1. The issue for determination is whether the Tribunal should exercise the power in s 501CA(4) of the Act to revoke the mandatory cancellation of the visa. That will require determination of:

(a) whether the Applicant passes the character test (as defined by s 501 of the Act); and

(b) if not, whether there is a 'another reason' why the mandatory cancellation decision should be revoked.

1. The Applicant is a 36 year old dual citizen of New Zealand and South Africa who has been ordinarily resident in Australia since arriving with his parents and siblings in 1997 when he was 14 years old. He has continuously lived in Australia since his arrival.
2. The Applicant's record is as follows:

(Note: this relates to suspended sentence on conviction on 9 April 2013 - see below)

Imprisonment of 3 months, cumulative from 6 January 2018

Imprisonment of 18 months, cumulative from 6 January 2018

Permit vehicle to be used with number plate not issued

8 months (concurrent) sentence of imprisonment, suspended for 12 months from 09.04.2013

Possession of a Prohibited Drug with Intent to Sell or Supply (Methylamphetamine)

Possession of Prohibited Drugs with Intent to Sell or Supply (Cannabis)

6 months and 1 day imprisonment, suspended for 12 months, licence disqualified for 9 months (cumulative)

$1,000 fine, licence disqualified for 9 months (cumulative)

$1,000 fine, licence disqualified for 9 months (cumulative)

$1,000 fine, licence disqualified for 9 months (cumulative)

Exceed the speed limit by 30-40 kilometres per hour

1. As noted in the above table, on 13 March 2019 the Applicant was convicted on two counts of aggravated assault occasioning bodily harm and breach of a suspended imprisonment order. The assault occasioning bodily harm listed at the top of the table in [6] above related to the suspended sentence imposed on 9 April 2013 for an assault in October 2012. For the offences for which the Applicant was convicted in March 2019 he was sentenced to a total of 21 months imprisonment. The Tribunal also notes that previously to the sentences imposed in March 2019, the Applicant had been sentenced to 6 months imprisonment (suspended) in June 2005, two years and eight months (some sentences to be served concurrently) in May 2008 and eight months (suspended) in April 2013.
2. On 3 May 2019 the Applicant's visa was cancelled under s 501(3A) of the Act and a notice advising the Applicant of the cancellation was, on that day, delivered by hand to the Applicant.[2] That notice advised, amongst other things, that the Applicant could seek revocation of the cancellation of the visa and advised how the Applicant could make representations about the revocation of the cancellation.
3. By request dated 4 May 2019[3] the Applicant requested revocation of the cancellation of the visa and by letter dated 29 May 2019 from his lawyers, Putt Legal, the Applicant made representations and provided material in support of that request.[4]
4. By letter dated 28 June 2019 from the Department of Home Affairs (the Department), the Applicant was invited to comment on further information relevant to the decision on whether to revoke the cancellation of the visa.[5] That further information was a Prisoner Report from Eastern Goldfields Regional Prison dated 8 May 2019.[6] It is not clear on the material before the Tribunal whether the Applicant responded to that letter.
5. By letter dated 8 October 2019 from the Department the Applicant was invited to comment on further information relevant to the decision on whether to revoke the cancellation of the visa.[7] That further information was listed in the Department's letter as:
   • sentencing remarks from District Court dated 2 May 2008;
   • formal counselling letter dated 15 August 2008;
   • acknowledgement of receipt of formal counselling letter 4 September 2008;
   • movement records; and
   • incoming passenger cards dated 4 January 2012 to 15 November 2015.

The Applicant's statutory declaration dated 18 October 2019 responded to that further information.

1. By letter dated 11 February 2020 from the Department, the Applicant was invited to comment on further information relevant to the decision on whether to revoke the cancellation of the visa.[8] That further information was a letter from the Applicant dated

12 May 2008 addressed to the Department which sought clarification of whether the Applicant was a person of 'interest...for [d]eportation'. This letter,[9] pre-dated the formal counselling letter dated 15 August 2008[10] by which the Department advised that:

At present, no active consideration is being given to cancelling your ...visa....

The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in fresh consideration of the cancellation of your visa. The consequences of visa cancellation under s 501of the Act include removal of the former visa holder from Australia and, in certain cases, bars on re-entering Australia.

The Applicant's statutory declaration dated 18 February 2020 responded to the material.

1. On 20 May 2020 the delegate decided not to revoke the mandatory cancellation of the visa under subsection 501(3A) of the Act pursuant to subsection 501CA(4) of the Act.[11] It is of that decision dated 20 May 2020 that the Applicant seeks review in these proceedings.

1. The application was heard on 30 July 2020. The Applicant was represented by Ms J Edis of Putt Legal Migration and the Respondent was represented by Mr A Downie of Minter Ellison who appeared by video. The Applicant appeared by video from Yongah Hill Immigration Detention Centre.
2. The Applicant gave evidence and was cross-examined. The only other witness to give evidence was the Applicant's mother. She gave evidence by telephone.
3. The following documents were admitted into evidence:

(a) The Applicant's Statement of Facts, Issues and Contentions dated 7 July 2020 (ASFIC) dated which included the following documents (Exhibit A1):

(i) statutory declaration of the Applicant made 21 July 2020;

(ii) statutory declaration of the Applicant made 23 June 2020;

(iii) statutory declaration of the Applicant made 28 May 2019;

(iv) statutory declaration of the Applicant made 18 October 2019;

(v) statutory declaration of the Applicant made 18 February 2020;

(vi) statutory declaration of the Applicant's sister, Delia Botha, made 22 June 2020;

(vii) statutory declaration of Delia Botha made 27 May 2020;

(viii) statutory declaration of the Applicant's mother, Gwen Ashton, made 23 June 2020;

(ix) statutory declaration of Gwen Ashton made in May 2019;

(x) statutory declaration of the Applicant's brother, Ryannon Botha, made 24 June 2020

(xii) letter from the Applicant's father, Gary McCarthy, dated 24 June 2020;

(xiii) statutory declaration of Gary McCarthy made 24 July 2019;

(xiv) letter from the Applicant's step-father, Ian Ashton, dated 7 July 2019;

(xv) statutory declaration of Applicant's partner, Sheree Hollow, made 27 May 2019;

(xvi) statutory declaration of Sharee Hollow made 22 July 2020;

(xvii) statutory declaration of a friend of the Applicant, Julia Gresswell, made 24 June 2020;

(xviii) statutory declaration of Paige Gresswell, Julia Gresswell's daughter, made 23 June 2020;

(xix) letter dated 21 June 2020 from Mark McNaught;

(xx) statutory declaration of Jay Mahmood, made 19 June 2020;

(xxi) statutory declaration of Amber Paskett, made 24 June 2020;

(xxii) statutory declaration of Ryan Paskett, made 18 June 2020;

(xxiii) statutory declaration of Maxine Smith, made 19 June 2020;

(xxiv) statutory declaration of Charon Thompson, made 19 June 2020;

(xxv) statutory declaration of Jeremy Thompson, made 18 June 2020;

(xxvi) statutory declaration of Ryan Thompson, made 18 June 2020;

(xxvii) statutory declaration of Derek Adams, made 19 June 2020;

(xxviii) letter from Taylor Mission dated 23 June 2020;

(xxix) statutory declaration of Barry Periera, made 18 June 2020;

(xxx) statutory declaration of Simon White, made 19 June 2020;

(xxxi) letter from The Whitehaven Clinic dated 23 June 2020;

(xxxii) letter from The Whitehaven Clinic dated 10 September 2019;

(xxxiii) letter from The Whitehaven Clinic dated 15 May 2019;

(xxxiv) letter from The Whitehaven Clinic dated 20 February 2019;

(xxxv) psychological assessment of Applicant by Dr Phil Watts, Adjunct Associate Professor of Clinical Psychology and Forensic Psychologist, dated 9 July 2019 and curriculum vitae of Dr Watts;

(xxxvi) W A Department of Justice Offender Program Report;

(xxxvii) Alcoholics Anonymous Australia confirmation of attendance at meetings while in Hakea Prison;

(xxxviii) email exchange between Applicant and Jay Birch re Australian Anti-Ice Campaign from September to November 2019;

(xxxix) certificates of participation in various courses and workshops - Ngala Dads WA.

(xl) Men's Group and Lifeskills certificates of participation;

(xli) statements of participation in parenting course, attachment in early years course;

(xlii) letter from Fran Wills of the Healing Sanctuary dated 22 July 2020;

(xliii) unsigned Police statement of evidence of Gwendoline Ashton relating to incident between the Applicant and his then girlfriend on 23 November 2016;

(b) Applicant's Submissions in Reply to RSFIC (Exhibit A2);

(c) Respondent's Statement of Facts, Issues and Contentions (RSFIC) (Exhibit R1);

1. The Tribunal notes that a number of the documents listed in [16(a)] above are also in the

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

The Minister must cancel a visa that has been granted to a person if:

(a) the Minister is satisfied that the person does not pass the character test because of the operation of:

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

(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

1. A 'substantial criminal record' is defined by s 501(7) of the Act as follows:

For the purposes of the character test, a person has a substantial criminal record if:

(c) the person has been sentenced to a term of imprisonment of 12 months or more

1. Section 501CA of the Act provides:

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

...

