Abdulkareem and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Abdulkareem and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4212 (20 December 2023)
Division:GENERAL DIVISION
File Number: 2023/3559
Re:Tunde Nazeem Abdulkareem
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

REASONS FOR DECISION
Tribunal:Member Dr C Huntly
Date:20 December 2023
Place:Perth

On 9 August 2023, I made the following decision:
For the reasons delivered at hearing on 9 August 2023, on consideration of the evidence presented at hearing on 7 August 2023, the Reviewable Decision is set aside and substituted with the decision that the cancellation of the Applicant’s visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

These are the written reasons for my decision.
..................[Sgd]......................................................
Member Dr C Huntly
CATCHWORDS
MIIGRATION – mandatory visa cancellation – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s Visa – character test – substantial criminal record – offences include attempted armed robbery, enter dwelling without consent with intent to commit offence, criminal damage and breaches of court orders – Applicant is a 24 year old citizen of South Africa, who last arrived in Australia at 16 years of age – Direction No 99 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – no family violence – strength, nature and duration of ties to Australia – best interests of Applicant’s biological son – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed to South Africa – Reviewable Decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) – ss 189, 499(1), 499(2A), 500(6B), 500(6L), 500(1)(ba), 501, 501(3A), 501(6B), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)
CASES
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
Deng v Minister Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 11811
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Minister for Home Affairs v HSKJ [2018] FCAFC 217
SECONDARY MATERIALS
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021)
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023) paras 5.2, 5.2(1), 5.2(2), 5.2(3), 5.2(4), 5.2(5), 7, 7(1), 7(2), 7(3), 8.1, 8.1(a), 8.1(b), 8.1.1, 8.1.1(1)(d), 8.1.1(1)(e), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.3, 8.4, 8.4(1), 8.4(4)(a), 8.4(4)(b), 8.4(4)(d), 8.4(4)(e), 8.5, 9, 9.1, 9.2, 9.2(1), 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3, 9.4
REASONS FOR DECISION
Member Dr Huntly
20 December 2023
THE APPLICATION

