Aitchison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 2422

Aitchison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2422 (22 July 2020)
Division:GENERAL DIVISION
File Number: 2020/2565
Re:Martin Aitchison
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:22 July 2020
Place:Melbourne

The decision under review is affirmed.
.....[sgd]............................................................
Senior Member A. Nikolic AM CSC
MIGRATION – Mandatory visa cancellation – citizen of New Zealand – Class TY Subclass 444 Special Category (Temporary) visa – failure to pass good character test – obtain financial advantage by deception – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – risk of recidivism in older offenders – international non-refoulement obligations considered – multiple medical conditions – extent of impediments if removed – implications of COVID-19 – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Complementary Protection) Bill 2011 (Cth)
Migration Regulations 1994 (Cth)
CASES
Ali v Minister for Home Affairs [2020] FCAFC 109
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
Director of Public Prosecutions v Aitchison [2015] VCC 225
Falzon v Minister for Immigration and Border Protection [2018] 351 ALR 61
FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294
FYBR v Minister for Home Affairs [2020] HCA 056
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hili v The Queen (2010) 242 CLR 520
Ibrahim v Minister for Home Affairs [2019] FCAFC 89
Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461
Aitchison v The Queen [2015] VSCA 348
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Minister for Immigration and Citizenship v Obele [2010] FCA 1445; (2010) 119 ALD 358
Murphy v Minister for Home Affairs [2018] FCA 1924
Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569
Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 304 ALR 535
SZDCD v Minister for Immigration and Border Protection [2019] FCA 326
SZTAL v Minister for Immigration and Border Protection & Anor (2017) 262 CLR 362
SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39; (2015) 145 ALD 577
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 162 ALD 13
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501C
Direction No 75 - Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
James Hathaway and Michelle Foster, The Law of Refugee Status, (Cambridge University Press 2^nd edition, 2014)
Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (Oxford University Press, 3^rd ed, 2013)
Jason Payne, Recidivism in Australia: findings and future research (Research and Public Policy Series No 80, 2005)
Kim Steven Hunt and Bill Easley II, The Effects of Aging on Recidivism Among Federal Offenders (Report, December 2017)
US Department of State, 2018 Country Reports on Human Rights Practices: New Zealand (Annual Report, 2018)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
22 July 2020

The applicant, Mr Martin Aitchison, seeks review of a decision by a delegate of the respondent, made under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (“the visa”), which he had previously held since 28 October 2011.[1]
[1] Exhibit R1, 114.
The hearing was held in Melbourne on 14 July 2020. Mr Aitchison was represented by Mr Aleksov of counsel instructed by WLW Migration Lawyers. The Minister was represented by Ms Law of Clayton Utz Lawyers.
For the following reasons the Tribunal affirms the decision under review.
BACKGROUND FACTS
Mr Aitchison is a 69-year old citizen of New Zealand who first arrived in Australia in April 1989 when 38 years of age.[2] He has departed Australia on 13 occasions since for absences of up to two weeks in duration but has otherwise resided in Australia continuously for the past 30 years.[3]
[2] Ibid, 113.
[3] Ibid, 112-113.
Mr Aitchison married his third wife in January 1995,[4] who the Tribunal shall refer to hereafter as “AA.” This was also the third marriage for AA, who is an Australian citizen[5] and has two adult children from her first marriage.
[4] Ibid, 78.
[5] Ibid, 79.
The following is disclosed by Mr Aitchison’s Criminal History Check, dated 25 November 2019,[6] and other evidence:
(a)On 17 February 2015, Mr Aitchison was convicted on three charges of ‘Obtain a financial advantage by deception,’ and a single charge of ‘Attempt to obtain a financial advantage by deception.’ He was awarded a total effective sentence of eight years imprisonment, to be released after serving five years.[7] The Court ordered him to ‘make reparation to the Commissioner of Taxation in the amount of $5,853,709.’[8] Mr Aitchison’s application for leave to appeal his sentence in the Victorian Court of Appeal was refused on 15 December 2015.[9] His 2016 application for special leave to the High Court of Australia was dismissed on the basis it ‘would have no prospects of success.’[10]
(b)In 1994 Mr Aitchison was prosecuted on eight charges of ‘Dishonestly obtain a financial advantage’ and six charges of ‘Stealing,’ relating to his employment with a freight and transport company in Tasmania (“Tasmanian prosecution”).[11] All of the stealing and seven of the ‘Dishonestly obtain financial advantage’ charges were dismissed. The Hobart Magistrates’ Court granted Mr Aitchison a conditional discharge on the remaining ‘Dishonestly obtain a financial advantage’ charge, on condition he ‘be of good behaviour for a period of two years and come up for conviction and sentence if called upon.’[12]
[6] Ibid, 25-26.
[7] Director of Public Prosecutions v Martin Aitchison [2015] VCC 225, 13 [82]; Exhibit R1, 41 [82].
[8] Exhibit R1, 42 [84].
[9] Martin Aitchison v The Queen [2015] VSCA 348; Exhibit R2, 14-15; 146-179.
[10] Exhibit R1, 130.
[11] Exhibit R2, 96-103; 112-113.
[12] Exhibit R1, 26.
On 4 September 2019, while still imprisoned, Mr Aitchison’s visa was mandatorily cancelled on character grounds under s 501(3A) of the Act.[13] He made representations to have the cancellation decision revoked,[14] supported by a submission from Refugee Legal.[15] Mr Aitchison was released from prison on 3 February 2020 and taken into immigration detention where he presently remains.[16]
[13] Ibid, 114-124.
[14] Ibid, 53-94.
[15] Ibid, 95-104.
[16] Ibid, 15 [11]; 59.
On 29 April 2020, another delegate of the respondent declined to revoke the visa cancellation.[17] On 4 May 2020 Mr Aitchison asked the Tribunal to review that decision.[18]
[17] Ibid, 9-10; 207.
[18] Ibid, 3-8.
Pursuant to s 500(6L) of the Act, the Tribunal must discharge its review function in respect of this application by 22 July 2020.
APPLICABLE LEGISLATION
The term ‘non-refoulement obligations’ is defined at s 5(1) of the Act, as:
‘non-refoulement obligations includes, but is not limited to:
(a) non-refoulement obligations that may arise because Australia is a party to:
(i) the Refugees Convention; or
(ii) the Covenant [International Covenant on Civil and Political Rights]; or
(iii) the Convention Against Torture; and
(b) any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).’
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review decisions under s 501CA.
Section 36 of the Act provides:
(2)       A criterion for a protection visa is that the applicant for the visa is:
…
(aa)         a non-citizen in Australia … in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;
…
(2A)     A non-citizen will suffer significant harm if:
(a)          the non-citizen will be arbitrarily deprived of his or her life; or
(b)          the death penalty will be carried out on the non-citizen; or
(c)          the non-citizen will be subjected to torture; or
(d)          the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)          the non-citizen will be subjected to degrading treatment or punishment…
…
(2B)         However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
…
(c)          the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and refers to a range of character matters that the Minister or their delegate may have regard to in deciding whether to revoke a mandatory visa cancellation. Section 501(6)(a) of the Act provides:
(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)); or …
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record for the purposes of the character test, including if the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
Under s 501CA(3) of the Act, the Minister is obliged, as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and to invite them to make representations about revoking the original cancellation decision. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test as defined by s 501, or there is another reason why the original decision should be revoked.
Direction No. 79
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Minister has done so in the form of Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”). The Tribunal is obliged to apply the Direction because of s 499(2A) of the Act.[19]
[19] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, 9 (Collier, Flick and Perry JJ).
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Clause 6.1 of the Direction sets out several objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’
By way of general guidance, cl 6.2 of the Direction provides that:
(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) ….
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to…revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered…in making a revocation decision are identified in Part C of this Direction.
The principles referred to in the Preamble of the Direction are reproduced below and constitute a framework within which relevant considerations are applied:
6.3 Principles
(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.
Clause 7(1)(b) of the Direction provides that, in cases relating to the mandatory cancellation of a visa, a decision-maker ‘…must take into account the considerations in Part C …’, with the following primary considerations at cl 13(2) of the Direction applied:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Clause 14(1) of the Direction requires that other considerations to be taken into account 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.
Clause 8(2) of the Direction states that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Clause 8(3) of the Direction states that ‘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.’
Clause 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’
Clause 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another [2016] 241 FCR 461 at [57] and [78]:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
DOES MR AITCHISON PASS THE CHARACTER TEST?
By virtue of his convictions in February 2015 and the effect of ss 501(6)(a) and 501(7)(c) of the Act, the Tribunal finds Mr Aitchison does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation of his visa.
ISSUE TO BE RESOLVED
It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the mandatory visa cancellation should be revoked. The task of identifying ‘another reason’ was elaborated upon by the Full Court of the Federal Court of Australia in Viane v Minister for Immigration and Border Protection [2018] 162 ALD 13 per Colvin J at [64]:
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
EVIDENCE
The following was tendered into evidence:
(a)A volume of documents lodged by the respondent titled ‘Section 501 ‘G’ Documents,’ numbering 207 pages;[20]
[20] Exhibit R1.
(b)A further volume of documents lodged by the respondent titled ‘Supplementary Section 501 ‘G’ Documents,’ numbering 190 pages;[21]
[21] Exhibit R2.
(c)A nine-page statement dated 22 June 2020 by Mr Aitchison,[22] who gave oral evidence and was cross-examined;
[22] Exhibit A1.
(d)A six-page statement dated 22 June 2020 by AA,[23] who gave oral evidence and was cross-examined;
[23] Exhibit A2.
(e)A five-page statement dated 22 June 2020 by Mr Aitchison’s step-daughter, who is AA’s child from a previous relationship, and who the Tribunal will refer to hereafter as “LD.” Attached to LD’s statement is a letter dated 29 June 2020 from general practitioner, Dr Danuta Pucilowski, regarding medical conditions suffered by LD.[24] LD gave oral evidence and was cross-examined;
[24] Exhibit A3.
(f)A four-page statement dated 22 June 2020 by Mr Aitchison’s son-in-law, who the Tribunal will refer to as “ND.” [25] ND is still married to LD, but they are separated. ND gave oral evidence and was cross-examined;
[25] Exhibit A4.
(g)A six-page statement dated 22 June 2020 by Mr Aitchison’s step-granddaughter,[26] who the Tribunal will refer to as “HR.” Attached to HR’s statement are hospital discharge summaries dated 31 December 2015, and 5 and 29 March 2016. HR gave oral evidence and was cross-examined;
[26] Exhibit A5.
(h)A seven-page statement dated 22 June 2020 by another of Mr Aitchison’s step-granddaughters,[27] who the Tribunal will refer to as RR. RR gave oral evidence and was cross-examined;
[27] Exhibit A6.
(i)Four single-page statements from former work associates and friends of Mr Aitchison, variously referring to his offending as ‘out of character,’ and to him as ‘fair’, ‘considerate,’ ‘reliable,’ ‘generous,’ ‘amicable,’ ‘trustworthy,’ ‘respected,’ ‘asset to the community,’ ‘easy to get along with,’ ‘remorseful,’ of ‘good character,’ and possessing a ‘vast knowledge of mechanical issues.’[28] These witnesses were not called to give evidence and could not be cross-examined;
[28] Exhibits A7-A10.
(j)A Statutory Declaration by Ms Samantha Smith dated 19 June 2020, who is Mr Aitchison’s solicitor. The Declaration is to the effect that Ms Smith had ‘called Work and Income New Zealand to inquire about entitlements and housing for senior citizens returned to New Zealand from Australia.’[29] Eight points are listed about entitlements to housing, New Zealand income support payments, and medical support arrangements. Reference is also made to the way AA’s Australian pension may be treated if she relocated to New Zealand;
[29] Exhibit A11.
(k)A letter from general practitioner Dr Manju Salaria dated 3 June 2020, regarding treatment being received by one of Mr Aitchison’s step-granddaughters, and opinion that ‘most of [her] medical problems have worsened due to Martin’s case.’[30] Dr Salaria was not called to give evidence and could not be cross-examined;
[30] Exhibit A12.
(l)A letter from general practitioner Dr Jillian Thompson dated 12 June 2020, regarding treatment received by one of Mr Aitchison’s step-granddaughters.[31] Dr Thompson was not called to give evidence and could not be cross-examined;
[31] Exhibit A13.
(m)A letter from general practitioner Dr Danuta Pucilowski dated 7 June 2020, regarding consultations with AA.[32] Dr Pucilowski was not called to give evidence and could not be cross-examined;
[32] Exhibit A14.
(n)A letter dated 28 May 2020 regarding the employment of RR;[33]
[33] Exhibit A15.
(o)A letter dated 9 June 2020 regarding a medical condition suffered by RR and her participation in a treatment trial;[34]
[34] Exhibit A16.
(p)A letter from the Managing Director of a transport company dated 16 June 2020, stating he would ‘consider Martin for employment with our company in the future providing there was a position available;’[35]
[35] Exhibit A17.
(q)A bundle of documents encompassing 16 media articles dated between 17 May 2016 and 6 July 2020, regarding the availability of government housing and health services in New Zealand as follows:[36]
[36] Exhibit A18.
(i)An online article from National Politics dated 6 July 2020 titled ‘Waitlist for public housing hits new record as Coronavirus economic crash bites;’
(ii)An online article from Stuff.co.nz dated 11 March 2020 titled ‘As motels close doors to emergency guests people are being forced into tents;’
(iii)An online article from Stuff.co.nz dated 28 February 2020 titled ‘Marlborough couple’s struggle to find a permanent home;’
(iv)An online article from The Guardian dated 19 February 2020 titled ‘They allowed the perfect storm: UN expert damns New Zealand’s housing crisis;’
(v)An online article from RNZ News dated 14 February 2020 titled ‘Housing crisis: I’m scared my kids are going to live that same struggle;’
(vi)An online article from The Guardian dated 29 November 2019 titled ‘Families living in tree huts as New Zealand housing crisis bites;’
(vii)An online article from the NZ Herald dated 2 August 2019 titled ‘Retired and living in a tent: Housing crisis for the elderly revealed in Southland’s man plight;’
(viii)An online article from The Guardian dated 28 January 2019 titled ‘New Zealand housing crisis: just 47 ‘affordable’ homes built in six months;’
(ix)An online article from Stuff.co.nz dated 9 August 2018 titled ‘Older people forced to sleep in car as housing crisis bites;’
(x)An online article from RNZ News dated 6 August 2018 titled ‘Looming housing crisis for over 65s – Retirement Commissioner warns;’
(xi)An online article from The Standard dated 13 April 2018 titled ‘Homeless families are living in cars…and tents;’
(xii)An online article from Stuff.co.nz dated 22 March 2018 titled ‘Health rationing possible in the face of looming diabetes rates;’
(xiii)An online article from The Conversation dated 20 September 2017 titled ‘New Zealand’s health service performs well, but inequities remain high;
(xiv)An online article from Stuff.co.nz dated 31 August 2016 titled: ‘New Zealand’s declining health care system is slipping behind other countries;
(xv)An online article from Stuff.co.nz dated 24 May 2016 titled ‘Residents rack up emergency accommodation debt with Work and Income;’ and
(xvi)An online article from The Guardian dated 17 May 2016 titled ‘New Zealand housing crisis forces hundreds to live in tents and garages.’
(r)Certificates relating to Mr Aitchison’s attendance on a Peer Listener Training Program dated 23 December 2015, a Schools Program in 2016 and 2017, and a ‘6 hour Stress Management Program;’[37]
(s)Curriculum vitae, Mr Martin Aitchison;[38]
(t)Photocopies of pensioner concession cards for AA and LD;[39]
(u)Report of forensic psychologist Ms Carla Ferrari dated 14 June 2020;[40]
(v)IHMS Medical Records comprising four pages;[41]
(w)Eight-page online information pamphlet from Diabetes New Zealand;[42]
(x)Two-page online document from Work and Income New Zealand titled: ‘Deported to New Zealand.’[43]
[37] Exhibit A19.
[38] Exhibit A20.
[39] Exhibit A21.
[40] Exhibit A22.
[41] Exhibit A23.
[42] Exhibit A24.
[43] Exhibit A25.
National Criminal History and sentencing remarks

