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

Barsby and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3296 (14 September 2021)
Division:GENERAL DIVISION
File Number: 2021/4087
Re:Alex Barsby
APPLICANT

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

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:14 September 2021
Place:Perth

The Reviewable Decision is set aside and substituted with the decision that the cancellation of the Applicant’s Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
......................[Sgd]..................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – Applicant’s visa cancelled due to attempted possession of synthetic cannabis with intent to sell or supply – other minor drug offences – historical family violence offences – other general and driving offences – 15-year gap in offending prior to most recent offences – Direction No 90 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – family violence – whether uncontested restraining orders are indicative of family violence – best interests of minor children – expectations of the Australian community – extent of impediments if removed – links to the Australian community – strength, nature and duration of ties to Australia – Applicant has three minor children and a minor granddaughter – Applicant is a 53-year-old man who arrived in Australia as a five-year-old child – extent of impediments if removed to United Kingdom – Tribunal found that there is another reason to revoke the Cancellation Decision – Reviewable Decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 499(1), 499(2A), 500(6B), 500(6L), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)
Migration Regulations 1994 (Cth) reg 2.55(8)
Misuse of Drugs Act 1981 (Cth) ss 6(1), 34(1)(aa)
CASES
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
JFSQ and Minister for Home Affairs [2019] AATA 616
MJNN and Minister for Home Affairs [2019] AATA 3205
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 114
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
SCJD and Minister for Home Affairs [2018] AATA 4020
Subasinghe and Minister for Home Affairs [2019] AATA 751
Webb v Minister for Home Affairs [2020] FCA 831; (2020) 170 ALD 511
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
SECONDARY MATERIALS
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021) paras 4(1), 4(2), 5.1, 5.1(3), 5.2, 5.2(4), 6, 7, 8, 8(1), 8(2), 8(3), 8(4), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(a)(i), 8.1.1(1)(a)(iii), 8.1.1(1)(b), 8.1.1(1)(b)(ii), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.3, 8.3(4), 8.3(4)(a), 8.3(4)(b), 8.3(4)(c), 8.3(4)(d), 8.3(4)(e), 8.3(4)(f), 8.3(4)(g), 8.3(4)(h), 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(3), 8.4(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.2, 9.2(1), 9.3(1), 9.4, 9.4.1, 9.4.1(1), 9.4.1(2), 9.4.2(3)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
14 September 2021
BACKGROUND

The Applicant is a 53-year-old man who is a citizen of the United Kingdom. He arrived in Australia with his adopted mother and father and two biological siblings in September 1973, when he was five years of age. He has not left Australia since his arrival (G10/80).
Since 1 September 1994, the Applicant has held a Class BF transitional (permanent) visa (Visa) by operation of law (G12/94).
On 22 March 2019, the Applicant committed the offence of “attempted to possess a prohibited drug with intent to sell or supply (synthetic cannabinomimetic)” (Synthetic Cannabis Offence). He was convicted of this offence in the Perth District Court of Western Australia on 27 February 2020 and sentenced to two years and six months’ imprisonment to be served from 22 November 2019 (R2/32). It was this offence that triggered the subsequent cancellation of the Applicant’s Visa.
On 22 January 2021, the Applicant’s Visa was cancelled under s 501(3A) of the Migration Act (G12/94–101) (Cancellation Decision). The basis of the Cancellation Decision was that the Applicant did not pass the character test because he had a substantial criminal record and was currently serving a full-time sentence of imprisonment for an offence against a law of the Commonwealth, a State or a Territory. The notice of the Cancellation Decision advised the Applicant that he could make representations to seek revocation of the Cancellation Decision.
On the same day, 22 January 2021, the Applicant requested revocation of the Cancellation Decision and made representations and submitted evidence in support of his revocation request (G7; G8; G9). The Applicant provided additional supporting documents on 13 April 2021 (G13; G14/136). On 17 May 2021, his legal representatives made further submissions and provided further supporting documents (G14), including a supplementary statement from the Applicant (G14; A1/4–7).
After considering the Applicant’s representations, on 21 June 2021, a delegate of the Minister decided not to revoke the Cancellation Decision under s 501CA(4) of the Migration Act (G3/14). This is the Reviewable Decision currently before this Tribunal.
The Applicant was notified of the Reviewable Decision in a letter dated 22 June 2021 which was emailed to his legal representative (G3/10–11). Therefore, the Applicant is taken to have received it on 22 June 2021 (reg 2.55(8) of the Migration Regulations 1994 (Cth)).
On 23 June 2021, the Applicant lodged an application in the General Division of the Tribunal seeking a review of the Reviewable Decision (G2/3–9). Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the

Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which the Applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the

84-day period started running from 22 June 2021, meaning the Tribunal must hand down a decision with respect to this application on or before 14 September 2021.
ISSUES
The issues for determination by this Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
THE HEARING AND THE EVIDENCE
This application was heard in person on 25 August 2021. The Applicant was represented by Ms J Edis of Putt Legal and the Respondent was represented by Mr A Burgess of Sparke Helmore Lawyers.
The Applicant gave oral evidence at the hearing and was cross-examined. The Applicant called the following witnesses, who both gave evidence in person:
(a)his mother; and
(b)his father.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Applicant’s bundle of documents, labelled A1 to A5, comprising pages 1 to 15 (Exhibit A1);
(b)s 501G Documents (G-Documents), labelled G1 to G17, comprising pages 1 to 182 (Exhibit R1); and
(c)Respondent’s Summons Bundle, comprising pages 1 to 155 (Exhibit R2).
The Tribunal also had before it the following submissions filed by the parties:
(a)Applicant’s Statement of Facts, Issues and Contentions, dated 29 July 2021 (ASFIC);
(b)Respondent’s Statement of Facts, Issues and Contentions, dated 17 August 2021; and
(c)Applicant’s Submissions in Reply, dated 20 August 2021.
LEGISLATIVE FRAMEWORK
Migration Act
Section 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(Original emphasis.)
Section 501CA of the Migration Act further provides, in part:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)       As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)       The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(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.
(Original emphasis.)
Decision No 90
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 90) under s 499 of the Migration Act, which commenced operation on 15 April 2021. This Direction replaced the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018) (Direction No 79).
Paragraph 5.1 of Direction No 90 sets out “[o]bjectives”, with para 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 90 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. 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. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] 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 noncitizens 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 noncitizens 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 measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in para 5.2 of Direction No 90, the decision-maker (in this case, the Tribunal—see definition of “decision-maker” in para 4(1) of Direction No 90) must take into account the primary considerations listed in para 8 of Direction No 90, and the other considerations listed in para 9 where relevant (para 6 of Direction No 90).
Specifically, para 8 of Direction No 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(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.
Paragraph 9 of Direction No 90 lists other considerations to be taken into account as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations 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
Guidance as to how a decision-maker is to apply the considerations in

Direction No 90 can be found in para 7, “[t]aking the relevant considerations into account”, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Minister may revoke the Cancellation Decision if he is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.
A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
As noted in the “background” section above, on 27 February 2020, the Applicant was convicted of the Synthetic Cannabis Offence in the Perth District Court of Western Australia and was sentenced to two years and six months’ imprisonment to be served from

22 November 2019 (R2/32). As a result of this term of imprisonment, he does not pass the character test by virtue of s 501(7)(c) of the Migration Act.
The Applicant accepts that he does not pass the character test due to his “substantial criminal record” (ASFIC, para [3]).
Accordingly, the Tribunal must now consider whether there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 90)
Paragraph 8.1(1) of Direction No 90 provides that:
(1)When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

Paragraph 8.1(2) of Direction No 90 then provides:
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen's conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 4(2) of the “[i]nterpretation” section of Direction No 90 provides the following definition:
(2)In this Direction, serious conduct includes behaviour or conduct of concern that does not constitute any criminal offence.
(Original emphasis.)
Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 90)
Paragraph 8.1.1(1) of Direction No 90 provides:
(1)In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)   where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
The Applicant does not, relatively speaking, have an extensive criminal history. Between