The Applicant seeks review of a decision of a delegate of the Respondent (the Minister) dated 19 May 2023 not to revoke the cancellation of his VE Subclass 176 Skilled Sponsored visa (Visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act).[1]
[1] R2 G3.
The Applicant’s Visa was cancelled on 21 October 2020, pursuant to s 501(3A) of the Migration Act (the Cancellation Decision) on the basis that he had a substantial criminal record and was serving a full-time custodial sentence of imprisonment.[2]
[2] R2 G7.
The letter advising the Applicant of the Cancellation Decision advised the Applicant that he could make representations to seek revocation of the Cancellation Decision. The Applicant sought revocation of the Cancellation Decision on 30 October 2020.[3] He provided submission letters and evidence in support.[4]
[3] R2 G8.
[4] R2 G9-G32.
However, as mentioned above, on 19 May 2023, a delegate of the Minister decided not to exercise discretion under s 501CA(4) of the Migration Act to revoke the Cancellation Decision. This is the Reviewable Decision currently before the Administrative Appeals Tribunal (the Tribunal).
The Applicant lodged his review application in the proper form on 24 May 2023 pursuant to s 500(1)(b) of the Migration Act, which allows applications to be made to the Tribunal for review of decisions of a delegate of the Minister made under s 501 of the Migration Act. Therefore, the application for review was lodged within the nine-day period prescribed by s 500(6B) of the Migration Act.
Section 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 day on which an applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the 84-day period started running from 19 May 2023, meaning that I was required to hand down a decision on or before 14 August 2023.
I delivered an oral decision before the Applicant via Microsoft teams on 9 August 2023 and issued a short-form decision by email to the Applicant’s representative on the same day.
The Issues for Determination
The issues before the Tribunal are:
(a)whether the Applicant passes the character test for the purpose of s 501CA(4)(b)(i) of the Migration Act, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked under s 501CA(4)(b)(ii) of the Migration Act.
BACKGROUND
The Applicant is a 24-year-old citizen of South Africa, born 21 December 1998.[5] He last arrived in Australia on 13 August 2015 at aged 16. The Applicant came to Australia to live with his father and has not departed Australia since.[6] The Applicant’s father is now an Australian citizen, having migrated to Australia in 2012.[7]
[5] R2 G29.
[6] R2 G33.
[7] R2 G18.
On 24 September 2019, the Applicant was convicted of attempted armed robbery and sentenced to an eight-month term of imprisonment, suspended for 12 months.[8] That offence involved the Applicant approaching a victim who was unknown to him who was in the company of a three-year-old child in Forrest Place mall around midday on 23 October 2018. The Applicant produced a 15cm long flick knife and demanded the victim to hand over his wallet. When the victim refused to hand over any property, the Applicant threatened to “cut you up if you don’t give it to me” and pointed the knife close to the victim.[9]
[8] R2 G4.
[9] R3 p 8.
During the period of the suspended sentence imposed for the above offence, the Applicant committed the offence of enter dwelling without consent with intent to commit offence (indictable), for which he was sentenced to two years and four months imprisonment.[10] That offence involved the Applicant entering a house at 3:15am whilst under the influence of both cannabis and MDMA with an intent to commit burglary. The homeowners were home at the time and called police. While in the dwelling, the Applicant poured a bottle of red wine on the floor, tore a security system off a wall and urinated in the loungeroom.[11] As a result of that same event, the Applicant was convicted of criminal damage or destruction (no penalty) and was also sentenced to serve a four-month cumulative term of imprisonment for the breach of his suspended sentence.[12]
[10] R2 G4-6.
[11] R2 G5;R3 p 5.
[12] R2 G4;G6.
On 21 October 2020, the Applicant was given notice that his Visa had been cancelled under s 501(3A) of the Act.[13] The Visa was cancelled on the basis that the Applicant had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was 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 Territory (ss 501(6)(a) and 501(7)(c)).
[13] R2 G7.
On 30 October 2020, the Applicant sought revocation of the Cancellation Decision.[14] He provided submissions letters and evidence in support of his request.[15]
[14] R2 G8.
[15] R2 G9-32.
On 19 May 2023, a delegate of the Minister decided, under s 501CA(4) of the Migration Act, not to revoke the visa cancellation decision.[16] The Applicant was notified of the decision by a letter delivered by hand dated 23 May 2023.[17]
[16] R2 G3(a).
[17] R2 G3.
On 24 May 2023 the Applicant sought review of the delegate’s decision in the Tribunal.[18]
[18] R2 G2.
THE HEARING AND THE EVIDENCE
The application was heard on 7 August 2023 and, by consent of the parties, the Tribunal delivered an oral decision with reasons to the parties on 9 August 2023 via Microsoft Teams.