Mr Aitchison does not dispute the accuracy of his criminal record, or the sentencing remarks from the County Court of Victoria dated 17 February 2015 (“2015 sentencing remarks”). These state in part:
‘1. Martin Aitchison, you have pleaded guilty to three charges of obtaining a financial advantage by deception from a Commonwealth entity, and one charge of attempting to do so, all of which offences carry a maximum sentence of 10 years' imprisonment.
…
4. In 2005, you set up a company, Aitchison Heavy Haulage Proprietary Limited (AHH) and a trust....
5. Between October 2008 and January 2013, the Trust lodged 18 Business Activity Statements (BAS) prepared by you, fraudulently claiming refunds for fuel purchased by AHH in vast amounts. A total of $5,853,709 was paid by the Australian Tax Office (ATO) into a bank account in the name of The Trustee for the Aitchison Family Trust…This represents the financial advantage to you which was dishonestly obtained by your deception over three periods of time in four years (Charges 1-3), with an attempt to obtain a further financial advantage on a fourth occasion after that (Charge 4).
…
16. The reality was that you were not involved in a company with up to 200 trucks; you were working for yourself, and had one truck and a trailer for hauling heavy machinery, both purchased through finance.
17. You spent the money you fraudulently obtained on business expenses and on supporting family members, which on the one hand could be said not to be using the money to live a luxurious lifestyle. On the other hand, during this period, your expenses far outweighed your funds, even though you were working very long hours as a truck driver, as well as receiving these very substantial refunds. To that extent, you were not living a modest lifestyle.
18. Indeed, you sold the house you and your wife lived in and with the proceeds of that sale and your fraud on the ATO, you bought a large home for the extended family to live in, as well as a 2004 Mercedes for your wife, a houseboat, two jet skis, a property on the Gold Coast and a house in New Zealand for your ill sister and her husband. You also set up another company, American Dream Machines Pty Ltd and purchased classic cars and parts from the USA to refurbish and sell as a form of superannuation.
19. The offences are very serious indeed. Not only did you defraud the ATO and cause nearly $6 million loss in revenue to the Australian Government, money that would otherwise be used to fund services for other Australians, but you also misled your family, who apparently thought that you could afford all this largesse on a hard-working truck driver's salary.
20. The liquidation has not provided full reparation of your dishonestly obtained funds, and you and your wife have lost everything you legitimately built up in your life together before 2005...
21. The offences are aggravated by the fact that you continued your criminal activity after the requests were made for documentation, you supplied false documentation on two occasions, and you made false statements to the auditor in a futile attempt to avoid the exposure of your criminal activity...
22. You committed these offences at the ages of about 59 to 62 years, the first time you had been involved in crime. The question arises: how could a man commit such serious offences after leading an exemplary life to that point?
23. Your counsel put forward explanations, which he carefully stated were not excuses, arising from your circumstances leading up to the offending: viz. that you were personally and financially under stress, and that once you had successfully defrauded the ATO in the first period, you found it allowed you to do all the things you wanted to do for your family, and you continued the criminal activity...
…
35. As I previously said, the choices you made in spending the money you fraudulently obtained were not the most modest choices you could have made in helping out your family. While you may have had their interests at heart when you began committing the offences, I am satisfied that you demonstrated a level of greed, both by the type of expenditure, and the continuation of the offending.
36. There are a number of matters that I must take into account in your favour.
37. First, I take into account that you pleaded guilty to these offences and that you did so at an early stage of the prosecution. By your plea, you have saved the community the cost of a trial, and have facilitated the course of justice.
38. Next, I accept that by your early plea, you have shown contrition for your offending. You also showed contrition by voluntarily going into liquidation in an attempt to make reparation for the loss to the Commonwealth. The process of liquidation was described by you as 'living punishment' and by your counsel as a harrowing existence, and I accept that it has not been an easy process for you and the family. It realised about $2m, with the liquidator’s fees yet to be deducted, and so will fall far short of full reparation. I also accept the letter you wrote to the court as a sign of your contrition...
39. Next, I take into account that you are now aged 64 years, and that you continue to suffer from depression as well as the physical health problems I referred to before, other than obesity...
40. …Dr Sullivan formed the likely diagnosis of recurrent depressive disorder, mild to moderate in severity. He reported that you had not persisted with medication,…Dr Sullivan was of the view that given your age, ill health and persistent mood disorder, it is likely that you will find imprisonment more burdensome than if you were in good mental health.
…
42. You have no prior convictions and I accept that before these offences were committed, your general reputation in the community was good. I therefore sentence you as a person of previous good character. However, as noted in many cases, whilst previous good character remains of relevance, it does not shift the main considerations in sentencing for white collar crime from general deterrence and denunciation, because people who commit these types of crimes usually can do so because of their good character and reputation.
43. Because of your age, and the remorse you have shown…I am satisfied that the chances of your rehabilitation are very good, and the risk that you will re-offend very low.
…
53. These are serious offences…I intend to impose a total effective sentence of 8 years' imprisonment. Because of your very good prospects of rehabilitation with almost no risk of re-offending, I have decided that a recognisance release order is appropriate, and I propose to order your release on recognisance to be of good behaviour after 5 years.
82. That makes a total effective sentence of 8 years' imprisonment. I direct that you be released on a recognisance release order after serving 5 years to be of good behaviour for three years, in the recognisance amount of $2000.
…
84. I order that you make reparation to the Commissioner of Taxation in the amount $5,853,709…’[44]
[44]Director of Public Prosecutions v Aitchison [2015] VCC 225.
Mr Aitchison’s evidence
Mr Aitchison adopted his statement dated 22 June 2020 as true and correct. The Tribunal also notes an earlier statement in evidence dated 15 January 2020.[45]
[45] Exhibit R1, 105-108;
Tasmanian prosecution 1994-95
Mr Aitchison could not recall which of the charges during the Tasmanian prosecution resulted in a conditional discharge from the Hobart Magistrates Court. He was referred to a prosecution summary by Tasmania Police,[46] appearing to show it related to an incident where he had locks supplied and fitted to his personal residence, for which he raised and signed purchase orders from his former employer. Mr Aitchison recalled raising the purchase order but claimed he provided the Court with a receipt for the locks. He said it was ‘common practice’ to use company purchase orders to procure discounts from suppliers for work at private homes. When asked if he considered the criminal conduct he engaged in between 2008 and 2013 was an escalation in seriousness compared to his conduct in Tasmania in 1994, Mr Aitchison disagreed. He claimed the Tasmanian prosecution was ‘brought maliciously’ by a former employer, describing the charges as ‘invalid.’ He stated ‘99% of them were shown to be irrelevant and spurious. It was purely done to annoy me.’
[46] Exhibit R2, 98-99.
Mr Aitchison was asked why there was no reference to the Tasmanian prosecution in the report prepared by consultant psychiatrist Dr Danny Sullivan for the Court in 2014, which instead stated Mr Aitchison had ‘denied previous contact with the criminal justice system.’[47] Mr Aitchison agreed this was not correct, claiming he had forgotten about the Tasmanian prosecution by the time of his consultation with Dr Sullivan. He claimed that details about the Tasmanian prosecution were presented to the Court, but agreed they were not referred to by Her Honour during sentencing, who instead contextualised the 2008-2013 offending as Mr Aitchison’s ‘first’ involvement in crime.
[47] Ibid, 74 [30].
2015 Convictions
Mr Aitchison did not dispute the summary recorded in the indictment.[48] He agreed that he used some of the fraudulently obtained funds to pay down the mortgage of his house and a loan on a houseboat, to establish a company called American Dream Machines that restored cars, to buy his sister and brother-in-law in New Zealand a house, and to purchase a jet ski.
[48] Ibid, 37-48.
Mr Aitchison said he ‘initially offended’ because his father in New Zealand was diagnosed with dementia and he could not afford to ‘fly home’ because of his ‘bills.’ After this he claimed to have ‘got on a cycle and couldn’t get off.’ Mr Aitchison said while his parents were alive, he travelled ‘home every three or four months.’ He discovered that his sister ‘robbed’ their parents after their father’s diagnosis, and ‘conned’ him into giving her a power of attorney. She purportedly ‘emptied’ their parent’s bank accounts[49] and ‘wasted’ the proceeds. When asked why he had purchased his sister a house after such conduct and despite claiming their relationship ‘had never been very good,’ Mr Aitchison responded: ‘because blood is thicker than water…I dislike her as a person but I love her as a sister.’ He said that during a subsequent visit to New Zealand he discovered his sister living in ‘abject circumstances’ and felt obliged to buy her a house because she was family and he was ‘brought up better than that’. He also paid off her debts, which he estimated as approximately $30,000, because people were ‘knocking on her door’ and asking for repayment.