20 December 1988 and 6 January 2004, he was convicted of 10 criminal offences in Western Australia. These were (R2/32–33):
(a)“threatening behaviour” and “damage”, for which he received a $500 good behaviour bond for 12 months and a $40 fine respectively on 20 December 1988;
(b)“breach of restraint order”, for which he was fined $60 on 20 March 1991;
(c)“cannabis possess a quantity”, for which he received a $200 fine on 13 July 1993;
(d)“possess smoking implement”, for which he received a $150 fine on 16 July 1993;
(e)“burglary & commit offence agg[ravated] (habitat)”, for which he received a two-year conditional release order with a $1000 recognisance on 5 September 2000;
(f)“possess smoking implement” and “possess prohibited drug”, for which he received $150 fines on 12 March 2002; and
(g)“possess smoking implement” and “possess prohibited drug” for which he received $400 fines on 6 January 2004.
During this period, he was also convicted of four traffic/driving-related offences in Western Australia, for which he had to attend court. These offences were recorded on the Applicant’s “History for Court – Criminal and Traffic” (R2/32–33):
(a)“traffic – demerit suspension” on 19 June 1992;
(b)“no motor drivers’ licence” on 11 October 1994;
(c)“exceed the speed limit by 15–29 kilometres per hour” on 26 June 1997; and
(d)“reckless driving” on 8 August 2000.
In addition to these traffic/driving-related offences, approximately 28 other traffic, driving and parking offences were recorded with the Fines Enforcement Registry (R2/153–154). It appears that the Applicant received fines for most of these offences but did not attend court.
The Applicant was also convicted of one count of “assault child” and two counts of “assault occasioning actual bodily harm” in New South Wales on 25 October 1993, for which he was sentenced to five months’ imprisonment on each count (G4/36). These offences were committed on 7 and 8 August 1993 and were against his three-year-old step-son, who was the son of the Applicant’s fiancée at that time (R2/93–95). There are no statements of material facts or sentencing remarks concerning these offences before the Tribunal. However, witness statements indicate that on one occasion the Applicant hit the child across the face, causing the child’s nose to bleed (R2/112 and 121). A statement from a corrective services officer recorded that the child said the Applicant had hit him “in the head in the tummy, on the bottom an [sic] on the leg” (R2/114). The child was admitted to hospital and the attending doctor stated that the child suffered from soft tissue injuries. The doctor recorded the child’s injuries as bruises on the child’s thighs and on his right upper arm, and “tenderness over the right zygomatic [cheek bone] area” (R2/110).
On 30 June 2003, the Applicant was convicted of “assault occasioning actual bodily harm”, as well as “destroy or damage property”. The former offence occurred on 28 March 1994. There are no sentencing remarks before the Tribunal concerning this offence. New South Wales Police provided an electronic incident record which stated (R2/124):
At the above stated times and date [28 March 1994], the POI [Applicant] assaulted the victim after an argument. He struck her on the arms and lower back with his fists, feet and a piece of wood. Police were called and attended. The POI fled interstate to S.A on route to W.A before he could be arrested. Warrants have been issued for his arrest.
The Applicant was located in Western Australia in 2003 and was extradited to New South Wales where he was convicted. His conviction was recorded as “rising of the court” (G4/36), meaning that a conviction was recorded, and the Applicant was held in custody until the conclusion of the Court proceedings.
As noted in the “background” section, the offence which triggered the cancellation of the Applicant’s Visa was the Synthetic Cannabis Offence, which he committed on 22 March 2019. He was convicted of this offence in the Perth District Court of Western Australia on 27 February 2020 and was sentenced to two years and six months’ imprisonment to be served from 22 November 2019 (R2/32).
The circumstances of this offence were that on 18 March 2019, officers from the Western Australia Police Force Organised Crime Squad seized a suspicious package from the Perth airport. The package contained approximately 1 kilogram of synthetic cannabis which police replaced with an inert substance. The package was addressed to “Ralph [last name omitted]”, with the address being the Applicant’s residential address at that time. The package was delivered on Friday, 22 March 2019. The Applicant identified himself as Ralph and signed for the package. The Applicant had received the package on behalf of others and five minutes later, when detectives attended the address to execute a search warrant, the Applicant had left the address with the package to re-deliver it. When the Applicant returned home, he was arrested. Police searched his vehicle and found a clip seal bag containing approximately 7 grams of the inert material which Police had substituted for the synthetic cannabis (G5/39; R2/55).
It was during the execution of search warrant on 22 March 2019, that police located a metal smoking pipe with detectable traces of synthetic cannabis in a kitchen cupboard which formed the basis of the “possessed drug paraphernalia in or on which there was a prohibited drug or plant” offence for which the Applicant received a $400 fine on 7 May 2019 (R2/36).
Approximately eight restraining orders were taken out against the Applicant between 1998 and 2019. These were:
(a)a “misconduct” restraining order taken out by the Applicant’s daughter’s primary school in 1998 (R2/59). The Applicant’s explanation was that he “lost [his] temper” at the school principal (A1/8);
(b)four “violence” restraining orders protecting:
(i)the Applicant’s ex-partner, K, in 1999 (R2/60). The Applicant’s explanation was that he had a volatile relationship with his ex-partner, but does not know why the restraining order was made (A1/8);
(ii)another person that the Applicant thinks may have been his neighbour in 2000 (R2/61). The Applicant gave evidence that he went into his neighbour’s house because he thought that his neighbour had stolen his stereo system (transcript/21; A1/8).
(iii)the Applicant’s adult son, S, and daughter, T, in 2010 (R2/62–64). The Applicant said he was communicating with his daughter on Facebook who “started to lash out” at him about his “whereabouts in her life and we ended up blocking each other”. The Applicant stated, “the next thing I know, I was served restraining orders for both [T] and my son [S]” (A1/9); and
(c)three “family violence” restraining orders protecting:
(i)the Applicant’s estranged wife, L, in 2018 (R2/67), which he attributed to his wife not wanting him around and wanting him “out of her sight”;
(ii)another of the Applicant’s ex-partners, LM, in 2019 (R2/65), who was also a friend of his estranged wife. The Applicant said that LM used to babysit his youngest son, C, who is autistic and that his estranged wife may have encouraged the restraining order application because she believed he would try to take C away while LM was babysitting (A1/9); and
(iii)the Applicant’s mother in law in 2019 (R/69). The Applicant explained that he thought his estranged wife encouraged the restraining order application for similar reasons to the situation described with LM, because his mother in law would also sometimes babysit C (A1/9).
There was also one 24-hour police order in 2006 (R2/57) and one 72-hour police order in 2013 (R2/58) imposed by police, both protecting the Applicant’s estranged wife, L. The Applicant stated that these orders were imposed after the Applicant and L had a “big argument” on both occasions (A1/9). The Applicant’s evidence was consistent with contemporaneous documents from the police. Specifically, a police detected incidents report for the 24-hour police order records that “the comp[lainant] and her husband had been arguing all morning” and that “nil physical violence reported or detected” (R2/44). The police detected incidents report for the 72-hour police order (which records it as being a 24-hour order) confirmed that police had observed the Applicant and his partner (his estranged wife) “verbally arguing at the front of the address” (R2/41).
The Tribunal is able to consider “conduct” under the protection of the Australian community primary consideration. However, other than the Applicant’s explanations of the circumstances surrounding these restraining orders, and the fact that he decided not to contest them, there is very little information about any conduct of the Applicant that may be illustrated by the mere existence of these restraining orders. The Applicant’s explanations suggest that the conduct that led to these restraining orders was relatively minor and included verbal arguments and misunderstandings with former partners and other family members. The Tribunal accepts the Applicant’s explanations, noting that his explanations for the 24-hour and 72-hour police orders were consistent with police documentation. With respect to the restraining orders, the Tribunal notes that these applications are ex-parte and there is no other evidence before the Tribunal regarding the conduct that led to these orders being sought or imposed.
At the hearing, the Applicant was asked about an incident at his son’s school on 15 June 2018. A detected incidents report recorded that he had become “abusive and threatening towards [a] teacher”. When his son started to walk away, the teacher had touched the Applicant’s son’s backpack after which the Applicant was recorded as starting “a verbal tyrade [sic] towards the teacher” (R1/39). The Applicant admitted this event, saying that the teacher had “grabbed hold of my son’s backpack and wouldn’t let it go, so I lost it and had a go at the teacher because [s]he shouldn’t be hands on my kids” (transcript/42).
Turning to the specific guidance given by Direction No 90, para 8.1.1(1)(a)(i) of Direction No 90 states that violent crimes “are viewed very seriously by the Australian Government and the Australian community”; so too are “crimes of a violent nature against women or children” and “acts of family violence” under paras 8.1.1(1)(a)(ii) and 8.1.1(1)(a)(iii) of Direction No 90. Thus, the Applicant’s convictions of “assault child” and two convictions of “actual assault occasioning actual bodily harm” for violent offences against his three-year-old stepson in 1993 must be viewed very seriously. The Tribunal also notes that para 8.1.1(1)(b)(ii) provides that crimes against vulnerable members of the community, which would include children, are stated to be “serious”. The Applicant’s 2003 conviction for “assault occasioning actual bodily harm” against a woman, which occurred on 28 March 1994, must also, applying the Direction, be viewed very seriously. It is unclear whether this offence was a family violence offence against one of the Applicant’s former partners, but in any event, it is a violent offence against a woman and is therefore to be viewed “very seriously”. The Tribunal further notes that these offences are serious regardless of the sentences imposed (para 8.1.1(1)(c) of Direction No 90).
Paragraphs 8.1.1(1)(a) and 8.1.1(1)(b) of Direction No 90 do not limit the range of offences that can be regarded as serious. The Tribunal has often regarded traffic/driving-related offences to be of a very serious nature because road traffic laws are in place to protect the community, including innocent road users, from harm. Additionally, repeated breaches of road traffic laws tend to indicate a disregard for laws and authority generally, an inability to distinguish right from wrong, and a selfish disregard for the safety of innocent members of the community who share the roads (see, for example, Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [15]–[16]; Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [43]–[45]; and MJNN and Minister for Home Affairs [2019] AATA 3205 at [55]). The Applicant’s traffic offences are at the less serious range of such offending that this Tribunal often sees. For example, the Applicant has not committed any offences involving driving under the influence of drugs or alcohol. The most recent offence that the Applicant attended court for was “reckless driving” in 2000. Although this offence is serious due to the risk to other road users from driving recklessly, the Tribunal notes that this offence occurred approximately 21 years ago. The Applicant has received numerous fines for traffic and parking infringements since that time. Although these fines are of a less serious nature, they do, however, tend to indicate irresponsible behaviour and a disregard of road laws.
Additionally, the Tribunal has previously recognised the harmful effects of drugs on the community (see, for example, Senior Member Cameron in SCJD and Minister for Home Affairs [2018] AATA 4020 (SCJD) at [81]–[83]). These harms will be discussed in further detail below. When sentencing the Applicant for the Synthetic Cannabis Offence, Stevenson DCJ noted the “significant risk that any synthetic prohibited drug poses to users in the community” (G5/38). Further, Stevenson DCJ stated that “the offending is on any view very serious, not only because of the quantity of the drug involved but by reason of the nature of the synthetic drug and the risk and harm that on dissemination in the community it would cause” (G5/39). Although the maximum sentence for an offence under s 6(1) of the Misuse of Drugs Act 1981 (Cth) (MOD Act) is 25 years and/or a fine of $100,000 (s 34(1)(aa) of the MOD Act), Stevenson DCJ sentenced the Applicant to two years and six months’ imprisonment with parole eligibility after serving half his sentence (G5/42). Although less than the statutory maximum, the Tribunal finds that the imposition of a custodial term of imprisonment nevertheless indicates the seriousness of this offending (paragraph 8.1.1(1)(c) of Direction No 90).
In PNLB and Minister for Immigration and Border Protection [2018] AATA 162, with regard to a similar consideration under Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014), Senior Member Poljak stated at [22] that: “[s]entences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved”. Despite his many offences, the Applicant has only served two sentences of imprisonment in 1993 and 2019, in addition to the time he spent on remand in 2003. The Applicant has, however, received fines and licence disqualifications for most of his offences, which tends to suggest that they are at the lesser end of the scale of seriousness. The Applicant has several convictions relating to his personal use of cannabis including possession and smoking implement offences. Although, as indicated above, drug-related offending can have serious consequences, the courts imposed fines for these offences, which indicates that they were at the lower end of the scale of seriousness. The courts also imposed fines for his 1998 convictions for “threatening behaviour” and “damage” and for his 1991 “breach of restraining order” conviction, which indicates that the courts regarded those offences to also be of a lower level of seriousness. Similarly, for the Applicant’s aggravated burglary offence, he was not sentenced to a custodial term of imprisonment, but rather a two-year conditional release order with a $1000 recognisance (para 8.1.1(1)(c) of Direction No 90).
As mentioned above, the Applicant does not, relatively speaking, have an extensive criminal history. He has committed approximately 17 criminal offences, and four traffic/driving-related offences for which he has had to attend court. The Applicant’s serious violent offences, including his offences against his three-year-old stepson, were committed in 1993 and 1994, when the Applicant was approximately 25 and 26 years of age. There was also a 15-year gap in his offending between 2004 and 2019, during which time the Applicant incurred fines for minor traffic and parking infringements. Although, the Applicant’s most recent Synthetic Cannabis Offence is serious, overall, there is no trend of increasing seriousness (para 8.1.1(1)(d) of Direction No 90).

