SLNY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 344 (27 February 2020)

7 August 2019, and invited the Applicant to comment on this information (G6, page 27). Again the Applicant made representations. 7. After considering these representations, on 28 November 2019 a delegate of the Minister decided, under s 501CA(4) of the Migration Act, not to revoke the Cancellation Decision (G12, page 39). This is the Reviewable Decision currently before the Tribunal. 8. The Applicant was notified of the Reviewable Decision in a hand delivered letter dated

4 December 2019 (G12, pages 35-36). The Applicant signed to acknowledge receipt of the Reviewable Decision on 5 December 2019 (G27, page 182). 9. On 10 December 2019, the Applicant lodged an application in the General Division of the Administrative Appeals Tribunal (the Tribunal) seeking a review of the Reviewable Decision (G2, pages 3-7). Therefore, the Applicant filed his application for review within the 9 day period prescribed by s 500(6B) of the Migration Act. 10. Subsection 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the Applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the 84 day period started running on 5 December 2019, meaning that the Tribunal must hand down a decision with respect to this application by no later than 27 February 2020.

1. The issues for determination by this Tribunal are:
   • (a) whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
   • (b) if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the mandatory cancellation decision (that is, the Reviewable Decision) should be revoked (see s 501CA(4) of the Migration Act), having regard to the primary and other considerations in Direction No 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (Direction No 79).

1. The hearing took place on 17 February 2019.
2. The Applicant appeared in person and was represented by Mr Yogendran.

The Respondent was represented by Mr Kyranis. 3. The Applicant gave oral evidence and was cross-examined. The Applicant called his mother and sister as witnesses. 4. The Tribunal admitted the following documents into evidence at the hearing: * (a) Applicant's Statement of Facts Issues and Contentions (SFIC) dated

10 February 2020 (Exhibit A1); * (b) statement of the Applicant dated 6 February 2020 (Exhibit A2); * (c) statement of the Applicant's mother dated 8 February 2020 (Exhibit A3); * (d) statement of the Applicant's sister dated 10 February 2020 (Exhibit A4); * (e) statement of the Applicant's father, undated but filed in the Tribunal on

11 February 2020 (Exhibit A5); * (f) statement of the Applicant's 14 year old daughter dated 8 February 2020 (Exhibit A6); * (g) section 501 documents (G documents) numbered G1 to G27, comprising 182 pages (Exhibit R1); * (h) Tender bundle comprising 166 pages (Exhibit R2); and * (i) Respondent's SFIC dated 17 January 2020 which also includes a Chronology of the Applicant's Criminal Offending (Exhibit R3).

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

(3A) The Minister must cancel a visa that has been granted to a person if:

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

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

(ii) paragraph (6)(e) (sexually based offences involving a child); and

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

1. Section 501(6) of the Migration Act provides that:
   • (6) For the purposes of this section, a person does not pass the character test if:
     • (a) the person has a substantial criminal record (as defined by

1. A "substantial criminal record" is defined by s 501(7) of the Migration Act as follows:
   • (7) 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; or

(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more...

1. Section 501CA of the Migration Act further 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.
   • (2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
     • (a) would be the reason, or a part of the reason, for making the original decision; and
     • (b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
   • (3) As soon as practicable after making the original decision, the Minister must:
     • (a) give the person, in the way that the Minister considers appropriate in the circumstances:

(i) a written notice that sets out the original decision; and

(ii) particulars of the relevant information; and

(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

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

• (a) the person makes representations in accordance with the invitation; and
• (b) the Minister is satisfied:
  • (a) that the person passes the character test (as defined by section 501); or
  • (b) that there is another reason why the original decision should be revoked.

1. Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
   • (1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
     • (a) the performance of those functions; or
     • (b) the exercise of those powers.
2. Further, s 499(2A) of the Migration Act states that "A person or body must comply with a direction under subsection (1)".
3. On 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 79 under s 499 of the Migration Act, which commenced operation on 28 February 2019. This Direction replaced the previous Direction No 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under

s 501CA (22 December 2014). 4. Paragraph 6.1 of Direction No 79 sets out the "Objectives" of the Migration Act, with paragraph 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal: * (3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had 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. 5. Paragraph 6.2 of Direction No 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. 6. Paragraph 6.3 of Direction No 79 sets out "Principles" which must be taken into account by persons making decisions under s 501CA(4) of the Migration Act, including the Tribunal: * (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. 7. Informed by the principles set out in paragraph 6.3 of Direction No 79, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction No 79, with regard to the specific circumstances of the case (paragraph 13(1) of Direction No 79). Specifically, paragraph 13(2) of Direction No 79 provides: * (2) In deciding whether to revoke the mandatory cancellation of a non-citizen's visa, the following are primary considerations: * (a) Protection of the Australian community from criminal or other serious conduct; * (b) The best interests of minor children in Australia; * (c) Expectations of the Australian community. 8. Paragraph 14(1) of Part C of Direction No 79 lists other considerations as follows: * (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): * (a) International non-refoulement obligations; * (b) Strength, nature and duration of ties; * (c) Impact on Australian business interests; * (d) Impact on victims; * (e) Extent of impediments if removed. 9. Paragraph 7(1)(b) of Direction No 79 outlines how a decision-maker is to exercise discretion: * (1) Informed by the principles in paragraph 6.3 above, a decision-maker: * (a) ... * (b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen's visa will be revoked. 10. Further guidance as to how a decision-maker is to apply the considerations in

Direction No 79 can be found in paragraph 8 of Direction No 79, "Taking the relevant considerations into account", 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 non­citizens 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. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a "substantial criminal record" as defined by s 501(7) of the Migration Act.
2. A person has a substantial criminal record if they have been "sentenced to a term of imprisonment of 12 months or more" (s 501(7)(c) of the Migration Act).
3. As noted above, on 9 August 2017 the Applicant was sentenced in the District Court of Western Australia (Albany) to a total term of three years and six months imprisonment for the Intent to Harm offence. Consequently, the Applicant does not pass the character test under s 501(6)(a) and s 501(7)(c) of the Migration Act.
4. The Applicant accepts that he does not pass the character test (Exhibit A1, paragraph [4]).
5. The Tribunal must therefore consider whether there was "another reason" why the Reviewable Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).

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

First primary consideration: Protection of the Australian community (paragraph 13.1 of Direction No 79)

1. Paragraph 13.1(1) of Direction No 79 provides that:

When considering protection of the Australian community, decision-makers 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...

1. Paragraph 13.1(2) of Direction No 79 then provides:

Decision-makers should also give consideration to:

(a) The nature and seriousness of the non-citizen's conduct to date; and

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

Nature and seriousness of the conduct (paragraph 13.1.1(1) of Direction No 79)

1. Paragraph 13.1.1(1) of Direction No 79 further 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:
     • (a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
     • (b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
     • (c) 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;
     • (d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
     • (e) The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
     • (f) The cumulative effect of repeated offending;
     • (g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
     • (h) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);
     • (i) Where the 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. A summary of the Applicant's criminal, and also driving and traffic history is as follows (see Chronology of Applicant's Criminal Offending in Exhibit R3; G13, pages 52-54; Exhibit R2, pages 99-105; Exhibit R3, paragraph [6]):
   • (a) the conviction in 2017 for the Intent to Harm offence, referred to above. The date of the offence was 29 March 2016;
   • (b) two weapons related convictions for carrying an article (knife) with intent to cause fear in 2007 and 2010;
   • (c) breach of a bail undertaking (2009), breaches of community based orders (four counts in 2008 and one count in 2009), breach of protective bail conditions (2016);
   • (d) 24 drug convictions. Eleven of these were for cannabis possession. Eleven were for possessing drug paraphernalia in or on which there was a prohibited drug or plant. One was for possessing a smoking utensil (2006). The remaining conviction was for cultivating a prohibited plant (2006);
   • (e) receiving (2008) and damaging property (2010);
   • (f) obstructing public officers (2007), disorderly behaviour in a public place (2007) and (2010), street drinking (2009); and
   • (g) traffic and driving offences comprising failing to stop after accident (2004), driving contrary to a learner's permit (2004), no motor drivers licence - under fines suspension (2006), exceed 0.08g alcohol (2008), no authority to drive (fines suspended (2008), no authority to drive - re-obtain after cancellation (2009).
3. It was the Applicant's conviction of 9 August 2017 for the Intent to Harm offence that resulted in the Cancellation Decision. The facts on which the Applicant was sentenced were set out by the sentencing judge, Wager DCJ in Her Honour's sentencing remarks (G14). In summary, the Applicant was living with a friend (Mr T) who suffered from cystic fibrosis. The Applicant felt protective towards Mr T due to his illness. Mr T telephoned the Applicant from a shop because another man (the victim) who had previously accused

Mr T of almost running over his daughter was there. The Applicant had been told that the victim had subsequently been threatening and abusive towards Mr T on a number of occasions. The victim was in the company of two other persons. The Applicant rode his bicycle to the shop. The Applicant told his friend to go to his car (a ute) and leave, and to run over the victim if he had to. Mr T went to the ute, started to drive, but drove toward, and in close proximity, to the victim. The victim put his hand on the bar at the front of

Mr T's ute and moved to the side of the vehicle to be level with the passenger window. Her Honour continued on to outline the following facts with reference to CCTV footage (G14, page 60):

His [the victim's] intention is fully on the ute and on Mr T... because the vehicle is so close to him and because of the actions of Mr T... driving at him.