[49] Exhibit A1, [50].
When asked about AA’s statement that he told her his offending was because he wanted to see his family members happy,[50] Mr Aitchison said her recollection was ‘accurate.’ He stated: ‘even today I have trouble explaining why I did what I did. All I know is it will never happen again.’
[50] Exhibit A2, 4 [39].
Mr Aitchison agreed the sentencing judged made a reparation order for $5,853,709, and only approximately $2 million was recovered following seizure of his assets. When asked about any intentions to repay the outstanding amount in future, Mr Aitchison said he had nothing, adding: ‘It’s a bit hard to repay it when I’m in here.’ When asked if his offending showed a blatant disregard for an important Australian institution (the Australian Tax Office), Mr Aitchison responded: ‘No I wouldn’t agree – at the time yes, now no.’ Mr Aitchison also disagreed he was trying to downplay his offending by referring to the absence of any violence in his conduct.
Contribution to Australia and community expectations
When asked if he had made a positive contribution to Australia, Mr Aitchison responded: ‘Yes, I believe I have,’ citing contributions through work, paying taxes and employing others. He cavilled at the suggestion that the severity of his offending outweighed any positive contribution. When pressed about his offending, Mr Aitchison agreed it ‘was bad and had an impact on the Australian community,’ but considered the ‘Australian community has a capacity to forgive.’
Risk
Mr Aitchison was asked about his risk of reoffending if confronted by similar contextual circumstances. This included his explanation at paragraph 44 of his statement where he attributed his offending as partly a response to not being able to ‘afford [his] family’s needs.’ At paragraph 45 he referred to a client owing him money, and at paragraph 54 he expressed an intention ‘to stop’ but could not do so because he had ‘dug [himself] into a hole.’ Mr Aitchison disagreed that any comparable circumstance would arise in future. He said that after five-and-a-half years of reflection while imprisoned, there was ‘no way [he’d] do that again – ever.’ He referred to protective factors like family support, stable accommodation, and realistic prospects of employment.
Non-refoulement
When asked why he had not previously made non-refoulement claims in his revocation representations, or the submission lodged on his behalf by Refugee Legal earlier this year, Mr Aitchison responded: ‘One accepts the advice of your legal team.’ When asked to elaborate, Mr Aleksov objected, citing legal professional privilege, which the Tribunal accepted. When asked if he had previously lodged a Protection Visa application, Mr Aitchison said he had not and was unaware he could until the Tribunal raised it. At this point the Tribunal asked the parties whether there was any dispute Mr Aitchison could apply for a Protection Visa, which was not disputed.
When asked to elaborate on submissions in the Applicant’s Statement of Facts, Issues and Contentions (“ASFIC”) that he may be arbitrarily deprived of his life if returned to New Zealand, Mr Aitchison stated: ‘If I go back to New Zealand I would have extreme trouble finding a job and would be reliant on the old age pension.’ He claimed that his pension entitlement in New Zealand would be $400 per week, which would be entirely committed to rental accommodation averaging $400 per week. This meant he would have no funds for medications or daily necessities. When asked what his claim about accommodation costs was based on, Mr Aitchison responded: ‘My research on average accommodation costs in New Zealand.’ When asked if he was entitled to some form of government housing, Mr Aitchison agreed he was, but claimed there was a 10-year wait after applying, which he had learned from a telephone call ‘about three weeks ago’. When asked who he had spoken to, Mr Aitchison responded: ‘I couldn’t tell you.’ When asked why he believed he would have ‘extreme trouble’ finding a job, Mr Aitchison said New Zealand had a higher unemployment rate than Australia and it would be ‘virtually impossible’ for him to find work at his age and without the same ‘network’ in Australia. When asked if he had made any enquiries about jobs with anyone in New Zealand, Mr Aitchison said he had ‘been on websites’ but had not contacted anyone.
When asked about his submissions regarding Article 7 of the International Covenant on Civil and Political Rights (“ICCPR”), Mr Aitchison said ‘I would put it to you that deporting me to New Zealand is cruel and inhuman treatment. You’re depriving me of my right of my life with my wife and family.’ When asked again if he feared torture or cruel or inhuman treatment or punishment if living in New Zealand, Mr Aitchison said he did not. When asked if he feared being subjected to degrading treatment or punishment if living in New Zealand, Mr Aitchison responded: ‘No I don’t expect that.’
Rehabilitation
Mr Aitchison said he was assessed soon after commencing his prison sentence and it was determined there were ‘no programs’ available for him. He referred to completion of the Peer Listener Program, which enabled him to act as a mentor for other inmates. It was something he would like to continue if released by ‘working with the legal fraternity’ and people in similar circumstances to him. Mr Aitchison said the stress management course and participation in the prison’s school program in 2016 and 2017 were ‘not specific’ to his rehabilitation, but nevertheless gave him an opportunity to reflect on his crimes.
Mr Aitchison said he was not receiving any treatment for the depressive disorder diagnosed by forensic psychologist Ms Ferrari, because there was ‘none available’ in immigration detention. When asked if he had requested any treatment, he replied: ‘No I haven’t.’ When asked about any plans he might have for treatment upon release, Mr Aitchison responded: ‘To a certain extent I believe I’ll need some help when I get out.’ He explained that when released from prison he was in a ‘fairly good head space,’ but was immediately taken into immigration detention where that was no longer the case. He said that in comparison to the better facilities in prison, ‘the facilities [in immigration detention] are minimal.’ Mr Aitchison said he was willing to undertake further rehabilitation if released, and would speak with Ms Ferrari, who he had developed a good rapport with, to get her recommendation on ‘appropriate courses.’
Aspirations if permitted to remain in Australia
Mr Aitchison said he would live with AA if released, with whom he had maintained a strong relationship during his prison years through visits and phone calls. He now had a mobile telephone in immigration detention and talked to AA between five and twenty times each day. In relation to his work aspirations, Mr Aitchison wanted to return to work as a truck driver but would consider ‘whatever’s available.’ When asked if he still had the licences required for work as a truck driver, Mr Aitchison said he had renewed his heavy vehicle licences for ten years prior to imprisonment in 2015. He claimed to have been offered employment by a company he previously worked for as a driver. He thought at his age he could work for ‘another five years.’ Mr Aitchison said he is the sort of person who ‘has to work’ and ‘can’t just sit back.’ It was put to Mr Aitchison that the realistic prospects of work he claimed in Australia, could also be competitively pursued in New Zealand. He disagreed, stating that he had learned from the ‘media’ that ‘unemployment was running rife’ in New Zealand and was ‘considerably higher than Australia.’ When asked if his research related to unemployment generally or the transport industry specifically, Mr Aitchison said it was about the general unemployment rate. When asked if his claims about work prospects in New Zealand were speculative without having made any specific enquiries or applications, Mr Aitchison disagreed.
Medical conditions
Mr Aitchison agreed that the report of general practitioner Dr Pucilowski showed he had suffered from conditions like back pain and high blood pressure since 2006, high cholesterol since 2008, and diabetes since 2008. He agreed he was able to work full-time hours as a truck driver and in other roles despite these comorbidities. Mr Aitchison said he had last seen Dr Pucilowski about a week prior to imprisonment in 2015.
The Tribunal took Mr Aitchison through the prescribed medications referred to in his 2019 Personal Circumstances Form (“2019 PCF”),[51] the list of medications referred to by his lawyer,[52] and the IHMS medication chart.[53] Mr Aitchison said that as a result of losing about 20kg in prison and immigration detention, his blood pressure had reduced and his hypertension medication was cut to a single tablet daily. He now received a single weekly injection for his diabetes of a ‘new product,’ which was ‘working well’ and kept it ‘under control.’ Mr Aitchison described the progression of his diabetes since 2008 as ‘gradual onset.’ It had never worsened to the point where he required ‘full time insulin.’ When asked about the basis of the claim that if repatriated to New Zealand he would have to ‘trial alternative drugs to replace Dulaglutide, as the primary medication for…his Type II Diabetes,’ Mr Aitchison said this was based on information his lawyer sourced from the New Zealand Department of Health, stating: ‘I believe the weekly needle is not available.’ He had not made any enquiries about this himself and would ‘have to speak to a doctor’ in order to ascertain if any of his prescribed medications were limited or unavailable, and what alternative drugs there were. When asked about an information pamphlet in evidence from which was directed at visitors and immigrants, rather than citizens returning to New Zealand, Mr Aitchison confirmed he had not had any discussions with anyone in New Zealand regarding his diabetes and his research was limited to housing and work prospects alone.
[51] Exhibit R1, 60.
[52] ASFIC [30].
[53] Exhibit A23.
[54] Exhibit A24.
Extent of impediments