(4) The Minister may revoke the original decision if:

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

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

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

1. Section 499(1) of the Act provides that:

(1) The Minister may give written directions to a person or body having functions or powers under this Act ... if the directions are about:

1. Section 499(2A) of the Act states that:

[a] person or body must comply with a direction under subsection (1).

1. On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made a direction under s 499 of the Act, named "Direction no. 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under 501CA" (Direction 79). The commencement date for operation of Direction 79 was 28 February 2019.
2. Paragraph 6.1 sets out the objectives of Direction 79. Paragraph 6.1(3) relevantly provides:

Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

1. Paragraph 6.2 of Direction 79 provides general guidance as follows:

(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen's visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.

(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

1. Paragraph 6.3 of Direction 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4) of the Act, including the Tribunal. They are:

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

(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.

1. Paragraph 7(1)(b) of Direction 79 provides that, informed by the principles set out in paragraph 6.3, the decision-maker (in this case the Tribunal) must take into account the considerations in Part C of Direction 79 in order to determine whether the mandatory cancellation of the visa will be revoked.
2. Paragraph 13(2), which is in Part C of Direction 79, provides:

In deciding whether to revoke the mandatory cancellation of a non-citizen's visa, the following are primary considerations:

1. Protection of the Australian community from criminal or other serious conduct;
2. The best interests of minor children in Australia;

1. Further guidance as to how a decision-maker is to apply the considerations in Direction 79 can be found in paragraph 8 of Direction 79 which provides:

(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

(4) Primary considerations should generally be given greater weight than the other considerations.

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

1. Failure of the character test arises as a matter of law: Re Harrison and Minister for Immigration and Citizenship[13] at [63]-[45]. The character test is defined in s 501(6) of the Act. Under s 501(6)(a) of the Act, a person will not pass the character test if the person has 'a substantial criminal record'. This phrase, in turn is defined, relevant to this case, in

s 501(7)(c) (see [19] above) which provides that a person will have a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more. 2. The Applicant has been sentenced to terms of imprisonment in excess of 12 months and, as a result, has a substantial criminal record as defined in s 501(7) of the Act and therefore does not pass the character test (s 501(6) of the Act). That is conceded by the Applicant.[14] Therefore, the only issue for consideration is whether there is a reason to exercise the discretion to revoke the cancellation of the visa under s 501CA(4)(b)(ii) of the Act (see [20] above).

First primary consideration: Protection of the Australian community from criminal or other serious conduct (Direction 79 para. 13(2)(a))

1. Paragraph 13.1 of Direction 79 provides that when decision-makers are considering the protection of the Australian community, they:

(1) ...should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non­citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

(2) Decision-makers should also give consideration to:

1. The nature and seriousness of the non-citizen's conduct to date; and
2. The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

Nature and seriousness of the conduct (paragraph 13.1(2)(a))

1. Paragraph 13.1.1(1) of Direction 79 provides:
   1. In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to factors including:

1. The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously; 2. The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

1. The principle that 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, are serious;

1. Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes; 2. The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness; 3. The cumulative effect of repeated offending; 4. Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending; 5. 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); 6. Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act;
2. The Applicant has an extensive criminal record. The most serious offences, the ones for which the Applicant received terms of imprisonment, are:

(i) the drug possession and weapons charges of which he was convicted in May 2008, for which he received terms of imprisonment totalling two years and eight months;

(ii) the aggravated assaults occasioning bodily harm of which he was convicted in March 2019, for which he received terms of imprisonment totalling

(iii) the assault occasioning bodily harm of which he was convicted in April 2013, for which he received an eight-month sentence of imprisonment suspended for 12 months.

1. The circumstances of the offences of which the Applicant was convicted in May 2008 are set out in the sentencing comments of Eaton DCJ as follows:[15]

The maximum for count 2, relating to cannabis, is a fine not exceeding $20,000 or imprisonment for a term not exceeding 10 years or both. The facts are that at about 7.40 am on 15 May 2007, police executed a search warrant, under the Misuse of Drugs Act, at your home at Kingsley. You were there at the time of the offence along with two others, as I understand it, although the state says you were, generally speaking, the sole occupant.

They found methylamphetamine and cannabis in various places throughout the house, some of which has been detailed by the prosecutor in his account of the facts of the case. I don't need to repeat the detail that he mentioned. They also found $500 in cash in your wallet, numerous unused clipseal bags, as I understand it, electronic scales and a notebook containing notes for contact details said to be associated with the business of

He [Applicant's counsel] tells me that the cannabis which was in your possession wasn't there for a commercial purpose. It was there certainly, he said, to supply to friends, but it wasn't part of the commercial side of your dealing in prohibited drugs that was, by implication, from what he tells me, confined to dealing in crystal meth or ice. I'm told that you have been suffering from depression, at least he tells me that. I have read the material that has been provided by him on your behalf. I have to say that there's scant reference to depression in that material.

Drawing the positive aspect of the material that has been put before me out, it is to your credit that you have engaged in the services of Cyrenian House. I note that you have attended four counselling appointments since 3 January 2008, the first being on 3 January, the others being 1 February, 11 March and 27 March. There is a future appointment, I'm told, booked for 6 May, which is next week.

...

I have read also the letter from the counsellor of the Healing Sanctuary who speaks well of you. There is also a letter from Homeland Enterprises Pty Ltd, the author of that letter indicates that you work for the company and mentions your duties, and there's a letter from Beechboro counselling service which tells me something about your background and tells me that she has discussed - he has discussed, rather, further intervention with you, including a management plan involving other agencies, and that you have expressed your willingness to cooperate.

...

As I mentioned to him, a warning of things to come arose when you were charged on about 21 June 2006 with various drug offences including possession of cannabis and possession of methylamphetamine. You were fined a global fine of $500 in the Joondalup Magistrates Court on 21 July 2006, but that experience unfortunately didn't deter you because you continued with both your habit, it seems, and ultimately your dealing, as is evidenced by the results of the execution of the search warrant at your home giving rise to these offences.

1. The circumstances of the offences of which the Applicant was convicted in March 2019 are set out in the sentencing remarks of Sweeny DCJ[16] as follows:

You come before me to be sentenced on your plea of guilty to two offences of aggravated assault occasioning bodily harm. Both offences were committed upon your de facto partner back in October 2013 in the course of a domestic violence incident. You pleaded guilty to those offences on the day of your scheduled trial on 5 March 2019.

The convictions also see you in breach of a suspended term of eight months' imprisonment suspended for 12 months imposed by the Magistrates Court on 9 April 2013 for an assault occasioning bodily harm committed on 6 October 2012.

...

The facts and the charges have been significantly downgraded. Clearly the State reached a pragmatic view based upon the history of the complainant's previous retraction, an assessment of her overall evidence and the time you'd already spent in custody.

Some matters could not be agreed and they were the subject of a trial of the issues before me, so that the negotiations didn't actually save the complainant the need to testify.

At the time of the offending on 31 October 2013, you were in a de facto relationship with the complainant Yvette Pattison and you lived together at an address in Tapping. At the time you were 30. You're a tall man weighing you said about 100 kilos then and you were described by police at that time as having a medium to solid build.

She's more than a foot shorter than you and she weighed 47 kilos. That afternoon she came home from work about 4.45 pm to find you, your father Gary McCarthy and a neighbour Mark McNaught all drinking.

You grabbed at her neck and hit her repeatedly in a joking manner. A joke to you, but she didn't like it. She became upset. She went to the bedroom. You were all loud, you were shifting furniture about. She was getting frustrated with your lack of consideration. By 7.30 pm she'd had enough.

...

And she was very upset and she began packing some clothing to storm out. Whether she was genuinely going to storm out really doesn't matter. You then began kicking the cupboard walls in the walk-in robe.

That was obviously highly violent and intimidating behaviour. I accept that she was probably collected by a foot at some stage in the course of a struggle where you were kicking cupboards and she's exaggerated that into a sustained act of kicking on your part. Somehow she ended up on the ground where you then hit her and she hit you back. You then reacted to her hitting you because I find you couldn't believe that she would take you on.

And in anger you then bit her on the right leg for a few seconds which didn't break the skin, but has left a scar. She was crying on the floor while you continued to abuse her and by now you were demanding that she shut up. And I find she's likely to have been moving about in response to your behaviour and struggling to get up and get away. And as part of the interaction between you you bit her a second time, this time to the cheek breaking the skin and causing it to bleed. That was just vicious.

She still bears a scar from the fight. I accept that because I could see a different texture to that part of her face even under heavy makeup on the close-circuit TV screen. The bite was held for a short time and the pain must have been extreme.

