Amos and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Amos and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4774 (25 November 2021)
Division:GENERAL DIVISION
File Number(s): 2021/6290
Re:Michael David AMOS
APPLICANT

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

Decision
Tribunal:Senior Member Theodore Tavoularis
Date:25 November 2021
Date of written reasons: 20 December 2021
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 2 September 2021 to not revoke the cancellation of the Applicant’s visa.
..........................[sgd]..............................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – mandatory cancellation of the Applicant's Class BB Subclass 155 Resident Return visa – Migration Act 1958 (Cth) s 501CA – Applicant fails to pass the character test – substantial criminal record – sentenced to a term of imprisonment for 12 months of more – whether there is another reason why the cancellation should be revoked – application of Direction No. 90 – where Applicant a citizen of England – decision under review affirmed
Legislation
Drugs Misuse Act 1986 (Qld)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Police Powers and Responsibilities Act 2000 (Qld)
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548
Minister for Home Affairs v Buadromo (2018) 267 FCR 320
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Decision
REASONS FOR DECISION
Issues
Does the Applicant pass the character test?
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
The principles in paragraph 5.2
The Primary and Other Considerations
PRIMARY CONSIDERATION 1 – Protection of the Australian Community
The nature and seriousness of the non-citizen’s conduct to date
Specific incidents
Nightlife precinct incident on 28 October 2001
The Applicant’s drug-trafficking
Additional offending by the Applicant
Other factors in paragraph 8.1.1(1) of the Direction
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The respective positions of the parties on recidivist risk
The report of Professor James Freeman
Cross-examination of Professor Freeman
Questions for Professor Freeman from the Tribunal
Conclusions about risk
Conclusion: Primary Consideration 1
Primary Consideration 2: Family Violence
Who are members of the Applicant’s family?
Did any of the Applicant’s conduct constitute family violence?
Incident one – 9 September 2014
Incident two – threatening phone call to father on 26 October 2015
Incident three – threats to wife on 31 December 2018
Incident four – harassment of adult daughter on 4 February 2019
Incident five – further threats to wife on 9 February 2019
Other domestic violence order contraventions
Assessment of the seriousness of the Applicant’s family violence
Conclusion: Primary Consideration 2
85Primary Consideration 3: The Best Interests of Minor Children in Australia
Identification of relevant children
The respective contentions of the parties
The biological children
The Applicant’s nieces and nephews
The “foster” children
One other matter regarding children
Conclusion
Primary Consideration 4: Expectations of the Australian Community
Conclusion: Primary consideration 4
Other Considerations
(a) International non-refoulement obligations
(b) Extent of Impediments if Removed
(c) Impact on victims
(d) Links to the Australian community
(1) Strength, nature and duration of ties
1. Impact of non-revocation on the Applicant’s immediate family
2. Strength, nature and duration of “other ties” – length of residence
3. Strength, nature and duration of “other ties” – family and other social links
(2) Impact on Australian business interests
Weight allocable to Other Consideration 4: links to the Australian community
Findings: Other Considerations
Conclusion
Is there another reason to revoke the cancellation of the Applicant’s visa?
Decision
REASONS FOR DECISION
Senior Member Theodore Tavoularis
20 December 2021

Michael David Amos (“Applicant”) is a citizen of England who is 38 years old.[1] On 24 July 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister” or “Respondent”) mandatorily cancelled his resident return Class BB subclass 155 under s 501(3A) of the Migration Act 1958 (Cth) (“Act”).[2]
[1]G, 92–93.
[2]See G, 9–11.
He made representations to have the mandatory cancellation of his visa revoked, in accordance with s 501CA of the Act. The Minister’s delegate decided not to revoke the mandatory cancellation decision on 2 September 2021 (“Reviewable Decision”).[3]
[3]G, 9–11.
The Applicant appealed the Reviewable Decision to this Tribunal on 6 September 2021. A hearing was held before me on 4 and 5 November 2021. The hearing received both oral and written evidence. The written evidence was reduced to an agreed Exhibit List, which is attached to this decision and marked Annexure A.
On 13 October 2021, to ensure the Tribunal discharged its statutory function on or before the 84^th day, in accordance with s 500(6L) of the Act, I caused the Tribunal to publish my decision in this matter in short-form.[4] A copy of the short form decision is attached to these reasons and marked Annexure B.
[4]Khalil v Minister for Home Affairs (2019) 271 FCR 326 underscores that there is a distinction between the decision of the Tribunal, which discharges the obligation under s 500(6L) of the Act and the Tribunal’s written reasons (which can be delivered at a later time): See [41]–⁠[48].
I now publish my detailed reasons for that short-form decision.
Issues
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this sub-section provides that:
(4)       The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
As mentioned, the Applicant has previously made the necessary representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[5]
[5](2018) 267 FCR 320, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 [38] (North ACJ); Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal is compelled to find that the cancellation of the Applicant’s visa must be revoked.[6] I will address each of these grounds in turn.
[6](2018) 267 FCR 320 [21].
Does the Applicant pass the character test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 23 June 2020, the Applicant was sentenced in relation to a large variety of criminal offences.[7] For present purposes, I note the Applicant was sentenced to five years imprisonment in relation to his conviction for a single count of trafficking in dangerous drugs.[8]
[7]See [‎26]–[‎41], below.
[8]G, 42–45.
I am therefore satisfied the Applicant satisfies the definition in s 501(7)(c) of the Act and thus fails the character test. It follows that he cannot rely on s 501CA(4)(b)(i) of the Act for revocation of the mandatory cancellation.
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“Direction” or “Direction 90”) has application.[9] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
“Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[10]
[9]Direction 90 commenced on 15 April 2021. It revokes Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
[10]Direction, paragraph 6. See also Direction, paragraph 4(1) which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to “provide a framework within which decision-makers should approach their task” under s 501 or 501CA, as the case may be. Summarised where appropriate, the principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four “Primary Considerations”, and four “Other Considerations” which I must be guided by in making my decision.
The Primary Considerations I must take into account are:
“(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.”[11]
[11]Direction, paragraph 8.
The Other Considerations which, where relevant, I must take into account “include but are not limited to”:
“a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests”[12]
[12]Direction, paragraph 9(1).
Paragraph 7 of the Direction also provides guidance as to how to take into account each primary and other consideration. Briefly summarised, the Direction instructs decision-makers that:
(1)information from independent and authoritative sources should be given appropriate weight;
(2)Primary Considerations should “generally” be given greater weight than Other Considerations; and
(3)One or more Primary Considerations may outweigh other Primary Considerations.
The guidance in paragraph 7 of the Direction I have quoted above does not differ materially from the guidance which appeared in former directions. In Suleiman v Minister for Immigration and Border Protection, Colvin J said of the former Direction 65 that:
“…Direction 65 [a predecessor to Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 [(now Direction 90)] concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[13]
[13](2018) 74 AAR 545 [23].
I will now turn to addressing the abovementioned Primary and Other considerations.
PRIMARY CONSIDERATION 1 – Protection of the Australian Community
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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.
I will consider each in turn.
The nature and seriousness of the non-citizen’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the factors set out in paragraph 8.1.1(1) of the Direction.
I will set out a brief chronology of the Applicant’s offending, and explain my view on the nature and seriousness of the offending based on the factors in paragraphs 8.1.1(1)(a)–(c) in relation to each.
Specific incidents
Nightlife precinct incident on 28 October 2001
On 28 October 2001 (when the Applicant was 18 years old), the Applicant was in the nightlife precinct at Surfer’s Paradise. A police document records:
“ASSAULT POLICE X 1, DISORDERLY CONDUCT, OBSTRUCT POLICE X 1 Offender has kicked the complainant with his right foot in the complainant's right leg.”[14]
[Errors in original]
[14]R2, 125.
In terms of its seriousness, I note the following. The facts that (1) this crime was of a violent nature;[15] and (2) it was committed against at least one government official in the performance of their duties both tend toward a finding that the offence was at least serious.[16] On the other hand, the sentence imposed by the court was a fine, which is at the very low end of the sentencing range for the three offences he was charged with. This tends to show the offence was not very serious. Overall, I am of the view that this particular offence appears to be serious.
[15]Direction 8.1.1(1)(a)(i).
[16]Direction 8.1.1(1)(b)(ii).
The Applicant’s drug-trafficking
The Applicant’s abovementioned drug-trafficking offending also involved him being sentenced in respect of 32 summary charges. They ranged from, for example, driving without a license while disqualified from driving, two charges of possessing property suspected of having been used in connection with a drug offence – and the like. What matters for present purposes is that on 23 June 2020, the Applicant came before His Honour Justice Boddice of the Supreme Court of Queensland and was sentenced on:
·one count of trafficking in a dangerous drug,
·two counts of possessing a dangerous drug in excess of two grams,
·three counts of possessing a dangerous drug, and
·one count of possessing a weapon, being a category H weapon.
The Applicant received credit for entering a plea of guilty to both the summary and indictable offences. When sentencing the Applicant, Justice Boddice said the following about the nature of the Applicant’s offending:
“Your offending is serious. For a period of approximately five and a-half months, you engaged in trafficking in dangerous drugs. The primary drug was methylamphetamine, but you did also on occasions offer other drugs such as GHB, MDMA, and cannabis.
Your drug trafficking occurred in the context of a significant addiction to the drug, methylamphetamine. You had at least 47 customers. The offending involved a repetitive aspect to it. It was largely street level, although on occasions it was higher quantities. It is properly to be described as persistent trafficking over that extended period of time.
That is very serious offending, even allowing for the fact that you were an addict yourself.
During the course of that trafficking period, you came to the attention of police. You were found, on the first occasion you came to the attention of police, to be in possession of a large quantity of methylamphetamine. On that occasion, you were found to have almost 30 grams pure methylamphetamine.
Despite having come to the attention of the authorities, you continued on with your trafficking operation. When you next came to the attention of police on 27 July 2019, you were found to have almost 50 grams pure methylamphetamine. That persistent nature of your offending, despite having come to the attention of the authorities, is an aggravating feature of your conduct.
That said, the possessions of those drugs plainly are particulars of the trafficking count. You also were found in possession of a number of other drugs when you came to the attention of the authorities. The view I take is that counts 2, 3 and 4 are properly to be seen as particulars of the trafficking count.
Count 5 relates to the possession of both oxycodone and cannabis. In those circumstances, because it includes the two drugs, it cannot properly be seen as a particular of the trafficking count. I will impose a concurrent short period of imprisonment in relation to that count.
The weapons offence is a serious offence. To have such a weapon in your possession is of major concern in the community. It is rightfully to be viewed as a serious offence by this Court. I will, however, see it as part of your overall criminality and impose a sentence of imprisonment which will again be served concurrently with the overall sentence. Count 7 also will attract a period of imprisonment, but it will be served concurrently.
In respect of the summary offences, they are all serious matters. Some of them in themselves should attract periods of imprisonment. One must, the evasion offence. However, again, I propose to look at it in the context of your overall criminality, particularly as all of this offending occurs in the context of this serious addiction to drugs.”[17]
[17]G, 38–39.