Mr Aitchison said his sister and brother-in-law live in New Zealand. His sister is in a nursing home and his brother-in-law lives alone on a pension. He could not ask to move in with his brother-in-law because he said this would affect his pension. Mr Aitchison also has cousins in New Zealand but claimed to have no contact and could not rely on them for assistance.
It was put to Mr Aitchison that he would be entitled to the same support as any other New Zealand citizen if returned. He disagreed, claiming to have undertaken research into this. He again referred to pension eligibility of approximately $400 per week, which he claimed would be required for rental accommodation, leaving him with no funds for medications or daily necessities. If released in Australia, however, he would live with his wife and step-daughter with whom he would share costs.
Mr Aitchison was challenged about his claim that no one could assist him financially if he returned to New Zealand. He was asked about material in evidence regarding his family in Australia becoming ‘self-reliant’ during his imprisonment and the financial and other practical assistance several family members and friends had offered. Mr Aitchison said there were ‘vast differences’ between his release in Australia compared to New Zealand. Here he has a ‘home, furniture, tools of trade and a car,’ whereas in New Zealand he has ‘nothing.’ It was put to Mr Aitchison that the financial and practical support referred to in the ASFIC,[55] his own statement,[56] and the statement of other family members,[57] could also be provided to assist his resettlement in New Zealand. He responded: ‘I haven’t asked for it.’ When pressed that it could nevertheless be used to assist him either in Australia or New Zealand, he responded: ‘Yes, what you’re saying is correct.’
[55] ASFIC, [12]; [22]; [60]-[61].
[56] Exhibit A1, 8[77]; [84].
[57] Exhibit A6, 4 [36]
Potential for AA to accompany him
Mr Aitchison said his wife rented a house from their friends and received an age pension allowing her to be self-supporting. She lived with and shared costs with her daughter, LD, who received a Disability Support Pension (“DSP”). Mr Aitchison said if allowed to remain in Australia he would live with AA and LD. When asked if he knew whether AA would accompany him to New Zealand if he was returned, Mr Aitchison responded: ‘we still don’t know, were waiting to see the results of this…The country would effectively be deporting an Australian citizen if she did come.’
COVID-19
Mr Aitchison was asked about the concerns he, his wife and step-granddaughter had expressed about potential exposure to COVID-19 during his immigration detention.[58] He stated: ‘My fear is if COVID comes into this facility, I’m a dead man walking.’ When asked if COVID-19 had been detected in the facility or if he had contracted it since his family had contacted the authorities about four months ago, he said ‘it hasn’t come in’ and he had not contracted COVID-19.
[58] Exhibit R1, 202-204.
Evidence of AA
AA adopted her six-page statement dated 22 June 2020 as true and correct. The Tribunal also notes previous statements she submitted in the context of Mr Aitchison’s revocation request.[59]
[59] Ibid, 88-89; 111.
In her oral evidence, AA said she remained unsure about accompanying Mr Aitchison to New Zealand. This was a ‘big decision’ leaving her with the difficult choice of living with her husband in New Zealand or with her daughter and granddaughters in Australia. AA said her funds were ‘very limited’ and although she would want to visit her husband as much as possible, her financial situation would not allow it. When asked if she could talk with Mr Aitchison on the telephone as she currently does, she said international telephone calls were ‘very expensive’ and doubted if she could afford to call him. When asked what support her husband could rely on if repatriated, AA said ‘very little,’ because family members had their own bills to pay. She said her daughter received a DSP and only one of her two granddaughters, RR, was currently working. When asked what support would be available to Mr Aitchison if he remained in Australia, AA said ‘like any happy marriage’ she would ‘be there 100 per cent for him.’
Evidence of LD
LD adopted her five-page statement dated 22 June 2020 as true and correct. The Tribunal also notes a previous statement she submitted in the context of Mr Aitchison’s revocation request.[60]
[60] Ibid, 90.
In her oral evidence, LD said that as a DSP recipient, she could not afford to help support Mr Aitchison financially if repatriated and could only offer emotional support. When asked if AA would accompany Mr Aitchison to New Zealand if repatriated, LD said her mother ‘would find it difficult choosing between me and her husband.’
Evidence of ND
ND adopted his four-page statement dated 22 June 2020 as true and correct.
In his oral evidence, ND said he could only provide Mr Aitchison with ‘a bit of emotional support’ if he returned to New Zealand. That was because as a worker in the construction industry, things were currently ‘in a bit of a dilemma.’ If Mr Aitchison remained in Australia, however, ND said: ‘I’d be closer to give him any support needed, including financial support depending on the situation.’ When asked to elaborate on the difference in support based on New Zealand or Australia, ND stated: ‘I can be here physically for him. In New Zealand we would have no contact.’
Evidence of RR
RR adopted her seven-page statement dated 22 June 2020 as true and correct. The Tribunal also notes a previous statement she submitted in the context of Mr Aitchison’s revocation request.[61]
[61] Ibid, 91-92.
In her oral evidence, RR said if Mr Aitchison returned to New Zealand she would be able to provide ‘emotional support and ad hoc financial support’ given her own living costs. She estimated this would be ‘a couple of hundred dollars here and there’ depending her own bills, estimating it may be about $50 to $100 every fortnight. She said this was in addition to the ad hoc support she currently provided to AA. When asked what she thought AA would do if Mr Aitchison returned to New Zealand, she responded: ‘She has stated she wants to be with my Pop.’ The family’s strong preference, however, was that Mr Aitchison remain in Australia where his contacts in ‘heavy haulage’ would enable him to work.
Evidence of HR
HR adopted her six-page statement dated 22 June 2020 as true and correct. Tribunal also notes a previous statement she submitted in the context of Mr Aitchison’s revocation request.[62]
[62] Ibid, 93-94.
In her oral evidence, HR said if Mr Aitchison returned to New Zealand, it would be very difficult for the family to assist him with the costs of re-establishing himself, citing the high costs of accommodation in particular. She had visited Mr Aitchison regularly in prison and immigration detention prior to COVID-19 visitor restrictions being implemented. They had also communicated by telephone, video calls and messages. She said the family could continue maintaining contact by telephone and video calls, but that was ‘not the same as having him here physically.’ HR had been stood down from work as a result of the COVID-19 public health emergency and said that ‘routinely paying for [Mr Aitchison’s] living costs’ in New Zealand was ‘not within [her] capabilities.’ If he remained in Australia, however, she would be able to support him financially as well as providing emotional support. When asked about the financial limitations she had referred to earlier, HR stated: ‘If my Pop needed anything, we’d help him as much as we can.’ She would also help her ‘Nan,’ who managed to get by on her age pension.
Continuing punishment?
Several submissions referred to the cancellation of Mr Aitchison’s visa, placement in immigration detention, and possible return to New Zealand as a continuation of the punishment awarded to him by the Court. These submissions are not accepted. As held by the High Court in Falzon v Minister for Immigration and Border Protection, the visa cancellation and review process is administrative in character and ‘does not trespass on the exclusively judicial function of determining or punishing criminal guilt.’ [63] As Nettle J reasoned at [93]:
‘[93] By s 501(3A) of the Migration Act…Parliament has conferred on the Minister…one of a number of powers calculated to give effect to Australia’s sovereign right to determine which non-citizens shall be permitted to remain in this country…Contrary to the plaintiff’s submissions, however, it does not follow that the provision imposes a punishment. Deportation may be burdensome and severe for a non-citizen…But s 501(3A)…does not increase the punishment for the crime or crimes of which the non-citizen has been convicted...’
(Footnotes omitted)
PRIMARY CONSIDERATIONS
[63] [2018] 351 ALR 61, at [88].
Protection of the Australian community from criminal or other serious conduct
Clause 13.1 of the Direction states:
(1) 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 non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
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.
Clause 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a 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 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.
Tribunal consideration: The nature and seriousness of the conduct
In both his documentary and oral evidence, Mr Aitchison acknowledged the seriousness of his offending between 2008 and 2013. The Tribunal has noted the statement he provided in January 2020 explaining the ‘charges brought against [him] by a previous employer’ in Tasmania in 1995.[64]
[64] Exhibit R1, 109-110.
Mr Aitchison’s legal representatives concede his criminal history ‘involves a number of serious offences.’[65] During closing submissions, Mr Aleksov contended that cl 13.1.1(1)(a) was ‘not applicable’ in this matter, because there was ‘no violence or impingement of a person’s liberty’ disclosed by Mr Aitchison’s offending. Ms Law disagreed, submitting that it should not be read in a way that only applies to violent or sexual crimes. The Tribunal put to Mr Aleksov that cl 13.1.1(1)(a) did not limit ‘the range of offences that may be considered serious.’ Mr Aleksov said the focus of clauses 13.1.1(1)(a)-(c) was on violent and / or sexual crimes against women, children and vulnerable members of the community. Mr Aleksov submitted that cl 13.1.1(1)(e) also did not apply in this matter, because the Tasmanian prosecution some 25 years ago reflected Mr Aitchison’s involvement in ‘an initial, early and rather minor offence,’ which ‘was dealt with through a conditional discharge’ and did not result in a conviction, because Mr Aitchison remained of good behaviour for the following two years. In that respect it should be seen as ‘one event’ and the more recent tax offending seen ‘as a different and separate offence,’ rather than a trend of increasing seriousness. It was accepted, however, that the tax offending reflected a trend lasting several years.
[65] ASFIC, [15].
The Tribunal has had regard for the respondent’s submissions relating to this primary consideration,[66] which are to the effect that Mr Aitchison’s offending ‘should be viewed very seriously’ and ‘weigh heavily’ against revocation.
[66] Respondent’s Statement of Facts, Issues and Contentions (“RSFIC”) dated 3 July 2020, [24]-[32].
Tribunal findings: The nature and seriousness of the conduct
In reflecting on the evidence regarding the nature and seriousness of Mr Aitchison’s offending, the Tribunal notes the High Court’s reasoning in Hili v The Queen (2010) 242 CLR 520 (“Hili”). Hili related to two individuals who evaded taxation totalling approximately $350,000 to $400,000 each. They were initially each sentenced by the District Court to 18 months imprisonment, with a recognizance release order taking effect after seven months. The sentencing judge referred to each defendant’s previously good character, admissions of guilt during police interviews, and early guilty pleas. The prosecution appealed the inadequacy of the sentences, which was upheld by the Court of Criminal Appeal, with both offenders re-sentenced to an effective three-year sentence, with a recognizance release order after 18 months. In affirming the decision of the Court of Criminal Appeal, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ highlighted a number of factors at [63] that led their Honours to conclude the offending was serious:
‘The applicants' offending was sustained over a long time. It was planned, deliberate and deceitful, requiring for its implementation the telling of many lies. The applicants acted out of personal greed. The amount of tax evaded was not small. Detection of offending of this kind is not easy. Serious tax fraud, which this was, is offending that affects the whole community.’
Given the specific circumstances of this case, the following aspects of cl 13.1.1(1) of the Direction are enlivened:
(a)13.1.1(1)(a): The Tribunal accepts Mr Aleksov’s submission that Mr Aitchison did not commit violent or sexual crimes but does not accept that this clause is not enlivened for that reason. That is because the range of offences falling within the clause are not limited, but violent or sexual crimes are given prominence amongst those ‘viewed seriously.’ Mr Aitchison fraudulently obtained a financial advantage of $5,853,709 over a four-year period. His conduct reflects a level of greed and the telling of multiple lies. Such conduct is very serious;
(b)13.1.1(1)(d): The total effective sentence of eight years imprisonment awarded to Mr Aitchison reflects the objective seriousness of his crimes, which the Supreme Court of Victoria Court of Appeal concluded was a ‘stern’ sentence and ‘at the higher end of the range’;[67]
(c)13.1.1(1)(e): The Tribunal accepts Mr Aleksov’s submission that Mr Aitchison’s conduct in Tasmania in 1994 was ‘an initial, early and rather minor offence,’ which ‘was dealt with through a conditional discharge.’ Indeed, he remained law-abiding for the next 13 years. Mr Aitchison’s conduct between 2008 and 2013, however, reflects persistent and prolonged dishonesty. It escalated in seriousness on each occasion he presented false claims and lied to auditors to cover up his offending rather than disclosing it. As Her Honour noted in 2015, ‘having got away with it once,’ Mr Aitchison ‘proceeded to make false claims until…caught 4 years later.’[68] This was held to be an aggravating feature of his offending;[69]
(d)13.1.1(1)(f): The compounding effect of Mr Aitchison’s offending is evident from its prolonged duration. Only about a third of the dishonestly obtained funds were recovered.[70] As Her Honour noted during sentencing, the loss in revenue ‘would otherwise be used to fund services for other Australians’.[71]
[67] Exhibit R2, 179 [99].
[68] Exhibit R1, 35 [34].
[69] Ibid, 32 [21].
[70] Ibid, 35 [38].
[71] Ibid, 31 [19].
For the reasons outlined above, the Tribunal finds Mr Aitchison’s offending is objectively very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 13.1.2 of the Direction states in part:
(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).
This aspect of the Direction requires the Tribunal to assess the risk Mr Aitchison poses to the Australian community in the event he reoffends, taking into consideration the nature of any harm and its probability. In Murphy v Minister for Home Affairs [2018] FCA 1924 at [37], Mortimer J reflected on this task as follows:
That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community… of how serious the risk was, or whether the risk should be “tolerated.”
Determining what constitutes an unacceptable risk was elaborated upon in Nigro v Secretary to the Department of Justice (2013) 304 ALR 535 at [111]:[72]
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.
(footnote omitted)
[72] Cited with approval by Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117 at [42]-[43].
The High Court has held that past actions are legitimate predictors of future behaviour.[73] Katzmann J, in Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, similarly reasoned at [59] that the ‘risk of harm posed by the conduct in which the person has engaged in is obviously relevant to the risk…he might in the future engage in.’
[73] Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, 578-579 (“Guo”).