The Applicant appeared in person and was represented on a pro bono basis by Mr R Vines of Counsel. The Respondent was represented by Mr A Burgess of Sparke Helmore Lawyers. Both representatives appeared in person on the first day of hearing.
The following documents were before the Tribunal:
(a)Applicant's Statement of Facts, Issues and Contentions dated 27 July 2023 including sentencing remarks of Lemonis DCJ (Exhibit A1);
(b)Applicant's signed statement dated 27 July 2023 including attachments A1, A2 and B (Exhibit A2);
(c)Signed statement of Adebayo Abdulkareem dated 26 July 2023 including attachments A, B and C (Exhibit A3);
(d)Respondent's Statement of Facts, Issues & Contentions filed 21 June 2023 (Exhibit R1);
(e)Section 501 G Documents filed 7 June 2023 (Exhibit R2);
(f)Tender Bundle Volume 1 filed 21 June 2023 (Exhibit R3); and
(g)Tender Bundle Volume 2 filed 19 July 2023 (Exhibit R4).
At the hearing, the Applicant made submissions, gave evidence and was cross-examined.
The Tribunal also took evidence from Adebayo Abdulkareem, the Applicant’s father.
The corrected transcript of the oral decision with reasons delivered to the parties on 9 August 2023 is as follows:
Oral Decision of Member Huntly [9.31 AM]
A hearing of the evidence of this application took place on 7 August 2023. To the extent that it is relevant, I incorporate those passages of the transcript of proceedings from that hearing into my reasons. In the event that it is of assistance to the parties, following delivery of my decision, I direct that the parties be given leave to request a copy of the transcript of the proceedings from the Tribunal’s Registry.
By consent of the parties, the following decision with reasons was delivered to the parties’ ex tempore by teleconference on 9 August 2023.
The Application
The Applicant seeks review of a decision of the delegate of the Respondent, the Minister, dated 19 May 2023 not to revoke the cancellation of his Class VE Subclass 176 Skilled ‑ Sponsored visa (Visa) under s 501CA(4) of the Migration Act. The Applicant’s Visa was cancelled on 21 October 2020 pursuant to section 501(3A) of the Migration Act (Cancellation Decision), on the basis that he had a substantial criminal record and was serving a full‑time custodial sentence of imprisonment.
In summary form, the Applicant’s record of criminal offending is as follows:
(a)On 24 September 2019, the Applicant was convicted of attempted armed robbery. He was sentenced in the District Court by Gething DCJ on 24 September 2019 to 19 months imprisonment. The Applicant’s period on remand of 11 months was treated has having been served. The remaining 8 months imprisonment was suspended for a period of 12 months.
(b)On 29 September 2020, the Applicant was convicted of the following offences:
(i)enter dwelling without consent with intent to commit offence, indictable Criminal Code (WA), for which he was sentenced to two years and four months’ imprisonment;
(ii)criminal damage occurring during the course of a burglary offence, no penalty was recorded;
(iii)breach of conditional suspended imprisonment order, a four‑month cumulative term of imprisonment added to the two years and four months; and
(iv)re-offending whilst subject to a conditional suspended imprisonment order for which no order was made.
This means that the Applicant has served a period of 31 months imprisonment in total.
The Applicant sought revocation of the Cancellation Decision on 30 October 2020 in the appropriate manner. He provided a personal circumstances form and evidence in support. However, as mentioned above, on 19 May 2023, a delegate of the Minister decided not to exercise the discretion under section 501CA(4) of the Migration Act to revoke the Cancellation Decision. This is the Reviewable Decision currently before the Tribunal.
The Applicant lodged his review application in the proper form on 24 May 2023 pursuant to section 501(1)(ba) of the Migration Act. This allows for applications to be made to the Tribunal for review of decisions of a delegate of the Minister made under section 501CA(4) of the Migration Act. Therefore, the application for review was lodged within the nine‑day period prescribed by section 500(6B) of the Migration Act. Accordingly, I am satisfied that the Tribunal has jurisdiction to determine the application.
Shortly before the hearing of the evidence, the Applicant was fortunate to secure the assistance of Mr Rex Vines of Counsel to represent him pro bono before the Tribunal. Notwithstanding the statutory time limits which are challenging in such matters, on short notice (with the forbearance and flexibility of Mr Burgess of Sparke Helmore for the Respondent), the hearing dates were adjusted to facilitate the fair and orderly hearing of the application. The Tribunal expresses its appreciation for the professionalism of these legal practitioners, together with thoughtfulness and thoroughness that each displayed in assisting the Tribunal at the hearing.
Section 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 day on which the applicant is properly notified in accordance with section 501G(1) of the Migration Act. Consequently, the 84‑day period started running on 24 May 2023. Owing to the present resourcing constraints within the Tribunal, I suggested to the parties that this decision might be delivered ex tempore, notwithstanding that the Tribunal may inform itself of its own procedures as it sees fit. I am nevertheless grateful to the parties for their consent to this abbreviated, but expeditious, manner of determining the application.