As best as I understood his Honour’s sentencing remarks, none of the Applicant’s offending described in this quoted part of the sentencing remarks involved any indicia comprising “violent and/or sexual crimes”,[18] “crimes of a violent nature against women or children”, [19] or “acts of family violence”. [20]
[18]Direction, 8.1.1(1)(a)(i).
[19]Direction, 8.1.1(1)(a)(ii).
[20]Direction, 8.1.1(1)(a)(iii). Note: while I understand the sentencing remarks referred to “domestic violence offences”, I am referring only to the Applicant’s drug-trafficking and associated charges that are referred to in the specific quoted portion of His Honour’s sentencing remarks.
I feel compelled to say something about the specific issue of the Applicant’s family violence offending. It is clear from Justice Boddice’s sentencing remarks that the Applicant was dealt with (and sentenced) for domestic violence offences. I am mindful of the specific content of paragraph 8.1.1(1)(a)(iii) of the Direction which specifically provides that acts of family violence, regardless of whether a conviction for an offence or a sentence is imposed, may be found to be very serious. One of the difficulties with applying the Direction to specific family violence conduct or offences is the relatively unfettered nature of how paragraph 8.1.1(1)(a)(iii) is drafted. It allows a decision-maker to take into account “acts of family violence regardless of whether there is a conviction for an offence or a sentence imposed.”[21]
[21]Direction, 8.1.1(1)(a)(iii).
I am also mindful that Boddice J dealt with the Applicant arising from unlawful family violence-type conduct. Be that as it may, and although the terms of paragraph 8.1.1(1)(a)(iii) do, strictly speaking, allow application of this sub-paragraph towards an assessment of the nature and seriousness of the Applicant’s conduct I am also mindful of the separate task imposed by paragraph 8.2 of the Direction. The configuration of paragraph 8.2 also facilitates the consideration of conduct amounting to family violence even in the absence of duly recorded convictions for such conduct.
I am therefore of the view that to take into account the Applicant’s family violence-type conduct for the purposes of both paragraphs 8.1.1(1)(a)(iii) and 8.2 of the Direction must surely amount to double-counting or, put another way, double-referencing. I will refrain from applying the componentry of paragraph 8.1.1(1)(a)(iii) in any assessment of the nature and seriousness of the Applicant’s conduct. Instead, I will make detailed reference to that specific conduct for the purposes of applying paragraph 8.2 of the Direction and allocating appropriate weight to it.
Focussing primarily on the nature and seriousness of the Applicant’s drug-trafficking conduct, the initial observation must be that both sub-paragraphs (a) and (b) of paragraph 8.1.1(1) of the Direction both commence with the words “without limiting the range of conduct that may be considered” very serious (or serious). To my mind, this means that I can make an attribution of the level of seriousness to the Applicant’s drug-trafficking offending independent of those two sub-paragraphs.
As noted by Justice Boddice, the Applicant was engaged in the trafficking of dangerous drugs for approximately five and a half months. There was commerciality to the operation. The Applicant was found to have had at least 47 customers and the offending had a repetitive aspect to it. While the offending involved trafficking at a street level and the Applicant was sentenced on the basis that, on occasion, the Applicant’s trafficking activities involved the provision of high quantities of drugs. Justice Boddice noted “it is properly to be described as persistent trafficking over that extended period of time.”[22]
[22]G, 38.
It should also be noted that the sentence imposed by Justice Boddice for the Applicant’s drug trafficking offending was substantial. In summary form, the Applicant was sentenced to:
·5 years imprisonment for trafficking in dangerous drugs;
·18 months imprisonment for being in unlawful possession of a category H weapon;
·6 months imprisonment for possessing dangerous drugs specified in schedule 1 or 2 of the Drugs Misuse Act 1986 (Qld); and
·3 months imprisonment for possession of dangerous drugs specified in schedule 1 or 2 of the Drugs Misuse Act 1986 (Qld).[23]
[23]G, 41–45.
The sentences imposed are indicators that each of these offences were very serious. This is because a sentence of imprisonment is a last resort.[24] The inescapable reality for the Applicant is that his offending punished in June 2020 was of such a magnitude that at just the one sentencing episode, he received seven years and three months of head custodial time for the indictable offences he committed. When one bears in mind that his last brush with the law was in November 2001 – some 19.5 years earlier – to receive a cumulative head custodial sentence over seven years for the one sentencing episode is, to my mind, significant. Overall, I am of the view that the Applicant’s drug trafficking, drug possession and weapon possession charges are all, cumulatively, very serious.
[24]See PNLB and Minister for Immigration and Border Protection [2018] AATA 162.
Additional offending by the Applicant
When sentencing the Applicant in June 2020, Justice Boddice also dealt with the Applicant for two offences against the authority represented by the police. Those offences are described as: obstruct police officer (on 27 July 2019);[25] and an evasion offence (on 16 May 2019).[26]
[25]Pursuant to s 790(1)(b) of the Police Powers and Responsibilities Act 2000 (Qld).
[26]Pursuant to s 754(2) of the Police Powers and Responsibilities Act 2000 (Qld).
The material records the evasion offence thus: on 16 May 2019, police attempted to intercept a grey Isuzu vehicle being driven by the Applicant along Kingston Road, Woodridge. The police record then states that “the vehicle failed to stop and pull over as required upon police activating their warning lights and siren and decamped along Kingston Road, Woodridge.”[27]
[27]R2, 17.
The material records the obstruct police officer offence, which occurred on 27 July 2019, thus:
“[…] police observed a black Ford Falcon bearing false registration and at the Caltex Service Station on Kingston Road, Kingston. Police observed a male person rush back towards the vehicle while failing to stop after been given a verbal direction by police.”[28]
[28] R2, 10.
I am of the view (and I find) that these are crimes committed against government representatives or officials in the performance of their duties. The offending is indicative of a finding that the totality of the Applicant’s offending has been of a very serious nature.
Other factors in paragraph 8.1.1(1) of the Direction
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction compels an inquiry into the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. Caution must be exercised with approaching the Applicant’s criminal history. At first blush, it is a history that, in terms of sentencing episodes, runs for nearly 20 years. One’s initial thought is that the Applicant is a classic typical frequent offender who was always before the courts across that 20 year period. Such a thought would be understandable if the person cursorily reviewing the history was told the Applicant had compiled some 42 convictions (seven indictable offences and 35 summary offences) across that 20 year period.
However, that would be to mis-read and mis-comprehend the history. The Applicant committed three offences for which he was convicted in November 2001. He was then convicted for the balance of 39 offences in June 2020. His offending has not been frequent across the almost 20 year span of his history. What can be fairly said about his history is that for the period of approximately 2018–2019, the Applicant’s unlawful activities in the realm of illicit drugs was, on any objective view, very frequent. Across a span of, at best, three years, he was convicted for 39 offences. For that three year period, his offending was most certainly frequent.
Similar caution is required towards an analysis of any trend of increasing seriousness in his offending. The simplistic answer is to say that his seven convictions for indictable offences in June 2020 were obviously and undeniably more serious offences than the three summary offences for which he was convicted in November 2001. Given the significant span between sentencing episodes (November 2001 to June 2020), it would not be accurate to say that there is any gradual detectable trend – over the 19.5 years of the history – of any increasing seriousness.
But this does not assist the Applicant. His offending that came before Justice Boddice in June 2020 was so concentrated in terms of the sheer number of offences committed and so serious in terms of the indictable offences committed that there is no escaping the reality that, even though he was last convicted in 2001, the Applicant’s most recent bundle of 39 offences must be found to demonstrate an increasing level of seriousness over what he had done previously. To be clear, I am of the view that there is really no requirement to look for “increasing” seriousness in the offending. Obviously, his later offending is more serious than what he did earlier. But the later offences are of such a magnitude of concentration and seriousness that to resist the finding of increasing seriousness would be, to my mind, a futile exercise.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires an inquiry into the cumulative effect of an Applicant’s repeated offending. To my mind, several cumulative effects are apparent from the Applicant’s offending history. First, there are repeated offences that speak to a failure to develop any measure of respect for the lawful authority governing the community back into which the Applicant now seeks re-admission. I have earlier referred to his refusal to appreciate the lawful authority represented by the police who, in the course of their duty, have the lawful right to compel citizens to do or refrain from doing something. He has respective convictions for “obstruct police officer”, “assault police officer”, “contravene direction or requirement” (from a police officer) and “evasion offence” (due to a failure to pull over in his car when pursued by the police).
There are two convictions for him possessing explosives without first obtaining the necessary authority to do so. There are also five convictions for breaches of bail and one conviction for failure to appear in accordance with a bail undertaking. Each of these offences involve a deliberate refusal to meet the requirements of lawful authority expressed in the form of an individual police officer issuing a direction or as required by applicable regulations to a given activity. While I will more fulsomely address the issue of domestic and family violence later in these reasons, it suffices to say that the Applicant, in June 2020, was also dealt with on five counts of contravening a domestic violence order.
Second, an additional cumulative effect of the Applicant’s repeated offences dealt with in June 2020 seems to be a demonstrated failure on his part to come to grips with his quite significant issues with illicit drugs that completely disoriented his life and caused him to offend in a very serious way. The following dot-pointed convictions were dealt with as summary offences. I will assume his convictions for the indictable offences refer more to the commerciality behind his offending and that the summary convictions are more primarily a reference to his own issues with illicit drugs. With reference to the latter category, there are respective convictions for:
·possession of property suspected of having been used in the commission of a drug offence (two convictions);
·possession of utensils or pipes etc that had been used (three convictions);
·failure to keep restricted drug in the person’s possession until used (two convictions).
During his evidence in cross-examination, the Applicant agreed that he first came to the attention of the police in late February 2019. The vehicle he was driving was searched and a not insignificant amount of methylamphetamine weighing about 45 grams (in total) was found. Although he came to the attention of police in February 2019 and was arrested, he was released on bail. He agreed that this initial confrontation with lawful authority did not cause him to change his behaviour. It did not constitute any type of wake-up call because
“[…] the need for the drug was overpowering, you know. It wasn’t – that’s what an addiction is. I didn’t have a – I needed to have it, you know. That was the thing that I had to have. It was like having food or air, I needed the drug and that’s how I could get it you know.”[29]
[29]Transcript, 40, lines 27–31. See also Transcript, 39, lines 27–47; 40, lines 1–24.
The Applicant’s difficulties with illicit drugs have caused him to continue offending, and it was after this initial confrontation with police in February 2019 that he committed the conduct, resulting in him being later charged and convicted of trafficking in dangerous drugs.
Paragraph 8.1.1(f) compels an inquiry into whether the Applicant has provided false or misleading information to the department, including by not disclosing prior offending. There are detailed movement records in the material.[30] Those records evidence something like eight overseas trips having been taken by the Applicant from approximately mid-1998 to the early part of 2014. Doubtless to say that on each of his returns to Australia he would have been compelled to complete the usual incoming passenger card requiring him to disclose any earlier offending history in Australia. As mentioned earlier, he was convicted of three offences in November 2001. I am not aware of any document or other reference in the material pointing to a failure on the part of the Applicant to incorrectly complete an incoming passenger card upon any of his returns to Australia. This sub-paragraph is not relevant.
[30]G, 92–93.
Paragraph 8.1.1(g) looks for any formal or other warnings communicated to the Applicant in writing, about the consequences of further offending in terms of his visa status to remain here. I have looked carefully through the material and cannot see any reference to a warning from either the Respondent Minister (or any other entity) warning the Applicant about the consequences of his commission of further offences on his migration status to remain here. This sub-paragraph is not relevant.
I have had regard to all of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction. With particular reference to my analysis of the weight allocable to sub-paragraphs 8.1.1(1)(b)–(e). I am of the view that the totality of the Applicant’s offending can be readily categorised as “very serious”.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Sub-paragraph 8.1.2(2)(a) compels an inquiry into the risk to the Australian community in the event the Applicant were to re-engage in further criminal or serious conduct. Specifically, this sub-paragraph requires an assessment of the nature of the harm likely to be suffered by or occasioned upon individuals or the Australian community were the Applicant to re-offend.
The nature of the harm which flows from drug trafficking is that the community continues to be exposed to illicit drugs. This causes physical and mental health issues across society. It also contributes substantially to other criminal activity. It consumes an inordinate percentage of the community’s law enforcement, judicial administration and healthcare resources. It not only adversely – often catastrophically – affects the lives of individual drug users, but it also adversely affects those drawn within its orbit including domestic partners, children of the relationship, and members of the addict’s extended family.
This Applicant’s offending profile has numerous facets. Many of those facets could be said to be allied to (1) his difficulties with addiction to illicit substances and (2) his very serious offending in the realm of trafficking in dangerous drugs. Those additional offences, including offences relating to weapons or contraventions of domestic violence orders and even traffic offences, have the capacity to inflict anything ranging from unnecessary administrative action to potential and actual physical, psychological and economic harm. It is not beyond the realms of possibility that this Applicant’s involvement in the unlawful provision of drugs into the community could have – and may well already have had – a catastrophic impact.
Such a view has the endorsement of those charged with the responsibility of overseeing Australia’s national drug strategy. Those learned people have opined thus about the multifaceted nature of harm presented by methamphetamine use and distribution in the community:
“Ice can have a major impact on the individuals who use it. Users can experience a wide range of serious physical, psychological and behavioural effects. But the impacts extend beyond the individual. When a person uses ice, it can cause substantial stress for the family—for children in particular.
There are also broader costs to the community, including additional challenges for frontline workers and increased crime.'”[31]
[31]See the quote in R1, 8[37].
Having regard to principle 5.2(5) of the Direction, I am of the view that the Applicant’s conduct involving trafficking in dangerous drugs and the harm that would be caused were he to repeat such offending in the community is so serious that even the presence of strong countervailing considerations may well be insufficient to justify not revoking the mandatory cancellation of his visa.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Prior to making a finding about the Applicant’s level of recidivist risk, it is necessary to summarise the competing contentions respectively put by the parties.
The respective positions of the parties on recidivist risk