The sentencing remarks state that Mr Aitchison’s offending occurred when he was between 59 and 62 years of age.[74] No reference is made in the sentencing remarks to the Tasmanian prosecution or the conditional discharge Mr Aitchison received. The Court found the tax offending was the ‘first time [he] had been involved in crime,’ and his ‘general reputation in the community was good.’ The Tribunal notes a report by consultant psychiatrist Dr Danny Sullivan dated 18 November 2014, referred to by Her Honour during sentencing, which stated Mr Aitchison ‘denied previous contact with the criminal justice system.’[75] Her Honour accepted Mr Aitchison was previously ‘of good character,’ and, because of factors like age and remorse, concluded his chances of rehabilitation were ‘very good,’ and his risk of reoffending ‘very low…with almost no risk of re-offending.’ During his oral evidence at the hearing, Mr Aitchison claimed he had forgotten about the Tasmanian prosecution at the time of Dr Sullivan’s assessment, but claimed that details about the Tasmanian matter were put before the Court during the trial.
[74] Exhibit R1, 32 [22].
[75] Exhibit R2, 74 [30].
Mr Aitchison’s legal representatives submitted that the ‘notion of “protection” is most acutely engaged in relation to harm from violent conduct,’ which Mr Aitchison had not engaged in. Ms Law submitted that Mr Aitchison’s offending had nevertheless harmed the ‘community at large,’ encompassing taxpayers and ‘those who rely on the payment of benefits.’
Mr Aleksov submitted that the nature of Mr Aitchison’s past offending was ‘highly situational’ and ‘won’t realistically arise again…he won’t ever find himself in a position to be filling in tax information.’ Unlike the period of his offending when he was ‘trying to be all things to all people and to give his family a particular lifestyle…as the provider of their substantial needs,’ Mr Aleksov submitted this would not reoccur. He contended there was ‘nothing material or realistic the community needed protection from.’
Mr Aitchison’s legal representatives submitted that he had undertaken ‘rehabilitative programs in prison,’ reflected on his ‘past mentality,’ and ‘made changes in himself which will prevent reoffending.’[76] Mr Aitchison, however, stated he was assessed by ‘offender program personnel,’ who determined he ‘did not need to do any programs.’[77] His oral evidence was that he was open to further treatment and would consult with Ms Ferrari about this.
[76] ASFIC, [11].
[77] Exhibit R1, 72.
Mr Aitchison’s legal representatives submitted that he ‘wishes to atone for his offending but is yet to work out the best way to do this.’[78] In his most recent statement Mr Aitchison wrote: ‘I would never jeopardise my future and my family’s future by doing wrong again.’[79] In his 2019 PCF he stated:
‘I consider that there is no risk of me offending in the future as I have no intention of putting myself in a position that would enable myself to offend. I also have the support of a loving and caring family and I will never, ever put them through the trauma that they have endured for the last six years.’[80]
[78] ASFIC, [25].
[79] Exhibit A1, [94].
[80] Ibid, 72.
The Tribunal has considered the report of forensic psychologist Ms Carla Ferrari dated 14 June 2020, which was commissioned by Mr Aitchison’s lawyer.[81] Ms Ferrari’s report stated the following in relation to risk:
[81] Exhibit A22.
105. Risk Assessment
…
107. As outlined previously, Mr Aitchison has stable psychosocial circumstances whilst residing in Australia; he has secure accommodation with his wife in a home offered to them by friends, a stable employment history and prospects for future employment through business associates and his reputation within the transport logistics industry. He has financially supported himself and his family even prior to the offending, through his hard work ethic and business acumen, which has allowed him to advance in several long-term employment positions he had prior to owning his own businesses. Whilst incarcerated, he engaged well in offending behavior programs and psycho-education courses to keep himself occupied and to improve his prospects for rehabilitation.
108. Importantly, Mr Aitchison does not appear to exhibit a criminal attitude or orientation, but rather his offending appeared to occur in the context of several stressors over a five-year period, including the deaths of both his parents, his own ill health, financial stress, and family stressors which he felt responsible to fix. It seems Mr Aitchison’s inability to cope with his emotions, drove him to engage in the offending. It is noted that he had one other similar prior in Tasmania however this was at the lower end of the scale and he complied with his good behavior bond with no further offending for over 20 years.
109. Mr Aitchison however did not attempt to diminish his responsibility in any way and served his time in prison accordingly, engaging in as many programs that were available and relevant to him, using the time proactively to better himself. He displays insight into his mental state prior to the period of offending, as well as his tendency to need to fix everything and support those around him, and instructed that prison taught himself and his family to be self-reliant, which reduces his risks going forward as the compulsion to support others will not be as great for Mr Aitchison.
110. Mr Aitchison’s premorbid functioning demonstrates a high functioning individual whom has developed strong social and business relationships in Australia, is a well-respected individual to those who know him, has a close and cohesive relationship with his wife, her daughter, and her grandchildren, and was an upstanding and prosocial member of society until these incidents in 2008. There is no antisocial peer group.
111. There is no evidence of any personality disorder, mania, psychotic disorder, nor substance use which further mitigates his risks. He does not display any emotional or personal factors considered to be high risk factors; he is not impulsive, he appears to have good problem-solving skills, and with age an individual’s risk level continues to decline.
112.He is willing to engage in any recommended psychological treatment going forward to further ameliorate his risks of mental state deterioration and recidivism, and ensure that he appropriately manages any increased stress as it arises. It seems that it is the protracted nature of his offending, sentence, and now immigration detention whilst he faces deportation have maintained his mental health issues, and those experienced by his family members. It is only through reconnecting and having these physical supports in place once more that their mental health issues will subside.
113. Mr Aitchison would therefore be considered a low risk of reoffending on the basis of the above factors.
114. The importance of Mr Aitchison’s family support to his recovery cannot be overstated enough; he has no other supports available to him should he be deported from Australia, and this will have a severe effect on his depression, anxiety and stress symptoms. The potential risks should he be deported, would have dire consequences for his psychological and emotional functioning, reinforcing the trauma and loss he has already endured and greatly affecting the mental health of his family members whom have had to access treatment themselves due to their inability to cope with his being incarcerated.
115. Mr Aitchison is an elderly male who has demonstrated a capacity to reform himself and rehabilitate, and has the necessary elements available to him in Australia to live the remainder of his life with his wife and family without any further offending or risk to the community. He is genuinely remorseful for his crimes and the impact on those involved.
In her oral evidence, Ms Ferrari said she considered several ‘static and dynamic’ factors in determining Mr Aitchison’s risk of reoffending, such as those mentioned at paragraph 106 of her report. She said it was not possible to say there was ‘no risk’ of a person reoffending, but Mr Aitchison’s risk is ‘low’ given strong family support, his mental health has improved, and he ‘doesn’t appear to have a criminal attitude or orientation.’ At the time of his offending, there were other factors involved, including business pressures, supporting his family, and that his father had passed away. If released he would not be exposed to the same pressures and his family members were now self-reliant.
When asked by Mr Aleksov if she could express what ‘low’ meant in percentage terms, Ms Ferrari said she did not ‘do percentages.’ When asked by Mr Aleksov ‘how close to zero per cent’ Mr Aitchison’s risk was, Ms Ferrari stated: ‘I can’t really answer that, but when we look at research…with increasing age the risk of recidivism declines.’ She referred to a 2017 United States study showing ‘individuals over 65 had a 13% risk of reoffending,’ whereas in younger offenders it could be ‘up to 68% risk.’ She also referred to an Australian study showing the risk of recidivism was 30% in someone who was 40 years of age and declined further as they aged. In response to a question from the Tribunal, Ms Ferrari agreed these studies were not mentioned in her report. Given their potential probative value, the Tribunal asked that they be provided, which Ms Ferrari later did.
The Tribunal asked Ms Ferrari about the relevance of these two studies, which attributed a lower and decreasing risk of reoffending to older persons compared to younger persons, in circumstances where Mr Aitchison’s offending occurred when he was in his late 50s and early 60s. Following imprisonment, he was now 69 years of age. She replied that because his offending was ‘12 years ago’ (sic),[82] it was assumed his risk or recidivism would ‘decline over time.’ Ms Ferrari opined that Mr Aitchison’s current risk of recidivism was somewhere between ‘13% and 30%.’
[82] Ms Ferrari was informed that Mr Aitchison had last attempted to dishonestly obtain a financial benefit in January 2013, which was seven and not 12 years ago.
Ms Ferrari was asked why she had not recommended any treatment for the psychological condition she diagnosed in Mr Atchison. She said he was not ‘keen on using pharmacological treatment,’ which dated back to his experience after being placed on medication at the time of his father’s illness. Ms Ferrari said he had expressed a willingness during their discussions to undertake psychological therapy upon release, and she was ‘happy to refer him to a colleague’ if required.
Following the hearing, Ms Ferrari provided links to the two studies she referred to during the hearing, which the Tribunal has considered.[83] Both parties were given an opportunity to provide submissions about this material after the hearing but declined to do so.
[83] Jason Payne, Recidivism in Australia: findings and future research (Research and Public Policy Series No 80, 2005) < Kim Steven Hunt and Bill Easley II, The Effects of Aging on Recidivism Among Federal Offenders (Report, December 2017) <>
In relation to the motivation for Mr Aitchison’s offending, the Tribunal notes AA’s reference to a conversation they had soon after his criminal conduct was revealed. Mr Aitchison reportedly ‘broke down and said he wanted to see us all happy,’[84] which Mr Aitchison agreed during his oral evidence accurately reflected their conversation.
[84] Exhibit A2, 4 [39].
The following materials were tendered in support of Mr Aitchison’s rehabilitative claims:
(a)Certificate of Completion, Peer Listener Training Program, dated 23 December 2015;
(b)Two certificates dated 2016 and 2017, expressing appreciation for Mr Aitchison’s participation as a ‘valued panel member’ of Loddon Prison’s Schools Program; and
(c)Certificate of Completion, 6 Hour Stress Management Program, dated 5 December 2019.
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Mr Aitchison’s criminal history in Australia relates exclusively to dishonesty offences. If he were to reoffend, the type of harm arising is financial in nature.
The likelihood of Mr Aitchison engaging in similar crimes in the future was assessed during sentencing in 2015. Her Honour proceeded on the basis that this was the ‘first time [Mr Aitchison was] involved in crime,’ with no reference to the Tasmanian prosecution or conditional discharge. It is clear the report of consultant psychiatrist Dr Sullivan was before the Court,[85] which stated Mr Aitchison ‘denied previous contact with the criminal justice system.’[86] On the evidence currently before the Tribunal that claim is erroneous. The Tribunal cannot go behind the Court’s conviction, and Mr Aitchison’s claim that details of the Tasmanian prosecution were before the Court cannot be verified in the time available. It is clear however, that the offences Mr Aitchison was most recently convicted of, were not his first contact with the criminal justice system for dishonest conduct.
[85] Exhibit R1, 36 [40].
[86] Exhibit R2, 74 [30].
In concluding that Mr Aitchison is currently a ‘low risk’ of reoffending, Ms Ferrari acknowledged he ‘had one other similar prior in Tasmania.’ Ms Ferrari’s report does not refer to ongoing treatment for the psychological diagnosis she makes, beyond recording Mr Aitchison’s willingness to ‘engage in any recommended psychological treatment going forward to further ameliorate his risks of mental state deterioration and recidivism.’[87] Any future treatment remains subject to discussions between Mr Aitchison and Ms Ferrari.
[87] Exhibit A22, 12 [112].
The Tribunal does not accept the submission that Mr Aitchison constitutes a ‘minimal, if not trivial’ risk of recidivism,[88] which is uncorroborated by expert evidence. The Tribunal accepts Ms Ferrari’s assessment that Mr Aitchison represents a ‘low’ risk of recidivism somewhere between 13% and 30%. The Tribunal remains concerned, however, by the prolonged, opportunistic and serious nature of Mr Aitchison’s offending.
[88] ASFIC, [1].
The Tribunal does not accept the submission that:
‘the risk factors relevant to the applicant’s previous offending have been removed[89]…[because he] does not have any debts which cannot be serviced, does not have any family members in New Zealand who rely on him for financial support, and is not in a situation where his outgoings are far greater than his income…The Applicant will never be in a position to de-fraud the Australian Taxation Office again and is determined to return to work so as not to be a burden on the taxpayer, noting also that he has a conditional offer of employment.’[90]
[89] Ibid, [26].
[90] Ibid, [13]-[14].
The evidence discloses that Mr Aitchison resorted to criminal offending while experiencing financial pressure associated with his business activities and a desire to better fund the needs of family members in Australia and New Zealand. If released, he is likely to remain under continuing financial constraint given undischarged reparations approximating $4 million, and uncertain income linked to his ability to resume paid work. Mr Aitchison also intends living in a family environment where the majority of close family members are either reliant on a pension or other benefits. He submits that his sister in New Zealand is in a high care situation and his brother-in-law receives a New Zealand pension. These are not entirely dissimilar circumstances to those existing at the time of his offending, and it cannot be said the risk factors relevant to his past offending ‘have been removed.’
Given the circumstances of this case, including Ms Ferrari’s assessment, there is a low but real risk Mr Aitchison may reoffend if permitted to remain in Australia, in respect of conduct involving dishonesty. This would expose the Australian community to a risk of financial harm. Coupled with the very serious nature of his offending, the Tribunal finds this primary consideration weighs substantially against revocation.
Tribunal consideration: Best interests of minor children in Australia
In the section of his 2019 PCF where details can be recorded of minor children, Mr Aitchison wrote ‘no minor children’ and left the other relevant pages blank.[91] He confirmed during the hearing he was not invoking the interests of any minor children.
[91] Exhibit R1, 67-69.
The Tribunal has had regard for the respondent’s written submissions relating to this primary consideration.[92]
[92] RSFIC, [44]-[47].
Tribunal findings: Best interests of minor children in Australia
The evidence does not disclose any minor children whose interests are enlivened within the meaning of the Direction. This primary consideration carries neutral weight.
Tribunal consideration: Expectations of the Australian community
Clause 13.3 of the Direction states:
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.
In FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”), the Full Court of the Federal Court of Australia dealt with the construction and application cl 11.3(1) (Expectations of the Australian community). Although this case refers to a different part of a previous Direction and relates to visa refusal, the clause is in identical wording as cl 13.3 of the current Direction. The majority in FYBR held that this primary consideration is a ‘deeming’ provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[93] As Stewart J held at [104], ‘it is not the decision-maker who makes an assessment of community values on behalf of the community’.[94] His Honour summarised the community’s expectations at [101] and [103]:
101. Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.
…
103. …In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely...
[93] FYBR at [66] per Charlesworth J; and [91] per Stewart J.
[94] Ibid at [104] per Stewart J.
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[95] The Direction helps inform the weight a decision-maker attributes. For example, cl 6.3(3) of the Direction states that non-citizens who commit serious crimes ‘should generally’ expect to forfeit the privilege of staying in Australia. Use of terms like ‘should generally’ convey discretion and judgements turn on the specific circumstances of each case (cl 6.1(3)). The reasoning in FYBR also reflects the potential inherent in cl 8(3) of the Direction, that: ‘Both primary and other considerations may weigh in favour of, or against...’ Moreover, it reinforces the flexibility in cl 8(4) that requires the government’s assessment of community expectations to be ‘generally…given greater weight than the other considerations’, which ‘contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors…’[96]
[95] Ibid at [75]-[76] per Charlesworth J.
[96] Ibid at [76] per Charlesworth J.