Ultimately she was able to leave the house and call police who arrived a short time later to find her cowering in the street visibly distressed and injured and then you standing in the street drunk and also agitated.

1. In relation to the impact of the assault on the Applicant's victim, her Honour observed:

And bearing in mind that Ms Pattison does suffer from a certain mental fragility already in that she's been diagnosed with bipolar affective disorder and was not medicated at the time of the incident, she may well have suffered as she claims. Certainly I accept she is likely to have suffered trauma and high anxiety as a result.

And likewise I accept that such an incident is still likely to have some psychological impact upon her and to affect her future relationships. That is how domestic violence does affect women. It does shatter their trust in men and it does impact on their self-belief and their self-confidence. As to the claimed enduring physical impact of the two bites, I could see that she did still bear at least some scarring to her face.

1. Her Honour also touched on the Applicant's criminal record, including the circumstances of the assault in October 2012 for which the Applicant was convicted in April 2013 as follows:

You are now 35. You've got a four-page criminal record even taking into account that anything after November 2013 is not a prior conviction. As at November 2013 you had multiple traffic convictions, a history of drug offending including in 2007 possession of both methylamphetamine and cannabis with intent which saw you receive a two-year prison term. And then in 2013 you were placed on the suspended term I mentioned earlier for an assault occasioning bodily harm.

Since committing these offences you've incurred convictions for traffic matters, a breach of a violence restraining order, a criminal damage and a common assault on different occasions. The facts of the matter for which you were placed on the suspended term have been read to me and I incorporate the details into these sentencing comments. But in essence it was a very nasty assault back on 6 October 2012.

A chef came out of Mosmans Restaurant because he could hear noise out the back whereupon he came across you. You abusively asked him if he wanted to have a go and then you punched him multiple times to the head and kicked him to the chest. You do have some martial arts training and then you punched him some more. He ended up requiring seven stitches to a deep cut below his eyebrow as well as suffering bruising to his upper body and face and headache.

You were very fortunate to receive a term of eight months' imprisonment suspended for 12 months for such an offence. The law is that you having breached that order by reoffending, I now must order you to serve the term which was suspended unless something has arisen or become known since then which would make that disposition unjust. I do have the option of ordering you to serve part of the term only or imposing instead a fine if it would be unjust to imprison you.

1. As Sweeney DCJ noted in sentencing the Applicant in 2019, he has an extensive criminal record with multiple convictions for violent offences, multiple drug related offences, possession of a controlled weapon, possession of unlicensed ammunition, possession of explosives, breach of a violence restraining order, breach of a suspended imprisonment order, damage to property and multiple traffic offences. On any measure it is a serious and concerning criminal record.
2. Assessing the Applicant's history of offending against the considerations identified in paragraph 13.1.1(1) of Direction 79, the Tribunal observes that:

(i) The Applicant's offending involves repeated crimes of violence which must be viewed very seriously (paragraph 13.1.1(1)(a));

(ii) The Applicant's offending has involved violence against women and, again, must therefore be viewed very seriously (paragraph 13.1.1.(1)(b));

(iii) The sentences imposed by the courts have been significant (paragraph 13.1.1(1)(d));

(iv) The Applicant's offending has been frequent. His first driving offence occurred in 2004 and every year from 2004 to 2007 the Applicant committed multiple offences. Those offences started with relatively minor traffic and drug possession charges, however, increased significantly in seriousness with the May 2007 offences for possession of methamphetamine and cannabis with intent to sell or supply, possession of unlicensed ammunition, possession of a controlled weapon and possession of a smoking utensil for which the Applicant received terms of imprisonment totalling two years and eight months.

There was a gap in the Applicant's offending after he was convicted of those offences in May 2008, however, a portion of that hiatus would be explained by the Applicant being imprisoned for some of that period. That lull in offending came to an end with the Applicant's violent and unprovoked attack on a stranger in October 2012, described by Sweeney DCJ, rightly in the Tribunal's view, as a "nasty assault" (see [39] above). The ASFIC (paragraph 24) concedes that the violence against his former partner in 2013 and the assault against the member of the public in 2012 "are indefensible".

The Applicant contends[17] that it cannot be said that there is any trend of increasing seriousness to the Applicant's offending nor a cumulative effect of repeated offending, "as such". While it is the case that since the very serious assaults in October 2013 against his then partner for which the Applicant was sentenced to terms of imprisonment totalling 21 months,

the Applicant's offending has been less serious, it is still by no means minor. He has, since the assaults in 2013, breached a violence restraining order, committed common assault, committed criminal damage, possessed a prohibited drug and committed a number of driving offences including driving with a prescribed illicit drug in his system. A fair characterisation of the Applicant's history of offending would be that it has been sustained with peaks of increased seriousness in 2008, 2012 and 2013. In that sense, looking at the totality of the Applicant's offending, it would be fair to say that while the Applicant's offending has been frequent, there has not been a trend of increasing seriousness (paragraph 13.1.1(1)(e)).

(v) The Tribunal does not, however, accept the Applicant's proposition that the cumulative effect of the Applicant's offending is not a matter that should be viewed seriously by the Tribunal. The regularity and serious nature of the Applicant's repeat offending are matters of concern and must weigh against the Applicant (paragraph 13.1.1(1)(f)).

(vi) The Applicant received a formal warning from the Department by letter dated 15 August 2008.[18] The Applicant claims to have no recollection of having received this letter from the Department. His evidence in this regard was unconvincing. At the hearing he said that he could recall having concerns about the status of his visa when he was in Wooroloo Prison after his drug convictions in 2008.[19] He says that he can remember sending a letter to the Department in May 2008[20] which made submissions against his being deported because of the drug offences for which he had been sentenced to two years imprisonment, but claims to have no memory of receiving a "letter that you got...back in reply almost", as his counsel put it.[21] In May 2008 the Applicant was concerned enough about the possibility of his deportation because of his convictions to write a fairly detailed, unsolicited letter, albeit, he says, with assistance from a family member, but cannot recall getting what his counsel described as effectively a response to that letter three months later. The Applicant signed an acknowledgement of receipt of the warning letter on 4 September 2008[22] which confirmed receipt of the letter and stated that:

I understand that under the provisions of section 501 of the Migration Act, any visa that I hold may be considered for cancellation if I am convicted of further criminal offences or engage in any conduct that comes within the scope of subsection 501(6) of the Migration Act.

Irrespective of whether the Applicant now remembers receiving the formal warning, and the Tribunal does not believe the Applicant's evidence that he cannot remember receiving the letter, the fact is that the Applicant did receive a formal warning in 2008 which unequivocally set out the consequences of further offending on his visa status and signed an acknowledgment of receipt of that warning letter which again set out the possible consequences of further offending. Notwithstanding that warning, the Applicant, relatively shortly thereafter, went on to continue committing serious offences. This is a consideration which must weigh against the Applicant (Paragraph 13.1.1(1)(h)).

1. The nature, seriousness and regularity of the Applicant's offending, in particular the offences involving violence and drugs, weigh heavily against the revocation of the cancellation of the Applicant's visa.

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (13.1(2)(b))

(1) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

1. The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
2. The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

1. The Tribunal in CZCV and Minister for Home Affairs[23] (CZCV) summarised the task for the Tribunal as follows:
   1. In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]- [43]):

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

1. In BSJ16 v Minister for Immigration and Border Protection,[24] Moshinsky J stated, at [68]:

...there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.

1. The Tribunal agrees with and adopts the approach indicated in the above cases.

Nature of harm to individuals or the Australian community (13.1.2(1)(a))

1. The nature of the harm to individuals and to the community if the Applicant were to offend violently or to deal in drugs as he has in the past, are obvious and serious. As Sweeney DCJ noted in sentencing the Applicant in 2019:

And likewise I accept that such an incident is still likely to have some psychological impact upon her and to affect her future relationships. That is how domestic violence does affect women. It does shatter their trust in men and it does impact on their self-belief and their self-confidence.

...

Women who live with domestic - sorry, women who live with violent intimidating men end up with no self-confidence, no sense of self, no ability to stand up for themselves and they live with fear and anxiety.

1. In relation to the impact of drugs and dealing drugs, in Jacobs and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[25] this Tribunal adopted the summary of Lonsdale DCJ set out at [40] of that decision which included the following assessment:

It is the experience of these courts that illicit drugs cause or materially contribute to a very significant proportion of the criminal offences committed in this State.

And that is either as a result of users acting under the influence, or because of their need to finance or secure a supply of drugs. There are often strong financial incentives to deal in prohibited drugs. Further, significant public resources are devoted to the difficult task of detecting and apprehending persons involved in the supply and distribution of illicit drugs.

1. The Tribunal again adopts her Honour's comments.
2. The Applicant himself agrees,[26] that "the nature of the harm that would be caused by him committing similar offending in future is serious".