Issues for Determination
The issues before the Tribunal are twofold:
(a)Firstly, whether the Applicant passes the character test as defined by s 501(6) of the Migration Act; and,
(b)Second, if the Applicant does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked, and here I refer to section 501CA(4) of the Migration Act.
Background
The following facts are drawn from the statement of facts, issues, and contentions of both parties as elucidated at the hearing of the evidence and are agreed between the parties.
The Applicant is a 24‑year‑old citizen of South Africa born 21 December 1998. He last arrived in Australia on 13 August 2015 aged 16.
The Applicant’s biological parents separated when he was about 2 years old, around 2000, and he was taken to live an aunt-his mother’s sister. The Applicant’s father, Adebayo, moved to Johannesburg for work around 2000.
From around 2010, the Applicant’s father obtained custody of the Applicant as part of a new, blended family. From this point forward, the Applicant had little or no contact with the family of his biological mother.
The Applicant’s father moved to Australia on a Skilled Work visa in 2011. The Applicant moved to Zimbabwe at this time with his stepmother and stepsister. In 2012, the Applicant’s half‑brother was born in Zimbabwe. While in Zimbabwe, the Applicant assisted with many of the routine care responsibilities for his half‑brother.
In 2015, the Applicant, his stepmother, stepsister, and half‑brother joined the Applicant’s father in Australia as permanent residents under the visa that is being reviewed. He has not departed Australia since his arrival.
The Applicant’s father is now an Australian citizen.
In 2017, the Applicant dropped out of school. In 2018, the Applicant had a brief but significant relationship with a young woman which resulted in them expecting a child. The relationship did not last. The Applicant became itinerant and unemployed.
On 24 September 2019, the Applicant committed Offence 1 (attempted armed robbery). This involved attempting to rob a man who was walking in Forrest Chase in Perth while that man was taking his three‑year‑old son out for the day. After being rebuffed, the Applicant escalated his offending by producing a 15 centimetre long knife and threatening to cut the victim. He was again rebuffed and was shortly thereafter arrested by police. Following this offence, he was remanded into custody.
The Applicant remained on remand for 11 months prior to being sentenced by Gething DCJ. While in custody, the Applicant had a few visits from his former partner and his son. While the Applicant was in prison for Offence 1, the Applicant’s biological son was born in November 2018.
The Applicant was released from confinement on 24 September 2019 and placed on a 12‑month conditional suspended imprisonment order. This was in lieu of him serving the remaining eight‑month period of imprisonment to which he was sentenced by Gething DCJ. For a brief period after being released from custody, the Applicant and the mother of his son attempted a reconciliation and jointly cared for the child. The period of time over which the Applicant was a daily presence in that child’s life was approximately four months. Unfortunately, the relationship ended.
Around seven months into his 12‑month suspended imprisonment period, the Applicant committed the offences described for convenience here as Offence 2.
Offence 2 involved the Applicant entering a house at 3.15 am whilst under the influence of cannabis and MDMA with an intent to commit burglary. The homeowners were home in bed at the time, and called police. While at the property, after activating the alarm, the Applicant ripped the control unit from the wall. He also poured a bottle of red wine on the floor and urinated in the lounge room.
When the police attended and apprehended the Applicant, he was charged and eventually convicted of criminal damage or destruction. Before the Court, the Applicant was sentenced to no penalty on the criminal damage charge, Lemonis DCJ (as he then was), sentenced the Applicant to serve a four‑month term of imprisonment for the breach of his suspended sentence. This was cumulative to the index offence. As for the index offence of “enter dwelling without consent with intent to commit an offence (indictable), the Applicant was sentenced to two years and four months’ imprisonment, as I have already mentioned. The Applicant was not recommended for parole and he served his entire term of imprisonment.
While in prison, the Applicant managed to regain a point of contact with his former partner. He made genuine attempts to maintain what little contact he could with his son via telephone calls and FaceTime chats. This approach has continued while in administrative detention. The Applicant states that communication using this methodology has become more difficult since the mother of his son has re‑partnered.
On 21 October 2020, the Applicant was given notice that his visa had been cancelled under s 501(3A) of the Act on the basis that the Applicant had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was, ‘serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory’, section 501(6)(a) and 501(7)(c).