It's at this point that you run up to [the victim] from behind. You leap up, put your arms around him and he loses balance, or you pull him to the ground. You stab him and cause serious injuries. The knife can be seen in your hand immediately prior to this. You are holding it in a fist...

1. Her Honour rejected the Applicant's claim that he had picked up the knife (a Stanley knife) in the store, finding that he had brought it with him from home (G14, pages 60-62).
2. Her Honour continued on to describe how the victim was stabbed by the Applicant with the knife (G14, pages 63-64):

I accept fully your version, that he was stabbed when he was on top of you on the ground - on the ground after you had jumped on to him.

I accept from the [CCTV] footage that you didn't deliberately stab him at the start of the confrontation, even though you had the knife. Of course, initially, you are manhandling him with your arms. And it's only when he, a bigger man than you, ends up on top of you that you stab him. And I accept that this is consistent with what you've said in your video record of interviews, that you stabbed with an upward motion in order to move him. But the fact remains that you introduced a knife into this equation and you jumped on him. There was no need for this to happen. [The victim] was not a threat to you. At the time when Mr T... got in the car, there was no reason why you too couldn't have got in the car and simply left the scene.

1. Paragraph 13.1.1(1)(a) of Direction No 79 provides that violent crimes are viewed very seriously. The very serious nature of the Intent to Harm offence is also evidenced in the serious injuries suffered by the victim. These included a 15 cm long wound to the victim's left arm with the main artery to the arm being completely cut, and a stab wound to the victim's left chest wall which was approximately 3 cm long and 2 cm deep. Her Honour commented that had the victim not received medical treatment he could have died, and if he had not received surgery he could have lost the ability to use his arm (G14, pages 65-66).
2. The Applicant's drug, property, and other general offences are of a less serious nature than violent offences. As noted above, the Applicant has several driving and traffic convictions. The Tribunal regards offences such as drink driving and unlicensed driving as being serious because the unlicensed and/or irresponsible use of a motor vehicle can endanger innocent road users (see for example, Member Webb, in Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [16] and Senior Member Tavoularis in Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 at [43]- [45]). Although traffic and driving offences should not be trivialised, in mitigation, the last of the Applicant's traffic offending was committed approximately

10 years ago in 2009. 3. Paragraph 13.1.1(1)(b) of Direction No 79 is not applicable because the Applicant has not committed any crimes of a violent nature against women or children. 4. Paragraph 13.1.1(1)(c) of Direction No 79 provides that "crimes committed against vulnerable members of the community (such as the elderly and the disabled), or against government representatives or officials due to the positions they hold, or in the performance of their duties are serious". This paragraph is not applicable to the Intent to Harm offence which was the basis for the Cancellation Decision, however the Tribunal notes that the Applicant has two convictions for obstructing public officers in 2007. These were at the lower end of the scale of such offences (in that that they can be distinguished from more serious offences such as assaulting a public officer), and were committed approximately 13 years ago. 5. On 9 August 2017, the Applicant was sentenced to a custodial term of imprisonment for the Intent to Harm offence of three years and six months, with eligibility for parole (G14, page 71). This was the Applicant's first term of imprisonment, with his previous convictions resulting in fines and community based orders. In sentencing the Applicant, Wager DCJ stated that, "this is a very serious matter and a significant term of imprisonment must result" (G14, page 67). A term of imprisonment is generally imposed as a last resort and is a further reflection of the serious nature of the Applicant's Intent to Harm offence (paragraph 13.1.1(1)(d) of Direction No 79). His other offences included property offences, drug possession offences and breaches of court orders. He incurred fines and community based orders for these offences, which is a reflection that the courts regarded these offences as being of a less serious nature. 6. With respect to the frequency of the Applicant's offending and whether there is any trend of increasing seriousness (paragraph 13.1.1(1)(e) of Direction No 79), the Applicant has a lengthy criminal history which includes multiple drug convictions. His first traffic offences were in 2003, and his criminal and traffic history shows that he did not commit any offences in 2004 and 2005. He then offended fairly consistently from 2006 until October 2010 when there was a break in his offending until July 2015. His Intent to Harm offence is his most serious offence to date, although overall, there is no consistent trend of increasing seriousness over the years. 7. With respect to the cumulative effect of repeated offending (paragraph 13.1.1(1)(f) of Direction No 79), the Applicant has a lengthy criminal history, although he did not receive a sentence of imprisonment until the Intent to Harm offence. He has appeared in court on multiple occasions, and as described above, has incurred convictions for seven counts of breaches of court and community based orders. This repeat offending would have had a cumulative effect of placing a burden on the resources of police and the court system. 8. The Applicant has not provided false or misleading information to the Department by not disclosing prior criminal offending on any incoming passenger cards and so paragraph 13.1.1(1)(g) of Direction No 79 is not applicable. 9. The Applicant has not previously received any warning that further offending may affect his migration status, and so paragraph 13.1.1(1)(h) of Direction No 79 is not applicable. 10. Paragraph 13.1.1(1)(i) of Direction No 79 requires the Tribunal to consider whether the Applicant has committed any crime while in prison or immigration detention. This is not applicable to the Applicant. 11. The Tribunal finds that the Applicant's Intent to Harm offence, being a violent offence involving a weapon is very serious. His remaining offences for drugs, property offences and traffic convictions, are far less serious, but as a whole are numerous and occurred over a number of years. Overall, the Tribunal finds that the Applicant's offending is serious, and consequently paragraph 13.1.1 of Direction No 79 weighs strongly against the revocation of the Cancellation Decision.

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2 of Direction No 79)

1. A decision-maker should also have regard to the following principle, described in paragraph 13.1.2(1) of Direction No 79 as follows:
   • (1) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
     • (a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
     • (b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account 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).
2. 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 at [111] from Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [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 Applicant 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.

(Footnotes omitted.)

In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated at [68] that: "...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." Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of re-offending as requiring a "rational and probative basis".

1. The harm that could result to victims if the Applicant is to re-offend in a violent manner (paragraph 13.1.2(1)(a) of Direction No 79) could include serious physical injury, impairment or even loss of life. Violent offending may also result in psychological harm to victims. Should the Applicant commit further traffic offences, members of the public (including innocent road users and pedestrians) could also suffer physical injuries or loss of life, as well as psychological harm. The nature of harm if the Applicant were to commit further general offences (for example drug possession for personal use, disorderly behaviour, carrying weapons or property offences) is varied, but on the whole, less serious than violent offences. Purchasing and possessing drugs supports the illicit drug trade in the Australian community. The prevalence of drugs in the community causes harm to the community on many levels, including drug related crimes such as violence and theft, increases in property and health insurance premiums, as well as mental and other health issues for drug users, and the negative impact that this can have on their families.
2. The Tribunal will now consider the likelihood of the Applicant re-offending if he were permitted to remain in the Australian community (paragraph 13.1.2(1)(b) of Direction

No 79). 3. The Respondent contends that there is a high risk of the Applicant re-offending (Exhibit R3, paragraph [29]). However, the Tribunal does not have any formal assessment of the Applicant's likelihood of re-offending before it, such as a psychological report or a prison treatment assessment. That is, there is no reference in any of the material before the Tribunal to the Applicant having been formally assessed as a minimal, low, moderate, high or very high risk of re-offending in a violent or general manner. Thus the Tribunal must make its own assessment based on the material before it. 4. The Respondent contends that whilst the Applicant did attend some courses in prison, he did not commence them until after he was notified that his Visa was cancelled (Exhibit R3, paragraph [30]). Looking at the timing of his Visa cancellation, the Applicant was sentenced for the Intent to Harm offence on 9 August 2017, and his Visa was cancelled on 6 September 2017. This timing indicates that there would not have been enough time for the completion of any prison programs prior to his Visa cancellation. Additionally, prisoners must first be assessed for treatment programs before being recommended for them by the prison treatment assessors. After commencing his prison term the Applicant was assessed in prison as requiring treatment programs. This is evident from his completion of two compulsory programs, the Think First Program (G19, page 107) and the Medium Intensity Program (MIP) (G19, page 106) which are only available after a treatment assessment. It is virtually impossible that the Applicant could have been assessed, and could have commenced these programs prior to the cancellation of his Visa. 5. The Applicant completed the Think First Program, a program which focusses on consequential thinking, at Acacia Prison on 11 July 2018 (G19, page 107). The Tribunal only had a completion certificate before it, and not the completion report. In his evidence at the Tribunal hearing the Applicant explained that this course was about consequential thinking and problem solving. The Applicant stated that the course had been "cut down" by approximately four weeks because the number of participants in the program decreased from 22 to approximately three participants. Consequently, the remaining three participants were able to complete the program in a shorter period of time. The Applicant was able to articulate the treatment gains he made as a result of completing the program (transcript, page 18):

I learnt a lot on how to apply a lot of coping skills and second thoughts. I'm just trying to find the words to explain it... Pretty much it's not always as bad as what it seems, so a lot of people - a lot of the time when violence is ever involved or anything it's because people aren't thinking about the situation properly or thinking about it from the other person's perspective. And that's what that course teaches you a lot of is try to think in the other people's shoes. They may not necessarily be the one creating the problem, it could be you, yes.