The likelihood of the non-citizen engaging in further criminal or other serious conduct - risk of re-offending (13.1.2(1)(b))

1. The Applicant submits[27] that the likelihood of the Applicant engaging in further criminal conduct is low as a result of an ongoing rehabilitation process (in various forms) to which the Applicant has committed since mid-2018. He is, according to the Applicant, determined to overcome his past and has used his term of imprisonment and time in detention productively.
2. The Applicant says that it is significant that the vast majority of counselling, programs and courses that he has undertaken while in prison or in immigration detention have been on a voluntary basis. He identifies[28] that;

(a) on 27 June 2018, the Applicant completed a voluntary course entitled Brief Intervention Family Violence Men's Program to develop strategies in addressing Family Violence issues;[29]

(b) between 20 August and 3 September 2018, the Applicant completed the Brief Intervention Cognitive Skills Program which addresses topics such as self-control, critical reasoning and interpersonal perspective taking and relapse prevention.[30]

The program report described the Applicant as a "willing participant throughout all discussions and activities, often showing leadership within the program" and "demonstrat[ing] a sound level of understanding of the course content". It was reported that the Applicant acknowledged that "poor decision making and relationship issues were the cause of his lack of self-control and this had contributed to his impulsive behaviour" and that he had provided thoughtful, considered examples throughout the sessions;[31] and

(c) on 23 August 2018 the Applicant commenced an intensive rehabilitation course with the Whitehaven Clinic Addiction Treatment and Recovery Centre. The Applicant participated in a total of 18 one-on-one, one and a half hour counselling sessions as part of Whitehaven's Addiction Recovery Process individualised program during his term of imprisonment.[32]

1. The Applicant points[33] to comments in a report dated 20 February 2019 from the Whitehaven Clinic.[34] The author of the report, Ms Ali Heron, who describes herself in that report as Program Facilitator, Addiction Recovery Process Program, commented:

(i) on the Applicant's "positive engagement" and "excellent progress on providing insight into his behaviours and patterns" such that

"the improvement between his initial assessment and current state in his mental well-being and growth has been considerable and noticeable to himself and family".

(ii) that the Applicant was "very much about self-improvement" and had gained "insights with considerable maturity" - describing his progress as "quite a break-through".

(iii) that "[the Applicant] has remained connected with his family throughout the period of incarceration" and "he sees his family as being key to his recovery journey".

(iv) That "if [the Applicant] continues to focus on his ongoing healthiness and maintains the practices that have gotten him to this level of healthiness, he will be a low risk of relapse".

1. The Applicant also refers to the sentencing comments of Sweeney DCJ in March 2019 which referred to the Whitehaven Clinic report of February 2019 and noted that:

...All of that is a positive thing and while the court is guarded about predicting a change of life for someone who's been in serious trouble like you have and has obvious issues the fact is you won't change your life if you don't make a start and recognising where you have been making mistakes is a good start.

...

So there is I think reason to conclude that you are not a hopeless case doomed to spend the rest of your life in prison. You are starting to make some intelligent decisions about how to get your act together and that gives me some hope [...] for your future.

1. The Applicant says that Whitehaven Clinic program has been transformational and describes it as having been "paramount in [his] recovery" and enabled him to have insight into his offending behaviour.
2. The Applicant has also completed the following courses while serving his term of imprisonment:
   • life Skills Re-Entry Program;
   • career Development Workshop Program;
   • alcoholics Anonymous;
   • standing on Solid Ground; and
   • a range of education courses.
3. The Applicant provided a report dated 9 July 2019 by Dr Phil Watts[35], psychologist, addressing the Applicant's risk of reoffending. The Applicant highlights the following paragraphs of that report:
   1. Mr McCarthy indicated that on his release, he is adamant that he will not reoffend. Many offenders express a similar belief. In this particular case, Mr McCarthy indicated that he has done quite extensive counselling and he has addressed his drug problem, so he recognises emotional triggers and so forth. Consequently, he is in a much better place now to not reoffend than he has ever been in his life.
   2. In conducting the assessment of this 35-year-old man, my opinion is that he has symptoms of PTSD, predominantly from a period of significant bullying and physical assaults while living in New Zealand as a school boy. As a result, when he arrived in Australia, he sought work rather than attend school, but also turned to alcohol and drugs. Despite these problems, Mr McCarthy has also been a very hard worker who has had employment across a number of areas, and he indicated that he has been up to levels of being a supervisor.
   3. It is evident that Mr McCarthy is not good at expressing emotion. Some of this is likely to have come from the family of origin and also relates to the relatively young age when the incidents took place. If somebody is unable to address problematic behaviour directly, they turn to coping strategies, which include drugs, alcohol and behavioural acting out. Until somebody learns to deal with the emotion directly, they are at risk of relapsing to any of those areas.
   4. It is evident that Mr McCarthy has engaged in some quite significant therapy and has gained insight and understanding. In my opinion, he still has further work to do in regards to the trauma, particularly, I would recommend that he seeks a therapist who is trained in Eye Movement Desensitisation and Reprocessing (EMDR) to help resolve some of the PTSD symptoms. However, I am of the opinion that he has made some quite significant progress, which would markedly lower risk of reoffending. I would further opine that he is likely to respond well to that type of treatment as it is more behavioural than verbal.
4. The Applicant[36] refers to paragraph 36 of Dr Watts' report which opines that:

...his risk of reoffending has significantly lowered, and if he continues with therapy, especially the EMDR described above, and the drug rehabilitation, then I would argue that the risk would be negligible.

1. The Applicant was not able to continue with the Whitehaven program or undertake the EMDR treatment while in immigration detention. He did, however, have at least eight sessions with a clinical psychologist who services the Yongah Hill Immigration Detention Centre and has also expressed an interest in becoming involved with Australian Anti-Ice Campaign. Attachment 37 to A1 was an email exchange between the Applicant and

Mr Birch of Australian Anti-Ice Campaign to that effect. 2. The Applicant also submits that, quite apart from the Applicant's rehabilitative efforts,

the Applicant has an overwhelmingly strong disincentive from him re-offending in future. He is well aware that should the visa cancellation be revoked, he will not be afforded another chance. 3. The Respondent acknowledges that the Applicant has engaged in rehabilitative efforts and claims to be on a "recovery journey", but says that the available evidence indicates that the Applicant still has work to do in respect of the underlying trauma he claims to be a cause of his recidivism, that he still presents with "moderate levels of depression". While his risk of reoffending has significantly lowered, his ongoing risk remains closely tied to his continuation with therapy citing Dr Watts' report of 9 July 2019. 4. The Respondent submits that:[37]

(iii) the applicant's recent rehabilitative efforts remain untested in a community setting, and his request for a 'second chance' should be assessed with reference to the fact that he has previously undertaken drug rehabilitation courses and notwithstanding his belief that he would not be involved in criminal activities in the future given his understanding of the consequences that might carry for his immigration status and his 'exceptional effort to rehabilitate', 'strong family and community support,' 'confirmed employment' and 'a stable relationship with his fiancée', he resumed drug use and engaged in serious and escalating criminal acts since that time: G82/276; S2/95; and

(iv) the evidence of significant recidivist criminal behaviour following a formal warning, as well as a history of criminal conduct running contrary to the express intention of formal court orders restraining such conduct, must weigh against an acceptance of the applicant's contention that his risk of re-offending is minimal: AS13 at [53].

1. The Tribunal notes that the Applicant was granted parole. The Parole Order[38] identified in the reasons for decision section that the Applicant had undertaken rehabilitation programs, that he had successfully completed parole previously and that "the conditions of parole will further reduce the risk to the safety of the community".[39] The Parole Board concluded that the Applicant did not pose an unacceptable risk to the safety of the community. It imposed reporting and notification conditions on the parole.
2. This Tribunal noted in Peterson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[40] that:
   1. While the Tribunal acknowledges that parole was granted, it also notes that the Parole Board is assessing risk for the period from the date the prisoner is released on parole until the expiry of the maximum sentence. The parole period is a period of supervision during which the prisoner, depending on the terms, will be supervised by, and report regularly to a community corrections officer who will monitor the prisoner's compliance with the parole conditions imposed by the Board. That does not mean that the Parole Board is of the view that the Applicant is not a risk to the community, not even for the period of his parole. The import of the parole order is that the Parole Board was of the view that, with monitoring and supervision during the period of parole, the Applicant did not pose an unacceptable risk to the safety of the community.
   2. The comforts that the Parole Board have in making an order for parole are that, firstly, it can impose conditions and, secondly, if the prisoner re-offends or breaches the conditions imposed, he will be taken back into custody and out of the community. This Tribunal does not have the benefit of those comforts when assessing whether an Applicant is an acceptable risk. Once an applicant's visa is restored, the applicant is released free and unconditionally back into the community.
   3. The Tribunal also notes and agrees with Senior Member Dr Evans-Bonner comment in Varley and Minister for Home Affairs [2019] AATA 376 at [110] that:

The Tribunal cannot, however, defer to the opinion of the PRB to the extent that the Tribunal fetters its own discretion. The Tribunal must undertake its own independent consideration of the Applicant's likelihood of reoffending, based on the merits of the Applicant's application before the Tribunal and the submissions and evidence before the Tribunal.