It is contended on behalf of the Applicant that there are defined protective factors militating against the risk of future offending. Those factors are said to comprise:
“It is submitted that the Applicant has a low risk of reoffending because:
(a) the Applicant previously lived in the Australian community from 22 November 1987 to December 2018 without criminal conviction – that is a period of 31 years;
(b) the Applicant has not used illicit drugs since his incarceration in July 2019, despite drugs being readily available in correction and immigration detention facilities;
(c) the Applicant has a solid support base, composed of family, friends, colleagues and community contacts;
(d) he has engaged in pertinent and relevant rehabilitation;
(e) the deterrent effect of prison, immigration detention, and the visa related proceedings on the Applicant and now very real knowledge of possible deportation;
(f) the deterrent effect on the Applicant of being separated from his children while he has been incarcerated, and the insight this has provided him of what might become a permanent circumstance of separation if he is deported; and
(g) a sound prevention plan, which includes ongoing rehabilitation with reputable services, and has multiple offers of employment which aligns with the Applicant’s past work history and skill set.”[32]
[32]A1, 9[45]–10[45].
The Applicant’s SFIC also contains reference to programs undertaken by the Applicant during his incarceration,[33] as well as programs he has undertaken during his time in immigration detention.[34] There is also reference to courses and rehabilitative measures the Applicant intends to do, or has made enquiries about doing, upon a return to the community.[35]
[33]See A1, 8[42]–9[42].
[34]See A1, 9[43].
[35]See A1, 9[44].
The Applicant’s SFIC also makes reference to the positive impression the Applicant’s rehabilitative steps had on Justice Boddice who in his sentencing remarks said:
“The references refer to your being a very considerate, loving son, father and uncle. Each of those references speak about events occurring in your life, including the loss off, effectively, your employment, the breakdown of your marriage and the turning to drugs in order to cope. As you have discovered, they do not help. They have only made matters much, much worse for you.
I have regard to those matters as indicating that you do have good prospects of rehabilitation. You have a solid support base around you, which you will need in order to overcome such an addiction to drugs. At the moment, the courses you have undertaken in custody indicate that you are motivated to overcome that addiction.”[36]
[36]G, 39–40. Note: out of an abundance of caution, I point out that the specific passage of the sentencing remarks quoted in this particular paragraph of the Applicant’s SFIC is the second of the above two quoted paragraph that starts with “[…] I have had regard to those matters […]”. I have added the preceding paragraph purely for the purposes of adding context to the learned judges sentencing remarks.
According to the Respondent’s SFIC, the Applicant continues to represent an unacceptable recidivist risk to the Australian community due to the following factors:
·his failure to appreciate any deterrent effect after initially coming to the attention of the police in February 2019 when found in possession of something in the order of 45 grams of methamphetamine;
·his failure to develop any measure of respect for lawful authority represented by numerous breaches of bail, domestic violence orders and a failure to comply with other lawful instruments compelling him to do or refrain from doing something;
·many of the protective factors now propounded to militate against future recidivist risk were present at the time of his most serious offending;
·although his list of (1) courses completed in criminal custody, (2) courses completed in immigration detention, and (3) courses intended to be commenced and/or completed upon a return to the community, the ultimate determinant of his capacity to refrain from a return to illicit drug abuse and to consequently very seriously offend, can only be known after a return to the community. In this sense, his recidivist risk remains untested;
·finally, particular stressors and triggers are said to be causative of the Applicant’s past offending. Those feelings of cataclysm and hopelessness he experienced as a result of relationship conflict affecting either himself, those in his immediate vicinity, together with issues of economic stricture and difficulty, are all matters that may again feature in his life.[37]
[37]R1, 8[39]–9[39].
Further, the Respondent contends that even assuming the Applicant is found to represent a low recidivist risk, such a risk should nevertheless be found to be unacceptable to the Australian community having particular regard to potential consequences of further drug trafficking offending by this Applicant on that community.
The report of Professor James Freeman
At the hearing before me, Professor James Freeman, consultant psychologist (forensic – clinical) provided both written and oral evidence. His report is dated 28 October 2021 and is thus contemporaneous with determination of this matter. Professor Freeman conducted two telephone sessions with the Applicant on 25 & 28 October 2021. He was provided with a voluminous amount of material by the Applicant’s solicitors by way of instructive brief.[38]
[38]A3, MA184[1.1]–[1.3].
It suffices to say that Professor Freeman is a person of considerable expertise and experience in the assessment of recidivist risk and that he has, on numerous occasions, assisted the Tribunal with his views, opinions and findings.[39] It also suffices to say that Professor Freeman has made himself familiar with the Applicant’s criminal history, his relationship history, and his history with drug and alcohol use.[40]
[39]A3, MA192. It also suffices to say that Professor Freeman has appeared before this Tribunal in a number of cases involving assessment of the likelihood of re-offending.
[40]A3, MA185–MA187.
Professor Freeman’s clinical assessment involved a mental state examination which revealed no observable abnormalities in the majority of factors informing that examination. Those factors included mode and affect, memory, speech, cognition, thought patterns and level of consciousness. This clinical assessment revealed the Applicant to have a “Methamphetamine Dependency Disorder” which Professor Freeman thought was “in partial remission in a controlled environment”.[41]
[41]A3, MA187[10]–MA188[10].
Professor Freeman also recorded the Applicant telling him that his methamphetamine dependency had (a) created a range of clinical impairments in psychosocial functioning and (b) directly led to the commission of offences. Be that as it may, the clinical assessment revealed that the Applicant presented to Professor Freeman with functional levels of intelligence with no evidence of impairment. There was no evidence of any form of personality disorder nor was there any “engrained aggressive, violent or anti-social tendencies, particularly in regards to the use of reactive or premeditated violence”.[42] Professor Freeman could find no other observable abnormalities or other key criteria reflective of personality disorders.
[42]A3, MA188[10.5].
Professor Freeman conducted an actuarial risk assessment by way of the Hare Psychopathy Check List (“PCL(R)”).[43] The scoring methodology for this testing method is redolent in Professor Freeman’s report.[44] According to Professor Freeman the Applicant received a total raw score of four that equates to a percentile rank of 1.3. He was of the view that the Applicant’s “[…] score is well below the average prisoner’s ranking and also falls below the cut off raw score of 30 in order to be classified as suffering from psychopathy.”[45]
[43]A3, MA189[12]–190[12].
[44]A3, MA189[12.1].
[45]A3, MA189[12.2].
In terms of “clinical summary, risk assessment and concluding remarks”,[46] I understood Professor Freeman’s report to say the following:
·in terms of causative stressors behind the Applicant’s falling into methamphetamine dependency, Professor Freeman identified those stressors as “business failure”, “relationship rupture”, and “reduced contact with his children”; [47]
·he thought these stressors “likely fuelled increasing use of methamphetamines”[48] which resulted in the Applicant’s addiction to those substances;
·he thought the Applicant’s very serious offending history “can be directly attributed to his methamphetamine dependency and need to acquire resources to fund the addiction”;[49]
·in terms of the pivotal issue around recidivist risk, Professor Freeman opined that it “[…] relates almost exclusively to [the Applicant] avoiding relapsing into methamphetamine dependency and avoiding alignment with a negative peer support group (that promotes such usage)”.[50]
·he thought the Applicant had developed a “[…] sufficient level of insight into the extent of his substance abuse […]” and that he recognised the “[…] link between his substance abuse and offending […]”;[51]
·in the final analysis, and pursuant to his structured professional judgment, Professor Freeman thought that if the Applicant can sustain lasting abstinence from methamphetamine abuse, “[…] his prospects for the future can be considered optimistic.”[52]
·As to the level of recidivist risk, Professor Freeman thought the Applicant “[…] can be considered in the low risk category for recidivism.”[53] This categorisation was predicated on the Applicant remaining vigilant against a relapse into illicit drug abuse “[…] for an extended period of time.”[54]
·Finally, Professor Freeman thought the parole order imposed on the Applicant “[…] may prove to have a further salutary effect upon the risk of shorter-term recidivism.”[55]
[46]A3, MA190[13].
[47]A3, MA190[13.1].
[48]A3, MA190[13.1].
[49]A3, MA190[13.2].
[50]A3, MA190[13.3].
[51]A3, MA190[13.3].
[52]A3, MA190[13.4].
[53]A3, MA190[13.4].
[54]A3, MA190[13.4].
[55]A3, MA191[13.4].
Cross-examination of Professor Freeman
Professor Freeman was asked about the nature of the relationship between the Applicant and his former wife. He confirmed that he understood they enjoyed a stable relationship for about 10 years after which time the relationship experienced instability and general incompatibility. He confirmed that the relationship became increasingly unstable after separation and after his commencement of using methamphetamines. With specific reference to the Applicant’s breaches of domestic violence orders, Professor Freeman confirmed that these were the result of the Applicant’s need to make contact with the children of the marriage.[56]
[56]See Transcript, 94, lines 31–39.
He was specifically asked whether the Applicant had explained the basis of the relationship’s instability to him. Professor Freeman responded thus:
“No. I tried to press him a bit on this, and I came to the conclusion well, after his consistent responses that it was just general incompatibility, there wasn't a high level of hands on offending between the two.”[57]
[57]Transcript, 94, lines 44–47.
He was specifically taken to a further domestic violence incident in 2014 involving the Applicant, his daughter, and his former wife. It transpired that Professor Freeman was not aware of this incident and that if he had been, the Applicant’s PCL(R) score may well have changed. Ultimately, he thought it would not change his overall assessment of the Applicant’s recidivist risk, but it was something meriting further exploration:
“MS TINLIN: Were you aware that there was another domestic violence incident in 2014 that involved him – the applicant's evidence was that he'd smacked his daughter five times, and then, pushed and held down his ex wife and initially refused to let her leave, and this all, sort of, occurred in front of the children?
PROFESSOR FREEMAN: No, I was not aware of that.
MS TINLIN: Okay, and would that have any bearing on your opinion of the applicant, any considerations in your report, with respect to that incident?
PROFESSOR FREEMAN: Yes, yes. One, there would have to be a consideration well, if he was intending in any way to have – to reunite with his ex partner, or there would have to be implications in regards to the family dynamic. So I'd have to ask about that. Two, I may score him one higher on the PCL R, because it does appear that there was some hands on offending. So there is that slightly increased risk there, where he has previously engaged in those behaviours, and I would have to ask him what the origins of it are. You've, sort of, put me on the spot, so I'd need to know more about why he smacked his child on the bottom five times and what made him do it and what he thought he was going to achieve from it. Yes.
MS TINLIN: Yes, try (indistinct)?
PROFESSOR FREEMAN: It would not, if I could be blunt, it would not change my overall assessment of the applicant.”[58]
[58]Transcript, 95, lines 5–25.
Professor Freeman was then taken to the Applicant’s history of abusing amphetamines in his late 20s and then methamphetamines due to the latter’s more ready availability. He confirmed that the Applicant’s reliance on illicit drugs increased significantly when “[…] he was exposed to those emotional stressors, such as the business failure, the rupture of his marriage.”[59] He confirmed that the Applicant’s difficulties with illicit drugs was augmented as a result of him aligning himself with a pro-drug support network where methamphetamine consumption was condoned and promoted.[60]
[59]Transcript, 95, lines 37–39.
[60]Transcript, 95, lines 45–46; 96, line 1.
He agreed that the Applicant had enjoyed a relatively stable childhood, obtained trade qualifications, had a very limited criminal history, and enjoyed a relatively good level of mental health prior to his experiencing those stressors and resorting to illicit drug abuse. He thought “[t]his is a classic case, in my opinion, of the deleterious effects of the drug. He’s actually enjoyed a relatively stable lifestyle, and it’s all fallen apart, and it’s more than just a coincidence that methamphetamines are associated with it.”[61]
[61]Transcript, 96, lines 12–15.
He was then specifically asked about a recurrence or re-emergence of factors in the Applicant’s life that could result in the same or similar stressors that caused him to become addicted to illicit drugs. According to his evidence, Professor Freeman thought there were two primary risks:
“There are two risks. One, his risk of relapsing into methamphetamine. But the second factor, which is very closely linked, is he needs to avoid alignment with a negative peer support group. Your comment before about many people are exposed to stressors and they don't use drugs, yes, I agree. But hopefully those people aren't associating, or their friends don't use amphetamines, and then, methamphetamines.”[62]
[62]Transcript, 96, lines 31–36.
He was then taken to his clinical assessment and to the concept of partial remission to which he referred: “methamphetamine dependency disorder, partial remission in a controlled environment”.[63] He was asked about the concept of partial remission and responded thus:
“What this means is that, yes, he had a methamphetamine dependence disorder, and it's in partial remission because he's in a custodial environment. So if he was to be released from a custodial environment, and he didn't relapse, well then, we could say it's in full remission. But currently, we can only say it's in partial remission because he hasn't been tested back in the community. So that's just a way for the clinician to, yes, to say he's in remission, but it's got to be proven in the community.”[64]
[63]Transcript, 97, lines 6–7.
[64]Transcript, 97, lines 13–19.
He was specifically asked whether the extent of the Applicant’s remission is unclear because whatever remission has been achieved thus far has only occurred in a controlled environment. He said this:
“MS TINLIN: Okay, thank you for clarifying that. So would it be fair to say, then, that the extent of the remission, it's unclear and in a controlled environment at this stage in his rehabilitation process, so upon release, if he's released back into the community, it's unclear of that, sort of, risk at this stage of relapse?
PROFESSOR FREEMAN: That's a good question. I wouldn't use the word unclear. I would use the word not proven. So he clearly has a stated intention to not relapse and get back to his former life. Look, as a clinician, I'm just hedging my bets, knowing how addictive methamphetamines can be, that he's got an intention, but we need to make sure that that equates to subsequent behaviour.”[65]
[65]Transcript, 97, lines 21–30.
Professor Freeman was then taken to the concept of vigilance as it repeatedly expressed in his report. He was specifically asked about high risk situations that could imperil the Applicant’s capacity to maintain vigilance against a risk of returning to illicit drug abuse:
“Yes, okay. At paragraph 3.4, you mention that methamphetamine dependency is usually chronic and requires lasting aftercare, vigilance against high risk situations. What would you mean by high risk situations in respect of the applicant? Exactly. Good question. High risk situations would be aligning himself, or having contact with, a negative peer support group who have access to the drug. That would be a high risk situation.”[66]
[66]Transcript, 97, lines 37–42.
He was then asked to further explain the concept of lasting vigilance as a means of militating against a risk of relapse. He responded thus:
“MS TINLIN: Yes. When you say lasting vigilance, can you explain a bit more about that? Is that in relation to, then, a lasting, I suppose, risk of relapse?
PROFESSOR FREEMAN: […] You're always vulnerable to relapse. In my time in treatment previously, yes, it's really encouraging to talk to people, it doesn't matter how long they've maintained abstinence, they're always vigilant of those relapse. Like, there has been some research to indicate that, yes, people who don't think they're going to relapse, or there's any risk there, in fact, are a high risk group. So that aftercare will extend on. He'll be on parole for a period of time, but he'll need to be vigilant for an extended period of time. It just depends on personal circumstances, I can't answer how long that would be.
MS TINLIN: Yes?
PROFESSOR FREEMAN: But longer the better.”[67]
[67]Transcript, 98, lines 9–10, 14–24.
Finally, Professor Freeman was asked whether his assessment of low recidivist risk was primarily predicated on the Applicant being able to refrain from abusing illicit drugs while in the community. He responded with this: “[t]hat is 100 per cent correct. Obviously, if he was to relapse, then all bets would be off, and the chance would understandably go up, of offending.”[68]
[68]Transcript, 98, lines 28–30.
Questions for Professor Freeman from the Tribunal
At the conclusion of Professor Freeman’s cross-examination, I sought to put several questions to him. The first of those related to two specific regimes of drug testing to which the Applicant would be subject upon a return to the community. The first relates to urine testing as part of his parole release conditions. The second related to the requirement on him to undertake hair follicle testing as a precondition to him exercising his rights under the relevant parenting plan relating to the children he has with his former wife:
“SENIOR MEMBER: So he's got those two hurdles, one of which is essential, that is the parole. The other one, I think, is optional, because I think from his evidence he can bring the parenting plan into place when he wants. Do you think both of those testing regimes speak positively to his low recidivist risk if returned to the community?
PROFESSOR FREEMAN: That's a good question, and I think this is a classic case of the protective factors of a parole order. While I write them many times in the reports, I think this example - I couldn't agree with you more, this is a clear example: he has to abide by the conditions of parole; he has to engage in the testing; he clearly wants to have some contact with his children again, and I apologise for labouring the point but I cannot overemphasise the importance of the specific deterrent effects. He is clearly intelligent enough to know what will happen if he does reoffend. It's very clear to him. So, that is another protective factor in addition to parole. He cannot misstep. If he does misstep, well then it's various serious consequences for him.”[69]
[69]Transcript, 105, lines 22–36.