On his release from prison on 20 December 2022, the Applicant was taken into administrative detention pursuant to s 189 of the Migration Act.
The parties accepted the Tribunal’s characterisation of the Applicant as having been trauma-affected owing to the circumstances of his life. Beyond this, the specifics of the Applicant’s diagnostic history on which the Tribunal has had to rely include ephemeral references to ‘depression, episodic psychosis, sleep disturbance, substance abuse dependency, cognitive functioning issues, and past instances of self‑harm’ in documents contained in the Tender Bundles.
Further, the Applicant gave evidence that he is currently prescribed pharmaceutical interventions addressing sleep and mood regulation together with antipsychotic medication. He describes himself as being more in control of his thoughts and stabilised thanks to this medication regime and is insightful about how this regime has developed over time and how it requires careful monitoring. The Applicant referred to a recent interim diagnosis of schizoaffective disorder.
While in custody, the Applicant has engaged willingly in treatment for his mental health conditions and the evidence demonstrates that he has been proactive in seeking out the assistance of medical and counselling support professionals in managing what he states is his mental health condition.
These are the relevant facts presented to the Tribunal in this matter and they are not disputed by the parties.
Legislative Framework
Under the Migration Act the Minister is given powers to refuse or cancel visas on character grounds. In some circumstances, where a visa cancelled on character grounds, the Minister can exercise a discretion to revoke that cancellation decision. The power of cancellation and revocation generally involves a careful consideration of whether a person passes the character test, and where they do not, a separate consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.
The character test is set out in section 501(6) of the Migration Act and essentially deems that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly 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 subsection (7));
A substantial criminal record is relevantly defined in section 501(7)(c) 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
Under section 501(3A) of the Migration Act the Minister must cancel the visa of certain incarcerated persons where the Minister is satisfied the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
Additionally, under section 501(3A) of the Migration Act, the person must be, “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.” It is common ground between the parties that the Applicant fails the character test pursuant to s 501(3A). If a visa is cancelled under this subparagraph, the Minister must give the person a written notice inviting them to make representations about revocation of the Cancellation Decision.
If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the Cancellation Decision if satisfied that the person passes the character test; or, that there is another reason why the Cancellation Decision should be revoked. Making a revocation decision under s 501CA requires the decision‑maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and (only if satisfied that the person does not), to then decide under s 501CA(4)(b)(ii) if there is another reason why the Cancellation Decision should be revoked.
Direction 99
The Tribunal is required to form a state of satisfaction as to whether there is another reason why the Cancellation Decision should be revoked reasonably and on a correct understanding of the law (see: FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990, per Thawley J; and, Deng v Minister Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456, per Halley J.
By reason of s 499(2A) of the Migration Act, in so doing the Tribunal must comply with Directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.
Paragraph 5.2 of the Direction 99 sets out principles which must be taken into account by decision‑makers under ss 501 and 501CA of the Migration Act. These principles, “provide the framework within which decision‑makers should approach their task of deciding whether to … revoke a mandatory cancellation under s 501CA”, and I particularly note the following portions of paragraph 5.2:
(1)… Being able to come to or remain in Australia is a privilege Australia confers on noncitizens in the expectation that they are, and have been, law‑abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non‑citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should … cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. …
(4)Australia has a low tolerance of any criminal … conduct by … non‑citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to … revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non‑citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non‑citizen has spent in the Australian community, particularly in their formative years.
In making a decision under section 501CA(4), Direction 99 directs me to intellectually engage with five primary considerations and four other considerations.
Paragraph 7 provides that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Does the Applicant pass the character test?
As noted above, the character test is defined in s 501(6) of the Migration Act and I have discussed what this requires. It depends very much on whether or not a person has been sentenced to a term of imprisonment of 12 months or more.
The Applicant’s sentencing history has been identified above. The Applicant cannot meet the statutory character test, and I find accordingly.
Is there another reason why the cancellation decision should be revoked?
I must now determine whether, having regard to the primary and other considerations contained within Direction 99, there is another reason why the cancellation should be revoked.
The considerations in this application are finely balanced. The phrase ‘most of their life’ appearing in paragraph 5.2 of Direction 99, arguably, is a term with a fixed denotation capable of mathematical precision. However, I note the reference by Counsel for the Applicant to the admonition of Allsop CJ in Hands [2018], that:[19]
Mechanical formulaic expression and pre‑digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved.
[19] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225.
Due note is also taken of the recurring reference in paragraph 5.2 of Direction 99 to an applicant’s ‘formative years’, including its close association with the concept of ‘most of their life’ for the purposes of the whole consideration of this Applicant’s circumstances.
The evidence discloses that the Applicant completed his schooling (such as it was), came into adulthood, became a father, manifested a life‑changing mental health condition, and spent almost three years in prison in Australia.
In a very real sense, this can be said to connote most his life to this point, and I so find. While this finding does not direct my findings below, it nevertheless informs them.
Primary Considerations
The first primary consideration, protection of the Australian community from criminal or other serious conduct. [8.1]
Paragraph 8.1 of Direction 99 provides that when decision‑makers are considering the protection of the Australian community, they should have particular regard to protecting the Australia community from harm, and:
(a)the nature and seriousness of the non‑citizens conduct to date; and
(b)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 8.1.1
The Applicant’s Offence 1 carries a maximum sentence of 14 years’ imprisonment. The index offence for Offence 2 carries a maximum sentence of 20 years’ imprisonment. Few criminal offences known to the law have higher maximum sentences.
This, together with the impact on the Applicant’s victims and the community generally, marks the type of offending committed by the Applicant as most grave. It is not in contention between the parties that the Applicant’s offending was serious.
Based on the findings of fact made, and sentences delivered by Gething DCJ and Lemonis DCJ (as he then was), the Applicant’s offending was at the lower end of offending for such charges.
The Applicant demonstrates remorse and entered early pleas of guilty on both occasions. No trend can be discerned on the basis of two episodes of criminal behaviour, however, Offence 2 is arguably more serious than Offence 1. The Applicant’s conduct can perhaps best be described cumulatively as serious but episodic (see paragraph 8.1.1(1)(d) and (e)).
The Applicant committed Offence 2 while serving a conditional suspended imprisonment order for Offence 1. It matters little that, as the Applicant suggested at the hearing, he thought the house he broke into was abandoned. His conduct shows little regard for the rights and property of others, the orders of the Court, and the impact of his actions on others, whether known to him or otherwise.