1. The Applicant completed the MIP on 12 April 2019 after completing 52 out of 53 sessions of the program. This program focusses on general offending, and also covers violence, consequential thinking, and emotional regulation. The completion report stated that the Applicant was, "required to engage in the program to address treatment needs including lifestyle balance, relationship skills, antisocial peers, substance use, procriminal attitudes, impulsivity, violent lifestyle and emotion management" (G18, page 93). It described the Applicant as a "motivated participant" and reported that he developed a "realistic" management plan which "was consistent with the skills and strategies reported and which were demonstrated throughout the program" (G18, pages 96-97). Further details about the Applicant's risk management plan were identified in the summary and recommendations section of the MIP completion report follows:

[The Applicant] developed a risk management plan identifying high risk feelings, beliefs and situations including unemployment, antisocial peers, relationship breakdown and being offered drugs, anger, and anxiety. He also identified problem thinking including to catastrophising, blaming and procriminal thinking. He further noted skills that would assist him to manage this including assertive communication thought challenge and replacement skills, problem solving, consequential thinking and relaxation skills.

1. The MIP completion report identified the following gains made by the Applicant during the program (G18, page 97):

[The Applicant] demonstrated an awareness and understanding of factors precipitating his offending including a lack of lifestyle balance, increasing substance use, association with antisocial peers, procriminal beliefs and attitudes and ineffective problem solving. Throughout the program he contributed to written work, group discussions and skills practice demonstrating use of programmatic skills to reduce his risk of reoffending. He stated that he has ongoing support with his older sister and father and reported an increase in assertive communication skills and assertive refusals. [The Applicant] reported developing new belief that substance use with antisocial and did not assist him to achieving his goals. He advised of a substance use goal to be abstinent from all illicit drugs and drink alcohol minimally and only in a prosocial environment.

1. The Tribunal notes that this summary in the MIP completion report shows a shift in the Applicant's attitude toward drug use since the preparation of a pre-sentence report dated 27 September 2016 (Exhibit R2, page 18). The pre-sentence report recorded that the Applicant was a long-standing cannabis user, that he believed he did not have a drug problem, and that he had antisocial views regarding cannabis use (Exhibit R2, page 23). The change in attitude toward drug use reported in the MIP completion report is consistent with his evidence at the hearing that (transcript, page 28):

...I don't want to do drugs anymore... I am absolutely sick and tired of it. I'm sick and tired of the people involved with it. I'm sick and tired of being brought down, and my kids don't want me to do it.

1. The MIP completion report did, however (at G18, page 97) note some concerns regarding the Applicant's:

...status of immigration and his reported minimal support available in England. Further he did not discuss his relationship with family and facilitators noted ongoing use of passive-aggressive communication and therefore outstanding concerns remain in his relationships and communication skills.

1. When asked about these concerns at the hearing by the Tribunal, the Applicant explained that he had problems with his parents in the past due to his parents' divorce and having had a falling out with his father in approximately 2016 or 2017 because his father would not post his surety. However, it appears to the Tribunal that any family tensions have now been resolved. In his evidence at the hearing, the Applicant explained that he spoke to his father once a week, spoke to his mother every couple of days, and spoke to his sister occasionally and when he did it was for a long time (transcript, pages 20-21).
2. The frequent communication between the Applicant and his mother and sister in particular was also confirmed in their evidence at the hearing. The Applicant's mother stated he had her "utmost support" and that she could give him emotional support, advice, accommodation and financial support. She also stated that the Applicant had a very good relationship with her husband (the Applicant's step-father) (transcript, page 60).
3. The Applicant's sister evidently maintains a close relationship with the Applicant, who lived with her for a period of several years in approximately 2011 (transcript, page 67) and was drug free for approximately five years around that time. Her evidence indicated that she lived harmoniously with the Applicant and without any conflict. The Applicant's sister also indicated that she could provide the Applicant with support "in any capacity that he needs me" including accommodation if he needed it, and assistance driving him (transcript, page 69). The Tribunal finds that the Applicant's mother and sister are prosocial persons. Their support will assist the Applicant to reintegrate into the Australian community and to continue with his rehabilitation.
4. The Applicant's father also submitted a character reference to the Tribunal in support of the Applicant (Exhibit A5), but did not state how he could support the Applicant if he were to remain in the Australian community. Additionally, there was some evidence that the Applicant's father had a negative influence on him in his teenage years by allowing him to drink alcohol, use drugs and exposing him to negative peers (Exhibit A3). The Applicant's evidence at the hearing was that his support people in the community were his mother, sister, stepfather, children, two half-sisters, his father and his best friend, and so he has a broader support network than just his father.
5. The Tribunal is of the opinion that the Applicant's mother and sister are particularly strong support persons. The Tribunal also notes the Applicant's evidence that he was approved to live with his best friend by the Prisoners' Review Board (PRB). This best friend also gave a character reference dated 11 September 2019 for the Applicant's application for revocation where he stated his "wholehearted support" for the Applicant "in any capacity" (G21, page 113). In addition to his family support, the Applicant's support from his best friend may also assist his reintegration into the community.
6. To the Applicant's credit he also completed the following courses on a voluntary basis:
   • (a) Outcare Career Development Workshop on approximately 3 November 2017 (G19, page 104);
   • (b) One Star Food Safety and Hygiene Training on approximately 10 June 2018 (G19, page 105);
   • (c) Alternatives to Violence Project Basic Workshop on approximately 28 January 2019 (G19, page 103); and
   • (d) one session of Narcotics Anonymous in prison, however further sessions were cancelled (transcript, page 14).
7. The Applicant's evidence was that in immigration detention he had been undergoing fortnightly counselling sessions with Holyoake (transcript, page 27) in respect of substance use, and that he also received in respect of substance abuse counselling whilst undertaking the MIP (transcript, page 19).
8. The Applicant has also undertaken courses on parenting run by Dad's WA Ngala (G22, page 115-117 and 119) so that he could be "the best possible father for my children" (Exhibit A2, paragraph [41]). The Applicant also has concerns about the welfare of his two biological children who are in the care of their mother. The Applicant, his mother and sister have given evidence about their concerns about the children's living conditions. The Applicant and his mother have also given evidence that the Department of Child Protection (DCP) have started an investigation regarding the children's welfare after receiving a complaint from the children's school about them being malnourished (Exhibit A2, paragraph [46]). The Applicant's mother has also given evidence about the poor living conditions of the children, as has the Applicant's daughter. The Applicant appears to the Tribunal to have a sincere desire to be there for his children and to help improve their situation, and this is also likely to be a protective factor which will motivate him to continue his drug rehabilitation and not to offend in the future.
9. In immigration detention the Applicant participated in a weekly Men's Group between June and August 2019 (G22, page 118 and 120), which covered topics including anger management, coping with stress, mindfulness, family violence, mental illness, healthy relationships, positive parenting and peer support. He also undertook the "Lifeskills" course which ran weekly sessions between July and August 2019 (G22, pages 121-122). Topics included managing stress, substance use disorder, relationships, change, relapse prevention and letting go. These voluntary sessions are to the Applicant's credit and may further assist his rehabilitation and reintegration into the community.
10. The Applicant was granted release on parole from 1 July 2019 by the PRB at his first opportunity for parole following completion of the MIP. The PRB stated that the Applicant's "release would present an acceptable risk to the safety of the community" for the following reasons (G23, page 135):
    1. Your successful completion of the Thing First Program and Medium Intensity General Offending Program with reported gains.
    2. Your participation in voluntary programmes, which demonstrates a motivation and willingness to address your offending behaviour.
    3. You having made a commitment to address your offending behaviour.
    4. The salutary impact of your first term of imprisonment and your first opportunity for parole supervision.
    5. Your parole plan which includes confirmed suitable accommodation, an intention to find employment and support from prosocial peers and family.
    6. The fact the conditions of parole will further reduce the risk to the safety of the community.
    7. The Board notes that your visa to remain in Australia has been cancelled. Nevertheless, if you are subsequently successful in the revocation of your visa, the Board determines that your release in Western Australia does not pose an unacceptable risk to the safety of the community.
11. Thus, the PRB was evidently satisfied that with conditions and supervision, the Applicant's risk to the safety of the community would be reduced. Additionally, the Tribunal notes the seventh reason given by the PRB, whereby the PRB acknowledged that the Applicant's Visa had been cancelled but nevertheless determined that he could be released into the Western Australian community because he was not an unacceptable risk.
12. The PRB also imposed relatively few additional conditions on the Applicant, which is a further indication of their view that the Applicant posed an "acceptable" risk. These conditions were (G23, page 136):
    1. To have no direct or indirect contact with the victim.
    2. To attend for random urinalysis for all illicit substances as directed by the Community Corrections Officer and provide a valid sample.
    3. Not to consume alcohol.
    4. To submit to random breath testing as required by Police.
    5. To attend programs and counselling as directed.
    6. To comply with mental health treatment as directed by a medical practitioner.
    7. To engage in employment, training, or job seeking and remain engaged for the duration of parole.
    8. Not to change address without the prior approval of the Community Corrections Officer.
13. The Tribunal observes that if the Applicant is permitted to remain in the Australian community, he will be under parole supervision until the expiry of his sentence (which is also his parole expiry date) on 25 November 2020. During his period of parole supervision he is likely to be directed to attend further counselling and drug-related programs. He will also be subjected to regular drug and alcohol testing. This is likely to be an additional protective factor which will assist in the Applicant's rehabilitation and reintegration into the Australian community. The Applicant has also had a period of not using any drugs or alcohol in prison since he went into custody on 26 May 2017. This period of abstinence will also assist him to adhere to his parole conditions, and with his rehabilitation into the community.
14. The Applicant also gave evidence that he has cut all of his antisocial ties (transcript, page 28). The Tribunal notes that when the Applicant was living with his sister and having regular contact with his prosocial family members he did not commit any offences between October 2010 and July 2015 (Exhibit R2, page 101). It was when the Applicant moved to a country area following this that he relapsed into cannabis use, associating with negative peers, which led to him committing further offences. The Tribunal notes that the Applicant would not be going back into this negative country environment, and rather would be living in the city area where he could have regular contact with his prosocial family members, and where he would have accommodation with his best friend. He also has offers of accommodation from his mother and sister. This is also likely to be a protective factor which reduces the risk of the Applicant re-offending.
15. As noted above, there is no scientific assessment of the Applicant's likelihood of offending before the Tribunal. Based on the evidence above, the Tribunal finds that there is a low likelihood of the Applicant re-offending in a violent manner should he be given a chance to be released back into the Australian community. The Intent to Harm offence was his first and only violent offence, and resulted in his first term of imprisonment, which, as recognised by the PRB, would have had a salutary effect on the Applicant. He has also undertaken a voluntary course on violence. The MIP also had a component on violence, with no concerns about future violence being voiced by program facilitators in their completion report.
16. The Tribunal is also of the opinion that there is a relatively low likelihood of the Applicant committing further driving or traffic related offending, given that his last offences were committed over 10 years ago in 2009.
17. In the Tribunal's opinion, there is a higher likelihood of the Applicant committing further general offences, such as cannabis possession offences. He has a long history of drug use (since the age of approximately 14 or 15 years) (transcript, pages 13 and 36). To the Applicant's credit, he has resolved to stop using drugs, has had a period of abstinence in prison, and Think First and the MIP did have some focus on drug use. If he is released into the Australian community he will also be subject to a period of parole during which he will be subjected to random drug testing, and he will have the support of his mother and sister, which will further assist him to remain abstinent from cannabis use. The Tribunal finds that the Applicant's likelihood of committing further drug offences is moderate.
18. The Tribunal finds that paragraph 13.1.2 of Direction No 79 weighs moderately against the revocation of the Cancellation Decision.
19. When both parts of the first primary consideration are considered, the Tribunal finds that this primary consideration weighs moderately to strongly against the revocation of the Cancellation Decision.