Second, I identified specific stressors that had occurred in this Applicant’s life. I wanted to know whether, if they recurred, what the likelihood would be that the Applicant would not again resort to illicit drug abuse and very seriously offending. I told Professor Freeman that as a relatively young man of barely 40, there was every likelihood that such serious and cataclysmic threats and stressors would most likely become a presence in the Applicant’s life again:
“SENIOR MEMBER: […] he has been confronted with specifically defined stressors, and he has identified them, for example, with the separation of the parents; the cataclysm that was presented to him, him specifically, by the father's dreadful conduct in effectively abandoning the business and putting the applicant directly in harm's way, financial harm's way, and of course now the situation with the ex wife and the children. He's a young man, he's not even 40, and it's very reasonable to expect that he is going to face similar cataclysms in the future, maybe just as bad, maybe worse. I know there's no certainty in predicting these things, but what can you tell the tribunal about his future levels of resilience towards those kind of cataclysmic threats?
PROFESSOR FREEMAN: It's a very good question, and essentially there will always be some unknowns. When I give evidence in this tribunal I don't profess to be able to see the future with 100 per cent clarity. The pressing issue for me with this matter is what he has learnt from his experience of having everything taken away from him, including his liberty whilst held in a custodial environment: one, what he has learnt, and then two, his ability to achieve his release plan. So, one, he clearly doesn't want to be incarcerated, and he clearly does not want to be sent to his place of birth, and they should be strong modifiers to his behaviour, but there will always be an element of unknown in regards to what will happen if he is exposed to future stressors in the future. What I hope, and I'll finish with this - what I hope is that he has now learnt that there are a number of different support networks, interventions, which he can rely on to assist him get through it, which arguably he wasn't aware of before.
SENIOR MEMBER: Thank you?
PROFESSOR FREEMAN: But I can't say with 100 per cent certainty, Senior Member.”[70]
[70]Transcript, 105, lines 41–47; 106, lines 1–18.
Third, I sought an explanation from Professor Freeman about his use of the word “considered” in his assessment of the Applicant’s recidivist risk which expressed as follows: “[…] he can be considered in the low risk category for recidivism”:
“SENIOR MEMBER: Are you inviting me to consider that he should go into the category or can be put into the category of a low risk of recidivism, or are you saying he is there? Are you saying: I have considered the factors and I have put him there?
PROFESSOR FREEMAN: That's a very good question, Senior Member, and you've heard me give an immense amount of evidence in recent times, and you're aware of how cautionary I am in regards to predicting the future and categorising people, because there are limitations with the approach. So that is James[71] sitting on the fence a little bit and saying he can be considered in the low risk category, but essentially I am saying if he avoids relapse into methamphetamine, his risk of reoffending is low.”[72]
[71]Note: this is Professor (James) Freeman referring to himself.
[72]Transcript, 106, lines 26–35.
Conclusions about risk
It can be accepted that the Applicant has completed certain rehabilitative and preventative programs during his time in both criminal custody and immigration detention. There is credible evidence of an intention to further engage with those kinds of supportive elements upon a return to the community. This does not, however, mean that the Applicant is risk-free. Professor Freeman has told us that his propensity to abuse illicit drugs is, at best, in a state of partial remission in a controlled environment. The ultimate determinant of the Applicant’s capacity to refrain from using drugs remains to be proven in the broader community.
There is an unsettling element to the evidence of the Applicant. He speaks of a return to the same general area inhabited by the negative peer group that assisted and facilitated his predisposition to abuse illicit drugs. That predisposition to abuse illicit drugs spawned his very serious offending. It is similarly unsettling that individuals from that negative peer group have maintained a certain level of contact with the Applicant during the period of his removal from the Australian community.
The Applicant is a relatively young man, barely into his middle-age. He comes from a very stable and loving family which not only provided him with his infant nurture but also, for all intents and purposes, provided him with his career. He therefore placed great emotional store in the stability he came to know and rely on, in the form of his parents’ marriage and their capacity to bring him into the fold of his father’s painting and decorating business. In a similar way, the Applicant placed great emotional store and reliance on the relationship with his now ex-wife. Their relationship extended back to the time of them being schoolground sweethearts (as it were) to the point where they married and had children. So there can be no denying the Applicant came to rely – not just financially but emotionally – on those frameworks.
As his life evolved through his 20s and 30s, each of those frameworks was shattered. His parents’ marriage failed. The father who was previously both a social and business role model to the Applicant came to be regarded by him as a disappointing and betraying scoundrel. His marriage to his wife and mother of his children with whom he must surely have spent a number of wonderful and loving years (both as her spouse and the father of their children) failed. The painting and decorating business into which his father had led him, both as a tradesman and as a business proprietor, failed, and catastrophically so, with very serious financial repercussions that were visited directly and personally upon this Applicant.
These respective failures are, on any reasonable view, at the very heart of the Applicant’s psychopathology that spawned his descent into self-loathing. The Applicant felt helpless and desired to escape that perceived state of calamity. He resorted to the alternate reality he thought was represented by illicit drugs. I am of the view that these stressors – in the specific context of this Applicant’s life – are behind his past drug issues and consequential very serious offending.
For me, the real question about recidivist risk relative to this Applicant is this: he is a relatively young man who will try and re-establish his life, most probably with another domestic partner and most probably as a painting and decorating contractor. He will also try and re-establish his life with his biological children he has had with his ex-wife. He is barely 40. None of these re-establishment endeavours have been commenced or are in any way near a form of realisation. That is because of the predominant role drugs have played in his life, and because of his very serious offending as a result of those drugs. So the remaining question about recidivist risk comes down to this: if allowed back into the community and he again experiences (1) the failure of a domestic relationship; (2) the failure of another relationship close to or around him (say, for example, a failed relationship of one of his children with a partner or a breakdown in any future relationship between him and any one of his children); and (3) the failure of another business venture or model upon which he relies for his livelihood and as a result of which failure he again becomes exposed to financial risk and uncertainty – will this Applicant be able to resiliently resist those stressors and deal with them in a way that does not result in a further recourse to illicit drug abuse?
The answer to this question, according to Professor Freeman, is multi-faceted. He has told us that the ultimate test involves a capacity to abstain from illicit drugs in the general community. He has told us that methamphetamine dependence is usually chronic in nature and requires lasting and determined vigilance to prevent a relapse. He has also told us that the Applicant will remain vulnerable to illicit drug abuse and that this will be the case for a lasting period of time.
Professor Freeman is not only a very learned and capable clinician, but he is also a frank and honest one. He made it plain that if the Applicant relapses as a result of a further failure to deal with the abovementioned (or other) stressors, then “all bets would be off”[73] and the Applicant’s recidivist risk would rise or otherwise become unknown. For present purposes, which comprises the possible cusp of the Applicant’s return to the community, Professor Freeman’s evidence goes no higher than saying the Applicant is “[…] in remission, but it’s got to be proven in the community.”[74]
[73]Transcript, 98, lines 29–30.
[74]Transcript, 97, lines 18–19.
The Respondent’s contention is that the Applicant “[…] poses a real and significant risk of reoffending.”[75] That may be expressing his recidivist risk perhaps a little unrealistically in circumstances where the Applicant has not had an opportunity to re-establish himself in the community. In my respectful opinion, a more likely and sustainable description of his recidivist risk is that it remains unknown. It is only known within the confines of the closed communities – criminal custody and immigration detention – in which the Applicant has found himself and in which he has undertaken his rehabilitative steps.
[75]R1, 9[40].
Perhaps it is safest not to cavil with Professor Freeman’s assessment of a low recidivist risk. While this clinician has expressed the risk as “low”, there are the remaining factors of (1) that risk not being tested in the community and (2) that risk not being tested against the recurrence of cataclysmic stressors that he faced in the past. I am of the view that even though the Applicant’s risk is low, he nevertheless represent a not insubstantial recidivist risk. To the extent that his current recidivist risk may now be reliably benchmarked against the risk prevailing at the time of his incarceration, is something that can only be reliably determined by the Applicant’s return to the community.
Conclusion: Primary Consideration 1
With reference to the weight attributable to this Primary Consideration 1:
(a)I have found that the nature and seriousness of the Applicant’s conduct has been very serious;
(b)I have assessed the risk to the Australian community of this Applicant committing further offences or engaging in other very serious conduct by having regard to my respective findings that:
(i)the nature of the harm if the Applicant re-offends includes potential and actual physical, psychological and economic harm. It is not beyond the realms of possibility that this Applicant’s involvement in the unlawful provision of drugs into the community could have – and may well already have had – a catastrophic impact;
(ii)I have found that while I tentatively accept Professor Freeman’s assessment of a low recidivist risk, I am of the view that (1) that risk remains to be tested in the community; and (2) that risk remains to be tested against the recurrence of past cataclysmic stressors that so adversely disoriented the Applicant’s lifestyle and choices; and (3), without certainty about the immediately preceding factors (1) and (2), the only safe conclusion is that the Applicant continues to represent a not insubstantial recidivist risk.
Having regard to the totality of the material before the Tribunal, I am of the view (and I find) that this Primary Consideration 1 carries a strong, but not on its own, determinative weight, against the revocation of the mandatory cancellation of the Applicant’s visa.
Out of an abundance of caution and for the sake of completeness, I make reference to paragraph 8.1.2(2)(c) of the Direction. I do not consider that specific paragraph to be relevant to determination of the instant application. This matter does not involve a “refusal to grant a visa to a non-citizen”. It involves an application for the “revocation” of a decision to mandatorily cancel the Applicant’s visa.
Primary Consideration 2: Family Violence
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
Prior to an application of this paragraph 8.2 to the material, I think it necessary to note that it contains two questions: (1) I must determine who a member of the Applicant’s family was; and (2) I must determine whether any of the Applicant’s conduct against those family members amounts to family violence. I will now address each question in turn.
Who are members of the Applicant’s family?
As best as I understood the material, it can be safely found that the Applicant had the following family members at the following times:
·the Applicant’s former wife was a member of his family until the time of their divorce;
·his biological children are members of his family; and
·his father is a member of his family.
Did any of the Applicant’s conduct constitute family violence?
“Family violence” is defined in the Direction. It is defined as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.”[76] To my mind, therefore, the definition poses two separate questions:
·Was the Applicant's conduct violent, threatening or other behaviour that coerces or controls a member of his family?
·Alternatively, was the Applicant's conduct violent, threatening or other behaviour that caused a family member to be fearful?
[76]Direction, paragraph 4.
There are five relevant incidents. I will consider each in turn.
Incident one – 9 September 2014
The relevant police report in the material,[77] records the Applicant becoming involved in the commission of family violence conduct towards his then 13 year old daughter and his former wife. With respect to the former, he administered a form of corporal punishment that involved him smacking her five times on her bottom. In his evidence, the Applicant sought to explain this as the administration of father-child discipline and nothing further. As a result of the administration of this discipline, the Applicant’s former wife took him to talk about it. He responded aggressively, threatening to punch her, and eventually pushing her onto the bed, pinning her down on the bed, and then shoving her.
[77]R2, 117.
This conduct then evolved into the Applicant’s attempt to prevent his former wife from calling the police by unplugging the landline and seizing her mobile phone. Further, when the former wife attempted to leave the house with the children, the Applicant is recorded as having put his hand over her mouth and taking her to the ground. Both the former wife and the children commenced screaming which had the result of causing the Applicant to cease his physical interference on the former wife.
First, I must be satisfied that the police document which contains this information was sufficiently independent and authoritative for the purposes of paragraph 8.2(2)(b) of the Direction. It was clearly made contemporaneously with the occurrence of this incident. It carries an undeniable level of reliability and authoritativeness because it was made by the police who were undeniably independent of the circumstances of the incident.
Second, I must decide whether what occurred was family violence. The Applicant smacked his child five times as a means of discipline. That is violent behaviour which is designed to control a person. It is family violence. Further, the Applicant applied physical force to his ex-wife, and this was violent, threatening behaviour that sought to coerce or control her. I also find that this behaviour caused the ex-wife to be fearful. It is therefore family violence.
Incident two – threatening phone call to father on 26 October 2015
As mentioned earlier, things did not end well between the Applicant and his father – either on the personal front or the business front. There is and remains undeniable ill-feeling between them. On 26 October 2015, as a result of that ill-feeling the Applicant became involved in making threats to his father during a telephone conversation between them. He is recorded to have said “I’m gonna come over and kick your fucking head in and if you think I’m worried about the Police they can’t stop me and you know you can’t.” In addition, the relevant police report records that “[…] the [Applicant] has openly admitted to police that he did threaten to bash his father […] and stated that a piece of paper would not stop him.”[78]
[78]R2, 106.
First, I must be satisfied that the police document which contains this information was sufficiently independent and authoritative for the purposes of paragraph 8.2(2)(b) of the Direction. It was clearly made contemporaneously with the occurrence of this incident. It carries an undeniable level of reliability and authoritativeness because it was made by the police who were undeniably independent of the circumstances of the incident.
Second, I must decide whether what occurred was family violence. The Applicant telephoned his father and said life-threatening words. Those words were surely designed to control the father. I infer that the father was fearful because he reported the conduct to the police. It is family violence.
Incident three – threats to wife on 31 December 2018