There is no contention between the parties about those aspects of the relevant considerations relating to the nature and seriousness of the Applicant’s history of offending. The Applicant’s criminal conduct is very serious as this term is contemplated in paragraph 8.1.1 of Direction No. 99.
Risk to the Australian community should the non‑citizen commit further offences or engage in other serious conduct ‑ Paragraph 8.1.2
I am required to assess the nature of the harm that would be caused should the applicant engage in further criminal or other serious conduct. I am also required to assess the likelihood of reoffending. There must be a rational and probative basis for my assessment. (See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 11811 (per Moshinsky J); and Hambledon v Minister for Immigration and Border Protection [2018] FCA 7 (per Kenny J) both of whom require that the assessment of a risk of reoffending as requiring a rational and probative basis).
Nature of harm to individuals or the Australia community ‑ 8.1.2(2)(a)
As to the nature of the harm to the community if the Applicant were to repeat his past documented criminal conduct, any member of the public could be threatened or robbed, without warning, regardless of their particular vulnerabilities. People enjoying the quiet intimacy of their home could face the horror of home invasion, theft, defacement, or the destruction of valuable property and result in trauma. On this basis, given such a record of criminal and other offending by the Applicant, the Minister’s submission that any risk of reoffending is unacceptable has been made out.
The cumulative effect of the Applicant’s offending, although not prolonged or extensive, is serious and may well continue to be experienced by those directly affected potentially for years to come, regardless of any subsequent rehabilitation and reparations that may be effected by the Applicant into the future.
The likelihood of non‑citizen engaging in further criminal or other serious conduct ‑ Risk of Reoffending 8.1.2(2)(b)
The Respondent’s case in support of the contention that there is a real an unacceptable risk of the Applicant reoffending is well made. Counsel for the respondent has rightly pointed out that while on release for his first period of remand (an experience that many people would have found to be highly chastening), the Applicant has relapsed into unemployment, housing insecurity, poor mental health, substance abuse, and criminal offending.
Under cross‑examination the Applicant demonstrated a limited level of insight into the challenges he might face on release into the Australian community simply in meeting his basic personal goals and aspirations, even to a modest degree. If past experience is an indicator of future performance, there is little to argue with in the submissions of counsel for the Respondent.
Having said that, there is a further important consideration that emerged from the evidence discussed at the hearing. Namely, the Applicant’s mental health. The Applicant’s mental health issues have been treated effectively while he has been in custody. This has taken the form of psychiatric care, psychologist and counselling support. The Applicant’s mental health care journey has taken him from someone who has been pre‑contemplative of mental heath treatment to being a person who is engaged, self‑directed, and proactive about his mental health care needs.
He has also had the benefit of trialling a range of treatments under supervision. Taking one thing with another, the Applicant has developed a degree of acceptance of, and personal responsibility for, his disability and treatment needs that belie his youth.
Further, I had the opportunity to observe his conduct under cross‑examination. I was struck by the number of times the Applicant asked for some time to think before he answered questions. The community generally would be a qualitatively different place, for the better, if more males, young and not so young, responded in such a way when they are asked difficult or confronting questions (and I include myself in that observation).
Based on the evidence discussed above, I find that, in his own way, the Applicant has demonstrated significant insight and remorse for his offending conduct. That remorse appears to be informed by genuine concern for and desire to have a relationship with his son and his willingness to accept assistance from support services, including also from his father, from whom he was previously estranged.
There is the prospect of a stable place to live if he returns to the Australian community. His father, on examination, demonstrated a genuine desire to support the Applicant in his ongoing treatment and rehabilitation.
The Applicant has also demonstrated genuine insight into the way in which his past offending developed, including the contributing factors of mental health challenges and his resort to alcohol and drugs of addiction. The Applicant clearly acknowledges his ongoing treatment needs and has expressed the desire to be compliant with the recommendations of his doctors and counsellors. While these considerations do not amount to perfection, they are nevertheless real and substantial. These factors can only be regarded as protective.
Needless to say, the protection of the Australian community would be advanced by removing an offender with a history of serious offending such as that of the Applicant to another country. The consideration at paragraph 8.1.2 of Direction 99, being the risk to the Australian community should the Applicant commit further offences weighs, as it must, against revocation of the cancellation decision. The Minister submits that the Applicant presents a real and unacceptable risk of reoffending. This submission is balanced against the protective factors I have discussed above.
I find that the first primary consideration, being protection of the Australian community, weighs in favour of non‑revocation of the Cancellation Decision. I further find that this consideration should be lightly weighted.
Second primary consideration, family violence committed by the non‑citizen
Both parties were of the view that the second primary consideration, being family violence committed by the non‑citizen, is not relevant in the present case and I agree.
Third primary consideration, the strength, nature, and duration of ties to Australia ‑ Paragraph 8.3
Paragraph 8.3 of Direction 99 refers to any impact of the decision on the non‑citizen’s immediate family members in Australia, more weight to a non‑citizen’s ties to his or her child and or children who are Australia citizens, Australian permanent residents, and/or people who have the right to remain in Australia indefinitely.
Decision‑makers must also consider the strength, nature, and duration of any other ties, including the length of time the non‑citizen has resided in the Australia community, noting that considerable weight should be given to the fact that a non‑citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending.
The Applicant has an Australia citizen father and an Australia citizen son. He also has an Australian stepmother, and an older stepsister, and a half‑brother who are ordinarily resident in Australia based on the evidence before the Tribunal. The Applicant’s contact with his son has already been discussed. On that evidence, in the circumstances, the Applicant has a genuine, if somewhat distant, relationship with his son. He is sincere in his desire to maintain that relationship, including, if necessary, obtaining a formal contact order if that becomes necessary. This relationship has little or no practical future if the Applicant does not remain in Australia.
The Applicant is the only member of his Australian citizen father’s family with whom that person has an ongoing relationship. Although not elderly, the Applicant’s father has not enjoyed good health in recent years. The Applicant’s father is supportive of his troubled son, the Applicant. Both individuals appear willing and genuine about their intention to be mutually understanding and accepting of one another.
The opportunity for the Applicant to provide some practical support and companionship to his father is something very real and beneficial that only the Applicant can extend to his father as a son. The importance of the Applicant to his father is evidenced by the earnestness and energy that the Applicant’s father demonstrated by turning up for his son at the hearing and throughout the application process.
The Applicant made a genuine and meaningful contribution to the development of his half‑brother after his birth, until after their arrival in Australia as a family unit. Although estranged, there is little doubt that there can be no meaningful reconnection in the future between these two siblings unless the applicant remains in Australia.