(see also Gage and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 326 at [107]).

1. The same comments apply in the present case.
2. The Applicant concedes, and it is clear, that his offending has been linked to his abuse of alcohol, use of illicit drugs and his inability to handle stressful situations. The aggravated assaults in October 2013 for which the Applicant was sentenced to 21 months' imprisonment and the conviction for criminal damage, destruction of property in November 2016, were committed in circumstances of, as the Applicant describes it, dysfunctional relationships. The Applicant, initially at least, placed considerable emphasis on the fact that he was now in a stable relationship with Ms Hollow. In his statutory declaration made on 28 May 2019, the Applicant made the following statements:
   1. Sheree is my rock and I am hers. She knows all about my dramas with Yvette, and she herself had a difficult time with her ex-boyfriend. We have both learned form our mistakes in our previous relationships and I think that we are even more supportive of each other because of it.

1. I was so scared that I would lose Sheree because of my arrest. But she had been so steadfastly supportive of me; she is amazing. I don't know if I would have been able to survive, mentally and emotionally, if not for Sheree.
2. Sheree and I have talked about my problems with drugs and alcohol in the past. We have agreed a 100% "zero tolerance" approach in future. There is no simply [sic] place in my life for drugs and alcohol. I have learned through my counselling in prison that I sued drugs as a coping mechanism, which only made things worse. I swear that I won't be doing that anymore.
3. Unfortunately, things took a turn for the worse after the Applicant made that statement. In his statutory declaration made on 23 June 2020, the Applicant advised:
   1. Sheree and I remain committed to, and supportive of, each other. But while I have been in prison and immigration detention, things took a turn for the worse for Sheree. She was convicted of a drug-related offence. I am not across the full details. I understand that it related to her being found in possession of methylamphetamine in early 2016 (well before our relationship commenced).
   2. Sheree ended up in prison for a short while. I was devastated. Even though her offending was from before we met, I somehow felt like I had let her down. I felt like I should have been there to support her through it all. Instead, I was stuck in prison too, for my criminal conduct dating back to 2013. All each of us wanted was to get on with our lives. But we were being held back by our past mistakes.
   3. When Sheree was released on parole, she committed to a "zero tolerance" approach to drugs. We were very much on the same page. I had done my intensive counselling with the Whitehaven Clinic and gained an enormous amount of insight into how damaging my past behaviour had been. I realised full well that drugs are not the answer when real life becomes too painful to cope with. Sheree and I talked about this regularly and at great length.
   4. Sheree seemed to be going really well; she sounded healthy, strong, committed and positive. She was doing a traineeship and she was living with her parents. But then my visa got cancelled in May 2019 - just when we thought I was going to be released on parole in June 2019 and coming home to resume our building a life together. Sheree tried to put on a brave face to support me but it turns out that, privately, she was falling apart. In October 2019, she breached one of her parole conditions.

1. I must constantly ask "is this going to support the life that lam trying to create?". What that means for myself and Sheree is this: if she ever considers turning back to drugs, for any reason, I will be gone. it will be the end of the road for us. No question about it. I know that I am repeating myself but, honestly, I have too much to lose. And I have come too far with my own self-development. I cannot jeopardise that. It would break my heart. But I am not an idiot either. And I know what is best for my future. If that means making hard choices, I will make them.
2. Ms Hollow provided a second statutory declaration made on 22 July 2020 addressing her conviction, imprisonment and recent breach of parole. In that statutory declaration she said:
   1. Within a few months of Kurt being arrested in 2017, I ended up in prison too. My conviction was for being caught in possession of methamphetamine back in 2016. I was released within 15 months. I got back into full-time work and I was doing really well, living with my parents, but when Kurt's visa got cancelled in May 2019, I couldn't handle it and I guess you could say I fell apart. I breached one of my parole conditions which caused me to end up back in prison.
   2. I have spent the last several months at Wandoo Rehabilitation Prison and was released on 17 July 2020. I can honestly say that I have never felt better, and it was the best place for me to be all this time. I am feeling strong and healthy and fit and motivated. In particular, I have thrown myself into my fitness and I am actually training for my first ultramarathon in October. I am also going to start my Certificate III at the Australian Institute of Fitness next month. I am paying for the course from the money that I saved up from working before I went to Wandoo.
3. Ms Hollow's statutory declaration of 27 May 2019 did not mention that she had been convicted of drug offences and had spent time in prison and was on parole.
4. The Applicant's statutory declaration dated 28 May 2019[41] placed significant weight on the support that Ms Hollow had provided and would provide to the Applicant in avoiding a return to drug use (see [66] above). There is no mention in that statutory declaration that Ms Hollow had been arrested "within a few months of [the Applicant's] arrest in 2017", that she had spent 15 months in prison for a drug offence, or offences, and that at the time of his making that statutory declaration she was either on parole for the drug offence or had breached the terms of parole. While the Applicant's statutory declaration of 18 October 2019 dealt primarily with other specific issues, there was no mention in that statutory declaration of

Ms Hollow's conviction on drug charges and her subsequent breach of parole and re-incarceration. 5. Similarly, the Applicant's statutory declaration dated 18 February 2020 made no mention of Ms Hollow's drug conviction and subsequent breach of parole. In that statutory declaration the Applicant made the following claims: 1. I have also removed myself completely from my old associates. I can happily say that I have eliminated all of my past friends that used drugs from my life. I believe that the removal of these people from my life can only be a good thing.

1. I have a supportive and loving family, who have stood by me throughout all my difficulties. My fiancé and I have made plans for the future which include starting a family. The fact that my fiancé is also anti-drugs is such a good thing for me, in fact it is essential.
2. Those claims are belied by the fact of Ms Hollow's conviction and subsequent breach of parole. Clearly the Applicant's claim that he had "removed [himself] completely from [his] old associates" and had "eliminated all of [his] past friends that used drugs from [his] life" was false. Further, the claim that his "fiancé is also anti-drugs", in the absence of a disclosure that she had a recent drug-related conviction and a breach of parole within the last 10 months is, if not misleading, less than fulsome.
3. It is also significant that the breach of parole committed by Ms Hollow some time after

May 2019 was for taking drugs. None of the Applicant's or Ms Hollow's later statutory declarations which referred to her drug-related conviction and breach of parole identified the breach of parole as being her taking drugs. This only emerged at the hearing in response to questions put to the Applicant by the Tribunal.[42] 4. The other thing that emerged at the hearing was that up to the time of his arrest in September 2017 the Applicant was using drugs, in particular methamphetamine, with others, including Ms Hollow. The following exchange took place:

TRIBUNAL: You lived with your partner up until the time of your arrest in September 2017, is that correct?

APPLICANT: Yes. That's correct, yes.

TRIBUNAL: Were you taking drugs at that time, in that period?

APPLICANT: Look, to be honest it was recreational, but it was nothing like it used to be all the years ago. So - - -

TRIBUNAL: What drugs were you taking?

APPLICANT: We'd smoke meth every now and then.

TRIBUNAL: So your partner was smoking meth with you at that stage, was she?

APPLICANT: On and off, yes.

TRIBUNAL: And what about - were you doing that with other people as well?

APPLICANT: Yes. I'd say that there was - there was a few people around, yes.

1. The Tribunal accepts that the Applicant has undertaken a number of courses during his most recent imprisonment and immigration detention. As the Respondent points out, however, the Applicant undertook rehabilitation courses when he was imprisoned in 2008 to 2009 and went on to take drugs and continue to commit serious offences. The Applicant seeks to address this failure in his statutory declaration dated 18 February 2020. He said:
   1. At that time in my life I did not believe or accept that I had a drug addiction. I considered myself to be a "social" user. This was a huge mistake looking back now.

1. I was not genuinely committed to the course, given that I didn't feel that I needed to be there in the first place. I guess that you could say that I went through the motions.
2. Each session I was placed with a different counsellor. This meant that I did not get the opportunity to build a relationship with any one of them. The bulk of each hour-long session was spent explaining my personal situation to the counsellor. It was frustrating and repetitive. We did not end up discussing any fundamental issues that led me to drug usage.
3. The Applicant goes on to explain how the courses and programs undertaken by him in his more recent imprisonment and immigration detention were different. The Tribunal notes the Applicant's comment that one of the reasons that the previous rehabilitation programs did not work was because he thought at that time that he was only a "social user".