The Applicant’s age and state of health are not, to my mind, impediments such as to problematically impede his re-settlement in England. Likewise, I do not think such resettlement would be impeded by any substantial language or cultural barriers. To the extent he may require medical support in that country, he will have access to the same healthcare apparatus as is publicly available to other citizens of that country. While noting his evidence about his apparent estrangement from his two uncles, he nevertheless has family in England, and it is not beyond the realms of possibility that he could find temporary support through them. Economically, he can find work in England as a brush-hand or labourer. His evidence was that, with the completion of the meeting of other administrative requirements, his painting and decorating qualifications obtained in Australia could be applied towards re-qualification in the same trade in England.
Overall, this Other Consideration (b) only marginally assists the Applicant. It is of moderate weight in favour of the mandatory cancellation of his visa.
(c) Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of a section 501 or 501CA decision 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 information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence from any of the victims of the Applicant’s offending about their views on whether the Applicant should remain in Australia. Therefore, this Other Consideration (c) is not relevant.
(d) Links to the Australian community
Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community.
There are two factors which I must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature and duration of ties to Australia; and (2) the impact on Australian business interests. I will consider each in turn.
(1) Strength, nature and duration of ties
With reference to the first part of this Other Consideration, it is necessary to consider three elements. First, it is necessary to have regard to the impact of any non-revocation decision on the Applicant’s “immediate family” where those people have a right to remain in Australia indefinitely. Second, it is necessary consider the impact of a non-revocation decision by taking into account the strength, nature and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to assess the strength, nature and duration of any family or social links the Applicant may have with people who have an indefinite right to remain in Australia. I will address each component in turn.
1. Impact of non-revocation on the Applicant’s immediate family
The Applicant’s immediate family comprise:
(a)His mother;
(b)His father;
(c)His Sister, Ms CG;
(d)His Sister, Ms NS;
(e)His Sister, Ms RA; and
(f)His adult daughter, Ms CA.
Taking each of these family members in turn, I make the following observations and findings. I will presume each of the following people are Australian citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely:
·the Applicant’s mother did not give oral evidence at the hearing. She has, however, provided a written statement.[126] As would be expected of a mother speaking about her own child, the Applicant’s mother speaks positively of the Applicant. She describes him as a “lovely, kind, helpful man he is very sensitive and tries to use humour to mask his sensitivity.” She makes reference to the business relationship between the Applicant and his father (her former husband). She describes her former husband as “being very viscous [sic] and threatening and causing so much trouble”. She identifies the Applicant’s difficulties in coming to grips with the breakup of the business relationship with the father as being the start of the Applicant’s “[…] downward spiral of self-destruction and caused the breakdown of his marriage which compounded his behaviour.” She confirms that the Applicant continues to provide her with domestic support and assistance and adds that upon his return to the community, “[…] he will be coming to live with me I have a 3 bedroom home and live on my own I will be there beside Michael to support him and help him along with his sisters and the rest of our extended family and friends he has a lot of support and help waiting for him on his release.”
[126]A2, MA162. Note: all quotes in this paragraph come from this statement.
It seems clear that the Applicant’s mother will be adversely impacted as a result of the Applicant’s removal from Australia.
·The Applicant’s sister, Ms CG, gave oral evidence at the hearing. She has also provided a written statement. The following exchange occurred during her evidence-in-chief:
“MS SAMUTA: And just my last question - how will you be impacted if Michael is deported to England?
MS CG: […] If he gets deported (indistinct) I don’t know - I really don’t know how I would cope with that. Because he’s always - he’s always been there for me since I was a little girl. He’s been there with me when I separated from my husband. He’s been there for me with my daughter, with the kids that I looked after. He’s been there for me for everything. And I don’t - I don’t think that I would cope too well if he wasn’t with me, and if he was over there. So to answer that question, no, I - you know, I know it would affect Michael, but it would definitely make a huge impact on my life.”[127]
[127]Transcript, 73, lines 41–42, 44–47; 74, lines 1–5.
Ms CG’s written evidence largely echoes what she said in evidence in chief:
“If he gets deported back to England, Mikes support will be forever missing in my life as he will never be able to come back to Australia. If I am not in a good frame of mind, how can care for my child […]? It will be like a knock on effect, taking one out after another. Mike is our main puzzle piece in our family, if missing it will never be whole.”[128]
[Errors in original]
Having regard to the totality of the oral and written evidence of Ms CG, there is little to cavil with the proposition that she would be adversely impacted by the Applicant’s removal to England.
·Ms NS: this particular sister of the Applicant did not provide oral evidence. I have also checked the written material and I am unable to locate any written statement from her. Her three children have, however, provided respective statements and it is reasonable to infer from those statements that the Applicant has played a supportive role in the life of this particular sister. Accordingly, I inferentially find that she would be impacted by his removal. Any weight allocable to such a finding must be moderated by the extent to which Ms NS did not give oral evidence and has not provided her own written statement.
·Ms RA: this sister of the Applicant did not provide oral evidence. Nor has she provided written evidence, nor is there any statement from a child or children of hers.[129] It is thus difficult to glean any measure of adverse impact she may experience as a result of the Applicant’s removal. It would be unsafe to allocate any weight to her for the purposes of this particular question posed by the Direction.
·Ms CA is the adult daughter of the Applicant. She has now reached the age of 20. To the best of my understanding of the material, she has not provided a written statement. She also did not provide any oral evidence at the hearing. We therefore do not know the level of any adverse impact she may experience in the event of the Applicant’s removal. It would be unsafe to allocate any measure of weight to this immediate family member for the purposes of this particular question posed by the Direction.
[128]A2, MA171.
[129]To the best of my understanding of the evidence, this particular sister is the mother of the abovementioned newborn child: See footnote 85, above. It is therefore plausible that this particular sister of the Applicant has had her attention dominated by the inevitably significant responsibility of looking after her newborn child.
Having regard to the evidence of the Applicant’s mother, his sister Ms CG, and the inferential finding I have made about the sister, Ms NS, I am of the view (and I find) that the strength, nature and duration of the Applicant’s ties to his immediate family members comprising, specifically, his mother, his sister Ms CG and other sister Ms NS, carries a certain, but not determinative, weight in favour of revocation.
2. Strength, nature and duration of “other ties” – length of residence
The first enquiry relevant to determining the extent of the Applicant’s “other ties” involves the question of how long he has resided in Australia and whether he came here as a young child. He arrived in Australia as a 4 year old in November 1987. He was therefore a young child when he first came here. He has predominantly resided here since the time of his first arrival. The relevant movement records indicated he has spent something in the order of 3–4 months outside of Australia during all of his time here.
I will now make reference to the two tempering sub-elements relevant to the allocation of weight to this second component of paragraph 9.4.1. With reference to paragraph 9.4.1(2)(a)(i), the Applicant’s earliest conviction in Australia dates from November 2001. This is some 14 years after his arrival. Thus, it would be unsafe to find that he began offending “soon after arriving in Australia”. Accordingly, it is not possible to apply this first tempering element referred to in paragraph 9.4.1(2)(a)(i) against the Applicant.
With reference to paragraph 9.4.2(a)(ii) I am required to ascertain the extent of the Applicant’s positive contributions to the Australian community. There can be no question that the Applicant has contributed to the Australian community.[130] Those contributions seem very likely to continue. There is little to cavil with the evidence of the independent painting contractor and business proprietor, Mr JM, who gave evidence at the hearing that he would be more than happy to offer the Applicant employment in his business upon release into the community.[131] Further, there can be little to cavil with the proposition that if returned to the community, he will again play a role in the lives of his nieces and nephews (and, indeed, his own biological children) and to the extent that that role may involve broader community engagement, this assists the Applicant pursuant to second tempering sub-paragraph.
[130]See [‎173], above.
[131]See Transcript, 80, lines 39–47.
To my mind, pursuant to paragraph 9.4.1(2)(a)(ii) of the Direction, the length of time the Applicant has spent in the community carries a certain, but not determinative, weight in favour of restoring the Applicant’s visa status to remain here.
3. Strength, nature and duration of “other ties” – family and other social links
I have identified the following individuals as people falling within this category, each of whom, I will presume, are Australian citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely. They comprise:
·the Applicant’s Maternal Aunt Ms JW: she did not give evidence at the hearing but has provided a written statement.[132] She has known the Applicant all her life and has experienced great shock as a result of being made aware of the Applicant’s criminal offending. She describes the Applicant as being “so helpful and kind to my whole family […]”. She is also aware of the Applicant’s personal and business difficulties from the breakdown of the relationship between the Applicant and his father. I am of the view that there is a measure of strength and duration in the nature of the Applicant’s family links with Ms JW.
·Ms VW is the Applicant’s cousin: she did not give oral evidence but has provided a written statement.[133] As is the case with the Applicant, she describes herself as a “recovering drug addict”. Also like the Applicant, she has spent time in jail, but says she has overcome her addiction for a period approaching three years. She speaks of regularly attending narcotics anonymous meetings and that she wants to do so with the Applicant to assist “him with his recovery in any possible way.”
I am of the view that there is a measure of strength and duration in the nature of the Applicant's family links with Ms JW.
·Ms NC is a cousin of the Applicant on his mother’s side. She is married to Mr MC: neither gave oral evidence but each has provided a written statement.[134] Ms NC emigrated from England to Australia 26 years ago. The couple married about 5 years after Ms NC came to Australia. Both are aware of the Applicant’s offending. Ms NC acknowledges that the Applicant has made “[…] some mistakes and some bad choices over the last couple of years […]”. She says the Applicant’s current difficulties stem from two marriage breakups: his parents’ and his own. She is aware of the Applicant’s past difficulties with illicit drugs and says that she wants to assist him to forever overcome that addiction.
I am satisfied there is a measure of strength and duration in the nature of the Applicant's family links with Ms NC and Mr MC.
·There is reference to a further cousin of the Applicant, a Mr DW, in the Applicant’s SFIC.[135] I have checked the written material and cannot see any written statement from this cousin. He did not give oral evidence at the hearing either. It would thus be unsafe to allocate any measure of whatever strength and duration there may exist in any family relationship between the Applicant and Mr DW.
·Mr JW is recorded in the Applicant’s SFIC as an uncle of the Applicant.[136] I cannot find any written statement from this uncle in the material. He did not give oral evidence at the hearing. It is thus unsafe to allocate any measure of whatever strength and duration there may exist in any family relationship between the Applicant and Mr JW.