The number of the Applicant’s offences, the fines registered with the fines enforcement registry, his two sentences of imprisonment, and his extradition and time in remand in New South Wales are likely to have burdened the resources of the police, the courts and corrective services. The Tribunal therefore finds that there is a cumulative effect of the repeated offending of the Applicant (para 8.1.1(1)(e) of Direction No 90).
The Tribunal must also consider whether the Applicant provided false or misleading information to the Department, including by not disclosing prior criminal offending (para 8.1.1(1)(f) of Direction No 90). There is no evidence that the Applicant has provided false or misleading information to the Department, and so this consideration is not relevant.
Paragraph 8.1.1(1)(g) of Direction No 90, requires the Tribunal to consider whether the Applicant previously received any formal or other written warnings that further offending may affect his migration status. The Applicant has not received any prior warnings, and so this consideration is not relevant.
The Applicant’s violent offences, which include family violence against a child and a woman, are very serious. However, these offences were committed approximately 27 and 28 years ago. The violence restraining orders appear to have concerned verbal arguments and disagreements that the Applicant has had with family members and former partners and there is no indication of actual violence. Not including the Synthetic Cannabis Offence, the Applicant has seven drug offences, which appear to relate to his personal use of cannabis, and which are of a less serious nature. However, the recent Synthetic Cannabis Offence, committed after a substantial break in offending of 15 years, is very serious, as reflected in the prison sentence, the quantity of the drug and its propensity to harm the community.
Overall, the Tribunal finds that the Applicant’s offending ranges in seriousness and weighs moderately against revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 90)
Paragraph 8.1.2(1) of Direction No 90 provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers 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 that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of Direction No 90 provides, in part, in relation to assessing risk:
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
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 their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of the harm (para 8.1.2(2)(a) of Direction No 90)
Broadly speaking, the Tribunal is required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 90).
As mentioned above, the Applicant’s offending includes violent offending and driving-related offending. The harm that could result to members of the Australian community if the Applicant were to re-offend in a violent manner, including by engaging in violence against women or children, could include serious physical injury, temporary or permanent impairment or even loss of life. Violent offending may also result in psychological harm to victims and the Tribunal notes that such offending against children can have a negative impact on their social and emotional development.
Should the Applicant commit further traffic/driving-related offences, members of the public (including innocent road users and pedestrians) could also suffer physical injuries or loss of life, and possibly psychological harm.
The Applicant has also committed offences of a general nature including property offences, such as “damage” (1988), an aggravated burglary offence (2000) and “destroy or damage property” (2003). Broadly speaking, offences against property are less serious than offences against persons, but such offences can also result in psychological and financial harms to victims, as well as contributing to increased insurance premiums. The Applicant also has convictions for “threatening behaviour” (1988) and “breach of restraint order” (1991). Whilst, not as serious as offences involving physical violence, these types of offences can make victims fearful of their safety, and therefore such offending can have a negative psychological impact on victims. Restraining orders are in place to protect the safety of those protected, and so breaching them can cause psychological and even physical harms to victims, depending on the nature of the breach.
As noted above, the harms of trafficking in drugs were recognised, in SCJD, where Senior Member Cameron stated at [81]–[83]:
81.The corrupting effect of drug trafficking on the community has many facets. In many instances such as with overdosing on heroin it leads to death. The heroin toll in this country is almost as high as the road toll but rarely rates the same attention. It destroys families. Parent and children relationships frequently cease as a result of a person’s drug dependency. There is a massive toll on the nation’s mental health system caused by consumption of drugs. Frequently, this leads to the triggering of or early onset of a variety of mental health afflictions. These can include anxiety, psychosis, schizophrenia, bipolar disorders and paranoia. Tragically, drugs are all too frequently trafficked to young people including secondary school pupils. It leads to lives and potential careers being derailed, if not finished. It places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities.
82.In the course of ruining lives drug abuse leads to its victims often having to descend into crimes such as burglary, shoplifting and robbery (amongst others) to support their habit. Innocent people going about their lives can be the subject of robbery and attack by drug affected persons.
83.There is also the organised crime element involved in drug trafficking. The insidious trade of drug trafficking generates vast amounts of cash upon which no tax is paid. This loss of the revenue which is enormous, means that society as a whole is deprived of income that could be provided towards and possibly improve essential public services such as schools, hospitals, police and emergency services.
The Tribunal observes that purchasing and possessing drugs supports the illicit drug trade in the Australian community. The prevalence of drugs causes harm to the community on many levels. As was noted by Senior Member Cameron in SCJD, these harms include the prevalence of drug-related crimes, including violence and theft, increases in property and health insurance premiums, as well as mental and other health issues for drug users, and the negative impact that this can have on their families.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 90)
Next, the Tribunal is required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (para 8.1.2(2)(b)(i) and sub-para (ii) of Direction No 90).
As mentioned above, the Applicant does not have a history of criminal offending that is as lengthy as that of many applicants who come before the Tribunal. He has been convicted of 17 criminal offences, which took place between 1988 and 2019. Seven of these offences concerned cannabis possession and possession of smoking implements for personal use and were of a lower degree of seriousness. However, the Applicant’s remaining and most recent drug offence, being the Synthetic Cannabis Offence, although in part related to his personal use of cannabis, has been found by the Tribunal to be serious.
The Applicant’s offences involving violence occurred in 1993 (“assault child” and two counts of “assault occasioning actual bodily harm”), and in 1994 (“assault occasioning actual bodily harm”) when the Applicant, who is now a 53 year old man, was 25 and 26 years of age. His breach of restraining order conviction was in 1991, when he was 23 years of age. Although there have been numerous restraining orders preventing the Applicant from contact with ex-partners and family members between 1998 and 2019 (which are outlined above), these orders appear to be the result of verbal altercations and not due to actual or threatened violence. The Applicant’s other criminal offences were also committed many years ago, with his most recent being the burglary offence in 2000, which was committed when he was approximately 32 years of age.
The Respondent submitted that prison sentences have not deterred the Applicant from further offending. However, the Applicant has only served two prison sentences, plus time on remand, with most of his offences being dealt with by way of fines. His first prison sentence was in 1993 and was for three fixed terms of five months’ imprisonment for the “assault child” and two “assault occasioning actual bodily harm” offences. In 2003, the Applicant was extradited to New South Wales for the historic offence of “assault occasioning actual bodily harm”, which was committed in 1994. Committing this offence after his first term of imprisonment does tend to suggest that the Applicant was not deterred by his first term of imprisonment. However, at that time, the Applicant was approximately 25 or 26 years of age and it was not until 2003 that he was extradited and held on remand until the conclusion of the court proceedings for this offence. It was then approximately 15 years before the Applicant committed the Synthetic Cannabis Offence, for which he received a two year and six-month term of imprisonment. During this 15-year period, the Applicant incurred fines for minor traffic and parking infringements. Therefore, the Tribunal cannot be reasonably satisfied that prison sentences have not deterred the Applicant from further offending. Indeed, the number of years in between prison sentences tends to suggest they may have had some deterrent effect.
The above review of the Applicant’s criminal history and conduct indicates that much of the Applicant’s offending (including, in part, his most recent Synthetic Cannabis Offence) is related to his personal cannabis use. Further, his violent offending occurred some 27 and 28 years ago, and his last general offence of burglary occurred some 21 years ago. This suggests that there is a low likelihood of the Applicant committing further violent or general offences (such as property offences), and that if he does reoffend, it is more likely to be cannabis-related offending, or less serious traffic/driving-related offending.
There is no expert medical or formal assessment of risk before the Tribunal. However, his parole assessment report prepared by Adult Community Corrections (Assessment Report), endorsed on 27 January 2021, states that the Applicant was “assessed as not requiring any formal interventions due to his low risk of reoffending” (G13/106). The Applicant’s parole review report, prepared by a prison officer and approved by an authorised assistant superintendent on 7 December 2020 (Prison Report), further states (R1/13):
A Risk of Reoffending – Prison Version (RoR-PV) assessment was administered by a Hakea Treatment Assessor. Mr Barsby is not recommended for criminogenic programs at this time due to being deemed a low risk of reoffending.
These reports also indicate that the Applicant has been well behaved in prison. His Assessment Report stated that he was a “valuable team member, reliable and hard working” and that his “commitment and eye to detail is to be commended” as was “his overall work ethic” (G13/104). His prison report states that “he keeps a low profile within the unit and does not come to the attention of staff for any adverse reasons” and that he is a “punctual and reliable worker”. The Prison Report also states that the Applicant had been subject to two breathalyser tests which returned “0.00 results for the presence of alcohol” (R1/12). The Applicant’s good behaviour in prison is to his credit. However, prison is a controlled environment and any changes in his behaviour have not been tested in the community.
On 15 February 2021, the Prisoners Review Board of Western Australia (PRB) granted the Applicant parole from the earliest date that he was eligible, being 19 February 2021 (G6/43; G13/108). The Applicant’s parole period expires at his maximum sentence date, being 21 May 2022.
The PRB gave the following release reasons for granting the Applicant parole (G13/108):
In making this decision the Board took into account the release considerations in s.5A of the Sentence Administration Act 2003 (WA), giving paramount consideration to the safety of the community. The Board decided that your release would present an acceptable risk to the safety of the community due to;
1.    You being assessed as a low risk of reoffending and therefore not meeting the criteria for inclusion in treatment programmes.
2.    Your positive prison conduct.
3.    Your parole plan which includes confirmed suitable accommodation and support from your parents.
4.    The fact that your supervision for the remainder of your sentence in the community to monitor your behaviour, assist your reintegration and rehabilitation is likely to offer more protection to the community in the long term than your release without any supervision at the end of your sentence.
5.    The Board notes that your visa to remain in Australia has been cancelled. Nevertheless, if you are subsequently successful in the revocation of the cancellation of your visa, the Board determines that your release in Western Australia does not pose an unacceptable risk to the safety of the community.
The additional requirements of the Applicant’s parole order included that the Applicant was (G13/109):
1.    To attend for random urinalysis for all illicit substances as directed by the Community Corrections Officer and provide a valid sample.
2.    To attend programmes and counselling as directed.
3.    To engage in employment, training or job seeking as directed by the Community Corrections Officer.
4.    Not to change address without the prior approval of the Community Corrections Officer.
The reasons for release indicate that the PRB regarded the Applicant as posing a low risk to the safety of the community, and that any risk could be managed through the imposition of conditions.
The Applicant has not had the opportunity of this period of parole supervision in the community because he was released from prison into immigration detention. However, as his period of parole expires on 21 May 2022, should the Applicant be released into the community he will have a period of approximately eight months under parole supervision. For the duration of his parole the Applicant will be subject to random urinalysis for illicit substances and will be required to engage in programs and counselling as directed by his community corrections officer, as well as being required to make meaningful use of his time through engagement in employment or training. This will assist in his rehabilitation and reintegration into the community and may assist in reducing the likelihood of his reoffending. The Applicant understands that if he breaches his parole, he “can end up back in gaol” (transcript/24) which is a motivation for him not to reoffend or otherwise breach the conditions of his parole.
The Applicant’s most recent offending, namely his Synthetic Cannabis Offence, was attributable to his relapse to cannabis use after the breakdown of his marriage approximately four years ago. The Applicant explained in his evidence (transcript/19):
I have used [cannabis] in my younger days, when I was 20-ish, and I stopped for 10 or so - 10, 15 years, and I only just started when me and my wife separated, just to numb the pain I think from being hurt, and being with her so long. The love of my life, basically, and I think that hurt me a lot. Got into depression, and then started again using.
The Applicant stated that he stopped using cannabis three to four months before commencing his most recent term of imprisonment, and that he had since been abstinent for approximately two and a half years (transcript/19). The Applicant stated he would not return to cannabis use. The following exchange is indicative of the Applicant’s resolve not to smoke cannabis again and his appreciation of the consequences if he does, including returning to prison and losing custody of his two young sons (transcript/26):
MS EDIS:       Do you think that you are at risk of using again - smoking again?
APPLICANT:   No way - no way in the world. That won't be happening. I've got too much to lose.
MS EDIS:       How can you be so sure?
APPLICANT:   Well, in my mind (indistinct) it doesn't bother me any more. I don't even crave it for one and I have my boys to think about, so there's no way I want to see them - you know, I want to see them and have them and I don't want to go down that track - I really don't want to go down that track again, so in my own mind there's no way - I don't see any of my mates - I don't see any of the people I was involved with any more. I've lost tie - I've cut all the ties with them so I have - I have no reason to get back on it. I'm happy, I'm - yes, and as I said, because of my boys. I'm not - I do not want to lose my boys and I know if I do go back on it that's what will happen.
MS EDIS:So yes, I suppose, yes, what is your understanding of what might happen if you are caught smoking again?
APPLICANT:   Well I know I'll get the boys taken off me again and they probably wouldn't talk to me again because, you know, I don't think - I don't think (indistinct) would want to lose me again so I know if I do get caught again - if I did it again - which I'm not - I'll end up - I could end up back in prison and could end up back here again and that's one thing I do not want. I want to be a father to my kids, a proper father to my kids, you know, like I should have been in the first place and not facing stuff up with the drugs when I got arrested.
In his supplementary statement dated 15 May 2021, prepared by the Applicant with the assistance of his lawyer (A1/5), the Applicant stated:
I have cut all ties with any negative people in my life and will never associate with these types of people again. I have not smoked any pot for over 18 months and it does not bother me. In fact, I have never felt better. It no longer holds any interest for me. My focus is back on my family and learning other ways to cope in stressful situations. I am eager to commence counselling to assist me to remain abstinent; I know this was organised as part of my parole plan and I had been looking forward to it.