That language is disconcertingly similar to his characterisation at the hearing of his drug use up to the time of his last arrest in September 2017 as being "recreational" (see [74] above). This raises a concern that, despite what the Applicant says, he still does not consider the use of methamphetamine to be the scourge that it is. 4. The psychiatric reports provided by the Applicant, while containing positive assessments of the Applicant's progress and engagement with programs, do contain a number of caveats or qualifications. In the Whitehaven Clinic report dated 20 February 2019 Ms Heron comments that:

If [the Applicant] continues to focus on his ongoing healthiness and maintain [sic] the practices that have gotten him to this level of healthiness, he will be a low risk of relapse.

(Emphasis added.)

1. As noted at [58] above, the report of Dr Watts was only able to say that the Applicant's "risk of reoffending has significantly lowered" (emphasis added) (from what is not identified), and that "...if he continues with therapy, especially with EMDR..., and the drug rehabilitation, then I would argue that the risk would be negligible" (emphasis added). The Tribunal appreciates that any assessment of future conduct, even by a suitably qualified medical practitioner, must be qualified to some extent. The assessments by Ms Heron and Dr Watts, as they must be, proceed on the assumption that the Applicant will continue with his treatment and that he will continue to focus on his health. While the Applicant says that that will be the case, the Tribunal is not convinced.
2. The Applicant has a long and substantial criminal record. He has, over an extended period, shown a disregard for the law. He has previously undertaken a drug rehabilitation program while in prison which obviously had no effect. There have also been several occasions in the Applicant's past when it was made clear to him, or at least should have been clear to him, that he needed to address his drug and alcohol issues but was either unable or unwilling to do so. At the sentencing for his possession with intent to sell or supply in 2008, the sentencing judge referred to the fact that he had already been convicted in 2006 for possession of cannabis and methamphetamine and fined but that "that experience didn't deter you because you continued with both your habit, it seems, and ultimately your dealing" (see [36] above). Notwithstanding that admonition by the sentencing judge and the imposition of prison sentences totalling over two and a half years, the Applicant continued to commit serious offences.
3. If any more specific a warning was required, then that came in the form of the Department's formal warning, or counselling, letter in August 2008 (see [41(vi)] above). Again, that seemed to have no effect and the Applicant continued to offend, including being in possession of cannabis in April 2017 and driving with a prescribed illicit drug in his system in August 2017. He himself admitted at the hearing that he was still smoking methamphetamine, with Ms Hollow and others, up to the time of his last arrest in

September 2017 (see [74] above). 4. There were numerous statements of support provided by family, friends and even offers of future employment (see [16] above). The Tribunal is sure that those who have provided these statements are sincere and do have the Applicant's best interest at heart, however, in considering the likelihood of the Applicant engaging in further criminal or other serious conduct, the observation that must be made is that these same support structures, including employment, were in place at the time that the Applicant committed his offences. 5. It is relevant in assessing the Applicant's bona fides in the claims that he makes to being a changed person and that he would not return to using drugs, that he was less than frank in disclosing Ms Hollow's drug convictions and her obvious drug problems. Ms Hollow was put forward by the Applicant as being a key part of his staying away from drugs if he were to be given another chance. It is, in the Tribunal's view, unlikely that Ms Hollow would provide the necessary support. 6. The Applicant submitted that his more serious offending had occurred when he was young and immature. Dr Watts in his report opined that it may be because the Applicant faced trauma at an early age, the Applicant says that he was bullied and sexually abused as a child in New Zealand, that "regulating emotions and dealing with problematic situations does not come easily to him" (A1, Attachment 34 at [28]). The Tribunal does not accept, however, the Applicant's submission that he was young and immature when he committed his most serious offending. When the Applicant committed the drug possession with intent to sell or supply in 2007 he was nearly 24 year's old. That is not young. When he committed the serious assaults occasioning bodily harm in 2013, he was 30 years of age. That is clearly not young. 7. While there are positives, including those identified in the Whitehaven Clinic reports and

Dr Watts' report relating to the Applicant's engagement with the most recent rehabilitation programs, the fact that it is nearly seven years since the Applicant committed the last serious offences, the offences that resulted in the cancellation of his visa, the fact that the Applicant has apparently been a model prisoner, has improved his physical health and has remained abstinent from drugs while in prison and in immigration detention (the Applicant's evidence was that drugs are readily available in detention; para. 4(g) Applicant's statutory declaration dated 21 July 2020), in the end what we have is the Applicant's claim that he has, this time, taken rehabilitation seriously and will not revert, as he has in the past, to drug and alcohol use with the consequences that that has had in the past. 8. The Respondent also points out that the reports from Whitehaven Clinic and Dr Watts are qualified and both recommend continued treatment (see [77]-[78] above). There is, however, no way for this Tribunal to ensure that that the Applicant undertakes that ongoing treatment. As noted above, unlike the Parole Board, this Tribunal has no power to impose conditions. The Tribunal is left largely to take the Applicant at his word. 9. Based on all of the evidence the Tribunal is not satisfied that the Applicant has addressed his alcohol and drug abuse issues and his violent behaviour. The Tribunal assesses the likelihood of the Applicant offending, particularly committing drug-related and/or violent offences, as medium. The harm that would be caused if the Applicant were to repeat the offending that he has engaged in in the past is serious. The Tribunal finds that the first primary consideration weighs heavily against revocation of the cancellation of the Applicant's visa.

Second primary consideration: Best interests of minor children in Australia affected by the decision (13(2)b))

(1) Decision-makers must make a determination about whether revocation is in the best interests of the child.

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

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

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

1. 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);

2. 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;

   1. 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;

   2. 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;

   3. Whether there are other persons who already fulfil a parental role in relation to the child;

   4. Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

   5. Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

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

1. The Applicant has no children. The Personal Circumstances Form[43] completed by the Applicant in support of his request for revocation of the cancellation of the visa identified only one relevant child, his now 10 year-old nephew. The ASFIC identifies that child and two godchildren, a two year-old and a five year-old, as being relevant to this consideration. None of these children was identified by the Applicant as being "other minor children in [his] life" in the Personal Circumstances Form completed by him in May 2019[44] nor were they referred to in the Putt Legal letter dated 29 May 2019 to the Department making submissions relating to the considerations identified in Direction 79.[45] That letter did not identify any minors as being relevant to this consideration under Direction 79.
2. According to the Applicant[46] the Applicant's nephew keeps in touch with him via an app known as Kid Messenger and the nephew takes care of the Applicant's dog and sends him photographs and updates as to the dog's welfare. They also talk about how the Applicant will teach him about dirt bikes and boxing.
3. It is not suggested by the Applicant that he plays any parenting role in relation to his nephew. It would also appear that at least for the last three years the only contact that the Applicant has had with his nephew is through the Kid Messenger app, or by telephone
4. At paragraph 33 of his statutory declaration dated 23 June 2020, Applicant claimed that the two godchildren depend on him and that he supports them emotionally and financially.

No details of that support were provided. The only reference to these godchildren in the Applicant's evidence at the hearing was that he had obtained certificates for parenting sessions while in detention because he has godchildren and that he and his partner want to start a family.[47] 5. It appears that the older of the godchildren, although he is not named, is the child of

[redacted] who provided a statutory declaration dated 19 June 2020.[48] In that statutory declaration [redacted] says that the Applicant was a positive role model to his child and that on a weekly basis the Applicant would collect his child and take him out for the day and that while in prison the Applicant drew pictures and sent them to the child. There is no reference in that statutory declaration to the Applicant providing financial support. 6. It appears that the other godchild is the child of [redacted] who provided a statutory declaration dated 23 June 2020. Again, although it is not clear, it appears that this child is the two year-old which means that the child was born after the Applicant was imprisoned. There is no mention in [redacted] statutory declaration of the Applicant having had any contact with that child. 7. The Respondent submits that:

(b) in relation to his nephew, there is no evidence to support a finding that a decision not to revoke the cancellation of the visa will have a significant adverse impact on the child;

(c) the Applicant in his statement of 26 May 2019 stated that he had "only just got to know" the child in the past two years;

(d) the Applicant's sister, the child's mother, had said in her statement that the Applicant had become closer to the child through phone contact and that there was nothing to suggest that the relationship could not continue electronically if the Applicant were to be deported to New Zealand; and

(e) despite his claim, there is no evidence to support the Applicant's contention that his godchildren are reliant on him financially or otherwise.

1. The Respondent does not dispute that this consideration weighs in favour of the revocation of the cancellation of the visa, but contends that limited weight should be given to it for the reason set out above.
2. The Tribunal agrees with the Respondent's assessment. On the evidence that has been presented, the only child with whom the Applicant has any sort of relevant relationship is the Applicant's nephew. It appears that in relation to all of the children identified, the Applicant has not fulfilled, and is unlikely to fulfill in the future, any parenting role.

The godchildren are both very young and it is unlikely that the Applicant being deported to New Zealand would have any impact on them. 3. Accordingly, while this consideration weighs in favour of the revocation of the cancellation of the visa, only minimal weight can be given to it.

Third primary consideration: Expectations of the Australian community (13(2)(c))

(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the Government's views in this respect.