·Ms AS is recorded in the Applicant’s SFIC as his grandmother.[137] She did not give oral evidence at the hearing and I am not able to find any reference in the written material to a statement from her. I cannot therefore allocate any measure of strength and duration to any family relationship between the Applicant and Ms AS.
·Mr PA is the Applicant’s uncle. Although he did not give oral evidence at the hearing, he has provided a written statement.[138] Mr PA is the proprietor of a painting and decorating business. As was the case with Mr JM, this uncle is willing to offer the Applicant a job upon a return to the community. He says “[…] I will have a job position of head painter waiting for him […]”. He says this position of employment “will always be there for him.”
I am satisfied there is a measure of strength and duration in the nature of the Applicant's family links with Mr JM.
[132]A2, MA151. Note: all quotes in this paragraph are from this document.
[133]A2, MA174. Note: all quotes in this paragraph are from this document.
[134]Ms NC’s statement appears at A2, MA167. Note: all quotes in this paragraph are from this document. Mr MC’s statement appears at A2, MA168.
[135]A1, [83](p).
[136]A1, [83](q).
[137]A1, [83](r).
[138]A2, MA176. Note: all quotes in this paragraph are from this document
With specific reference to this third question posed by this Other Consideration (d) I have identified the following people with whom the Applicant may have social links relevant for present purposes. In referring to these individuals I have assumed that they are Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
·Ms AS is a registered cabler who has provided two written statements.[139] She did not provide oral evidence. She runs a small business with her husband, Mr WS. She has known the Applicant for 14 years having first met him through one of his sisters. She knows the Applicant to be a good father. She is also aware that the Applicant “was struggling with some personal issues that have led to some poor choices.” She says the Applicant “[…] has expressed to me many times how sorry he is for the hurt and anguish this has caused his family and friends.” She concludes her statement by saying the Applicant “[…] has a good support network of family and friends that are willing to help however we can.”
[139]A2, MA169. The first statement is dated 18 May 2020. The second statement is dated 10 August 2020. The quotations in this paragraph are from the second statement.
I am satisfied there is a measure of strength and duration in the nature of the Applicant's social links with Ms AS.
·Ms DB has provided a written reference that appears in the material.[140] She has not provided oral evidence. She has been married for 40 years and has two adult children and three grandchildren. She is an educated lady with degree qualifications in Human Services and a Masters Degree in Criminology and Criminal Justice. She is aware of the Applicant’s criminal offending and says she has been surprised by it because “[…] I believe that he is a genuinely good person and would not intentionally cause harm to others.” It transpires Ms DB has known the Applicant for approximately two years because, at the time she wrote the letter, the Applicant had been dating her daughter for that amount of time.[141] She has found the Applicant to be polite and courteous to others and particularly respectful and considerate towards her daughter. She speaks of the Applicant and her daughter “[…] making plans for when he is released from jail.” She says the Applicant “[…] wants to return to the workforce and support my daughter to raise my grandchildren and to create a family home.” She says she is supportive of this scenario “if he remains off drugs.”
[140]A2, MA144. Note: all quotes in this paragraph are from this document.
[141]Note: it is doubtful whether the relationship is still on foot. See [‎162]–[‎163], above.
To the extent the Applicant successfully resumes his liaison with Ms DB’s daughter, I am satisfied there is a measure of strength and duration in the nature of the Applicant's social links with Ms DB.
·Mr DG has known the Applicant since their secondary school days. He has provided a written statement but did not give oral evidence.[142] He remembers the Applicant “[…] as a person of great character, a very loyal friend and a committed and dedicated father and husband.” He says that upon learning of the Applicant’s imprisonment, he became “deeply shocked as that in no way represents the person I knew.” He believes the Applicant deserves a second chance to have his visa restored to him due to Mr DG’s strong belief that the Applicant “[…] has the greatest opportunity for success in Australia.”
[142]A2, MA145. Note: all quotes in this paragraph are from this document.
To the extent the Applicant re-connects with Mr DG on a return to the community, I am satisfied there is a measure of strength and duration in the nature of the Applicant’s social links with Mr DG.
·Ms FG has been a close family friend of the Applicant for numerous years and has known the Applicant since he was 13 years old. She has provided a written statement, but did not give oral evidence.[143] She hails from Cairns and has not lived in Brisbane for the last 7–8 years and has not spoken to the Applicant during that period. She has however stayed in contact with the Applicant’s mother. She recalls the Applicant as a positive and respectful person with a strong work ethic who is always willing to go the “extra mile” for those around him. She considers that the tumultuous breakup of his parents’ marriage and the resulting business difficulties visited on the Applicant “[…] may have taken a toll on his emotional wellbeing.” These difficulties were compounded, she says, by the breakdown of his own marriage and his estrangement from his own children. She considers that the Applicant’s actions “are totally out of character from the young man I know.” She thinks the Applicant’s future conduct in the Australian community will be “dedicated to making amends for his actions and rebuilding and maintaining positive and caring relationships with his children.”
[143]A2, MA146. Note: all quotes in this paragraph are from this document.
To the extent the Applicant may re-connect with Ms FG, I find there is a measure of strength and duration to the nature of the Applicant’s social links with Ms FG.
·Ms JI has known the Applicant for about 20 years and initially met him through her friendship with one of his sisters. She has provided a written statement but did not give oral evidence.[144] She is aware of the Applicant’s difficulties with the law and has a belief that “[…] what has occurred in his personal life has impacted [the Applicant]”. She regards the Applicant as “a good man with a beautiful heart.”
[144]A2, MA149. Note: all quotes in this paragraph are from this document.
To the extent the Applicant may re-connect with Ms JI, I find there is a measure of strength and duration to the nature of the Applicant’s social links with Ms JI.
·I have already made reference to the witness Mr JM who is the person I have cited as being in a position to offer the Applicant employment in the painting and decorating trade upon a return to the community. His written statement is in the material,[145] and he provided oral evidence at the hearing. He has known the Applicant for about 5–6 years and, through their mutual involvement in the painting and decorating trade, they became “good friends”. He has not seen the Applicant since the Christmas/New Year period at the end of 2018/2019. He was “extremely surprised” to hear of the Applicant’s difficulties with the law and thought such conduct to be “very out of character” for him. His written statement confirms the abovementioned offer of employment and the additional assurance that Mr JM has “[…] no hesitation in recommending him to anyone.”
[145]A2, MA150. Note: all quotes in this paragraph are from his first statement dated 12 May 2020. There is also a second statement dated 16 April 2021: A2, MA175.
To the extent he re-connects with Mr JM, I find there is a measure of strength and duration to the nature of the Applicant’s social links with Mr JM.
·Ms KMG has known the Applicant for 23 years. She has provided a written statement but did not give oral evidence.[146] She is best friends with the Applicant’s sister, Ms CG. She says she “[…] spent most of high school years at […]” at the Applicant’s family home. Although she now resides in Victoria, she confirms that “[…] we still get together when I visit QLD in the school holidays.” She also confirms the Applicant’s respectful and polite demeanour and considers his offending (of which she is aware) to be “completely out of character and does not reflect his true moral values.”
[146]A2, MA152. Note: all quotes in this paragraph are from this document.
To the extent the Applicant maintains contact with Ms KMG, I find there is a measure of strength and duration to the nature of the Applicant’s social links with Ms KMG.
·Ms MEA is part of the Applicant’s extended family. She has provided a written statement but did not give oral evidence.[147] She has known the Applicant from a time before the Applicant even started his schooling. She is aware of the Applicant’s life history and is specifically aware that the breakup of the marriage of the applicant’s parents “had a devastating affect [sic] on all his family but it seemed extra hard for [the Applicant] as it was the ending of his business partnership because of the toxic climate with his father who couldn’t accept [the Applicant’s] close tie to his mother.” She is aware of the Applicant’s difficulties with the law and she does not think it represents “the person we have known.”
To the extent the Applicant maintains contact with Ms MEA, I find there is a measure of strength and duration to the nature of the Applicant’s social links with Ms MEA.
·Ms MC has been friends with one of the Applicant’s sisters for approximately 12–13 years and this is how she has come to know the Applicant whom she regards as a “long-time family friend.”[148] Ms MC has provided two written statements,[149] and also provided oral evidence at the hearing. She performs a role parallel to that of a social worker with an early intervention and prevention community centre facility that is funded by the Salvation Army. Her role involves the provision of support for families and their children to help them achieve healthy development.[150] She regards the Applicant as a “quite caring, very family oriented, generally a happy-go-lucky kind of guy.”[151] She is aware of the Applicant’s criminal history and attributes it to “[…] quite a breakdown in family relationships with his wife and perhaps hanging it [sic] to [sic] some not so friendly type of people that led to drug addiction and abuse of drugs.”[152] In her role, she is able to facilitate the Applicant’s involvement with psychological support and rehabilitative services. [153]
To the extent the Applicant maintains contact with Ms MC, I find there is a measure of strength and duration to the nature of the Applicant’s social links with Ms MC.
·Ms MT is a registered nurse who has lived next door to the Applicant and his family for about six years. She has provided a written statement but did not give oral evidence.[154] She says her husband worked for the Applicant’s father and that “we were close to [the Applicant’s] family.” She recalls the Applicant as a polite and caring person who previously had a close relationship with his father. She too believes that the adverse circumstances resulting from the breakup of his parents’ marriage deeply affected the Applicant.
To the extent the Applicant re-connects with Ms MT, I find there is a measure of strength and duration to the nature of the Applicant’s social links with Ms MT.
·Mr NF has lived in Queensland for 30 years. He has provided a written statement but did not give oral evidence.[155] His connection with the Applicant’s family goes back to 1992 when he was employed by the painting and decorating business operated by the Applicant’s parents. He says that he and his family became good friends with the Applicant’s family “[…] and spent many hours socialising with them [(i.e., the Applicant’s parents and their children)], and holidaying with them. Our children grew up together.” When the Applicant first obtained his trade qualifications he worked under the supervision of Mr NF. Mr NF eventually formed his own business in 1999 but nevertheless continued to see the Applicant and his family “in and around the community.” He considers that “significant family situations that I understand have happened” have led to the Applicant’s “desperate and disappointing choices”.
To the extent the Applicant re-connects with Ms NF, I find there is a measure of strength and duration to the nature of the Applicant’s social links with Ms NF.
·Ms SI has provided a written statement,[156] but did not give oral evidence. She has known the Applicant for over 30 years because her children went to the same primary school as the Applicant. She too recalls the Applicant as well-mannered and respectful. She thinks his criminal offending “[…] is completely out of character” for him.
To the extent the Applicant re-connects with Ms SI, I find there is a measure of strength and duration to the nature of the Applicant’s social links with Ms SI.
[147]A2, MA153. .
[148]Transcript, 82, line 28.
[149]A2, MA154–MA155; A2, MA173.
[150]Transcript, 82, lines 22–24.
[151]Transcript, 82, lines 30–32.
[152]Transcript, 82, lines 38–40.
[153]See Transcript, 82, lines 43–47.
[154]A2, MA156. Quotations in this paragraph are from this document.
[155]A2, MA158. Quotations in this paragraph are from this document.
[156]A2, MA165. All quotations in this paragraph are from this document.