The following passage from the Applicant’s supplementary statement further demonstrates his insight into his cannabis use (A1/4–5):
I also acknowledge I have several offences for possessing a prohibited drug and smoking implement / drug paraphernalia spanning across from 1993 to 2019. On each occasion, the prohibited drug has been cannabis and the instrument has been a pipe – I have never used any other drug in my life.
When I met my wife [L], I became a changed man and settled down. [L] and our children … really helped me remain on the straight and narrow, and I quit using pot from around 2004 (which is the year we married) onwards. In 2017 however, our relationship broke down and my emotional state started going downhill. I couldn’t cope and started using pot again. I was also in a lot of pain due to a work injury to my back and I became reliant on the pot to ease the pain. As a result, I started using synthetic cannabis and got involved with some negative people. One of them asked me if they could send some synthetic cannabis to my house. I agreed and, in exchange, I was permitted to keep a small amount of the cannabis for my personal use. In hindsight, it was a dumb and selfish thing to do.
I know very well I did the wrong thing. I did a stupid thing, but I am not a stupid man. I accept that I should have looked for other ways to get through this difficult period in my life.
The period of abstinence that the Applicant has had in prison, his appreciation of the consequences of resuming cannabis use and the conditions of his parole order, which include random urinalysis for illicit substances and attending programs and counselling as directed by his Community Corrections Officer, are likely to assist the Applicant remain abstinent from cannabis use if he is released into the Australian community.
When sentencing the Applicant for the Synthetic Cannabis Offence, Stevenson DCJ observed that the Applicant had the potential to rehabilitate and to contribute to the community through work. His Honour stated (G5/40–41):
It would appear from your previous criminal record in both this State and New South Wales that you are capable of rehabilitating yourself and you also are capable of making a positive contribution in the community by undertaking work.
As his Honour observed, the Applicant has previously positively contributed to the community through employment. He previously worked as a tyre fitter, undertaking wheel alignments, from the age of approximately 15 years to 30 years. He then became a truck driver (transcript/13). The Applicant gave evidence that if he is released into the Australian community, he will reside with his elderly parents for the duration of his parole. The Applicant’s plan is to obtain work as a truck driver and, if he could not find work as a truck driver, he would return to tyre fitting or mechanical work. His plan is to save some money to get his own house and have his two eldest children come back to live with him “and start a new life” (transcript/22–23). Although the Applicant does not have any firm employment offers, he has previously held a heavy vehicle licence (G13/132) and his experience over many years in the mechanical and truck driving industries will assist him to obtain employment. The Applicant’s plan of obtaining employment, caring for his elderly parents, and of retaining custody of his two young sons to start a new life with them will further motivate him to remain abstinent from cannabis use and to reintegrate into the Australian community.
As noted above, when sentencing the Applicant for the Synthetic Cannabis Offence, Stevenson DCJ stated that the Applicant was capable of rehabilitating himself. As was also mentioned above, the Applicant was not able to access formal prison programs because he was assessed as being a low risk of reoffending by prison treatment assessors. The Applicant’s Assessment Report stated that he completed the “ReSet parenting program” and that he was waitlisted for substance abuse counselling (G13/104; see also Prison Report at R1/13).
Additionally, whilst in immigration detention, the Applicant participated in various courses, including “Lifeskills Drug & Alcohol Education” in April 2021. The topics listed on the completion certificate included (G14/154):
The Process of Dependency Part III
Self-Awareness, Self-Honesty & Self-Responsibility
Taking a good look at my use
Where I’m at and where I want to be
The Four Ls of substance impact:
My Livelihood, My Liver, The Law and Love
The Applicant also completed a seven hour “Drug and Alcohol Abuse 101” course on