Second primary consideration: The best interests of minor children in Australia (paragraph 13.2 of Direction No 79)

1. Paragraph 13.2 of Direction No 79 provides, in part:

(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.

1. Paragraph 13.2(4) of Direction No 79 continues on to outline the factors that a

decision-maker must consider when determining the best interests of a child.

(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;

1. 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;
2. Whether there are other persons who already fulfil a parental role in relation to the child;
3. Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
4. Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
5. Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

1. The Applicant has a 14 year old daughter and a 13 year old son. They are the Applicant's biological children with his former partner (who will be referred to as the "children's mother"). The Applicant also has two half-sisters from his mother's second marriage who are aged 17 and 15. The Applicant has a two and a half year old niece, who is the child of his sister who gave evidence at the hearing.
2. The Tribunal will deal separately with the Applicant's biological children, but before doing so, the Tribunal will outline some of the evidence regarding the children's living situation. There is relatively little information about the Applicant's half-sisters, making it difficult for the Tribunal to distinguish between them, and so their interests will be dealt with together. There is also minimal information before the Tribunal regarding the Applicant's two and a half year old niece, who will also be dealt with separately.
3. The following evidence provides some background to the Applicant's relationship and contact with his biological children, as well as the living situation of the Applicant's two biological children and associated concerns regarding their welfare.
4. The Applicant separated from the children's mother in 2007, when they were approximately one and two years of age. The Applicant's evidence was that following the separation, he was able to see the children at any time he wanted and saw the children on a daily basis. He stated that this arrangement continued until sometime in 2008 when his children's mother and her new partner moved away from the area where the Applicant was living. The Applicant reported that his contact with the children became a lot less consistent from this time. The Applicant's evidence was that after they moved, the children's mother changed her phone number and initially he had no idea of where they were living. When friends let him know that they were back in town, the Applicant reported that he would attempt to see the children however the new partner of the children's mother would make it difficult for him to see the children and would become aggressive. The Applicant reported, however that the children's mother maintained contact with his mother and would occasionally allow the children to stay with the Applicant's mother for a few days at a time. The children's mother allowed him to see the children on the condition that his mother would not tell him where the children were living. If she did, the Applicant's understanding was that the children's mother would cease all communication and he and his mother would have no way of seeing the children. The Applicant's evidence was that he looked into the possibility of applying for family court orders to have regular contact with the children. However he thought it would be impossible to get these orders given that he was living in shared housing, was not authorised to drive and did not know where the children were living at the time (see Exhibit A2, paragraphs [16]-[20]).
5. This evidence was consistent with the evidence given by the Applicant's mother which was that the Applicant saw both the children every one to two days for just over a year after he separated from the children's mother. Her evidence was that he would take them out for the day or stay in the house to see them. Further, the Applicant's mother stated that when the children's mother moved in with her new partner, the new partner did not want to have anything to do with the Applicant and made it difficult for the Applicant to have contact with the children. The Applicant's mother stated that he had regular contact with both of the children several times a year when they were visiting her. She also said that the children would come and stay with her during school holidays where the Applicant would also stay with his mother so he could spend time with the children. The Applicant's mother said that the children would attend most family gatherings such as weddings and birthdays. At the time of these gatherings she would arrange for the children to stay with her, as well as the Applicant, so he could spend time with the children (Exhibit A3, page 2).
6. The Applicant's contact with the children decreased further when he moved to a country region in approximately 2015. The evidence of the Applicant's mother was that "things started to go downhill quite fast" for the Applicant at this time (Exhibit A3, page 2). She stated that she and the children saw the Applicant a lot less frequently (transcript, page 53). The Applicant's evidence was that he last saw the children in person sometime in 2015 (transcript, page 43).
7. The Applicant's evidence was that since being in detention, he tried to speak to his two children via mobile telephone or Facebook daily. The Applicant also provided the children with mobile telephones so they could communicate with him (Exhibit A2, paragraph [42]). However his evidence was that sometimes the children's mother would confiscate their phones and delete their Facebook profiles so the Applicant was not able to speak with them (Exhibit A2, paragraph [45]). The evidence of the Applicant's mother was also that the Applicant puts credit on the children's phones but the phones will frequently get taken away and the credit used by the children's mother and her new partner (Exhibit A3, page 3; transcript, page 54).
8. In his evidence at the hearing, the Applicant stated that when he had completed his period of parole he would find a place to rent so that the children could come and live with him (transcript, page 23).
9. The information from the Applicant, his mother, sister and a statement from the Applicant's daughter indicates that the children's home living environment is an unsafe one, and that there are serious concerns regarding the children's welfare while they are in the care of their mother. The following statement of the Applicant's mother highlights these concerns (Exhibit A3, page 3; see also transcript, pages 54-59):

[The Applicant's daughter] and [the Applicant's son's] home life is just horrible. They are very unhappy. [The Applicant's daughter] in particular appears to be depressed. Phones keep getting taken away from them so they cannot keep in contact with either myself or [the Applicant]. [The Applicant] has also supplied them a phone and puts credit on it frequently but the phone still gets taken away and the credit used by [the children's mother] and [the children's mother's new partner]. They tell me that their house is trashed, things are broken and dirty.