Based on the evidence from the abovementioned extended family members and people with whom the Applicant has social links, I am of the view (and I find) that the strength, nature and duration of the Applicant's ties with those people carries a certain, but not determinative, weight in favour of revocation.
(2) Impact on Australian business interests
I am mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on “Australian business interests”.
The Applicant submits this component of Other Consideration (d) is not relevant, so I have not had regard to it.[157]
[157]A1, 17[85].
Weight allocable to Other Consideration 4: links to the Australian community
Referring firstly to the first part of this Other Consideration (the strength, nature and duration of the Applicant’s ties to Australia), I am of the view – after having analysed its three specific elements – that the totality of the evidence points to the allocation of a certain, but not determinative, level of weight in favour of the Applicant. The second part of this Other Consideration (impact on Australian business interests) is not relevant. Overall, the Applicant’s links to the Australian community carry a certain, but not determinative, level of weight in favour of a finding that his visa status to remain here should be restored to him.
Findings: Other Considerations
With reference to the Other Considerations contained in the Direction, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations 1, 2 and 4, each of which weigh in favour of non‑revocation. The weight allocable to the Other Considerations (nominated in the Direction) relevant to the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)extent of impediments if removed: of moderate weight in favour of revocation;
(c)impact on victims: not relevant; and
(d)links to the Australian community: certain, but not determinative, level of weight in favour of revocation.
Conclusion
Is there another reason to revoke the cancellation of the Applicant’s visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1 carries a strong level of weight in favour of non-revocation;
·Primary Consideration 2 carries a strong level of weight in favour of non-revocation;
·Primary Consideration 3 carries a certain, but not necessarily determinative, level of weight in favour of revocation;
·Primary Consideration 4 weighs moderately in favour of non-revocation; and
·I have outlined the weight attributable to the Other Considerations. I do not consider that the totality of the weight attributable to the relevant Other Considerations (b) and (d), even when combined with the weight I have allocated to Primary Consideration 3, outweigh the significant, combined and determinative weight I have attributed to Primary Considerations 1, 2 and 4;
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel the Applicant’s visa.
·Consequently, I cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
Decision
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 2 September 2021 to not revoke the cancellation of the Applicant’s visa.