8 June 2021. The certificate of course completion states that he received a final grade of 85% (G16/159).
The Applicant also participated in two hours of the “Managing Anger course” on 6 April 2021. The certificate of participation states that the topics were (G14/155):
Triggers to anger and how to respond.
Using our thoughts to better manage anger.
Appropriate vs inappropriate ways to express anger.
Overview of techniques to control emotions.
The Applicant participated in another two-hour session of the “Managing Anger course” on 20 April 2021. The certificate of participation states that the topics were (G14/156):
Dealing with angry people.
What to do when others get angry.
What not to do when others get angry.
A further certificate of participation indicates that the Applicant attended a “Men’s Group” session in April 2021, which was part of the “Personal Development & Behaviour Change Program”. The topics were centred around issues of race and gender equality (G14/157).
The completion of the drug and alcohol programs are positive steps that may provide the Applicant with some skills to assist him to remain abstinent from cannabis if he is released into the Australian community. Unfortunately, these programs were not intensive and there are no formal reports from treatment facilitators regarding any gains that the Applicant made upon completion of these programs. The Tribunal does note, however, that the Applicant was given a final grade of 85% for completing the course “Drug and Alcohol Abuse 101”, which the certificate of course completion indicates was run by an accredited provider.
Also, in his evidence at the hearing, the Applicant was able to reflect on the incident where he threatened the teacher at his child’s school. He stated, “Thinking about it now, no, it was probably stupid but I was angry and you say things when you’re angry, as you know, so probably - as I said, no, it’s not a good thing to do, no, it was wrong” (transcript/43). This suggests to the Tribunal that the Applicant may have made some gains because of his completion of the anger management courses because he was able to reflect on his behaviour.
The Applicant has not undertaken any treatment for violent offending. However, his last violent offence of “assault occasioning actual bodily harm” was committed in 1994 and he has not committed any further violent offences. As the Tribunal has discussed above, the many restraining orders taken out against the Applicant appear to relate to verbal altercations and not to any threatened or actual violence.
The Applicant also has the support of his parents (G9/78–79; A2/12–15). They both gave evidence at the hearing and submitted written statements in support of the Applicant. As noted above, the Applicant’s accommodation with his parents was approved by the PRB as being suitable. The Respondent submitted that the Applicant has had the support of his parents in the past, and yet he has reoffended. However, what has changed from the past is that the Applicant’s parents are now also relying on him for support because they are elderly, have health issues, and require assistance with the large property they live on. The Applicant also appreciates that they are relying on him for support. The evidence given by the Applicant’s mother at the hearing indicated that she does not know the exact details of his offending history, however she is aware of the Synthetic Cannabis Offence and is a pro-social person who does not approve of drug taking or breaking the law (transcript/54). In her written statement dated 17 August 2021, the Applicant’s mother stated, “Alex has and will always have the support of myself and [the Applicant’s father]. We will never give up on him” (A1/13, para [22]).
The Applicant has expressed some remorse for his offending and for the impact of his offending on his minor children and aging parents. For example, in his supplementary statement dated 15 May 2021, the Applicant said (A1/5, para):
Being in prison for so long and physically away from my family has definitely put things into perspective for me.
I have significantly let down my parents and my children. I will never do anything to hurt my loved ones like that again, nor will I put myself in this situation again.
I am not getting any younger and I never want to return to prison. I am focused on getting my life back on track. I want to be there for my boys and for my parents who require extra support as they are aging. …
I just have too much to lose for the sake of doing something so dumb again. It is not worth it - I have learnt my lesson.
The prospect of permanent separation from his family also seems to have had an impact on the Applicant. He stated (A1/7):
I realise I have made massive mistakes in my past. I have done the wrong thing and that is not acceptable. However, I want to move forward with my life. If I am given another chance to prove myself, I will not repeat my past mistakes. I have too much at stake and do not want to be permanently separated from my family. My family are all I have and they are all here in Australia. Please let me remain with them, to support them and make up for my wrongs.
In an earlier undated handwritten statement submitted to the Department with his revocation submissions (G9/76), the Applicant stated:
I just need a change to fix all the hurt I have done to everone I know I broke the law and that was dum and if you let me stay you will never see me again and will do anything to fix everything.
I failed my family and my kids and that hurts so much and want a change to fix that and really sorry for breaking the law it was a dum thing to do.
So let me stay to fix it and be come a better man.
(Without alteration.)
In a further supplementary statement (A1/10), the Applicant described that his perspective had shifted to wanting to focus on his parents and children, and on the effect of his most recent term of imprisonment:
… I know very well that I have made some very poor choices in my life. I can regret them, but I can’t take them back. All I can do is look forward. I am 53 years old nowadays. My entire focus has changed: I just want to be there for my young boys and my elderly parents. I want to keep it simple. They mean everything to me. I will not let them down again. They don’t deserve that.
I can honestly say that my whole life perspective has changed as a result of my prison sentence and my time in detention. I have zero motivation to end up back here again. I have too much to lose. I didn’t think about that before, like I should have. I won’t make the same mistake again.
Expressing remorse can be indicative that an applicant accepts responsibility for his or her offending (JFSQ and Minister for Home Affairs [2019] AATA 616 at [65] cited in Subasinghe and Minister for Home Affairs [2019] AATA 751), which may in turn be a factor that lowers the likelihood of reoffending. The evidence currently before the Tribunal suggests that the Applicant has gained some insights into the impact of his offending and that he is remorseful. However, the Tribunal observed during cross-examination that the Applicant was at times defensive and tried to minimise his offending or denied having any recollection of it.
For example, in relation to the offences concerning the assault of his three-year-old stepson, the Applicant’s evidence was that he spanked his stepson on the bottom (transcript/21) which is different to, and a less serious version of events than those described in the witness statements and other evidence of the incident, which have been reviewed earlier in these reasons. A further example is that the Applicant claimed not to remember the offence for which he was extradited to New South Wales in 2003, despite spending two months on remand (transcript/38–39). When it was suggested to the Applicant that the extradition was in relation to the “assault occasioning actual bodily harm” offence, and that the offence may have been an assault against one of his former partners, the Applicant became defensive. The Applicant stated in response to questioning from the Respondent’s representative, “[w]ho am I supposed to have assaulted?” and “[t]here’s no way - no, no way in the world. You can put it as many ways as you like, mate, but there’s no way in the world and it doesn’t say who I assaulted, so I wouldn’t know” (transcript/40–41). Overall, the evidence suggests that the Applicant has some insight into his offending, but that he still has some progress to be made with respect to his insight and impulsivity.
There are some factors that weigh against the Applicant, including that he has not undertaken intensive treatment programs, and that he still has some progress to make in terms of insight into his offending. However, after considering the evidence discussed above, the Tribunal is of the opinion that the Applicant’s likelihood of reoffending in a general or violent manner is minimal, and his likelihood of committing further drug-related offences or traffic/driving-related offences is low.
By way of summary, the evidence which indicates this likelihood of risk includes the following.
(a)The Applicant does not have a lengthy criminal history. It comprises 17 criminal convictions between 1988 and 2019. Eight of the Applicant’s criminal convictions were attributable to the Applicant’s cannabis use, including the Synthetic Cannabis Offence.
(b)There is 15-year gap preceding the Synthetic Cannabis Offence, during which time the Applicant only incurred parking and traffic/driving-related fines, which indicates that the Applicant is capable of living in the community without offending.
(c)Although the Applicant has incurred numerous fines for parking and traffic/driving-related infringements, the Applicant’s last driving offence for which he attended court was approximately 21 years ago in August 2000.
(d)The Applicant’s offences involving violence and general offending are historical. Specifically, his offences involving violence against a woman and a child were committed when the Applicant was 25 and 26 years of age. The breach of restraining order offence was committed in 1991 when he was approximately 23 years of age, and the burglary offence was in 2000 when he was 32 years of age. There has been no subsequent offending of this nature and the Tribunal is of the view that it is unlikely to be repeated. Consequently, the Tribunal is not of the opinion that the Applicant’s conduct fits within the category of conduct that is so serious that any risk of it being repeated is unacceptable (see para 8.1.2(1) of Direction No 90).
(e)Although the Applicant has had numerous restraining orders made against him, they appear to be due to verbal altercations. There is no evidence that these orders concerned threatened or actual violence.
(f)At the commencement of his most recent term of imprisonment, the Applicant was formally assessed by prison treatment assessors as being a low risk of reoffending and not requiring any formal treatment intervention.
(g)The Applicant has demonstrated good prison behaviour during his most recent term of imprisonment for the Synthetic Cannabis Offence and has had a change in perspective due to his time in prison and immigration detention.
(h)The PRB granted parole to the Applicant, and also found that the Applicant is a low risk of reoffending. The PRB further noted that although the Applicant’s visa had been cancelled, if he was successful in the revocation of the cancellation of his visa, his release would not pose an unacceptable risk to the safety of the community. Further, the Tribunal has found that if the Applicant is released into the community, he will have a period of approximately eight months of parole supervision which will assist him to remain abstinent from cannabis and to reintegrate into the community.
(i)The Applicant also has skills as a tyre fitter and in undertaking wheel alignments, as well as substantial truck driving experience, which will assist him to find employment. This will also assist with his reintegration into the community and make productive use of his time.
(j)The Applicant has been abstinent from cannabis use for approximately two and a half years. He has insight into his cannabis abuse and has resolved not to resume cannabis use. The Applicant appreciates that if he does relapse into cannabis use, he will be returned to prison and may lose custody of his two minor sons. The Applicant has also completed two short voluntary drug courses, as well as other voluntary courses.
(k)The Applicant faces the prospect of permanent separation from his elderly parents, who are relying on him to provide them with care and support. His parents are also willing to provide him with accommodation and emotional support.
(l)The Applicant also faces the prospect of permanent separation from his two minor sons with whom he wants to resume custody of and start a new life, as well as from his youngest son who has autism.
(m)The Applicant appreciates the detrimental impact his offending has had particularly on his two eldest minor children and elderly parents.
(n)His plan for release into the community includes living with his parents for the duration of his parole, complying with his parole conditions (including by undertaking drug counselling), finding employment, saving money to secure a house of his own and to regain custody of two of his minor sons.
The Tribunal finds that, on balance, paragraph 8.1.2 of Direction No 90, being risk to the Australian community should the Applicant commit further offences, weighs slightly to moderately against the revocation of the Cancellation Decision.
Summary on para 8.1 of Direction No 90
The Tribunal has found that paragraph 8.1.1(1) of Direction No 90 weighs moderately, and paragraph 8.1.2 weighs slightly to moderately against revocation of the Cancellation Decision. Thus, overall, the Tribunal finds that primary consideration 8.1, being the protection of the Australian community, weighs moderately against the revocation of the Cancellation Decision.
Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 90)
Paragraph 8.2 of Direction No 90 requires decision-makers to have regard to family violence committed by the non-citizen:
(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.