The reasoning in SZTEQ and SZDCD supports the proposition that the risks reflected in Articles 6 and 7 of the ICCPR, link more persuasively to issues like the death penalty and human rights abuses. New Zealand is a developed country that ratified the ICCPR forty years ago. The Tribunal is unpersuaded that issues like access to medications for relatively common medical conditions, or work prospects yet to be tested, or availability of public housing for a returning New Zealand citizen, enliven the claimed risks. There are no substantial grounds for believing that Mr Aitchison’s claims give rise to a real risk that he might be arbitrarily deprived of his life as a ‘necessary and foreseeable consequence’ of repatriation, or suffer other significant personal injury, including cruel or inhumane treatment or punishment. Nor does a real risk emerge from the evidence that he would be unable to maintain continuity with prescribed medications, as a result of being forced to make a binary choice between those medications and other necessities like accommodation.
Even on the book extracts relied upon by Mr Aleksov, the Tribunal is not persuaded that Mr Aitchison would be discriminated against or treated any differently to other New Zealand citizens in respect of accessing health care, government housing support, or making a living. There is no persuasive evidence he would be confronted by the ‘deliberate imposition of substantial economic disadvantage,’ or the types of food insecurity canvassed in the book. In terms of accommodation, there is no persuasive evidence he would suffer a complete loss of shelter. There is no persuasive evidence he would be denied healthcare for his diagnosed conditions or be limited in his right to access healthcare on a non-discriminatory basis.
Mr Aitchison has several comorbidities, but there is no expert evidence they cannot be treated in New Zealand. There is no persuasive evidence that his prescribed medications or comparable medications are unavailable in New Zealand or are allocated on an arbitrary basis. Even if there is a gap payment for medications as there is in Australia, this does not persuasively rise to the level of facing a real risk of serious or significant harm within the meaning of the Direction. There is no persuasive evidence to corroborate the submission that Mr Aitchison is ‘required to trial alternative drugs’ for Dulaglutide, or that a comparable medication could not be prescribed. His oral evidence was that this question needed to be determined through consultation with a doctor, which he was yet to do.
The Tribunal accepts Mr Aleksov’s submission that Medicare does not exist in New Zealand, but the available evidence and publicly-available information indicates there are approximately 250,000 New Zealanders suffering diabetes.[117] Moreover, Exhibit 24, tendered by the applicant states:
‘New Zealand has a government agency called Pharmac that governs what types of diabetes medications are available in New Zealand. This means that some medication that is available overseas isn’t available in New Zealand. However, there is usually a closely equivalent medication available.
Insulin, and nearly all diabetes tablets, are available in New Zealand....
Medication costs the same amount throughout New Zealand. If you are a resident in New Zealand you will pay $5.00 for each prescription item...
Treatment for any complications or problems with your diabetes is available free-of-charge (for New Zealand citizens and residents) through departments located within the public hospitals (eye departments, renal departments etc). The treatment options available are comparable with any of the developed countries outside of New Zealand.
[117] Health.govt.nz.
Any deficiency in the availability of housing or medical services reflected in the media articles lodged by Mr Aitchison confronts all New Zealanders generally and not Mr Aitchison personally (s 36(2B)(c) of the Act). For completeness, in response to the submissions about Article 7 of the ICCPR, there is no evidence that Mr Aitchison would be exposed to ‘torture’ or ‘cruel or inhuman treatment or punishment,’ or that any pain or suffering he may experience would be ‘intentionally inflicted,’ or that he would be subjected to ‘degrading treatment or punishment,’ as the result of any act or omission by authorities in New Zealand. When put directly to him during the hearing, Mr Aitchison stated he did not fear the sort of treatment falling under Article 7. The evidence in this matter does not give rise to a Convention-related reason enlivening Australia’s non-refoulement obligations, or a complementary protection claim under the Act.
In terms of a fear of harm falling below the thresholds required above, the Tribunal does not accept Mr Aitchison is confronted by a binary choice between subsistence and medications, causing him to ‘sacrifice medical care’ such that his conditions take ‘a severe turn for the worst.’[118] No independent evidence was tendered about Mr Aitchison’s financial position or that of his family members and the Tribunal does not accept he has ‘no family who can provide additional monetary support.’ Mr Aitchison’s legal representatives submitted that his family have adjusted to his five years in prison, are now ‘self-reliant,’ and support him ‘emotionally and financially, which reflects a change from their pre-offending relationship.’[119] The evidence of several witnesses is that they will continue to provide him with support if released in Australia, including financial support. There is no persuasive evidence that this support is unavailable if he returns to New Zealand. Ms Smith’s Statutory Declaration[120] discloses potential accommodation options in New Zealand, including ‘a flatting situation or boarding options…for seniors.’ Moreover, Mr Aitchison, his wife, and legal team submit he is ‘determined to return to work’ in the transport industry, and has realistic prospects of doing so in Australia.[121] Given his qualifications and work experience in driving, supervisory and managerial roles, there is no evidence his work aspirations could not be competitively pursued in New Zealand.
[118] ASFIC, [34]-[35].
[119] ASFIC, [12].
[120] Exhibit A11.
[121] Ibid, [14].
It is relevant that it remains open to Mr Aitchison to make a Protection Visa application pursuant to s 501E(2) of the Act. Were he to do so, ‘Direction No 75 - Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b),’ provides at Part 2 that a decision-maker must first assess any refugee or complementary protection claims before assessing any character or security concerns. If Mr Aitchison was found to be owed non-refoulement obligations, the Australian Government states at cl 14.1(2) of the Direction and in other publicly-available policy statements, that it will not refoule anyone to the country in respect of which a non-refoulement obligation exists.
The Tribunal finds that Australia’s non-refoulement obligations are not enlivened by the circumstances of Mr Aitchison’s case, and this consideration carries neutral weight.
Tribunal consideration: Strength, nature and duration of ties
Clause 14.2(1) of the Direction states:
… 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 has arrived as a young child, noting that:
i.          less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.         More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
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 non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Mr Aitchison referred to his long residence in Australia over three decades, and the strong family, business and social ties he has established. He spoke about his strongest relationships being with AA, LD, HR, RR, and ND. The evidence refers to LD regarding him ‘as a father’, and HR and RR having ‘known him as their grandfather for their entire lives.’[122]
[122] ASFIC, [39].
When asked about any positive contribution he had made in Australia, Mr Aitchison’s claims centred on his employment, paying taxes and providing employment for others. The Tribunal also notes the letter from an office-holder of the Baxter and District Classic Car Club dated 14 June 2020, which referred to Mr Aitchison as always being ‘prepared to help our Junior members with his vast knowledge of mechanical issues.’[123]
[123] Exhibit A9.
In closing submissions, Mr Aleksov referred to Mr Aitchison as the ‘centrepiece’ of his family’s life, who would be ‘distraught if he is repatriated.’ He said this consideration ‘weighs very heavily’ in favour of revocation. It is also submitted in the ASFIC that Mr Aitchison’s family in Australia is emotionally reliant ‘on the physical person of Applicant (sic) as the emblem of safety,’ and would ‘lose their place of safety’ if he were repatriated.[124] LD said in her statement: ‘I think Mum would have to go to New Zealand with him. She loves him too much to not be with him and vice versa.’[125] Mr Aitchison’s legal representatives submitted that his family ‘does not have the resources to travel to visit the Applicant. Their contact would be limited to video calls. This is insufficient contact for a family whose lives have been marked by close proximity, constant contact, and reliance on physical, not just emotional, support.’[126]
[124] ASFIC, [24]; [64].
[125] Exhibit A3, 4 [37].
[126] Ibid, [68].
The evidence refers to several medical conditions suffered by AA. It is submitted ‘she has her mobility still, but the report from her doctor speaks to a number of conditions which will require extensive care in coming years.’[127] The evidence refers to AA living in a house leased from a friend ‘under an informal arrangement’ during the last four-and-a-half years. She lives with her daughter LD, receives approximately $1,000 a fortnight in age pension and is ‘self-supporting.’[128] If Mr Aitchison is returned to New Zealand, his legal representatives submitted that AA ‘would want to go with him,’ but the ‘financial situation of the family would likely prevent’ her from doing so.[129] AA submitted in her statement:
‘I just want to be with him. It would be very difficult for me if he were sent away. It would be a big decision to move to another country at my age. We want to be together, but I hope this does not happen…We do not know anyone. I could not afford the cost of relocating our furniture and memories. It would be terrible...’[130]
[127] ASFIC, [47].
[128] Exhibit A1, 8 [76]; Exhibit A2, 3 [33]-[34] ASFIC, [23].
[129] ASFIC, [49]-[50].
[130] Exhibit A2, [59]-[65].
Regarding the possibility of his wife accompanying him to New Zealand, Mr Aitchison stated:
‘I honestly do not know if she would come with me. She would be leaving everybody. Her whole family. And it is not her country. This is her country. I hope she comes with me. But I would never put it on her that she has to come. I could not do that to her.’[131]
[131] Exhibit A1, 9 [91].
It is submitted that if AA accompanied Mr Aitchison to New Zealand, this would have potentially adverse consequences for LD who is on the DSP and ‘somewhat relies on her mother…to assist her with her physical ailments from time to time.’[132] In her statement, LD expressed concerns that if AA followed Mr Aitchison to New Zealand, she may be unable to afford separate accommodation or cope as effectively with her medical conditions.[133] That includes because her mother currently shares the costs of their rental accommodation and living costs. LD considers that the loss of AA’s emotional support may lead to a worsening of her health.
[132] ASFIC, [56].
[133] Exhibit A3, 4 [38]-[40].
RR refers to a medical condition she suffers, but which does not prevent her from remaining in fulltime work as a ‘senior manager.’[134] She expressed concern that if Mr Aitchison is repatriated and AA accompanies him, she would have ‘significant financial responsibility’ in helping care for them, which she is nevertheless ‘happy to do.’ Both step-granddaughters are concerned about the emotional impact of repatriation, and that the level of housing and financial support in New Zealand may not provide Mr Aitchison with ‘the resources to set himself up.’[135] It is submitted diminished access to their grandparents may also cause their ‘mental health and overall wellbeing’ to be adversely impacted.
[134] Exhibit A6, 5 [40].
[135] Ibid, 5 [45].
The Tribunal has had regard for the respondent’s written submissions relating to this consideration.[136]
[136] RSFIC, [66]-[72].
Tribunal findings: Strength, nature and duration of ties
Mr Aitchison spent the first 38 years of his life living in New Zealand, and the last 30 years in Australia. Since arriving here he has married, worked and formed strong family, social and work networks. He has remained law-abiding for the majority of his residence.
The Tribunal accepts from the statements tendered in support of Mr Aitchison and from the oral evidence, that he has close and loving relationships with AA, LD, HR, RR and ND, who have continued to support him since his arrest and imprisonment. He also has continuing associations with past work colleagues and friend, one of whom has made a conditional offer of employment. The Tribunal accepts Mr Aitchison’s closest relationships are to Australian citizens or those with a right to remain in Australia indefinitely.
The Tribunal accepts Mr Aitchison has played a prominent role in the lives of LD, HR and RR over the years. It is not accepted, however, that as financially independent adults, these family members continue to be as reliant to on him as they may have been in the past. They have been separated as a result of Mr Aitchsion’s imprisonment and immigration detention for almost six years and the evidence suggests he is now more reliant on them in many respects. Mr Aitchison stated his family members ‘have learned how to take care of themselves’ during his five years in prison and feels he can rely more on them to help support him.[137] The financial implications within the family arising from Mr Aitchison’s possible repatriation are uncertain at best. There is insufficient evidence to reliably assess their current financial circumstances, including whether AA’s Australian pension is portable if she relocated to New Zealand. On the evidence currently before the Tribunal about the earnings of family members through remunerative work or benefits, coupled with the mutually-supporting nature of their relationships, the Tribunal does not accept that they do not ‘have the resources to travel’[138] to visit Mr Aitchison if he is repatriated, but does accept this would be an added imposition.
[137] Ibid, [68].
[138] ASFIC, [68].
The effect of non-revocation would cause emotional hardship and distress for Mr Aitchison’s immediate family in Australia, particularly AA who would be confronted by a very difficult choice about whether she accompanies him to a new life in New Zealand or remains in Australia with her daughter and granddaughters. If AA decided to remain in Australia, this has the potential to exacerbate the family’s emotional distress and perhaps result in a deterioration of their mental health. Ms Ferrari referred to this in her report as potentially causing ‘dire consequences for [Mr Aitchison’s] psychological and emotional functioning , reinforcing the trauma and loss he has already endured and greatly affecting the mental health of his family members whom have had to access treatment themselves due to their inability to cope with his being incarcerated.’ If AA instead chose to accompany Mr Aitchison to New Zealand, that would have the effect of separating her from close and supportive relationships with LD and her granddaughters in Australia. It also has likely consequences for LD, with whom AA currently shares rental accommodation and living costs. Those of Mr Aitchison’s friends and work colleagues who have lodged supportive statements would be disappointed by his removal.
The Tribunal does not consider more weight should be given to Mr Aitchison’s claimed positive contributions to Australia, such as through work and tax contributions. That is particularly so in circumstances where some $4 million has not been recovered from his tax-related offending while working in the transport industry.
The Tribunal finds on balance, particularly given Mr Aitchison’s 30-year residence in Australia and the reliance he and his family members place on their close relationships, that this consideration nevertheless weighs substantially in favour of revocation.
Impact on Australian business interests
Clause 14.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence that any work performed by Mr Aitchison enlivens consideration of Australian business interests within the meaning of the Direction. The Tribunal gives this consideration neutral weight.
Impact on victims
Clause 14.4(1), of the Direction states:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
No submissions were made by the parties in respect of this consideration and the Tribunal affords it neutral weight.
Tribunal consideration: Extent of impediments if removed
Clause 14.5(1) of the Direction states that:
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.
Mr Aitchison lived in New Zealand for the first 38 years of his life before migrating to Australia. He has relatives there and returned on multiple visits over the years, including to assist his parents as their health deteriorated, and to buy his sister and her husband a house. He claims to have two biological sons living in New Zealand from an earlier marriage, but stated he is not close to them and does not know where they live.[139] He said his sons had an ‘off-and-on’ relationship with their grandparents after he moved to Australia, and although the youngest child stayed with him for ‘a few weeks’ some ten years ago, he had not heard from him since and could not rely on either son for support.
[139] Exhibit A1, 8 [78].
Mr Aitchison said his sister resides in a nursing home and while they ‘still have contact,’ are ‘estranged generally.’ He still has contact with his sister’s husband who is on a pension, but Mr Aitchison said he would not live with him because he does not wish to ‘affect his pension.’ Mr Aitchison also referred to ‘cousins and such’ in New Zealand but stated these are ‘not the kind of relationships’ where he could ask for accommodation or other support.
Mr Aitchison’s concerns about returning to New Zealand centre on being separated from his family in Australia, securing stable accommodation, providing for his daily necessities, and accessing prescribed medications. Mr Aleksov submitted that Mr Aitchison was in a ‘far worse’ situation than other New Zealanders who can rely on ‘family as well as a safety net.’ Mr Aleksov said it was ‘often difficult to accept that a first world country’ like New Zealand would allow ‘destitution,’ but submitted that such countries were ‘expensive to live in.’ When asked by the Tribunal what was being specifically contended about the differences in support available in New Zealand compared to Australia, Mr Aleksov stated he did not have that information and relied on a Statutory Declaration by the instructing solicitor in this matter.[140] Ms Smith made a general enquiry with Work and Income New Zealand on 3 June 2020 about ‘entitlements and housing support for senior citizens returned to New Zealand from Australia.’ Mr Aleksov also referred to Mr Aitchison’s oral evidence that ‘he does not think he’ll be able to access to public housing,’ and would have ‘no access to medicine if he does pay for private housing.’ Mr Aleksov contended Mr Aitchison ‘won’t have the capacity to subsist’ and faced the ‘prospect of dying.’
[140] Exhibit A11.