1. The Tribunal also refers to the principles and expectations set out in paragraph 6.3 of Direction 79 (see [26] above).
2. The proper construction of paragraph 13.3 of Direction 79 has been the subject of much judicial analysis. The starting point for most of the recent analysis was Justice Mortimer's decision in YNQY v Minister for Immigration and Border Protection[49] (YNQY). The two approaches that emerged following her Honour's decision in YNQY were the so-called broad approach of the type taken by Griffiths J in DKXY v Minister for Home Affairs[50] (DKXY) and the so-called narrow approach of the type taken by Perry J in FYBR v Minister for Home Affairs[51] (FYBR) (for an analysis of those approaches see [99]-[114] of Pinder and Minister for Home Affairs[52] ).
3. That debate as to which approach is correct appears to have been resolved by the

Full Court of the Federal Court in FYBR v Minister for Home Affairs[53] (FYBR (FC)). The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by

Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a 'kind of deeming provision' - expressing

'an expectation deemed by the government to be held by the Australian community' (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[54] (Rehman). 4. Special leave was sought to appeal the decision in FYBR (FC). On 24 April 2020 the High Court (Kiefel CJ and Keane J) refused special leave.[55] 5. Justice Stewart in FYBR (FC) found: 1. It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting "community expectations" then, in that sense, they might accurately be understood as "deeming" what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field. 2. However, it is not to be expected that the Government of the day would seek, via the device of "community expectations" or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J. 3. The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, "community expectations" as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, "community expectations" as expressed by the Government do not speak to the outcome in any particular case - they are to be understood and applied normatively. 6. Justice Charlesworth also observed: 1. Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen's conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.

1. ...The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) "generally" provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
2. Member Burford put it in Rehman as follows:
   1. It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government's view deeming the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold the visa.

Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or "deemed" in the Direction, they weigh against revocation with respect to "serious crimes". 2. However, it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision. This will depend on the Tribunal's assessment of the totality of the relevant considerations including the primary and other considerations. 3. The Applicant contends that the Applicant's situation is complex and that although it is conceded that the deemed expectation would be that the Applicant ought not hold a visa, the Tribunal must carefully consider the entirety of the Applicant's circumstances and adopt a flexible, fair, open-minded approach in reaching its decision. 4. The Tribunal does not disagree with the Applicant's contention. The Tribunal has considered the entirety of the Applicant's circumstances and finds that the Applicant has committed serious, violent crimes, including violent crimes against women, and that the Australian community would expect that the Applicant should not hold a visa, that is, that the cancellation of his visa should not be revoked. The antecedents of the Applicant, his background and the issues that he has faced, including his mental health issues, would not, in the Tribunal's assessment, displace that expectation. This weighs against the revocation of the cancellation of the Applicant's visa. Given the number of the Applicant's offences and the seriousness and nature of the offences, the Tribunal finds that this consideration should be given significant weight.

(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

International non-refoulement obligations (14(1)(a))

1. The Applicant is a citizen of New Zealand. There are no non-refoulement obligations owed by Australia to the Applicant. This is not a relevant consideration in this matter.

Strength, nature and duration of ties (14(1)(b))

(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

1. 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

(ii) More weight should be given to time the non-citizen has spent contributing positively to the Australian community.

1. 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, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

1. The Applicant arrived in Australia in January 1997 as a 14 year old. While 14 might not be considered to be a "young child", the Applicant did arrive as a child and the Tribunal gives weight to that fact and to the fact that the Applicant has lived in Australia for 23 of his nearly 37 years (14.2(1)(a)).
2. The Applicant has a good record of employment. The employment history that the Applicant listed in the Personal Circumstances Form[56] is that he worked in the mining industry for BHP from May 2009 to February 2014, for Rio Tinto from March 2014 to January 2015 and for Fortescue Metals Group from January 2015 to July 2017. The Applicant said in his statutory declaration dated 28 May 2019 that immediately before working for BHP he worked for HWE Mining and, at the hearing, his evidence was that he started work with HWE Mining as a trades assistant and that when he worked for BHP he started an apprenticeship as a boilermaker, although he did not complete it.[57] There is also reference in the Whitehaven Clinic report of 20 February 2019[58] to the Applicant having accepted a full-time job "with an electrical plant" when he was 14 and that he was "soon promoted to head plater".[59]
3. The Tribunal accepts that the Applicant has contributed positively to the Australian community through his employment.
4. The Tribunal also accepts that the Applicant's family and social links are in Australia.

The whole of his immediate family, his mother, father, sister and brother are resident in Australia.[60] It is also clear from the many statutory declarations, statements and letters filed in support of the Applicant (see [16] above), that the Applicant has many social and work-related relationships. It is clear that he is well-liked and that his being forced to leave Australia would have an emotional impact on his family and friends. 5. One of the people most likely to be affected by the Applicant not being able to stay in Australia is his partner Ms Hollow. In her statutory declaration dated 27 May 2019,[61]

Ms Hollow said that the Applicant being deported would be "heartbreaking and devastating not only to us, but for his family as well". It appears that Ms Hollow has significant drug issues of her own. As she advised in her second statutory declaration dated 22 July 2020, she was only released from Wandoo Rehabilitation Prison on 17 July this year. As noted above, the Tribunal does not accept that Ms Hollow is likely to be the type of support that the Applicant needs to overcome his drug issues. Right up to the time that he was arrested in September 2017, the Applicant and Ms Hollow were still smoking methamphetamine (see [74] above) and since that time she has clearly taken drugs again. For the same reason that the Tribunal finds that Ms Hollow is unlikely to be a positive influence in the Applicant's battle with drug abuse, the Tribunal considers that the Applicant is unlikely to be a positive influence on Ms Hollow in her battle with drugs. 6. There is little or no evidence that anyone is dependent on the Applicant for financial support. While the Applicant makes the claim in paragraph 51 of his statutory declaration dated

28 May 20019 that he "has always supported [his] parents and [his] family financially",

no detail of that financial support is provided. Further, since September 2017 the Applicant has been in prison or immigration detention so, presumably, could not have provided financial support since then. There is nothing to suggest that the impact on any of those who have provided statements would be anything other than an emotional impact.

The Applicant's life from the age of 14 has been in Australia and his family and social connections are in Australia. The Tribunal accepts that the removal of the Applicant from Australia would have considerable emotional impact on the Applicant, his family and his friends. 7. The Tribunal finds that this consideration weighs in favour of revocation of the cancellation of the Applicant's visa.

Impact on Australian business interests (14(1)(c))

1. Neither party made any submissions on this consideration and the Tribunal finds that this consideration has no application in the present matter.

(1) Impact of a decision not to revoke the cancellation on members of the community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.

1. This Tribunal has previously commented on the apparent error in the drafting of paragraph 14.4 of Direction 79 (see Sach and Minister of Home Affairs[62] at [159]; Palmer and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[63] at [146] and Berryman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[64] at [174]-[175]).
2. The Tribunal adopts the course taken in those matters and, as the considerations in paragraph 14 of Direction 79 are not expressed to be exhaustive, the Tribunal will consider the impact of revoking the cancellation, that is the Applicant staying in Australia, rather than not revoking the cancellation as paragraph 14.4 directs.
3. There is a lifelong Family Violence restraining order (VRO) prohibiting the Applicant from communicating with, attempting to communicate with or approaching the victim of the assaults in 2013 which resulted in the Applicant's convictions in March 2019.[65]

The Applicant's evidence at the hearing was that it was he who sought that the duration of the VRO be extended to be a lifetime order.[66] 4. It must be remembered, and the Respondent raises the issue in his SFIC (paragraph 28), that the Applicant has in the past breached a VRO which resulted in his conviction in November 2015. The Tribunal accepts, however, that the circumstances surrounding that breach were somewhat confused in that the Applicant may have been under the mistaken belief that the order had been lifted. That was not the case and the Applicant did attend at the victim's house in breach of the order and was duly convicted. There is no suggestion that the Applicant behaved violently towards the victim in the incident which gave rise to the breach. 5. The Applicant's relationship with that victim ended nearly five years ago. The Tribunal believes that the Applicant has no reason to, or interest in, approaching or contacting that victim and therefore finds that there would be no impact on that victim if the Applicant were permitted to remain in Australia. 6. Other than the fact of there being the above lifelong VRO restraining order in place, there is nothing before the Tribunal which would allow any assessment to be made of the impact of revocation of the cancellation of the Applicant's visa on any victim or on the community which has not already been covered in the other considerations under Direction 79 dealt with above. 7. Accordingly, this consideration weighs neither in favour of nor against the exercise of the discretion to revoke the cancellation of the Applicant's visa.

(1) 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:

1. The non-citizen's age and health;
2. Whether there are substantial language or cultural barriers; and
   1. Any social, medical and/or economic support available to them in that country.

1. In the Return to Country of Citizenship section of his Personal Circumstances Form[67] the Applicant refers to his statutory declaration dated 28 May 2019 and says:

I believe that I have post-traumatic stress as a result of my experience in NZ as an adolescent. I believe my mental health will seriously deteriorate; I will feel isolated, lonely and depressed. I will have no support network of any kind.