I certify that the preceding 211 (two hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of

............................[sgd]...................................
Associate
Dated: 20 December 2021

Date(s) of hearing: 4 & 5 November 2021

Advocate for the Applicant: Ms J Samuta

Solicitors for the Applicant: Samuta McComber Lawyers

Advocate for the Respondent: Ms A Tinlin

Solicitors for the Respondent: MinterEllison
ANNEXURE A

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

G

Section 501 G-Documents
(G1–G21, paged 1–123)

–

17 Sep 2021

R1

Respondent’s Statement of Facts, Issues and Contentions (paged 1–15)

27 Oct 2021

27 Oct 2021

R2

Supplementary T Documents – Summonsed Material

(S1 – S81 paged 1 – 300)

27 Oct 2021

A1

Applicant’s Statement of Facts, Issues and Contentions (paged 1–17)

8 Oct 2021

13 Oct 2021

A2

Applicant’s First Evidence Bundle
(1 - 41, paged MA1 – MA176)

–

12 Oct 2021

A3

Applicant’s Second Evidence Bundle
(1 - 3, paged MA177 – MA196)

–

1 Nov 2021

ANNEXURE B

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
G	Section 501 G-Documents (G1–G21, paged 1–123)	–	17 Sep 2021
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1–15)	27 Oct 2021	27 Oct 2021
R2	Supplementary T Documents – Summonsed Material (S1 – S81 paged 1 – 300)	27 Oct 2021
A1	Applicant’s Statement of Facts, Issues and Contentions (paged 1–17)	8 Oct 2021	13 Oct 2021
A2	Applicant’s First Evidence Bundle (1 - 41, paged MA1 – MA176)	–	12 Oct 2021
A3	Applicant’s Second Evidence Bundle (1 - 3, paged MA177 – MA196)	–	1 Nov 2021

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2021/6290

General Division )
Re: Michael Amos
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent
DECISION
TRIBUNAL:              Senior Member Theodore Tavoularis
DATE:   25 November 2021
PLACE:                    Brisbane
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 2 September 2021 to not revoke the cancellation of the Applicant’s visa.

The Tribunal will give written reasons for this decision within a reasonable time of the decision.

[sgd]

Senior Member Theodore Tavoularis

[2021] AATA 4774

25 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Appeal

Date(s) of hearing:	4 & 5 November 2021
Advocate for the Applicant:	Ms J Samuta
Solicitors for the Applicant:	Samuta McComber Lawyers
Advocate for the Respondent:	Ms A Tinlin
Solicitors for the Respondent:	MinterEllison

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2021/6290
General Division	)