As for A, the evidence shows that the Applicant is a loving father to R. There is no evidence that R has been or is at risk of being abused or neglected by the Applicant in any way (para 8.3(4)(g) of Direction No 90) and no evidence that R has suffered any physical or emotional trauma arising from the Applicant’s conduct (para 8.3(4)(h) of Direction No 90).
Accordingly, the Tribunal finds that revocation of the Cancellation Decision is in the best interests of R and his interests weigh very strongly in favour of the revocation of the Cancellation Decision.
Four-year-old son, C
C is the youngest biological son of the Applicant and his estranged wife, L. He is the younger brother of A and R. C has autism and attends a school where he is in a classroom with other children with special needs. When the Applicant and L separated, C was approximately one year old. Unlike his older brothers, C remained with his mother. Given that he was only an infant when his parents separated, and due to the Applicant being in prison and immigration detention since November 2019, the Applicant has not had a significant amount of contact with C (transcript/16). The Applicant does, however, communicate with C, who has difficulty communicating due to his autism, by smiling at him during video calls with A. The Tribunal finds that the relationship is parental and that there is meaningful contact within the limits of C’s abilities (para 8.3(4)(a) of Direction No 90).
There are approximately 13 years until C turns 18. This is a substantial amount of time during C’s childhood and formative years, especially as C has autism. As has been mentioned above, C stayed in the care of his mother because he was a baby at the time that his parents separated (transcript/14). The Applicant demonstrated insight by recognising that C’s mother would be the best caregiver to meet his needs but stated that he would like to have visiting rights with C on the weekends and school holidays (transcript/18). The evidence indicates that the Applicant is a loving father and the Tribunal finds that he is likely to play a positive parental role in C’s life in the future (para 8.3(4)(b) of Direction No 90).
There is no evidence that the Applicant’s prior conduct has negatively impacted C. If the Applicant returns to live in the Australian community and reoffends after resuming involvement in C’s life, it may have a negative impact on C due to imprisonment and/or deportation (para 8.3(4)(c) of Direction No 90).
Given C’s difficulties with verbal communication, it is likely to be difficult, if not impossible, for C to maintain a relationship with the Applicant through telephone, video call or the internet. The Tribunal finds that it is in C’s best interests to have his father physically present in his life so that his relationship with his father can develop in person. The Applicant is also more likely to be able to help care for C both practically and financially if he is physically present (para 8.3(4)(d) of Direction No 90).
C is currently cared for by his mother and grandmother. As noted above for A and R, there is no evidence that C is not well cared for by his mother and grandmother. However, the Tribunal finds that the Applicant is a loving father who may be able to provide some assistance in providing for C and in C’s upbringing, especially considering C’s special needs. The Tribunal finds that C would benefit from having his father physically present and involved in his life (para 8.3(4)(e) of Direction No 90).
There are no known views of C before the Tribunal. This is understandable given C’s young age and his difficulties in communicating due to his autism (para 8.3(4)(f) of Direction No 90).
There is no evidence that C has been or is at risk of being abused or neglected by the Applicant in any way (para 8.3(4)(g) of Direction No 90) and there is no evidence that C has suffered any physical or emotional trauma arising from the Applicant’s conduct (para 8.3(4)(h) of Direction No 90).
After considering the above factors, the Tribunal finds that revocation of the Cancellation Decision is in the best interests of C and his interests weigh very strongly in favour of the revocation of the Cancellation Decision.
Eighteen-month-old granddaughter, E
The Applicant has a granddaughter, E, who is approximately eighteen months old (G13/134). E is the daughter of the Applicant’s adult son, D, with whom the Applicant remains in contact. The Applicant has not met E because he was in prison when she was born but would like to play a role in her life as her grandfather in the future (transcript/8).

