Affairs [2019] AATA 4198 at [44]. See also PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].

[14] Pursuant to Paragraph 8.1.2(1) of the Direction.

[17] Criminologist and Senior Psychologist.

[24] International Health and Medical Services.

[38] Depression, Anxiety and Stress Scale.

[45] Note to reader: Judge Boddice also dealt with and additional eight summary matters pursuant to s 651 of the Criminal Code Act 1899 (Qld). On each of these summary offences, the Applicant was convicted, convictions were recorded but the Applicant was not further punished beyond the sentences he received for the indictable offences dealt with by the Court.

[46] Section 433(1) Criminal Code Act 1899 (Qld).

[47] Section 50(1)(c)(i) Weapons Act 1990 (Qld).

[48] Sections 9A and 9B Drugs Misuse Act 1986 (Qld).

[49] Section 10(1)(b) Drugs Misuse Act 1986 (Qld).

[50] Section 9(1)(d) Drugs Misuse Act 1986 (Qld).

[51] Section 5 Drugs Misuse Act 1986 (Qld).

[54] See Applicant's statement, R1, p 95.

[55] Pursuant to Paragraph 8.1.2 of the Direction.

[56] Paragraph 8.1(1) of the Direction. See also paragraph 5.2(2) of the Direction.

[57] Pursuant to Paragraph 8.1.2 of the Direction.

[75] Paragraph 8.3(2)(a) of the Direction.

[76] Paragraph 8.3(2)(a)(i) of the Direction.

[77] That is, of the convictions I will take into account for present purposes: See [17] - [19] of these Reasons.

[78] Paragraph 8.3(2)(a)(ii) of the Direction.

[81] Paragraphs 8.4(1) and 8.4(2) of the Direction.

[82] Paragraph 8.4(4) of the Direction.

[93] Paragraph 8.5(3) of the Direction.

[94] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.

[95] Paragraph 8.5(2) of the Direction.

[96] Paragraph 8.5(2)(d) of the Direction.

[97] Walker v Minister of Home Affairs [2020] FCA 909 at [29].

[98] That is, of the convictions I will take into account for present purposes: See [17] - [19] of these Reasons.

[99] That is, of the convictions I will take into account for present purposes: See [17] - [19] of these Reasons.

[101] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 7 at [29]- [30].