The 2015 sentencing remarks refer to Mr Aitchison having jobs of ‘increasing responsibility’ after arriving in Australia.[141] Ms Ferrari noted in her report that Mr Aitchison advanced throughout his career ‘showing a strong work ethic, diligence, conscientiousness, and a desire and motivation to continue to progress and achieve more for himself and his future.’[142] Mr Aitchison’s evidence is that he was constantly employed throughout his life, including as a national serviceman in New Zealand, diesel mechanic, truck driver, salesman, transport manager, and human resources manager. He claimed in his curriculum vitae[143] to hold six licences in the heavy transport industry, to have a Bachelor of Commerce degree, and to being head-hunted as a ‘National Operations Manager.’ He also claimed to have worked as a ‘Branch Manager’ and ‘National Operations Manager’ in other companies,[144] leading operations, major contracts, purchasing, and tendering. He referred in his 2019 PCF to establishing and being a Company Co-Director of his own business.[145] In his most recent statement he referred to a job offer from a former employer requiring him to work ‘10-12 hours per day,’ stating: ‘I am the kind of person who likes working, so this is good for me. The long hours do not bother me.’[146] Other members of his family, including AA and RR, similarly refer to his realistic prospects of resuming paid employment.[147] Mr Aitchison’s oral evidence was that although he would be happy to return to corporate and managerial roles, he felt his criminal history would count against him if he applied for such roles.
[141] Exhibit R1, 33 [26]; [30].
[142] Exhibit A22, 10 [99].
[143] Exhibit A20.
[144] Exhibit A1, 3 [28].
[145] Exhibit R1, 73;
[146] Exhibit A1, 7 [74]-[75].
[147] Exhibit A6, 4 [37].
Other submissions from Mr Aitchison’s legal representatives are to the effect that if allowed to remain in Australia, he has ‘legitimate job prospects’[148] and is ‘determined to return to work…noting also that he has a conditional offer of employment.’[149] The ASFIC refers to Mr Aitchison’s ‘self-reliant’ family as supporting him ‘emotionally and financially, which reflects a change from their pre-offending relationship…He will not be without financial support as his family members…are willing to contribute to [his] maintenance….The granddaughters of the Applicant…are now aged 25 and 30…Both live away from the family home and earn enough to cover their own needs and contribute to maintenance of their grandparents as required…both are willing and able to contribute to the maintenance of the Applicant also, if he is able to stay in Australia….they have both expressed that they would do whatever it takes to help the Applicant.’[150] Mr Aitchison said in his statement that family members would ‘chip in’ if he and his wife required support, or he could rely on a pension if unable to find work, but they could not provide him with a ‘lump sum’ to re-establish himself in New Zealand.[151] The evidence of several family members and friends corroborates that he could rely on financial, practical, and emotional support if released in Australia.[152]
[148] Exhibit A1, 7 [74]-[75]; ASFIC, [14]; Exhibit R1, 89; 87; 107 [15].
[149] ASFIC, [14].
[150] Ibid, [12]; [22]; [60]-[61].
[151] Exhibit A1, 8 [77]; [84].
[152] See, for example, Exhibit A6, 4 [36].
A letter dated 9 September 2019 from Mr Aitchison’s former general practitioner, Dr Danuta Pucilowski, stated that he suffers from ‘multiple medical problems including diabetes, depression, and musculoskeletal disorders.’[153] That assessment is clearly based on her past consultations with Mr Aitchison, given his oral evidence that his last contact with Dr Pucilowski was shortly before he was taken into custody in 2015. Dr Pucilowski also opines that sending Mr Aitchison back to New Zealand ‘would be detrimental to his mental and physical health,’ and he would ‘leave behind his wife who requires a lot of care.’ A medication summary is attached to Dr Pucilowski’s letter, which refers to Mr Aitchison’s past medical history and medications prescribed to him between October 2013 and January 2015.[154] That record discloses he has suffered back pain and high blood pressure since 2006, high cholesterol since 2008, and diabetes since 2008. He also underwent bariatric surgery in 2010 to help lose weight.
[153] Exhibit R1, 81.
[154] Ibid, 83-84.
In his 2019 PCF Mr Aitchison listed four drugs he claimed to take at that time: one for Hypertension (Amlodipine 10mg daily dose); and three for Type II Diabetes (Empagliflozin, Gliclazide, and Ezetimibe).[155] The Tribunal notes from publicly available information, that Ezetimibe is used to treat high cholesterol rather than diabetes. In the ASFIC Mr Aitchison’s lawyer lists medications, consisting of the four referred to by Mr Aitchison, plus:[156]
(a)Dulaglutide solution for injections (1.5mg/0.5mL solution), which Mr Aitchison requires once a week. The Tribunal notes from publicly-available information this drug is used in the treatment of Type II Diabetes;
(b)Entecavir, which Mr Aitchison receives as a 0.5mg tablet daily. The Tribunal notes from publicly-available information this is an antiviral drug used in the treatment of Hepatitis B;
(c)Perindopril Arginine, which Mr Aitchison receives as a 10mg tablet daily. The Tribunal notes from publicly-available information this drug is used in the treatment of high blood pressure;
(d)Hydrochlorothiazide, which Mr Aitchison receives as half of a 25mg tablet daily. The Tribunal notes from publicly-available information this is a diuretic used to help get rid of excess fluid retention;
(e)Budesonide, which Mr Aitchison uses ‘as needed.’ The Tribunal notes from publicly-available information this is a corticosteroid inhaler used to prevent symptoms like wheezing or shortness of breath; and
(f)Aspirin and antihistamine.
[155] Ibid, 60.
[156] ASFIC [30].
The Tribunal notes a medication chart in evidence dated June 2020 from the International Health and Medical Services (“IHMS”), referring to other medications prescribed for Mr Aitchison, which were not referred to in his evidence or that of his lawyer as follows:[157]
(a)Metformin hydrochloride tablets (1000mg) prescribed to Mr Aitchison daily. The Tribunal notes from publicly-available information this drug is used in the treatment of Type II Diabetes and may be an alternative to Empagliflozin; and
(b)Rosuvastin tablets (10mg) prescribed to Mr Aitchison daily. The Tribunal notes from publicly available information that this drug is used to lower cholesterol.
[157] Exhibit A23. IHMS is contracted by the Commonwealth to provide primary and mental health care to people in immigration detention.
Mr Aitchison’s legal representatives submitted that his access to prescribed medications in New Zealand would be ‘prohibitive due to limitations on available resources and the out of pocket costs associated with each.’[158] In support of that proposition, reliance is placed on a general information pamphlet from titled ‘Information for Visitors and Immigrants to New Zealand’.[159]
[158] ASFIC, [10].
[159] Exhibit A24.
It is submitted by Mr Aitchison’s legal representatives that if repatriated he would be confronted by ‘significant impediments,’ including because of his age, health conditions, and ‘complete lack of social or economic support.’ It is further submitted he would leave behind ‘four vulnerable family members in Australia,’[160] and be unable to ‘re-establish himself in a home or…job in a timely fashion…As a 69-year-old returning to New Zealand post COVID-19, in a recession, with no business contacts, his prospects of employment are extremely low.’[161]
[160] ASFIC, [8].
[161] Ibid, [73]-[75].
A document titled ‘Deported to New Zealand’ from a New Zealand Government site called ‘Work and Income’ was tendered into evidence by Mr Aitchison’s lawyer.[162] That document states:
[162] Exhibit A25.
‘You may be able to get help with initial set up costs if you’ve:
·been in prison or remand for 31 days or more
·been sent back to New Zealand straight after your release.
It can help with things like:
·housing
·living expenses, eg power, a phone connection or food
·other essential costs eg bedding, clothing, appliances or toiletry items
If you’ve got New Zealand residency or citizenship but haven’t lived in New Zealand for 2 years, we may still be able to help, depending on your circumstances.
Call us [Link provided] to discuss your situation.
Need money while you look for work
You’re looking for full-time work and need help to pay day-to-day living expenses until you find a job.
[Link provided]
…’
The Tribunal has had regard for the respondent’s written submissions relating to this consideration.[163]
[163] RSFIC, [75]-[79].
Tribunal findings: Extent of impediments if removed
There is no discernible language or cultural barrier to Mr Aitchison’s repatriation.
Mr Aitchison is 69 years of age and has several comorbidities. He said that his diabetes is currently well controlled with a weekly injection. He also has Hepatitis B, high cholesterol and high blood pressure, which is also controlled through medication. He claimed that a substantial loss of weight while imprisoned and in immigration detention had resulted in his blood pressure medication being reduced to a single tablet daily.
The document from diabetes.org.nz directed at visitors or immigrants to New Zealand is of uncertain relevance to Mr Aitchison, given he is a New Zealand citizen. On his own evidence, Mr Aitchison has not made any enquiries or undertaken any research in respect of continuity of care for his medical conditions in New Zealand, just in relation to work and housing. His evidence is that he would need to consult with a doctor to determine what is required to ensure continuity of prescribed medications.
There is no evidence that the financial, practical and emotional support referred to by Mr Aitchison’s family and friends, would not be available to assist his resettlement in New Zealand. Mr Aitchison, AA and others state he aspires to an immediate return to work, with realistic prospects of doing so in Australia. Given his past work experience in New Zealand and Australia, there is no evidence his work aspirations could not be competitively pursued in New Zealand. The evidence discloses Mr Aitchison has engaged in full-time remunerative work between 2006 and his imprisonment in 2015, despite variously suffering back pain, high blood pressure, high cholesterol and diabetes. He wants to return to work as a truck driver and considers he has five more years of work left at his current age. The research he claimed to have undertaken about jobs in New Zealand relates to general unemployment rather than work opportunities for drivers or other roles relevant to his skills, knowledge and experience. There is no evidence of any employment enquiries or applications he or others have submitted on his behalf, to persuasively corroborate that he has no work prospects in New Zealand. The Tribunal accepts Mr Aitchison does not have the same work connections in New Zealand as in Australia, but it is speculative at best to say he has ‘no hope’[164] of finding work.
[164] Exhibit A1, 8 [84].
Were Mr Aitchison initially unable to find work in New Zealand or needed assistance to ensure continuity of medications, there is no evidence he would be treated any differently to other New Zealand citizens, including in respect of income support, health services, public housing, or other Government benefits.
On balance, the impediments confronting Mr Aitchison at this stage of his life are nevertheless significant. The Tribunal finds this consideration weighs substantially in favour of revocation.
COVID-19 implications
As provided for at cl 14(1) of the Direction, any number of ‘other considerations’ may be relevant. The Tribunal notes the emails in evidence from AA dated 23 March 2020[165] and HR[166] dated 27 March 2020. Both express concerns about Mr Aitchison’s health after he was taken into immigration detention, as a result of his age and comorbidities. AA stated in her email:
‘The Corona virus concerns me greatly for his health in general and well being. He shares a room with another detainee and a common area with 40 others. If this virus strikes with-in the facility, Which is inevitable, I fear for my husbands Life.’
(Errors in original)
[165] Exhibit R1, 202.
[166] Ibid, 203-204.
HR wrote:
‘We are all very concerned for my pop’s health and well-being living inside the Broadmeadows detention centre whilst the Coronavirus pandemic is beginning to peak. My pop is considered a high risk patient as he is a diabetic and an elder. He shares a room with another detainee and a common area with 40 others. If this virus strikes with-in the facility, which is inevitable, we fear for my pops life!’
(Errors in original)
The Tribunal also notes the following reference in the report of forensic psychologist Ms Ferrari following her consultation with Mr Aitchison:
‘Mr Aitchison’s mental state has been further affected by COVID-19 restrictions; his family were visiting him weekly in prison and in detention, however since being in detention, they have only been able to use telephone and video-call facilities to maintain contact.’
A consequence of the Tribunal affirming the non-revocation decision is that Mr Aitchison must be removed to New Zealand as soon as is reasonably practicable (s 198 of the Act). This may take some time given current circumstances, which may result in him spending a longer time in immigration detention than might normally be the case. There is uncertainty regarding the specific consequences if any at this stage, but as noted by Member Eteuati in FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294, at [299], may result in ‘prolonged but not indefinite detention for the Applicant until the risk presented by the virus ... subsides.’ The Tribunal acknowledges the COVID-19 implications, which are beyond Mr Aitchison’s control, constitute an additional stressor for him and his family, and weigh slightly in favour of revocation.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, Mr Aitchison does not pass the character test. In determining if there is ‘another reason’ why the mandatory cancellation of his visa should be revoked, the Tribunal has applied the considerations at Part C of the Direction to the specific circumstances of his case. The Tribunal’s findings are such that it is appropriate to give greater weight to the relevant primary considerations than the other considerations (cl 8(4) of the Direction).
Mr Aitchison’s offending was very serious and although he constitutes a low risk of recidivism, it is nevertheless a real risk. The deemed community expectation weighs against revocation.
The Tribunal does not accept that non-refoulement obligations arise in this matter or that Mr Aitchison is confronted with a binary choice between prescribed medications or the daily necessities of life if repatriated. It currently remains open to Mr Aitchison to make a Protection Visa application.
After spending the last 30 years in Australia, Mr Aitchison has established strong and durable ties to a small group of family members, work colleagues and friends, who are Australian citizens or have a right to remain here indefinitely. He has comparatively limited family connections in New Zealand. Mr Aitchison has made some contribution to the Australian community, predominantly through work in the heavy transport industry, but it is during this work that he defrauded the Commonwealth Government of almost $6 million. Approximately $4 million has not been recovered and is unlikely to be repaid.
Notwithstanding his commendable aspiration to return to work as a truck driver, Mr Aitchison is 69 years of age with several comorbidities. That is not to suggest he does not have realistic prospects of returning to work, just that it would be more difficult to do so in New Zealand, while he was trying to re-establish himself and without the work contacts he has in Australia. He could count on some financial support from family in Australia and, if required, would be entitled to the same support and services available to any other New Zealand citizen. It remains uncertain whether AA would accompany Mr Aitchison to New Zealand, which has the potential to ease the sense of isolation he would feel and enable him to share costs.
In relation to the concerns expressed about Mr Aitchison’s well-being in immigration detention because of the COVID-19 public health emergency, it can be accepted this has caused some stress and uncertainty given his age and comorbidities.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the decision to cancel Mr Aitchison’s visa should be revoked. That is because the two relevant primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ each weigh substantially against revocation. These outweigh the other considerations ‘Strength, nature and duration of ties,’ and ‘Extent of Impediments if removed,’ which each weigh substantially in favour of revocation, and the COVID-19 implications, which weigh slightly in favour of revocation.
DECISION
It follows that the Tribunal affirms the decision under review.

I certify that the preceding 191 (one hundred and ninety one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

……[sgd]…………………….
Associate
Dated: 22 July 2020

Date of hearing: 14 July 2020

Advocate for the Applicant: Mr Angel Aleksov

Solicitors for the Applicant:

Advocate for the Respondent:

WLW Migration Lawyers

Ms Rachael Law

Solicitors for the Respondent:

Clayton Utz Lawyers

Date of hearing:	14 July 2020
Advocate for the Applicant:	Mr Angel Aleksov
Solicitors for the Applicant: Advocate for the Respondent:	WLW Migration Lawyers Ms Rachael Law
Solicitors for the Respondent:	Clayton Utz Lawyers