E was born in Darwin but has relocated with her parents to live in Perth to be closer to family (transcript/14). Other than this information, there is minimal information regarding E before the Tribunal (see discussion at transcript/8). Given that the relationship is not parental, E’s young age, the fact that she has parents who care for her, and her lack of a relationship with the Applicant, the Tribunal finds that the best interests of E should be given neutral weight.
Expectations of the Australian community (paras 8(4) and 8.4 of Direction No 90)
A decision-maker must consider the expectations of the Australian community when making a decision under ss 501 or 501CA.
These expectations are set out in para 8.4 of Direction No 90, which provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(c)acts of family violence; or
(d)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(e)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(f)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(g)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(h)worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
Thus, the Tribunal must give effect to the “norm” stipulated in para 8.4(1) of Direction No 90, being that the Australian community expects non-citizens to obey Australian laws whilst in Australia. This will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
As is evident from the reference to the “norm” in para 8.4(1) of Direction No 90, the decision-maker is being told unequivocally what the community’s expectations are. Further, para 8.4(4) of Direction No 90 confirms more explicitly that the Australian community’s expectations are what the Government deems them to be, because decision-makers are directed to proceed based on the Government’s views about community expectations without independently assessing them. In this regard, the Tribunal agrees with the observations of Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 114, which were adopted by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman). In Wightman, Deputy President Boyle stated, at [85]–[86]:
… Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH) at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
195.It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196.It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...
(Original emphasis and footnotes omitted.)
Further detail about what the Australian community’s expectations are with respect to certain types of conduct is then given in para 8.4(2) of Direction No 90. That paragraph states that the Australian community expects that the Australian government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paragraphs 8.4(2)(a)–(f). Relevantly, this conduct includes acts of family violence (para 8.4(2)(a) of Direction No 90) and the commission of serious crimes against women and children, including crimes of a violent nature. The Applicant’s offences against his three-year-old stepson in 1993 fall into both these categories. His 1994 offence “assault occasioning actual bodily harm” was against a woman, and although (as discussed above) it is uncertain whether this was an incident of family violence, it is nevertheless a violent crime against a woman.
Paragraph 8.4(3) of Direction No 90 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
With respect to the Applicant, the expectation of the Australian community would be that the Applicant must obey Australian laws whilst he is in Australia. The Applicant has committed numerous offences, including serious offences in 1993 involving violence against a child and in 1994 involving violence against a woman. As the Tribunal has found above, the Applicant’s Synthetic Cannabis Offence should also be regarded as serious for reasons such as the substantial risk to the community from drug-related offending. Consequently, the expectation of the Australian community would be that the Applicant’s Visa should remain cancelled (para 8.4(1) of Direction No 90).
However, the Tribunal is also guided by the principle contained in para 5.2(4) of Direction No 90 which provides that Australia may afford a higher level of tolerance of criminal or other conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. This applies to the Applicant, who came to Australia as a five-year-old child and has lived in Australia for approximately 48 years.
Thus, on balance, the Tribunal finds that para 8.4 of Direction No 90, being the expectations of the Australian community, weighs moderately against the revocation of the Cancellation Decision.
Other considerations (para 9(1) of Direction No 90)
Paragraph 9 of Direction No 90 provides:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations 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
International non-refoulement obligations (paras 9(1)(a) and 9.1 of Direction No 90)
The Tribunal is required to consider whether Australia’s international non-refoulement obligations arise on any of the submissions, materials or evidence before the Tribunal (paragraph 9.1 of Direction No 90).
In the Applicant’s circumstances, Australia’s non-refoulement obligations are not engaged and therefore this consideration is not relevant.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 90)
Paragraph 9.2(1) of Direction No 90 provides:
(1)Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen's age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The Applicant is currently 53 years of age and has lived in Australia since he was approximately five years old. Since his arrival he has not travelled outside of Australia.
Although there are no substantial language or cultural barriers that the Applicant would face if returned to the United Kingdom, being returned there after living in Australia for approximately 48 years, would nevertheless be likely to result in emotional hardship for the Applicant. The Applicant does not have any family or any friends in the United Kingdom who could provide him with social or emotional support. In his revocation request, the Applicant noted that he has nine cousins in the United Kingdom but that he has no contact with them (G8/70). The Applicant also has two elderly aunts (76 and 78 years of age) in the United Kingdom. However, his mother stated at the hearing that at their stage of life, they would not be able to provide him with any assistance (transcript/57). He would also be separated from his three minor children, his grandchild, and his six adult children who are all Australian citizens. Should the Applicant be returned to the United Kingdom, he would also be separated from his elderly parents whom he would be unlikely to see again. The Applicant has a biological brother and sister in Australia, as well as four nieces and nephews (G8/70). These factors would make resettlement in the United Kingdom emotionally difficult for the Applicant.
The Applicant does not currently have any mental health issues, although the Prison Report and Assessment Report by Adult Community Corrections both note that the Applicant attempted self-harm in 2018 (R1/14; G13/104). The Applicant’s revocation submissions refer to him having “chronic back trouble”, for which he is taking Panadol and ibuprofen, and for which he has taken tramadol in the past (G8/73). In the hearing, when asked if his back condition would affect his ability to drive trucks, he stated that it would not restrict him from getting a job and that, “[n]o, it will not, no. I know my limits. I can sit there and drive all day, it does not bother me” (transcript/23). Thus, the Applicant’s back condition does not appear to be an impediment to his ability to work if he were returned to the United Kingdom. Further, there is no evidence that the Applicant would not have the same access to the National Health Service and the same social security benefits available to him as other citizens of the United Kingdom. In Webb v Minister for Home Affairs [2020] FCA 831; (2020) 170 ALD 511 at [100], Anastassiou J stated that, “I also agree that common knowledge is a sufficient basis for finding … that the standards of health care, education, social welfare and housing support in the United Kingdom would be ‘comparable’ to those in Australia”. The Applicant’s deportation and criminal history may, however, pose an impediment to his seeking employment in an unfamiliar country where he has no employment or social contacts.
Overall, the Tribunal finds that the Applicant is likely to experience emotional hardship if he is separated from his immediate family in Australia and returned to an unfamiliar country that he has not been to since he was a five-year-old child. He may also experience some difficulty and hardship establishing himself and maintaining a basic standard of living if he were to return to the United Kingdom due to his deportation, criminal history, and lack of support networks in the United Kingdom. However, these difficulties are not insurmountable. Accordingly, the Tribunal finds that paragraph 9.2 of Direction No 90, being extent of impediments if removed, weighs moderately in favour of revocation of the Cancellation Decision.
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 90)
Paragraph 9.3(1) of Direction No 90 provides that:
(1)Decision-makers must consider the impact of the 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 information before the Tribunal regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations), any victims (such as the victim of the Applicant’s 1994 “assault occasioning actual bodily harm” or his former stepson) or any family members of victims (such as the Applicant’s ex-fiancée who was mother of his former stepson). Consequently, this consideration is not relevant.
Links to the Australian Community (paras 9(1)(d) and 9.4 of Direction No 90)
Paragraph 9.4 of Direction No 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 to 9.4.2 below.
This requires consideration of the strength, nature and duration of an applicant’s ties to Australia and the impact of non-revocation of a cancellation decision on Australian business interests.
Strength, nature and duration of ties to Australia