I find that the third primary consideration, being the strength, nature, and duration of ties to Australia, weighs in favour of revoking the Cancellation Decision. I further find that this consideration should be moderately weighted.
Fourth primary consideration, the best interests of minor children in Australia affected by the decision ‑ Paragraph 8.4
Paragraph 8.4 of Direction No. 99 relevantly provides:
(1)Decision‑makers must make a determination about whether cancellation or refusal under section 501, or non‑revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
…
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a)the nature and duration of the relationship between the child and the non‑citizen. Less weight should generally be given where the relationship is non‑parental … and where there is no relationship … or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non‑citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)…
(d)the likely effect that any separation from the non‑citizen would have on the child, taking into account the child’s or non‑citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child …
At the time of this decision, the Applicant’s biological son is under the age 18. The Applicant’s former partner, who is the mother of his son, expressed no support on behalf of the Applicant’s review application. The inference was put to the Applicant by counsel for the Respondent that his former partner did not support his application to remain in Australia. The Applicant conceded this inference and I so find.
The Applicant’s son lives with his mother who has recently re‑partnered. The Applicant’s evidence is that this person objects to the Applicant being a part of the Applicant’s son’s life.
Given the importance of parental relationships to child development, facilitating positive, meaningful relationships between a child and their parent or parents is a basic requirement of society, the legal system, and the international community of nations. It is entirely consistent with the international Convention on the Rights of the Child to give considerable weight to the primacy of the relationship between the Applicant and his biological son.
Indeed, remedies are readily accessible to the Applicant through the Family Court of Western Australia (if he continues to reside in Australia), to secure access to his son because this is accepted as a basic right of a child and in their best interests so to do. The Applicant is clearly aware of this and has expressed a willingness to have resort to the Courts if an amicable access arrangement cannot be agreed by consent with the child’s mother. Such access would simply not be available to the Applicant if he were to return to South Africa.
I find that the fourth primary consideration, being the best interests of minor children in Australia affected by the decision weighs in favour of revoking the cancellation decision. I further find that this consideration should be moderately weighted.
Fifth primary consideration, the expectations of the Australian community ‑ Paragraph 8.5
Paragraph 8.5 of Direction No. 99 is about the expectations of the Australian community as a whole, and in this respect, the decision‑maker should proceed on the basis of the government’s views as articulated in paragraph 8.5 without independently assessing the community’s expectations in the particular case, and here I refer to the Minister’s Direction and note that this Direction lawfully and expressly applies to decisions made under s 501CA of the Act. The principles set out above from paragraph 5.2 of Direction No. 99, are also relevant to this consideration.
What I must do, however, is to determine the weight that should be given to this consideration. Some guidance in this regard is provided by paragraph 8.5(2) of Direction 99, which provides that the Australian community expects that the Australian Government can and should refuse entry to non‑citizens if they raise serious character concerns through their conduct in Australia or elsewhere where that conduct is of the kind listed in 8.5(2)(a) to (f) of Direction No. 99.
I find that significant weight must be placed on this consideration.
Other considerations
Paragraph 9 of Direction No. 99 sets out the other considerations to be taken into account.
Legal consequences of decision under section 501 or 501CA ‑ Paragraph 9.1
Both parties treated this consideration as not being relevant in the present case and I agree.
Extent of impediments if removed ‑ Paragraph 9.2
Paragraph 9.2 of Direction No. 99 provides relevantly:
(1)Decision‑makers must consider the extent of any impediments that the non‑citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non‑citizen’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
Counsel for the Applicant directed my attention to an Institute for Economics and Peace, Global Peace Index 2023, which was included in written submissions. I accept that this document demonstrates rates of violence, economic disadvantage and poor social cohesion in South Africa that are far below that of Australia.
I further accept submissions made on behalf of the Applicant that he has little or no familial or cultural support network to return to in that country. Nevertheless, while these submissions are meritorious, it would be a legal error for me to have regard to them here, in light of the specific requirements of Direction 99, and I have directed myself against such a course.
I accept that the Applicant may face some language barriers if he were to return to South Africa. It was accepted by the parties that English is a language generally in use in that country, and I find, therefore, that this issue of negligible weight in the present context.
Counsel for the Respondent drew my attention the fact that the applicant is adaptable, has had experience of living in a number of new and foreign environments, and that he would obtain some financial support from his father in Australia. Given that the Australian Dollar would have a higher buying power in South Africa, this could potentially place the Applicant in a positive situation compared to other young adults in that country.
I raised with counsel for the Respondent the fact that an initial period of dislocation on return, together with the challenges of becoming settled in South Africa, might put the Applicant in a mental health crisis. Counsel for the Respondent quite properly pointed out that I was required by paragraph 9.2 of Direction 99 to have regard to the ‘context of what is generally available to other citizens in that country’. I note, however, that in so doing, Direction 99 further requires me to ‘take into account the Applicant’s health and the medical support available to them’ in that country.