1. In his statutory declaration dated 28 May 2019[68] the Applicant says, relevant to this consideration:
   • that he only spent three years in New Zealand from age 11 to 14;
   • during that time he was "bullied, beaten, harassed and tortured on a daily basis" by gangs;
   • this resulted in mental health issues;
   • he still suffers flash backs from the trauma;
   • if he were to be returned to New Zealand his "mental health and emotional wellbeing would suffer dramatically";
   • he has no positive memories of New Zealand;
   • return to New Zealand would have an adverse effect on his parents' mental health;
   • he has financially supported his parents and family;
   • he is not sure how he would survive in New Zealand;
   • he does not know anyone in New Zealand and has no employment record in

New Zealand; * he does not know the areas, public transport and does not have the financial resources to set himself up; and * he has no family support in New Zealand. 2. In cross-examination the Applicant said that if he were deported to New Zealand he would continue with his drug rehabilitation treatment.[69] 3. The reports from Whitehaven Clinic and the report by Dr Watts refer to the Applicant advising that he was bullied in New Zealand. Dr Watts says that the Applicant's "presentation was of Post-Traumatic Stress Disorder (PTSD)"[70] and that "going back to a place where there are significant traumatic memories and no family support, is particularly disturbing to him and likely to be psychologically harmful to him".[71] 4. The ASFIC (paragraph 77) summarises the Applicant's case on this consideration as:

It must be said, therefore, that the extent of the impediments that the Applicant faces if he is deported to New Zealand are not insubstantial. Not only would he have to start over, alone, with no family, friends or acquaintances and no network of any kind but there is also a genuine risk to his mental state and wellbeing. It is submitted that these matters must be given some weight in favour of revocation.

1. The Tribunal does not disagree with that assessment.
2. The Respondent submits that:[72]

(a) the applicant is a young person of working age, and is reported to be a very hard worker who has held employment across a number of areas, and has worked up to and including the level of being a supervisor, and has demonstrated an ability to work in several areas including mining, industrial plating, and the fitness industry. These matters indicate that the applicant will not be impeded from establishing himself and maintaining living standards in the context of what is generally available to other citizens of New Zealand: paragraph 14.5(1)(a), (c) of the Direction; G70/253, [30], [36];

(b) there is no evidence to support a finding that the applicant suffers from poor physical health however the applicant has symptoms of post-traumatic stress disorder predominantly associated with a period of bullying while living in New Zealand as a school-aged boy: G17/108; G77/250 at [9]. A psychologist report notes that 'going back to place where there are significant traumatic memories and no family support is particularly disturbing to him and likely to be psychologically harmful to him': G77/251 at [18]. It is accepted that a decision that is likely to result in a subsequent decision to return the applicant to New Zealand will carry an emotional impact upon the applicant however there is no evidence to support a finding that the applicant would not be entitled to the same social and medical services available to other citizens of New Zealand: paragraph 14.5(1)(a) of the Direction; and

(c) there is no evidence before the Tribunal to support a finding that the applicant would face any cultural or linguistic barriers in New Zealand: paragraph 14.5(1)(b) of the Direction.

(Footnote omitted.)

1. The Applicant did not identify in the Personal Circumstances Form[73] that he was on any medication. The medical condition that emerges from Dr Watts' report and the other evidence is the possibility that the Applicant is suffering from PTSD. In that regard, while the Tribunal notes the reference to that condition in Dr Watts' report, his description was of the Applicant having the "presentation of [PTSD]". While it is not clear, Dr Watts does not appear to be making a formal diagnosis of PTSD and his report does not indicate that a formal diagnosis of PTSD, applying relevant criteria and tests in DSM5 or any other identified diagnostic process, has been made. That is not to say, however, that the Applicant will not suffer trauma because of his previous experience in New Zealand if he were to be returned to New Zealand. The Tribunal accepts that that will be the case.
2. There was no suggestion, and there was no medical evidence establishing that anxiety and trauma if he were to be returned to New Zealand would be an impediment to the Applicant either establishing himself or obtaining employment in New Zealand. The Applicant is still a relatively young man with a reasonable work history and a number of qualifications and skills.
3. Direction 79 requires the Tribunal to consider impediments in the Applicant establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of New Zealand. This is to be assessed taking into account the Applicant's age, health, language or cultural barriers and any social, medical and economic support that would be available to him.
4. The Tribunal accepts that his removal from Australia would have an impact on the emotional state of the Applicant. While the Tribunal accepts that there may be some impediments to the Applicant establishing himself, there is no evidence that he would not be entitled to the same social and medical services available to other citizens of New Zealand. As noted above, the Applicant is not an old man and was working up to the time shortly before his imprisonment. There are obviously no language barriers and there are unlikely to be, and the Applicant has not argued that there would be, cultural barriers in the Applicant establishing a basic standard of living.
5. The Tribunal finds that this consideration does not weigh in favour of the revocation of the cancellation of the Applicant's visa.

1. Guidance is given by Direction 79 as to how the decision-maker should apply the primary and other considerations. Paragraphs 8(3), (4) and (5) of Direction 79 are relevant. They provide:

(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

(4) Primary considerations should generally be given greater weight than the other considerations.

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

1. A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While these cases were generally looking at that exercise under Direction 65, the same considerations apply to the exercise required by Direction 79 which is materially in the same terms. The leading case in this regard is Suleiman v Minister for Immigration and Border Protection[74] (See also the Full Court of the Federal Court decision in Minister for Home Affairs v HSKJ[75]).
2. The Tribunal in CZCV at [164] summarised the legal position following the various cases referred to above as follows:

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

1. This Tribunal agrees with the above approach.
2. Looking at the first primary consideration, the protection of the Australian community,

the relevant consideration is whether the risk is an unacceptable one taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the behaviour and the likelihood of that occurring. For the reasons set out above, the Tribunal assesses the likelihood of the Applicant offending, particularly committing violent offences and/or offences involving drugs, as medium. The harm that would be caused if the Applicant were to repeat the offending that he has engaged in in the past is serious. The Tribunal finds that the first primary consideration weighs heavily against revocation of the cancellation of the Applicant's visa. 3. The Tribunal finds that the second primary consideration, the best interests of minor children, in this case the Applicant's nephew, would be served by revocation of the cancellation of the Applicant's visa. Only minimal weight should be given to this consideration. 4. The third primary consideration, the expectations of the Australian community, weighs against the revocation of the cancellation of the Applicant's visa. 5. In relation to the "other considerations" identified in Direction 79, the consideration of strength, nature and duration of the ties that the Applicant has to Australia (paragraph 14(1)(b)), weighs in favour of the revocation of the cancellation of the visa.

The consideration of the impediments that the Applicant would face if he is returned to

New Zealand (14(1)(e)) does not weigh in favour of revocation and is, at best for the Applicant, neutral. 6. The Applicant's counsel in closing commented that:

It's fair to say that he [the Applicant] knows that this is a finely balanced case and that you are going to have to think long and hard about what to do with him...

...

We say that ultimately this balancing exercise fine as it is nudges over in his favour because of all the work that he's done and I suppose in essence because of how long ago this offending - that the most serious offending took place.

(Transcript at 90)

1. The Tribunal agrees with the Applicant's counsel's observations that this is a finely balanced case. Unfortunately, for the Applicant, the Tribunal does not agree that the balancing exercise "nudges over in his favour". Having undertaken the weighing of the consideration for and against the revocation of the cancelation of the Applicant's visa, the Tribunal finds that the considerations which weigh against the revocation of the cancellation of the visa in particular the first primary consideration, the protection of the Australian community, outweigh the considerations which weigh in favour of the revocation of the cancellation of the Applicant's visa. Accordingly, the Tribunal finds that there is not another reason why the original decision should be revoked.

1. The decision of a delegate of the Respondent, dated 20 May 2020, not to revoke the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category (temporary) visa under s 501CA(4) of the Act is affirmed.

I certify that the preceding 150 (one hundred and fifty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...................................[SGD]..................................

[13] [2009] AATA 47; (2009) 106 ALD 666.

[23] [2019] AATA 91.

[24] [2016] FCA 1181.

[25] [2020] AATA 1524.

[40] [2020] AATA 1256.

[49] [2017] FCA 1466.

[50] [2019] FCA 495.

[51] [2019] FCA 500.

[52] [2019] AATA 1398.

[53] [2019] FCAFC 185.

[54] [2019] AATA 4424.

[55] [2020] HCATrans 56.

[62] [2019] AATA 5173.

[63] [2020] AATA 88.

[64] [2020] AATA 421.

[65] R3, S1/47.

[68] A1, Attachment 2, paragraphs 46-59.

[74] [2018] FCA 594.

[75] [2018] FCAFC 217; (2018) 363 ALR 325.