Paragraph 9.4.1(1) of Direction No 90 provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Further, paragraph 9.4.1(2) of Direction No 90 provides that:
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
It is evident that the Applicant’s family ties to Australia are very strong. All of the Applicant’s immediate family reside in Australia. As noted above, this family includes his six adult children, three minor children, his grandchild, and his parents, who are permanent residents. The Applicant’s two biological siblings are also resident in Australia. He has four nieces and nephews in Australia; however, the Tribunal has no details about them, including their ages. The Applicant gave evidence that he maintains contact with three of his adult children (transcript/14).
The Applicant’s estranged wife, L, who is the mother of his three minor children, is also in Australia, although the Applicant expressed hopes that they may reconcile (A1/6). There are no submissions from L before the Tribunal, but it is likely that she may suffer some practical and financial hardship in raising her children without any assistance from the Applicant if he is returned to the United Kingdom.
As discussed above in the section on the best interests of relevant children, the Applicant’s three minor children, who are Australian citizens, are very likely to suffer detriment if he is removed. The two eldest children were previously living with the Applicant, who was their primary caregiver, up until he went into custody in 2019. His youngest son has autism and, although he was living with his mother, he will be deprived of having his father in his life, who may be able to assist with his upbringing, including financially. If the Applicant is returned to the United Kingdom, his children are unlikely to be able to see him for the foreseeable future, and his removal is likely to affect them emotionally and financially.
The Applicant’s elderly parents are suffering emotionally at the thought of his removal and how he will cope if returned to the United Kingdom (transcript/57–58). They have a closer relationship with the Applicant (who is their adopted son) than they do with their other two children who were fostered, and who are the Applicant’s biological siblings. In a joint statement dated 6 October 2020, the Applicant’s mother and father said (G9/78):
As we get older we need more and more help and support and Alex is our only son and adult relative in Australia. We need his help often. Without Alex we have no one here in Australia. We need his support as much as he needs ours.
In a statutory declaration, the Applicant’s mother described having difficulty accepting that he could be removed from Australia and stated a strong desire for him to stay (A1/14, paras [30]–[37]). His parents are suffering from health issues and are relying on the Applicant to assist them with physical support, as well as emotional support. For example, the Applicant’s mother described the Applicant supporting her emotionally by visiting and helping her when his father was last in hospital (transcript/57). A letter from the Applicant’s parents’ general practitioner dated 6 April 2021 (G13/111) stated:
I have known [the Applicant’s mother and father] for 12 years. They have multiple medical issues as they are getting older, and would greatly benefit from their son [the Applicant] becoming their carer at their property. They have a large property and his assistance would ensure there [sic] capacity to stay on their block. It is obvious that his deportation would have an adverse outcome on both the mental and physical well beings. Thanks for your understanding.
The Applicant’s mother also indicated to the Tribunal that prior to the Applicant going to prison, she would see her grandchildren at least once a month, but that presently, she and her husband had less contact with their grandchildren since the Applicant’s incarceration and detention. She stated that she and her husband had only been able to see them approximately four times a year. The Applicant’s parents appear to be loving grandparents who want to have a relationship with their grandchildren and to see them more often. For example, she described taking the children on outings including a boat trip to see dolphins, taking them for fish and chips at the beach, or shopping, but that she and her husband found it exhausting to keep up with the children. The Applicant’s mother also described being unable to take the youngest child out with them because his special needs were difficult for them to manage. Her evidence indicates that there is some difficulty organising visits with the children, which must be arranged through their other grandmother (transcript/52–53; A1/12, paras [8]–[13]), and that it is difficult for them to manage the children without assistance, which makes contact less frequent. The Tribunal finds that if the Applicant is permitted to remain in Australia, his parents would likely have more frequent contact with his children, which would be positive for both grandparents and children. However, if the Applicant is returned to the United Kingdom, contact between parents and grandchildren is likely to remain infrequent.
The Tribunal finds that if the Applicant were to be removed from Australia, it is likely that his parents would suffer emotional detriment, and they would be unlikely to see him again. They are also likely to suffer physically because they would lose his physical support and assistance.
As outlined above, the Applicant has resided in Australia for approximately 48 years, since he was a five-year-old child and has never travelled outside Australia. He faces being returned to a country that is foreign to him, and that he has never returned to visit. As the Applicant arrived as a five-year-old child, it cannot be concluded that he started offending shortly after arriving in Australia.
The Applicant’s main contributions to the community appear to be through his history of employment. There is no evidence of any other contributions to the community, such as, community work.
In summary, the Applicant’s ties to Australia are very strong. He has lived in Australia since he was a five-year-old child and has never returned to the United Kingdom. All of his immediate family members are in Australia. As outlined above, several of the Applicant’s family members would be detrimentally affected if he were to be removed, particularly his three minor sons and his elderly parents. Overall, the Tribunal finds that paragraph 9.4.1 of Direction No 90, being the strength, nature and duration of the Applicant’s ties to Australia, weighs strongly in favour of the revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 9.4.2(3) of Direction No 90 provides that:
(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This consideration does not arise on the material before the Tribunal and is therefore not relevant.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
The Tribunal has therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 90.
In relation to the protection of the Australian community, the Tribunal has found:
(a)the nature and seriousness of the Applicant’s offending conduct weighs moderately against the revocation of the Cancellation Decision; and
(b)the risk to the Australian community should the Applicant commit further offences or engage in other similar conduct weighs slightly to moderately against the revocation of the Cancellation Decision.
Overall, the Tribunal has concluded that the protection of the Australian community primary consideration weighs moderately against the revocation of the Cancellation Decision.
With respect to the remaining primary considerations, the Tribunal has found that the:
(a)family violence primary consideration weighed slightly against the revocation of the Cancellation Decision;
(b)best interests of the Applicant’s 15-year-old, 11-year old, and four-year-old sons weighed very strongly in favour of the revocation of the Cancellation Decision;
(c)best interests of the Applicant’s 18-month-old granddaughter, whom he has not met, were given neutral weight; and
(d)expectations of the Australian community would be that the Cancellation Decision should not be revoked, which weighed moderately against the revocation of the Cancellation Decision.
The Tribunal found the following with respect to the other considerations:
(a)considerations of international non-refoulement and impact on victims did not arise on the material before the Tribunal;
(b)the extent of impediments if removed weighed moderately in favour of the revocation of the Cancellation Decision; and
(c)the Applicant’s links to the Australian community, particularly the strength, nature and duration of ties to Australia, weighed strongly in favour of the revocation of the Cancellation Decision. The impact on Australian business interests did not arise on the material before the Tribunal.
The Tribunal finds that the primary consideration of the best interests of the Applicant’s three minor sons substantially outweigh the other primary considerations of protection of the Australian community, family violence, and the expectations of the Australian community. The other considerations that weigh in favour of revocation of the Cancellation Decision, including the extent of impediments if removed and the strength, nature and duration of the Applicant’s ties to Australia, which respectively weighed moderately and strongly in favour of revocation of the Cancellation Decision, give further weight to the Tribunal being satisfied that there is another reason to revoke the Cancellation Decision.
Having had regard to all of the relevant primary considerations and the relevant other considerations in Direction No 90, the Tribunal is of the view that the correct or preferable decision is to set aside the Reviewable Decision, and to substitute a new decision that the Cancellation Decision should be revoked.
DECISION
The Reviewable Decision is set aside and substituted with the decision that the cancellation of the Applicant’s Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

I certify that the preceding 191 (one hundred and ninety -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

.......[Sgd].................................................................
Associate
Dated: 14 September 2021

Date of hearing: 25 August 2021

Representative for the Applicant: Ms J Edis, Putt Legal

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

[2021] AATA 3296

14 September 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice

Date of hearing:	25 August 2021
Representative for the Applicant:	Ms J Edis, Putt Legal
Representative for the Respondent:	Mr A Burgess, Sparke Helmore Lawyers