I believe them because the last time I went inside their home, it was just as they say. They tell me they have no food and that they go to school with no breakfast or lunch and only have dinner which is usually something quick and easy. They don't have all their stationery for school and are often late for school. They told me, as did [the children's mother], that the Department of Child Protection had visited their home. They told me their electricity had been cut off and then switched back on. They are always dirty. From the outside, the house looks awful, the carport is full of bags of rubbish and furniture and there is a skip on the driveway overflowing with rubbish and furniture. They tell me that things of value, the PS4, phones get sold for money. [The children's mother] has lost an enormous amount of weight in the past year since things have declined. I have also noticed that [the Applicant's daughter] has lost quite a bit of weight... There are 6 children in the house and [the children's mother] is pregnant with child number 7... [The Applicant's daughter] takes care of her siblings for long periods of time. [The Applicant's daughter] has been told that she is not allowed to talk to anyone about what happens inside the house. Both kids said that [the children's mother] and [her new partner] argue a lot. Both kids have told me that lots of people come to the house and hang around the house. They have many doors in the house broken from being kicked in. A few weeks ago some men came into the home with baseball bats and smashed things up including [the Applicant's daughter's] iPad which she used to communicate with [the Applicant] when her phone is taken away. The men also hurt [the mother's new partner] and threatened to hurt the kids if they came back.

[The mother's new partner] took [the Applicant's daughter's] phone away because he no longer had his own. I spoke with [the children's mother] about the men coming to the home and she said that it happened whilst she was at the hospital visiting her daughter. Her daughter had been in hospital for a couple of weeks due to a chemical burn at home.

[The Applicant's daughter] told me that [her mother's new partner] is always on the phone asking to borrow money.

I have spoken with [the children's mother] about these things and she says she is trying to changes [sic] things but it never works out. The last time I had [the Applicant's daughter] and [the Applicant's son], [the Applicant's daughter] did not want to go back home and begged to stay with me. Upon taking them back, I spoke to [the children's mother] about the situation and how [the Applicant's daughter] was feeling and she assured me she would talk with [the Applicant's daughter] and sort it out. The next morning, [the Applicant's daughter] sent me a message saying her mum and [the mother's new partner] had another argument and threw something that smashed. Her mum came in her room and saw that [the Applicant's daughter] had been messaging me and told her she wasn't allowed to talk to anyone about what happens inside the house. In the early years [the Applicant's daughter and son] always came to visit very clean and had everything they needed to stay over. As the years have gone by, they have got more and more dirty and arrive missing shoes, socks, underwear and clothing. This past year has been the worst.

[The Applicant's daughter] is very unhappy. She told me that she feels she needs to get out of the house. She is afraid that if [the Applicant] is sent back to England that she will lose contact forever because her phone keeps getting taken away and the credit used up by her mum and [the mother's new partner] and that they actually do not want [the Applicant's daughter] to stay in contact with [the Applicant]. From my experience, what I see, and the conversations I have with [the Applicant's daughter, the Applicant's son] and also [the children's mother] I also feel that if [the Applicant] was not residing in Australia that the children would be very much disadvantaged. [The children's mother] and [her new partner] do not encourage contact with [the Applicant]. When talking with [the Applicant's daughter] on messenger you cannot tell if you are talking with her or whether it is her mum because [the children's mother] takes over and sends messages as if she is [the Applicant's daughter]. [The Applicant's daughter] pointed this out to me at her last visit with us. They need [the Applicant's] support and I feel that [the Applicant] is more than ready to help make his children's lives change for the better. I am afraid of what might happen to both [the Applicant's daughter] and [the Applicant's son] if their dad is not here for them physically.

1. In her evidence at the hearing, the Applicant's mother also said of the house in which the children are living (transcript, page 57):

The doors are - I've got photos, there's doors kicked in all over the place. Her [the Applicant's daughter] bedroom door she has got - she sent me a video, she has got masking tape all the way up the door thinking that masking tape - it's on like little tickets about that big, all the way up the door, as if she thinks that's going to stop somebody coming in her door. And then she has got a piece of rope tied around the handle and attached to what is another piece of masking tape on the wall. It's never going to stop anybody, but she feels in her - she feels better being in her room if she can shut the door and put the masking tape over the door. She sent a video that her going to the food cupboard and there's nothing in it.

1. The Applicant's mother also gave evidence that the children frequently miss school or are late for school, including on one occasion when the Applicant's daughter had to stay at home and do housework in preparation for a rent inspection. The Applicant's daughter is also undergoing counselling with the school chaplain after being referred by the school principal (transcript, pages 54-55).
2. The Applicant's sister also gave evidence that she had seen pictures sent via text message from the Applicant's daughter of there being no food in the cupboard and doors broken in the house (transcript, page 69).
3. The Tribunal accepts the evidence of the Applicant's mother, sister and the Applicant regarding the living conditions of the Applicant's two biological children. The Tribunal found this evidence to be credible, and was not of the opinion that there was any attempt to exaggerate or embellish in order to improve the Applicant's prospects of success. This evidence is also consistent with a statement given by the Applicant's daughter in which she describes her relationship with the Applicant and her situation and living conditions at home (Exhibit A6). The Applicant's 14 year old daughter's statement is as follows:

I would like to let you know about my life and feelings.

I don't remember much from when I was under the age of approximately 8 years old. Since the age of approximately 8, I remember that I had regular contact with my dad [Applicant's name omitted] when I was visiting my Nanny's [the Applicant's mother's] house. This was a few times a year and always at Christmas time. I lost contact with [the Applicant] for a couple of years. I didn't know where he was. Mum did not tell me for a couple of years and then she told me he was in prison. When [the Applicant] went into the detention centre, we made contact. This was because he could talk now by phone and I now had a phone too. I really enjoy our conversations, it makes my day brighter. [The Applicant] has been sending me credit for my phone so that I can stay in contact with him. I like talking to [the Applicant] because he listens to what I say and tries his best to give me advice. I have a lot of things going on that are not good in my life and [the Applicant] would listen and make me feel better. In December [the children's mother's new partner] took my phone away because he needed it and I have never got it back. I then used my iPad to talk to [the Applicant] through messenger, but could only do that when mum said. When [the Applicant] sends credit, mum and [the mother's new partner] use quite a bit of the data because they don't have money. At Christmas [the Applicant] sent [the Applicant's son] and I a phone to share so that we could stay in contact. [The Applicant] put credit on the phone for us. I used it for about a week and now my mum has taken that phone because she needs the credit. Mum controls the Facebook accounts and changes passwords. We have long periods we cannot talk to [the Applicant] or Nanny because either our credit has been used by mum and [the mother's new partner] or they have taken our phones or our iPad has been smashed. I never get any time to let [the Applicant] know this and he worries because he can see that the messages are not being read. I was using my iPad to talk with [the Applicant], but a couple of weeks ago some men came to our house with poles and baseball bats and broke things and hurt [the mother's new partner]. They smashed my iPad. The Department of Child Protection have visited our house. Mum says we are not allowed to talk about what goes on inside the house and that makes me feel sad and sometimes she finds out and gets angry with me. I feel very stressed right now, I wish I could talk to [the Applicant]. I am really afraid that if [the Applicant] goes back to England that I will lose all contact with him because my mum and [the mother's new partner] keep taking away all our phones and using our credit. I need [the Applicant] in my life and would like the chance to spend time with him in person. He is always calm and makes me feel calm.

In our house, there are 8 of us. Mum, [the mother's new partner], me and my five siblings. Mum is pregnant again. [The mother's new partner] left home for about six months and then came back and he sometimes goes away for a couple of days and then comes back. My house is very untidy and lots of things are broken. My things get taken all the time and I have no privacy. I spend a lot of time looking after my brothers and sisters and I put my youngest sister who is 2 years old to bed each night. I have taking care of babies for mum for as long as I can remember. I don't feel like I have had much of a childhood. Mum spends a lot of time in her room and [the mother's new partner] has a lot of friends around. I do cooking, cleaning, washing and helping out. We sometimes get our electricity cut off. We don't have much food and mum and [the mother's new partner] are always ringing people to borrow money. On school days we are always late for school and do not eat breakfast or lunch. We eat at dinnertime. We do get a bit of lunch on weekends and dinner. I don't have the correct stationery for school. My youngest half-brother has now started calling me a "fat pig". I am tall and very self-concious [sic] and this hurts me. I feel mum just wants to make [the mother's new partner] happy. I do want to live at home anymore.

At school I get bullied by some people. They call me fat and ugly and I feel out of place because I'm taller than everyone. I get teased. I do also have some nice friends. I don't feel good about myself. I feel ugly, self concious [sic], low self-esteem and stressed. When I am in contact with [the Applicant], I can talk to him about how I feel.

I really thought that connecting with [the Applicant] again would be the change and hope I needed in my life.