The United Kingdom Home Office Country Background Note for South Africa dated August 2022 states as follows:
A South African College of Applied Psychology article, ‘The Shocking State of Mental Health in South Africa in 2019’, dated 21 August 2019, stated:
‘As many as one in six South Africans suffer from anxiety, depression, and substance abuse problems, and this did not include more serious conditions, such as bipolar disorder or schizophrenia, according to statistics released by South African Depression and Anxiety Group, SADAG. Yet, despite the acute need for South Africa’s mental health (indistinct) resources are wholly unequipped to handle the burden placed on them.
SADAG claims that less than 16 per cent of sufferers receive treatment for mental illnesses. ‘The primary burden of mental health care falls on community‑based providers’, says Chambers. Clinic support groups, even lay counsellors and community leaders are having to step in where institutionalised health is not available. Only 27 per cent of South Africans reporting severe mental illness ever receive treatment. This means that nearly three‑quarters of these sufferers are not accessing any form of mental health care at all.’
I am required to take into account the Applicant’s health and the medical support available to him in that country in the sense of being accessible. I find that on return to South Africa, the Applicant is likely to become symptomatic of his psychiatric disorders and would be unlikely to be able to access any form of treatment for these within a reasonable period. As a result it is probable that he would be incapable of establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country.
Accordingly, I find that the second other consideration, being the extent of impediments if removed, weighs in favour of revoking the cancellation decision. I further find that this consideration should be moderately weighted.
Impact on victims ‑ Paragraph 9.3
Both parties treated this consideration as not being relevant in the present case, and I agree.
Impact on Australian business interests ‑ Paragraph 9.4
Both parties treated this consideration as not being relevant in the present case, and I agree.
The Weighing Exercise
Direction 99 guides the decision‑maker on how to apply the primary and other considerations. Paragraph 7 of Direction 99 sets out the way in which relevant considerations are to be taken into account. A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken in the context of earlier ministerial directions issued under section 499 of the Migration Act. The same considerations apply to the exercise required by Direction 99, which is materially in the same terms as those under early ministerial directions.
In general terms, I have adopted the approach suggested by judgments in the case of Suleiman v Minister for Immigration and Border Protection; and the Full Court judgment in Minister for Home Affairs v HSKJ.
Summary
Primary considerations
Primary consideration 1.
For the reasons given above, the first primary consideration, being protection of the Australian community, weighs in favour of non‑revocation of the Cancellation Decision. I further find that this consideration should be lightly weighted.
Primary consideration 2.
The second primary consideration, being family violence committed by the non‑citizen, is not relevant in the present case.
Primary consideration 3.
For the reasons given above, the third primary consideration, being the strength, nature, and duration of ties to Australia, weighs in favour of revoking the Cancellation Decision. I further find this consideration should be moderately weighted.
Primary consideration 4.
For the reasons discussed already, the fourth primary consideration, being the best interests of minor children in Australia affected by the decision, weighs in favour of revoking the Cancellation Decision. I further find that this consideration should be moderately weighted.
Primary consideration 5.
For the reasons set out above, the fifth primary consideration, being the expectations of the Australian community, weighs against revocation of the Cancellation Decision. I further find that significant weight must be placed on this consideration.
Other considerations
Legal consequences of the decision.
For reasons I have already discussed, this consideration is not relevant in the present case.
Extent of impediments.
With respect to second other consideration, being the extent of impediments if removed, this weighs in favour of revoking the Cancellation Decision. This other consideration should be given moderate weight.
Impact on victims.
This consideration is not relevant in the present case.
Impact on Australian business interests.
As described in the Direction, this consideration is not relevant in the present case.
Conclusion
Having weighed the relevant considerations in favour of the revocation of the Cancellation Decision and the relevant considerations against the revocation of the Cancellation Decision, the Tribunal finds that the considerations in favour of the revocation of the Cancellation Decision outweigh the considerations against the revocation of the Cancellation Decision.
Accordingly, the Tribunal finds that the discretion to revoke the reviewable decision, being the Cancellation Decision, should be exercised in favour of the Applicant.
The time is 10.20 am on 9 August 2023 (AWST).
DECISION
The reviewable decision, being the decision of a delegate of the respondent dated 19 May 2023, is set aside and substituted with a decision that the cancellation of the applicant’s visa be revoked under section 501CA(4)(b)(ii) of the Migration Act

I certify that the preceding 135 (one hundred and thirty five) paragraphs are a true copy of the reasons for the decision herein of Member Dr Huntly

................[Sgd]........................................................
Associate
Dated: 20 December 2023

Dates of hearing:
7 and 9 August 2023

Applicant: Mr Rex Zines of Counsel

Counsel for the Respondent: Mr A Burgess, Sparke Helmore Lawyers

[2023] AATA 4212

20 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Appeal

Natural Justice

Dates of hearing:	7 and 9 August 2023
Applicant:	Mr Rex Zines of Counsel
Counsel for the Respondent:	Mr A Burgess, Sparke Helmore Lawyers