1. The Applicant is the biological father of his 14 year old daughter, and there is a parental relationship between them (paragraph 13.2(4)(a) of Direction No 79). The Applicant lived with his daughter and her mother until she was two years of age and was involved in her care. The Applicant maintained a close relationship with his daughter, seeing her frequently until approximately 2015. Although he lost contact with his daughter around that time, they have reconnected since the Applicant has been in immigration detention and have reconnected through having regular conversations by phone and via Facebook Messenger when the Applicant's daughter is able to have access to her electronic devices. Based on the Applicant's daughter's statement above, her contact with the Applicant is meaningful and she is able to turn to her father for advice and comfort.
2. The Applicant's daughter will turn 18 in approximately four years' time. It is evident from her statement and from the evidence of her grandmother and aunt (the Applicant's mother and sister) that she is experiencing substantial difficulties both at home and at school and that she would benefit from her father's involvement in her life. The Tribunal also notes that the Applicant has undertaken parenting courses in order to be a better father to his children. If the Applicant continues with his rehabilitation and does not re-offend, the Tribunal finds that he is likely to play a positive role in his daughter's life in the future (paragraph 13.2(4)(b) of Direction No 79).
3. The Applicant's conduct has not directly had a negative impact on his daughter (paragraph 13.2(4)(c) of Direction No 79), however it could be said that it has indirectly impacted on his daughter because she is in need of the physical presence and support of her father to help her with the many problems she is encountering in her life. If the Applicant were to re-offend in the future, it would undoubtedly have a negative impact on his daughter who will again face the prospect of being separated from her father.
4. If the Applicant were to be removed from Australia, the effect of any separation from his daughter would likely be extremely detrimental to her (paragraph 13.2(4)(d) of Direction No 79). The Tribunal accepts the evidence of the Applicant, his mother and daughter that the children's mother and her new partner are unsupportive of the Applicant maintaining contact with his children. The Tribunal further accepts that the Applicant's daughter frequently has her electronic devices and credit used by her mother and mother's new partner, and that if he is returned to the United Kingdom contact with his daughter is likely to be intermittent and may potentially cease altogether. Given the support that the Applicant's daughter is receiving from her conversations with her father and the difficulties she faces in her life, the Tribunal finds that ceasing contact with her father would be extremely detrimental for the Applicant's daughter.
5. The children's mother has had the care of his daughter whilst he has been in prison and immigration detention (paragraph 13.2(4)(e) of Direction No 79). However, the evidence regarding his daughter's welfare and living conditions suggests that she is not adequately fulfilling this role and his daughter would benefit from the presence of her father whom she may be able to live with in the future.
6. The statement from the Applicant's daughter above indicates that she wants her father to remain in Australia because he provides her with some hope and support. She fears that if he is removed that she will lose contact with him. The Applicant's daughter has had to shoulder a lot of responsibility for a 14 year old child, including having to look after her infant siblings and helping in the house. The Tribunal gives her views strong weight (paragraph 13.2(4)(f) of Direction No 79).
7. There is no evidence that the Applicant has abused or neglected his daughter in any way, and so paragraph 13.2(4)(g) of Direction No 79 is not applicable.
8. Similarly, there is no evidence that the Applicant's daughter has suffered or experienced any physical or emotional trauma arising from his conduct (paragraph 13.2(4)(h) of Direction No 79).
9. The Tribunal finds that the best interests of the Applicant's 14 year old daughter weighs very strongly in favour of revocation of the Cancellation Decision.

1. The Applicant is the biological father of his 13 year old son, and there is a parental relationship between them (paragraph 13.2(4)(a) of Direction No 79). The Applicant lived with his son until his son was approximately one year of age and was involved in his daily care. As with the Applicant's daughter, the Applicant saw his son frequently until approximately 2015, when he lost contact with his son and daughter around that time. However, they have reconnected since the Applicant has been in immigration detention and the Applicant attempts to speak to his son regularly, when his son has access to his mobile telephone (paragraph 13.2(4)(a) of Direction No 79).
2. The Applicant's son will turn 18 in approximately five years, and the evidence of the Applicant's mother is that he is a shy boy (transcript, page 51). These are formative years in his son's life, and given the difficulties in his son's home life and the associated welfare concerns, he would benefit from having the support of his father. As mentioned above, the Applicant has undertaken parenting courses and has a plan for the children to come and live with him when he has finished parole. The Tribunal finds that if the Applicant is able to continue with his rehabilitation and does not re-offend, that he is likely to play a positive parental role in his son's life in the future. The Applicant is likely to be a positive role model to his son in the future if he does not re-offend (paragraph 13.2(4)(b) of Direction No 79).
3. The Applicant's conduct has not directly had a negative impact on his son (paragraph 13.2(4)(c) of Direction No 79), although if the Applicant were to re-offend it would certainly have a negative impact on his son who would again be faced with separation from his father.
4. Similarly to the Applicant's daughter, the Tribunal is concerned that if the Applicant were returned to the United Kingdom, he would not be able to maintain contact with his son due to the lack of encouragement of any contact from the children's mother and her new partner, as well as the children's devices frequently being taken away from them and their credit being used. Accordingly, the Tribunal finds that a continuing relationship with his father is likely to cease altogether if the Applicant is removed to the United Kingdom. The Tribunal is of the opinion that the Applicant's son would benefit from his father being physically present in his life, particularly given the current welfare concerns, and the potential for the Applicant's son to come and live with him after the completion of his parole (paragraph 13.2(4)(d) of Direction No 79).
5. Similarly to the Applicant's daughter, the children's mother has undertaken a parenting role to his son whilst the Applicant has been in prison and immigration detention (paragraph 13.2(4)(e) of Direction No 79). However given the evidence regarding the children's welfare and living situation, including the recent involvement of DCP, she has not adequately undertaken that role.
6. There are no known views of the Applicant's son before the Tribunal (paragraph 13.2(4)(f) of Direction No 79).
7. There is no evidence that the Applicant has abused or neglected his son in any way,

and so paragraph 13.2(4)(g) of Direction No 79 is not applicable. 8. There is no evidence that the Applicant's son has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (paragraph 13.2(4)(h) of Direction No 79). 9. Taking into account the above discussion, the Tribunal finds that the best interests of the Applicant's 13 year old son weigh very strongly in favour of revocation.

1. There is minimal material before the Tribunal regarding the Applicant's teenage

half-sisters. When the Applicant went to prison, the Applicant's mother and step-father made the decision that his half-sisters would not have contact with him during that time. Whilst the Applicant has been in immigration detention they have communicated by phone. It appears to the Tribunal that the relationship is not a strong one at the present time. The relationship is non-parental, and so the Tribunal gives it less weight (paragraph 13.2(4)(a) of Direction No 79). 2. As the Applicant's half-sisters are 15 and 17 years of age, there are only three years and one year respectively until they turn 18 (paragraph 13.2(4)(b) of Direction No 79). They live at home with their parents (the Applicant's mother and step-father) and are in high school. 3. The Applicant's conduct has not had a negative impact on his half-sisters (paragraph 13.2(4)(c) of Direction No 79). 4. The Applicant has had no contact with his half-sisters during his term of imprisonment but some contact with them through telephone calls during his time in immigration detention. The Applicant is close to his mother, and her evidence was that the Applicant has a good relationship with his step-father, so if the Applicant remains in Australia, he is likely to develop a closer relationship with his half-sisters in the future. However, the Applicant is likely to be able to continue his contact with his half-sisters through telephone or other electronic means such as Skype, Facebook or messaging if he were to be returned to the United Kingdom. 5. The Applicant's mother and his step-father fulfil a parenting role to his two half-sisters (paragraph 13.2(4)(e) of Direction No 79). 6. There are no known views of the Applicant's half-sisters before the Tribunal (paragraph 13.2(4)(f) of Direction No 79). 7. There is no evidence that the Applicant has abused or neglected his half-sisters in any way (paragraph 13.2(4)(g) of Direction No 79), nor that they have suffered or experienced any physical or emotional trauma arising from his conduct (paragraph 13.2(4)(h) of Direction No 79). 8. The Tribunal finds that the best interests of the Applicant's 15 and 17 year old half-sisters do not weigh either for or against revocation of the Cancellation Decision. The Tribunal finds this consideration to be neutral with respect to his half-sisters.

1. The Applicant's two and a half year old niece was born whilst he was in prison and the Applicant has not been able to have a direct personal relationship with her (paragraph 13.2(4)(a) of Direction No 79). The Applicant's sister gave evidence that he speaks to his niece by FaceTime regularly whilst he has been in the detention centre and that "they have a great time playing on the phone" (transcript, page 68). In her statement, the Applicant's sister said that "he has built a great relationship with my daughter" through regular FaceTime contact (Exhibit A4).
2. Another 16 years remain until the Applicant's niece turns 18. This is a substantial period of time, and the child may benefit from having her uncle in her life during these years, particularly as her parents have separated, and the Applicant is very close to his sister (the child's mother). The Applicant is likely to play a positive role in the child's life in the future if he does not re-offend (paragraph 13.2(4)(b) of Direction No 79).
3. The Applicant's prior conduct has not had a detrimental effect on his niece (paragraph 13.2(4)(c) of Direction No 79).
4. The Applicant's sister described being very close with her brother, who was her only full sibling. She was of the opinion that her daughter would benefit from spending time with her uncle in person (transcript, page 68). The Tribunal appreciates that if the Applicant were returned to the United Kingdom, his niece would lose the opportunity for an in person relationship with her uncle (paragraph 13.2(4)(d) of Direction No 79). However, the Applicant's niece has only ever known her uncle via FaceTime conversations. If the Applicant were returned to the United Kingdom, he could continue to maintain contact with his niece in the same way, or via telephone, Skype or other electronic means.
5. The Applicant's sister has fulfilled the primary parenting role with respect to his niece. Although she is separated from the child's father, the child's father has her every weekend (transcript, page 69). Thus, the child has two parents who are involved in her upbringing (paragraph 13.2(4)(e) of Direction No 79).
6. Given the child's young age, paragraph 13.2(4)(f) of Direction No 79 regarding the views of the child, is not applicable.
7. The Applicant has not abused or neglected his niece in any way, (paragraph 13.2(4)(g) of Direction No 79), nor has she suffered or experienced any physical or emotional trauma arising from his conduct (paragraph 13.2(4)(h) of Direction No 79).
8. The Tribunal finds that the best interests of the Applicant's two and a half year old niece do not weigh either for or against revocation of the Cancellation Decision. The Tribunal finds this consideration to be neutral.
9. In summary, the Tribunal has found that the best interests of the Applicant's 14 year old daughter and 13 year old son are very strongly in favour of revocation of the Cancellation Decision. The best interests of the Applicant's half-sisters and niece are neutral.

Third primary consideration: Expectations of the Australian community (paragraph 13.3 of Direction No 79)

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. Until recently there was a lack of clarity concerning the interpretation of this primary consideration, following the decision of Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY) where Her Honour stated:

[76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the 'expectations' about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to 'tolerance') the Australian community's 'expectations' are defined only in one particular way: namely, that the Australian community 'expects' non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese v Minister for Immigration & Border Protection [2016] FCA 348; 248 FCR 296 at

[64]-[66]).

(Emphasis added.)

1. Subsequently, two decisions of the Federal Court adopted slightly different approaches to the interpretation adopted by Mortimer J in YNQY. These decisions were DKXY v Minister for Home Affairs [2019] FCA 495 (DKXY) and FYBR v Minister for Home Affairs

[2019] FCA 500 (FYBR). 2. In DKXY, Griffiths J stated that it was not "inevitable" that the primary consideration of the expectations of the Australian community would weigh against revocation (at [32]).

Undoubtedly, decision-makers who are bound to give effect to the Direction are required to have due regard to the Government's view regarding community values, standards and expectations, as set out in, for example, cll 6.2 and 6.3 of the Direction, but nothing in the Direction indicates that community expectations will always favour non-revocation. Indeed, the totality of the relevant circumstances which bear upon the assessment and weighing of all three primary considerations and other considerations need to be considered, as is made clear in many clauses of the Direction...

1. In summary, Griffiths J was of the view that "The Government's views have to be taken into account and given "due regard", but so must all other circumstances which are relevant to the particular case" (at [33]). Hence, Griffiths J was advocating a broad approach where consideration has to be given to all the Applicant's circumstances when considering the expectations of the Australian community, so that it is not inevitable that the Australian community's expectations would weigh against revocation.
2. On the other hand, in FYBR, Perry J, at [42], affirmed a narrower approach,

which appears to be more consistent with Mortimer J's approach in YNQY:

It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government's view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant's submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant's circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the "norm" stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases. As such, the Tribunal did not fall into jurisdictional error in failing to have regard to the applicant's circumstances when assessing the expectations of the Australian community in applying cl 11(3) of the Direction.

Although Perry J referred to the statement of community expectations in the Direction to be a "norm" to be applied in "most cases", it was not clear when circumstances would justify departure from that norm.

1. The Full Court of the Federal Court in FYBR v Minister for Home Affairs

[2019] FCAFC 185 (FYBR (FC)) considered the approach adopted by Mortimer J in YNQY. The Full Court's decision was accurately summarised by Member Burford in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424 (Rehman), at [162]-[166], as follows: 1. On 24 October 2019 the majority of the Full Court of the Federal Court (Charlesworth and Stewart JJ; Flick J dissenting) in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR (FC)) upheld the decision of Justice Perry in FYBR. Importantly, the Court essentially agreed with the approach in YNQY and accepted Justice Mortimer's characterisation of this consideration as a "kind of deeming provision" - expressing "an expectation deemed by the government to be held by the Australian community" (FYBR (FC), [at 61],

per Charlesworth J; see also Stewart J [at 89]). 2. Again as noted above, while this case concerns Direction No. 65 and in particular paras 6, 8 and 11.3 of that Direction, the text of the relevant provisions is largely unchanged in Direction No 79. The Tribunal considers that the Court's consideration of the issue of "community expectations" is directly applicable to paras 6, 8 and 13.3 are relevant to this application. 3. While there is some difference in the approach to the question of construction of the relevant clauses, the majority Justices in FYBR (FC) agree that it is not for a decision-maker to make his or own [sic] her own assessment of the community expectations and to give that assessment weight as primary consideration but to identify the Government's view about community expectations and to have due regard to that view. That view will be taken into account in considering the particular circumstances of the case and ultimately determining the exercise of the decision-maker's discretion, taking into account all the primary and other considerations (Charlesworth J at [73]-[74]; Stewart J at [93] and [103]). 4. In FYBR (FC) Charlesworth J, held that (at [67]):

To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is "deeming", in the sense explained by Mortimer J... It is not for the decision maker to make his or her own assessment of the community expectations and to give that assessment weight as a "primary consideration"... For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day with respect of its subject matter.

1. Justice Stewart held, in similar terms (at [89] and [91]):

... 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....

The above contextual factors lead to 2 guiding considerations to the proper construction of Direction 65. First, "community expectation" as expressed normatively" [sic] are what the government says 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 of any particular case - they are to be understood and applied normatively.

1. Both majority Justices make the point that, as a primary consideration, "community expectations" are to be taken into account along with other factors to inform a decision-maker's exercise of discretion. It follows that the ultimate decision may differ from community expectations. Community expectations are merely one of the three primary considerations to be taken into account. Further, both majority Justices note that if a decision-maker were to take account of every factor relevant to the decision to inform the content of community expectations this would render the process of weighing those other factors together with and against community expectations to be unworkable (see Charlesworth J (at [74]), Stewart J (at [91]-[93]).
2. Justice Charlesworth notes that it is necessary to determine the content of the deemed expectation not by reference to some factual inquiry but by reference to the paragraph itself. The task of the decision-maker is to identify the government view of community expectation and to have due regard to it (at [74]). Her Honour notes that the paragraph (at [73]):

Does not purport to preclude the decision maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision maker must necessarily do. The clause implicitly recognises that the decision-makers assessment as to whether or not the visa should be granted may differ from the expectations of the Australian community, as the government deemed those expectations to be.

1. Her Honour goes on to note the paragraph (at [75]-[79]):
   1. 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 visas 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.

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 cases, the decision maker would depart from the relative ascription of weight for which

cl 8(4) "generally" provided, as he or she is permitted to do_._ 2. Justice Stewart summarises the "community expectations" as expressed in the Direction as follows (at [100]):

Non-citizens will obey Australian laws while in Australia;

It may be appropriate to refuse a visa application were [sic] noncitizen has breached, or where there has is an unacceptable risk that they will breach, the expectation that they will obey the law or were [sic] they have been convicted of offences in Australia or elsewhere;

In a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences are such that they should not be granted the visa...

Understood in this way, community expectations are simply, and informally, expressed as follows: "If you break the law it will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive."

1. As noted above, although the Justices were considering the provisions with respect to visa refusal their comments are, in the Tribunals view, equally applicable to the cancellation of a visa (though the other considerations and weighing exercise may differ).

1. Having regard to the judgments of Stewart and Charlesworth JJ in FYBR (FC),

the Tribunal must give effect to the norm stipulated in paragraph 13.3 of Direction No 79 (that the Australian community expects non-citizens to obey Australian laws whilst in Australia), which will in most cases weigh in favour of refusing to revoke the cancellation decision. 2. The Tribunal has found that the Applicant's Intent to Harm offence, being a violent offence involving a weapon is very serious (see discussion above regarding the first primary consideration). The Tribunal is guided by the principle in paragraph 6.3(2) of Direction

No 79 which states that, "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." Paragraph 6.3(3) of Direction No 79, in summary, provides that non-citizens who have committed serious crimes, including crimes of a violent or sexual nature, should generally expect to be denied the privilege of staying in Australia. 3. The construction of paragraph 13.3 of Direction No 79 confirmed in FYBR (FC),

together with these principles, supports the conclusion that the Australian community would expect the Applicant's Visa to remain cancelled. Consequently, the Tribunal finds that the expectations of the Australian community would be that the Cancellation Decision should not be revoked. 4. In determining the weight to be applied to this consideration, the Tribunal has considered the primary considerations, including the serious nature of the Applicant's Intent to Harm offence, and the less serious nature of his other offences. The Tribunal has balanced these considerations against the considerations which weigh in the Applicant's favour. Specifically, these are the primary consideration of the best interests of the Applicant's two biological children (14 year old daughter and 13 year old son) which weigh very strongly in favour of revocation of the Cancellation Decision. As will be discussed below, the strength, nature and duration of the Applicant's ties to Australia (particularly as the Applicant came to Australia as a two year old child, and all his immediate family reside here) weighs moderately in favour of revocation of the Cancellation Decision. The hardship the Applicant would face if he were returned to the United Kingdom (particularly in light of his mental and physical health issues) weighs slightly in favour of revocation of the Cancellation Decision. After balancing these considerations, the Tribunal finds that the expectations of the Australian community weighs moderately against the revocation of the decision to cancel the Applicant's Visa.

1. Paragraph 14 of Direction No 79 provides:
   • (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): * (a) International non-refoulement obligations; * (b) Strength, nature and duration of ties; * (c) Impact on Australian business interests; * (d) Impact on victims; * (e) Extent of impediments if removed.

1. It is not relevant to consider international non-refoulement obligations (paragraph 14.1 of Direction No 79) because no such claims arose in any submissions or on the evidence before the Tribunal.

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

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

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

(b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non­revocation 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. Relevantly, paragraph 6.3(5) of the principles section of Direction No 79 states:
   • (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.
2. Further, paragraph 6.3(7) of the principles section of Direction No 79 states, in part:

(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. As noted above, the Applicant arrived in Australia when he was two years of age, and he has not returned to the United Kingdom since his arrival in Australia (G24, page 145). He has spent his entire life in Australia with all his schooling until year 10 (transcript, page 11) and formative years spent in Australia. The length of duration that he has resided in Australia is indicative of his close ties to Australia.
2. His first traffic offences were committed in November 2003 when the Applicant was

18 years of age, and his first criminal offences were committed in 2006 when the Applicant was approximately 21 years of age. These offences were committed shortly after the Applicant turned 18, but cannot be classified as offences committed shortly after the Applicant's arrival in Australia. 3. The Applicant has only made minimal positive contributions to the community, having committed criminal offences throughout most of his adult life, excepting the period between October 2010 and July 2015 when he did not commit any offences. He has had some work history as a groundsman, machine operator and trades assistant (transcript, page 26) where he would have paid taxes, and his evidence was that he has paid child support for his children, including some minimal child support when he was in prison. 4. The Applicant's immediate family members reside in Australia, including his two children, parents, sister, two and a half year old niece, two half-sisters, step parents, grandmother, aunt and two other adult step-siblings (G17, page 83). The Applicant is particularly close to his mother and sister who gave evidence as to the emotional detriment it would have on them if the Applicant were removed from Australia (transcript, page 61; Exhibit A3, page 2 and Exhibit A4). The Applicant's father also provided a letter of support (Exhibit A5). As also noted above, the Applicant also has the support of his best friend who he will live with if he is released into the Australian community. The Applicant's relationship with these persons and their support of him is indicative of the Applicant's close ties to the Australian community. 5. The substantial emotional detriment that the Applicant's children are likely to suffer if the Applicant is removed from the Australian community has already been considered in detail above in the section on the best interests of minor children. The Tribunal has found that if the Applicant were required to return to the United Kingdom it would have a detrimental impact on the welfare of his children who are Australian citizens. 6. The Tribunal finds that the Applicant has close ties to Australia, particularly with respect to his having resided in Australia since he was two years of age, and having his immediate family members, including his two children, in Australia. The Tribunal finds that this consideration weighs moderately in favour of the revocation of the Cancellation Decision.

1. There is no impact on Australian business interests if the Cancellation Decision is not revoked, and so paragraph 14.3(1) of Direction No 79 is not relevant.

1. There is no information available before the Tribunal about the impact of a decision not to revoke the cancellation of the Applicant's Visa on the victim of his Intent to Harm offence, or any of the victim's family members (paragraph 14.4(1) of Direction No 79).

1. Paragraph 14.5(1) of Direction No 79 provides:
   • (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:
     • (a) The non-citizen's age and health;
     • (b) Whether there are substantial language or cultural barriers; and
     • (c) Any social, medical and/or economic support available to them in that country.
2. The Applicant is now 34 years of age. The Applicant gave evidence that he has some physical health issues. Although there was no independent medical evidence substantiating these conditions before the Tribunal, the existence of these conditions was not challenged, and the Tribunal found the Applicant's evidence with regard to his health to be believable. The Applicant's evidence is that he has a bone disease which affects the cartilage in his heels and gives him restricted movement, as well as flat feet which restricts the amount of blood circulation in his feet, making it painful to walk. He further stated that when he was 21, he was run over by a car and broke one of his ankles, and injured his back which affected his walking for approximately nine years (transcript, page 25). The Applicant further stated that he suffered from depression, anxiety and post-traumatic stress disorder, but was not taking any medication for these, preferring counselling (transcript, page 27).
3. The Applicant's mother and sister are prosocial influences on him, and the Tribunal finds that without their support, the Applicant may have difficulty with his mental health and in re-settling. As discussed above, if the Applicant is returned to the United Kingdom, there is a likelihood that he will not be able to communicate with his children, which may also be detrimental to his psychological wellbeing.
4. There are no language or substantial cultural barriers which would be impediments to his return to the United Kingdom. Also, the Applicant would have access to the same economic support, including health services, social security, as other citizens of the United Kingdom. However, the Applicant's physical injuries may reduce his employment prospects, which in turn will be an impediment to his re-establishing himself, including securing accommodation and maintaining a basic standard of living. The Applicant does, however, have some experience as a groundsman, trades assistant and machine operator, and this experience may assist him to find employment if he were to return to the United Kingdom.
5. The Applicant's evidence was that he does not have contact with any family members in the United Kingdom. He has an aunt (his mother's sister) in the United Kingdom whom he has only met twice. His evidence was that this aunt does not want to have contact with him if he is returned (transcript, page 28). The Applicant's father also has five brothers and four sisters in the United Kingdom whom the Applicant has never met, and does not communicate with. The evidence of the Applicant's mother was that part of the reason the family left the United Kingdom to come to Australia was to distance themselves from the Applicant's father's family who were a negative influence with "a history of very aggressive drinking behaviour" (transcript, pages 65-66). The Tribunal accepts that the Applicant would have minimal, if any, support from his family members in the United Kingdom if he were to return there, and that they may not be a prosocial influence if he does establish contact with them.
6. On balance, the Tribunal finds that the Applicant may have difficulty establishing himself and maintaining a basic standard of living if he were to return to the United Kingdom, particularly due to his physical health conditions which may impact on his ability to find employment. He is also likely to experience some psychological distress, which, as well as separation from prosocial and supportive family members and his children, may possibly exacerbate his existing mental health issues. These impediments would make re-settling in the United Kingdom very difficult for the Applicant, although they are not insurmountable. Consequently, this consideration weighs slightly in favour of the revocation of the Cancellation Decision.

1. The Applicant does not pass the character test under s 501 of the Migration Act.
2. The Tribunal has therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other considerations in Direction No 79.
3. In relation to the first primary consideration, the Tribunal finds that:
   • (a) The nature and seriousness of the Applicant's conduct weighs strongly in favour of the Tribunal refusing to revoke the Cancellation Decision (paragraphs 13.1 and 13.1.1 of Direction No 79).
   • (b) The risk to the Australian community should the Applicant commit further offences weighs moderately in favour of the Tribunal refusing to revoke the Cancellation Decision because the likelihood of the Applicant re-offending is low to minimal (paragraph 13.1.2 of Direction No 79).

Overall, with respect to the first primary consideration, the Tribunal concludes that the protection of the Australian community (paragraphs 13.1, 13.1.1 and 13.1.2 of

Direction No 79), weighs moderately to strongly in favour of the Tribunal refusing to revoke the Cancellation Decision.

1. With respect to the remaining primary considerations, the Tribunal finds that:
   • (a) The best interests of the Applicant's 14 year old daughter and 13 year old son weigh very strongly in favour of the revocation of the Cancellation Decision (paragraph 13.2 of Direction No 79). The best interests of his 17 and 15 year old half-sisters and two and a half year old niece are neutral.
   • (b) When balanced with the other primary and secondary considerations, the expectations of the Australian community (paragraph 13.3 of Direction No 79) weigh moderately in favour of refusing to revoke the Cancellation Decision.
2. In relation to the other considerations that are applicable to this application:
   • (a) The strength, nature and duration of the Applicant's ties to Australia (paragraph 14.2(1) of Direction No 79) weighs moderately in favour of the revocation of the Cancellation Decision.
   • (b) The impediments the Applicant would face if returned to the United Kingdom weigh slightly in favour of the revocation of the Cancellation Decision (paragraph 14.5(1) of Direction No 79).
3. The Tribunal finds that the primary consideration of the best interests of the Applicant's two minor children (14 year old daughter and 13 year old son) substantially outweighs the other primary considerations of protection of the Australian community and the expectations of the Australian community.
4. The other considerations which weigh in favour of the Applicant, including the Applicant's strength, nature and duration of ties to Australia, and the extent of impediments if removed further add to this weight, and to the Tribunal being satisfied that there is another reason to revoke the Cancellation Decision.
5. Having had regard to all of the relevant primary considerations and the relevant other considerations in Direction No 79, the Tribunal is of the view that the correct or preferable decision is to set aside the Reviewable Decision, and to substitute a new decision that the Cancellation Decision should be revoked.

1. The Reviewable Decision is set aside and substituted with the decision that the cancellation of the Applicant's Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

I certify that the preceding 171 (one hundred and seventy-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

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